((orn? U Slam #400! Hibtary Cornell University Library KF 9219.C46 Cases on criminal iaw.A c""*';*',''" °' li* 3 1924 020 147 405 Cornell University Library The original of tiiis 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/cu31924020147405 aJ.^. / Scs^.,--^^^ . Madge, 9C.&P. 29 428 V. Manning et al., 6 Cox C. C. 86 268 V. Martin, L. R. 1 C. C. R. 56; 10 Cox C. C. 383 416 V. Martin, 14 Cox C. C. 375 ; 5 Q. B. D. 34 501 ^. Martin, 2 Moody C. C. 123 152 u. Masters, 3 Cox C. C. 178 395 V. Masters, 1 Den. C. C. 332 310 V. McDaniel, Leach C. C. 52 167 V. Medland, 5 Cox C. C. 292 338 V. Michael, 1 Moody C. C. 120 133 V. Moah, 7 Cox C. C. 503 492 V. Naylor, 10 Cox C. C. 149 416 V. Nicholls, 13 Cox C. C. 76 114 o. Oddy, 6 Cox C. C. 210 469 u. Parker, 7 C. & P. 825 ; 2 Moody C. C. 1 415 V. Pembliton, -12 Cox C, C. 607 120 V. Fetch, 14 Cox C. C. 116 260 u. Phetheon, 9 C. & P. 662 337 V. Pierce, 6 Cox C. C. 117 334 V. Powell, .5 Cox C. C. 396 244, 484 V. Poynton, 9 Cox C. C. 249 281 V. Poyser, 2 Den. C. C. 233 308 V. Pratt, 6 Cox C. C. 373 293 V. Prince, 1 L. R. C. C. 150 ; 11 Cox C. C. 193 270 V. Privett, 1 Den. C. C. 193 ; 2 C. & K. 114 349 V. Quail, 4 F. & F. 1076 1.39 V. Radford, 1 Den. C. C. 59 608 V. Kandell, 1(3 Cox C. C. 335 416 'A Reardon, L. R. 1 C. C. R. 31 463 V. Reed, 23 L. J. (N. S.) M. C. 25 232 V. Reeves, 5 Jur. (N, S.), 716 331 V. Riley, Dears. C. C. 149 ; 6 Cox C. C. 88 279 V. Ritson, 11 Cox C. C. .362 606 CASES CITED. VU Regina v. Robins, Dears. C. C. 418 ; 6 Cox C. C. 420 321 u. Robinson, Bell C. C. 34 391, 416 u. Rogers, 37 L. J. M. C. 83 458 ... Rose, 15 Cox C. C. 540 194 0. Rymes, 3 C. & K. 326 467 u. Sampson, 52 L. T. R. (N. S.) 772 416 V. Schmidt, L. R. 1 C. C. R. 15: 10 Cox C. C. 172 421 V. Selway, 8 Cox C. C. 235 386 V. Sern^, 16 Cox C. C. 311 183 V. Sharman, 6 Cox C. C. 312 492 V. Sheppard, 1 Leach C. C. 265 601 V. Shickle, L. R. 1 C. C. R. 158; 11 Cox C. C. 189 251 V. Smith, 8 Cox C. C. 32 ; Dears. & B. 566 488 V. Smith, 1 Dears. C. C. 494 442 V. Smith, 11 Cox C. C. 210 116 a. Taylor, 4 F. & F. 511 125, 131, 511 V. Thristle, 3 Cox C. C. 573 291 V. Thurborn, 1 Den. C. C. 387 832 u. Toshack, 4 Cox C. C. 38 493 V. Towers, 12 Cox C. C. 530 163 V. Townley, 12 Cox C. C. 59 256 V. Towse, 14 Cox C. C. 827 84 V. Trebllcock, 7 Cox C. C. 408 339 V. Wade, 1 C. & K. 739 441 V. Wagstaffe, 10 Cox C. C. 530 100 V. Walne, 11 Cox C. C. 647 416 V. Watson, 7 Cox C. C. 364; Dears. & B. 348 414 V. Watts, 4 Cox C. C. 336 ; 2 Deii. C. C. 14 247, 312 V. Webb, 5 Cox C. C. 154 325 «. Webster, 9 Cox C. C. 13 277 V. White, 1 F. & F. 665 469 V. White, 1 Dears. C. C. 203 ; 6 Cox C. C. 213 381 V. White, 2 Cox C. C. 210 495 V. Wiley, 4 Cox C. C. 412 445 V. WiUiams, 1 C. & K. 195 329 V. Woodward, 9 Cox C. C. 95 457 V. Wynn, 3 Cox C. C. 271 352 Kex V. Adams, Russ. & Ry. 225 410 V. Bake et al., 3 Burr. 1731 473 V. Banks, Russ. & Ry. 441 364 V. Barnard, 7 C. & P. 784 415 V. Bramley, Russ. & Ry. 478 276 u. Brazier, Russ. & Ry. 337 300 V. Cabbage, Russ. & Ry. C. C, 292 344 V. Campbell, 2 Leach C. C. 642 387 V. Dickinson, Russ. & Ry. C. C. 420 358 V. Eggington, 2 East P. C. 494, 666;2B. &P. 508 326 V. Elizabeth March, 1 Moody P C 182 484 V. Gould, 1 Leach C. C. 257 390 V. Hall, 3 C. & P. 409 84 V. Harris, 1 Moody C. C. 393 493 Page Rex V. Hawkeswood, Leach C. C. 292 493 V. Headge, Russ. & Ry. 160 401 V. Isaac, 2 Ea§t P. C. 1031 484 u. Jackson, 1 Moody C. C. 119 356 V. Kirkwood et al., 1 Moody C. C. 804 135 V. Knight, 2 East P. C. 510 111, 484 V. Lewis, Foster C. C. 116 606 V. Lockett, 1 Leach C. C. 110 498 V. Madox, Russ. & Ry 92 801 V. Marshall, Russ. & Ry. 75 497 V. Morfit, Russ. & Ry. C. C. 307 845 V. Murray, 1 Moody C. C. 276 310 V. James Ogden, 6 C. & P. 631 93 V. Owen, 1 Moody C. C. 96 137 V. Phipoe, 2 Leach C. C. 673 ; 2 East P. C. 599 267 V. Probert, 2 East P. C. 1030 484 V. Prowes, 1 Moody C. C. 349 379 428 V. Reculist, Leach C. C. 811 ' 493 V. Richards, Russ. & Ry. C. C. 28 237 V. Richardson, 6 C. & P. 335 465 V. Searing, Russ. & Ry. 350 248 V. Simmonds, 1 Moody C. C. 408 875 V. Scares, Russ. & Ry. 25 138 a. Sullens, 1 Moody C. C. 129 395 V. Taylor, Russ. & Ry. 418 389 u. Thompson, 1 Moody C. C. 80 174 V. Tuft, 1 Leach C. C. 206 500 V. Walker, 1 Moody C. C. 155 246 V. Walsh, 1 Moody C. C. 14 380 V. Westbeer, 1 Leach C. C. 14 242 V. Whiley, Russ. & Ry. 90 498 V. Wilkinson, Russ. & Ry. 470 273 V. Willis, 1 Moody C. C. 375 860 V. Wilson et al., 8 D. E. 357 471 V. Young, 1 Leach C. C. 505 415 Reynolds u. United States, 98 U. S. 145 95 Richards (People v.), 108 N. Y. 137 474 (Rex v.), Russ. & Rv. C. C. 28 237 Richardson ( Rex v.), 6 C. & P. 335 465 Riley (Regina v.), Dears. C. C. 149; 6 Cox C. C. 88 279 Ritson ( Regina u.), 11 Cox C. C. 352 506 Robins (Regina v.). Dears. C. C. 418 ; 6 Cox C. C. 420 321 Robinson (Regina v.), Bell C. C. 34 391, 416 Rogers (Regina v.), 87 L. J. M. C. 83 458 Roosnell (Com. v.). 143 Mass. 32 212 Rose (Regina B.), 15 Cox C. C. 540 194 Sampson (Regina i>.), 52 L. T. R. (N. S.), 772 416 Saunders' Case, 2 Plowd. 473 176 Schmidt (Regina v.), L. R. 1 C. C. R. 15 ; 10 Cox C. C. 172 421 Searing (Rex v.), Russ. & Ry. 350 248 Selway (Regina k.), 8 Cox C. C. 235 386 Sern^ (Regina u.), 16 Cox C. C. 311 183 Sharman (Regina v.), 6 Cox C. C. 312 492 Vlll CASES CITED. Page Slteppard (Regina v.), 1 Leach C. C. 265 501 Sliickle (Regina v ), L..R. 1 C. C. R. 158 ; 11 Cox C. C. 18U 251 Simmonds (Bex v.), 1 Moody C. C, 408 375 Smith V. Maryland, 18 How. 71 51 (Regina v.), 8 Cox C. C. 32; Dears. & B. 566 488 (Regina v.), 1 Dears. C. C. 494 442 (Reginaw.), 11 CoxC.C. 210 116 (U. S. v.), 6 Wheaton, 153 28 Scares (Kex v.), Russ. & Ry 25 138 Squire v. The State, 46 Indiana, 459 90 State V. Bartlett, 11 Vermont, 650 876 V. Ives, 13 Iredell, 338 460 V. Johnson, 40 Conn. 136 189 (Wyatt v.), 2 Swan, 394 206 State of Ohio (Fox v.), 5 Howard, 410 63 Stebbins (Com. v.), 8 Gray, 492 83 Stratton (Com. v.), 114 Mass. 303 155 Sugland (Com. v.), 4 Gray, 7 211 Sullens (Kex v.), 1 Moody C. C. 129 395 Tarrance ( Hosliins v.), 5 Blaolcf . 417 240 Taylor (Com. v.), 105 Mass. 172 129, 131 V. Newman, 9 Cox C.'C. 314 391 (Regina w.), 4 F. & F. 511 125, 131, 511 (Rex v.), Russ. & Ry. 418 389 Tennessee v. Davis, 100 U. S. 257 63 The State (Squire v.), 46 Indiana, 459 90 Thompson (Rex v.), 1 Moody C. C. 80 174 Thristle (Regina v.), 3 Cox C. C. 573 291 Thurborn (Regina v.), 1 Den. C. C. 387 332 Toshack (Regina v.) 4 Cox C. C, 38 493 Towers (Regina v.), 12 Cox C. C. 530 163 Townley (Regina v.), 12 Cox C. C. 59 256 Towse (Regina v.), 14 Cox C. C. 327 84 Trebilcock (Bjegina v.), 7 Cox C. C. 408 339 Tuft (Rex v.), 1 Leach C. C. 206 500 United States v. Arjona, 120 U. S. 479 32, 55 p. Bevans, 3 Wheaton, 336 17, 51 p. Carll, 105 U. S. 6U 22 V. Coolidge, 1 Wheaton, 415 16 Page United States p. Coombs, 12 Fet. 72 24, 49 p. De Bare, 6 Biss. 358 426 p. Dewitt, 9 Wall 41 60 V. Fox, 95 U. S 670 58 p. Hall, 98 U. S. 343 55 V. Holmes, 1 Wall. Jr. 1 195 p. Hudson et al., 7 Cranch, 32 14 (Reynolds p.), 98 U. S. 146 95 V. Smith, 5 Wheaton, 153 28 p. Wiltberger, 5 Wheaton, 76 49 Vilmont (Bentley v.), L. R. 12 App. Cas. 471 416 441 Wade (Regina w.), 1 C. & K. 739 Wagstaffe (Regina p.), 10 Cox C. C. 530 Walden (Com. p.), 3 Cush. 558 Walker (Rex p.), 1 Moody C. C. 155 Walne (Regina ».), 11 Cox C. C. 647 Walsh (Rex p.), 1 Moody C. C. 14 Warren (Com. ».), 6 Mass. 72 & Johnson (Com. p.), 6 Mass. 73 Watson (Regina p.), 7 Cox C. C. 364 ; Dears. & B. 348 Watts (Regina v.), 4 Cox C. C. 336; 2 Den. C. C. 14 247, 312 Webb (Regina v.), 5 Cox C. C. 154 325 Webster (Regina u.). 9 Cox C. C. 13 Westbeer (Rex p.), 1 Leach C. C. 14 Whiley (Rex v.), Russ. & Ry. 90 White (Com. p ), 110 Mass. 407 (Regina p.), 1 F. & F 665 (Regina v.), 2 Cox C. C. 210 (Regina p.), 1 Dears. C. C, 203 ; 6 Cox C. C. 213 100 118 246 415 380 11 12 414 277 242 498 153 469 495 381 Wiley (People p.), 3 Hill (N. Y.) 194 438 '" • • ■ " - 445 273 253 329 360 471 49 (Regina v.), 4 Cox C. C. 412 Wilkinson (Rex ;'.), Russ. & Ry. 470 Williams (People i;.),35 Cal. 671 (Regina w.), 1 C. & K. 195 Willis (Rex p.), 1 Moody C. C. 375 Wilson et al. (Rex v.), 8 D. & E. 357 Wiltberger (U. S. p.), 5 Wheaton, 76 Woodward (Regina v.), 9 Cox C. C. 95 Wyatt p. State, 2 Swan, 394 Wynn (Regina v.), 3 Cox C. C. 271 457 206 352 Young (Rex «.), 1 Leach C. C. 505 415 CASES ON CEIMINAL LAW. CHAPTER I. Sources op oue Criminal Law, English Common Law ; Eakly English Statutes ; Admiralty ; Local Usages. COMMONWEALTH v. KNOWLTON, 2 Mass. 530 [1807]. The indictment in this case was found at tlie Court of General Ses- sions of the Peace for this count}', May term, 1803. It alleges that there is a certain river or stream in this county, which empties itself into the river Kennebeck, called Sandy Eiver, up and through which said Sandy River salmon, shad, and alewives have been wont to pass to the ponds adjacent to oast their spawn, and which river ought by law to be free from all obstructions whatever ; yet that the defendant, not ignorant of the premises, at Farmington, in said countj', on the first day of June, 1801, with force and arms, built and erected a mill-dam across said Sandy Eiver, and being owner and occupant thereof, the same hath continued to the present time, without making or providing a sufficient sluice or passage-waj- either through or round the said dam for the said fish to pass up as by law he ought to have done. By reason whereof the said fish have been and still are obstructed in their passing up the said river, " to the great injurj- of the public, in evil example to all others in like cases offending, against the peace and dignitj' of the Commonwealth, a nd contrary to the form of th e_statute in snnh case tparlp anH provided. " Upon not guilty pleaded at the Court of Common Pleas,' he was con- victed and sentenced, and appealed to this court, where at September term, 1805, he was again tried and found guilty. 1 By statute passed March 9, 1804, all the powers and duties of the Sessions, with certain exceptions, were transferred to the Courts of Common Pleas ; and all indictments, etc., then pending in the Sessions were to be proceeded in and deter- mined by the Courts of Common Pleas. 1 2 CASES ON CRIMINAL LAW. [CHAP. X. After verdict the defendant moved in arrest of judgment, because by law the said indictment did not lie at said Court of General Ses- sions of the Peace, and said court last named had bj- law no jurisdic- tion of the ofienee charged in said indictment. CuKiA. The defendant moves in arrest of judgment, on two grounds. The second objection, founded on the want of jurisdiction of the Sessions, has great weight. The Court of Sessions, to whose jurisdiction in criminal causes the Court of Common Pleas has succeeded, by statute of March, 1804, was . erected by the statute of July 3, 1782, and it is empowered to hear and determine all matters relating to the conservation of the peace, and such offences as are cognizable by them at^ commo n law, or bj- the acts of the legislatur e. "TTTjy ^mmon law, mentioned in this statute, be understood strictly the com mon law of Engla nd, those words cannot have any effect ; for the Sessions being created by statute cannot have any jurisdiction but what is given it by some statute. But, if these words import th e common law of the Commonwea lth, they have an ex- tensive operation and are easily understood. Our ancestors, when they came into this new world, claimed the common law as their birth- right, and brought it with them, except such parts as were judged in- applicable to their new state and condition. The common law, thus claimed, was the common law of their native countrj', as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country-, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted by our courts, and now have the authority of law derived from long practice. To these may be added some ancient usages, originating probably from laws passed by the legislature of the colony of the Massachusetts Bay, which were annulled bj' the repeal of the first charter, and from the former practice of the colonial courts accommo- dated to the habits and manners of the people. So much therefore of the common law of England as o ur ancestor s brought with them, and of the statutes then in force, amending or al- tering it ; such of the more recent statutes as have been since adopted in practice ; and the ancient usages aforesaid may be considered as J forming the body of the common law of Massachusetts, which has sub- mitted to some alterations by the acts of the provincial and State legis- latures, and by the provisions of our Constitution. From these principles we may conclude that the Sessions in England, having at the time of the emigration jurisdiction of all trespasses (ex- cept perhaps forgery and perjury, see 2 East's Rep. 18), which were offences against law, when the statute of 34 Ed. 3, c. 1. was passed. CHAP. I.] COMMONWEALTH V, CHURCHILL. 3 giving the Sessions (among other things) the cognizance of all tres- passes ; our Court of Common Pleas, as successor of the Sessions, has jurisdiction of the same trespasses by the common law of the Common- wealth ; and that it has jurisdiction of no other trespasses, unless de- rived expressly from some statute. The offence, of which the defendant is indicted, i s cle arly not an of- fence at common law, but i t is a new offence created by the~statu te."on" wHoh this indictment is drawn, as it is n'ot supposed that there is any other statute by which the Sessions can have jurisdiction ; the validity of the objection to judgment on this conviction must depend on the construction of the statute on which it was obtained. l£jthejtwelftli_ section it is enacted, that all the fines imposed shall be recovered b.y presentment of the grand jury, or Jbyaction of debt. This section does not expressly, or by necessai-y implication, include the Sessions, for the^woi^3iTnay be"perfectl3'"'"satisfled by a presentment of the grand jury to this court. And the Sessions before the statute of March, 1804, or the Common Pleas since, n ot havin g jurisdiction at common, law, nor by the express provisions of any statute, the Judgment must be arrested. COMMONWEALTH v. CHURCHILL, 2 Met. 118 [1840]. At the last September term of the Court of Common Pleas, the de- fendant was convicted on four counts in an indictment, the first of which alleged that he, " at Stoughton in said County of Norfolk, on the 16th day of March last past, did sell to one , one glass of brandy to be by him, the said , then and there used, consumed, and drank in the dwelling-house there situate of him the said Samuel, he the said Samuel not being then and there duly licensed, according to law, to be an innholder or common victualler ; against the peace, etc., and con- trary to the statute in such case made and provided." There were five other counts similar to the iirst, except that different kinds of spirituous liquor were alleged to have been sold to five different persons on sev- eral different daj^s, to wit, on the 17th, 18th, 19th, 20th, and 21st of March, 1840. On two of the counts the defendant was acquitted. The defendant filed exceptions to the ruling of Strong, J., before whom the trial was had : " 1. Because the court instructed the jurj- that the 2d and 3d sections of c. 47 of the Revised Statutes, on which the indictment is founded, are binding and valid, when the defendant contends that they are unconstitutional and void. 2. Because the court instructed the jury that those sections were still in force as law, 4 CASES ON CRIMINAL LAW. [CHAP. I. when the defendant contends that they are repealed by subsequent legislative enactments." Shaw, C. J. It appears by the record that the defendant was in- dieted for selling spirituous liquors without license, on the 16th day of March last, and at several times afterwards, and that upon a trial of the indictment, in the Court of Common Pleas, he was convicted. Two exceptions were taken to the directions and opinion of that court in matter of law, upon which the case has been brought before this court, pursuant to the statute. These exceptions were as follows : 1. That the 2d and 3d sections of the 47th chapter of the Revised Statutes, upon which this prosecution is founded, are unconstitutional and void. 2. Because the court instructed the jury that these sections were in force as law, at the time when the acts charged as offences were alleged to be done ; whereas the defendant contended that they were repealed by a subsequent act of the legislature. Upon the first no argument has been offered, and it does not seem to be insisted on. The second de- pends upon the question whether the statute of 1840, c. 1, passed on the 11th of Februarj-, 1840, and which went into operation in thirty days from its passage, to wit, March 13, 1840, simply repealing the statute of 1838, c. 157, did, b^- its legal operation, revive the 2d and 3d sections of the 47th chapter of the Eevised Statutes. If it did, the case of the defendant was within them, the acts all being charged to have been done after the 13th of March last, and the acts themselves being made punishable by those provisions of the Revised Statutes. It is conceded to b e a maxim of the common la w, applicable to the construction of statutes, that the simple repeal of a repealing law, not substituting other provisions in place of those repealed, revives the pre-existing law. As a maxim of the common law, it was in force here when the Constitution of the Commonwealth was adopted. By that Constitntion it was declared that " all the laws, which have heretofore been adopted, used, and approved in the colonj', province, or State of Massachusetts Baj', and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legis- lature ; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution." This Constitution has been construed as adopting the great body of the common law, with those statutes made before the emigration of our ancestors, which were made in amendment of the common law, s^_ far as these rules and princip les w ere ap plicable to our condition and form of government. Common- wealth V. Leach, 1 Mass. 59. Commonwealth v. Knowlton, 2 Mass. 534. CHAP. I.J COMMONWEALTH V. CHURCHILL. 5 But it was contended, at the argument, that under this provision no principle or rule of the comTnon law could be regarded as adoptedj^un^ less it could be shown affirmatively that it had been adjudicated before the Uevoiutioir — Buf we' apprehend this would be much too narrow a construction. Before the Revjalution, we had no regular reports of judicial decisions ; and the most familiar rules and principles of law — those which lie at the foundation of our civil and social rights — could not be so proved. Noj__wgj]gly^ on usa ge and tradition, and the wel l know n reposit ories of legal learning^ w orks of approved authori ty, to l earn what are the rules of the common law ; and we have no doubt that these were the great sources to which the above pregnant provision of our Constitution refers. Taking it then as well established that the rules and maxims of the common law, referred to in the Constitution, were those which our an- cestors brought with them, and which had been, to some extent, modi- fled and adapted to our condition by the legislative jurisprudence of the colonial and provincial governments, it follows that these rules and principles were regarded as binding both upon legislators and judges in their respective departments. A part o f this system are the wel l know n rules of construction for_the_ expounding of statutes, -wh ich are asjnuch_a_gart^ifevery statute as jtsjtext. These are presumed to be known and kept in view by the legislature in framing the statute ; and they must be alike regarded by judges in expounding it. It was further insisted in the argument, that the legislature could not have intended, when thej' repealed one license law, in effect to re- establish another. But their ijitentions must be ascertained by their acts alone, and not by evidence aliunde. We cannot possibly know the intentions of members of the legislature. It is the will of the aggre- gate body as expressed in the statutes which they pass, which can be regardedjis having the foree of law ; any different construction would lead to the greatest confusion and uncertainty. T he leg islature are presumed to understand and intend all consequences of their own measuresT and the only safe course is for courts of justice to expound the intentions of the legislature by their acts, and those acts construed by known and established rules of construction. On the whole, the Court are of opinion that t hj simple rep eal of St. 1838, c. 157, by that of 1840, c. 1, did revive the 2d and 3d sections of the Rev. Stats, c. 47, and that the provisions of those sections were in force at the time of the offences charged in the indictment, and that the conviction was right. Exceptions overruled. CASES ON CRIMINAL LAW. [CHAP. I. COMMONWEALTH v. CALLAGHAN and HOLLOWAY, 2 Virginia Cases, '460 [1825]. This was a case adjourned by the Superior Court of Law of Alleghany County. The case itself is fully set forth in the following opinion of the General Court, delivered by Barhour, J. This is an adjourned case from the Superior Court of Law for the County of AUeghanj'. It was an information filed against Callaghan and HoUoway, two of the justices of Alleghany, alleging in substance the following charge: That at a court held for the County of Alleghany, there was an election for the oflBce of eommissioner^of the revenue and of clerk_Qf..fiaid_CQjirt, when the defendants were both present, and acting in their oflBcial character as magistrates in voting in said election ; that the defendant CaUaghan, in said election for commissioner of the revenue, wickedl y •and corrupt ly agreed to v ote, and in pursuance of said corrupt agree- ment didjvote, for a certain W. G. HoUoway, to be said commissioner, in consideration of the promise of the defendant HoHowaj' that he would vote for a certain Oliver Callaghan to be clerk , of said court; and that the defendant HoUoway in the said election of clerk wickedly and corruptly agreed to vote, and in pursuance of said corrupt agree- ment did vote, for a certain Oliver Callaghan to be said clerk, in con- sideration of the promise of the defendant Callaghan that he would vote for the aforesaid W. G,. HoUoway to be cotnmissioner. To this infor- mation the defendants- demurred generallj', and there was a joinder in the demurrer. The Superior Court of Law of Alleghany, with the assent of the defendants, adjourned for novelty and difficulty to this court the questions of law arising upon the demurrer to the informa- tion and particularly the following, namely : 1. Is there any offence stated in said information for which an infor- mation or indictment will lie ? 2. Is the offence charged in the said information within the true intent and meaning of the Act of the General Assembly entitled " An i Act against buying and selling offices," passed Oct. 19, 1792, in page! 659, 1st vol. Eev. Code of 1819 ? 3. If the ofl"ence be within the said act is the information filed in this case a good and sufficient information ? * The first and second questions, for the sake of convenience, will be considered together. It is proper to premise that a general demurrer admits the truth of CHAP. I.] COMMONWEALTH V. CALLAGHAN, 7 all facts which are well pleaded ; there being_such_a demurrer in this case, and the information distinctly alleging that the defendants, in giving their votes respectively, acted wickedly and corruptlyi such wicked and corrupt motive will be considerecTthroughout as forming a part of the caseJ ~ ' The Court are unanimously of opinion that the case as stated in the information is not within the true intent and meaning of the Act of Assembly referred to in the second question. That act embraces two descriptions of cases : 1. The sale of an office or the deputation of an office ; 2. The giving a vote in appointing to an office or the deputa- tion of office. It would be within the latter description that this case would fall, if within either ; but the Court are decidedly of opinion that this case does not fall within this description, because the plain con- struction of the statute is that the penalties which it denounces are incurred only by those who receive or take, either directly or indirectly, any money, profit, etc., or the promise to have any money^ profit, etc., to their own use or for their own benefit. In this case it appears from the information that the promise of each of the defendants to the other, which constituted the consideration of the vote of that other, and the vote given in consequence of such promise, enured not to the beaeflt^of the jJefend ants or either of them, but to_the benefit of others. If indeed it had been alleged in the information that the persons for whom the votes were given, were, if elected, to have held them upon anj' agree- ment, that the defendants should in any degree participate in their profits or receive from the holders of them anj' lienefit^ advantage, the case would have been difierent, for then the defendants would have received a profit indirectly/, and thus would have fallen within the sta- tute ; but there is no such allegation. The Court being thus of opinion that this case was not embraced by the statute, but at the same time considering that that system of crim- inal jurisprudence must be essentially defective which had provided no punishment for acts such as are charged in the information, and which merit the reprehension of all good men, wexe^Jed to inquire whether the acts charged in the information did not constitute an offence at common Taw; and they are of opinipjtthatjthey do. In relation to those oflfences which rise to the grade of felony there is usually, particulaHy in the designation of them by name, an accuracy in the definition ; as, for example, murder, burglar^-, arson, etc., in each of which the term ex vi termini imports the constituent of the offence ; but in the general classification of crimes whatever is not felony is misdemeanor. In relation to these, then, they are not only numerous but indefinitely diversified, comprehending every act which, whilst it falls below the grade of felony, is either the omission of some- 8 CAgES ON CKIMINAL LAW. [CHAP. I. thing commanded or the commission of something prohibited by law. As to these the law can do no more than lay down general principles, and it belongs to the courts of the country to apply those principles to the particular cases as they occur, and to decide whether they are or are not embraced by them. Thus the law, as a general proposition, prohibits the doing of any act which is contra bonos mores. The par- ticular acts which come up to this description it is impossible to include in any precise enumeration ; they must be decided as they occur, by applying this principle to them as a standard. Thus, again, it is now established as a principle that the incitement to commit a crime is itself criminal under some circumstances. 6 East, 464 ; 2 East, 5. As for example, the mere attempt to stifle evidence, though the persuasion should not succeed. Cases of this kind may be as various as the vary- ing combinations of circumstances. To come more immediately to the present case, we hold it to be a sound doctrine that the acceptance of every office implies the tacit agreement on the part of the incumbent that he will execute its duties with diligence anUfiSelity'. 5 Bac. Abr. 210, Offices and Officers, Letter M. We hold it to be an equally sound doctrine that all officers are punishable for corruption and oppressive proceedings, according to the nature and heinousness of the offence, either by indictment, attachment, action at the suit of the party aggrieved, loss of their offices, etc. 5 Bac. Abr. 212, Letter N. And further, that all wilful breaches of the dutj- of an office are for- feitures of it, and also punishable by fine (Co. Litt. 2337^34), because every office is instituted, not for the sake of the officer, but for the good of another or ^thers ; and, therefore, he who neglects or refuses to answer the end for which his office was ordained should give way to others, and be punished for his neglect or oppressive execution. Let us apply these principles to the present case. The defendants were justices of the peace, and as such held an office of high trust and confidence. In that character they were called upon to vote for others, for j)ffice8 also implying trust and confidence. Their duty required them to vote in reference only to the merit and qualifications of the officers, and yet upon the pleadings in this case it appears that they wickedly and corruptly violated their duty and betrayed the confidence reposed in them, by voting under the influence of a coiTupt bargain or reciprocal promise, by which they had come under a reciprocal obliga- tion to vote respectively for a particular person, no matter how inferior the qualifications to their competitors. It would seem, then, upon these general principles that the offence in the information is indictable at common law. But there are authorities which apply particularly to the case of justices. In 1 Bl, Com. 354, n. 17, Christian, it is said CHAP. I.] COMMONWEALTH V. LEACH. 9 if a magistr ate abuse his authority from corrupt motives he is punish- able criminally by indictment oFThfofraation. ~" ~~~' "■ Again, where magistrates have acted partially, maliciously', or cor- ruptly, they are liable to an indictment. 1 Term Rep. 692 ; 1 Burr. 556 ; 3 Burr. 1317, 1716, 1786 ; 1 Wils. 7. An instance of their acting partially is that of their refusing a license from motives of partiality, the form of the indictment for which is given in 2 Chitty's Crim. Law, 253. We are then of opinion, for the reasons and upon the authorities aforesaid, that the offence stated in the information is a misdemeanor at common law for which an information will lie, but that it is not within the statute referred to. In answer to the third question we are of opinion that the informa- tion is a good and sufficient one. All which is ordered to be certified to the Superior Court of Law for Alleghany County. COMMONWEALTH v. LEACH, 1 Mass. 59 [1804]. The defendants were indicted in the Court of General Sessions for poisoning a cow, the property of A. B, Being convicted in that court they appealed to this, and at the last term thereof were found guilty by the verdict of the jury. The indictment was at common law. £liss moved in arrest of judgment on the ground that the Court of Sessions had not jurisdiction in the case. He said that this was aL.£9S!S2SdS5LSSisaS6 and so laid in the in- dictment ; that justices of the peace were officers not kn own to th e common .law, but were created by statute, and of course all their powers were given by statute ; and that none of our statutes had given them jurisdiction over the offence "charged in tEe Tnd'ictme"nt, "ArnJlTS cited 4 Com. Dig. Title, Just, of the Peace, B. 1, and 1 Salk. 406. Hooker, for the prosecution, conceded that justices of the peace were officers created by statute, and that their jurisdiction and powers were wholly dependent upon the statutes ; 2 Hawk, P. C. c. 8, § 13, etc. But he contended that their jurisdiction here was not limited to those offences which are expressly, and by name in our own statutes, made cognizable by them ; on the contrary, that it extended to all cases in which justices of the peace in England had jurisdiction by any of the statutes of that country which were passed previous to the emigration of our ancestors, which were to be considered as a part of ovr common 10 CASES ON CEIMINAL LAW. [CHAP, I. law ; that this was strongly implied in the Act for establishing Courts of General Sessions of the Peace, passed Julj' 3, 1782 (stat. 1782 c. 14), by the first section of which " they are empowered to hear and deter- mine all matters relative to the conservation of the peace and the punishment of such offences as are cognizable bj- them at common law, or by the acts and laws of the legislature, and to give judgment, etc. In this act the term " common law " cannot mean the common law of England, because justices of the peace there are not common-law officers ; it must, therefore, mean our common law ; and on this sub- ject qurjjpmmgnjaw must be precisely what the statute law ot^agland was at the time of the emigration of our ancestors from^ that country. The statiates which were previous to that time enacted in England, and which define or describe the authorities, powers, and jurisdiction of justices of the peace, give to them expressly cognizance of divers offences which were offences at common law, among which are tres- passes. The present indictment is for a trespass, and therefore within the jurisdiction of the Sessions. 2 Hawk. c. 8, §§ 33, 38, 39 ; 3 Burr. 1320, Rex w. Rispall ; 1 Lev. 139, Eex v. Sommers, et al. Jiliss, in replj', conceded that if jthe_ statute _ of Ed._3_which gives jurisdiction to justices of the peace in England is adopted and makes part of our~common law, the objection to the indictment was un- founded ;" otherwise that it ought to prevail. Thacher, J. I am of opinion that the statutes of 1 Ed. III. c. 16 and 34 Ed. III. c. 1, respecting the jurisdiction and powers of justices of the peace, have been adopted, used, and approved here, and are to be considered as part of our common law ; that the offence charged in the indictment is cognizable by the Court of Sessions, and, therefore, that judgment ought not to be arrested. SEDGvncK, J. Justices of the peace, whether acting individually or in Sessions, are creatures of statute, and their powers are given them by the statutes. 2 Hawk. 61, 8. It appears to me, generallj"- speaking, that the English statutes which were in force at the time of the emigra- tion of oui'"ancestors from that country are common law here. The s^Etutes of Ed. HI. have been adopted and practised upon here, and are therefore to be considered as part of our common law. This is decisive of the question before the court, as the offence charged in the indictment is, by those statutes, within the jurisdiction of the Sessions. Strong, J. I have no doubt upon the question. Justices of the peace have exercised this authority for a long, time ; certainly as far back as the memory of any of us reaches, probably much further, which affords a strong presumption that the statutes of Ed. III. have been considered as common law here. Usage in like points has always been taken as evidence of what is our own law, — common law. CHAP. I.J COMMONWEALTH V. "WAKEEN. 11 Dana, C. J. The term " common law '' ought not to be construed so strictly as is contended for by the counsel for the defendant. Gen- erally when an English statute has been made in amendment of the common law of England, it is here to be considered as part of our common law. For instance, the statute of 7 Ja. I. c. 5 and 21 Ja. I. c. 12, giving double costs to an officer who is sued out of his county, for anything done by him in the execution of his office, being made in amendment of the common law, is adopted here and is part of our com- mon law. So, also, the statute of Anne respecting negotiable notes. Usage of the country establishes and makes the common law of the country. iTo one,^ probably, can recollect the period when the Courts of Sessions have not exercised the authority which is now excepted against. Justices of the peace have this authority expressly given them in their commissions. It appears to me that they have uniformly exer- cised it, and that without being questioned, and therefore that the law is to be considered as settled. -Per cur. unanimouslj-. Motion overruled. COMMONWEALTH v. WARREN, 6 Mass. 72 [1809]. An indictment found by the grand jury, at the last April term at Ipswich, against the defendant, states that he being an evil-disposed person, and contriving and intending one Benjamin Adams to deceive, cheat, and defraud, falsely pretended and affirmed to the said Adams, that his, the defendant's name was William Waterman ; that he lived in Salem, and there kept a grocery store ; that he wished to purchase, on credit, of Adams, fifty pairs of shoes, giving his own note as security therefor ; that Adams, giving credit to his false pretences and affirma- tions, sold him the shoes, and took as security the note of the defend- ant, subscribed by him with the name of William Waterman. Upon conviction, the defendant moved in arrest of judgment, on the ground that the facts charged in the indictment and of which he had been found guilty, are a private injury only, and do not amount to a public offence. Story, in support of the motion, cited 2 East's P. C. 819. Parsons, C. J. At common law, it is an indictable offence to cheat any man of his money, goods, or chattels, by using false weights or false measures; and by the English statute of 33 H. 8, c. 1, passed before the settlement of this country, and considered here as a part of our common law, cheating by false tokens is made an indictable i^ 4 A^ ^^'^ ■ CASES ON CEIMINAL LAW. [CHAP. I. offence. The object of the law is to protect persons who in _their dealings use due diligence and precaution, and not persons^ who suffer through their own credulity, carelessness, or negligence. ■ But as prudent persons may be overreached by means of false weights, meas- ures, or tokens, or by a conspiracy, where two or more persons con- federate to cheat, frauds effected in either of these ways are punishable by indictment. And by an English statute of 30 G. 2, e. 24, which is not in force in this State, the same prosecution has been extended to cheating by false pretences. But if a man will give credit to the false affirmation of another and thereby suffer himself to be cheated, he may pursue a civil remedy for the injury, but he cannot prosecute by indictment. If, therefore, Adams was cheated out of his shoes by the defendant, without using false weights, measures, or tokens, and by no conspiracy, but only by his credulity in believing the lies of the defendant, although he may have an action against the defendant to recover his damages, yet this indictment cannot be maintained, whatever false pretences the defendant maj' have wickedly used. And it appears that Adams was imposed on by the gross lies of the defendant. He pretended and affirmed that his name was William Waterman, and that he was a grocer in good credit in Salem. Adams, unfortunately believing him, sold and delivered him the shoes on credit ; and when the defendant gave his note as security, he used his false name. We see here no conspiracy, for the defendant was alone in the fraud ; and no false tokens to induce a credit; and as for false weights or measures, there is no pretence. We cannot, therefore, consider the facts stated in the indictment (however injurious they were to Adams) as constituting a public indictable offence. Judgment arrested. Bidwell, Attorney-General, for the Commonwealth. ^•c^ COMMONWEALTH v. WARREN and JOHNSON, 6 Mass. 73 [1809]. The defendants were indicted at the last April term at Ipswich, for a conspiracy to cheat one Moses Putnam of a large quantity of shoes ; and the indictment charged that, in pursuance of the conspiracj', they falsely affirmed that the defendant Warren's name was William Lane ; that he lived at Gloucester, and carried on the business of making shoes ; that through disappointment, he had not by him the number of CHAP. T.] COMMONWEALTH V. "WAREEN ET AL. 13 shoes be then wanted for a shipment to the Havanna, and was de- sirous of purchasing on his own credit a quantity from Putnam ; that Putnam trusting to their false and fraudulent affirmations, sold and delivered to them a quantity of shoes, taking Warren's notes for secu- rity, which he signed with the assumed name of William Lane. The defendants pleaded not guilty, and upon trial before Sewall, J., were found guiltj', subject to the opinion of the court upon evidence as reported by the judge ; they moving for a new trial, on the ground that the verdict, as against Johnson, was against evidence ; and if he ought to be acquitted, that Warren ought to have been acquitted, as one person alone cannot be guilty of a conspiracj'. It was proved at the trial, that the defendants went together in a chaise to Putnam's ; that Warren went into the shop, leaving Johnson in the chaise ; that in Johnson's absence Warren made the false affir- mations, and obtained a delivery of a parcel of shoes ; that Warren told Putnam that Johnson was a man who lived with him ; that John- son then came into the shop, which was small, and was there when Warren made and signed the notes by the name of William Lane ; but the witness could not testify' that Johnson knew the tenor of the notes ; that Warren went the next daj' to Putnam's shop without Johnson, and under the same feigned name fraudulently purchased two hundred pairs of shoes more ; that Johnson had one hundred pairs of the shoes that were thus sold hy Putnam to Warren, and by the name of William SiSTth sold them to one Chase. The motion for a new trial was shortly argued by Story for the de- fendants, and JBidweU, Attornej'-General, for the government. Parsons, C. J. The gist of the offence is the conspiracy to cheat Putnam of his shoes, and the defendants might lawfullj' have been convicted, if the jury were satisfied, on legal evidence, that they were ffu^^-i guilty of the confederacy charged, although no act done~in'pursuanceSr£«/^ < oriFhad l)een proved. ZA/^.c^ iif^- fo of the offence. Certain implied powers must necessarily result to our courts of jus- tice from the nature of their institution ; but jurisdiction of crimes against the State is not among those powers. To fine for contempt, imprison^or_contui]ig:Cy,__eiLfbrcfi-^^ etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others ; and so far our courts no doubt possess powers- not immediately derived from statute; but all exercise of criminal jurisdiction in common-law cases we are of opinion is not within their implied powers. UNITED STATES v. COOLIDGE, 1 Whbaton, 415 [1816]. This was an indictment in the Circuit Court for the District of Mas- sachusetts, against the defendants, for forcibly rescuing a prize, which had been captured and taken possession of by two American priva- teers. The captured vessel was on her way, under the direction of a prize-master and crew, to the port of Salem, for adjudication. The indictment laid the offence as committed upon the high seas. The question made was, whether the Circuit Court has jurisdiction oyer common-law offences against the United States, on which the judges oT that court were divided in opinion. The Attorney-General stated that he had given to this case an anxious attention, — as much so, he hoped, as his public duty, under whatever view of it, rendered necessary ; that he had also examined the opinion of the Court, delivered at February term, 181.3, in the case of the United States v. Hudson and Goodwin ; that considering the point as decided in that case, whether with or without argument, on the part of those who had preceded him as the representative of the government in this court, he desired respectfully to state, without say- ing more, that it was not his intention to argue it now. SECT. I.] UNITED STATES V. BEVANS. 17 Story, J. I do not take the question to be settled by that case. Johnson, J. I consider it to be settled by the authority of that case. Washington, J. Whenever counsel can be found ready to argue it, I shall divest myself of all prejudice arising from that case. Livingston, J. I am disposed to hear an argument on the point. This case was brought up for that purpose, but until the question is re- argued, the case of the United States v. Hudson and Goodwin must be taken as law. Johnson, J., delivered the opinion of the Court. Upon the question now before the court, a difference of opinion has existed, and still exists, among the members of the court. We should, therefore, have been willing to have heard the question discussed upon solemn argument. But the Attornej'-General has declined to argue the cause, and no counsel appears for the defendant. Under these cir- cumstances, the Court would not choose to review their former decision in the case of the United States v. Hudson and Goodwin, 7 C. 32, or draw it into doubt. They will therefore certify an opinion to the Cir- cuit Court in conformity with that decision. Certificate for the defendant. UNITED STATES v. BEVANS,* 3 Wheaton, 336. The defendant, William Bevans, wa s indicted for murder jn_tJ]Le Circuit Court for_the„Distnct_of^!assachusetts. The indictment was founded on the 8th section of the act of Congress of the 30th of April, 1790, c. 9, and was tried upon the plea of not guiltj'. At the trial, it appeared in evidence that the offence charged in the indictment was committed by the prisoner on the 6th day of November, 1816, on board the United States ship of war Independence, rated a ship of the line" 6T seventy-four guns,, then in cbmmis^ibn and in the actual serv ice of the United States, under the command of Commodore Bainbridge. At the same time, William Bevans was a marine duly enlisted and in the service of the United States, and was acting as sentry, regularly posted on board of said ship, and Peter Leinstrum (the deceased, named in the indictment) was at the same time dul}"^ enlisted and in the service of the United States as cook's mate on board of said ship. The said ship was at the same time Ijing at anchor in the main channel 1 See also United States v. Wiltberger, 5 Wheaton, 76. 2 18 CASES ON CRIMINAL LAW. [CHAP. II. of Boston harbor, in waters of a sufficient depth at all times of tide for ships of the largest class and burden, and to which there is at all times a free and unobstructed passage to the open sea or ocean. The nearest land at low-water mark to the position where the said ship then lay, on various sides, is as follows, namely : The end of the long wharf, so called, in the town of Boston, bearing southwest by south half south at the distance of half a mile ; the western point of Williams's Island, bearing north by west, at the distance between one quarter and one third of a mile ; the navy-yard of the United States at Charlestown, bearing northwest half west, at the distance of three quarters of a mile ; and Dorchester Point, so called, bearing south southeast, at the dis- tance of two miles and one quarter, and the nearest point of Governor's Island, so called (ceded to the United States), bearing southeast half east, at the distance of one mile and three quarters. To and bej'ond the position or place thus described, the civil and criminal processes of the courts of the State of Massachusetts have hitherto constantly been served and obej'ed. The prisoner was first apprehended for the of- fence in the district of Massachusetts. The jury found a verdict that the prisoner, William Bevans, was guilty of the offence as charged in the indictment. Upon the foregoing statement of facts, which was stated and made under the direction of the Court, the prisoner, by his counsel, after ver- dict, moved for a new trial ; upon which motion two questions occurred, which also occurred at the trial of the prisoner. 1st. Whether,_uj2onthe foregoing statement of facts, the offence charged in the indictment and committed on board the said ship as aforesaid was within the juris- dicttmrof^h-e State of Massachi]"sTtts,'~of'oranj~ court thereof. 2d. Whieffief the offence chargecT in the'lncltctment and committed on board the said ship as aforesaid was within the jurisdiction or cogni- zance of the Circuit Court of the ^Ufifted-Sfetes "^for the^ Districr of Massachusetts. Upon which questions, the judges of the said Circuit Court were, at the trial and upon the motion for a new trial, opposed in opinion ; and thereupon, upon the request of the district-attorney of the United States, the same questions were ordered by the said court to be certified under the seal of the court to the Supreme Court, to be finally decided. Webster, for the defendant. The Attorney- General and Wheaton, contra. Marshall, C. J., delivered the opinion of the Court. Tlie question proposed by the Circuit Court, which will be first con- sidered, is, — Whether the oflfence charged in this indictment was, according to the statement of facts which accompanies the question, "within the SECT. I.] UNITED STATES V. BEVANS. 19 jurisdiction or cognizance of tlie Circuit Court of the United States for the District of Massachusetts." The indictment appears to be founded on the 8th section of the " Act for the punishment of certain crimes against the United States." That section gives the courts of the Union cognizance of certain offences committed on^jtheJligh_ seas^oi^ in an y river, h aven, basiiij, oi_haj+jant Qfjlbejurisdjction o f any particufar State. Whatever may be the constitutional power of Congress, it is clear that this power has not been so exercised, in this section of the act, as to confer on its courts jurisdiction over any ofl'ence committed in a river, haven, basin, or baj-, which river, basin, or bay is within the jurisdiction of any particular State. What, then, is the extent of jurisdiction which a State possesses? We answer without hesitation, the jurisdiction of a State is co-exten-^ sive with its territory, co-extensive with its legislative power. ' The place described is unquestionably within the original territory of Massachusetts. It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States. It is contended to have been ceded by that article in the constitution which declares that "the judicial power shall extend to all cases o f admiralt y and maritime jurisdiction ." The argument is, that the power thus granted is conclusive ; and that the murder committed by the prisoner is a case of admiralty and maritime jurisdiction. L et this be _adrnitted. It proves the power of Congress to legis late in the case ; not that Congress has exercised that power. It has been argued, and the argument in favor of as well as that against the propo- sition deserves great consideration, that courts of common law have concurrent jurisdiction with courts of admiralty over murder com- mitted in bays which are inclosed parts of the sea ; and that for this reason the offence is within the jurisdiction of Massachusetts. But in construing the act of Congress, the Court believes it to be unnecessary to pursue the investigation which has been so well made at the bar re- specting the jurisdiction of these rival courts. To bring the offence within the jurisdiction of the courts of the Union it must have bee n committed in a river, etc., out o f the jurisdic- tion of any State. It is not the offence committed, but the bay in winch" it is committed, wliich must be out of the jurisdiction of the State. If then it should be true that Massachusetts can take no cog- nizance of the offence, yet unless the place itself be out of her juris- diction. Congres s has not given cognizance of tha t offence to it!? courts. If there be a common jurisdiction, the crime cannot be punished in the courts of the Union. Can the cession of all cases of admiralty and maritime jurisdiction 20 CASES ON CRIMINAL LAW. [CHAP. II. be construed into a cession of tiie waters on which those cases may arise ? This is a question on which the Court is incapable of feeling a doubt. The article which describes the judicial power of the United States__i3 not intended for the cession of terri t ory or of general jur isdiction. It is obviouilyliesigned for other purposes. It is in the 8th section of the 2d article we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exei'cise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. I It is observable that the power of exclusive legislation (which is lurisdietion) is united with cession of territory, wtiich_is^ to be t he fre e (act of the States. It is difficult to compare the two sections together without feeling a conviction, not to be strengthened by any commen- tary on them, tliat in describing the judicial povrer the framers of our constitution had not tn view any cession of territory, or, which is essen- tially the same, of general jurisdiction. It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the Union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territorj', as a portion of sovereignty not 3-et given awaj-. The residuarj' powers of legislation are still in Massa- chusetts. Suppose, for example, the power of regulating trade had not been given to the general government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction have divested Massachusetts of the power to regulate the trade of her bay? As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows and fight a duel, are they not within the jurisdiction, and punishable hy the laws, of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the ba)' in which this mur- der was committed is not out of the jurisdiction of a State, and the Circuit Court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the murder which has been committed. It may be deemed within the scope of the question certified to this Court to inquire whether any other part of the act has given cogni- zance of this murder to the Circuit Court of Massachusetts. The 3d section enacts " that if any person or persons shall, with- in any fort, arsenal, dock-yard, magazine, or in any other place, or SECT. I.] UNITED STATES V. BEVANS. 21 district of country under the sole and exclusive jurisdiction of tiie United States, commit the crime of wilful murder, such person or per- sons, on being thereof convicted, shall suffer death." Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed, is, it has be en said, " a place within the sole~and exclusive jurisdiction of the United States," whose courts may consequently take cognizance of the offence. That a government which possesses the broad power of war, which " may provide and maintain a navy," which " may make rules for the government and regulation of the land and naval forces," has power to punish an offence committed by a marine, on board a ship of war, wherever that ship may lie, is a proposition never to be questioned in this court. On this section, as on the 8th, the inquiry respects not the extent of the power of Congress, but the extent to which that p'5WSFiras~beeh~exercise3. ~~ The objects with which the word "place" is associated are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine, are all of this character. When the sentence proceeds with the words, "or in any other place or district of country under the sole and exclusive jurisdiction of the United States," the construction seems irresistible, that bj- the words "other place" was intended another place of a similar character with those previouslj' enumerated and with that which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction, which was not comprehended by any of the terms employed, to which some other name might be given; and therefore the words "other place" or " district of country " were added ; but the context shows the mind of the legislature to have been fixed on territorial objects of a similar character. This construction is strengthened by the fact, that at the time of passing this law, the United States did not possess a single ship of war. It may therefore be reasonably supposed that a provision for the puaishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark, that afterwards, when a navy was created and Congress did proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States, of anj' crime committed in a ship of war, wherever it may be stationed. Upon these reasons the court is of opinion that a murder committed on board a ship of war, lying within the harbor ' of Boston, is not cognizable in the Circuit Court for the District of Massachusetts ; which opinion is to be certified to the Court. 22 CASES ON CKIMINAL LAW. [CHAP. II. The opinion of the Court on this point is believed to render it un- necessary to decide the question respecting the jurisdiction of the State court in that case. Certificate accordingly. Sectiok 2. Express Adoptiok of a Body of Local Law, Includ- ing ITS Common Law. An Act for estdblisliing the temporary and permanent seat of the Government of the United States. {July 16, 1790.) Section 1. Be it enacted by the Senate and House of Represen- tatives of the United States of America in Congress assembled, That a district of territory, not exceeding ten miles square, to be located as hereafter directed on the river Potomac, at some place between the mouths of the Eastern Branch and Connogochegue, be, and the same is hereby accepted for the permanent seat of the government of the United States. Provided nevertheless, That the operation of the laws of the State within such district shall not be affected b^' this accept- ance, until the time fixed for the removal of the government thereto, and until Congress shall otherwise by law provide. An Act concerning the District of Columbia. (Feb. 27, 1801.) Section 1. Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assembled, Tliat the laws of the State of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia, which was ceded by the said State to the United States, and by them accepted for the per- manent seat of government ; and that the laws of the State of Mary- land, as they now exist, shall be and continue in force in that part of the said district, which was ceded bj' that State to the United States, and by them accepted as aforesaid.-"^ Section 3. Tacit Adoption op the Common Law by Refeeence. UNITED STATES v. CARLL, 105 U. S. 611 [1881]. Certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York. This was an indictment, found in the Circuit Court, on section 5431 1 See Ehodes v. Bell, 2 How. 897. SECT. III.J UNITED STATES V. CARLL. 23 of the Revised Statutes, by which it is enacted that " every person who, with inten t^ to defraud , passes, utters, publishes, or sells any falsely made," forged, counterfeited, or altered obligation or other secu- rity of the United States, shall be punished by a fine of not more than live thousand dollars and by imprisonment at hard labor not more than fifteen years." Each count of the indictment alleged that the defendant, at a certain time and place, " feloniously, and with intent to defraud the Bank of to the said Bank of the Metropolis a f alsely jaade^ Jbrged. counterfeited, and altered obligatioiTand security~"of the United States " (which was set formaccording to its tenoryPagamst~tEe'peace~ancr contrary to the form of the statute. The defendant, having been tried before Judge Benedict, and con- victed by the jury under instrucjiions which required them to be satis- fied of the facts alleged and that the defendant, at the time of uttering the obligations, knew_thega_Jo_Jjfi_^alsei_forged,__counterfeitedi^ ^nd altered, moved in arrest of judgment for the insufficiency of the indict- ment. At the hearing of this motion before Judge Blatchford and Judge Benedict, they were divided in opinion upon the question, stated in various forms in their certificate, but in substance this : Whether the indictment, setting forth the offence in the language of the statute, without furthe r all eging that the defendant knewthe_jnstrum^^to_^e false^Jorged, counterfeUedj_a£djJteredj_w3£,sufflcient,>afl£^ to warrant judgment thereon. The Solicitor-General for the United States. Mr. William C Moberts for the defendant. Mr. Justice Gray, after stating the case, delivered the opinion of the Court. In an indictment upon a statute, it is not suflBcient to set forth the offence in the words of the statute, unless those words of themselves full3-, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished ; and the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, en- ables the court to infer the intent of the legislature, does not dispense with t he necessity o f^alleging^in the indictment _all the_jacte necessarj' JtoT)ring the_ case_within tbaLinlent. United States v. Cruikshank, 92 U. S. 542 ; United States v. Simmons, 96 id. 360 ; Commonwealth v. Clifford, 8 Cush. (Mass.) 215; Commonwealth v. Bean, 11 id. 414; Commonwealth v. Bean, 14 Gray (Mass.), 62 ; Commonwealth v. Fil- burn, 119 Mass. 297. 24 CASES ON CRIMINAL LAW. [CHAP. 11. The language of the statute on which this indictment is founded in- cludes the case of every person who, with intent to defraud, utters any forged obligation of the United States. But_the offence at which it is aimed is similar to the common-law offence o f utter ing a fcyged or countel^^BlII^'ll^ tllis"case7as in'thatT'Sowledge that the instru- "iiient is forged and counterfeited is essential to make out the crime ; and an uttering, with intenc to defraud, of an instrument in fact coun- terfeit, but supposed by the defendant to be genuine, though within the words of the statute, would not be within its meaning and object. This indictment, by omitting the allegation contained in the indict- ment in United States v. Howell (11 Wall. 432), and in all approved precedents, that the defendant knew the instrument which he uttered to be false, forged, and counterfeit, fails to charge him with any crime. The omission is of matter of substance, an,d not a " defect or imperfec- tion in matter of form onlj-,'' within the meaning of section 1025 of the Revised Statutes. By the settled rules of criminal pleading and the authorities above cited, therefore, the question of the sufficiency of the indictment must be Answered in the negative. Section 4. Summary Constitutional and Statutory Adoption op Principles op Law op Admiralty. " The judicial power shall extend ... to all cases of admiralty and maritime jurisdiction." — Constitution of the United States, Art. III., §2. UNITED STATES v. COOMBS,i 12 Pet. 72 [1838]. The case is stated in the opinion of the Court. Sutler (Attornej'-General) , for the United States. No counsel contra. Story, J., delivered the opinion of the Court. This is a case certified upon a division of opinion of the judges of the. Circuit Court for the Southern District of New York. The case as stated in the record is as follows : — Lawrence Coombs was indicted under the 9th section of the act en- titled " An Act more effectually to provide for the punishment of cer- tain crimes against the United States, and for other purposes," approved 1 See United States v. Bevans, above. SECT. IV.J UNITED STATES V. COOMBS. 25 the 3d of March, 1825, for having, on the 21st of November, 1836, feloniously stolen at Rockaway Beach, in the Southern District of New York, one trunk of the value of five dollars, one package of yarn of the value of five dollars, one package of silk of the value of five dollars, one roll of ribbons of the value of five dollars, one package of musUn of the value of five dollars, and six pairs of hose of the value of five dollars, which said goods, wares, and merchandise belonged to the ship Bristol, the said ship then being in distress, and cast away on a shoal of the sea, on t he coast of the State of N ew York, wit bin_t he Southe rn Dis--, JriciLofJifiW. York. On this indictment the prisoner was arraigned, and plead not guilty, and put himself upon his country for trial. It was admitted that the goods mentioned in the indictment, and which belonged to the said ship Bi'istol, were taken a bove high-water m g,rk, upon the b each, in the County of Queens ; whereupon the ques- tion arose whether the offence committed was within the jurisdiction of the court, and on this point the judges were opposed in opinion. Which said point, upon which the disagreement has happened, is stated above, under the direction of the judges of said court, at the re- quest of the counsel for the United States and Lawrence Coombs, par- ties in the cause, and ordered to be certified unto the Supreme Court at the next session, pursuant to the act in such case made and provided. The 9th section of the Act of 1825, c. 276, on which the indictment in the present case is founded, is in the following words : " That if any person shall plunder, steal, or destroy any money, goods, merchandise, or other effects from, or belonging^ tpj^any ship or vessel, or boat or raft which shall be in distress, or which shall be wrecke d, lost, strande d, of ca^ away'jigon the_^ea^^rj]£onjjiy_ree£_^oaL_bsmk,_orjw^ of the sea, or in_any place wilhio. thc Admrralty or marit ime jurisdiction of the United States ; or if any person or persons shall wilfully ob- struct the escape of any person endeavoring to save his or her life from such ship or vessel, boat or raft, or the wreck thereof ; or if any person shall hold out or show any false light or lights, or extinguish any true light, with intention to bring any ship or vessel, boat or raft, being or sailing upon the sea, into danger or distress or shipwreck ; everj- per- son so offending, his or their counsellors, aiders, or abettors, shall be deemed guilty of felonj' ; and shall on conviction thereof, be punished by a fine, not exceeding $5,000 and imprisonment and confinement at hard labor, not exceeding ten years, according to the aggravation of the offence." 3 Story's Laws of the U. S. 2,001. The indictment, as has been already stated, charges the offence to have been committed on Rockaway Beach, and as is admitted above high-water mark. Before we proceed to the direct consideration of the true import and interpretation of this section, it seems highly important, if not indis- 26 CASES ON CKIMINAL LAW. [CHAP. II. pensable, to say a few words as to the constitutional authority of Congress to pass the same. There are two clauses of the Constitution which may properly come under review in examining the constitutional authority of Congress over the subject-matter of the section. One is the delegation of the judicial power, which is declared to extend "to all cases of admiralty and maritime jurisdiction." The other is the delegation of the power " to regulate commerce with foreign nations, and among the several States," and, as connected with these, the power to make all laws which shall be necessary and proper for carrj'ing into execution the foregoing power, etc. In regard to the first clause, the question which arises is. What is the true nature and extent of the admiraltj^ jurisdiction ? Does it, in cases where it is dependent upon locality, reach beyond high- water mark? Our opinion is, that in cases purely dependent upon the locality of the act done, it is limited to the sea and to tide-waters as far as the tide flows, and that it does not reach beyond high-water mark. It is the doctrine which has been repeatedly asserted by this court, and we see no reason to, depart from it. Mixed eases may arise, and indeed often do arise, where the acts and services done are of a mixed nature, as where salvage services are performed partly on tide-waters and partly on the shore, for the preservation of the property saved, in which the admiralty jurisdiction has been constantly exercised to the extent of decreeing salvage. That this is a rightful exercise of jurisdiction by our Courts of Admiraltj' was assumed as the basis of much of the rea- soning of this court in the case of the American Insurance Company v. Canter, 1 Pet. 511. It has also been asserted and enforced by Lord Stowell on various occasions, and especially in the case of The Au- gusta or Eugenie, 1 Hagg. Adm. Rep. 16 ; The Jonge Nicholas, 1 Hagg. Adm. Rep. 201 ; The Ranger, 2 Hagg. Adm. Rep. 42 ; and The Happy Return, 2 Hagg. Adm. Rep. 198. See also. The Henry, of Philadelphia, 1 Hagg. Adm. Rep. 264 ; The Vesta, 2 Hagg. Adm. Rep. 189 ; The Salecia, 2 Hagg. Adm. Rep. 262. And this has been done, not onl3f in conformity- to the doctrines of the maritime law, but also to what has been held in the courts of common law. For it has been laid down that if the libel is founded upon one single continued act, which was principally upon the sea, though a part was upon land ; as if the mast of a ship be taken upon the sea, though it be afterwards brought ashore, no prohibition lies. Com. Dig. Adm. F. S. ; 1 RoUe's Adm. 533, C. 13 ; Com. Dig. Adm. E. 12. It is true that it has been said that the admiralty has not jurisdiction of the wreck of the sea. 3 Black. Com. 106, 107. But we are to understand by this, not what in SECT. IV.] UNITED STATES V. COOMBS. 27 the sense of the maritime and commercial law is deemed wreck or shipwrecked property, but " wreck of the sea" in the purely technical sense of the common law, and constituting a royal franchise and a part of the revenue of the Crown in England, and often granted as such a royal franchise to lords of manors. How narrow and circumscribed this sort of wreck is, according to the modern doctrines of the courts of common law, may be perceived by the statement of it in Mr. Justice Blackstone's Commentaries (1 Black. Com. 290 to 317), who also shows that it is this and this only which is excluded from the admi- ralty jurisdiction. Lord Stowell manifestly acted upon the same doc- trine in the case of The Augusta or Eugenie, 1 Hagg. Adm. Rep. 16 ; 3 Black. Com. 106, 107. In our judgment the authority of Congress und«r this clause of the Constitution does not extend to punish oflfences committed above and beyond high-water mark. But we are of opinion that under the clause of the Constitution giving power to Congress ' ' tojegjilate^cammerce wit h foieign na tions__and among the_several States," Congress possessed the power to punish offencesof the sort which are enumerated in the 9th section of the Act of 1825 now under consideration. The power to regulate com- merce includes the power to regulate navigation as connected with the commerce of foreign nations and among the States. It was so held and decided by this court, after the most deliberate consideration, in the case of Gibbons v. Ogden, 9 Wheat 189-198. It does not stop at the mere boundary line of a State, nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It ex- tends to such acts done on land which interfere with, obstruct, or pre- vent the due exercise of the power to regulate commerce and navigation with foreign nations and among the States. Any offence which thus interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by Congress, under its general authority to make all laws necessary and proper to execute their delegated constitutional powers. No one can doubt that the various offences enumerated in the 9th section of the Act are all of a nature which tend essentially to obstruct, prevent, or destroj^ the due opera- tions of commerce and navigation with foreign nations and among the several States. Upon the whole our opinion is that it be certified to the Circuit Court for the Southern District of New York that the offence committed was within the jurisdiction of that court. i 28 CASES ON CRIMINAL LAW. [CHAP. II. Section 5. Summary Adoption in Whole ok in Part of Other Existing Systems of Law. (Law of Nations.) " The Congress shall have power ... to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." — Constitution of the United States, Art. I. § 8. UNITED STATES v. SMITH, 6 Wheaton, 153 [1820]. This was an indictment for piracy against the prisoner, Thomas Smith, before the Circuit Court of Virginia, on the Act of Congress of the 3d of March, 1819 (3 Stats, at Large, 513). The jury fo'und a special verdict, as follows : " We, of the jury, find that the prisoner, Thomas Smith, in the month of March, 1819, and others were part of the crew of a private armed vessel, called ' The Creollo ' (commissioned by the government of Buenos Ayres, a colony then at war with Spain), and lying in the port of Margaritta ; that in the month of March, 1819, the said prisoner and others of the crew mutinied, confined their officer, left the vessel, and in the said port of Margaritta seized bj' violence a vessel called ' The Irresistible,' a private armed vessel lying in that port, commissioned bj' the govern- ment of Artigas, who was also at war with Spain ; that the said prisoner and others, having so possessed themselves of the said vessel ' The Irresistible,' appointed their officers, proceeded to sea on a cruise, with- out any documents or commission whatever, and while on that cruise, in the month of April, 1819, on the high seas, committed the offence charged in the indictment, bj' the plunder and robberj- of the Spanish vessel therein mentioned. If the plunder and robbery aforesaid be piracy under the act of the Congress of the United States, entitled ' An Act to protect the commerce of the United States, and punish the crime of piracy,' then we find the said prisoner guiltj- ; if the plunder and robbery above stated be not piracy under the said act of Congress, then we find him not guilty." The Circuit Court divided on the question whether this be piracy as defined by the law of nations, so as to be punishable under the Act of Congress of the 3d of March, 1819, and thereupon the question was certified to this court for its decision. The Attorney- General, for the United States. Webster, contra. SECT, v.] UNITED STATES V. SMITH, 29 Story, J., delivered the opinion of the Court. The act of Congress upon which this indictment is founded provides, " That if any person or persons whatsoever, shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall be brought into, or found in the United States, every such offender or offenders shall, upon conviction thereof, etc., be punished with death." The first point made at the bar is whether this enactment be a con- stitutional exercise of the authority delegated to Congress upon the subject of piracies. The Constitution declares that Congress shall have power " to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The argu- ment which has been urged in behalf of the prisoner is, that Congress is bound to define, in terms, the offence of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argu- ment be well founded, it seems admitted by the counsel that it equally applies to the 8th section of the Act of Congress of 1790, c. 9, which declares that robbery and murder committed on the high seas shall be deemed piracy; and yet, notwithstanding a series of contested adjudi- cations on this section, no doubt has hitherto been breathed of its con- formity to the Constitution. In our judgment, the construction contended for proceeds upon too narrow a view of the language of the Constitution. The power given to Congress is not merely " to define and punish piracies ; " if it were, the words " to define" would seem almost superfiuous, since the power to punish piracies would be held to include the power of ascertaining and fixing the definition of the crime. And it has been very justly ob- served, in a celebrated commentary, that the definition of piracies might have been left without inconvenience to the law of nations, though a legislative definition of them is to be found in most municipal codes. The Federalist, No. 42, p. 276. But the power is also given " to define and punish felonies on the high seas, and offences against the law of nations." The term " felonies" has been supposed, in the same work not to have a verj' exact and determinate meaning jn rela- tion to offences at th6 common law committed within the body of a count}'. However this may be, in relation to offences on the high seas, it is necessarily somewhat indeterminate, sjnee the term is not used in the criminal jurisprudence of the admiralty in the technical sense of the common law. See 3 Inst. 112 ; Hawk. P. C. c. 37; Moore, 576. Of- fences too against the law of nations cannot, with any accuracy, be said to be completelj' ascertained and defined in anj' public code recog- nized by the common consent of nations. In respect therefore as well to felonies on the high seas as to offences against the law of nations, 30 OASES ON CRIMINAL LAW. [CHAP. 11. there is a peculiar fitness in giving the power to define as well as to punish ; and there Is not the slightest reason to doubt that tliis con- sideration had very great weight in producing the phraseology in question. ' But supposing Congress were bound, in all the cases included in the clause under consideration, to define the offence^ stilL th er e i s -nothing which restricts it to a mere logical enumeration, in det ail, of al l the facts constituting the ofience. Congress may as well define by using a term of a known and determinate meaning as by an express enumera- tion of all the particulars included in that term. That is certain which is bj^ necessarj' reference made certain. When tlie Act of 1790 de- clares that any person who shall commit the crime of robberj' Or mur- der on the high seas shall be deemed a pirate, the crime is not less clearly ascertained than it would be b^' using the definitions of these terms as they are found in our treatises of the common law. In fact, by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where "malice aforethought" is of the essence of the offence, even if the common-law definition were quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of " malice aforethought" would remain to be gathered from the common law. There would then be no end to our difficulties or our definitions, for each would involve some terms which might still require some new explanation. Such a construction of the Constitution is therefore wholly inadmissible. To_JMne--piracifia,_in the-sense-ij£j;h£.Constitu- tion, is merely to_enuraerate,,the crimes which, shall constitute piracy; and this maj- be done either bj^ a reference to crimes having a techni- cal name and determinate extent, or bj' enumerating the acts in detail upon which the punishment is inflicted. It is next to be considered whether the crime of piracy is defined by the law of nations with reasonable certainty. "What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law ; or by the general usage and prac- tice of nations ; or by judicial decisions recognizing and enforcing that law. There is scarcely a writer on the law of nations who does not allude ^to piracy as a crime of a settled and determinate nature ; and whatever may be the diversity of definitions in other respects, all writers concur in holding that robbery, or forcMe depredations upon the sea, animo furandi, is piracy. The same doctrine is held by all thTgreat writers on maritime law in terms that admit of no reasonable doubt. The common law too recognizes and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations (which is part of the common law) ; as an offence against the SECT, v.] UNITED STATES V. SMITH. 31 universal law of soeietj-, a pirate being deemed an enemy of the human race. Indeed until the statute of 28th of Henry "VIII., c. 15, piracy was punishable in England only in the admiralty as a civil-law offence ; and that statute, in changing the jurisdiction, has been universal!}' ad- mitted not to have changed the nature of the oflFence. Hawk. P. C. c. 37, § 2 ; 3 Inst. 112. Sir Charles Hedges, in his charge at the admi- , ralty sessions, in the case of Rex v. Dawson, 5 State Trials, declared in emphatic terms that " piracy is only a sea term for robbery,-piracy being a robbery committed within the jurisdiction of the admiralty. " Sir Leoline Jenkins too, on a like occasion, declared that " a robbery when committed upon the sea is what we call piracy," and he cited the civil-law writers in proof. And it is manifest, from the language of Sir William Blackstone, 4 Bl. Comm. 73, in his comments on pirac}-, that he considered the common-law definition as distinguishable in no essential respect from that of the law of nations. So that, whether we advert to writers ou the common law, or the maritime law, or the law of nations, we shall find that they universall}' treat of piracy as an of- fence against the law of nations, and that its true definition by that law is robbery upon the sea. And the general "practice of all nations liTpunishing all persons, whether natives or foreigners, who have com- mitted this offence against anj' persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to de-f pend not upon the particular provisions of any municipal code, but\ upon the law of nations, both for its definition and punishment. We have therefore no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and consti- tutionally defined bj- the 5th section of the Act of 1819. Another point has been made in this case, which is that the special verdict does not contain sufficient facts upon which tlie Court can pro- nounce that the prisoner is guilty of piracj'. We are of a different opinion. The special verdict finds that the prisoner is guilt}' of the plunder and robbery charged in the indictment ; and finds certain ad- ditional facts from which it is most manifest that he and his associates were, at the time of committing the offence, freebooters upon the sea, not under the acknowledged authoritj^ or deriving protection from the flag or commission of an}' government. If under such circumstances the oflTence be not pirac}', it is diflBcult to conceive any which would more completely fit the definition. It is to be certified to the Circuit Court that upon the facts stated the case is piracy, as defined by the law of nations, so as to be punish- able under the Act of Congress of the 3d of March, 1819.^ 1 Livingston, J., delivered a dissenting opinion. 32 CASES ON CRIMINAL LAW. [CHAP. II. UNITED STATES v. AEJONA, 120 U. S. 479 [1887].' Indictment under the Act of May 16, 1884, 23 Stat. 22, to prevent and punish the counterfeiting within the United States of notes, bonds, and other securities of foreign governments. The court below certified a division in opinion on several points. The case is stated in the opin- ion of the Court. Mr. Attorney- General for plaintiff. Mr. George W. Wingate and Mr. Augustus A. Levey for de- fendant. Mr. Chief Justice Waite delivei"ed the opinion of the Court. This is an indictment containing three counts against Ramon Arjona, for violations of §§ 3 and 6 of the Act of May 16, 1884, c. 52, 23 S'tat. 22, " to prevent and punish the counterfeiting within the United States of notes, bonds, and other securities of foreign governments." The first and second counts were found under § 6 of the statute, and the third under § 3. The statute makes the following things criminal : — 1. Sect. 1. Forging or counterfeiting within the United States, with intent to defraud, "any bond, certificate, obligation, or other security of any foreign government, issued or put forth under the authority of such foreign govern- ment, or any treasury note, bill, or promise to pay issued by such foreign gov- ernment, and intended to circulate as money either by law, order, or decree of such^foreign government." 2. Sect. 2. Knowingly, and with intent to defraud, uttei-ing, passing or putting off in payment or negotiation, within the United States, any forged or counterfeit bonds, &c., such as are described in § 1. 3. Sect. 3. Falsely making, forging or counterfeiting within the United States, with intent to defraud, or knowingly assisting therein, " any bank- note or bill issued by a bank or other corporation of any foreign country, and intended by the law or usage of such foreign country to circulate as money, such bank or corporation being authorized by the laws of such country." 4. Sect. 4. Knowingly uttering, passing, putting off or tendering in pay- ment, within the United States, with intent to defraud, any such false or counterfeited bank-note or bill as is mentioned in § 8, whether forged or counterfeited in the United States or not. 5. Sect. 5. Plaving in possession any forged or counterfeit instruments mentioned in the preceding sections, with intent to utter, pass, or put them off, or to deliver them to others, with the intent that they may be uttered or passed. 6. Sect. 6. Having in possession " any plate, or any part thereof, from which has been printed or may be printed any counterfeit note, bond, obliga- SECT, v.] UNITED STATES V. AEJONA. 33 tion, 01- other security, in whole or in part, of any foreign government, bank/ or corporation, except by lawful authority ; " or using such plate, or knowingly permitting or suifering " the same to be used, in counterfeiting such foreign obligations, or any part thereof ; " or engraving, or causing or procuring to be engraved, or assisting " in engraving, any plate in the likeness or simili- tude of any plate designed for the printing of the genuine issues of the obligations of any foreign government, bank, or corporation; or printing, photographing, or in any other manner making, executing, or selling, or causing " to be printed, photographed, made, executed, or sold," or aiding " in printing, photographing, making, executing, or selling any engraving, photogi-aph, print, or impression in the likeness of any geimine note, bond, obligation, or other security, or any part thereof, of any foreign government, bank, or corporation ; " or bringing " into the United States . . . any coun- terfeit plate, eugraving, photograph, print, or other impressions of the notes, bonds, obligations, or other securities of any foreign government, bank, or corporation." The first count of the indictment charges Arjona with having " in Ills control and custody a certain metallic plate from which there might then and there be printed in part a counterfeit note in the likeness and similitude in part of the notes theretofore iasiTgd by g. fnrpignjwijrj to witj_the bank known as El Banco del Estado^e Bolivar, which said bank was then and there a bank authorized by the laws of a foreign State, to wit, the State of Bolivar, said State being then and there one of the States of the United States of Columbia." In the second count he is charged with having caused and procured " to be engraved a certain metallic plate in the likeness and similitude of a plate designated for the printing of the genuine issues of the obli- gations of a foreign bank, that is to say, of the bank-notes of the bank known as El Banco del Estado de Bolivar, the same being then and there a bank authorized bj- the laws of a foreign State, to wit, the State of Bolivar, said State being then and there one of the States of the United States of Columbia." In the third count, the charge is that he, " unlawfully and with in- tent to defraud, did cause and procure to b e falsely made a certain note in the similitude and resemblance of the notes theretofore issued by a b^iv of a foreign country, to wit, the bank known as El Banco del Es- tado de Bolivar, the same being then and there a bank authorized bj- the laws of one of the States of the United States of Columbia, that is to say, the State of Bolivar, and the notes issued by the said bank being then and by the usage of the said State of Bolivar intended to circulate as monej'." To this indictment a demurrer was filed, and the judges holding the court have certified that at the hearing the following questions arose, upon which their opinions were opposed : — 3 34 CASES ON CRIMINAL LAW. [CHAP. II. 1. Whether the third section of the statute is constitutional. 2. Whether the sixth section is constitutional so far as it relates to " foreign banks and corporations." 3. Whetlier the counterfeiting within the United States of the notes of a foreign bank or corporation can be constitutionally made by Con- gress an offence against the law of nations. 4. Whether the obligations of the law of nations, as referred to in the Constitution of the United States, include the punishment of counter- feiting the notes of a foreign bank or corporation, or of having in pos- session a plate from which may be printed counterfeits of the notes of foreign banks or corporations, as mentioned in the third and sixth sec- tions, " unless it appear or is alleged in the indictment that the notes of said foreign bank or corporation are the notes or monej' of issue of a foreign government, prince, potentate. State, or power." 5. Whether, if there is power to "so define the law of nations," as to include the offences mentioned in the third and sixth sections, it is not necessary, in order " to define" the oflfence, that it be declared in the statute itself " to be an offence against the law of nations." 6. Whether the indictment is sufficient in law. The fourth of the questions thus stated embraces the fourth, fifth, sixth, seventh, and eighth of those certified, and the fifth embraces the ninth and tenth. Congress has power to make all laws which shall be necessary and proper to carry into execution the powers vested bj' the Constitution in the Government of the United States, Art. I., § 8, clause 18 ; and the Government of the United States has been vested exclusively with the power of representing the nation in all its intercourse with foreign countries. It alone can " regulate commerce with foreign nations," Art. I., § 8, clause 3 ; make treaties and appoint ambassadors and other public ministers and consuls. Art. II., § 2, clause 2. A State is expressly prohibited from entering into any " treaty, alliance, or confederation." Art. I., § 10, clause 1. Thus all official intercourse between a State and foreign nations is prevented, and exclusive au- thority for that purpose given to the United States. The national government is in this way made responsible to foreign nations for all violations by the United States of their international obligations ; and because of this. Congress is expressly authorized " to define and punish . . . offences against the law of nations." Art. I., § 8, clause 10. The law of nations requires every national government to use " due d ilige nce " to prevent a. wrong being done within its own dominion to afiotbej nation with which it is at peace, or to the people thareof ; and because of this the obligation of one nation to punish those who within SECT, v.] UNITED STATES V. AEJONA. 35 its own jurisdiction counterfeit the money of another nation has long been recognized. Vattel, in his Law of Nations, which was first printed at Neuehatel in 1758 and was translated into English and published in England in 1760, uses this language: "From the prin- ciples thus laid down, it is easy to conclude that if one nation counter- feits the money of another, or if she allows and protects false coiners who presume to do it, she does that nation an injury." ^ When this was written, money was the chief thing of this kind that needed protection, but still it was added: "There is another custom more modem and of no less use to commerce than the establishment of coin, namely exchange, or the traffic of bankers, bj- means of which a merchant remits immense sums from one end of the world to the other at verj' trifling expense, and if he pleases, without risk. For the same reason that sovereigns are obliged to protect commerce, they are^bliged to support this custom by good laws, in which every merchant, whether citizen or foreigner, maj- find security. In general, it is equally the in- terest and daty"tirf""e?er3* nation to have wise and equitable commercial laws established in the country." ^ Vattel, Law of Nations, Phil. ed. 1876, Book I., c. 10, pp. 46, 47. In a note by Mr. Chitty in his Lon- don edition of 1834, it is said: "This is a sound principle, which ought to be extended so as to deny effect to any fraud upon a foreign nation or its subjects." Id. 47, note 50. This rule was established for the protection of nations in their inter- course with each other. If there were no such intercourse, it would be a matter of no special moment to one nation that its money was coun- terfeited in another. Its own people could not be defrauded if the false coin did not come among them, and its own sovereignty would not be violated if the counterfeit could not under anj- circumstances be made to take the place of the true money. But national intercourse includes commercial intercourse between the people of different nations. It is as much the duty of a nation to protect such an intercourse as it is any other, and that is what Vattel meant when he said, " For the same reason that sovereigns are obliged to protect commerce, they are obliged 1 § 108. Des principes que nous venons d'etablir il est aisiJ de conclure, que si une Nation contrefait la monnaie d'une autre, ou si elle souffre et protege les faux monnayeurs qui osent I'entreprendre, elle lui fait injure. ' II est un autre usage plus moderne, et non moins utile au commerce que I'etablisse ment de la monnaie : c'est le change, ou le negoce des banquiers, par le moyen duquel un raarchand remet d'un bout du monrle a I'autre des sommes immenses, presque sans frais, et s'il le veut, sans pi^ril. Par la meme raison que les souverains doivent prot^ger le commerce, ils sont obliges de soutenir cet usage par de bonnes lois, dana lesquelles tout marchand, Stranger ou citoyen, puisse trourer sa sflret^. En general, il est ^galement de I'interSt et du devoir de toute Nation, d'etablir chez elle de sages et justes lois de commerce. 36 CASES ON CRIMINAL LAW. [CHAP. II. to support this custom, . . . namelj-, exchange^ or the traffic of bankers, b3- means of which a merchant remits immense sums from one end of the world to the other, . . . bj- good laws, in which every merchant, ■whether citizen or foreigner, may find security'." In the time of Vattel certificates of the public debt of a nation, gov- ernment bonds, and other government securities were rarely seen in any other countrj' than that in which they were put out. Banks of issue were not so common as to need special protection for themselves or the public against forgers and counterfeiters elsewhere than at home ; and the great corporations, now so numerous and so important, estab- lished \>y public authoritj- for the promotion of public enterprises, were almost unknown, and certainly they had not got to be extensive bor- rowers of money wherever it could be had at home or abroad on the faith of their g'wasi-public securities. "Now, however, the amount of national and corporate debt and of corporate property represented by bonds, certificates, notes, bills, and other forms of commercial securi- ties, which are bought and sold in all the money-markets of the world, both in and out of the country under whose authoritj' they were created, is something enormous. Such being the case, it is easj' to see that the same principles that developed, when it became necessary, the rule of national_eo,nduct which was intended to prevent, as far as might be, the counterfeit- ing of the money of one nation within the dominion of another, and which in the opinion of so eminent a publicist as Vattel could be ap- plied to the foreign exchange of bankers^ may, with just propriety, be extended to the protection of this more recent custom among bankers of dealing in foreign securities, whether national or corporate, which have been put out under the sanction of public authority at home and sent abroad as the subjects of trade and commerce. And especially is this so of bank-notes and bank bills issued under the authority of law, which, from their very nature, enter into and form part of the circulat- ing medium of exchange — the money — of a country. Under such cir- cumstances, every nation has not only the right to require the protection, as far as possible, of its own credit abroad against fraud, butjthe banks and other great commercial corporations, w:hich have been created within its own jurisdiction for the advancement of the public good, may call on it to see that their interests are not neglected by a foreign government to whose dominion they have, in the lawful prosecution of their business, become to some extent subjected. No nation can be more interested in this question than the United States. Their monej' is practicall3- composed of treasury notes or cer- tificates issued by themselves, or of bank bills issued bj' banks created under their authority and subject to their control. Their own secuj'i- SECT, v.] UNITED STATES V. AEJONA. 37 ties, and those of the States, the cities, and the public corporations whose interests abroad they alone have the power to guard against for- eign national neglect, are found on sale in the principal money-mar- kets of Europe. Ifjthese securities, vyhether national, municipal, or corpoiatejjr^forged^nd_coiptCTfei^^^ wiih^impunity at.the pla_q,es where thej' are sold, it is easj^ t o see tha t a great wrong_win be,jiQiifi_.t,p.._the United "States and tEiir people. Any uncertainty about the genuine- ness of the security necessarily depreciates its value as a merchantable commodity, and against this international comity requires that national protection shall, as far as possible, be afforded. If there is neglect in that, the United States may, with proprietj^, call on the proper govern- ment to provide for the punishment of such an offence, and thus secure the restraining influences of a fear of the consequences of wrong-doing. A refusal may not perhaps furnish sufficient cause for war, but it would certainlj- give just ground of complaint, and thus disturb that harmony between the governments which each is bound to cultivate and promote. But if the United States can require this of another, that other may requfife it of~them, because iiiternatiouM obligations are of necessity reciprocal in their nature. The right, if it exists at all, is given by the law of nations, and what is law for one is, under the same circum- stances, law for the other. A right secured by the law of nations to a nation or its people is one the United States as the representatives of this nation are bound to protect. Consequent^, a law which is neces- sary and proper to afford this protection is one that Congress may enact, because it is one that is needed to carry into execution a power con- ferred by the Constitution on the government of the United States ex- clusively. There is' no authority in the United States to require the passage and enforcement of such a law by the States. Therefore, the Ufiited States must have the power to pass it and enforce it themselves, or be unable to perform a duty which they may owe to another nation, and which the law of nations has imposed on them as part of their inter- national obligations. This, however, does not prevent a State from providing for the punishment of the same, thing ; for here , as in the case of counterfeiting the coin of the United StateSjjthe act maj' be an offence against the authority of a State as well as that of the United States. ~ Again, our own people may be dealers at home in the public or quasi- public securities of a foreign government, or of foreign banks or cor- porations, brought here in the course of our commerce with foreign na- tions, or sent here from abroad for sale in the money-markets of this country. As such they enter into and^form part of the_fM;eign com- merce of the country. If such securities can be counterfeited here 38 CASES ON CETMINAL LAW. [CHAP. II. ■with impunity, our own people may be made to suffer bj' a wrong done which affects a business that has been expressly placed by the Consti- tution under the protection of the government of the United States. It remains only to consider those questions which present the point whether, in enacting a statute to define and punish an offence against the law of nations, it is necessary, in order " to define" the offence, that it be declared in the statute itself to be "an offence against the law of nations." This statute defines the offence, and if the thing made punishable is one which the United States are required bj' their international obligations to use due diligence to prevent, it is an offence against the law of nations. Such being the case, there is no more need of declaring in the statute that it is such an offence than there would be in anj' other criminal statute to declare that it was enacted to carry into execution any other particular power vested by the Constitution in the government of the United States. Whether the offence as_defined is an offence against the law of nations depends on the thing done, not on any declaration to that effect by Congress. As has already- been seen, it was incumbent on the United States as a nation to use due diligence to prevent any injury to another nation or its people by coun- terfeiting its money or its public or g'Masi-public securities. This stat- ute was enacted as a means to -that end, that is to saj^, as a means of performing a duty which had been cast on the United States by the law of nations, and it was clearl}' appropriate legislation for that pur- pose. Upon its face, therefore, it defines an offence against the law of nations as clearl}- as if Congress had in express terms so declared. Criminal statutes passed for enforcing and preserving the neutral rela- tions of the United States with other nations were passed by Congress at a very early date ; June 6, 1794, c. 50, 1 Stat. 381 ; June 14, 1797, c. 1, 1 Stat. 520; March 3, 1817, c. 58, 3 Stat. 370; April 20, 1818, c. 88, 3 Stat. 447 : and those now in force are found in Title LXVII. of the Revised Statutes. These all rest on the same power of Congress that is here invoked, and it has never been supposed they were invalid because they did not expressly declare that the offences there defined were offences against the law of nations. If there is anj-thing more in the eleventh question certified than has been already disposed of in answering the others, it is too broad and indefinite for our consideration under the rules which have been long established regulating the practice on a certificate of division. A.II the questions certified, except the eleventh, are answered in the affirmative, and as to that, no special answer will be made. SEOT. VI.] CHICAGO, &C. EY. CO. V. McGLINN. 39 Section 5. Federal Jurisdiction bt Locality ; Ceded Places ; Places Purchased by Consent of State ; Places Purchased WITHOUT Consent of State ; Places retained on Creation of State ; Exclusive oe Concurrent Jurisdiction. CHICAGO &c., RY. CO. v. McGLINN, 114 U. S. 542 [1884]. This was an action brought b2_the_.defeDdani in error as plaintiff to recover the value of a cow killed by the engine and cars of^Jhg^laintiff in error. Judgment for the plaintiff, which was affirmed by the Su- preme Court. The facts which raise the Federal question are stated in the opinion of the Court. This case comes here from the Supreme Court of the State of Kan- sas. It is an action for the value of a cow alleged to have been killed bj'the engine and ears of the Chicago, Rock Island, and Pacific Rail- way Company, a corporation doing business m the County of Leaven- worth in that State. It was brought in a State district court, and submitted for decision upon an agreed statement of facts, in substance as follows : That on the 10th of February, 1881, a cow, the property of the plaintiff, of the value of $25, strayed upon the railroad of the defendant at a point within the limits of JheJFort Leavenworth Military Reservation in that county and State, where the road was not enclosed with a fence, and waslEere~struck and killed by a train passing along the road ; that the Reservation is the one referred to in the act of the legislature of the State of February 22, 1875 ; that a demand upon the defendant for the $25 was made by the plaintiff more than thirty days before the action was brought ; and that, if the plaintiff was entitled to recover attorney's fees, $20 would be a reasonable fee. The action was founded upon a statute of Kansas of March 9, 1874, entitled " An Act relating to killing or wounding stock by railroads," which makes every railway compan}"^ in the State liable to the owner for the full value of cattle killed, and in damages for cattle wounded, by its engine or cars, or in any other manner in operating its railwaj-. It provides that, in case the railwaj- company fails for thirty- days after demand by the owner to pay to him the full value of the animal killed or damages for the animal wounded, he may sue and recover the same, together with a reasonable attorney's fee for the prosecution of the action. It further provides that it shall not apply to an}- railway com- pany the road of which is enclosed with a good and lawful fence to prevent the animal from being on the road. Laws of Kansas, 1874, c.'94: 40 CASES ON CRIMINAL LAW. [CHAP. IL On the 22d of Febiuarj, 1875, the legislature of Kansas passed an act ceding to the United States jurisdiction over the Reservation, the first section of whicli is as follows : " That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States Military Reservation, known as the Fort Leavenworth Reservation, in said State, as declared from time to time by the President of the United States ; saving, however, to the sa id State the right to serve civil or criminal process within said Reserva- tion, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said State, but outside of such cession and Reservation ; and saving further to said State the right to tax railroad, bridge, and other corporations, their franchises, and property on said Reservation." Laws of Kansas, 1875, c. 66. The district court gave judgment for the plaintiff, assessing his damages at $45, an amount which was made by estimating the value of the cow killed at $25 and the attorney's fee at $20, these sums having been agreed upon by the parties. The case was carried to the Su- preme Court of the State, where the judgment was affirmed, that court holding that the act of Kansas relating to the killing or wounding of stock by railroads continued to be operative within the limits of the Reservation, as it had not been abrogated by Congress and was not inconsistent with existing laws of the United States. In so holding, the court assumed, for the purposes of the case, without however admitting the fact, that the act ceding jurisdiction to the United States over the Reservation was valid, and that the United States had legally accepted the cession. To review this judgment the case is brought here. Two questions are presented for our determination : one, whether the act of Kansas purporting to cede to the United States exclusive jurisdiction over the Reservation is a valid cession within the require- ments of the Constitution ; tjiejother, if such cession of jurisdiction is valid, did the act of Kansas relating to the killing or wounding of stock by railroads continue in force afterwards within the limits of the Reservation ? It can hardly be the design of counsel for the railroad companj- to contend that the act of cession to the United States is wholly invalid, for in that event the jurisdiction of the State would remain unim- paired, and her statute would be enforceable within the limits of the Reservation equally as in any other part of the State. What we sup- pose counsel desires to maintain is, that the act of cession confers exclusive jurisdiction over the territory, and that any limitations upon it in the act must therefore be rejected as repugnant to the grant. SECT. VI.] CHICAGO, &C. EY. CO. V. McGLINN. 41 This point was involved in the case of Fort Leavenworth Railroad v. Lowe, 114 U. S. 525. "We there held that a building on a tract of land owned by the United States used as a fort, or for other public purposes of the Federal government, is exempted, as an instrumentality of the government, from any such control or interference by the State as will defeat or embarrass its effective use for those purposes. But in order that the United States maj- possess exclusive legislative power over the tract, except as_nia}'_be necessary to the use of the building thereon as such instrumentalitj-, they must have acquired the tract by pur- chase, with the consent of the State. This is the only mode prescribed by the Federal Constitution for their acquisition of exclusive legislative power over it. When such legislative power is acquired in any other way, as by an express act ceding it, its cession may be accompanied with any conditions not inconsistent with the effective use of the prop- erty for the public purposes intended. We also held that it is com- petent for the legislature of a State to cede exclusive jurisdiction oyer places needed by the general government in the execution of its pow- ers, tbe use of the places being, in fact, as much for the people of the State as for the people of the United States generallj', and such juris- diction necessarily ending when the places cease to be used for those purposes. Upon the second question the contention of the railroad companj^ is that the act of Kansas became inoperative within the Eeservation upon the cession to the United States of exclusive jurisdiction over it. We are clear, that this contention cannot be maintained. It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public prbpertj' passes from one government to the other, but private prop- erty remains as before, and with it those municipal laws which are designed to secure its peacef uTuse "and enjoj-ment. As^inatter of course, all laws, ordinances, and regulations in conflict with the polit- ical character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect ; and the laws of the countrj' on other subjects would necessarily be superseded by ex- 42 OASES ON CRIMINAL LAW. [CHAP. IL isting laws of the new government upon the same mattei'S. But with respect to other laws, affecting the possession, use, and transfer of propert}-, and designed to secure good order and peace in the commu- nity and promote its health and prosperity, which areg.trictly of a municipal character, the rule is general that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed. American Insurance Co. v. Canter, 1 Pet. 64:2 ; Halleck, International Law, c. 34, § 14. The counsel for the railroad companj' does not controvert this gen- eral rule in cases of cession of political jurisdiction by one nation to another, but contends that it has no application to a mere cession of jurisdiction over a small piece of territory having no organized govern- ment or municipality within its limits ; and argues upon the assumption that there was no organized government within the limits of Fort Leavenworth. In this assumption he is mistaken. The government of the State of Kansas extended over the Reservation, an d its legislati on was operative therein, except so far as the use of the land as an instru- mentality ofTE'e general government may have excepted it from such legislation. Tn other respects the law of the State prevailed. There was a railix)ad runniiig through it when the State ceded jurisdiction to the United States. The law of the State, making the railroad liable for killing or wounding cattle by its cars and engines where it had no fence to keep such cattle off the road, was as necessarj' to the safety of cattle after the cession as before, and was no more abrogated by the mere fact of cession than regulations as to the crossing of highways by the Vailroad cars and the ringing of bells as a warning to others of their approach. It is true there is a wide difference between a cession of political jurisdiction from one nation to another and a cession to the United States bj' a State of legislative power over a particular tract, for a special purpose of the general government ; but the principle which controls as to laws in existence at the time is the same in both. The liability of the railroad company for the killing of the cow did not d e- pen^JipoJxJih^kcewhere Jhe animal was killed, but upon the neglect of the company to enclose the road with a fence which would have prevented the cow from straying upon it. The law of Kansas on the subject, in our opinion, remained in force after the cession, it being in no respect inconsistent with any law of the United Sjates, and never having been changed or abrogated. The judgment is accordingly Affirmed. 1 See Ft. Leavenworth R. E. Co. v. Lowe, 114 U. S. 525. SECT. VII.J AMERICAN INSURANCE CO. V. CANTER. 43 Section 7. Federal Jurisdiction bt Locaxity. Territories ; Dele- gation OF Legislative Powers. AMERICAN INSURANCE COMPANY v. CANTER. 1 Pet. 611 [1828]. The case is stated in the opinion of the Court. Marshall, C. J., delivered the opinion of the Court. The plaintiffs filed their libel in this cause in the District Court of South Carolina, to obtain restitution of 356 bales of cotton, part of the cargo of the ship " Point k Petre/' which had been insured by them on a voyage from New Orleans to Havre de\ Grace in France. The " Point k Petre " was wrecked on the coast of Florida, the cargo saved by the inhabitants, and carried into Key West, where it was sold for the purpose of satisfying the salvors, by virtue of a decree of a court consisting of a notary and five jurors, which was erected by an act of ttie territorial legislature of Florida. The owners abandoned to the underwriters, who having accepted the same, proceeded against the property, alleging that the sale was not made by^wderofja (»urt_ com- pete ntjg^ch an ge the pro^rty. "David Canter claimed the cotton as a bonajlde purchaser, under the decree of a competent court, which awarded seventj--six per cent to the salvors on the value of the property saved. The district judge pronounced the decree of the territorial court a nullity, and awarded restitution to the libellants of such part of the cargo as he supposed to be identified by the evidence, deducting there- from a salvage of fifty per cent. The libellants and claimant both appealed. The Ci rcuit^Courtjre- versed the decree of the District Court, and decreed the whole cotton to the claimant, with costs, on the ground that the proceedings of the court at Key West were legal, and transferred the property to the purchaser. From this decree the libellants have appealed to this court. The cause depends mainly on the question whether the property in the cargo saved was changed by the sale at Key West. The conform- ity of that sale to the order under which it was made has not been controverted. Its validity has been denied on the ground that it was ordered by an incompetent tribunal. The tribunal was constituted by an act of the territorial legislature of Florida, passed on the 4th July, 1823, which is inserted in the record. That act purports to give the power which has been exercised ; conse- 44 CASES ON CRIMINAL LAW. [CHAP. II. quently the sale is valid, if the territorial legislature was competent to enact the law. The course which the argument has taken, will require that, in de- ciding this question, the court should take into view the relation in which Florida stands to the United States. The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties ; consequently, that government possesses the power of acquiring terrijtory',_either_^bycon- quest or bj' treaty. The usage of the world is, if a nation be not entirelj' subdued, to consider the holding of conquered territorj' as a mere military occu- pation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded ter- ritory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treatj' of cession or on such as its new mas- ter shall Impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new re- lations are created between them and the government which has ac- quired their territory. The same act which transfers their country transfers the allegiance of those who remain in it ; and the law which may be denominated political is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State. On the 2d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provision : " The inhabitants of the territories which his Catholic Ma- jesty cedes to the United States bj' this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoy- ment of the privileges, rights, and immunities of the citizens of the United States." This treatj' is the law of the land and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition independent of stipulation. They do not, however, participate in political power ; thej" do not share in the gov- ernment till Florida shall become a State. In the meantime, Florida continues to be a territory of the United States, governed by virtue oi that clause in the Constitution which empowers Congress " to make all needful rules and regulations respegting the ter_ritory-pr_pther_ property belonging to the United States." SECT. VII.] AMERICAN INSURANCE CO. V. CANTER. 45 Perhaps the power of governing a territor_v belonging to the United States, which has not, hy becoming a State, acquired the means of self-government, may result necessarily^ from the facts that it is not within the jurisdiction of an}' particular State and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territor}'. Whichever may be the source whence the power is derived, the possession of it is unquestioned. In execution of it. Congress in 1822 passed "an act for the establishment of a territorial government in Florida," and on the 3d of March, 1823, passed another act to amend the Act of 1822. Under this act, the territorial legislature enacted the law now under consideration. The 5th section of the Act of 1823 creates a territorial legislature which shall have legislative powers over all rightful objects of legisla- tion ; but no law shall be valid which is inconsistent with the laws and Constitution of the United States. The 7th section enacts " that the judicial power shall be vested in two superior courts and in such inferior courts and justices of the peace as the legislative council of the territory may from time to time establish." After prescribing the place of cession and the jurisdictional limits of each court, the Act proceeds to say : " Within its limits herein described, each court shall have jurisdiction in all criminal cases, and exclusive jurisdiction in all capital offences, and original jurisdiction in all civil cases of the value of one hundred dollars, arising under and cognizable by the laws of the territory now in force therein, or which may at any time be enacted by the legislative council thereof" The 8th section enacts "that each of the said superior courts shall moreover have and exercise the same jurisdiction within its limits, in all cases arising under the laws and Constitution of the United States, which, by an act to establish the judicial courts of the United States, approved the 24th of September, 1789, and an act in addition to the act entitled ' An Act to establish the judicial courts of the United States,' approved the 2d of March, 1793, was vested in the court of Kentucky district." The powers of the territorial legislature extend to all rightful objects of legislation, subject to the restriction that their laws shall not be "_ia- consistent witk thejaws and Constitution of the United States." _As salvage is admitted to come within this description, the Act is valid unless it can be brought within the restriction. The counsel for" the libellants^ontgndjthft t it is inconsis tent with both the law and the Constitution ; that it is inconsistent with the provisions of the law by which the territorial government was created and with the amendatory Act of March, 1823. It vests, they say, in an inferior 46 CASES ON CRIMINAL LAW. [CHAP. II, tribunal a jurisdiction whicli is, hy tbose acts, vested exclusivelj^ in the superior courts of the territory. This argument requires an attentive consideration of the sections which define the jurisdiction of the superior courts. The 7th section of the Act of 1823 vests the whole judicial power of the territory " in two superior courts, and in such inferior courts and justices of the peace as the legislative council of the territory may from time to time establish." This general grant is common to the superior and inferior courts, and their jurisdiction is concurrent, except so far as it may be made exclusive in either by other provisions of the statute. The jurisdiction of the superlaF. co_urts is declared to be ex- clusive over capital offences ; on every other question over which those courts may take cognizance bj' virtue of this section, cohcurreriTjuris- diction may be given to the inferior courts. Among thesis "sul^igins are "all civil cases arising under and cognizable by the laws of the terri- tory now in force therein, or which may at any time be enacted by the legislative council thereof." It has been already stated that all the laws which wei-e in force in Florida while a province of Spain, those excepted which were political in their character, which concerned the relations between the people and their sovereign, remained in force until altered bj' the government of the United States. Congress recognizes this principle bj' using the words " laws of the territory now in force therein." No laws could then have been in force but those enacted by the Spanish government. If among these a law existed on the subject of salvage, and it is scarcely possible there should not have been such a law, jurisdiction over cases arising under it was conferred on the superior courts, but that jurisdic- ition was not exclusive. A territorial act, conferring jurisdiction over he same cases on an inferior court, would not have been inconsistent ith this section. The 8th section extends the jurisdiction of the superior courts in terms which admit of more doubt. The words are : " That each of the said superior courts shall, moreover, have and exercise the same juris- diction within its limits, in all cases arising under the laws and Consti- tution of the United States, which, bj' an act to establish the judicial courts of the United States, was vested in the court of the Kentucliy district." The 11th section of the Act declares "that the laws of the United States relating to the revenue and its collection, and all other public acts of the United States not inconsistent or repugnant to this Act, shall extend to and have full force and effect in the territory aforesaid." The laws which are extended to the territory by this section were either for the punishment of crime or for civil purposes. Jurisdiction .ti< kh W: SECT. VII.] AMERICAN INSURANCE CO. V. CANTER. 47 is given in all criminal cases by the 7th section ; but in civil cases that section gives jurisdiction onlj' in those which arise under and are cog- nizable by the laws of the territory. Consequently all civil cases aris- ing under the laws which are extended to the territory by the 11th section are cognizable in the territorial courts by virtue of the 8th sec- tion ; and in those cases the superior courts may exercise the same jurisdiction as is exercised by the court for the Kentucky district. The question suggested by this view of the subject, on which the case under consideration must depend, is this : — Is the admiralty jurisdiction of the district courts of the United States, \ vested in the superior courts of Florida, under the words of the 8th sec- tion, declaring that each of the said courts " shall, moreover, have and exercise the same jurisdiction within its limits, in all eases arising under the laws and Constitution of the United States, "IrEieh was vested in the courts of the Kentiickj' district? It is observable that this clause does not confer on the territorial courts all the jurisdiction which is vested in the court of the Kentucky district, but that part of it only which applies to ' ' cases arising under the laws and Constitution of the^ United States." Is a case of admiralty of t his des cription ? "" The Constitution and laws of the United States give jurisdiction to the district courts over all cases in admiralty ; but jurisdictjgn ove^the case does_ not constitute jthe_case itself. We are therefore to inquire wEether cases in admiralty and cases arising under the laws and Con- stitution of the United States are identical. If we have recourse to that pure fountain from which all the jurisdic- tion of the Federal courts is derived, we find language employed which cannot well be misunderstood. The Constitution declares that "the judicial power shall extend to all cases in law and equity arising^under ^ this Constitution, Uie^laws oi^ the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting am- \ bassadors, or other public ministers, and consuls ; to all cases of ad- . miralty and maritime jurisdiction.' The Constitution certainly contemplates these as three distinct classes of cases ; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over either of the other two. The discrimination made between them in the Constitution is, we think, conclusive against their identity. If it were not so, if this were a point open to inquiry, it would be difficult to maintain the proposition that they are the same. A case in admiralty does not in Jact^rise under the Constitution or lawToftEe'UnitecrStatesr TheSe cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise. It 48 CASES ON CRIMINAL LAW. [CHAP. II. is not then to the 8th section of the territorial law that we are to look for the grant of admiralty and maritime jurisdiction to the territorial courts. Consequently if that jurisdiction is exclusive, it is not made so by the reference to the Distiict Court of Kentucky. It has been contended that, by the Constitution, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and that the whole of this judicial power must be vested " in one supreme court and in such inferior courts as Congress shall from time to time ordain and establish.'' Hence, it ha s been argued that Congl^ess^ cannot vest admiralty J urisdictioa-ia.cojirls-jcreated by the territorial legislature. TTeTiave onl_y to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sen- tence declares that " the judges, both of thesupreJDe_ and jjaferioE-courts, shall hold their officesTIuring good behavior." The judges of the su- perior courts of Florida hold their offices for four j'ears. These courts, then, are not Constitutional courts, in which the judicial power conferred bj' the Constitution on the general government can be deposited. They are incapable of receiving it. Thej' are legislative courts, created in vir- tue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territorj' belonging to the United States. The jurisdiction with which thej' are invested is not a part of that judicial power which is defined in the 3d article of the Constitu- tion, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the 3d Ar- ticle of the Constitution, the same limitation does not extend to the territories. In legislating for them, Congress exercises the combined powers of the general and of a State government. We think, then, that the act of the territorial legislature erecting the court bj' whose decree the cargo of the " Point k Petre " was sold, is not " inconsistent with the laws and Constitution of the United States," and is valid. Consequently the sale made in pursuance of it changed the property, and the decree of the Circuit Court, awarding restitution of the property to the claimant, ought to be affirmed, with costs. SECT. VIII.] UNITED STATES V. WILTBEKGEB. 49 (SECTION 8. Federal Jdrtsdiction bt Locality : High Seas. " The Congress shall have power ... to define and punish felonies committed on the high seas." — Constitution of the United States, Art. 1, §8. UNITED STATES v. COOMBS, above. UNITED STATES v. WILTBERGER. 7^ i^ ^' " S J^S ^'- ■»-- ^ Wheat. 76. This was an indictment for manslaughter in the Circuit Court of the United States for the District of Penns3'lvania. The jury found the de- fendant guilty of the offence with which he stood indicted, subject to tlie opinion of the Court whether this court has jurisdiction of the case, which was as follows : — The manslaughter charged in the indictment was committed by the defendant on board of the American ship, " The Benjamin Rush," on a seaman belonging to the said ship, whereof the defendant was master, in the river Tigris, in the empire of China, off Wampoa, and about one hundred j-ards from the shore, in four and a half fathoms water and below the low-water mark, thirty-five miles above the mouth of the river. The water at the said- place where the offence was committed is fresh, except in very dry seasons, and the tide ebbs and flows at and above the said place. At the mouth of the Tigris the government of China has forts on each side of the river, where custom-house officers are taken in by foreign vessels to prevent smuggling. The river at the mouth and at Wampoa is about half a mile in breadth. And thereupon the opinions of the judges of the Circuit Court being opposed as to the jurisdiction of the court, the question was bj'them stated and directed to be certified to this court. Marshall, C. J., delivered the opinion of the Court. The indictment in this case is founded on the 12th section of the Act entitled " An Act for the punishment of certain crimes against the United States." That section is in these words : " And be it enacted that if any seaman or other person shall commit manslaughter on the high seas,^ or confederate," etc., " such person or persons so offending an'STBeing thereof convicted, shall be imprisoned, not exceeding three years, and fined, not exceeding one thousand dollars." The jurisdiction of the court depends on the place in which the fact 1 [Amended, to embrace loGalities such as that in question by Act of March 3, 1825, §§ 4 et seq. (U. S. Stats, at Large, 115, 116.)] 4 50 CASES ON CEIMINAL LAW. [CHAP. II. was committed. Manslaughter is not punishable in the courts of the United States, according to the words which have been cited, unless it be committed on the high seas. Is the place described in the special verdict a part of the high seas ? If the words be taken according to the common understanding of mankind, if they be taken in their popular And received sense, the " high seas," if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide and in the interior of a countrj'. This extended construction of the words, it has been insisted, is still further opposed by a comparison of the 12th with the 8th section of the Act. In the 8th section Congress has shown its attention to the distinction between the "high seas" and "a river, haven, basin, or bay." The well known rule that this is a penal statute and is to be construed strictly is also urged upon us. On the part of the United States the jurisdiction of the court is sus- tained, not so much on the extension of the words •" high seas " as on that construction of the whole act, which would engraft the words of the 8th section, descriptive of the place in which murder may be com- mitted, on the 12th section, which describes the place in which man- slaughter may be committed. This transfer of the words of one section to the other is, it has been contended, in pursuance of the obvious intent of the legislature ; and in support of the authority of the court so to do, certain maxims or rules for the construction of statutes have been quoted and relied on. It has been said that although penal laws are to be construed strictly, the intention of the legislature must govern in their construction ; that if a case be within the intention, it must be considered as if within the letter of the statute ; so, if it be within the reason of the statute. After giving the subject an attentive consideration, we are unani- mously of opinion that the offence charged in this indictment is not cognizable in the courts of the United States ; which opinion is to be certified to the Circuit Court for the District of Pennsylvania. As to the three-mile belt of the high seas, see note to preceding sec- tion, Stat. 41 & 42 Vict. c. 73, United States v. Pirates, 5 Wheat. 184, Regina v. Keyn, 13 Cox C. C. 403. 2^ %.'l. '''^^ SECT. IX.j SMITH V. MABYLAND. 51 Section 9. Fedeeal Jurisdiction by Locality : Admiralty Waters NOT part op the High Seas (Rivers, Bays, Etc.). (a) Fed- eral Eights of Jurisdiction, [b) Greater or Less Exercise OF THOSE Rights, (c) Reserved Eights of States. (a) EEGINA v. CAEE, 10 Q. B. D. 76 ; 15 Cox C. C. 129. EEGINA V. ANDEESON, 1 L. R. C. C. 161 ; 11 Cox C. C. 198. REGINA «. AEMSTEONG, 13 Cox C. C. 184. REGINA V. LOPEZ, 7 Cox C. C. 431. Statute cited in footnote to Section 8. (5) UNITED STATES v. BEVANS, above. (c) SMITH V. MARYLAND, 18 How. 71 [1855]. Mr. Justice Curtis delivered the opinion of the Court. This is a writ of error to the Circuit Court for Anne Arundel County, in the State of Maryland, under the 25th section of the Judiciary Act of 1789. It appears by the record that the plaintiff in error, being a citizen of the State of Pennsylvania, was the owner of a sloop called "The Volant," which was regularly enrolled at the port of Philadel- phia, and licensed to be employed in the coasting trade and fisheries ; that in March, 1853, the schooner was seized by the sheriff of Anne Arundel Countj' while engaged in dredging for oj'sters in the Chesa- peake Bay, an d was con demned t o be forfe ited to the State of Mary- land by a justice of the peace of that State before whom the proceeding was had ; that on appeal to the Circuit Court for the county, being the highest court iri~whieE'a^ decision could be had, this decree of forfeiture was affirmed ; and that the plaintiff in_error insisted , m_ the Circuit Court, that such seizure and'condemnation were repugnant to the Con- stitutiotr of theTTnited States. '52 CASES ON CKIMINAL LAW. [CHAP. II. This vessel being enrolled and licensed under the Constitution and laws of the United States to be employed in the coasting trade and fisheries, and while so emploj'ed having been seized and condemned under a law of a State^ the owner has a right to the decision of this court upon the question whether the law of the State, hy, virtue of which condemnation passed, was repugnant to the Constitution or laws of the United States. That part of the law in question containing the prohibition and in- flicting the penalty, which appears to have been applied by the State court to this case, is as follows (1833, c. 254) : — " An Act to prevent the Destruction of Oysters in the Waters of this State." " Whereas, the destruction of oj-sters in the waters of this State is seriously apprehended, from the destructive instrument used in taking them, therefore " Section 1. JSe it enacted' by the General AssemMy of Maryland, That it shall be unlawful to take or catch 03'sters in anj' of the waters of this State with a scoop or drag, or any other instrument than such tongs and rakes as are now in use and authorized by law ; and all per- sons whatever are hereby forbid the use of such instruments in taking or catcEing" oysters in The waters of this State, on pain of forfeiting to the State the boat or vessel emploj'ed for the purpose, together with her papers, furniture, tackle, and apparel, and all things on board the same." The question is, whether this law of the State afforded valid cause for seizing a licensed and enrolled vessel of the United States, and in- terrupting its voj-age and pronouncing for its forfeiture. To have this effect we must find that the State of Maryland had power to enact liis law. The purpose of the law is to protect the growth of oysters in the waters of the State by prohibiting the use of particular instruments in dredging for them. No question was made in the court below whether the place in question be within the territorj' of the State. The law is in terms limited to the waters of the State. If the county court ex- tended the operation of the law beyond those waters, that wasji.dis- tinct and substantive ground of exception to be specifically taken_and presented on the record, accompanied by all the necessary facts to en- able this court to determine whether a voyage of a vessel, licensed and enrolled for the coasting trade, had been interrupted by force of a law of a State while on the high seas and out of the territorial jurisdiction of such State. To present to this court such a question upon a writ of error to a State court, it is not enough that it might have been made in the court SECT. IX.] SMITH V. MAKYLAND. 63 below ; it must appear 'by the record that it was made and decided against the plaintiff in error. As we do not find from the record that any question of this kind was raised, we must consider that the acts in question were done and the seizure made within the waters of the State ; and that the law, if valid, was not misapplied by the county court by extending its operation, contrary to its terms, to waters without the limits of the State. What we have to consider under this writ of error is, whether the law itself, as above recited, be repugnant to the Constitution or laws of the United States. It was argued that it is 'repugnant to that clause of the Constitution which confers on Congress power to regulate commerce, because it au- thorizes the seizure, detention, and forfeiture of a vessel enrolled and licensed for the coasting trade under the laws of the United States, while engaged in that trade. But such enrolment and license confer no immunity froHLthe Qfiera- tion of valid laws of a State. If a vessel of the United States, en- gaged in commerce between two States, be interrupted therein bj' a law of a State, the question arises whether the State had power to make the law by force of which the voyage was interrupted. This question must be decided in each case upon its own facts. If it be found as in Gibbon v. Ogden, 9 Wheat. 1 , that the State had not power to make the law under which a vessel of the United States was prevented from prosecuting its voyage, then the prevention is unlawful and the pro- ceedings under the law invalid. But a State may make valid laws for the seizure of vessels of the United States. Such, among others, are quarantine and health laws. In considering whether this law of Maryland belongs to one or the other of these classes of laws, there are certain established principles to be kept in view which we deem decisive. Whatever soil below low-water mark is the subject of exclusive pro- priety and ownership belongs to the State on whose»maritime border and within whose territory it lies, subject to any lawful grants of that soil by the State or the sovereign power which governed its territory before the Declaration of Independence. Pollard's Lessee v. Hagan, 3 How. 212 ; Martin v. Waddell, 16 Pet. 367 ; Den v. The Jersey Co., 15 How. 426. But this soil is held by the State not only subject to but in some sense in trust for the enjoyment" of certain public rights, among which is Ihfe' common liberty of taking fish, as well shell-fish as floating fish. Martin v. Waddell, supra ; Den v. Jersey Co., supra ; Corfield v. Coryell, 4 Wash. R. 376 ; Fleet v. Hagemen, 14 Wend. 42 ; Arnold v. Munday, 1 Halst. 1 ; Parker v. Cutler Milldam Corporation, 2 Appleton '(Me.) R. 54 CASES ON CKIMINAL LAW. [CHAP. II. 353 ; Peck v. Lockwood, 5 Day, 22 ; "Weston, et al. v. Sampson et al., 8 Cush. 347. The State holds the propriety of this soil for the conserva- tion of the public rights of fishery thereon, and may regulate the modes of that enjoyment so as to prevent the destruction of the fishery. In other words it may forbid all such acts as would render the public right less valuable or destroy it altogether. This power results from the ownership of the soil, from the legislative jurisdiction of the State over it, and from its duty to preserve unimpaired those public uses for which the soil is held. Vattel, b. I., c. 20, § 246; Corfield v. Coryell, 4 Wash. E. 376. It has been exercised by many of the States. See Angell on Tide Waters, 145, 156, 170, 1-92, 193. The law now in question is of this character. Its avowed and un- questionably its real object is to prevent the destruction of oysters within the waters of the State by the use of particular instruments in taking them. It does not touch the subject of the common liberty of taking oysters, save for the purpose of guarding it from injurj', to whomsoever it may belong and by whomsoever it maj' be enjoyed. Whether this liberty belongs exclusively to the citizens of the State of Maryland or may lawfully be enjo^-ed in common by all citizens of the United States ; whether this public use may be restricted by the State to its own citizens or a part of them, or by force of the Constitution of the United States must remain common to all citizens of the United States ; whether the national government bj' a treaty or act of Con- gress can grant to foreigners the right to participate therein ; or what in general are the limits of the trust upon which the State holds this soil, or its power to define and control that trust, are matters wholly without the scope of this case and upon which we give no opinion. So much of this law as is above cited may be correctly said to be not in conflict with, but in furtherance of, an^- and all public rights of tak- ing oysters whatever thej' may be ; and it is the judgment of the Court that it is within the legislative power of the State to interrupt the voj-age and inflict the forfeiture of a vessel enrolled and licensed under the laws of the United States, for a disobedience by those on board of the commands of such a law ; to inflict a forfeiture of a vessel on ac- count of the misconduct of those on board, — treating the tiling as liable to forfeiture because the instrument of the otfence is within estab- lished principles of legislation which have been applied by most civil- ized governments. The Malek Adhel, 2 How. 233, 234, and cases there cited. Our opinion is that so much of this law as appears by the record to have been applied to this case by the court below is not re- pugnant to the clause in the Constitution of the United States which confers on Congress power to regulate commerce. It was also suggested that it is repugnant to the 2d section of the SECT. X.J UNITED STATES V. HALL. 65 third Article, which declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. But we consider it to have been settled by this court in United States V. Bevans, 3 Wheat. 386, that this clause in the Constitution did not affect the jurisdiction nor the legislative power of the States, over so much of their territory as lies below high-water mark, save that they parted with the power so to legislate as to conflict with the admiralty jurisdiction or laws of the United States. Asthis law conflicts neither with the admiraltj' jurisdiction of any court of the United States con- ferred by Congress nor with any law of Congress whatever, we are of opinion it is not repugnant to this clause of the Constitution. The ob- jection that the law in question contains no provision for an oath on which to found the warrant of arrest of the vessel cannot be here main- tained. So far as it rests on the Constitution of the State the objection is not examinable here under the twent^'-flfth section of the Judiciary Act. If rested on that clause in the Constitution of the United States which prohibits the issuing of a warrant but on probable cause sup- ported by oath, the answer is that this restrains the issue of warrants only under the laws of the United States and has no application to State process. Barron v. Mayor, etc. of Baltimore, 7 Pet. 243 ; Lessee of Livingston v. Moore et al., 7 Pet. 469 ; Fox v. Ohio, 5 How. 410. The judgment of the Circuit Court of Maryland in and for Anne Arundel County is affirmed with costs. COMMONWEALTH v. MANCHESTER (Mass.), 152 Mass. ^00; 25 N. E. Rep. 113. V^ (e,. l.^-i<^'^ Section 10. Federal Jdeisdiction by Subject-Matter. UNITED STATES v. ARJONA, above, p. 32. UNITED STATES v. HALL. 98 U. S. 343 [1878]. Certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of Ohio. The facts are stated in the opinion of the Court. Mr. Justice Clifford delivered the opinion of the Court. Pensions granted to children under sixteen years of age may, in cer- tain cases, be paid to their guardians, and the act of Congress provides 56 CASES OK CRIMINAL LAW. [CHAP. n, that every guardian having the charge and custody of the pension of bis ward, who embezzles the same in violation of his trust, or fraudu- lently converts the same to his own use, shalt be punished bj' fine not exceeding $2,000, or imprisonment at hard labor for a term not exceed- ing five years, or both. Eev. Stat. § 4783. SuiBcient appears to show that the defendant in the indictment is the guardian of William Williamson, who was at the time mentioned, and long before had been, entitled to a pension from the government of the United States, and that the defendant, as such guardian, had collected pension-money belonging to his said ward as sueh pensioner, to the amount of $500, for which he had never accounted, and which he had never expended for nor paid to his said ward. Pa3'ment of the money being refused and withheld, an indictment against the defendant was returned by the grand jury of the Circuit Court, in which it is charged, among other things, that he, the respon- dent, being then and there the duly appointed guardian of William Williamson, who was entitled to a pension from the government of the United States, and having then and there, as such guardian, the charge and custody of the pension-monej' belonging to said ward, did unlaw- fully and feloniously' embezzle, in violation of his trust, a large sum of monej', to wit, $500, pension-monej' belonging to his said ward, which he, the defendant, as such guardian, had theretofore collected from the government of the United States. Due appearance was entered by the defendant, and he demurred to the indictment. Hearing was had ; and the following questions arose, upon which the judges of the Circuit Court were opposed in opinion, and the same were duly certified to this court : — 1. Whether the Circuit Court has any jurisdiction over the alleged oflFence, or any power to punish the defendant for any appropriation of the mone}' after its legal payment to hirti as sueh guardian, it appear- ing that the defendant is the legal guardian of his ward un der th' e laws of the State j* and that the money alleged to have been embezzled and fraudulentlj' converted to his own use had been paid over to him by the government, and belonged to his eaid ward. 2. If the defendant did embezzle the money and convert the same to his own use after it was paid over to him by the government, is he liable to indictment for the offence under the act of Congress, or only under the State Law? 3. Is the act of Congress under which the indictment is found a con- stitutional and valid law ? • •••••••■ For the defendant, it is insisted that when the payment is made to the guardian, the money paid ceases to be within the constitutional con- S'BCT. X.] UNITED STATES V. HALL. 57 trol of the United States ; and that the act of Congress, which enacts that the guardian who embezzles the money or fraudulently converts the same to his own use is guilty of a misdemeanor, is unconstitutional and void. But the Court is unhesitatingly of a different opinion, for several reasons : 1. Be caus e the United States, as the donors of the pensions, may, through the legislative department of the government, annex Siuch conditions to the donation as they see fit, to insure its trans- mission unimpaired to the beneficiary. 2. Because the guardian no more than the agent or attorney of the pensioner is obhged bj' the laws of C ongress to receive the fund ; but if he does, helSust acc^pfTf subject to the annexed conditions. 3. Because the word " guardian," as used in the acts of Congress, is merely the designation of the person to whom the monej' granted may be paid for the use and benefit of the pension- ers. 4. Because the fund proceeds from the United States, and inas- much as the donation is a voluntary gift, the Congress may pass laws for its protection, certainly- until it passes into the hands of the benefi-l ciary, which is all that is necessary to decide in this case. 5. Because the elements of the offence defined by the act of Congress in question consist of the wrongful acts of the individual named in the indictment, wholly irrespective of the dutiesjjeyolved upon him by the State law. 6. Because the theory of the defendant that the act of Congress aug- ments, lessens, or makes any change in respect to the duties of a guard- ian under the State law is entirely erroneous, as the act of Congress merelj' provides that the pension may be pai d to the person designated as guardian, for the use and benefit of the pensioner, and that the per- son who receives the pension, if he embezzles it or fraudulently con- verts it to his own use, shall be guilty of a misdemeanor, and be punished as therein provided. Viewed in the light of these suggestions, it is clear that Congress possessed the power: 1. To' define the offence set forth in the indict- ment, and that the Circuit Court is vested with the jurisdiction to try the offender and sentence him to the punishment which the act of Con- gress imposed. 2. That the defendant, under the circumstances dis- closed in the record, was liable to indictment in the Circuit Court of the United States. 3. That the act of Congress defining the offence set forth in the indictment is a valid and constitutional law enacted in pursuance of the Constitution. Answers will be certified in conformity with this opinion ; that is, the answer to the first question must be in the affirmative, and the answers to the second and third questions in the negative ; and it is So ordered. 58 CASES ON CRIMINAI, . \^. [CHAP. U. UNITED STATES h. ruX, 95 U. S. 670 [1877]. On a certificate of division in opinion between tlie judges of the Circuit Court of the United States for the Southern District of New Yorlt. In November, 1874, the defendant filed a petition in bankruptcj' in the District Court for the Southern District of New York. In March, 1876, he was indicted in the Circuit Court for that district for alleged offences against the United States, and among others for the offence described in the ninth subdivision of § 5132 of the Revised Statutes, which provides that " every person respecting whom proceedings in bankruptcy are commenced, either upon his own petition or that of !a creditor," who, within three months before their commencement, - " under the false color and pretence of carrying on business and deal- ng in the ordinar3- course of trade, obtains on credit from any person my goods or chattels with intent to defraud," shall be punished by mprisonment for a period not exceeding three years. The indictment, among other things, charged the defendant with having, within three months previous to the commencement of his proceedings in bankruptcy, purchased and obtained on credit goods from several merchants in the city of New York, upon the pretence and representation of carrying on business and dealing in the ordinary course of trade as a manufacturer of clothing ; whereas he was not carrying on business in the ordinary course of trade as such manu- facturer, but was selling goods to some parties by the piece for cost, and to other parties at auction for less than cost, and that these pre- tences and representations were made to defraud the parties from whom the goods were purchased. The defendant was convicted ; and upon a' motion in arrest of judg- ment, the judges holding the Circuit Court were opposed in opinion, and have certified to this court the question upon which they differed. That question is thus stated in the certificate : — " If a person shall engage in a transaction which, at the time of its occur- rence, is not a violation of any law of the United States, to wit, the obtain- ing goods upon credit by false pretences, and if, subsequently thereto, proceedings in bankruptcy shall be commenced respecting him, is it within the constitutional limits of congressional legislation to subject him to pun- tishment for such transaction considered in connection with the proceedings in bankruptcy?" SECT. X.] UNITED STATES V. FOX. 59 Mr. Justice Field delivered the opinion of the Court. The question presented by the certificate of division does not appear to us difficult of solution. Upon principle, an act which is not an offence at the time ft is committed cannot become such by any subse- quent independent act of the party with which it has no connection. By the clause in question, the obtaining of goods on credit upon false pretences is made an offence against the United States upon the hap- pening of a subsequent event, not perhaps in the contemplation of the party, and which may be brought about, against his will, by_ the agen^iy of another. The criminal intent essential to the commission of a pub- lic offence must exist when the act complained of is done : it cannot be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to con- stitute an offence, one act being auxiliary to another in carrying out the criminal design. But the present is not a case of that kind. Here an act which may have no relation to proceedings in bankruptcy be- comes criminal, according as such proceedings may or may not be sub- sequently taken, either by the party or by another. There is no doubt of the competency of Congress to provide, by suitable penalties, for the enforcement of all legislation necessary or proper to the execution of powers with which it is intrusted. And as it is authorized " to establish uniform laws on the subject of bankrupt- cies throughout the United States," it may-embrace within its legisla- tion whatever may be deemed important to a complete and effective bankrupt system. The object of such a system is to secure a ratable distribution of the bankrupt's estate among his creditors, when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts, upon a surrender of his propertj'. The distribution of the property is the principal object to be attained. The discharge of the debtor is merely incidental and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate for the prevention of frauds in either of these particulars, when committed in contemplation of bankruptcy, would seem to be within the competency of Congress. Any act committed with a view of evading the legislation of Congress passed in the exe- cution of any of its powers, or of fraudulently securing the benefit oi such legislation, may properly be made an offence against the United States. But an act committ ed wi thin a State, whether fora_good or a bad purpose, or whether with an honest or a criminal intentj cannot be^made an offence against the United States, unless it have some relation to' the execution of a power of Congress, or to some matter within the jurisdiction of the United States. An act not having 60 CASES ON CRIMINAL LAW. [CHAP. IT. any such relation is one in respect to which the State can alone legislate. The act described in the ninth subdivision of § 5132 of the Revised Statutes is one which concerns onlj' the State in wAch it is committed ; it does not concern the United States. It is quite possible that the framers of the statute intended it to apply only to acts committed in contemplation o f banltrup tcy ; but it does not say so, and we cannot supplj- qualifications which the legislature has failed to express. Our answer to tlie question certified must be in the negative ; and it will be so returned to the Circuit Court. UNITED STATES v. DEWITT, 9 Wall. 41 [1869]. On certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Michigan, the case being this : — Section 29 of the Act of March 2, 1867,i declares — " That no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale or offer for sale •such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire-test than 110 degrees Fahrenheit; and any person so doing, shall be held to be guilty of a misdemeanor, and on conviction thereof by indictment or presentment in any court of the United States having com- petent jurisdiction, shall be punished by fine, etc., and imprisonment," etc. Under this section one Dewitt was indicted, the offence charged be- ing the offering for sale at Detroit in Michigan oil made of petroleum of the description specified. There was no allegation that the sale was in violation or evasion of anj' tax imposed ou the property sold. It was alleged only that the sale was made eontrarj' to law. To this indictment there was a demurrer, and thereupon arose two questions on which the judges were opposed in opinion. 1. Whether the facts charged in the indictment constituted any of- fence under any valid and constitutional law of the United States? 2. Whether the aforesaid section 29 of the Act of March 2d, 1867, was a valid and constitutional law of the United States ? Mr. Meld, Assistant Attorney- General, for the United States. Instances of the exercise of police power over certain instruments or 1 14 Stat, at Large, 484. SECT. X.J UNITED STATES V. DEWITT. 61 agencies of commerce, for the protection of life and property, are found in various acts of Congress.^ In the License Tax Cases ^ it is held that the provisions of the inter- nal revenue laws requiring the paj'ment of a license tax and prohibiting under penalties the exercise of certain kinds of business within a State without such tax having been paid, are only modes of enforcing the paj'ment of excise taxes ; that the paj-ment of such special tax or' license tax conveys to the licensee no authority to carry on the busi-( ness licensed within a State which prohibits its being carried on, but that such provisions of law as incidental to the taxing power are not unconstitutional. So far as appears there was no law of the State of Michigan regula- ting the sale of oil made from petroleum at the time when the alleged offence was committed. There is no decision of this court that Con- gress cannot enact a law regulating trade in a State, in the absence of any regulation by the State, when the articles of the trade thus regu- lated njaA^^nter into commerce with other States or with foreign.coun- tries. It has been decided by this court that Congress may prohibit the exercise of a trade within a State under a penalty, in aid of or for the purpose of collecting excise taxes levied npou the exercise of such trade. One reason for the enactment may have been the protection of trans- portation companies between the States and between the United States and foreign countries from danger to property and life in transporting oil, mixed or sold in violation of this statute ; and the protection of revenue officers in the examination, gauging, marking, and storing of such oil ; and the proper distinction between and classification of differ- ent kinds of mineral oils made necessary for the convenient assessment and collection of excise taxes. If this was the reason then the regula- tions are fairly incidental to the exercise of the powe;- to regulate commerce or of the taxing power, aud as such constitutional. The Chief Justice delivered the opinion of the Court. The questions certified resolve themselves into this : Has Congress power under the Constitution to prohibit trade withm the limits of a State ? That Congress has power to regulate commerce with foreign nations and among the several States and with the Indian tribes, the Constitution expressly declares. But this express grant of power to regulate com- 1 merce among the States has always been understood as limited bj' itSj terms, and as a virtual denial of anj- power to interfere with the inter-' 1 Acts of March 3, 1843, 5 Stat, at Large, 626 ; August 30, 1852, 10 id. 61 : May 5, 1864, 13 id. 63 ; July 25, 1866, 14 id. 228. 2 5 WaUace, 462. 62 CASES ON CEIMINAL LAW. [CHAP. II. nal trade and business of the separate States, except, indeed, as a nec- essary and proper means for carr3-ing into execution some other power expressly granted or vested. It has been urged in argument that the provision under which this indictment was framed is within this exception ; that the prohibition of the sale of the illuminating oil described in the indictment was in aid and support of the internal revenue tax imposed on other illuminating oils. And we have been referred to provisions, supposed to be analo- gous, regulating the business of distilling liquors and the mode of packing various manufactured articles ; but the analogy appears to fail at the essential point, for the regulations referred to are restricted to the very .articles which are the subject of taxation, and are plainly adapted to secure the collection of the tax imposed, while in the case before us no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has anj- relation to taxation at all, it is merely that of increasing the production and sale of other oils, and con- sequently the revenue derived from them, by excluding from the market the particular kind described. This consequence is too remote and too uncertain to warrant us in saying that the prohibition is an appropriate and plainlj' adapted means for carrying into execution the power of laying and collecting taxes. There is, indeed, no reason for saying that it was regarded by Con- gress as such a means, except that it is found in an act imposing inter- nal duties. Standing bj' itself it is plainly a regulation of police, and that it was^so considejed, if not by the Congress which enacted it, cer- tainly by the sjicceeding Congress, may be inferred from the circum- stance that while all spetiial taxes on illuminating oils were repealed by the Act of July 20, 1868, which subjected distiller-s . and refiners to the tax on sales as manufacturers, this prohibition was left un- repealed. As a police regulation relating exclusively to the internal trade of the States, it can only have effect where the legislative authoritj' of Con- gress excludes territorially all State legislation, as for example, in the District of Columbia. Within State limits it can have no constitutional operation. This has been so frequently declared by this court, results so obviously from the terms of the Constitution, and has been so fuUj' explained and supported on former occasions,^ that we think it unnec- essary to enter again upon the discussion. The first question certified must, therefore, be answered in the negative. 1 License Cases, 5 Howard, 504 ; Passenger Cases, 7 id. 283 ; License Tax Cases, 5 Wallace, 470 , and the cases cited. SECT. XII.] FOX V. STATE OP OHIO. 63 The second question must also be answered in the negative, except so far as the section named operates within the United States but with- out the limits of any State. Section 11. Jurisdiction by Subject-Mattek : Federal Cogni- zance, IN Certain Cases, of Alleged Offences against State Laws. TENNESSEE u. DAVIS, 100 U. S. 257. 1)1 re NEAGLE, 135 U. S. 1. Section 12. Federal Jurisdiction bt Subject-Matter : Conouk- RBNT WITH State Jurisdiction over Specific Acts. FOX V. STATE OF OHIO, 5 Howard, 410 [1846]. Daniel, J., delivered the opinion of the Court. This case comes before us on a writ of error to the Supreme Court of the State of Ohio, by whose judgment was affirmed the judgment of the Court of Common Pleas for the county of Morgan in that State, con- victing the plaintiff of passin g, w ith fraudulent intent , a base and coun- terfeit coin in the similitude of a good and legal silver dollar, and sentencing her, for that offence, to imprisonment and labor in the State penitentiary for three years. The prosecution against the plaintiff occurred in virtue of a statute of Ohio of March 7, 1835, and the particular clause on which the in- dictment was founded is in the following language, namely: "That if any person shall counterfeit any of the coins of gold, silver, or cop- per, currently passing in this State, or shall alter or put off counterfeit coin or coins, knowing them to be such," etc., "every person so offending shall be deemed guilty of a misdemeanor, and upon con- viction thereof shall be imprisoned in the penitentiary and kept at hard labor not more than fifteen, nor less than three years." As has been already stated, the plaintiff was convicted of the offence described in the statute, her sentence was affirmed hy the Supi-eme Court of the State, and with the view of testing the validity of the sentence, a writ of error to the latter court has been issued. With the exceptions taken to the formality or technical accurac}^ of 64 CASES ON CKIMINAL LAW. [CHAP. II. the pleadings pending tlie prosecution, this court can have nothing to do. The onlj- question with which it can regularl}-. deal in this case is the following, namelj' : Whether that portion of the statute of Ohio, under which the prosecution against the plaintiff has taken place, and consequently whether the conviction and sentence founded on the statute are consistent with or in contravention of the Constitution of the United States, or of any law of the United States enacted in pur- suance of the Constitution? For the plaintiff, it is insisted that the statute of Ohio is repugnant to the fifth and sixth clauses of the 8 th section of the first article of the Constitution, which invest Congress with the power to coin mone}^ regulate the value thereof and of foreign coin, and to provide for the punishment of counterfeiting the current coin of the United States ; contending that these clauses embrace not only what their language directly imports, and all other offences which maj- be denominated offences against the coin itself, such as counter- feiting, scaling, or clipping it, or debasing it in any mode, but that thej' embrace other offences, such as frauds, cheats, or impositions be- tween man and man by intentionally circulating or putting upon any person a base or simulated coin. On behalf of the State of Ohio, it is insisted that this is not the correct construction to be placed upon the clauses of the Constitution in question, either by a natural and philological interpretation of their language or by any real necessity for the attainment of their objects ; and that if any act of Congress should be construed as asserting t his meaning in the Constitution, and as claiming from it the power contended for, it would not be a law passed in pursuance of the Constitution, nor one deriving ite authority regularly from that instrument.'' 1 [Act of March 3, 1825. " An Act more effectually to provide for the punishment of certain crimes against the United States and for other purposes." (4 U. S. Stats, at Large, pp. 115, 121.) " Sect. 20. And be it further enacted, That, if any person, or persons, shall falsely make, forge or counterfeit, or cause or procure to he falsely made, forged, or coun- terfeited, or willingly aid or assist in falsely making, forging or counterfeiting any coin, in the resemblance or similitude of the gold or silver coin, which 1ms been, or hereafter may be, coined at the mint of the United States ; or in the resemblance or similitude of any foreign gold or silver coin which by law now is, or hereafter may be made current in the United States ; or shall pass, utter, publish, or sell or attempt to pass, utter, publish, or sell, or bring into the United States, from any foreign place, with intent to pass, utter, publish, or sell, as true, any such false, forged, or counterfeited coin, knowing the same to he false, forged or counterfeited, with intent to defraud any body politic, or corporate, or any other person or persons, whatsoever ; every person, so offending, shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine, not exceeding five thousand dollars, and by imprison- ment, and confinement to hard labor, not exceeding ten years, according to the aggra- vation of the offence."] SECT. XII.J FOX V. STATE OP OHIO. 65 / We think it manifest tliat tlie language of the Constitution, by its proper signification, is limited to the facts, or to the faculty in Con- gress of coining and of. stamping the standard of value upon what the government creates or shall adopt, and of punishing the ofl'ence of p roduci ng ja__ false re presentation of_wbat ma}' have been so created or adopted. The imposture of passing a false coin creates, produces, or alters nothing ; it leaves the legal coin as it was, affects its intrinsic value in no wise whatsoever. The criminalit}' of this act consists in the obtaining, for a false representative of the true coin, that for which the true coin alone is the equivalent. There exists an obvious difference, not onl}^ in the description of these offences, but essentially also in their characters. The former is an offence directly against the government, by which individuals may be affected ; the other is a private wrong, by which the government may be remotel}', if it will in any degree be, reached. A material distinction has been recognized between the of- fences of counterfeiting the coin and of passing base coin bj' a gov- ernment which may be deemed sufficiently jealous of its authority ; sufficiently rigorous, too, in its penal code. Thus, in England, the counterfeiting of the coin is made high treason, whether it be uttered or not ; but those who barelyjutter false monej- are neither guilty of treason nor of misprision of treason. 1 Hawkin's Pleas of the Crown, 20. Again, 1 East's Crown Law, 178, if A. counterfeit the gold or silver coin, and by agreement, before such counterfeiting, B. is to re- ceive and vent the monej', he is an aider and abettor to the act itself of counterfeiting, and consequently a principal traitor within the law. But if he had merel^'^ vented the monej' for his own private benefit, knowing it to be false, in fraud of any person, he was only liable to be punished as for a cheat and misdemeanor, etc. These citations from approved English treatises on criminal law are adduced to show, in addition to the obvious meaning of the words of the Constitution, what has been the adjudged and established import of the phrase " counterfeiting the coin." and to what description of acts that phrase is restricted. It would follow from these views, that if within the power conferred by the clauses of the Constitution above quoted can be drawn the power to punish a private cheat effected b}' means of a base dollar, that power certainly cannot be deduced from either the common sense or the ad- judicated meaning of the language used in the Constitution, or from any apparent or probable conflict which might arise between the Fede- ral and State authorities, operating each upon these distinct characters of offence. If any such conflict can be apprehended, it must be from some remote and obscure and scarcely comprehensible possibility, which can never constitute an objection to a just and necessary State power. The punishment of a cheat or a misdemeanor practised within 5 6t) CASES ON CRIMINAL LAW. [CHAP. II, the State, and against those whom she is bound to protect, is peculiarly and appropriately within her functions and duties, and it is difflcult to imagine an interference with those duties and functions which would be regular or justifiable. It has been objected on behalf of the plaintiff in error, that if the States could inflict penalties for the ofl!'ence of pass- ing base coin, and the Federal government should denounce a penaltj' against the same act, an individual under these separate jurisdictions might be liable to be twice punished forthe one and the s ame crim e, and that this would be in violation of the fifth article of the amendments to the Constitution, declaring that no person shall be subject for the same oflence to be twice put in jeopardy of life or limb. Conceding for the present that Congress 'should undertake, and could rightfully un- dertake, to punish a cheat perpetrated between citizens of a State be- cause an instrument in eflTecting that cheat was a counterfeited coin of the United States, the force of the objection sought to be deduced from the position assumed is not perceived ; for the position is itself without real foundation. The prohibition alluded to as contained in the amend- ments to the Constitution, as well as others with which it is associated in those Articles, we re not desi gned as limits upon the State govern- ments in reference to^their own .citizens. They are exclusively restric- tions upon Federal power, intended to prevent interference with the rights of the States and of their citizens. Such has been the interpre- tation given to those amendments by this court, in the case of Barron V. The Mayor and City Council of Baltimore, 7 Pet. 242 ; and such indeed is the only rational and intelligible interpretation which those amendments can bear, since it is neither probable nor credible that the States should have anxious!}' insisted to ingraft upon the Federal Constitution restrictions upon their own authoritj', — restrictions which some of the States regarded as the sine qua non of its adoption by them. It is almost certain that in the benignant spirit in which the in- stitutions both of the State and Federal sj'stems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other, for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor. But were a contrarjr course of policy and action either probable or usual, this would bj' no means justify the conclusion that offences falling within the competency of different authorities to restrain or pun- ish them would not properly be subjected to the consequences/which those authorities might ordain and affix to their perpetration. The par- ticular offence described in the Statute of Ohio, and charged in the in- dictment against the plaintiff in error, is deemed by this Court to be clearly within the rightful power and jurisdiction of the State. So far SECT. XII.] COMMONWEALTH V. FELTON. 67 then neither the statute in question nor the conviction and sentence founded upon it can be held as violating either the Constitution or any law of the United States made in pursuance thereof. The judgment of the Supreme Court of the State of Ohio, affirming that of the Court of Common Pleas, is therefore in all things, affirmed.^ Sl^ A/. <^e«* c< Cr*. / JV/ r- S T- /. COMMONWEALTH v. FELTON, 101 Mass. 204 [1869]. Indictment charging that James D. Martin, as cashier of the National Hide and Leather Bank, a banking association incorporated under the laws of the United States, embezzled the funds of the bank, and that Alexander C. Felton was an accessory thereto before the fact. The defendants filed separate pleas to the jurisdiction, alleging that the United States courts had exclusive cognizance of the offences charged in the indictment, as against both defendants, and that they both had, before the pendency of this indictment, been indicted in the United States Circuit Court. In the Superior Court^ Ames, C. J., allowed Martin's plea, but overruled the plea of Felton, who thereupon pleaded nolo contendere and alleged exceptions. C. Allen, Attornej'-General {J. C. Davis, Assistant Attorney-Gen- eral with him), for the Commonwealth An indictment may be main- tained in the courts of this Commonwealth for being accessory before the fact to an embezzlement, by a bank officer, of the funds of a na- tional bank. It may be conceded that the United States courts have exclusive jurisdiction of the offence committed by the bank officer. Still, that offence is fully within the terms of the Gen. Sts. c. 161, § 39, and in the absence of any statute of the United States covering the offence, the principal would be punishable under the laws of the Commonwealth. Commonwealth v. Tenney, 97 Mass. 56. . But for the passage of the United States St. of 1864, c. 106,^ the courts of 1 [See Dashing v. State, 78 Ind. 357 (1886).] 2 [United States Stats. 1864, c. 106, § 55. And he it further e.nacted, That every president, director, cashier, teller, clerk, or agent of any association, who shall em- bezzle, abstract, or wilfully misapply any of the moneys, funds, or credits of the association, or shall, without authority from the directors, issue or put in circulation any of the notes of the association, or shall, without such authority, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any ac- ceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment, or decree, or shall make any false entry in any book, report, or statement of the asso- ciation, with intent, in either case, to injure or defraud the association or any other 68 CASES ON CRIMINAL LAW, [CHAP. 11. the Commonwealth would clearly have had jurisdiction of the offence charged against Felton, as well as jurisdiction of the offence commit- ted by the principal. The latter jurisdiction is bj' that statute trans- ferred to the United States courts, but not the former. Is the former therefore destroyed and the criminal rendered dispunishable? The United States may well punish the principal and the Commonwealth the accessory. There is nothing to prevent national and State courts from exercising concurrent jurisdiction over both principal and acces- sory, if the United States statute should so provide. The jurisdiction of the Commonwealth to punish criminals does not rest on any con- cession bj' Congress. Under our statutes, and independently of the United States statute, the cashier would be punishable as principal and Felton as accessory. Jurisdiction over the offence of the cashier has been taken awaj'. Why should not the jurisdiction over the acces- sorj- remain? Ames, J. The indictment against this defendant charges him with a crime of so grave a character that it ought to be made a matter of judicial investigation somewhere, upon the facts and merits. But as he is indicted for the same transaction in two different jurisdictions, namelj', in the Circuit Court of the United States and in the Superior Court of this Commonwealth, it becomes necessary to decide to which, if to either, of these two jurisdictions he is properlj' amenable ; or, to state the question with more strict accurac}', whethejLh£_aS--lialjle_to_lie- proceeded against under the laws of this Commonwealth. The statutes of this Commonwealth (Gen. Sts. c. 161, § 39) have made full and ample provision for the case of the embezzlement or fraudulent appropriation by an}' cashier or other officer of any incor- porated bank of any of the funds of such bank. This description of crime by our laws_is a felonj', and is punishable bj' imprisonment in the State prison. It has recentlj' been decided that the language of this statute is broad enough to include banking corporations organized under the laws of the United States and located in Massachusetts, as well as like corporations created by the laws of this State. Common- wealth V. Tenney, 97 Mass. 50. So far as the case depends on our own legislation, an'd if nothing has been done to impair the jurisdiction of our own tribunals in such a case, there can be no doubt that Martin, the cashier of the Hide and Leather National Bank, could well be indicted and tried in the Superior Court for embezzlement of the funds of the bank, and this defendant could also in like manner be indicted company, body politic or corporate, or any individual person, or to deceive any offi- cer of the association, or any agent appointed to examine tlie affairs of any such association, sliall be deemed guilty of a misdemeanor, and upon conviction thereof sliall be punislied by imprisonment not less than five nor more than ten years.] SECT. XII.] COMMONWEALTH V. PELTON. 69 jointly with him, or separately-, as accessory before the fact to the same embezzlement. But the act of Congress (U. S. St. 1864, c. 106) from which the national banks derive their existence and organization contains a sec- tion (§ 39) [55 ?] which also makes full and ample provision for the punishment of the crime of em bezzlement and fraudulent appropriation oflinyTunds of a national bank by any cashier, etc., „ot such bank. If eSactly coversThe crime imputed to Martin. It declares that de- scription of crime to be a misdemeanor, and makes it punishable by imprisonment in the State prison. It makes no provision or reserva- tion for its prosecution and punishment by any State authority, but makes it cognizable under the authority of the United States. By the terms of the Judiciary Act (U. S. St. 1789, c. 20, § 11), the courts of the United States are vested withthe_exclusiye .cognizance of. all crimes that are made punishable by act .of Congress, except where the act of"CoS"gress makes other pr^o.vision ; and it would therefore seem thaTTEe crime of embezzlement by a cashier of a national bank located within our territory is taken out of the jurisdiction of our courts. This is at least strongly implied in Commonwealth v. Tenne^', and in fact is conceded by the learned Attorney-General in the argument of this case. See also Commonwealth v. Fuller, 8 Met. 313. If Martin, then, as a bank officer, is not amenable in our courts for embezzlement from the bank, can Felton bc^indicted in the same courts, as an, accessor j- bfifbre the fact, for the same embezzlement? The technical and somewhat naTrownTTle~TTfTne~c6minon Taw on the subject of principal and acces- sory has been very extensively and reasonably enlarged by modern legislation. " Whoever counsels, hires, or otherwise procures a fel- ' ony to be committed, ma^' be indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction ; or may be indicted and convicted of a substantive felonj-, whether the principal felon has or has not been convicted, or is or is not amenable to justice." Gen. Sts. c. 168, § 4. But the difficulty in the way of holding the defendant upon the present indictment is, that the act of Congress has taken the crime of the principal out of our jurisdiction. Our courts cannot deal with him upon that charge. By the terms of the same act, which in this matter is the controlling authority, the crime of the principal has ceased to be a felony and has become a misdemeanor only, — a description of crime in which there are no accessories. A defaulting cashier of a national"bank, however Hagrant Tis embezzlement may be, so far from being a principal felon, is not in legal strictness a felon at all ; and it would seem to be impossible, therefore, to say that Felton, even if he in fact counselled, hired, or otherwise procured the crime to be committed, can be said to be 70 CASES ON CRIMINAL LAW. [CHAP. IL thereby rendered accessory to a felony within the terms of the above cited statute. Gen. Sts. c. 168, § 4. The effect of our decision may very probably be to leave what is charged as a great crime to go wholly unpunished and untried ; but that is a result which we have no power to prevent. Meceptions sustained. COMMONWEALTH v. BARRY, 116 Mass. 1 [1874]. Indictment on the Gen. Sts. c. 161, § 43,. charging the defendant on October 21, 1871, with feloniously buying and receiving and aiding in the concealment of certain legal-tender notes and bank bills of the goods, chattels, and monej-s of the National Mahawie Bank, knowing the same to have been feloniously stolen, the said legal-tender notes andj^bank bills having been before then feloniously stolen, taken, and carried away by one WiUiam S. Hine. J. M. Barker {E. M. Wood ^ith him), for the defendant. 1. The offence of the defendant was only cognizable by the courts of the United States. It appeared in evidence' that Hine was the teller of the National Mahawie Bank, which was organized under the U. S. St. of 1864, c. 106, and that wliile such teller, he abstracted and took from the vault of the bank a large sum of money belonging to the bank, and converted it to his own use. This was an offence under § 55 of that Act, and was punishable as a misdemeanor. There was evidence tending to show that the defendant aided and abetted Hine in taking said money and converting it to his own use, advising with him in re- gard to taking the money, and assisting him in carrying the same to Van Deusenville, and receiving and concealing a portion of the same. By so doing he committed an offence under the U. S. St. of 1869, c. 145. The offence was only cognizable by the courts of the United States. Tlie U. S. St. of 1789, c. 20, § 11, provides that the Circuit Courts of the United States " shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct." No law of the United States gives to the State courts cognizance of offences under the U. S. St. of 1864, c. 106, or the U. S. St. of 1869, c. 145. It therefore follows that the State courts have no jurisdiction of the offence committed by the de- fendant. Commonwealth v. Felton, 101 Mass. 204 ; Trigg's Case, 16 Pet. 539, 617 ; Houston v. Moore, 5 Wheat. 1,27; 1 Kent Com. (12th SECT. Xn.] COMMONWEALTH V. BAEEY. 71 ed.) 399 ; Commonwealth v. Fuller, 8 Met. 313, 319 ; Commonwealth V. Tenney, 97 Mass. 50. 2. The offence of Hine, as stated in his own testimony, was embezzle- ment and not larceny. He was the teller of the bank; that is, the officer who receives and pays out its money ; and as he testifies, that upon that evenitig at half-past eight o'clock, he himself placed the moneys of the bank in the safe, inside the vault, and fastened the doors, as teller of the bank he could lawfully take its moneys from the safe and pay them to third persons, and his office of teller con- tinued in the night-time as well as during the day. This case is dis- tinguishable from Commonwealth v. Davis, 104 Mass. 548, by the fact that in the latter case the defendant had no right to remove the goods, or to sell them, or have even the bare custody of them, being simply a clerk and packer in the employ of the owner of the goods. 3. It is entirely immaterial whether the crime of Hine was embezzle- ment or larceny. Whichever it was, all the acts which he did from the time when he took the money out of the vault, until he and the defend- ant parted at Van Deusenville, constituted an offence under the U. S. St. of 1864, c. 106, § 55 ; and in doing all these acts he was, according to the testimony, aided and abetted by the defendant, who, in doing all that he did, committed an offence under the U. S. St. of 1869, c. 145, which offence was cognizable by the courts of the United States, and only there. Wells, J. The only question argued before us by the defendant is that of jurisdiction. It is contended that when an offence is punishable both by the laws of a State and by those of the United States, the juris- diction of the courts of the latter excludes that of the State courts, un- less otherwise provided by the laws of the United States. If we assume that position to be correct, it does not meet this case. The offence charged in the indictment, up on which the defendant was found guilty, is that of receiving and aiding in the concealment of stolen property, under th'e Gen. Sts. c. 161, § 43. The count recites the pre- vious larceny of the property, consisting of money, from the National Mahawie Bank, by William S. Hine. Both this and the principal of- fence of Hine, as set forth, are independent of any trust and of any relation of either to the bank as officer, clerk, or agent. But such rela- tion and breach of trust are essential elements in the offence punishable under the laws of the United States. The U. S. St. of 1864, c. 106, § 55 provides, " That every president, director, cashier, teller, clerk, or agent of any association, who shall embezzle, abstract or wilfully misapplj' any of the moneys, funds, or credits of the association " shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment not less than five nor more than ten years. 72 OASES ON CRIMINAL LAW. [CHAP. II. The two offences are essentially different. The statute of the Unitedi /states does not purport to punish larceny as such. The obvious infer- ence is that Congress did not intend to interfere with the jurisdiction of State laws and State courts over offences of that class against the prop- erty of national banks. The defendant contends that as it appeared in evidence that Hine was in fact teller of the bank and was enabled through that position to secure the means by which to " abstract" the funds from its vault, his offence comes withii) the terms of the statute of the United States, and is punishable exclusively under it ; and therefore that the accessorial offence of Barry cannot be punished at all. Commonwealth v. Felton, 101 Mass. 204. In our opinion, neither branch of this proposition can be maintained. In the first place, if the fact that Hine was teller of the bank aalyects him to the punishment imposed for his breach of trust in thjit_cai2acity, under the statute of the United States, it does not relieve hirnjrqm his liability to punishment for the larceny at common law or under statutes of the State'; There is no identity in the character of the two offences, although the same evidence maj' be relied upon to sustain the proof of each.. An acquittal or conviction of either would be n o bar to a p rose- "^ution for the other. Commonwealth v. Tenney, 97 Mass. 50 ; Com- monwealth V. Hogan, 97 Mass. 122; Commonwealth v. Harrison, 11 Gray, 308 ; Commonwealth v. Shea, 14 Gray, 386 ; Commonwealth v. Carpenter, 100 Mass. 204; Morey «. Commonwealth, 108 Mass. 433. Exclusive jurisdiction of the one does not exclude jurisdiction of the other. Upon the facts stated it is clear that the offence of Hine was larceny and not embezzlement. Although as teller he was entrusted with funds of the bank while engaged in transacting its business, at night they were withdrawn from his possession and placed in such custody that he could not lawfully resume possession until the return of business hours and the concurrence of the cashier authorized him to do so. That_custody wasposses^ion_by_the^bank ; and his wrongful violation of it made the taking of the funds larceny. Commonwealth v. Berry, 99 Mass. 428 ; Commonwealth v. Davis, 104 Mass. 548. , In thg.Becond place the offence of receiving stolen property is a^b- i^tantive crime in itself, and not merely accessorial to the principal of- fence of larceny. In this respect the case is clearlj' distinguishable from that of Commonwealth v. Felton, supra. Exceptions overruled. CHAP. III.] KEGINA V. BARTON. 73 CHAPTEE III. The Mental Element in Crime. Insanity ; Drunkenness ; IiiMATDKiTr ; Coercion ; Pressure OF Circumstances. EEGINA V. BARTON, 3 Cox C. C. 275 [1848]. The prisoner was indicted for the wilful murder of Harriet Barton, on the 22d of June, by cutting her throat with a razor. Wells, for the prosecution, proved that the prisoner and the deceased were husband and wife, and that, up to the da}' named in the indict- ment, he had alwaj-s treated her and their children with kindness. On the afternoon of the 2ist of June the prisoner and his wife were seen talking with their next-door neighbor at their door late at night, and at four o'clock in the following morning it was discovered that he had cut the throats of his wife and child, and that he had attempted to commit suicide. When questioned by the surgeon, he exhibited no sorrow or remorse for his conduct, but stated that " trouble and dread of poverty and destitution had made him do it, fearing that his wife and child would starve when he was dead." He also said that he had contem- plated suicide for a week past ; that he had not had any quarrel with his wife, and that, having got out of bed to destroy himself, the thought had first come into his head to kill his wife and child ; that he had first attacked her while asleep in bed, and that she got awa}' from him and rushed to the window; calling for help ; that he then killed the child, and seizing his wife, pulled her backwards towards him, in which position he had cut her throat. This done he next tried to cut his own throat, but his powers failed him and he did not succeed, though he wounded himself severelj', his wife having fallen down dead by his side. This narrative, coupled with a knowledge of the prisoner's pri- vate circumstances, induced the surgeon to form the opinion that the prisoner at the time he committed the act had not, in conse- quence of an uncontrollable impulse to which all human beings were subject, anj' control over his conduct. The desire to inflict pain and injur}- on those previously dear to the prisoner was in itself a strong symptom of insanity, and the impossibility of resisting a sudden impulse 74 CASES ON CEIMINAL LAW. [CHAP. in. to slay a fellow-being was another indication that the mind was in- sane. There was not necessarily a connection between homicidal and suicidal monomania, though it would be more likely that a monoma- niac who had contemplated suicide should kill another person than for one who had not entertained any such feelings of hostility to his own existence. Monomania was an affection which, for the instant, com- pletely deprived the patient of all self-control in respect of some one particular subject which is the object of the disease. It was true that the prisoner had no delusion and his reasoning faculties did not seem to be affected ; but he had a decided monomania, evincing itself in the notion that he was coming to destitution. For that there was so me founda tion in fact, but it was his (the surgeon's) decided opinion that the prisoner was in an unsound state of mind at the moment he cut his wife's throat, though he would not be so in all cases of murder. It was also proved that on the 21st of June the prisoner had caused his razor to be sharpened, saying that he wanted it to give to some friend. Couch, for the prisoner, submitted that the jury were bound, after the testimony of the surgeon, to acquit the prisoner on the ground of insanity, and. he proceeded to show by other witnesses that the prisoner had suffered a severe pecuniary loss not long before the occurrence of the dreadful event now the subject of inquiry, and that it had produced a decided effect on his mind, giving rise to the most gloomy anticipa- tions on account of his wife and family. Paeke, B., told the jury that there was but one question for their consideration now ; namelj', whether at the time the prisoner inflicted the wounds which caused the death of his wife, he was in a state of mind to be made responsible to the law for her murder. That would depend upon the question whether he at the time knew the nature and charac- ter" Of the deed he was committing, and If so, whether he knew he was doing wrong in so acting. This mode of dealing withT the defence of insanity had not, he was aware, the concurrence of medical men ; but he must nevertheless express his decided concurrence with Mr. Baron Rolfe's views of such cases, that learned judge having expressed his opinion to be that the excuse of an irresistible impulse, co-existing with the full possession of reasoning powers, might be urged in justification of every crime known to the law, — for every man might be said, and truly, not to commit any crime except under the influence of some irre- sistible impulse. Something more than this was necessary to justify an acquittal on the ground of insanity, and it would be therefore for the jury to say whether, taking into consideration all that the surgeon had said, which was entitled to great weight, the impulse under which the prisoner had committed this deed was one which altogether deprived CHAP. HI.] EEGINA V. BTJKTON. 75 him of the knowledge that he was doing wrong. CQuM_hedistinguish bgtweennglitanfl wrong? Reliance was placed on the desire to commit suicide, but that did not always "evidence insanity. And here the prisoner was led to attempt his own life by the pressure ofa^real sub- stantiaLjact clearly apparent to his perceptive organs, and not by any unsubstantial delusion. The fact, however, must be taken into the ac- count, for it might have had a serious effect on the mind of the pris- oner ; as also the absence of any attempt to escape from justice, and the want of all sense of sorrow and regret immediately after the death of his wife, contrasted with his more natural state of mind afterwards when he felt and expressed regret and sorrow for his act. Thesecir- cumstances ought all to be taken into consideration ; but it was diffi- cult to see how they could establish the plea of insanity in a case where there was a total absence of aU delusion. Guilty. /Sentence of death passed.^ EEGINA V. BURTON, 3F. &F. 772 [1863]. The prisoner, a youth of eighteen, was indicted for the murder of a boy. WiGHTMAN, J., in summing up the case said : As there was no doubt about the act the only question was whether the prisoner at the time he committed it was in such a state of mind as not to be responsible for it. The prisoner's account of it was that he had done it from a morbid feeling ; that he was tired of life and wished to be rid of it. No doubt prisoners had been acquitted of murder on the ground of in- sanity ; but the question was what were the cases in which men were to be absolved from responsibility on that ground. Hatfield's case dif- fered from the present, for there wounds had been received on the head which were proved to have injured the brain. In the more recent case of Macnaghten, the judges had laid down the rule to be, that there must, to raise the defence, be a defect of reason from disease of the mind, so as that the person drd not know the nature and qualitj' of the act he committed, or did not know whether J^hss right or wrong. Now to apply this rule to the present case would be the duty of the jury. It was not mere eccentricity of conduct which made a man legally irresponsible for his acts. The medical man called for the defence defined homicidal mania to be a propensity to kill, and de- 1 [The prisoner was reprieved.] 76 CASES ON CRIMINAL LAW. [CHAP. III. scribed moral insanity as a state of mind under which a man, perfectly aware that it was wrong to do so, killed anotlier under an uncontrol- lable impulse. This would appear to be a most dangerous doctrine and fatal to the interests of societj' and security of life. The question is whether such a theory is in accordance with law. The rule as laid down by the judges is quite inconsistent with such a view ; for it was that a man was responsible for his actions if he knew the difference be- tween right and wrong. It was urged that the prisoner did the act to be hanged, and so was under an insane delusion ; but what delusion was he under? So far from it, it showed that he was quite conscious of the nature of the act and of its consequences. He was supposed to desire to be hanged, and in order to attain the object committed mur- der.^ "That might show a morbid state of mind but not delusion. Homicidal mania again, as described bj- the witnesses for the defence, showed no delusion. It merely showed a morbid desire for blood. Delusion mea nt the belie f in what did.not„fisist. The question for the jury was whether the prisoner at the time he committed the act was laboring under such a species of insanity as to be unaware of the nature, the character, or the consequences of the act he committed, — in other words whether he was incapable of knowing that what he did was wrong. If so, they should acquit him ; if otherwise, thej' should find a ■verdict of guilty. Verdict guilty. EEGINA V. HAYNES, 1 F. & F. 666 [1859]. The prisoner, a soldier, was charged with the murder of Mary MacGowan, at the camp at Aldershott. The deceased was an " unfortunate woman" with whom the prisoner had been intimate, and was on the most friendlj' terms up to the mo- . ment of the commission of the offence. No motive was assigned for the perpetration of the act ; and general evidence was given that the prisoner, while in Canada, having seduced a young woman under a promise of marriage, which he had been unable to fulfil by reason of his regiment having been ordered home, his mind had been much affected by the circumstance. Bramwell, B. {To the jury.) As to the defence of insanity set up for the prisoner, I will read you what the law is as stated by the judges in answer to questions put to them by the House of Lords. {Having done so.) It has been urged for the prisoner that you CHAP. III.] PEARSON'S CASE. 77 should acquit him on the ground, that it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called a powerful and irresistible influence or homicidal tendency'. But I must remark as to that that the circum- stance of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Mo- tives exist unknowii^and innumerable which might prompt the act. A. morbid and restless (but resistible) thirst for blood would itself be"'a motive urging to su^h a deed for its own relief; but if an in- fluence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence, — the restraint of rel igion, the restraint of conscie nce, and the restrain tofjaw. But if the influence itself be held a legal excuse, rendering the crime dispunishable, you at once withdraw a most power- ful restraint, — that forbidding and punishing its perpetration. We must therefore return to the simple question you have to determine, — did the prisoner know the nature of the act he was doing ; and did he know that he was doing what was wrong ? ^ Guilty. Sentence., death. The prisoner was reprieved. PEAESON'S CASE. 2 Lewin C. C. 144 [1835]. A^ P<^. e^ /> t- The prisoner was indicted for the murder of his wife. It was proved that in a fit of drunkenness he had beaten her in a cruel manner with a rake-shank, and that she died of the wounds and bruises which she received. His only defence was that he was drunk. Park, J. Voluntary' drunkenness is no excuse for crime. If a partj'' be made drunk bj' stratagem or the fraud of another he is not responsible. So drunkenness ma}- be taken into consideration to ex plain the p rob- abilit y of a partj-^S-lntention in the case of violence committed on sud- den provocation. 1 [See Flanagan v. People, 52 N. Y. 467.] 78 CASES ON CRIMINAL LAW. [CHAP. ni. HOPT V. PEOPLE, 104 U. S. 631 [1881]. Mr. Justice Geat delivered the opinion of the Court. The plaintiff in error was indicted, convicted, and sentenced for the crime of murder i njthe^first^ degree in the District Court of the Third Judicial District of the Territory of Utah, and presented a bill of ex- ceptions, which was allowed by the presiding judge, and from his judg- ment and sentence appealed to the Supreme Court of the Territory, and that court having affirmed the judgment and sentence, he sued out a writ of error from this court. At common law, indeed, as a general rule, voluntary intoxication affords no excuse, justification, or extenuation of a crime committed under its influence. United States v. Drew, 5 Mass. 28 ; United States V. McGlue, 1 Curt. 1 ; Commonwealth v. Hawkins, 3 Gray (Mass.), 463 ; People V. Rogers, 18 N. Y. 9. B ut when a_statutpr pstabi iahing diffe r- ent de grees of murder requires d eliberate premeditation i n order to con- stitute murder in th e first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material sub- ject of consideration by the jury. The law has been repeatedlj' so ruled in the Supreme Judicial Court of Massachusetts in cases tried before a full court, one of which is reported upon other points (Commonwealth V. Dorsej', 103 Mass, 412) ; and in well-considered cases in courts of other States. Pirtle v. State, 9 Humph. (Tenn.) 663 ; Haile v. State, 11 id. 154 ; Kelly v. Commonwealth, 1 Grant (Pa.), Cas. 484 ; Keenan V. Commonwealth, 44 Pa. St. 55 ; Jones v. Commonwealth, 75 id. 403 ; People V. Belencia, 21 Cal. 544 ; People v. Williams, 43 id. 344 ; State V. Johnson, 40 Conn. 136, and 41 id. 584 ; Pigman v. State of Ohio, 14 Ohio, 555, 557. And the same rule is expresslj- enacted in the Penal Code of Utah, § 20: "No act committed by a person while in a state of voluntary intoxication is less criminal bj'' reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to con- stitute any particular species or degree of crime, the jury may take mt'o consideration the fact that the accused was intoxicated at the time, m determining the purpose, motive, or intent with which he committed the act." Compiled Laws of Utah of 1876, pp. 568, 569. CHAP. III.] COMMONWEALTH V. HAWKINS. 79 EEGINA V. GAMLEN, 1 F. & F. 90 [1858]. Assault. The charge arose out of an affray at a fair, and there seemed some ground for supposing that the prisoner acted under appre- hension of an assault upon himself. All concerned were drunk. Crowder, J. Drunkenness is no excuse for crime ; but in consider- ing whether the prisoner apprehended an assault on himself j'ou may take into account the state in which he was. Ifot guilty. EEGINA V. DOODY, A^ 9_Leayi.ng no will and no heks buTPati^'E^ No letters of administration were taken out upon his estate ; but Patrick took all his property and appropriated it to his own use, and went to Middletown in Connecticut to reside. On the IStii^fJanuary, 1853,-Patpiek- came^from Middletown andjpflssed the Bight in Springfield at the house of Jerry Whalen, where the defendant also then was. When Dorsay went to bed he placed under his pillow his pocket-book containing the bills and gold coin mentioned in the in- dictment. But one Dee, who was to sleep with Dorsay, insisting on having the motiey counted, Whalen took the pocket-book from under the pillow, and in the presence of Dee, of Dorsay, and the defendant counted the money upon a table near the bed. Imroediately after it was counted the defendant took the bank bills and refused to give them up, sayitig" that she had a right to it ; that she had been looking for it a long time and now she had got it ; that the old man owed her and 84 CASES ON CRIMINAL LAW. [CHAP. IV. now it was time for her to get lier own." When she took the bills no part of Michael Dorsay's note which she held had been paid. The Court instructed the jurj' that Michael Dorsay's property de- scended to Patrick subject to the payment of debts ; that Patrick was an executor in his own wrong, and as such was liable on the claim held by the defendant against Michael Dorsay to the extent of his in- termeddling with his father's estate ; and that the defendant would not be guilty of larceny if the jury were satisfied that she took this money under An honest belief Jjhat she^ had_a_legal right to_take_this_specific money in the way and under the circumstances that^she didtake it, alHiougirin fact she may have had no such legal right. Metcalf, J. 1. The instruction to the jury that the defendant was not guilty of larceny if she took the money under an honest belief that she had a legal right to take it was clearly unexceptionable. "—; t*^ •■■(••■ KEGINA V. TOWSE, 14 Cox C. C. 327 [1879]. Prisoner was indicted for having set fire to some furze growing on a common at Culmstock. It appeared from the evidence that persons living near the common had occasionally burnt the furze to improve the growth of the grass, although the existence of anj' right to do this was denied. But the prisoner in this case denied having set the furze on Are at air ^- »- - Sullen, for the defence, contended that even if it were proved that the prisoner set the furze on fire she could not be found guilty if it ap- peared that she bona fide believed she had a right to do so, whether the right were a good one oj not. "XoPES, J. If she set fire to the furze thinking she had a right to do so that would not be a criminal offence. I shall leave two questions to the jury. 1. Did she set fire to the furze? 2. If yes, did she do it wilfully and maliciously ? REX V. HALL, 3 C. & P. 409 [1828]. Indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare wires and a pheasant. It appeared that the prisoner had set three wires in a field belonging to Lord Ducie, in one of which this SECT. II.] levet's case. 85 pheasant was caught, and that Green, the gamekeeper, seeing this, took up the wires and pheasant and put them into his pocket ; and it further appeared "that" ihe prisoner sooii after this came up and said, " Have you got my wires?" The gamekeeper replied that he had and a pheasant that was caught in one of them. The prisoner then asked t the gamekeeper to give the pheasant and wires up to him, which the/ gamekeeper refused ; whereupon the prisoner lifted up a large stickl and threatened to beat the gamekeeper's brains out if he did not give | them up. The gamekeeper, fearing violence, did so. Maclean, for the prosecution, contended that by law the prisoner could have no property in either the wires or the pheasant, and as the gamekeeper had seized them for the use of the lord of the manor, under the statute 5 Anne c. 14, § 4, it was a robbery to take them from him by violence. Vaughak, B. I shall leave it to the jury to say whether the prisoner acted on an impression that the wires and pheasant were his property ; for however he might be liable to penalties for having them in his pos- session, yet if the jury think that he took them under a bona fide im- pression that he was only getting back the possession of his own property, there Is no animus furandi, and I am of opinion that the prosecution must fail. Verdict, not guilty. Section 2. Ignorance oe Mistake of Facts. LEVET'S CASE, 1 Hale P. C. 42. In the case of Levet, indicted for the death of Frances Freeman, the case was, that William Levet being in bed and asleep in the night, his servant hired Frances Freeman to help her to do her work, and about twelve of the clock in the night, the servant going to let out Frances thought she heard thieves breaking open the door ; she therefore ran up speedily to her master and informed him that she thought thieves were breaking open the door. The master rising suddenly and taking a rapier ran down suddenly ; Frances hid herself in the buttery lest she should be discovered. Leveis wife spying Frances in the buttery cried out to her husband, " Here they he that would undo us." Levet runs into the buttery in the dark, not knowing Frances but thinking her to be a thief, and thrusting with his rapier before him hit Frances in the breast mortallj-, whereof she instantly died. This was resolved to be neither murder nor manslaughter nor felony. 86 CASES ON CKIMINAL LAW. [CHAP. IV. ^ ' REGINA V. BISHOP, 14 Cox C. C. 404 ; 15 Q. B. D. 259 £1«80]. Case reserved for the opinion of this court by Stephen, J. Rhoda Hulse Bishop was tried before me at Northampton on the 20th and 21st daj's of January, upon an indictment charging her with an offence against the 44th section of 8 & 9 Vict. c. 100, by receiving into her house two or more lunatics, such house not being an asylum or hospital registered under the Act, or a house duly licensed under the Act. It was proved on the trial tliat the defendant received into her house several young women for the purpose of medical treatment. Her step- daughter, who was called as a witness on her behalf and who took part in the management of the house, described them as patients suffering from "hysteria, nervousness, and perverseness," and it was proved that she advertised in newspapers for patients so described. She had besides these patients one inmate who was admitted to be a lunatic, with regard to whom she had^ complied with the requisitions of § 90 of the Act. There was conflicting evidence upon the question whether any of the other patients were lunatics or not, and as to the nature and degree of restraint to which they were subjected, and there was strong evidence to show that the defendant J)clieved in good faith jgd_pn reasonable grounds that no one of them was a lunatic, but that aU were suffering only under " h3'steria, nervousness, or perverseness." I read to the jurj' the interpretation of "lunatic" given in § 114: "Lunatic shall mean every insane person, and every person being an idiot, or lunatic, or of unsound mind," and I told them that in my opinion these words would include everyone whose mind was so af- fected^ by disease that it was necessary for his own good to. put_Mm under_resiitraint. I also told them that in my opinion the words " receive one or more lunatics" meant receive " as lunatics, and in order to be treated as lunatics are treated in asylums," and I gave them this direction : " In order that the defendant may be convicted the jury must be of opinion that at "least one other patient in the house besides the admitted luna- tic was either an insane person or an idiot or a lunatic or qf.u_nsound mind jsf hen received, and that such person was receivgd into the house to be treated as a lunatic, is treated in an asylum." I also told them that I was of opinion that if one other such person besides the admitted lunatic was so received, an honest belief on the SECT. II.] KEGINA V. BISHOP. 87 part of the defendant that that person was not a lunatic would be im- materialT^trnfr^t-thel-equest^lSf the counsel for the defendant I asked them if they convicted the defendant to find specially whether she be- lieved honestly and on reasonable grounds that any person so received was not a lunatic. The jury found the defendant guilty, but they found that she did honestly and on reasonable grounds believe that no one of her patients was a lunatic (except of course the admitted lunatic). I directed the defendant to enter into her own recognizances to come up for judgment if called upon in order that she might have an oppor- tunity of complying with the provisions of the Act, but I reserved for the determination of the Court for Crown Cases Reserved the question whether my direction to the jury was right^ in order that if it is wrong the conviction may be set aside. J. F. Stephen. 8 & 9 Vict. c. 100 (An Act for the Regulation of the Care and Treat- ment of Lunatics) , § 44 : — It shall not be lawful for any person to receive two or more lunatics into any house unless such house shall be an asylum or an hospital registered under this Act, or a house for the timg being duly licensed under this Act, or one of the Acts hereinbefore repealed; and any person who shall receive two or more lunatics into any house other than a house for the time being duly licensed, or an asylum or an hospital duly registered shall be guilty of a misdemeanor. Section 90 : ^- No person (unless he be a person who derives no profit from the charge, or a committee appointed by the Lord Chancellor) shall receive to board or lodge in any house other than an hospital registered under this Act, or an asylum or a house licensed under this Act, or under one of the Acts hereinbefore re- pealed, or take the care or charge of any one patient as a lunatic or a,lleged lunatic without the like order and medical certificates in respect of such pa- tient as are hereinbefore required on the reception of a patient (not being a pauper) into a licensed house, etc. Pollock, B. I agree that the conviction ought to be sustained, and I wish it to be understood that we affirm the direction of my brother Stephen that the word " lunatic" would include a person whose mind was so affected by disease that it was necessary for his own good to put him under restraint, in the sense that by restraint is meant re- straint of the same kind as that to which lunatics are subject in asylums. . . . With regard to the point whether the knowledge or ab- sence of knowledge of the keeper of the house as to the lunacy of the persons received is material, I am clearly of opinion that it is not. 88 CASES ON CRIMINAL LAW. [CHAP. IV. Stephen, J. I am of the same opinion. Upon the question whether knowledge upon the part of the defendant was essential to the commit- tal of the offence under the Act I entertained no doubt at the trial, and 1 do not now. Conviction affirmed. COMMONWEALTH v. MASH, 7 Met. 472 [1844]. The defendant was indicted, on the Rev. Sts. c. 130, §2, for marry- ing a second husband while her former husband was living. At the trial in the municipal court, at August term, 1843, there was evidence tending to prove that the defendant was married to Peter Mash on the 7th of December, 1834, and that she afterwards cohabited with him until about the 10th of November, 1838, when _he left h ome in the morning, saj-ing he should return to breakfast^and^was not after- wards heard from by the defendant till about the middle_of^May, 1842, when he returned ; that on the 10th of April, 1842, she was married in Boston by a clergyman of competent authority to solemnize marriages /in this Commonwealth, to William M. Barrett, with whom she cohabited in Boston until she heard that said Peter Mash was still living, when she immediately withdrew from said Barrett, and had no intercourse with him afterwards ; that she was of uniformly good character and virtuous conduct, and thltfshe honestlj' believed, at the time of said second marriage, that said Peter Mash was dead ; that during his absence, as aforesaid, she made many inquiries, and was unable to obtain any information concerning him, or to ascertain whether he was or was not alive. The counsel for the defendant moved the Court to instruct the jury, that if they believed all the facts which the aforesaid evidence tended to prove, she was entitled to an acquittal. But the Court refused so to instruct the jury, and instructed them that the defendant's ignorance that her said husband Peter Mash was alive and her honest belief that he was dead constituted no legal defence. The jury found the defendant guilty, and she filed exceptions to the instruction of the Court. Shaw, C. J. The Court are of opinion that the instruction to the jury was right. The rule of law was certainly strongly expressed by the judge, no doubt in consequence of the terms in which the motion of the defendant's counsel was expressed. The rule as thus laid down in effect was, that a woman whose husband suddenly left her without SECT. II.] COMMONWEALTH V. MASH. 89 notice, and saying when he went out that he should return immedi- ately, and who is absent between three and four years, though she have made inquiry after him and is ignorant of his being alive, but honestly believes him to be dead, if she marries again, is guilty of polygamy. The correctness of this instruction must of course depend upon the construction of the Eev. Sts. c. 130, which regulate this sub- ject. The 2d section imposes a penalty upon any person who, having a former husband or wife, shall marry another person, with some excep- tions. The 3d section excepts from the operation of th'e statute " any person whose husband or wife shall have been continually remaining beyond sea, or shall have voluntarily withdrawn from the other and remained absent for the space of seven years together, the party marrying again not knowing the other to be living within that time." It appears to us that in a matter of this importance, so essential to the peace of families and the good order of society', it was not the intention of the law to make the legality of a second marriage, whilst the former husband or wife is in fact living, d epend upon ignorance of_saQh Jibsent party's being alive, or even upon an honest bgljef of such person's death. Such l)eiief mighr arise after a very short absence. Biit it "appears to us that thelegislature intended to prescribe a more exact rule, and to de- clare as law that no one should have a right upon such ignorance that the other party is alive, or even upon such honest belief of his death, to take the risk of marrying again, unless such belief is confirmed by an absence of seven years, with ignorance of the absent party's being alive within that time. It is analogous to other provisions and rules of law, by which a continued absence of a person for seven years, without being heard of, will constitute a presumption of his death. Loring v. Steine- man, 1 Met. 204 ; Greenl. on Ev. § 41. We are strongly confirmed in this construction of the statute, and that such was the deliberate expression of the legislative will, by refer- ence to the report of the commissioners for revising the statutes. It appeaxs-by their, report upon this provision that they prescribed a much more mitigated rule, and proposed to extend the exception "to air^ person whose former husband or wife, having been absent one jeHLP** more at the time of such second marriage, shall be believed to be dead." This proposal was stricken out by the committee appointed to consider the report of the commissioners, and the legislature adopted their amend- ment and passed the law as it stands, without the proposed additional exception. This shows at least that the attention of the legislature was called to the subject, and that it was by design, and not through inad- vertence, that the law was framed as it is. It was urged in the argument that where there is no criminal intent, there can be no guilt ; and if the former husband was honestly believed 90 CASES ON CEIMINAL LAW. [CHAP. IV. to be dead, there could be no criminal intent. The proposition stated is undoubtedly' correct in a general sense ; but the conclusion drawn from it in this case bj' no means follows. Whatever one voluntarily does, he of course intends to do. If the statute has made it criminal to do any act under particular circumstances, the party voluntaril3' doing that act is chargeable with the criminal intent of doing it. On this subject the law has deemed it so important to prohibit the crime of polygamy, and found it so difficult to prescribe what shall be sufficient evidence of the death of an absent person to warrant a belief of the fact ; and as the same vague evidence might create a belief in one mind and not in another, the law has also deemed it wise to fix a definite period of sevenyears' continued absence, without knowledge of thejsont^ry, to ■warrant a belief that the absent person is actually dead. One there- fore who marries within that time, if the other party be actually living, whether the fact is believed or not, is chargeable with that criminal in- tent, by purposely doing that which the law expressly prohibits. •^f'c^'i.^, ^t-»4>i^c^- (s-A^t~j„ c^te-tJ) - Exceptions overruled. [The Court did not pass sentence on the defendant, but took a recog- nizance for her appearance in court at a future day. On the 9th of July, 1844, the defendant received a full pardon from the governor, which she brought into court on the 15th of said July and pleaded the same in bar of sentence. Whereupon the Court ordered her to be discharged. ^ SQUIRE V. THE STATE,'' 46 Indiana, 459 [1874]. BtrsKiKK, J. This was a prosecution for bigamy. T!!he appellant, upon a plea of not guilty, was tried by a jury and found guilty, and 1 [The Queen v. Tolson, 23 Q. B. D. 168. . The prisoner was convicted under 24 & 25 Vict. c. 100, § 67, of Tsigamy, having gone through the ceremony of marriage within seven years after she had been deserted by her husband. The jury found that at the time of the second marriage she in good faith and on reasonable grounds believed her husband to be dead. HeJd, by Lord Coleridge, C. J., Hawkins, Stephen, Cave, Day, A. L. Smith, Wills, Grantham, and Charles, JJ. (Denman,Meld, and Manisty, JJ., and Pollock and Hud- dleston, BB., dissenting), that a bona fide belief on reasonable grounds in the death of the husband at the time of the second marriage afforded a good defence to the indictment, and that the conviction was wrong.] " [If any person being married shall maiTy again, the former husband or wife being alive and the bond of matrimony still undissolved and no legal presumption of death having arisen, such person so offending shall be deemed guilty of bigamy,!' etc. Sect. 46, 2 Gavin & Hord (Indiana Statutes), 452.] SECT. n.J SQUIKE V.. THE STATE. 91 over motions for a new trial and in arrest judgment was rendered on the verdict. The motion for a new trial was based upon the admission of incom- petent evidence, the insufficiency of the evidence to support the ver- dict, and the refusal of the Court to give certain instructions asked by the appellant. The appellant requested the Court to give the following instruction : " That if the jury believe from all the evidence in the case that the defendaut^raarried the second time in the honest belief that his former wiiehad been divorced from him,, they should find him not guilty;" ■Bnt the Court refused to so charge, and this refusal was assigned as a reason for a new trial and is relied upon here to reverse the judgment. The appellant testified in his own behalf. The substance of his testi- mony was, that he left the State of New York about two years ago and came to this State, where he had resided ever since ; that he left his wife in the city of Bufialo, in the State of New York, she refusing to come West with him ; that he came to Washington, Daviess County, Indiana, in July, 1873, where he had ever since resided and still re- sides ; that he had not been in the State of New York since he left there, two years ago, but he had received letters from his parents and brothers in the State of New York informing him that his wife Eliza- BetE~Bad~procured a divorce from him in said State of New York ; and "tCat he had married the said Ruth Summers under the belief that such information was true. i Bishop on Criminal Law, in sect. 303, vol. i., p. 187, says: "The wrongful intent being the essence of every crime, the doctrine necessa- rily follows that, whenever a man is misled without his own fault or carelessness concerning facts, and while so misled acts as he would be justified in doing were the facts what he believes them to be, he is legally innocent the same as he is innocent morally." The same author in his work on Statutory Crimes in sect. 355, p. 234, says : "In the cases mentioned in the preceding sections there is no crime because, by a rule of the common law, there can be none where the criminal mind is wanting. But the reason why it is wanting in these cases is, that either in consequence of a technical rule or by force of a natural fact, it is impossible the criminal mind should exist ; since that cannot be for whose existence there is no capacity. But there may be a capacity for the criminal intent while yet no crime is com- initted, even though the outward fact of what otherwise were crime transpires. It is so where one, having a mind free from all moral culpability, is misled concerning facts. If in such a case he honestly 92 CASES ON CKIMINAL LAW. [CHAP. IV. believes certain facts to exist, and though they do not, acts as he would be legally justified in acting if what he erroneously believes to be were real, he is justified in law the same as he is in morals. The books are full of illustrations of this doctrine, and the reader perceives thai in reason it must govern statutory crimes the same as crimes at the common law." The same author in sect. 356 illustrates the above doctrine as applicar ble to a prosecution for bigamy when he says : ' ' But this exception has no relation to a case in which, on independent information and special grounds, a husband or wife is really believed to be dead. Sup- pose, for example, a husband intending to entrap his wife goes oul ostensibly on a sail with confederates, and they come back and repre- sent that he is drowned, while he secretly escapes abroad ; she believes the statement, administers on his effects, and at the end of a j-eai marries. Then he returns and procures her indictment for poh'gamy. On a just consideration the common-law rule and not the statutory one prevails, and she should be acquitted." The same rule would apply to the dissolution of the marriage relatior by divorce as by death; We think the Court should have charged the jurj', if it had been sc asked, that if they believed from the evidence that the defendant hac been informed that his wife had been divorced, and that he had usee due care and made due inquiry to ascertain the truth, and had, consid ering all the circumstances, reason to believe and did believe at th( time of his second marriage that his former wife had been divorcee from him, they should find him not guilty. There was probably no error in refusing the instruction as asked, ai it was based solely upon the belief of the defendant, and djd not re quirethat such belief should be the result of due care and carefu inquiry, and that he should have reasonable grounds tojentertain sue] belief. CHAP, v.] EEX V. OGDEN. 93 CHAPTER V. The Mental Element in Crime. Intent to do Wrong. Religious Conyictions. REX V. JAMES OGDEN, 6 C. & P. 631. The prisoner was indicted for unlawfully transposing and removing from one piece of wrought plate to another, namelj-, from one gold ring to another, the lion passant, contrary to the statutes.-^ The principal evidence to affect the prisoner was his own statement at Goldsmiths' Hall, in answer to questions put to him by the prime warden of the company, and also his examination at Hatton Garden Police OfHce. On the whole of the facts, it appeared that the pris- oner, who was a working jeweller, was emploj^ed by a regular cus- tomer, named Beeby, to make a gold ring of a particular size and weight. When it was sent home it was found to require alteration, and was sent back. Mr. Beeby, who was called as a witness for the prosecution, stated that he could not say that the ring when first sent home had not the hall mark upon it, but he was inclined to think that it had. The deputy touchwarden of the Goldsmiths' Company proved that the marks of the lion passant and the small Roman T, denoting the date, had been transferred from another ring to that in question. The prisoner's account of the transaction given on the 6th of Novem- ber, when he was first taken before the magistrate, was as follows : . . . "The Hng being shown to the prisoner, and he being asked whether he had anything to say, his answer was, ' It was sent to me to be made by Mr. Beeby, of Red Lion Street, a spoon-maker. I made it and sent it home. It wa3_ returned to me to make heavier and a little smaller, and in doing so I obliterated the hall mark ; andt he parties sendmg to me that the ring mu st be sent home that day, I destroyed another ring, and put the hall mark of it into this ring. ' " On the next day, the 7th, the prisoner was brought up again, and he then said, " The ring now produced is a genuine ring ; it has been 1 13 Geo. 3, c. 52, § 14, and 38 Geo. 3, c. 69, § 7. The words used in both those statutes are " transpose or remove, or cause to be transposed or removed, from one piece of wrought plate to another, or " etc. 94 CASES ON CRIMINAL LAW. [CHAP. V. Stamped at the hall ; it was sent there with my work." This state- ment was returned with the depositions, and dated as if it had been made on the 6th. BoLLAND, B. (in summing up), said : By the act referred to, the Goldsmiths' Company are bound to have a certain mark, and there is no doubt that the prisoner made the ring in question, and there is no doubt also that the mark has been transposed from some other ring. The statement of the prisoner, which was read from the book, ought certainly to have been returned with the other depositions ; for what is said by a prisoner is a part of the examination, and ought to be returned by the magistrate. But notwithstanding this irregularity, I cannot say that it is not evidence. There is no proof that the ring is not genuine gold ; if there had been it would be a more obvious sign of fraud than the merely saving the duty. We must therefore take it that there has been no fraud on the part of the prisoner, as far as the substituting an inferior kind of metal for genuine is concerned. The question is, whether the prisoner has been guilty of transposing the hall mark of the company from one piece of wrought plate to another. The prisoner received an excellent character from many witnesses, and the jufj' delivered their verdict in the following words : " We find him guilty of transposing the hall mark from one genuine ring to an- other genuine ring ; but without any fraudulent intention." BoLLAND, B. There are no words in the act of Parliament referring to any fraudulent intention. The words of it are, " shall transpose or remove, or cause or procure to be transposed or removed, from one piece of wrought plate to another." Unfortunately for the prisoner, I fear it can be onlj' a verdict of guilty ; but I will make a minute of it for further consideration. The jury then found the defendant guiltjf, but most strongly recom- mended him to mercy, and the Goldsmiths' Company joined in the recommendation. Park, J. The statute is express ; the Court has no power to miti- gate the sentence. It was intimated that the recommendations would be forwarded to the proper quarter.' [' The prisoner received pardon.] CHAP. V.J EEYNOLDS V. UNITED STATES. 95 REYNOLDS v. UNITED STATES, 98 U. S. 145 [1878]. Eeroe to the Supreme Court of the Territory of Utah. This is an indictment found in the District Court for the third judi- cial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of § 5352 of the Revised Statutes, which, omit- ting its exceptions, is as follows : — " Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years." Mr. Chief Justice Waite delivered the opinion of the Court. 5. As to the defence of religious belief or duty. On the trial the plaintiflf in error, the accused, proved that at the time of his alleged second marriage he was, and for many j^ears before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Moi-mon Church, and a believer in its doctrines; that it was an accepted doctrine of that church "that it was the duty of male members of said church, circumstances permit- ting, to- practise polygamy ; . . . that this duty was enjoined by dif- ferent books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church ; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved " that he had received permission from the recognized authorities in said church to enter into polygamous marriage ; . . . that Daniel H. Wells, one having author- ity in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been com- mitted, to some woman by the name of Schofleld, and that such mar- riage ceremony was performed under and pursuant to the doctrines of said church." 96 CASES ON CBIMINAL LAW. [CHAP. V. Upon this proof he asked the Court to instruct the jury that if they found from the evidence that he "was married as charged, if he was married in pursuance of and in conformity with what he believed at the time to be a religious duty, the verdict must be ' not guilty.' " This request was refused, and the Court did charge " that there must have been a criminal intent, but that if the defendant, under the influ- ence of a religious belief that it was right, under an inspiration, if you please, that it was right, deliberatelj' married a second time, hav- ing a first wife living, the want of consciousness of evil intent, the want of understanding on his part that he was committing a crime did not excuse him ; but the law inexorably in such case implies the crimmal intent." Upon this charge and refusal to charge the question is raised whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, i f he entertains a religious belief that the law; is wron g. Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The first amend- ment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be deter- mined is, whether the law now under consideration comes within this prohibition. The word "religion" is not defined in the Constitution. We must go elsewhere therefore to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed ? Before the adoption of the Constitution attempts were made in some of the colonies and States to legislate not onl^- in respect to the establishment of religion, but in respect to its doctrines and pre- cepts as well. The people were taxed against their will for the sup- port of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration " a bill establishing provision for teachers of the Christian religion," postponed it until the next session, and CHAP, v.] EEYNOLDS V. UNITED STATES. 97 directed that the bill should be published and distributed, and that the people be requested " to signify their opinion respecting the adoption of such a bill at the next session of assembly." This brought out a determined opposition. Among others, Mr. Madison prepared a " Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated ' ' that religion, or the duty we owe the Creator," was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another " for es- tablishing religious freedom," drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45 ; 2 Howison, Hist, of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined ; and after a recital " that to suffer the civil magistrate to intrude his powers into the field of opinion , and to restiiaiu the professioa-gC- propagation of principles -gn. snpposition_o f their ill tendency , is a dangerous fallacy which at once"destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its offi- cers to interfere wbienjrindgles^iiga^_£u^^ jeace and good order ." In these two sentences is found the true dis- tinction between what properly belongs to the Church and what to the State. In a little more than a j'ear after the passage of this statute the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, ex- pressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest inten- tions of the people would bring about the necessary' alterations. 1 Jeff. Works,' 79. Five of the States, while adopting the Constitution, proposed amendments. Three — New Hampshire, New York, and Virginia — included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratifj' the Constitu- tion until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom and was adopted. Mr. Jefferson afterwards, in reply to an address to him bj' a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: " Believing with you that religion is a matter which lies solely between man and his God ; that he owes account to none other for his faith or 7 98 CASES ON CRIMINAL LAW. [CHAP. V. his worship ; that the legislative powers o f the governmentreach ac- tions only a nd not op inions, — I contemplate with sovereign rever- ence that act of the whole American people which declared that their legislature should ' make no law respecting an establishment of reli- gion or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Cungress was deprived of all legi slative power over mere opinio n, b ut was left free to reach ac- t ions which were in violation of social dut ie.s or sul^versjve .of good order. Polygamy has alwaj's been odious among the northern and western nations of Europe, and until the establishment of the Mormon Church was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polj-gamy h as been treated as a,n offence against so ciety. After the establish- ment of the ecclesiastical courts, and until the time of James I., it was punished tln-ough the instrumentahty of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentarj^ causes and the settlement of the estates of deceased 'persons. By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and "Wales, it was at a very earlj' period re-enacted, gener- ally with some modifications in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing relig- ious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declara- tion in a bill of rights that " all men have an equal, natural, and un- alienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the CHAP, v.] REYNOLDS V. UNITED STATES. 99 preamble, " it hath been doubted whether bigamy or polj'gamy be punishable by the laws of this Commonwealth." 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polj'gamy has not been an offence against societj-, cognizable by the civil courts and pun- ishable with more or less severity. I n the face of all this evidence, it i s impossible to b elieve that the constitutional guar ant y pf rpl iginna freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obli- gations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people to a greater or less extent rests. Professor Lieber says poly- gamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chan- cellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time with- out appearing to disturb the social condition of the people who sur- round it ; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of ever}" civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion. In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the territories, and in places over which the United States have exclusive control. This being so, the only question which rem ains is, whether those who make TJoivgamy a part of their religion are excepted from the operation of t he statut e. If they are, then those who do not make polygamy a part of their religious belief maj' be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a n ew element into criminal law . Laws are made for t he governmen t oLactioas, and while they cannot interfere with mere religious belief and opinions, th ey may wil h_j:mictices. Suppose one believed thatl^ human sacrifices were a necessary part of religious worship, would id be seriously contended that the civil government under which he livedo could not interfere to prevent a sacrifice ? Or if a wife religiously be- lieved it was her duty to burn herself upon the funeral pile of her dead 100 OASES ON CRIMINAL LAW. [CHAP. V. husband, would it be beyond the power of the civil government to pre- vent her earrj'ing her belief into practice ? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. A criminal intent is generally an eleme nt of crim ejjbut every man is presumed tointend the necessSy~and legitimate con sequen ces of what he knowingly does. Here the accused l5;new he had been once married and that his first wife was living. He ^also knew that his second ma r- riage was forbid den by law. When therefore he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crfme was therefore knowingly committed. Ignoianca-QCgL fact may som etimes be takeiLaa-fisidence of a want of criminal intent , but not igno rance of the Jaw. The only defence of the accused in this case is hjs belief that the law ought no t to have been ena cted. It matters not that his belief was a part of -his professed religion : it was still belief, and belief only. EEGINA V. WAGSTAFFE, 10 Cox C. C. 530 [1868]. The prisoners were indicted for the manslaughter of Lois Wagstafie, their child, by neglecting to provide for it proper medical attendance. The deceased child was very j-oung, and had been ill for some time. It had always been delicate, especially in the region of the lungs, and in its last illness, the defendants, instead of calling in a doctor, anointed it two or three times and prayed to the Lord. Defendants belonged to a sect calling themselves " Peculiar People,'' one of whose tenets was not to call in a surgeon in cases of illness, but to trust to Providence. WiLLES, J., in summing up to the jury, said that in order to make out the offence of manslaughter in a case of this description, the proposi- tion to be established was that the prisoners had the charge of the child in question, who would from its tender age not be able to care for itself; CHAP. Y.J EE6INA V. WAGSTAPFE. 101 that they had the means of providing things reasonably fit for it, and that they were_g uilty of gros 8_aiid culpabl e negligence in not resorting to those means for its benefit, by lack of which its death was occasioned. The question was whether the jury were satisfied on the evidence that the child came by its death by the gross and culpable negligence of its parents, and that was a very wide question. If a pare nt had the means of supplyiag Ms child with food and were to keep it starving, eve n under a notion that he had some religious duty imposed upon him to starve it , an d if it could be made out that thatjwas_an^ i nsane and mo r-' bid beli efs e verybody •Vrould co me^ to the con clusion tha t there joust b e a convict ion, for all the re asoning in the world would not Justi fy a in an in starving a child to d eath. But when a jury had to consider what Was the precise medical treatment to be applied to a particular case, they got into a much higher latitude indeed. At different times people had come to different conclusions as to what might be done with a sick person. Two hundred years ago, if a child was afflicted with the king's evil, the popular feeling was, regardless of medical science, to have it touched with the royal hand, because that might result in efiect- ing a cure. Again, in some Catholic countries, a custom obtained of taking a child laboring under a disease to a particular shrine, under a belief that that was the best course to adopt with a view to effect a cure. In such cases a man miglit be convicted of manslaughter because he lived in a place where all the community' was of a contrary opinion, and in another he might be acquitted because they were all of his opinion. There was a very great difference between neglecting a child in respect to food, with regard to which there could be but one opinion, and neg- lect of medical treatment, as to which there might be many opinions. If a man did his best according to his knowledge with respect to food, it would be for a jury to consider whether they would stamp his conduct with the imputation of gross and culpable negligence. An opinion might be so absurd in itself that it c ould not have been hoiiestly ob - tainea, and when that w as The caie, of course all prete ncg_of having acte3~forthe best,nbecausetiiat was considered to be a matter of faith, would be removed from the case. But in the case of an opinion merely put forward as a blind or a screen for misconduct, of course the good sense of a jury would treat it as if no such belief was suggested. He thought it right to read, or rather to remind the jury of, the text in the last chapter of the General Epistle of St. James, on which the views of persons like the defendants were founded: " Is any sick among you? let him call for the elders of the church ; and let them pray over him, anointing him with oil in the name of the Lord ; and the prayer of faith shall save the sick, and the Lord shall raise him up ; and if he have committed sins, they shall be forgiven him." It was only right to refer 102 CASES ON CRIMINAL LAW. [CHAP. V. to that, and he thought he might go so far as to saj- the construction put upon that verse by the prisoners — and he spoke with profound respect for any belief honestly entertained in religious matters — was as sensible and reasonable as supposing a man broke his leg it would be absurd to call in the elders of the church and anoint with oil. Was it intended by God Almighty that persons should content themselves by praying for his assistance without helping themselves, or resorting to such means as were within their reach for that purpose ? He stated the case of a man breaking his leg. He did not believe the prisoners held dishonestly the belief they professed. The jury had evidence on that subject, and he thought they would be of opinion that they did not act with any dishonesty- in the matter. He thought, on the contrary, this was a case where affectionate parents had done what thej' thought the best for a child, and had given it the best of food. REGINA V. DOWNES, 13 Cox C. C. Ill [1875]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of this Court by Blackburn, J. 1. The prisoner was indicted at the Central Criminal Court for the manslaughter of Charles Downes. 2. It appeared on the trial before me by the evidence that Charles Downes was an infant who at the time of bis death was a little more than two j'ears old. The child had been ill and wasting away for eight or nine months before its death. The prisoner, who resided at Woolwich, was the father of the deceased, and had during the whole of this time the custody of the child. 3. The prisoner was one of a sect who called themselves "The Peculiar People." 4. During the whole period of the child's illness he did not procure any skilled advice as to the treatment of the child, but left it to the charge of women who belonged to his sect, and called in at intervals George Hurrj', an engine driver, who prayed over the child, and anointed it with oil. 5. The reason of this course of conduct was explained by George Hurry, who was called as a witness. 6. He stated that the Peculiar People never call in medical advice or give medicines in case of sickness. They had religious objections to doing so. They called in the elders of the church, who prayed over CHAP. V.j EEGINA V. DOWNES. 103 the sick person, anointing him with oil in the name of the Lord. This he said they did in literal compliance with the directions in the 14th and 15th verses of the fifth chapter of the Epistle of St. James, and in hope that the cure would follow. Coleridge, C. J. I think that this conviction should be affirmed. For my own part, but for the statute 31 & 32 Vict. c. 122, § 37, I should have much doubt about this case, and should have desired it to be further argued and considered. Perhaps it is enough to say that the opinions of Willes, J., and Pigott, B., are deserving of grave con- sideration. The Statute 31 & 32 Vict. c. 122, § 37, however, is a strong argument in favor of the conviction. By that enactment it is made an offence punishable summarily if any parent wilfully neglects to provide {inter alia) medical aid for his child being in his custody under the age of fourteen j-ears, wherebyiJthe__health_of such child shall have been or shall be likely to be seriously injured. That enactmen t I understand to mean that if any parent intentimiaJIyi ■»' " , w'*^>^ ^^■'' knowledge that medical aid is to be obtain ed, and with a deliberate in- tention abstains from providing it, he is guilt y of ^^ offence. Under that enactment upon tbese facts the prisoner would clearly have been guilty of the offence created by it. If the death of a person results from the culpable omission of a breach of duty created by the law, the death so caused is the subject of manslaughter. In this case there was a duty imposed by the statute on th ejirisoner to provide medical. aid fcr Iiis inlaiiLiihild, and there was the deliberate intention not to obe5' the law, — whether proceedi ng from a good o r bad motive is not ma- terial. The necessary ingredient to constitute the crime of man- slaughter existed, therefore, in this case, and for that reason this conviction ought to be affirmed. Bramwell, B. I am of the same opinion. The 31 & 32 Vict. c. 122, § 37, has imposed a positive and absolute duty on parents, whatever their conscientious or superstitious opinions rsi&y be, to provide medical aid for their infant children in their custody. The facts show that the prisoner thought it was irreligious to call in medical aid, but that is no excuse for not obejing the law. [Mellor, J.], Grove, J., and Pollock, B., concurred. Conviction ajjirmed.^ 1 [As to the common-law liability for neglect, see Regina v. Friend, Kuss. & Ry. C. C. 20 ; Eegina v. Conde, 10 Cox C. C. 547 ; Rex v. NichoUs, 13 Cox C. C. 75.] 104 CASES ON CRIMINAL LAW. [CHAP. VI. CHAPTER VI. The Mental Element in Crime. Weongtul Intent, but no Intent to do the Specific Act. COMMONWEALTH v. MINK, 123 Mass. 422 [1877]. Indictment for the murder of Charles Rickcr at Lowell, in the County of Middlesex, on August 31, 1876. Trial before Ames and Morton, JJ., who allowed a bill of exceptions in substance as follows : — It was proved that Charles Ricker came to his death by a shot from a pistol in the hand of the defendant. The defendant introduced evi- dence tending to show that she had been engaged to be married to Ricker ; that an interview was had between them at her room, in the course of which he expressed his intention to break off the engagement and abandon her entirelj' ; that she thereupon went to her trunk, took a pistol from it, and attempted to use it upon herself, with the in- tention of taking her own life ; that Ricker then seized her to prevent ' her from accomplishing that purpose, and a struggle ensued between them ; and that in the struggle the pistol was accidentally discharged, and in that way the fatal wound inflicted upon him. The jury were instructed on this point as follows: " If you believe the defendant's story, and that she did put the pistol to her head with the intention of committing suicide, she was about to do a criminal and unlawful act, and that which she had no right to do. It is true, un- doubtedly, that suicide cannot be punished by any proceeding of the courts for the reason that the person who kills himself has placed him- self beyond the reach of justice and nothing can be done. But the law nevertheless recognizes suicide as a criminal act, and the attempt at suicide is also criminal. It would be the duty of anj' bystander who saw such an attempt about to be made, as a matter of mere humanity, to interfere and try to prevent it. And the rule is, that if a homicide is_produced by the doing ofjii u nlawful a ct, a lthough the killing was thelast thing that the person about t'0,.'i^" 't had 'i n his m ind, it would be an unlawful killingTand the person would incur the responsibility which attaches to the crime of manslaughter. CHAP. VI.] EEGTNA V. FRANKLIN. 105 Gray, C. J. The life of every human being is under the protection of the law and cannot be lawfully taken by himself or by another with his consent except by legal authority. By the common law of Eng- land suicide was considered a crime against the laws of God and man, the lands and chattels of the criminal were forfeited to the King, his body had an ignominious burial in the highway, and he was deemed a murderer of himself and a felon, felo de se. Since it has been provided by statute that " any crime punishable by- death or imprisonment in the State prison is a felony and no other crime shall be so considered," it may well be t hat suicide is not technically a fel ony in this Comm onwealth. Gen. Sts. c. 168, § 1 ; St. 1852, c. 37, § 1. But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlaw ful and crimi nal. Every one has the same right and duty to interpose to .save a life from being so unlawfully and criminally taken that he would have to defeat an attempt unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV. 45, pi. 10 ; Marler v. Ayliffe, Cro. Jac. 134 ; 2 Rol. Abb. 559 ; 1 Hawk. c. 60, § 23. And it is not disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide and at the least of manslaughter. The only doubt that we have entertained in this case is whether the act of the defendant in attempting to kill herself was not so malicious, in the legal sense, as to make the killing of another person in the at- temp t to carry out her purpose mur der, and whether the instructions' given to the jury were not therefore too favorable to the defendant. Exceptions overruled. REGINA V. FRANKLIN, 15 Cox C. C. 163. Charles Harris Franklin was indicted before Field, J., at Lewes for the manslaughter of Craven Patrick Trenchard. The facts were as follows : — On the morning of the 25th day of Jul}', 1882, the deceased was bathing in the sea from the West Pier, at Brighton, and swimming in the deep water around it. The prisoner took up a good-sized box from the refreshment stall on the pier and wantonly threw it into the sea. Unfortunately the box struck the deceased, C. P. Trenchard, who was at that moment swimming underneath, and so caused his death. 106 CASES ON CEIMINAL LAW. [CHAP. VI. Gore, for the prosecution, urged that it would, apart from the question of negligence, be sufficient to constitute the offence of man- slaughter that the act done by the prisoner was an unlawful act, which the facts clearly showed it to be. Field, J. I am of opinion that the case must go to the jury upon the broad ground of negligence and not upon the narrow ground p ro- posed by t he learned counsel, because it seems to me . . . that the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case. I have a great abhorrence of constructive crime . . . The civil wrong against the refreshment-stall keeper is immaterial to this charge of manslaughter. It was not disputed that the prisoner threw the box over the pier, that the box fell upon the boy, and the death of the boy was caused bj' the box falling upon him. Field, J., in summing up the case to the jury, went carefully through the evidence, pointing out how the facts as admitted and proved affected the prisoner upon the legal question as he had ex- plained it to them. The jury returned a verdict of guiltj- of manslaughter. REGINA V. FAULKNER, 13 Cox C. C. 550 [1877]. COURT OF CROWN CASES RESERVED. (IRELAND.) Case reserved by Lawson, J., at the Cork Summer Assizes, 1876, the prisoner was indicted for setting fire to the ship " Zemindar," on the high seas, on the 26th day of June, 1876. The indictment was as fol- lows : " That Robert Faulkner, on the 26th day of June, 1876, on board a certain ship called the 'Zemindar,' the property of Sandback, Tenne, & Co., on a certain voyage on the high seas, then being on the high seas, feloniously, unlawfullj', and maliciously, did set fire to the said ship ' with intent thereby to prejudice the said ' (these words were struck out at the trial by the learned judge, and the following words inserted, ' called the " Zemindar," the property of) Sandback, Tenne, & Co., and that the said Robert Faulkner, on the day and year afore- said, on board a certain ship called the ' Zemindar,' being the property CHAP. VI.] EEGINA V. FAULKNER. 107 of Sandback, Parker and others, on a certain voj'age on the high seas, then being upon the high seas, feloniously, unlawfuUj', and maliciously did set fire to the said ship, with intent thereby to prejudice the said Sandback, Parker, and other, the owners of certain goods and chattels then laden, and being on, board said ship." It was proved that the " Zemindar" was on her vo3'age home with a cargo of rum, sugar, and cottou, worth £50,000 ; that the prisoner was a seaman on board ; that he went into the forecastle hold, opened the sliding door in the bulk head, and so got into the hold where the rum was stored ; he had no business ther^, and no authority to go there, and went for the pur- pose of stealing some rum ; that he bored a hole in the cask with a gim- let ; that the rum ran out; that when trying to put a spile in the hole out of which the rum was running, he had a lighted match in his hand ; that the rum caught fire ; that the prisoner himself was burned on the arms and neck ; and that the ship caught fire and was completely destroyed. At the close of the case for the Crown, counsel for the prisoner asked for a direction of an acquittal on the ground that on the facts proved the indictment was not sustained, nor the allegation that the prisoner had unlawfully and maliciously set Are to the ship proved. The Crown contended that inasmuch as the prisoner was at the time engaged in the commission of a felony, the indictment was sustained, and the alle- gation of the intent was immaterial. At the second hearing of the case before the Court for Crown Cases Reserved, the learned judge made the addition of the following para- graph to the case stated b}' him for the court. " It was conceded that the prisoner had no actual intention of burn- ing the vessel, and I was not asked to leave any question to the jury as to the prisoner's knowing the probable consequences of his act, or as to Lis reckless conduct." The learned judge told the jury that although the prisoner had no actufil intention of burning the vessel, still if they found he was engaged in stealing the rum, and that the fire took place in the manner above stated, the^' ought to find him guilty. The jury found the prisoner guilty on both counts, and he was sentenced to seven years penal servi- tude. The question for the court was whether the direction of the learned judge was right ; if not, the conviction should be quashed. O'Brien, J. I am also of opinion that the conviction should be quashed, and I was of that opinion before the case for our consideration was amended by my brother Lawson. I had inferred from the original case that his direction to the jury was to the effect now expressly stated by amendment, and that, at the trial, the Crown's counsel conceded that the prisoner had no intention of burning the vessel or of igniting 108 CASES ON CRIMINAL LAW. [CHAP. VI. the rum, and raised no questions as to the prisoner's imagining or having any ground for supposing that the fire would be the result or consequence of his act in stealing the rum. With respect to Eegina V. Pembliton (12 Cox C. C. 607), it appears to me there were much stronger grounds in that case for upholding the conviction than exist in the case before us. In that case the breaking of the window was the act of the prisoner. He threw the stone that broke it ; he threw it with the unlawful intent of striking some one of the crowd about, and the break- ing of the window was the direct and immediate result of his act. And jet the Court unanimously quashed the conviction upon the ground that, although the prisoner threw the stone intending to strike some one or more persons, he did not intend to break the window. The courts above have intimated their opinion that if the jury (upon a question to that effect being left to them) had found that the prisoner, knowing the window was there, might have reasonably expected that the result of his act would be the breaking of the window, that then the conviction should be upheld. During the argument of this case the Crown coun- sel required us to assume that the jury found their verdict upon the ground that in their opinion the prisoner may have expected that the fire would be the consequence of his act in stealing the rum, but never- theless did the act recklessly, not caring whether the fire took place or not. But at the trial there was not even a suggestion of any such ground, and we cannot assume that the jury formed an opinion which there was no evidence to sustain, and which would be altogether incon- sistent with the circumstances under which the fire took place. The reasonable inference from the evidence is that the prisoner lighted the match for the purpose of putting the spile in the hole to stop the fur- ther running of the rum, and that while he was attempting to do so the rum came in contact with the lighted match and took fire. The re- cent case of Regina v. Welch (13 Cox C. C. 121) , has been also referred to, and has been relied on by the Crown counsel on the ground that, though the jury found that the prisoner did not in fact intend to kill, maim, or wound the mare that had died from the injury inflicted by the prisoner, the prisoner was nevertheless convicted on an indictment charging him with having unlawfully and maliciously killed, maimed, or wounded the mare, and such conviction was upheld by the Court. But on referring to the circumstances of that case it will be seen that the decision in it does not in any way conflict with that in the previous case of Regina v. Pembliton, and furnishes no ground for sustaining the present conviction. Mr. Justice Lindley, who tried that subsequent case, appears to have acted in accordance with the opinion expressed by the judges in Regina v. Pembliton. Besides leaving to the jury the question of prisoner's intent, he also left them a second question, namely, SECT. I.J COMMOKWEALTH V. NEWELL. 109 whether the prisoner, when he did the act complained of, knew that what he was doing would or might kill, maim, or wound the mare, and nevertheless did the act recklessly, and not caring whether the mare was injured or not. Tlie jury answered that second question in the affirma- tive. Their finding was clearly warranted by the evidence, and the con- viction was properly affirmed. Bv jhose two questions a distin c t.inn wa s taken betwe en the case of anact done b^i a party wit h the actual inte nt to cause the injury inflicted, and' ^e case of ^jui- Hct rlnnp. ^'y_fL_i;iS:''''y knowing or believing that it would or might cause such injurj-, but reckless of the result whether it did or did not. ]n the case ncivf before us th ere was n o^roundhwhatever for^ s ubmitting to the jury any q ues- tion as to the prisoner believing or supposing t h at the stealing o f_the r um would be attended with a res ult so accide ntal and so dangerous to himself. During the argument doubts were suggested as to the sound- ness of the decision in Regina v. Pembliton ; but in my opinion that case was rightly decided and should be followed. Its authority was not questioned in Regina v. Welch, in which the judges who constituted the Court were different from those who had decided Regina v. Pembli- ton, with the exception of Lord Coleridge, who delivered the judgments of the Court on both occasions. CHAPTER VII. Coupling op Act and Intent : Act with no sufficient Intent ; Intent with no sufficient Act. Section 1. Act with no sufficient Intent. COMMONWEALTH v. NEWELL, 7 Mass. 245 [1810]. The prisoners were indicted for feloniously and burglariously break- ing and entering the dwelling-house of Edward Dixon, of Boston, in the night of the 17th of August last, with the intent unlawfullj' and feloniously to assault the said Dixon and to cut off one of his ears, with an intention the said Dixon to maim and disfigure ; and after being so entered, for unlawfully and feloniously assaulting the said Dixon and cutting off his right ear, with intention him to maim and 110 CASES ON CRIMINAL LAW. [CHAP. VH, disfigure, with set purpose, and of their aforethought malice, against the peace and the form of the statutes in such case provided. The prisoners demurred to the indictment. Parsons, C. J. The objection to the indictment is that the facts therein found do not amount to felonj'. The hr^ akin g^ and enterinp; nf a dwelUng-hou se in the ni gh t is not b urglar y, nnless it \tPi rinnp yf \\h anintenfto co"mm it_a Jelony. This position the attornej'-general has not contested. The question for our decision then is, whether the cut- ting off the ear of Dixon, of set purpose and of mahce aforethought, with the intention to maim and disfigure him, is bj- our laws a felonj'; for if it be not a felonj', an intention to do it cannot be an intention to commit felony. By the ancient common law, mayhem was an injury of a particular nature, constituting a specific offence, the commission of which could be regularlj- averred by no circumlocution without the aid of the bar- barous verb mahemiare. It consisted in violently and unlawfully de- priving another of the use of a member proper for his defence in fight- ing, and was punished by a forfeit ure of m ember for member, m conse- quence of which forfeiture it was deemed a felony. If the sufferer sought this satisfaction, or rather revenge, his remedy was hy an ap- peal of mayhem ; and the sovereign punished this injurj' done to his subject b}- an indictment for a majhem ; and in both the appeal and indictment the oflTence must be alleged to have been committed feloniouslj'. This was the state of the common law, long before and at the time when our ancestors emigrated to this country, bringing with them but a very small part of the common law, defining crimes and their punish- ment. Mayhem w as_th£refore never deemedjjj'^them a^elonj;^_but^only an aggravated trespass^tjuynmon law ; and as such, the offender was answerable to the partj' injured in a civil action of trespass and to the government upon an_^Bdietment_foramisdemeianor ; and no statute provision, during the existence of the colonial and provisional char- ters, recognizes mayhem as a distinct offence from trespass or as constituting a specific felony. We are therefore obliged to consider mayhem as no felony bj' the common law adopted in this State. We are therefore satisfied that the offence described in the indict- ment is not a felony, either by our common law or by anj' statute. Pee Cceiam. Let judgment be entered that the indictment is bad, and let the prisoners be discharged. SECT. II.] EBGINA V. HENNAH. Ill REX V. KNIGHT, 2 East P. C. 510 [1782]. The prisoners were indicted for feloniously and burylarionsly hrp alr- ing and entering the dwelling-house of Mary Snelling at East Grin- stead, in the night of November 14, 1781, with intent to steal the goods of Leonard Hawkins, then and there being in the said dwelling- house. It appeared that L. Hawkins, being an excise officer, had seized seventeen bags of tea on the same month at a Mrs. Tilt's, in a shop entered in the name of Smith, as being there without a legal permit, and had removed the same to Mrs. Snelling's at East Grinstead, where Hawkins lodged. The tea, the witnesses said, they supposed to belong to Smith ; and that on the night of November 14 the prisoners and divers other persons broke open the house of Mary Snelling with intent to take this tea. It was not proved that Smith was in company with them ; but the witnesses swore that they supposed the fact was committed either in company with or bj' the procurement of Smith. The jury were directed to find the prisoners guilt}', on the point being reserved ; and being also directed to find as a fact with what intent the prisoners broke and entered the house. They found that they in - tended to take the goods on the beha lf "f J-fmit.h . In Easter term follow- ing all the judges held that the indictment was not supported, there being no intention to ste al, however outrageous the behavior of the prisoners was in thus endeavoring to get back the goods for Smith. Section 2. Intent with no sufficient act. EEGINA V. HENNAH. _ 13 Cox C. C. 547 [1877]. ^t. t-jLJIi/ t\ ^i' /i%^ /^••y K William Hennah was charged under 24 & 25 Vict. c. 180, § 24, with unlawfully and maliciously administering to Mary Ann Rowe " a poison," to wit, " a certain destructive or noxious thing " called can- tharides, with intent to injure, aggrieve, or annoy, at Mevagissey, on the 21st October, 1876. The prisoner was a shoemaker and the prosecutrix the daughter of a blacksmith, living just opposite each other in the same stree^t; and 112 CASES ON CRIMINAL LAW. [CHAP. VII. from the evidence it appeared that the prisoner spoke to her while talk- ing to another young woman at her father's door, and oflfered her a " broad fig,'' which she declined, but afterwards accepted, and he gave her two. Walking indoors she put a part of one into her mouth and offered the residue to her father, who observing something " glisten- ing " in it made an observation ; upon which she spat out what she had been chewing, and the father took the other fig to a chemist, who found some portion of a Spanish flj had been inserted into it. The father then went after the prisoner and accused him of applying this trick upon his daughter, saj'ing that it was " enough to poison the whole family." Prisoner at first denied, but afterwards came to the father's house to apologize and ask him to overlook it, saying that it was not intended for his daughter but another girl named Robins. In answer to counsel, the father said he did not know at the time what the nature or qualities of " Spanish fly " were, but he was suspicious of what appeared to he glistening, and he made subsequent inquiries. T. C. Browne produced the remaining fig, which was handed to him by the last witness. Mr. Mitchell, chemist of St. Austell, examined the fig, and found it to contain Spanish flj', weighing from a grain to a grain and a half, a quantity insuflflcient to produce any effect upon the human system. According to Dr. Taylor and other authorities, cantharides would not produce the effect popularly- supposed unless it was given in quantity sufficient to produce death. In cross-examination witness said there were other files besides Spanish fly that had the appearance of the one now produced. A fatal dose would amount to about. twenty-four grains. This being the evidence for the prosecution. Carter submitted there was no case to go to the jur^'. To sustain this indictment it must be shown that there had been a suflBcient quantitj' of the drug administered to cause the effect alleged to be desired, so that, whatever the intent was, it would not in law amount to administering a noxious thing if what was administered could produce no effect. Many substances were noxious or harmless, and depended for their consequences upon the quantity applied. CocKBUEN, C. J. What things would you name, Mr. Carter, as coming in that category-? Carter. I think, my Lord, I might mention opium, tobacco, and brandy or alcohol. There are many bon-bons and confectionery, for instance, that contain prussic acid, a deadly poison,, yet in such minute quantities as to be innoxious. CocKBUBN, C. J. I cannot help thinking that, supposing the thing SECT. II.] EEGINA V. HENNAH. 113 was not capable of doing mischief, if it were used for the purpose of doing mischief, then the person administering it must talie the conse- quences. There were three points for consideration. Did the prisoner administer the thing ? Was it a noxious thing ? Or was it administered, being a noxious thing, with the intent to injure or annoy? Carter. There must be both the power and intent to injure. There are many matters in law and fact (in questions of assault for instance) , that even where the intent was cleUr, if the power were wanting, it would not amount legally to an assault. After some further discussion his Lordship retired to consult with the learned judge. Sir H. Hawkins, in the other Court, upon the points raised, and after an absence of half an hour returned. CocKBDRN, C. J. Mj learned brother and I have given this case great attention. We feel it is a question of considerable importance, and we are of opinion that Mr. Carter's point is a good one and that the prisoner must be acquitted. The statute requires, in order to con- stitute an offence, that there shall have been the administration of a noxious thing, and we think, in order to make out an offence, the thing administered must be of such a character as to satisfy rigorously the requirement of the law, namely, that it must be a noxious thing. I think there must be a distinction between a thing onlj' noxious when given in excess and a thing which is a recognized poison and is known to be a thing noxious and pernicious in effect. . . . Upon the medical evidence before us, cantharides, or, as it is commonly' called, Spanish fly, is administered medicinally and in small quantities, and up to a certain extent is incapable of producing any effect. What is important to the present case is that the quantity' administered was incapable of producing any effect. The statute makes it an offence to administer, although not with the intention of taking life or of doing any serious bodil}' harm, any noxious thing with intent to cause injury or annoj'- ance. But unless the thing is a noxious thing in the quantitj' adminis- tered, it seems exceedinglj' difficult to say logicall}' there has been a noxious thing administered. The thing is not noxious in the form in which it has been taken ; it is not noxious in the degree or quantitj- in which it has been given and taken. We think, therefore, the indict- ment will not hold. It would be very different if the thing adminis- tered, as regards either its character or degree, were capable of doing mischief. But because it happens to fail in a particular instance from any collateral or unforeseen cause, owing may be to the vigor of the constitution of the person to whom it is administered or some cause of that description, if it was capable of doing mischief at all it would be within the statute. But here the quantity was incapable of doing any mischief, and therefore we shall not be justified, although it was 8 114 CASES ON CRIMINAL LAW. [CHAP. VIII. administered with the intent of producing inconvenience or annoyance, in saying that it is within the statute, seeing the thing is not, in the form administered, noxious. Therefore, under those circumstances the case is not made out against the prisoner and you are bound to find him ITot Guilty. 2a &-A.jj-i , ^»i... - ^ ' 7- CHAP. IX.] COMMONWEALTH V. 6EEBN. 117 CHAPTER IX. The Mental Element in Crime. Intent without Possibility of Success. COMMONWEALTH v. GREEN, 2 Pick. 380 [1824]. At May term, 1823, in the County of Hampden, the prisoner, an in- fant under the age of fourteen years, was convicted of an assault with intent to commit a rape. By the Court, Parker, C. J. , dissenting. The Court are of opinion that the verdict must stand and judgment be rendered on it. The law which regards infants under fourteen as incapable of committing rape was established in favorein vitcB, and ought not to be applied by analogy to an inferior offence, the commission of which is not punished with death. A minor of fourteen years of age, or just under, is capa- ble of that kind of force which constitutes an essential ingredient in the crime of rape, and he may make an assault with an intent to commit that crime, although by an artificial rule he is not punishable for the crime itself. An intention to do an act does not necessarily imply an ability to do it ; as a man who is emasculated may use force with in- tent to ravish, although possibl^r, if a certain effect should be now as it was formerly held essential to the crime, he could not be convicted of a rape. Females might be in as much danger from precocious boys as from men, if such boys are to escape with impunity from felonious as- saults, as well as from the felony itself.'' Motion overruled. 1 [See Commonwealth v. MaoDonald, 6 Cush. 365 ; Begina v. Collins, 9 Cox C. C. 497 ; Eegina u. Gamble, 10 Cox C. C. 545 ; Eegina v. Brown, 38 W. E. 95 ; State v. Wilson, 30 Conn. 505.] 2- P/-. <°r-. /^^ , / ) CASES ON CRIMINAL LAW. [CHAP. XIV. CHAPTER XIV. Criminal Liability. Contributory Guilt or Negligence. Section 1. Contributorf Guilt. REGINA V. HUDSON, et al., 8 Cox C. C. 305 [I860]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of this court, by J. B. Maule, Esq., barrister-at-law, sitting as Deputj' for the Recorder of York. At the Epiphanj' Sessions, 1860, held for the city of York, the pris- oners were jointly indicted and tried before me upon an indictment, the two first counts of which charged them with an offence under the 8 & 9 Vict. c. 109, as follows : — First count charged " That on the 18th November, 1859, by fraud, unlawful device, and ill practice in plaj'ing at a certain game or sport, to wit, in and by a wager with one Abraham Rhodes, whether a certain pencil-case had a pen in it or not, unlawfully- and fraudulently' they did win from the said Abraham Rhodes, to a certain person to the jurors unknown, a certain sum of monej", to wit, £2 10s. of the money of the said A. Rhodes, and so did then and thereby unlawfully obtain such mone}^ from the said A. Rhodes by a false pretence, to wit, by the fraud, unlawful device, and ill practice aforesaid, with intent then to cheat and defraud the said A. Rhodes of the same, against the form of the statute in such case made and provided," etc. The second count charged the prisoners that they unlawfully and fraudulentl)' did combine, confederate, and conspire together, and with divers other persons to the jurors unknown, by fraud, unlawful device, and ill practice in playing at a certain game or sport, and by divers other fraudulent devices and false pretences, unlawfully to win from the said A. Rhodes a certain sum of mone^-, to wit, the sum of £2 10s. of the money of the said A. Rhodes, and so then and thereby unlawfully to obtain from the said A. Rhodes the said sum of money in this count mentioned, by a false pretence, with intent then to cheat and defraud the said A. Rhodes of the same, against the form of the statute, etc. SECT. I.J EEGINA V. HUDSON, ET AL. 143 Third count. The prisoners were charged with a conspiracy to cheat in the following form : — "That they unlawfully and fraudulently did combine, confederate, and conspire together with divers other persons to the jurors unknown, by divers unlawful and fraudulent devices and contrivances, and by divers false pretences, unlawfully to obtain from the said A. Rhodes the sum of £2 10«. of the monej' of the said A. Rhodes, and unlaw- fully to cheat and defraud the said A. Rhodes of the same, against the peace, etc. The evidence disclosed that the three prisoners were in a public- house together with the prosecutor, Abraham Rhodes, and that in con- cert with the other two prisoners, the prisoner John Dewhirst placed a pen-case on the table in the room where they were assembled and left the room to get writing-paper. While he was absent the other two prisoners, Samuel Hudson and John Smith, were the onl3- persons left drinking with the prosecutor ; and Hudson then took up the pen-case and took out the pen from it, placing a pin in the place of it, and put the pen that he had taken out under the bottom of the prosecutor's drinking-glass ; and Hudson then proposed to the prosecutor to bet the prisoner Dewhirst when he returned that there was no pen in the pen- case. The prosecutor was induced by Hudson and Smith to stake 50s. in a bet with Dewhirst upon his returning into the room, that there was no pen in the pen-case ; which money the prosecutor placed on the table, and Hudson snatched up to hold. The pen-ease was then turned up into the prosecutor's hand, and another pen with the pin fell into his hand, and then the prisoners took his money. Upon this evidence it was objected, on behalf of the prisoners, that no offence within the meaning of the 8 & 9 Vict. c. 109, was proved by it, and that the facts proved in evidence did not amount to the offence charged in the third count. , I thought the objection well founded as to the offence under the 8 & 9 Vict. c. 109, but held that the facts in evidence amounted to the offence charged in the third count, and directed the jury to return a separate verdict on each count, a case having been asked for by the prisoners' counsel, for the consideration of the Court for Crown Cases Reserved. The jury returned a verdict of guilty on each of the three counts. The prisoners were sentenced to eight months' imprisonment and. committed to prison for want of sufficient sureties. If the Court for the consideration of Crown Cases Reserved shall be of opinion that the above facts in evidence constituted in law any one of the offences charged in the indictment and was evidence to go to 144 CASES ON CRIMINAL LAW. [CHAP. XIV, the jury in support thereof, the verdict is to stand for such of the counts in which the offence is laid to which the evidence applies. Price for the prisoners. It is submitted that the prisoners have not been guilty- of an}' of the offences charged in the several counts of the indictment. The first two counts of the indictment are framed upon the Games and Wagers Act, 8 & 9 Vict. c. 109, § 17, which enacts : "That ever}' person who shall by any fraud, or unlawful device, or ill practice in plajing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of anj- game, sport, pastime, or exercise, win from any other person to himself, or any other or others, anj' sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence with intent to cheat or defraud such person of the same, and being convicted thereof shall be punished accordingly." The object of that provision was not to meet a case like the present. Sects. 8 and 15 show that the provision was directed to the ordinar}- games pla3'ed at common gaming-houses, and not against tricks like the one in this case. Pollock, C. B. You maj' confine your argument to the offence charged in the third count. Price. As to the third count, to sustain that the evidence should have shown such a false pretence as per se would constitute the ordi- nary misdemeanor of false pretences. Pollock, C. B. Why so? This is a count for conspiracy to cheat. Price. Yes, by false pretences. Channell, B. If the count had said merely to conspire and had omitted the words " by false pretences," it would have been good. Blackburn, J. Here the prisoners cheated the prosecutor into the belief that he was going to cheat, when in fact he was to be cheated. Price. This is a mere private deceit not concerning the public, which the criminal law does not regard, but is a deceit against which common prudence might be guarded. There is no evidence of any in- dictable combination to cheat and defraud. Channell, B. If two persons conspire to puff up the qualities of a horse and thereby secure an exorbitant price for it, that is a crimi- nal offence. Price. That affects the public. At the trial the present case was likened to that of Eex v. Barnard (7 C. & P. 784), where a person at Oxford, who was not a member of the university, went for the purpose of fraud, wearing a commoner's gown and cap, and obtained goods. This was held a suflScient false pretence. The present case, however, was nothing more than a bet on a question of fact, which the prosecu- SECT. I.] THE QUEEN V. . 145 tor might have satisfied himself of by looking at the pencil-ease. It is more like an ordinary conjuring-trick. Besides, here the prosecutor himself intended to cheat one of the prisoners by the bet. No counsel appeared for the prosecution. Pollock, C. B. We are all of opinion that the conviction on the third count is good and ought to be supported. The count is in the usual form, and it is not necessary that thfe words "false pretences" stated in it should be understood in the technical sense contended for by Mr. Price. There is abundant evidence of a conspiracj' by the pris- oners to cheat the prosecutor, and though one of the ingredients in the case is that the prosecutor himself intended to cheat one of the prison- ers, that does not prevent the prisoners from liability to be prosecuted upon this indictment. Conviction affirmed. THE QUEEN v. , 1 Cox C. C. 250 [1845]. The defendant was indicted for uttering counterfeit coin. Evidence was adduced to show that he had given a counterfeit sovereign to a girl with whom be had had intercourse. . £odkin, in opening the case for the prosecution, referred to R. v. Page (8 C. & P. 122), in which Lord Abinger ruled that the giving a piece of counterfeit money away in chainty was not an uttering within the 2 Wm. IV. c. 34, § 7, although the person giving knew it to be coun- terfeit, as there must be some intention to defraud. The learned coun- sel contended that the present case was clearly distinguishable, even supposing that to be the law, and he apprehended that the question for the jury would be, whether the coin had been passed with a knowl- edge of its being counterfeit and with the intention of putting it into circulation. Lord Denman, C. J. {in summing up). As to the law of this case, mj' learned brother (Coltman, J.) and myself are clearly- of opinion that if the defendant gave the coin to the woman under the circumstances stated, knowing it to be counterfeit, he is guiltj' of the offence charged. We do not consider the decision of Lord Abinger to be in point ; that was a case of charity ; at the same time we have great doubts as to the correctness of that ruling, and if a similar case were to arise we should reserve the point. 10 146 CASES ON CRIMINAL LAW. [CHAP. XIV. COMMONWEALTH v. MOREILL, 8 CusH. 571 [1851]. This was an indictment which alleged that the defendants, Samuel G. Morrill and John M. Hodgdon, on the 17th of September, 1850, at Newbur3'port, " devising and intending one James Lj-nch bj' false pre- tences to cheat and defraud of his goods, did then and there unlawfuUj-, knowingly, and designedlj' falselj- pretend and represent to said Lynch that a certain watch which said Morrill then and there had, and which said Morrill and Hodgdon then and there proposed and offered to ex- change with said Lj'nch for two other watches belonging to said Lynch, was a gold watch of eighteen carats fine and was of great value, to wit, of the value of eighty dollars ; and the said Lynch, then and there believing the said false pretences and representations so made as afore- said by said Morrill and Hodgdon, and being deceived thereb3', was induced by reason of the false pretences and representations so made as aforesaid to deliver, and did then and there deliver, to the said Morrill the two watches aforesaid, belonging to said Lynch, and of the value of twenty- dollars, and the said Morrill and Hodgdon did then and there receive and obtain the two said watches, the property of said Lynch, as aforesaid, in exchange for the said watch, so represented as a gold watch as aforesaid, b}' means of the false pretences and repre- sentations aforesaid, and with intent to cheat and defraud the said L^'nch of his said two watches, as aforesaid ; whereas in truth and in fact said watch so represented by said Morrill and Hodgdon as a gold watch, eighteen carats fine, and of the value of eighty dollars, was not then and there a gold watch, and was not then and there eighteen carats fine, and was then and there of trifling value," etc. At the trial in the Court of Common Pleas, before Hoar, J., it ap- peared in evidence that Lynch represented his watches, one of which was of silver and the other of j-ellow metal, as worth fifty dollars ; and on the testimony of the onl}^ witness for the Commonwealth, who was a judge of the value of watches, they were worth not exceeding fifteen dollars. Lynch testified that his silver watch cost him fifteen dollars ; that he received the other in exchange for two, which cost him respec- tively seven dollars and thirteen dollars ; and that he believed it to be worth thirt3' dollars. The defendant requested the presiding judge to instruct the jury that if Lynch's watches were not worth fifty dollars, or some considerable part of that sum, but were of merely trifling value, this indictment SECT. I.] COMMONWEALTH V. MOBEILL. 147 could not be maintained. But the judge instructed the jury that if they supposed that each of the parties was endeavoring to defraud the other, and Lj'nch knew that his watches were of little value, the jury shouldn ot convict the defendants merely because they had the best of the bargain ; but that if the defendants made the false representations charged in the indictment, with the intent to defraud, knowing them to be false, and they were such as would mislead and deceive a man of ordinary prudence, and^Lynch^byreason of the j;epresentations, and trusting in them, parted with his property and was defrauded, it was not necessary to show that he was defrauded to the extent charged in the indictment, provided he in good faith parted with property- which he believed to be valuable, and was defrauded to any substantial amount, for example, to the amount of five dollars ; and that the de- fendants might be convicted, although, from the mistake of Lj-nch in over-estimating his property, he might not have been cheated to so great an extent as he at the time supposed. The jury found the defendants guilty, who thereupon moved in arrest of judgment, on the ground that the indictment was insufficient ; and this motion being overruled, thej' alleged exceptions to the order of the court, overruling the same, and also to the instructions aforesaid. Dewet, J. The exceptions taken to the instructions of the presiding judge cannot be sustained. If it were true that the party, from whom the defendants obtained goods by false pretences, also made false p re- tences as to his goods, which he exchanged with the defendantSj__that would be ncrjustification"foFthe defendants, when put on trial upon an indicttnent charging them with obtaining goods by false pretences, knowingly' and designedly' in violation of a statute of this Common- wealth. Whetlier the alleged misrepresentation of Lynch, being a mere representation as to the value or worth of a certain watch and an opinion rather than a statement of a fact, would be such false pretence as would render him amenable to punishment under this statute, might be questionable; but supposin g tliat to be otherwise and it should appear that Lynch hart also"violated the statute, that woul d not justify the defendants. If the other party has also subjected himself to a prosecution for a like offence, he also maj' be punished. This would be much better than that both should escape punishment because each deserved it equally. 148 CASES ON CKIMINAL LAW. [CHAP. XIV. McCOED V. THE PEOPLE, 46 N. Y. 470 [1871]. Eeeor to the General Term of the Supreme Court in the first depart- ment to review judgment, affirming judgment of the Court of General Sessions in and for the County of New York, convicting the plaintiff in error upon an indictment for false pretences. The plaintiff in error, Henr}' McCord, was tried and convicted in the Court of General Sessions of the Peace, in and for the County of New York at the June term, 1870, upon an indictment charging in sub- stance that with intent to cheat and defraud one Charles C. Miller, he falsely and fraudulently represented, — " That he, the said Henry MoCord, was an officer attached to the bu- reau of Captain John Young's department of detectives, and that he had a warrant issued by Justice Hogan, one of the police justices of the citj^ of New York, at the complaint of one Henry Brinker, charging the saM Ch^es G.Millgr_with a criminal oflfence and for his arrest; and_thyi_Jhe_said Henry Brinker had promisedhjm, Jhe^ saidJHenry McCord, $200 for the arrest^of him^the saidjQharleaJCLMiller." I And that said Miller, believing such false representations, was in- duced to and did deliver to McCord a gold watch and a diamond ring. Pek Curiam. If the prosecutor parted with his propert}- upon the representations set forth in the indictment, it must have been for some unlawful purpose, a purpose not warranted bj' law. There was no legitimate purpose to be attained by delivering the goods to the ac- cused upon the statements made and alleged as an inducement to the act. What action by the plaintiff in error was promised or expected in return for the property given is not disclosed. But whatever it was, it was necessarily inconsistent with bis duties as an officer having a crim- inal warrant for the arrest of the prosecutor, which was the character he assumed. The false representation of the accused was that he was an officer and had a criminal warrant for the prosecutor. There was no pretence of any agency for or connection with any person or of any authority to do any act save such as his duty as such pretended officer demanded. The prosecutor parted with his property as an inducement to a sup- posed officer to violate the law and his duties ; and if in attempting to do this he has been defrauded, the law will not punish his confederate, , although such confederate may have been instrumental in inducing the SECT. II.] EEGtNA V. BIRCHALL. 149 commission of the offence. Neither the law or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness as between each other in their dishonest practices. The design of the law is to protect those who, for some honest purpose, are induced upon false and fraudulent representations to give credit or part with their property to another, and not to pro- tect those who for unworthy or illegal purposes part with their goods. People V. "Williams, 4 Hill, 9 ; Same v. Stetson, 4 Barb. 151. The judgment of the Supreme Court and of the Sessions must be re- versed and judgment for the defendant. [Peckham, J., delivered a dissenting opinion.] ^ J-W^ . P-iH<^ jSfc^ CyA-i. 7.y^:3Z o^-n.Ff. Section 2. CoNXRiBtrTOKr Negligence. i^/T^f , y«-/, ^•2,r , / ?j\-. IB/. 3*f EEGINA V. BIKCHALL, 4 F. & F. 1087 [1866]. The prisoner was indicted for the manslaughter of William Wilson, at Sedbergh, on the 10th of January. It appeared that the prisoner was an engine-driver in the service of the London and North- Western Railwaj- Company, and on the occasion in question was driving his engine from Low Gill to Ingleton. Before him, on the same line of rails, was another engine with a van, the driver of which had received orders to stop at Sedbergh and Middleton for the purpose of taking up some workmen, and at Barton to connect some wagons. When they got to Barton, the engine was shunted on to a siding for the purpose of taking up the wagons, leaving the van containing the workmen standing on the main line. At this moment the prisoner's engine came in sight, and the men in the van, perceiving that it was approaching at such a pace that a collision was inevitable, all jumped out with the exception of Wilson and got safely away. For some unknown reason Wilson did not move and was killed in the collision whicli took place. Upon his examination before the magistrates, the prisoner stated that the injectors of his engine were out of order, and that, while attending to them, he had told his firemen to look out for signals. WiLLES, J., observed that the engine-driver's first duty was to attend to his engine ; and as the prisoner was engaged in so doing and had given directions to the fireman to look out for signals, the latter, 1 [See People [See Begina v. Davis, 15 Cox C, C. 174 ; Regina v. Holland, 2 M. & Rob. 351.] SECT. I.J EEGINA V. CHAMBERLAIN. 173 the patient runs some risk — than our English practitioners, who, he intimated, were rather more cautious in such cases. Another point on which the case turned was as to the prisoner not having warned the deceased of the necessary effect of the arsenic when absorbed into the system. It did not appear tliat he had given any particular directions beyond telling lier to " rub some of the ointment in ; " aiu Lthe woman , naturally thinking that the more she rubbed the better, had rubbed and rubbed~untit~"shg'ii ad"~a"bggi'bedr so muc h of the poison that shcTdTed ; and^the prisoner had sold her another box without, as it appeared, making any observation as to the effect of the first. Parry, Serjt., for the prisoner, contended that it was a case of a mere blunder or error, and not a case of negligence so culpable as to be criminal. Blackburn, J., to the jury. If the. prisoner by culpable negligence had caused the death of the deceased woman, he was guilty of man- slaughter ; but the mere fact that death had occurred through mistake or misfortune would not be enough, or no medical man would be safe. There must, however, be competent knowledge and care in dealing with a dangerous drug, and if the man either was ignorant of the nature of the drug he used or was guilty of gross want of care in its use, there would be criminal culpability. In the one case there would be culpable rashness in using so dangerous a drug in ignorance of its operation ; in the other case there would be culpable want of care or culpable carelessness in the use of the drug ; and in either case that would be culpable and criminal negligence, which would justify a conviction, supposing the jury were satisfied that the death arose from the arsenic. The first question was, whether the death was caused by the arsenic' administered by the prisoner ; upon which, however, he thought the | evidence very strong. The rea l question would be wh ether there was culgablejiegligence, which resolved itself into„the Jwo questions he had explained. He could noFdefine the nature of " culpable negligence '' otherwise than as he had described it. It was a question for the j urx^ for itwas a qiiestiniipf de grpiR. It was a question of more or less, and it could not be defined. All the direction he could give them was that if the prisoner administei'ed the arsenic without knowing o r faking tliR pa.in,ci to find out what its effect would b a. or if knowing this, he gave it to the patient to be used w ithout giving her adequate _dlrecti£ins-as jtoJts use, there would in either view of the case be culpable negligence, and the prisoner ought to be convicted ; but if otherwise, there would not be such negligence, and the prisoner ought to be acquitted. The most serious part of the case was in the apparent absence of caution or direc- tions to the woman as to the use of the arsenical ointment, the effect of which, as was well known, was that it would be absorbed into the system 174 CASES ON CRIMINAL LAW. [cHAP. XVIIL SO as to cause death. It was said that foreign doctors used it, but if so it might be presumed that they watched its use with care. It ap- peared to him that a medical man who should administer such a drug- or allow a patient to apply it without taking anj' care to observe its effects or guard against them, would be gravelj- wanting in due care. Whetlier under the circumstances it amounted to Culpable negligence was, he repeated, for the jury. Not guilty. EEGINA V. DOWNES, 1 Q. B. D. 28, ABOVE, p. 102. EEGINA V. FEANKLIN, 15 Cox C. C. 163, ABOVE, p. 105. EEGINA V. HUGHES, 7 Cox C. C. 301, ABOVE, p. 114. Section 2. — Intentional Killing, but with Qdalipting Circumstances. EEX V. THOMPSON, 1 Moody C. C. 80 [1825]. The prisoner was tried before Mr. Baron G arrow at the Winter Assizes at Maidstone, in the year 1825, upon an indictment which charged him, first, with maliciously stabbing and cutting Eichard Southerden, with intent to murder ; secondly, with intent to disable him ; and thirdlj-, with intent to do him some grievous bodilj' harm. On the trial it appeared that the prisoner, who was a journeyman shoemaker, on the 18th of November, 1824, applied to his master for some mone^', who refused to give it to him till he finished his work ; on his subsequently urging for money and his master refusing him, he be- came abusive, upon which his master threatened to send lor a constable. The prisoner refused to finish his work and said he would go upstairs and pack up his tools, and said no constable should stop him ; he came downstairs with his tools, and drew from the sleeve of his coat a naked knife, and said, he would do for the first bloodj- constable that offered to stop him ; that he was ready to die, and would have a life before he lost his own, and then making a twisting or flourishing motion with the knife, put it up his sleeve again, and left the shop. The master then applied to Southerden, the constable, to take the prisoner into custody ; he made no charge, but said he suspected he SECT. II.] REX V. THOMPSON. 175 had tools of his, and was leaving his work undone ; the constable said he would take him if the master would give him charge of him ; they then followed the prisoner to the yard of the Bull's Head Inn ; the pris- oner was in a public privy there as if he had occasion there. The privy had no door to it. The master said, "That is the man; I give you in charge of him." The constable then said to the prisoner, " My good fellow, your master gives me charge of 3'ou ; j'ou must go with me." The prisoner, without sa3-ing anything, presented a knife to the con- stable and stabbed him under the left breast ; he attempted to make a second, third, and fourth blow, which the constable panned off with his staff. The constable then aimed a blow at his head ; the prisoner then ran away With the knife and was afterwards secured. The surgeon described the wound as being two inches and a half in length and one quarter of an inch deep, and inflicted with a sharp in- strument like the knife produced. The knife appeared to have struck against one of the ribs and glanced off. Had the point of the knife in- sinuated itself between the ribs and entered the cavity of the chest, death would have inevitably been the consequence ; if it had struck two inches lower death would have ensued ; but the wound, as it happened, was not considered dangerous. The jury found the prisoner guilty, and sentence of death was passed upon him ; but the learned judge respited the execution and submitted the case for the consideration of the judges. In Hilary term, 1825, all the Judges (except Best, L. C. J., and Alexander, L. C. B., who were absent), met and considered this case. The majority of the Judges, viz., Abbott, L. C. J., Graham, B., Ba_yley, J., Park, J., Garrow, B., Hullock, B., Littledale, J., and Gaselee, J., held that as the actual arrest would have been illegal, the attempt to make it when the prisoner was in such a situation that he could not get away, and when the waiting to give notice might have enabled the constable to complete the arrest, was such a provocation, as i f deat h had ensued would have made the case manslaughter only, and that therefore the conviction was wrong. Holroyd, J., and Burrough, J., thought otherwise. 176 CASES ON CErMINAL LAW. [CHAP. XIX, CHAPTER XIX. Criminal Homicide. MUEDEK. Section 1. Malice aforethought ; Intention to kill, but Failure of specific Intention. SAUNDERS' CASE, 2 Plowd. 473 (14 Eliz.). It appears by the Record that John Saunders, late of Greneborough, in the County of Warwick, Husbandman, and Alexander Archer, late of Framton, in the said Count}-, Yeoman, were arraigned before the Justices upon an Indictment, for that the aforesaid John Saunders, the 20th Day of September, in the 14th Year of the Reign of the present Queen, with Force and Arms, <&c. at Greneborough, in the Count}' aforesaid, being_se^uced by the Instigation of_ the D evil, feloniously gave and ministered to one Eleanor Saunders, his Daughter, two Pieces of a roasted Apple mixed with Poison, called Arsenick and Moseacre, with an Intent that she might die by the Operation of the same Poison ; which said Eleanor, after the Receipt of the same Pieces of Apple so mixed with Poison aforesaid into her Bod}-, languished of the Poison and the Operation thereof from the aforesaid 20th Day of September, in the said 14th Year, unto the 22d Day of September then next following, on which said 22d Day of September she died of the Poison aforesaid : And that the aforesaid Alexander Archer before the Murder aforesaid by the said John Saunders in Form aforesaid perpetrated, viz. the 16th Day of Sep- tember m tlie said 14th Year, at (rreweSo^-OM^,^ aforesaid, feloniously procured and advised the said John Saunders to do and perpetrate the Murder aforesaid, against the Peace, &c. And upon their Arraign- ment they pleaded, not guilty, and a Jury was empanelled to try them. And upon their Examinations and the Evidence given (as I was credi- bly informed, for I was not present, and therefore what I here report is upon the Relation of the said Justices of Assize, and of the Clerk of Assize) the Truth of the Matter appeared to the Justices to be thus. The said John Saunders had a Wife whom he intended to kill, in order that he might marry another Woman with whom he was in Love, and he opened his Design to the said Alexander Archer, and SECT. I.] SAUNDERS' CASE. 177 desired his Assistance and Advice in the Execution of it, who advised him to put an End to her Life by Poison. Withjhis Intent the sairl Archerhou^tJhe_ Poison, viz. Arsenick and iZoseacre.-aodjieliKered it to the said John Saunders to giv e, Jt Jo_ his^ Vife, jJiQ- accordingly gavfitlo herrBeing sick, in a roasted Apple, and she ate a small Part of it, and gave the rest to the said Eleanor Saunders, an Infant, about three Years of Age, who was the Daughter of her and the said John Saunders her Husband. And the said John Saunders seeing it, blamed his Wife for it, and said that Apples were not good for such Infants ; to which his "Wife replied that they were better for such Infants than for herself: and the Daughter eat the poisoned Apple, and the said John Saunders, her Father, saw her eat it, and did not offer to take it from her, lest he should be suspected, and afterwards the Wife recovered, and the Daughter died of the said Poison. " "" "And whetheforno this was Murder in John Saunders, the Father, was somewhat doubted, for he had n o Intent to poison his Daugh ter, nor had he any Malice against her, but on the contrary he had a great Attection for her,"ari3~"lie~did not give her the Poison, but his Wife ignorantly gave it her, and although he might have taken it from the Daughter, and so have preserved her Life, j-et the not taking it from her did not make it Felonj', for it was all one whether he had been present or absent, as to this Point, inasmuch as he had no Malice against the Daughter, nor anj' Inclination to do her anj' Harm. But at last the said Justices, upon Consideration of the Matters, and with the Assent of Saunders, Chief Baron, who had the Examination of the said John Saunders before, and who had signified his Opinion to the said Justices (as he afterwards said to me) were of Opinion that the said Offence was Murder in the said John Saunders. And the Reason thereof (as the said Justices and the Chief Baron told me) was because the said John Saunders gave the Poison with an Intent to kill a Person, and in the giving of it he intended that Death shouldj follow. And when Death followed from his Act, although it happened in another Person than her whose Death he directly meditated, yet it shall be Murder in him, for he was the original Cause of the Death, and if such Death should not be punished in him, it would go unpun- ishe d ; for h ere th e Wife , wh o gave Jhe poisoned _Ap£le__to_Jaer Daughter, cannot be guilty of anj- jOffence, becausa she was. jgaorant'' of any Poison contained in it, and she innocently gave it to the Infant \>y Way of necessary Food, and therefore it is reasonable to adjudge her innocent in this Case, and to charge the Death of the Infant, by which the Queen has lost a S ubject, upon him who was the Cause of it, and who intended Death in the Act which occasioned the Death here. But if a Man prepares Poison, and lays it in several Parts of 12 178 CASES ON CRIMINAL LAW. [CHAP. XIX. his House, with an Intent to kill Rats and such Sort of Vermin, and a Person comes and eats it, and dies of it, thi s is not Felony in him who prepared and laid it there, becaus e he had j)q Inten t to kill any reasonable Creature. But when he lays the Poison with an Intent to kill some reasonable Creature, and another reasonable Creature, whom he does not intend to kill, is poisoned bj- it, such Death shall not be dispunishable, but he who prepared the Poison shall be punished for it, because his Intent was evil. And therefore it is eveixJSIan ls Busines s, to foresee what Wrong or Mischief n)aY_ha,ioi3e,n_frQnLj hat which he ^oes with an ill Intention, and it shall be no Excuse for him to say that he intended to kill another, and not the Person killed. For if a Man of Malice prepense shoots an Arrow at another with an Intent to kill him, and a Person to whom he bore no Malice is killed b}- it, this shall be Murder in him, for when he shot the Arrow he intended to kill, and inasmuch as he directed his Instrument of Death at one, and thereby has killed another, it shall be the same Offence in him as if he had killed the Person he aimed at, for the End of the Act shall be con- strued by the Beginning of it, andtlie last Part "shalTtaste of the first, and as ffie^eginning of the AetTiaTd Malice prepense in itTlind conse- quently imported Murder, so the End of the Act, viz. the killing of another, shall be in the same Degree, and therefore it shall be Murder, and not Homicide only. For if one lies in wait in a certain Place to kill a Pei'son, and another comes by the Place, and he who lies in wait kills him out of Mistake, thinking that he is the very Person whom he waited for, this Offence is Murder in him, and not Homicide only, for the killing was founded upon Malice prepense. So in the principal Case, when John Sounders of Malice prepense gave to his Wife the Instrument of Death, viz. the poisoned Apple, and this upon a subse- quent Accident killed his Daughter, whom he had no Intention to kill, this is the same Offence in hijm as if his .Act had met with the intended Effect,^ and his Intention in doing the Act was to commit Murder, wherefore the Event of it shall be Murder. And so the Justices de- clared their Opinions to the Jurors, whereupon thej^ found both the Prisoners guilty, and John Saunders had his Judgment and was hanged. But the most difficult Point in this Case, and upon which the Jus- tices conceived greater Doubt than upon the Offence of the Principal, was, whether or no Archer should be adjudged Accessary to the Mur- der. For the Offence which Archer committed was the Aid and Advice whielihej;ave to Saunders, and that T\;as only to killbisJ W"ife, and no other, for there was no parol Communication between them concerning the Daughter, and although by the Consequences which followed from the giving of the Poison by Saunders the Principal, it so happened SECT. I.] SAUNDERS' CASE. 179 that the Daughter was killed, yet Archer did not precisely procure her Death, nor advise him to kill her, and therefore whether or no he should be Accessary to this Murder which happened by a Thing conse- quential to the first Act, seemed to them to be doubtful. For which Reason they thought proper to advise and consider of it until the next Gaol Delivery, and in the mean time to consult with the Justices in the Term. And thereupon it was entered thus in the Eecord, viz. And because the aforesaid Justices here will advise themsdves of and upon the Premisses, before they give Judgment thereoji against the afore- said Alexander, Day is given to tlis aforesaid Alexander here until next, &c. And in the mean time he is sent back to the Oaol aforesaid, in the Custody of the Sheriff of the County aforesaid, there to tarry and be safely kept until next, &c. on the Peril that shall fall thereon, &c. And at the next Gaol-delivery the Matter was respited until the next afterwards, and so from Session to Session until this present Term of St. Hillary, Anno 1575, at which Time, upon Conference before had with the Justices of both Benches, they were agreed that they ought not to give Judgment against the said Alexander Archer, because they took the Law to be that he could not be adjudged Acces- sary to the said Offence of Murder, for that he did not assent that the Daughter should be poisoned, but only that the Wife should be pois-, oned, which Assent cannot be drawn further than he gave it, for the poisoning of the Daughter is a distinct Thing from that to which he was privy, and therefore he shall not be adjudged Accessary to it ; and so they were resolved before this Time. And although they were so agreed, yet, rather than make a Precedent of it, they reprieved him from one Session to another for divers Sessions, to the Intent that he might purchase his Pardon, and by that Means be set at Liberty. And this the Lord Dyer told me, to whom I shewed this Report this present Hillary Term, Anno 18 Miz. and he approved of it, as did also Ser- jeant Barham, to whom I shewed it. Note, it seems to me reasonable that he who advises or commands an unlawful Tiling to be done shall be adjudged Accessary to all that follows from tliat same Thing, but n ot from any other dj^tmctjlliing. As if I command a Man to rob such a one, and he attempts to rob him, and the other defends himself, and a Comba t^ensues bet ween them, and the Person attempted to be robbed is kilfedTl shall be Accessary to this Murder, because when he attempted to rob him,~he pursued my Command, and then when he pursued my Command, and in the Execu- tion thereof another Thing happened, I ought in Reason to be deemed a Party therein, because my Command was the Cause of it. So if I command one to beat another, and he beats him so that he dies thereofi 180 CASES ON CEIMINAL LAW. [CHAP. XIX. > I shall be Accessary to this Murder, for it is a Consequence of my Command, which was the original Foundation thereof, and which na- turally tended to endanger the Life of the other. So if I command one to burn the House of J. S. feloniously in the Night, and he does so, and the Fire thereof burns another House, I shall be Accessarj' to the burning of the other House, so that although I am afterwards par- doned for being Accessary to the burning of the House of J. S. yet I shall be hanged for the burning of_the_other_House, for inasmuch as the burning of the second House followed from my Command, and I am clearl}' Accessary to the burning of the first House, I ought also in Reason to be adjudged Accessary to all that followed from the burning of the first House. But if I command him to burn the House of such a one, whom he well knows, and he burns the Ho'nse of another, there I shall not be Accessary to this, because it is another distinct Thing, to which I gave no Assent nor Command, but wholly different from my Command. As if I command one to steal a Horse, and he steals an Ox, or if I command him to steal a white Horse, and he steals a yel- low Horse, this differs directly from my Command, and my Consent Cannot be carried over to it, for there is not the least Connection or Affinity between this Act and my Command. And so if I command a Person to rob such a Goldsmith of his Plate in such a Place as he is going to Sturbridffe-fair, and he breaks open his House in Cheapside, and steals his Plate from thence, I shall not be Accessary to this Burglary, because it is a Felonj- of another Kind from that which I commanded. But if I command one to kiU another by Poison, and he kills him with a Sword, or if I command one to kill another in the Fields, and he kills him in the City or Church, or if I command him to kill him such a Day aud he kills him at another Day, there I shall be Accessary to s\ich Murder, because the Death is the principal Matter, which has followed from my Command, and the-JElaee^r-Tnst.ryf npnt, Time, and the Uk^^jire J)ut Jthe.^anner_an d Form how the Death o f the Party shall be effected, a nd not tI ig_SjibstaiuiC-Xi£jbha--Mattfir, and a V ariShce in the formal Part of the Execution of the Command shall not discharge a Man from being Accessary. But j-et in some Cases the Time may be m aterial ; for if I command one to kill J. S. and before the Fact done I go to him and tell him that I have repented, and ex- pressly charge him not to kill J. S. and he afterwards kills him, there I shall not be Accessary to this Murder, because I have counter mand ed my first Command, which in all Reason shall discharge^ me, for the malicious Mind of the Accessary ought to continue to do ill until the Time of 'the Act done, or else he shall not be charged ; but if he had killed J. S. before the Time of my Discharge SiL HountennaflsLgiven, I should have been Accessary to the Death, notwithstandin^_my__prl- SECT. I.j SAUNDERS' CASE. 181 vate Repentance. And in an A£peal lately brought by the Wife of Cholmley against on^_Ni^olas, who had assaulted her Husband in the County of Wilts, with an Intent to rob him, and had killed him with a Gun, and afterwards obtained the Queen's Charter of Pardon, this Question was put by an Apprentice of the Middle Temple to Catline, Chief Justice of England, and to his Companions in the King's Bench, whet her or no those who had received Nicholas, .and had giv en him Meat and Drink, after thejCharter of Pardon, knowing of the Murder and the Pardon, should be accounted Accessaries, with respect to the Appeal brought by the Wife : To which Catline an- swered that they should, for although the Queen had granted her Par- don to Nicholas, whereby he was in Fact discharged of the Felony against the Queen, yet he remained a Felon as to the Wife, and by the same Reason those who received him shall be Accessaries as to the Wife, for the Pardon could not discharge the Accessaries any more than the Principal, against the Wife : But Popham was of the con- trary Opinion, and said that this could not be, because there c an be no Accessary without an Offence to the Cro wn ; for an Appeal as well as an Indictment saj^s, that they received him " against the Crown and Dignity of the Lady the Queen." And then if there was no Offence to the Crown at the Time of the Receipt, the Receipt cannot be Felony, but as to the principal Fact, it w as an Offence as well to the Crown a s to the Wife at the Time of the Act perp etrated, and therefore although the Queen has pardoned the principal Felon, yet the Wife may trul}' saj-, as to him, that the Act was against the Queen's Crown and Dignitj', but not as to those who received th e Principal afterwards, hp.canae at i;l ie lime of the Receipt there was no Offe nce continuing in the P rinci- pal against the Crown ; ad quod nonfuit responsum. But the Receipt of the Felon before the Pardon was Felony. So that in Case s of Accessary the Time is to be con sidered, jfjo^Jb.ejth.at any Thing ma te- rial happens intermediately, but otherwise the Day or Time when the Accessary commits the Offence is not more material than the Place where, or the Instrument with which, it is done. But I greatly approve of the said Opinions of the Justices concern- ing the Accessary in the Case before reported, because the poisoning of the Daughter was a distinct act, tp which Archer gave no Advice nor Counsel, and whose Death he did not procure. 182 CASES ON CEIMINAL LAW. [CHAP. XIX. AGNES GORE'S CASE. 9 Co. 81, A. Before Fleming, Chief Justice, and Tanfield, Chief Baron, Justices of Assise, this case happened in their western circuit. Agnes, the daughter of Roper, married one Gore ; Gore fell sick ; Roper, the father, in good will to the said Gore his son-in-law went to one Dr. Gray, a phj-sician, for his advice, who made a receipt directed to one Martin, his apothecarj', for an electuary to be made, which the said Martin did and sent it to the said Gore ; Agnes, the wife of Gore, secretly mixed ratsbane with the electuary, to the intent therewith to poison her husband, and afterward, 18 Mail, she gave part of it to her husband, who eat thereof and immediately became grievouslj' sick ; the same daj' Roper the father eat of it, and immediately also became sick ; 19 Mail C. eat part of it, and he likewise fell sick ; but they all recov- ered and yet are alive. The said Roper, observing the operation of the said electuary, carried the said box with the said electuary 21 Mail to the said Gray the phj-sician and informed him of the said accidents, who sent for the said Martin the apothecary- and asked him if he had made the said electuary according to his direction, who answered that he had in all things but in one, which he had not in his shop, but put in another thing of the same operation, which the said Dr. Gray well approved of; whereupon Martin the apothecary said, " To the end j'ou may know that I have not put anything in it which I myself will not eat, I will here before you eat part of it," and thereupon Martin took the box, and with his knife mingled and stirred together the said elec- tuary, and took and eat part of it, of which he died the 22d day of May following. The question was, if upon all this matter Agnes had committed murder. And this case was delivered in writing to all the judges of England to have theii- opinions in the case ; and the doubt was, because Martin himself of his own head, without incitation or pro- curement of any, not only eat of the said electuary, but he himself mingled and stirred it together, which mixing and stirring had so incor- porated the poison with the electuary, that it made the operation more forcible than the mixture which the said Agnes had made ; for notwith- standing the mixture which Agnes had made, those who eat of it were sick, but yet alive, but the mixture which Martin has made by mingling and stirring of it with his knife, made the operation of the poison more forcible and was the occasion of his death. And if this circumstance would make a difference between this case and Saunders's case in Plow. Com. 474 was the question. SECT. II.] EEGINA V. SEKN:6. 183 And it was resolved bj' all the judges that the said Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous intention of Agnes in putting the poison into the electuary to kill her husband with the event which thence ensued, — sc. the death of the said Martin ; for the putting of the poison into the electuary is the occasion and cause, and the poisoning and death of the said Martin is the event, quia eoentus est qui ex causd sequitur, et dicuntur eventus quia ex causis eveniunt, and the stirring of the electuary bj' Martin with his knife without the putting in of the poison by Agnes could not have been the cause of his death. And it was also resolved, that if A. puts poison into a pot of wine, &c., to the intent to poison B., and sets it in a place where he supposes B. will come and drink of it, and bj' accident C. (to whom A. has no malice) comes and of his own head takes the pot and drinks of it, of which poison he dies, it is murder in A., for the law couples the event with the intention and the end with the cause ; and in the same case if C. thinking that sugar is in the wine, stirs it with a knife and drinks of it, it will not alter the case ; for the King by reason of the putting in of the poison with a murderoui~intent has lost a subject ; and therefore inTIawTie who so put In the poison with an ill" and felonious intent shall answer for it. But if one prepares ratsbane to kill rats and mice, or other vermin, and leaves it in certain places to that purpose, and with no ill intent, and one finding it eats of it, it is not felony, because he who prepares the poison has no ill or felonious in- tent j but when one prepares poison with a felonious intent to kill any reasonable creature, whatsoever reasonable creature is therebj' killed, he who has the ill and felonious intent shall be punished for it, for he is as great an offender as if his intent against the other person had taken effect. Andif the law sb^o uld not be such, this Jiorrible^and heinous ofience would be unpunished ; which would be mischievous and a great defecTin the law. Section 2. Murdek : Malice Aforethought ; Wkongful Inten- tion, BUT NO Intention to kill. EEGINA V. SERNE. 16 Cox C. C. 311 [1887]. The prisoners Leon Sern^ and John Henry Goldfinch were indicted for the murder of a boy, Sjaak Sernd, the son of the prisoner Leon Serne, it being alleged that they wilfully set on fire a house and shop. 184 CASES ON CRIMINAL LAW. [CHAP. XIX. No. 274 Strand, London, by ^hich act the death of the boy had been caused. It appeared that the prisoner Sern(5 with his wife, two daughters, and two sons were living at the house in question ; and that Sernd, at the time he was living there, in midsummer, 1887, was in a state of pecu- niarj' embarrassment and had put into the premises furniture and other goods of but very little value, which at the time of the fire were not of greater value than £30. It also appeared tJiat previously to the fire the prisoner Serno had insured the life of the boj- Sjaak Serne, who was imbecile, and on the first day of September, 1887, had in- sured his stock at 274 Strand, for £500, his furniture for £100, and his rent for another £100 ; and that on the 17th of the same month the premises were burnt down. Evidence was given on behalf of the prosecution that fires were seen breaking out in several parts of the premises at the same time, soon after the prisoners had been seen in the shop together, two fires being in the lower part of the house and two above, on the floor whence escape could be made on to the roof of the adjoining house, and in which part were the prisoners, and the wife, and two daughters of Sern6, who escaped ; that on the premises wei-e a quantitj- of tissue transparencies for advertising purposes, which were of a most inflam- mable character ; and that on the site of one of the fires was found a great quantity of these transparencies close to other inflammable ma- terials ; that the prisoner Serne, his wife and daughters, were rescued from the roof of the adjoinipg house, the other prisoner being rescued from a window in the front of the house, but that the boys were burnt to death, the body of the one being found on the floor near the win- dow from which the prisoner Sern^, his wife, and daughters had escaped, the body of the other being found at the basement of the premises. Stephen, J. Gentlemen, it is now my duty to direct j'our attention to the law and the facts into which j-ou have to inquire. The two prisoners are indicted for the wilful murder of the boy Sjaak Seme, a lad of about fourteen years of age ; and it is necessary that I should explain to you, to a certain extent, the law of England with regard to the crime of wilful murder, inasmuch as you have heard something said about constructive murder. Now that phrase, gentlemen, has no legal meaning whatever. Th^e was wilfjilmurder according to the j)lain^niean- ing of theterm or there was no murder at all in the present^case. The definition of murder is unlawful homicide with malice aforethought, and the words " malice aforethought" are technical. You must not, there- fore, construe them or suppose that they can be construed by ordinary rules of language. The words have to be construed according to a long SECT. II.] EEGINA V. SERTSii. 185 series of decided cases, which have given them meanings different from those which might be supposed. One of those meanings is, the killing of another person by an act done with an intent to commit a felonj-. Another meaning is, an act done with the kiiowledge that the act will probably cause the death of some person. Now it is such an act as the last which is alleged to have been done in this case ; and if you think that either or both of these men in the dock killed this boy, either by an act done with intent to commit a felony, that is to say, the setting of the house on fire in order to cheat the insurance companj-, or by con- duet which, to their knowledge, was likely to cause death and was therefore eminentl}- dangerous in itself, — in either of these cases the prisoners are guilty of wilful murder in the plain meaning of the word. I will say a word or two upon one part of this definition, because it is capable of being applied very harshly in certain cases, and also because, though I take the law as I find it, I very much doubt whether the definition which I have given, although it is the common definition, is not somewhat too wide. Now when it is said that murder means kill- ing a man by an act done in the commission of a felony, the mere words cover a case like this, that is to say, a case where a man gives another a push with an intention of stealing his watch, and the person so pushed, having a weak heart or some other internal disorder, dies. To take another very old illustration, it was said that if a man shot at a fowl with intent to steal it and accidentallj' killed a man, he was to be accounted guilty of murder, because the act was done in the commis-, sjon of a felony. I very much doubt, however, whether that is really the law, or whether the Court for the Consideration of Crown Cases Re- served would hold it to be so. The present ease, however, is not such as I have cited, nor anything like them. In my opinion the definition of the law which makes it murder to kill by an act done in the commis- sion of a felonj' might and ought to be narrowed, while that part of the law under which the Crown in this case claim to have proved a case of murder is maintained. I think that, instead of saj'ing that any act done with intent to commit a felonj' and which causes death ^mounts to murder, it would be reasonable to say that any^ act_known to be dangerous to life and likely in itself to caiise death done for the purpose of committing a felony_which caused death, should be murder. As "ah* illustratlonpf thisTsuppose that a man, intending to commit a rape upon a woman but without the least wish to kill her, squeezed her by the throat to overpower her, and in so doing killed her, that would be murder. I think that every one would say in a case like that, that when a person begaa doing wicked acts for his own base purposes, he risked his own life as well as that of others. That kind of crime does not differ in any serious degree from one committed by using a 186 CASES ON ClilMINAL LAW. [CHAP. XIX. deadly weapon, such as a bludgeon, a pistol, or a knife. If a man once begins attacking the human body in such a way, he must take the con- sequences if he goes further than he intended when he began. That I take to be the true meaning of the law on the subject. In the present case, gentlemen, you have a man sleeping in a house with his wife, his two daughters, his two sons, and a servant, and you are asked to believe that this man, with all these people under his protection, de- liberately set fire to the house in three or four different places and thereby burnt two of them to death. It is alleged that he arranged matters in such a way that any person of the most common intelligence must have known perfectly well that he was placing all those people in deadly risk. It appears to me that if that were really done, it matters very little indeed whether the prisoners hoped the people would escape or whether they did not. If a person chose, for some wicked purpose of his own, to sink a boat at sea and thereby caused the deaths of the occupants, it matters nothing whether at the time of committing the act he hoped that the people would be picked up bj' a passing vessel. He is as much guilty of murder, if the people are drowned, as if he had flung every person into the water with his own hand. Therefore, gentle- men, if Sern^ and Goldfinch set fire to this house when the family were in it, and if the boj's were by that act stifled or burnt to death, then the prisoners are as much guilt3' of murder as if they had stabbed the children. I will also add, for mj- own part, that I think in so saj-ing, the law of England lays down a rule of broad, plain common-sense. Treat a murderer how you will, awai'd him what punishment you choose, it is j'our duty, gentlemen, if you think him really guilty of murder, to say so. That is the law of the land, and I have no doubt in mj- mind with regard to it. There was a case tried in this court which you will no doubt remember, and which will illustrate my mean- ing. It was the Clerkenwell explosion case in 1868, when a man named_Barrfitt_wasjcharged with causing the death of several persons by an explosion which_was intended~"to rel ease one ofTwo~men "from custody ; and I am sure that no one can say trulj- that Barrett was not justly hanged. With regard to the facts in the present case, the very horror of the crime, if crime it was, the abomination of it, is a reason for 3'our taking the most extreme care in the case, and for not imputing to the prisoners anything which is not clearly proved. God forbid that I should, by what I say, produce on your minds, even in the smallest degree, anj' feeling against the prisoners. You must see, gentlemen, that the evidence leaves no reasonable doubt upon your minds ; but you will fail in the performance of j-our duty if, being satisfied with the evidence, you do not convict one or both the prisoners of wilful murder, and it is wilful murder of which they are accused. [The SECT. lU.] KEGINA V. DOHERTY. 187 learned judge then proceeded to review the evidence. In the result the jury found a verdict of not guUty in respect of each of the prisoners. Verdict, Not Guilty. (0 tX^Mf /■ /, Section 3. Mukdee: Malice Afoeethought ; Deunkenness as Thkowing Light upon the Existence op IVIaxice. REGINA V). DOHERTY, 16 Cox C. C. 306 [1887]. The prisoner was indicted for the wilful murder of Michael Graham hy shooting him with a revolver. It appeared that on the evening of Saturday, the 19th day of November, 1887, the prisoner had lost a large sum of money at baccarat to a man named Howe, which sum he was unable to pay at the time, but arranged to meet Howe on the following Monday. On Monday the prisoner and the deceased met Howe according to the appointment, when the prisoner stated that he could not pay the monej' he had lost. Subsequently the prisoner en- deavored to raise a quarrel with Howe but was quieted by the de- ceased, who went with him to his lodgings at 47 Woburn Place, where he remained to dinner. A report was heard by the servant who was bringing up the dinner, then a noise as of scuffling, and then another report six or seven seconds after the first ; and the prisoner's wife rushed out of the room. Upon the servant entering the room she found that the back of a chair was on fire and the deceased told her he was hit. Immediately after the occurrence the deceased said to a constable who was called in, " I am shot, it 's quite by accident; call a cab." He subsequently, however, stated in the presence of the prisoner that on the 21st day of November he was with the prisoner at the Bodega and at the Criterion when the subject of the monej' lost to Howe bj- the pris- oner was mentioned, and the prisoner said he should not paj- it ; and that he told the prisoner that he ought to pay ; that in the room at Woburn Place he had picked up a paper and sat down, and that the prisoner went into the bedroom and coming out fired two shots, one of which hit him ; that he was unable to see whether the prisoner aimed at him as the paper was between them ; that he told the prisoner that he had hit him, and that he sent for a cab and said it was an accident for fear the prisoner should fire again. After the deceased had made this statement the prisoner was allowed to question him and said, " Have I ever had wrong words with you before?" to which the de- ceased replied, "He's quite right." 188 CASES ON CRIMINAL LAW. [CHAP. XIX. Upon the completion of the case for the prosecution Sir Charles Rus- sell stated that the prisoner wished to make a statement to the jHr3^ Stephen, J. If the prisoner wishes to make any statement he is at libertj' to do so ; but it must be understood that he makes his state- ment before the Court is addressed by counsel on his behalf, and that though he cannot be questioned upon his statement, his making it will give the counsel for the prosecution a right to reply. The prisoner thereupon made a statement to the jury, upon the con- clusion of which /Sir Charles Russell . . . addressed the Court on his behalf. Stephen, J. It is mj- dutj' first, gentlemen, to la3' down the law for your instruction with regard to what constitutes the crime of murder. Murder is unlawful homicide with malice aforethought. Manslaughter is unlawful homicide without malice aforethought. First, as to the terra " aforethought ; " its meaning has been laid down clearly by Holt, C. J., who in Regina v. Mawgridge, Kelyng, 174, saj'S : "He that d oth a cru e l act voluntar ily_doth it of malice prepensed," which is the same as aforethought. " Aforethought," therefore, does not necessa- rily imply premeditation, but it implies intention which must necessa- rily precede the act intended. What, then, is the intention necessary to constitute murder ? Several intentions would have this effect ; but I need mention only two in this ease, namelj', an intent ion to kill and an intention to dogrieyo us bodily h arm. If the act which caused death — the firing of the pistol — was done with either of these intentions, Do- herty's crime was murder. But it is difficult to see how a man can fire a loaded pistol at another without intending to do him grievous bodily harm, so that if j'ou think that Doherty fired the pistol at^he de- ceased's body intending to hit him but taking his chance where he hit him, that would be murder though he did not intend to kill. If on the other hand you think that he fired it vaguely, without any specia l in- tent at all, and by so doing caused his death, that would be man- slaiighter. The general rule as to intention is that a man intends the natural consequences of his act. As a rule the use of a knife to stab or of a pistol to shoot shows an intention to do grievous bodily harm, but this is not a necessary inference. In drawing it you should con- sider for one thing_ the question whslher^thej)risoner is drunk or sober. It is almost trivial for me to observe that a man is not excused from crime by reason of his drunkenness. If it were so yon might as well at once shut up the criminal courts, because drink is the occasion of a large proportion of the crime which is committed ; but although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the partj committing it is one of its con- stituent elementSjyou may look at the fact that a man was in driufio SECT. IV.] STATE V. JOHNSON. 189 considering whether he formed the intention necessary to constitute the crime. If a sober man takes a pistol or a knife and strikes or shoots at some one else, the inference is that he intended to strike or shoot him with the object of doing him grievous bodilj' harm. If, how- ever, a man acting in that way was drunk, you have to consider the effect of his drunkenness upon his intention. In such cases a distinc- tion of vital importance occurs to which it is necessary to point. A drunken man may form an intention to kill another or to do grievous bodily harm to him, or he may not ; but if he did form that intention, although a drunken intenti on, he is justasTmicE guilty of murder as if he bad been sober. In a case which I tried a j-ear or two ago a man was charged with having murdered his wife. He was a violent, brutal fellow, who came home one day ver}' drunk and kicked his wife for several hours together until she died. He repeatedly declared that he meant to kill her. Tlmt man was properly convicted and ^nged. In that case there was not onlj' tEe~man's conduct but also a repeated declaration that he would kill his wife, and I then said to the jury that they must consider whether he had an intention, drunken or not, to cause death or grievous bodilj' harm, and that if he had he was guilty of murder ; but that in deciding this question the fact of his drunken- ness must be taken into account. I say the same to you. If, gentle- men, you conclude that Doherty took the life of Graham by a pistol shot fired at him with intent to do grievous^ bodily^ Jiarm, he would be guilty of murder even thoug h he w ere drunk ; but if his drunkenness prevented his forming such an intention, he would be guilty of man- slaughter and not murder, Though such an act in a sober man would prove an intention to do grievous bodily harm. Section 4. Mueder : Statutory Degrees. STATE V. JOHNSON, 40 Conn. 136 [1873]. Indictment for murder in the first degree ; brought to the Superior Court in New Haven County, and tried, on the plea of not guilty, be- fore Foster and Granger, J. The murder charged was that of a woman named Johanna Hess at Meriden, in New Haven County, on the 8th day of Julj-, 1872. By statute (Gen. Sts., tit. 12, § 6), " All murder which shall be per- petrated by means ^f poison, o r by lying in wait, or by any other kind of wilful, deliberate, and premeditated .kijii?g' o*' which shall be com- mitted iifperpetrating, or attempting to perpetrate, any arson, rape. 190 CASES ON CEIMINAL LAW. [CHAP. XIX. robbery, or burglarj-, shall be deemed murder in the first degree ; and all other kinds of murder shall be deemed murder in the second de- gree ; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guiltj', ascertain in their verdict whether it be murder in the first degree or second degree." Another section of the statute makes murder in the first degree punishable by deatli and in the second degree by imprisonment in the State prison for life. Carpentek, J. . . . The prisoner was indicted and on trial for murder in the first degree. As the homicide was not perpetrated b3- means of poison, or Ijing in wait, or in committing or attempting to commit any of the crimes enumerated in the statute, he could only be convicted of the higher oflTence bj- showing that it was a wilful, deliberate, and pre- meditated killing. A deliberate intent to take life is an essential ele- ment of that offence. The existence of such an intent must be shown as a fact. Implied malice is sufficient at common law to make the offence murder and under our statute to make it murder in the second degree ; but to constitute murder in the first degree, actual mahce must be proved. Upon this questiorT the "state of the prisoner's mind is material. In behalf of the defence, insanitj'. intoxication, or anj' other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxica- tion is admissible in such cases, not as an excuse for crime, not in mitigation of punishment, but as tending to show that the less and not the greater offence was in fact committed. I cite a few only of the many authorities which sustain this position. Keenan v. the Common- wealth, 44 Penn. S. E. 55; Roberts v. The People, 19 Mich. 401; Pigman v. The State, 14 Ohio, 555; State v. Garvey, 11 Minn. 154; Haile v. The State, 11 Humph. 154; Shannahan v. The Common- wealth, 8 Bush (Ky.), 463; Ray's Med. Jur. 5th ed. 666. As I have already said, the charge of the Court was in itself well enough ; but we must consider it in its application to the case on trial and in the sense in which the jury probably understood it. When they were told that " drunkenness does not excuse a part}- from the conse- quences of a criminal act," it is probable that the}- did not distinguish between excusing a crime and showing that the specific crime charged had not been committed; and when they were further told that "a man committing a criminal act, though intoxicated at the time, is a legal and proper subject of punishment," they undoubtedly understood the " criminal act" to mean murder in the first degree and punishment to mean capital punishment, and that the intoxication of the prisoner, whether little or much, could legally have no bearing upon the ques- SECT. IV.J LEIGHTON V. PEOPLE. 191 tion whether it was murder in the first or second degree. The danger is that the jury, while making up their verdict, excluded from their minds the subject of intoxication altogether; and that the^- were led to believe that thejnalicejm plied by law from the weapon used, antTtlie circnmstaiioesj^ttendingjf^ sufficient t o constitute murder in the first degree, and that a deliberate, premeditated design to take life was not essential. If so, it is manifest that injustice may have been done the prisoner. I think the Court should have submitted to the consideration of the jury the fact of intoxication, if it was a fact, to be weighed by them in connection with the other evidence in the cause, in determining whether it was a wilful, deliberate, and pre- meditated killing. For these reasons a majority of the Court are of the opinion that a new trial should be advised. In this opinion Park, J., concurred. Seymour, J., dissented. Foster, J., having tried the case below, did not sit. LEIGHTON V. PEOPLE, 88 N. Y. 117 [1882]. Error to the General Term of the Supreme Court in the first judi- cial department, to review judgment entered upon an order made May 20, 1881, which affirmed a judgment of the Court of Oyer and Termi- ner of the County of New York, entered upon a verdict convicting the plaintiff in error of the crime of murder in the first degree. The material facts appear in the opinion. Danforth, J. . . . 3. At its close the prisoner's counsel " excepted to all portions of the charge in reference to the question of the time re- quired for premeditation and deliberation." To bring the case within the statutorj^ definition of murder in the first degree it was necessarv that the crime should be "perpetrated from the deliberate and premeditated design to effect the death of the person killed." Laws of 1873, c. 644, § 5. An act co-existent with and inseparable from a sudden impulse, although premeditated, could not be deemed deliberate, as wlien under sudden and great provocation one instantly, although intentional!}', kills another. But^the statute is not satisfied unless the int entio i^ was deliberated upon. If the impulse is followed by reflection, that is delib- eration ; hesTtalion even maj- imply deliberation ; so may threats against another and selection of means with which to perpetrate the deed. If therefore the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as the re- 192 CASES ON CBIMINAL LAW. [CHAP. XX. suit of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and pre- meditated murder. The charge upon this point was most favorable to the prisoner. After stating the statute the judge said : " There must there- fore be, in order to establish the crime of murder in the first degree, deliberation and premeditation ; but thereJs oojime. prescribed_witliiii which these operatiqnsjofjhe mind_niust_pccur ; it is sufficient if their exercise was accomplished when the deed was done resulting in the death." Again he said : " It is enough if there is time for the mind to think upon, to consider the act of killing, to meditate upon it, to weigh it, and then to determine to do it." Immediately after this fol- lows that portion of the charge to which the learned counsel for the appellant directs our attention. " For example," said the judge, " if I having from any reason, it matters not what, an enmity toward an- other, should start from this point and walk to the corner of Chambers Street, weigh in my mind, deliberate upon, and premeditate a deadly assault upon another, and at that corner, meeting there the person toward whom my thoughts were directed, I struck the deadly blow, that would be sufficient deliberation and sufficient premeditation to perfect the crime of murder in the first degree. It is enough that the mind operates in these two respects to accomplish it and to present all the elements that are necessary to establish murder in the first degree." In this there was no error. Then followed a statement of the evi- dence bearing upon the proposition just laid down. It has been re- cited in the learned and elaborate opinion of the Court below, its correct- ness has not been denied by the appellant's counsel, and it need not be repeated. It was in our opinion quite enough for submission to the jury. Homicide : Justification. Section 1. Self Defence ; Defence of Anothee. EEGINA V. KNOCK, 14 Cox C. C. 1 [1877]. Prisoner was indicted for the manslaughter of Joseph Tipper. It was proved that the prisoner, being challenged and attacked by the deceased, who had taken his coat oflT to fight, also took off" his coat, and blows of the fists were exchanged. After four or five rounds the SECT. I.J EEGINA V. KNOCK. 193 deceased received from the prisoner a blow which killed him. The facts are more particularly stated in the summing up. At the close of the case for the prosecution Underhill submitted that there was no evidence for the jury. The fatal blow must have been given accidentallj' in defence. Ltndley, J. The case is perhaps on the border-line. But seeing that the men fought four or five rounds there appears to have been what is called a " set-to." I think therefore that under the circum- stances the facts should go to the jur3% Counsel for the prisoner having addressed the jury, LiNDLEY, J., summed up. The prisoner is charged with man- slaughter, which means causing the death of another without lawful excuse. If he did so he is guilty ; if he did not he is not guilty. What, then, is lawful excuse? The difficulty is in drawing the distinc- tion between self-defence and fighting. If two men fight and one un- fortunately kills another, then, they being engaged in an unlawful occupation or business, the killing of either bj' the other is man- slaughter even if it be by accident, and is a crime in point of law although the crime varies in degree of gravity. But on jfee_ other hand if a man attacks me, I am entitled to defend myself,^and the^jdifflcuity aHsesln'di^^?wirig~th'e^irire^tw^irTn^ self-defence and figiiting. The tesFis this, — alnah defending himself does not want to fight and de- fends h imse'lf solely to avoid fightin g. Then supposing a man attacks me and I defend myself, not intending or desiring to fight, but still fighting — in one sense — to defend mj'self, and I knock him down and thereby unintentionally kill him, that killing is accidental. It is for you to_ draw -th£-li«e. The facts up to a certain point are not disputed. No doubt the deceased came to his death in the course of a struggle with the prisoner and was knocked down bj' the prisoner, and by reason of being so knocked down died ; prima facie that is unlawful killing. Next let us consider whether the men were fighting in the sense I have defined or whether the prisoner was desiring not to fight. The evidence clearly shows that it was the defendant who provoked this, and it was sworn that not only was a challenge to fight given, not onl\- did the3' go out, but both had their jackets off. A fact in favor of the prisoner is that he was reluctant indoors to fight and ex- pressed the same reluctance out of doors. But they had four or five rounds. That is a circumstance which tends to show that these per- sons were really fighting as distinguished from mere resistance in self- defence. If you think the prisoner was doing what was lawful, simply defending himself, find him not guilty ; b ut if he was fighting , then he was doing what was unlawful and your verdict should be against him. Verdict, not guilty. 13 194 CASES ON CRIMINAL LAW. [CHAP. XX. EEGINA V. ROSE, 15 Cox C. C. 540 [1884]. The prisoner was indicted for the wilful murder of his father, John William Rose, at Witney, on the 27th day of September. The material facts proved were as follows : The prisoner, a weakly young man of about twenty-two years of age, was at the time of the alleged murder living with his father, mother, and sisters at Witney. The father, who was a very powerful man, had recently taken to exces- sive drinking, and while in a state of intoxication was possessed with the idea that his wife was unfaithful to him. He had on more than one occasion threatened to take away her life, and so firmlj' impressed was she with the idea that these were no idle threats that the prisoner's mother had frequently concealed everything in the house which could be used as a weapon. On the night in question the familj' retired to their bedrooms, which were situated adjoining to one another, about nine o'clock. The de- ceased man appears to have immediately' commenced abusing and ill- treating his wife, accusing her of unfaithfulness to him and threatening to murder her. On several occasions she retired for safety to her daughter's room ; on the last occasion her husband pursued her, and seizing her dragged her toward the top of the stairs, threatening to push her down. He then said he would cut her throat, left her saying he was going to fetch the knife, which all the family- seem to have known was in his room, and then rushing back seized his wife and forced her up against the balusters, holding her in such a position that the daughters seem to have thought he was actually cutting her throat. The daughters and mother shouted "murder," and the prisoner, run- ning out of his room, found his father and mother in the position described. No evidence was given that the deceased man had any knife in his hand, and all the witnesses said that. they did not see then or afterwards find his knife. The prisoner fired one shot (according to his own account) to frighten his father, but no trace of any bullet could be found ; and im- mediately after he fired another shot whibh, striking his father in the eye, lodged in the brain and caused his death in about twelve hours. On his arrest the prisoner said, " Father was murdering Mother. I shot on one side to frighten him ; he would not leave her, so I shot him." In cross-examination the deceased man's employer said that the prisoner's father was the strongest man he had ever seen and the pris- SECT. II.] . EEGINA V. DUDLEY. 195 oner would not have had the slightest chance in a hand-to-hand en- counter with him. The defence set up was that the case was one of excusable homicide. His Lordship in the course of his summing up said : Homicide is ex- cusable if a person takes away the hfe of another in defending himself, if the fatal blow which takes away life is necessary for his preservation. The law says not only in self-defence such as I have described may homicide be excusable, but also it may be excusable if the fatal blow inflicted was necessary for the preservation of life. In the case of parent and child, if the parent has reason to believe that the life of a child is in imminent danger by reason of an assault by another person and that the only possible, fair, and reasonable means of saving the child's life is by doing something which will cause the death of that person, the law excuses that act. It is the same of a child with regard to a parent ; it is the same in the case of husband and wife. Therefore I propose to lay the law before you in this form : If you thi nk, having regard to the evidence and drawing fair and pr oper inferences from_it, that the prisoner atTEe bar acfed without vindictive jsjeling_toward_his fat her when he flred theshot, if you thin k that at j^g_ti me he flred jhat shot be honestly believed and had reasonable grou nds f or the belief that his mother's life was in imminent peril, and that the fatal shot which he flred was absolutely neeessarj' for the preservation of her life, then he ought to be excused, and the law will excuse him from the con- sequences of the homicide. If however on the other hand j-ou cannot come to that conclusion, if j'ou think and think without an3' reasonable doubt that it is not a fair inference to be drawn from the evidence, but are clearly of opinion that he acted vindictively and had not such a be- lief as I have described to j-ou or had not reasonable grounds for such a belief, then you must find him guilty of murder. Verdict, not guilt)/. Section 2. Extreme Pressure op Circumstances. UNITED STATES v. HOLMES, 1 Wall. Jr. 1. •^V-^- '^^^•^'''EEGINA v. DUDLEY, L. K. 14 Q. B. 273 ; 15 Cox C. C. 624. Lord Coleridge, C. J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on 196 CASES ON CEIMINAL LAW/ [CHAP. XX. the high seas on the 25th day of July in the present year. They were tried before my brother Huddleston at Exeter on the 6th day of No- vember, and under the direction of my learned brother, the jury re- turned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment. The special verdict is as follows. \_The learned judge read the special verdict.^ From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temp- tation and to sufferings which might break down the bodil3' power of the strongest man and trj' the conscience of the best. Other details j'et more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned brother's notes ; but nevertheless this is clear, — that the prisoners put to death a weak and unoffending boy upon the chance of preserv- ing their own lives by feeding upon his flesh and blood after he was killed, and with a certaint}^ of depriving him of anj' possible chance of survival. The verdict finds in terms tlmt_^^jf^thejnLenJiad_aQt, fed upon the bodj' of thcTboj', they would pr obably not have sujajyed," andT;hat "the^TJoyT^^ing in a mucli weaker cond ition, was likgly to have died J)efbre them." Thej' might possibly have been picked up next day hy a passing ship ; they might possibly not have been picked up at all ; in either case it is obvious that the killing of the boy would have been an unnecessary and proGtless act. It is found by the ver- dict that the boy was incapable of resistance, and, in fact, made none ; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, them who killed him. Under these circumstances the jury say they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to sa3' what is the legal consequence which follows from the facts which they have found. . . . There remains to be considered the real question in the case, whether killing, under the circumstances set forth in the verdict, be or be not murder. The contention that_it could be anything else was to the minds, of us all both ne w and strang e ; aricrwe stopped the Attornej'-General in his negative argument that we might hear what could be said in snpportof a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First, it is said that it follows, from various definitions of murder in books of authority — which definitions impl^', if they do not state, the doctrine — that, in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of anj- illegal act whatever toward you or any one SECT. II.J EEGINA V. DUDLEY. 197 else. But if these definitions be looked at, they will not be found to sustain the contention. The earliest in point of date is the passage cited to us from Bracton, who wrote in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeves tells us, be- cause he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling ; but the pas- sage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal ; and the crime of murder, it is expressly declared, ma}' be committed lingua vel facto; so that a man like Hero, "done to death bv_ slanderous tong ues," would, it seems, in the opinion of Bracton, be a person in respect of whom might| be grounded a legal indictment for murder. But in the very passage as- to necessity on which reliance has been placed, it is clear that Brac- ton is speaking of necessity in the ordinary sense, — the repelling by violence, violence justified so far as it was necessary for the object, anj' illegal violence used toward one's self. If, says Bracton (Lib. iii., Art. De Corona, cap. 4, fol. 120), the necessity be " evitabilis et eva- dere posset absque occisione, tunc erit reus homicidii," words which show clearly that he is thinking of physical danger, from which escape may be possible, and that " inevitabihs necessitas," of which he speaks as justifying homicide, is a necessity of the same nature. It_iSiJf possible, yet cle arer thatthe^doetrine contended^ port from the grea t au thorit y of Lord Hale. It is plain that in his view the necessity which justifies homicide is that only which has al- ways been, and is now, considered a justification. " In all these cases of homicide by necessity," says he, " as in pursuit of a felon, in killing him tliat assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale, P. C. 491). Again, he saj-s that the necessity which justifies homicide is of two kinds : " (1) That necessity which is of a private nature ; (2) that necessity which relates to the public justice and safety. The former is that ne- cessity which obligeth a man to his own defence and safeguard ; and this takes in these inquiries : (1) What may be done for the safeguard of a man's own life," — and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: " (1) As touching the first of these, namely, homicide in defence of a man's own life, which is usually styled se defendendo " (1 Hale, P. C. 478). It_i s not possible to_use^ words more clear to show that Lord Hale regarded the ^priyatejieces- sity^whlch~justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called self- defence. But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear, for in the chapter in which he 198 CASES ON CRIMINAL LAW. [CHAP. XX. deals with the exemption created by compulsion or necessity, he thus expresses himself: " If a man be desperately assaulted_and in peril of death and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to die himself than to kill an in- nocent ; but if he cannot otlierwise save his own life, the law permits him in his own defence to kill the assailant, for, b}- the violenfce of the assault and the offence committed upon him by the assailant himself, the law of nature and necessity hath made him his own protector cum debito moderaniine inculpatm tutelce " (1 Hale, P. C. 51). But, further still : Lord Hale in the following chapter deals with the position as- serted by the casuists and sanctioned, as he saj^s, b^- Grotius and Puffendorf, that in a case of extreme necessity, either of hnng er^or clothing , '* th eft is no thefti^or nji^J<^ah_nnf;jTnnisha.hli;; a.a theft, ; and some even of our own lawy ers have asserted the s ame ; " " but." saj's Lord Hale, " I take it that here in England that rule, at least bj' the laws of England, is false; and therefore if a person, being under ne- cessity for want of victuals or clothes, shall upon that account clandes- tinelj' and animo furandi steal another man's goods, it is a felonj- and a crime by the laws of England punishable with death " (1 Hale, P. C. 64). If therefore Lord Hale is clear, as he is, that extreme necessity of hunger does not justify larcenj-, what would he have said to the doc- trine that it justified murder ! It is satisfactory to find that another great authority, second probably only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster in the third chapter of his " Discourse on Homicide," deals with the sub- ject of Homicide Founded in Necessity' ; and the whole chapter implies, and is insensible unless it ^oes impl}', that in the view of Sir Michael 'Foster, necessity and self-d efence (which in section 1 he defines as "opposing force to force even to the death") are convertible term s. There is no hint, no trace of the doctrine now contended for ; tlie whole reasoning of the chapter is entirelj' inconsistent with it. In East (1 East P. C. 271), the whole chapter on Homicide by Necessity is taken up with an elaborate discussion of the limits within which neces- sity — in Sir Michael Foster's sense (given above) — of self-defence is a justification of or excuse for homicide. There is a short section at the end (p. 294) very generally and very doubtfully expressed, in which the onl}- instance discussed is the well-known one of tw o sh i pwrec ked men on_a plank able to sustain only one of them ; and the conclusion is left by Sir Edward East entirely undetermined. What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on Justifiable Homicide assumes, that the only justifiable SECT. II.l KEGINA V. DUDLEY. 199 homicide of a private nature is in defence against force of a man's per- son, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with this significant expression from a careful writer, "It is said to be justifiable." So, too, Dalton, c. 150, clearly considers necessity and self-defence, in Sir Michael Foster's sense of that expression, to be convertible terms ; though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own ; and there is a remarkable passage at page 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him, even in self-defence, cuncta prius tentanda. The passage in Staund- forde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclu- sion which has been derived from it. The necessity' to justify homicide must be, he says, inevitable ; and the example which he gives to illus- trate his meaning is the very same which has just been cited from Dal- ton, showing that the necessity he was speaking of was a physical necessity and the self-defence a defence against phj-sical violence. Russell merely repeats the language of the old text-books and adds no new authorit}' nor any fresh considerations. Is there, then, an^' author- ity for the proposition which has been presented to us ? Decided cases there are none. Th e case of the seven English sailors referred to by the commentator on Grotius and by Puffendorf has been discovered by a gentleman of the Bar — who communicated with my brother Huddle- ston — to convey the authorit}-, if it conveys so much, of a single judge of the island of St. Kitts, when that island was possessed partly' by- France and parti}' bj"^ this countr^s somewhere about the year 1641- It is mentioned in a medical treatise published at Am sterdanu^aad-Js altogetherTas authorityTn an English court, as unsatisfact ory as pos- sible. TSe iCiiiericaireaie cited by my brother Stephen in his digest from Wharton on Homicide, page 237, in which it was decided, correctly, indeed, that sailors had no right to throw passengers ovei-board to save themselves, bu t on th e somewhat strange ground^ hat the pro per mode of determining who was to be sacrificed was to vote upon the^ubject by ballot, can hardly, ¥slnyn 5rbth~e r^gteph eirsaYi7T)e an aut hority sat- isfactory to a court in this country. The observations of Lord Mans- field in the case of Rex v. Stratton and others (21 St. Tr. 1045), striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a governor of Madras. But they have little application to the case be- fore us, which must be decided on very different considerations. The one real authority of former times is Lord Bacon, who in his commen- 200 CASES ON CRIMINAL LAW. [CHAP. XX. tary on the maxim, " Necessitas inducit privilegium quoad jura pri- vata," lays down the law as follows: " Necessity carrieth a privilege iu itself. Necessit3' is of three sorts, — necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stran- ger. First, of conservation of life. If a man steals viands to satisfy- his present hunger, this is no felonj' nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side, to keep himself above water, aad another to save his life thrust him from it, wherebj- he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfj^ hunger is no larceny is hardly supported by Staundfourde, whom he cites for it, and is expressly contradicted bj^ Lord Hale in the pas- sage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists ; at anj' rate he cites no author- ity for it, and it must stand upon his own. Lord Bacon wa s great even as a lawyer ; but it is permi ssible to much snaall er men, re la ying up on pfincipleand on the authoritj' of others the equa ls and even the superio rs oTXord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true ; but if Lord Bacon meant to laj' down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbor, it certainly is not law at the present day. There remains the authority of my brother Stephen, who both in his Digest (Art. 32) and in his "History of the Criminal Law" (vol. 2, p. 108), uses language perhaps wide enough to cover this case. The language is somewhat vague in both places, but it does not in either place cover this case of necessity, and we have the best auth ority for saying that it w'SsTioFmeant to cover it. If it had been necessarj', we must with true delerence have differed from him ; but it is satisfactorj' to know that we have, probably at least, arrived at no conclusion in which, if he had been a member of the court, he would have been unable to agree. Neither are we iu conflict with any opinion expressed upon this subject by the learned persons who formed the Commission for preparing the Criminal Code. They say on this subject: " We are not prepared to suggest that necessity should in every case be a justification ; we are equally unprepared to suggest that necessity should in no case be a defence. We judge it better to leave such questions to be dealt with when, if ever, they arise in practice, by applying the principles of law to the circumstances of the particular case." It would have been sat- isfactory to us if these eminent persons could have told us w^hether the received definitions of legal necessity were in their judgment correct and exhaustive, and, if not, in what way they should be amended ; but SECT. II.] EKGINA V. DUDLEY. 201 as it is we have, as they say, " to apply the principles of law to the circumstances of this particular ease." Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances an absolute, unqualified, and paramount duty, we exclude frntn nny p.o nsideration all tlie incidents of w ar. We are dealing with a case of private homicide, not one imposed upon men in the service of their sovereign or in the defence of their country-. Now it is admitted that the deliberate killing of this unoffending and unre- sisting boy was clearlj' murder, unless the killing can be justified by some well-recognized excuse admitted by the law. It is further ad- mitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be" regretted. Though law and morality are not the same, and though manj' things may be immoral which are not neces- sarih' illegal, yet the absolute divorce of law from morality would be of fatal consequence, and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is, generally speaking, a duty ; but it maj- be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the " Birkenhead," — t hese duties impose on men the morni necessity, not of the preserva tion but of the sa crifi ce, of their lives for others, from which in no country — least of all, it is to be hoped, in England — will men ever shrink, as indeed they have not shrunk. It is not cor- rect, therefore, to say that there is anj- absolute and unqualified neces- sity to preserve one's life. " Necesse est ut eam, non ut vivam," is a saying of a Roman oflJcer quoted by Lord Bacon himself with high eulogy in the very chapter on Necessity to which so much reference has been made. It would be a very easy and cheap display of common- place learning to quote from Greek and Latin authors, — from Horace, from Juvenal, from Cicero, from Euripides, — passage after passage in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics. It is^enough in^a Qmistian^eojjntry tojcmind ourse lves_of the Great Example which we profess to_follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured ? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in 202 CASES ON CRIMINAL LAW. [CHAP. XX. deliberately taking anotiier's life to save his own. In this case the weakest, the j-oungest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men ? The answer must be, No. " So spake the Fiend; and with necessity, The tyrant's plea excused his devilish deeds." It is not suggested that in this particular case the "deeds" were " devilish ; " but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime. There is no path safe for judges to tread but to ascertain the law to the best of their abilit}' and to declare it according to their judgment, aild if in any case the law appears to be too severe on indi- viduals, to leave it t o the Sovereign t o exercise that_prerogatiye_of mercy which the Constitution has entrusted to the hands _flttest to dis- pense it. It must not be supposed that, in refusing to admit tempta- tionTo be an excuse for crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judg- ment straight and the conduct pure. We ai-e often compelled to set up standards we cannot reach ourselves and to lay down rules which we could not ourselves satisfy'. But a man has no right to declare tempta- tion to be an excuse, though he might himself have jielded to it, nor allow compassion for the criminal to change or weaken in an}- manner the legal definition of the crime. It is therefore our dut}- to declare that the prisoners' act in this case was wilful murder ; that the facts as stated in the verdict are no legal justification of the homicide ; and to saj' that, in our unanimous opinion, they are, upon this special verdict, guilty of murder. Sir Henry James, Attornej'-General, prayed the sentence of the Court. The Lord Chief Justice thereupon passed sentence of death in the usual form.^ Judgment for the Crown. 1 The prisoners were afterwards respited and their sentence commuted to one of six months' imprisonment without hard labor. SECT. I.J BEGINA V. DEE. 203 CHAPTER XXI. Rape and Carnal Knowledge op Children. Section 1. Rape. REGINA V. DEE, 15 Cox C. C. 579 [1884]. COURT FOR CROWN CASES RESERVED FOR IRELAND. Mat, C. J. The question which arises on the case is whether, in point of law, the pi-isoner should be considered as guilty of rape. There is not, I think, any doubt or dispute as to the facts and circum- stances of the case. Upon the report of the judge, who was myself, and the findings of the jury, it is, I think, established that Judith Gorman, the wife of one J. Gorman, who was absent, having gone out to fish, laj^ down upon a bed in her sleeping room in the evening when it was dark ; that the prisoner came into the room, personating her husband, lay down upon her, and had connection with her ; that she did not at first resist, believing the man to be her husband, but that on discovering that he was not her husband, which was after the com- mencement but before the termination of the proceeding, her consent or acquiescence terminated, and she ran downstairs. It appeared, I think manifestlj', that the prisoner knew the woman was deceived, as she said to the prisoner in his presence and hearing when he came into the room, " You are soon home to-night," to which lie made no replj'. At the time ray own opinio^, founded upon well known cases in England, was that the prisoner was not guilty of rape, but at the request of the counsel for the Crown I left certain questions to the jurj-, and upon their findings directed them to find a verdict oi guiltj-, reserving the case for the consideration of this court, which is now called upon to decide the qiiestion which arises. There have been several cases in England which have arisen on the point whether the having connection with a married woman bj' personation of her husband amounts to the crime of rape. Rape maj be defined as sexual con- nec tion with a woman forcibly and without her will : Regina v. Fletcher, 8 Cox C. C. 134. It~is plainTiowever "forcibly" does not mean 204 CASES ON CfilMlKAL LAW. [CHAP. XXI, .violentl y, but with that description of force which must be exercised in order to accomplish the act, for there is no doubt that unlawful con- nection with a woman in a state of unconsciousness, produced by pro- found sleep, stupor, or otherwise, if the man knows that the woman is in such a state, amounts to a rape. The case which the court has to deal with is that of connection with a married woman obtained bj' per- sonation of the husband while the woman is awake. On this point subtle distinctions have been drawn. The earliest reported case ap- pears to be that of Eex v. Jackson, Russ. & Ry. 487. There the pris- oner was convicted of burglary with intent to commit a rape on a married woman. It appeared in evidence that the prisoner got into the woman's bed as if he had been her husband and had partial connec- tion with her. The case was considered by the twelve judges. Four of the judges thought having carnal knowledge of a woman while she was under the belief that the man is her husband would be a rape, but the other eight judges thought it would not ; but several of the eight judges intimated that if the case should occur again they would advise the jury to find a special verdict. This case cannot be regarded as one of much authorit}'. Doubts seem to have existed in the minds even of the majority. However, in Regina v. Saunders, 8 C. & P. 265, in the year 1838, a married woman, a Mrs. Cleasby, in likejnannerjgbmitted to connection wit h a man b elieving him tol5e_herJiugbaod, but on dis- co veringjhejni stake she ran_and hanged-berself, but was cut down and re(30vered. Gurney, B., directed the jury that the evidence did not establish a rape, as she consented, but that if they found that it was a fraud on her and that she did not consent as to the person, they might find thejprisoner guilty of an assault, which, was accordingly r.o found, the court proceeding on the enactment of 7 Will. IV. & 1 Vict. c. 85, § 11, which provides that on the trial of any person for any felony which includes an assault, the jury maj' acquit of the felony and find the part3' guilty of an assault, if the evidence should warrant such finding. I do not myself understand the application of the statute. If the consent of the woman prevented fBe" crime bemg aTrape, it would seem that it would also prevent it being an assault, which con- sent excludes. The same point arose in the case of Regina v. Clarke, 1 Dears. C. C. 397, where under similar circumstances the jury having found the prisoner guilt3'^, the judge reserved the case, and upon argu- ment the judges held that they were bound by the decision in R. v. Jackson, and that they ought not to allow the question to be opened, and the conviction was quashed. Regina v. Barrow is reported in 1 L. Rep. C. C. R. 156. All the judges, Bovill, C. J., Channell, B., Byles, Blackburn, and Lush, JJ., there held, under similar circumstances, that when the consent is obtained by fraud, the act does not amount to SECT. I.] EEGINA V. DEE. 205 rape ; contrary-, however, to the opinion of Kelly, C. B., before whom the case was tried, expressed at the trial. The case of Regina v. Flat- ter}- was not a case of personation of a husband J}nt. of spvnnl nnnnpp- tion b^- a me dical man, under pretence of his performing a_surgical operation on aTwoman. UTtHat case the prisoner was adjudged guilty of rape, it being clear that the woman did not submit knowingly to connection but to a different act, Kelly, C. B. saying, " The ease is therefore not witliin the authority of those cases which have been de- cided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection it is not rape." Mellor, Den- man, and Field, J.J., and Huddleston, B., all expressed their dissatis- faction with the dictum of Rex v. Jackson, and their desire that the case should be reconsidered. The last case on the subject of per- sonation appears to be that of Regina v. Young, 14 Cox C. C. 114. Though the prisoner was held to have been properly convicted in that case, it does not clearly illustrate the precise point which is now before us, for on the facts as explained by the judge who tried the case it appeared that the commencement of the sexual connection in that case, which was one of personation, took place while the woman was asleep. Before its completion, however, she awoke and called out to her husband. It would seem that the criminal and felonious act of penetration was completed while the woman was asleep and therefore unconscious. It is well settled, ^sj_have obse rved, that, c.n n- nection with a woman while unconscious does j ^nstitut e rape. The question arises now for our consideration, Are we bound to follow the decisions in England to which I have referred? The series of cases to which I have drawn attention appear to be an echo of the first case of Rex v. Jackson. The others followed, no further argument being treated as necessary. Nevertheless if the doctrine thus estab- lished had been adopted by the judges in England without objection, I do not think that this court should establish a different legal deter- mination, unanimity on such points being of great importance. In its inception, however, that original case of Rex v. Jackson was dis- sented from b3' four of the twelve judges who heard it, while of the majorit}' several apparently doubted the doctrine there contended for. In the case of Regina v. Flattery all the judges desired that this doctrine should be reconsidered. In Ireland, until the present case,, no similar question seems to have arisen ; and it appears to me, under all the circumstances, that it is competent for us, and it is onr duty, to consider the doctrine of those English decisions upon their merits. Now, rape being defined to be sexual connection with a woman without her consent, or without and therefore against her will, it is essential to consider what is meant and intended by consent. Does it mean an 206 CASES ON CEIMIKAL LAW. [CHAP. XXI. intelligent, positive concurrence of the will of the woman, or is the negative absence of dissent sufficient? In these surgical cases it is held that the submission to an act believed to be a surgical operation does not constitute consent to a sexual connection, being of a wholh' diflferent character ; there is no consensus quoad hoc. In the case of personation there is no consensus quoad hanc personam. Can it be considered that there is a consent to the sexual connection, it being manifest that, had it not been for the deceit or fraud, the woman would not have submitted to the act? In the cases of idiocy, of stupor, or of infanc}', it is held that there is no legal consent from the want of an intelligent and discerning will. Can a woman, in the case of person- ation, be regarded as consenting to the act in the exercise of an intelli- gent will? Does she consent, not knowing the real nature of the act? As observed b}- Mr. Curtis, she intends to consent to a lawful and marital act, to which itisher duty to submit. But did she~consent to an act of adultery? Are not the acts themselves whollj' different in their moral nature? The ac t she permitted cannot proij erly be regarded as the real act whichtook place. Therefore the connection was done. m my opinion, witliout her consent, and the crime of rape was consti- tuted. I therefore am of opinion that the conviction should stand confirmed. [Opinions to the same effect were also delivered by the other judges.] WYATT V. STATE, 2 Swan, 394 [1852]. The prisoner was convicted at the February term, 1852, of the Circuit Court of Dickson county. Pepper, J., presiding, and sentence of death pronounced upon him, whereupon he appealed in error. Attorney- General, for the State, said : Although I have been unable to find, in any of the books, the reason of the distinction which is made between the perpetration of the offence of rape, when committed by force, and the same moral offence, when committed by fraudulent deception of the female, yet the cases in which the question has been made are all against the statement of the circuit judge in this instance. 1 Russel Cr. 677 ; Roscoe Cr. Ev. 798 ; Jackson's Case, Russ. & Ry. 487 ; Field's Case, 4 Leigh, 648 ; Saunders' Case, Eng. Com. L. Rep. 34, p. 383 ; and Williams' Case, id. p. 392. In Roscoe Ev. p. 798, n. 1, it is said : " It seems that it is as much a rape when eflfeeted thus, by stratagem, as by force." To support this, reference is made SECT. I.] WYATT V. STATE. 207 to 1 "Wheeler's Criminal Cases, 378, 381, n. ; and also to Fields' Case, in 4 Leigh, above cited. The latter case is at variance with the note in Roscoe. Cakuthers, J., delivered the opinion of the Court. This is an indictment for burglary, in the Circuit Court of Dickson county. The first count charges an intent to commit larcenj' ; the second, to commit a rape upon the body of Mrs. Catherine Francis Evans, a free white woman ; and the third, an assault with intent to commit a rape upon Mrs. Evans. It was proved that the prisoner forced the door of the dwelling-house of the prosecutor, in which he and his wife were sleeping, about 11 or 12 o'clock at night; that he approached the bed in which they were sleeping and put his hand upon her, which aroused her from sleep, and she gave the alarm, wiien the prisoner fled, the prosecutor pur- suing him with his dogs and gun, until he overtook, shot, and disabled him. The error alleged and relied upon for a new trial is in that part of the judge's charge to the jurj', which is in these words : "If the jury believe that the defendant attempted, either by force, or by fraudu- l ently inducing the pro se cutor's wife to believe that it was her hu sband, and thereby to iiave carnal knowledge of her, that then they ought to find him guilty." The jurj- find a general verdict of guilty. They make no reference in their verdict to the separate counts, nor are thcj- informed in the charge that the}' would have a right to find separatel}-, and ditferently on the several counts. We cannot know, therefore, whether they would have found a verdict of guilty, or not guiltj', on the first count. If that had been the verdict, it would not have been material whether the above charge on the other counts was correct or not. We cannot therefore know but that the general conviction was based on the second or third counts. If that were so, it becomes vitallj- material to decide whether the law is correctly laid down in the part of the charge above extracted. We agree with the Attorney-General that the moral turpitude of the crime would be as great when perpetrated by fraud and deception as by force. If we ha d the power to make the law on that sub ject, we wou ld not hes itate to liave it as chargedjbj his honor the j;ircuit jiidge ; and we doubt not but that the legislature will so enact, whenever the case is brought to their attention. In the black catalogue of crimes, there is none which so shocks all men as the one under consideration ; none sliould be more severely^ punished. But we cannot permit even a slave to be punished, without the full benefit of the law as it is, either under the influence of popular feeling or our own abhorrence at his acts. The question with us should ever be, not what the oflfence 208 CASES ON CRIMINAL LAW. [OHAP. XXI. deserves nor what our feelings and individual opinions would dictate, but " what saj-eth the law." We need not now go back into the books of the common law for a definition of felonies ; thej' are given in our penitentiary code, Act of 1829, c. 23. It declares, § 19, that " burglary is the breaking and entering into a mansion house by night, with intent to commit a felony." § 13 : " Eape is the unlawful carnal knowledge of a woman, foreibl}^ and against her will." § 53 : " Any assault and batterj- upon anj' female, with intent forciblj-, and against her will, to have unlawful carnal knowledge of such female " is a felony. By the Act of 1819, c. 35, § 1 : " Murder, arson, burglary, rape, and robbery shall, when committed by a slave, be deemed capital offences, and be punished with death ; provided that the punishment in no case shall extend to life or limb, except in the eases above enumerated." Car. & Nich. 679. By the Act of 1835, c. 19, § 10, it is enacted " that any slave who shall commit an assault or batterj' upon anj- free white person, with an intent to commit murder in the first degree ; or aj^a^eju£on_a_^free whi te woma n, shall, on conviction, be punished with death b}- hang- ing7' Car."^& Nich., 683. The Act of 1833, c. 75, is to the same eflTect, except that it applies to free negroes as well as slaves ; but seems to require, in addition to the assault, that some violence to the person must be committed to constitute the oflfence." An assault, then, with intent to commit a rape, is a capital felony in a slave. But what is the oflfence that he must intend to commit? It is rape ; and the law defines that crime to be the J'orcible carnal know- ledge of a female. To break into and enter a mansion house by night, " with intent to commit a felony," is burglary, which is a capital offence in a slave. The intent to commit a rape, or to make an assault with that intent, is a capital felony in a slave. But the intent is as essential as the act to constitute that felon)' ; and to make out that felony, the intent must be to have the unlawful carnal knowledge of the woman, '■'■forcibly, and agains,t her will." But the law is laid down differentl}' in the charge in this case. Actual_jiarce_lsexcluded as an essential element of the crime. His honor declares the law to be that if his intent was to accomplish his object by fraudulently inducing the lady to believe he was her husband, and in that way attempted to have carnal knowledge of her, the offence would be complete. The idea of force, as one ingredient of the oflfence, according to all the definitions in our acts and in all the criminal authorities, is en- tirely discarded in the instruction to the jury and was well calculated to mislead them. We do not pretend to give or enunciate any opinion on the sufflciencj- or insufficienc}' of the proof in this ease, to produce a conviction upon a correct charge of the law, upon all or any one of SECT. II.] EEGINA V. DICKEN. 209 the counts in this indictment. That will be determined by another jury, under a charge of the law as here expounded and settled. If he has forfeited his life, let it be legally taken, and the law will be thereby honored and public justice sustained. To these conclusions we are brought by an exposition of our own acts of assembly. But we find the same principles laid down in the decided cases and the works on criminal law, to which we will only refer: 1 Russell on Crim's, 677 ; Eoscoe Cr. Ev. 798 ; Saunders' Case, Eng. Com. Law Rep. vol. xxxiv., p. 383 ; and Williams' Case, id. 392 ; Fields' Case, 4 Leigh, 648 ; 3 Chitty Cr. Law, 810. In most of these cases, the precise point of this case came up and was decided as we now decide the question. The current of authority is almost, if not entirely, unbroken on the subject. There is no respectable conflicting authority known to us. Fraud and stratagem, then, cannot be substituted for force, as an element of this offence, according to the existing law. We are then constrained, for this error in the charge, to reverse the judgment and remand the defendant for a new trial. Section 2. The Relation of the Offences op Rape and Caknal Knowledge of Children. REGINA V. DICKEN, 14 Cox C. C. 81 [1877.] Peisonee was indicted for a rape on Rose Bickerton. Evidence was given to show that the prisoner had violated the prosecutrix without her consent. She was a girl above the age of twelve and under the age of thirteen j'ears at the time the offence was committed. C. J. Darling, for the prisoner, argued that the prisoner could not be convicted of felony. He was charged with rape. That offence con- sisted in his unlawfully and carnally knowing the girl against her will ; ^. e., without her consent. But such an offence was now defined in 38 & 39 Vict. c. 94, § 4, and thereby declared to be a misdemeanor. Consequently with respect to girls between the age of twelve and thirteen, the earlier statutes making that offence a felony were repealed. Melloe, J. The prisoner is indicted for rape under the general law. The prosecutrix happens to be above the age of twelve and under the 1 [Affirmed by the Court for Crown Cases Eeserved, Begins v. Ratcliffe, 15 Cox C. C. 127.] 14 210 CASES ON CRIMINAL LAW. [CHAP. XXI. age of thirteen years, and that circumstance is relied on for the defence. The carnal abuse of children having excited the attention of the legis- lature, they have been specially protected by Acts of Parliament. 24 & 25 Vict. c. 100, § 51, enacted that " Whosoever shall unlawfullj' and carnally know and abuse any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanor." Under this provision an offender was punishable whether the girl did or did not consent to his act. In 1875 it was thought desirable that further protection should be given to young girls, and the limit of ten years was extended, by 38 & 39 Vict. c. 94, § 4, declaring that " Who- soever shall unlawfully and carnally know and abuse anj' girl being abovejhe age_of twelvej^ars,_andjinder-the aga_ofJiiirteen,_whether with or without her con sent, shall _be_guilty,af_a^-misdfiiaeanor." Ex dbundanti cautela the words " whether with or without her consent" were inserted in the later enactment ; but save in respect of the alteration in the age of the girl, the law remained exactly' as it was previously, — that is to say, if she consented, the prisoner might be convicted of the statutorj- misdemeanor ; if she did not, a fortiori he might be so. But if she did not consent, his offence would amount also to the higher crime — the felony — of rape, and he might be indicted and tried for it quite irrespective of the modern statutes throwing special protection around children. The present indictment is for rape, and therefore, if the girl consented to the carnal knowledge, the act was not done "against her will," and the crime is not made out. It would be preposterous to suppose that Parliament intended to repeal the law of rape as to girls of the very age during which extra statutory protection is cast over them, and I am clearly of opinion that no such repeal has been effected. Verdict, guilty; sentence, ten years penal servitude. By a note to 38 & 39 Vict. c. 94, § 3, in his Digest of the Criminal Law, p. 173, Sir James F. Stephen writes of the phrase " whether with or without her consent," " These words are obviously a mistake. In the preceding section (where they do not appear) they would hare been superfluous but harmless. In this section they are mischievous ; for if taken literally, they make it impossible to commit a rape upon a girl between twelve and thirteen, as they provide that carnally to know a girl between twelve and thirteen, without her consent, is a misdemeanor. The words ought either to be omitted altogether, or else changed into ' even with her consent.' Probably the Court would so construe them, for it is impossible to suppose that Parliament can have intended the monstrous consequence pointed out above." [Reporter's note.] SECT, n.] COMMONWEALTH V. SUGLAND. 211 COMMONWEALTH v. SUGLAND, 4 Gkat 7 [1855]. Rape. The indictment alleged that the defendant, at Williamsburgh in the county of Hampshire, " with force and arms, in and upon one Julia A. Alvord of said Williamsburgh, then and there in the peace of said commonwealth being, did violently and feloniously make an assault, and her, the said Julia A. Alvord, did then and there, by force, and against her will, feloniouslj' ravish and carnally know, against the peace of said commonwealth and the form of the statute in such case made and provided." The defendant being tried in the Court of Common Pleas and found guiltj', moved in arrest of judgment, because it was not alleged in the indictment whether the said Julia was or was not of the age of ten years, and because the indictment was wholly insuflScient. But Sanger, J. overruled the motion, and the defendant alleged exceptions. Dewet, J. The exception taken to the suflSciency of this indict- ment, if well founded, would show that there has been in our criminal pleading, in indictments for the crime of rape, as usually drawn, a fatal defect in omitting to state that the female alleged to have been forcibly ravished was of the age of ten years or more. This fact should not lead us to sustain the practice, if found to be erroneous, but is not to be entirely overlooked in the consideration of the question before us. It is true that the precise form of the enactment for the punishment of rape, on which this indictment is founded, was first introduced in 1836. Rev. Sts. c. 125, § 18. But in the early statutes of the colony, enacted in 1649 and 1669, we find provisions very sim- ilar to the present statute, taking the distinction tha t the a ct must be done by force if the female was above the age_often years ; but if under ten yea^~of agSTthe act~slIould still be punished with death though the act was done with her consent. Anc. Chart. 60. The province law of 1697 varied in the language and enacted that "if any man shall ravish any woman, by force against her will, or if any man shall unlawfully and carnally know and abuse any woman child under the age of ten years," he shall be punished with death. Anc. Chart. 301. The Sts. of 1784, c. 65, and 1805, c. 97, were very much to the same effect. No doubt would exist as to the suflBciency of the present indictment under either of the two statutes last cited ; and the com- missioners on the Revised Statutes give no intimation, in their report, of any purpose to change the existing law. 212 CASES OK CRIMINAL LAW. [CHAP. XXI. The provisions of tiie Rev. Sts. are quite similar to those which have been enacted in many other States of the Union ; but we do not understand that any change has been introduced in any of them in the ancient form of charging the offence. In North Carolina this very form of indictment has been held sufficient. State v. Farmer, 4 Ired. 226. The construction practically put upon our statutes has been, that the allegation of having, by force and against her will, ravished and car- nally known any female was a description of the offence punishable by the statute ; and that it was only necessarj- to allege her age when the indictment did not allege that the act was done against her will. The real object of the provision of the statute, as to the punishment of offences of this character upon females under ten years of age, was to secure the punishment of rape in all cases and to remove an}' doubts that might have formerly' existed. By our statutes, the punishment for rape embraces all eases of viola- tion of females of ,anj' age. If the party assaulted be above the age of ten years, then, to constitute the offence of rape, the act must have been committed by force and against her will. But if it be upon a child under the age of ten years, it is alike punishable under the stat- ute, whether committed with the consent or against the will of such female child. The present indictment alleges the female to have been ravished and carnallj^ known by force and against her will, and the jury have found the prisoner guilty of this charge. The finding of the jury shows that the prisoner had perpetrated all the acts necessary to constitute the offence punishable by the statute under either of its pro- visions ; and the punishment being precisely similar and absolute in its extent, whether the rape were perpetrated upon a female over or under ten j-ears of age, the Court are of opinion that no sufficient ground is shown for arresting the judgment, and the prisoner may properly be sentenced under the St. of 1862, c. 259, to imprisonment for the term of his life.i Exceptions overruled. COMMONWEALTH v. ROOSNELL, 143 Mass. 32 [1886]. Two indictments, each containing two counts and alleging that the defendant, on March 22 and 23, 1886, respectively, at Fitchburg, in 1 [As to the question of consent in charges of assault with intent upon infants of tender years and of attempt to carnally know such children, see Regina v. Martin, 2 Moody C. C. 129, above, p. 123], SECT. II.] COMMONWEALTH V. EOOSNELL. 213 and upon a female child named, she being under the age of ten years, " feloniously did make an assault with intent the said" child " then and there feloniously to unlawfully and carnally know and abuse." C. Allen, J. The chief argument for the defendant is that an indictment for an assault upon a female child under the age of ten years, with intent to unlawfully and carnally know and abuse her, can- not be maintained without proof that the acts were done without her consent ; that the carnal knowledge and abuse of a child is a special statutory offence, distinct from the crime of rape ; and that the con- sent of the child is no defence to the substantive crime, because the statute expressly so provides or implies, bjit is a defence to the assault with_ inte nt, because the terms of the statute do not extend to the assault and because an assault consented to is no assault in law. And there are many decisions, both English and American, some of which are cited, which sustain this defence. But it is not a valid defence in this Commonwealth. The difficulty in England appears to have arisen from the phrase- ology of the early statutes, punishing carnal knowledge and abuse of a young girl, whether by her own consent or without her consent, appar- ently implying that she might consent thereto. See Regina v. Johnson, 10 Cox C. C. 114. But there has been no such language in any of the Massachusetts statutes ; and even if there had been, it is more in ac- cordance with the spirit of the law simpIyTo hold a girl underjlie. age of ten years incapable of giving a valid consent^ so that the question wHetEeFsEe did or did hot give a foirnal or apparent consent becomes immaterial. If, as all agree, it is immaterial upon a charge of com- mitting the completed act, which includes an assault, no reason but an extremely technical one can be urged whj- it should not be so upon a charge of assault with intent to commit the completed act. Indeed, to speak of an assault upon her without her consent with intent to car- nally know and abuse her with her consent, seems to involve a contra- diction in terms. But when it is once considered that the intention of the law is to declare that a young girl shall be deemed incapable of consenting to such an act to her injury and that evidence of any con- seirtrbyUeFsEair be^ incompetent indefence to an indictment therefor ; and that, although she gives a formal and apparent consent, j-et in law, as in reality-, she gives none, because she does not and cannot take in the meaning of what is done, all legal difficulty disappears, and the conclusion may properly be reached that the assault is without her consent and against her will. This principle has been clearly' main- tained with reference to kidnapping children and removing young 214 CASES ON CEIMLNAL LAW. [CHAP. XXn. slaves from the Commonwealth. Commonwealth v. Nickerson, 5 Allen, 518 ; Commonwealth v. Taylor, 3 Met. 72, 73 ; Commonwealth v. Aves, 18 Pick. 193, 225 ; State v. Rollins, 8 N. H. 550 ; State v. Farrar, 41 N. H. 53. The same principle has also been maintained in some other States, in cases of indecent assaults. People v. McDonald, 9 Mich. 150 ; Hays v. People, 1 Hill (N. Y.) 351 ; Singer v. People, 18 Hun, 418 ; State v. Bsmcy, 83 N. C. 608 ; State v. Johnston, 76 N. C. 209. See also Givens v. Commonwealth, 29 Grat. 880 ; The Queen v. Dee.* Mcceptions overruled. CHAPTER XXII. Larceny. The PEELiMiNAEr Question of Possession. CARTWRIGHT v. GREEN, 8 Ves. 405 [1802]. The bill stated that Ann Cartwright died possessed of a bureau, in a secret part of which she had concealed 900 guineas in specie. After her death Richard Cartwi'ight, her personal representative, lent the bureau to his brother Henry, who took it to the East Indies and brought it back, the contents remaining still undiscovered. It was then sold to Dick for three guineas, wh o deliver edj^. tn t.hp de fendant Green . ^u23IE§pter, for the gurpose^frepainng it. Green employed a person named Hillingworth, who found out the money and received a guinea for his trouble, and the whole sum of 900 guineas was possessed by the three defendants. Green, his wife, and Elizabeth Sharpe, who secreted and converted it to their own use. This bill, charging all these circumstances and that Green paid his debts and bought stock, for which he had no other means except the money found in the bureau, prayed a discovery, stating that the plain- tiff Cartwright had brought an action as personal representative of Ann Cartwright. Dick joined in the bill as a plaintiff, but did not set up any claim to the money on his own account. The three defendants demurred, stating as the ground of demurrer that the discovery sought may subject the defendanpr~to''criminal punishment. 1 [Above, p. 203.] CHAP. XXII.] CAKT WEIGHT V. GEEBN. 215 Mr. Hart, in support of the demurrer. This bureau was trusted to the defendant Green for the specific purpose of repairs. Therefore the allegation of opening the drawer and taking the monej' amounts to a charge of a felonious taking ; as in the case of a common carrier breaking open a parcel and _takingj)art of the property from it, which is a felony. . . . Mr. Romilly and Mr. Sail, in support of the bill. This case is very distinct from that of a bailee, carrier, etc., opening and taking goods delivered for some special purpose. This bureau was delivered by Dick, the visible owner by purchase, but not of these effects, supposing himself to have nothing but the bureau, not imagining anything was contained in it. There is a strong distinction in point of morality between a deliverj' of goods for a particular purpose and such a deliv- ery as this, without knowing it. Green mi ght take out the money jdth a view to find the owner. The purpose of repair required him to open every part of the bureau. The finding was sufficient information that Dick was not the owner. It was like finding and appropriating prop- erty, the owner of which was not known, which, though done animo furandi, is unquestionably not a felony according to Lord Hale. If this can be considered as something of deliver}', yet it would not amount to a felonj'. In the case of a horse hired and not returned, if obtained colorably with a viewTcTthe conversion, that may amount to a feTony, but if the origin51""object was lawful, as for a journey, the subsequent conversion is not a felony. So a conversion of cloth deliv- ered by a clothier, or property received by a carrier, was not a felonj'. Then came the case of a package opened, but there the purpose and the property were known ; it was evidently taken not for the purpose of carrying it, but for the purpose of committing a felony. Certainly the distinctions lately introduced, unknown to the common law, between taking a part and the whole, are verj' nice. Mr. Hart, in reply. . . . Dick was in complete possession of this bureau and its contents, a possession sufficient to sustain a prosecution for- felony. Where is the losing and finding in this case, which are relative terms ? The bill states applications to the defendant, when this discovery was made, the answer to which was a denial. That would be evidence before a jury as to the unlawful purpose. The bill repre- sents the purpose of the delivery to make some trifling repairs, — not a complete repair, making it necessary to search every part. How can this be distinguished from the case of a bailee or carrier, the pur- pose of delivery being specific, a part of the property being taken and severed, like the case of the miller taking part of the corn out of the sack. 216 CASES ON CEIMINAL LAW. [CHAP. XXII. The Lord Chancellob [Eldon]. Finally the question in this case will be, whether the bill charges a felony or not. To the objection that the demurrer covers too much, the answer is, that the bill is in aid of an action, and if it appears upon the bill that the action is founded in a felony, the policy of the law requires that the Court should not give the discovery. As to the ground that the wife being present with her husband could not be punished, and therefore the demurrer is bad because all three joined, the answer is, that all the three may now join ore tenus in another ground of demurrer, which would be good, namelj', that the discovery is in aid of an action, which, if founded in felonj', the Court cannot aid. The question therefore is reduced to this, whether the facts stated amount to felony or larceny, upon which the distinctions are so extrem£lynice_and^^epend upon attention to so many cases and are so important in the consequences, that T will not trust myself to say anything upon the m, unti l I have seen all the cases and consulted several of the judges. April 28. The Lord Chancellor [Eldon]. This case involves a very delicate consideration in equity, for, whatever was the old doc- trine as to larceny, distinctions have been taken in late cases, which make it frequently the subject of verj' nice consideration whether the taking is a trespass or only a breach of trust. I have looked into the books and have talked with some of the judges and others, and I have not found in any one person a doubt that this is a felony. TQ_gonsti- tute felony there must of necessity be a felonious taking. Breach of trust will not do. But from all the cases in Hawkins there is no doubt, this bureau being delivered to the defendant for no other purpose than repair, if he broke open any part which it was not ne cessary to t ouch for the purpose of repair but with an iritentionjto take and appropriate to his own use what he should find, that is a felonious taking within the principle of all the modern cases, as not being warranted by the purpose for which it was delivered. If a pocket-book containing bank notes was left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket and the notes out of the pocket- book, there is not the least doubt that is a felony. So, if the pocket- book was left in a hackney coach, if ten people were in the coach in the course of the day, and the coachman did not know to which of them it belonged, he acquires it by finding it certainly, but not being intrusted with it for the purpose of opening it ; and that is a felony ac- cording to the modern cases. There is a vast number of other cases. Those with whom I have conversed upon this point, who are of very high authority, have no doubt upon it. This demurrer therefore must be allowed. CHAP., XXII.] MBKEY V. GEEBN. 21T MEERY V. GREEN, 7 M. & "W. 623 ri841]. Trespass for assault and false imprisonment. [Defence that 'the plaintiff had committed a theft and that the defendant had lawfully caused his arrest and detention.] At the trial before Tindal, C. J., at the last Warwickshire Assizes, the following appeared to be the facts of the case. Messrs. Mammatt and Tunnicliffe, who had for some time resided together at Ashbj-de- la-Zouch, in the same house, and keeping the same table and servants, in October, 1839, broke up their establishment and sold their furniture (which was partly joint and partly separate propertj') by public auction. At that sale t he plaintiff, who w asa shoemaker also residing in Ashby, became the purchaser, at the sum of £1 6s., of an old secretary or bui'eaTrrtlle^ separate~prb'peYty of Hr. Tunnicliffe. The plaintiff kept the bureaunTr^his house, and on the 18th of November following, he sent for a boy of the name of Garland, a carpenter's apprentice, to do some repairs to the bureau. While Garland was so engaged, he remarked to the plaintiff that he thought there were some secret drawers in the bureau, and touching a spring, he pulled out a drawer which contained a quantity of writings. The_plaintiff then jiiscovered another drawer, in which was a, ]3urse containiflig^several sovereigns and other coins, and under the purse a quantity of bank notes. Of this propertj' the plain- tiff took possession, and telling Garland that the notes were bad, he opened the purse and gave him one of the sovereigns, at the same time charging him to keep the matter secret. Garland being interro- gated by his parents how he came by the possession of the sovereign, the transaction transpired ; and it being subsequently discovered that the plaintiff had appropriated the property to his own use, fajsgly alleging that he had never had possession of a great portion o£it,_tUe defendants (one of whom was the solicitor of Mr. Tunnicliffe) went with a police officer to the plaintiff's house, took him into custodj', and con- vej-ed him before a magistrate, on a charge of felonj'. The plaintiff was ultimately discharged, the magistrate doubting whether a charge of felony could be supported. At the trial, a w itness of the name of Hannah Jenkins was called on behalf of the plaintiff, who deposed IRM'^liemis^Tese'nf^atlhe'a'uctio and remembered the pie^cFoOirni- ture in"question being put up for sale and bought by the plaintiff; that after it was sold, an observation was made by some of the bystanders 218 CASES ON CRIMINAL LAW. [CHAP. XXU. to the effect that the plaintiff might have bought something more than the bureau, as one of the drawers would not open, upon which the auctioneer said, "So much the better for the buyer ;" add ing, "I have sold it with itsrconteflts, and it is his." This statement was op- posed by the evidence of the auctioneer, who stated, on cross-exami- nation by the defendant's counsel, that there was one drawer which would not open, and that what he had said was, " That is of no consequence ; I have_sold[ the secretary an d not its con tents." It did not appear that any person knew that the bureau contained anything whatever. The learned chief justice, in summing up, told the jury, that as the property had been delivered to the plaintiff as the purchaser, he thought there had been no felonious taking ; and left to them the ques- tion of damages only, reserving leave for the defendant to move to enter a non-suit. The jury found a verdict for the plaintiff with £50 damages. In Michaelmas term, Whitehurst obtained a rule to show cause why the verdict should not be set aside and a non-suit entered or a new trial had. Parke, B. In this case there was clearly no bailment, because there was no intention to part with the property in question. It amounts therefore, only to a finding, and comes within the modern decisions on that subject. It is a matter fit for our serious consideration, and we will speak to the chief justice before we deliver our judgment. No doubt the same evidence is necessary in the present case as would be required to support an indictment. Cur. adv. vult. The judgment of the Court was now delivered by — Parke, B. Mj"^ Lord Chief Justice thought in this case that, even assuming the facts of which evidence was given by the defendant to be true, the taking of the purse and abstracting its contents was not a larceny ; and that is the question which he reserved for the opinion of the Court, giving leave to move to enter a non-suit. After hear ing the argument, we have come to the conclusion that, if the _def£ndant'^_case was true, there was sufBcient evidence of a larceny by the plaintiff ; but we cannot direct a non-suit, b ecause a factjwas depose d, to on the pa rt qfthe_plaintiff which ought to have been left to the jury, and which, if believed by them, would have given a colorable right to him to the con- tents of the secretary as well as to the secretary itself; namelj', the declaration of the auctioneer that he sold all that the piece of furniture contained with the article itself : and then the abstraction of the con- tents could not have been felonious. There must therefore be a new trial and not a non-suit. CHAP. XXILJ MEEEY V. GEEEN. 219 Biit-i£.we asaumie,. as the defendant's case was, that the plaintiff had express notice that he was not to have an^' title to the contents of the secretary if there happened to be anything in it, and indeed without such express notice, if he had no ground to believe that he had bought the contents, we_ are all of opijiion jthat there was evidence to make out a case qfjarcenj-. It was contended that there was a delivery of the secretary and the money in it to the plaintiff as his own property, which gave him a lawful possession, and that his subsequent misappropriation did not constitute a felonj^. But it seems to us, that though there was a deliv- er\' of the secretary and a lawful property in it thereb}- vested in the plaintiff, there wa s no delivery s o asJo_giyea_lawful possession q/" the purse and money. The vendor had no intention to deliver it nor the vendee to receive it ; both were ignorant of its existence ; and when the plaintiff discovered that there was a secret drawer containing the purse and monej', it was a simple case of finding, and the law applica- ble to all cases of finding applies to this. The old rule, that "if one lose his goods and another find them, though he convert them animo furandi to his own use, it is no larceny," has undergone in more recent times some limitations ; one^5_thatifJiie finder knows who the owner of the lost chattel is, or jf, from an}' mark ilpon~it~or the circumstances under which it is found, the owner could be" reasoh'aBly ascertained, then the fraudulent conversion animo furdndi'cQns^intes a larceny. Under this head fall the cases where the finder of a pocket-book with bank notes in it with a name on them converts them animo furandi; or a hackney coachman, who abstracts the contents of a parcel which has been left in his coach by a pas- senger, whom he could easily ascertain ; or a tailor who finds and ap- plies to his own use a pocket-book in a coat sent to him to repair bj' a customer, whom he must know : all these have been held to be cases of larceny ; and the present is an instance of the same kind and not dis- tinguishable from them. It is said that the offence cannot be larcenj^ unless the taking would be a trespass, and that is true ; but if the finder, from the circumstances of the case, must have known who was the owner, and instead of keeping the chattel for him, means from the first to appropriate it to his own use, he does not acquire it by a rightful title, and the true owner might maintain trespass ; and it seems also from Wj'nne's Case, that if, under the like circumstances, he acquire possession and mean to act honestly, but afterwards alter his mind and open the parcel with intent to embezzle its contents, such unlawful act would render him guilty of larceny. We therefore think that the rule must be absolute for a new trial, in order that a question may be submitted to the jury whether the plain- 220 CASES ON CRIMINAL LAW. [CHAP. XXIX. tiff had reason to believe that he bought the contents of the bureau, if any, and consequently had a color of right to the property. Rule absolute for a new trial. EEGINA V. ASHWELL,! 16 Cox C. C. 1 [1885]. CROWN CASE RESERVED. Case reserved for the opinion of the Court bj' Denman, J., at the Januarj- Assizes, 1885, for the county of Leicester, which stated the following facts : — On the 23d of January, 1885, Thomas Ashwell was tried for the larceny of a sovereign, the monej' of Edward Keogh. Keogh and Ashwell met at a public house on the 9th of January. At about eight p.m. Ashwell astoed Keogh to go into the j'ard, and when there requested Keogh to lend him a shilling, saying that he had money to draw on the morrow, and that then he would repaj' him. Keogh consented, and putting his hand into his pocket, pulled out what he believed to be a shilling but what was in fact a sovereign, and handed it to Ashwell, and went home, leaving Ashwell in the j'ard. About nine the same evening Ashwell obtained change for the sovereign at another public house. At 5.20 the next morning (the 10th) Keogh went to Ashwell's house and told him that he had discovered the mistake, whereupon Ashwell denied having received the sovereign, and on the same evening he gave false and contradictory accounts as to where he had become possessed of the sovereign he had changed at the second public house on the night before. But he afterwards said, "I had the sovereign and spent half of it, and I shan't give it him back because I only asked him to lend me a shilling." 1 [Held (per Lord Coleridge, C. .T., Grove and Denman, JJ., Pollock and Huddle- eton, BB., Hawkins and Cave, JJ.), that the taking was not complete when the sovereign was handed to A., and that there being an animus furandi on his part at the time when the taking was completed by his becoming aware of what it was which he had received, he was guilty of larceny at common law. Held (per Field, Manisty, Stephen, Smith, Day, and Wills, JJ.), that the taking was complete at the time when K. handed the sovereign to A., and therefore as at that time there was not any animus furandi on A.'s part, he was not guilty of larceny at common law. Held, further, by a majority of the court, that A. was not guilty of larceny as a bailee within 24 & 25 Vict. c. 96, § 3.] CHAP. XXII.] KEGINA V. ASHWELL. 221 Mr. Sills, for the prisoner, submitted tliat there was no evidence of larceny, no taking, no obtaining b3' tricli or false pretence, no evidence that the prisoner at the time he received the sovereign knew it was not a shilling. Pie referred to Regina v. Middleton, L. Rep. 2 C. C. R. 43, 45. Mi: A. IT. Ztoyd, for the prosecution, called my attention to Stephen's Criminal Law Digest, art. 299, and to the cases relating to larceny of property found. I declined to withdraw the case from the jury, thinking it desirable that the point raised should be decided by the Court of Criminal Appeal. The passage in Stephen's Digest referred to is as follows : '* Theft may be committed by converting property which the owner has given to the offender under a mistake which the offender has not caused, but which he knows at the time when it is made, and of which he fraudulently takes advantage. But it is doubtful whether it is theft fraudulently to convert property given to the person converting it under a mistake of which that person was not aware when he received it." The jury found that the prisoner did not know that it was a sovereign "at the time he received it, but said they were unanimously of opinion that the prosecutor parted with it under the mistaken belief that it was a shilling, and that the prisoner, having soon after he received it dis- covered that it was a sovereign, could have easilj', restored it to the prosecutor, but fraudulently appropriated it to his own use and denied 'the receipt of it, knowing that the prosecutor had not intended to part with the possession of a sovereign, but only of a shilling. They added that, if it were competent to them consistently with these findings and with the evidence to find the prisoner guilty, they meant to do so. I entered a verdict of guiltj' but admitted the prisoner to bail, to come up for judgment at the next assizes if this court should think that upon the above facts and findings the prisoner could properly be found guilty of larceny. March 21. Before Lord Coleridge, C. J., Grove, Lopes, Stephen, and Cave, JJ. • ••"••••" Jiene 13. This case was re-argued before the following learned judges, — Lord Colekidge, C. J., Grovk and Denman, JJ., Pollock, B., Field, J., Hoddleston, B., Manisty, Hawkins, Stephen, Mathew, Cave, Dat, Smith, and Wills, JJ. Smith, J. read the following judgment : The prisoner in this case was indicted for the larceny of a sovereign, the moneys of Edward Keogh. The material facts are as follows: Keogh handed to the prisoner the sovereign in question, believing it was a shilling and not 222 CASES ON CKIMINAL LAW. [CHAP. XXII. a sovereign, upon the terms that the prisoner should hand back a shil- ling to him whea he (the prisoner) was paid his wages. At the time the sovereign was so handed to the prisoner he honestly believed it to be a shilling. Some time afterwards the prisoner discovered that the coin he had received was a sovereign and not a_shillin£j_and_then^and there fraudulentlj"^ appropriated it to his own use. Is this larcenj' at common law or by statute? To constitute the crime of larceny at common law, in my judgment there must be a taking and carrjing away of a chattel against the will of the owner, and at the time of such taking there must exist a felonious intent in the mind of the taker. If one or both of the above elements be absent, there cannot be larceny at common law. The_taking_niust be under such ci rcumstances a s would sustain an action of trespass. If there be a bailment or delivery of the chattel by the owner, inasmuch as, among other reasons, trespass will not lie, it is not larceny at common law. In c. 19, § 1, at p. 142 of vol. i. of Hawkins' Pleas of the Crown, it is stated: " It is to be observed that all felony includes trespass, and that every indict- ment of larceny must have the words felonice cepit as well as asportavit. Whence it follows that if the party be guilty of no trespass in taking the goods he cannot be guilty of felony in carrying them away." As I understand, the counsel for the Crown did not really dispute the above definition, and indeed, if he had, upon further referring to the 3d In^ stitutes, chap, xlvii., p. 107, and the 1st Hale's Pleas of the Crown, p. 61, it would be found to be fully borne out \)y those writers. The two cases cited in argument, Eex v. Mucklow, 1 Moody's Crown Cases, 161, and Regina v. Davies, Dears. 640, are good illustrations of what I have enunciated ; and if other cases were wanted there are plenty in the books to the same effect. In the present case it seems to me, in the first place, that the coin was not taken against the will of the own er, and if this be so, in my judgment it is suflSclent to show that there was no larceny at common law ; and secondlj-, it being conceded that there was no felonious intent in the prisoner when he received the coin, this, in mj- judgment, is also fatal to the act being larcenj- at common law. As to this last point, the law laid down by Cockburn, C. J., Blackburn, Mellor, Lush, Grove, Denman, and Archibald, JJ., in the case of Regina v. Middleton, L. Rep. 2 C. C. 45. is very pertinent; it is as follows: " We admit that the case is undistingnishable from the one supposed in argument of a person handing to a cabman a sovereign by mistake for a shilling ; but after a careful weighing of the opinions to the contrary, we are decidedly of opinion that the property in the sovereign would not vest in the cabman, and the question whether the cabman was guilty of larceny or not would depend upon this, — whether at the time he took the sovereign he was aware of the mistake and had CHAP. XXII.J KEGINA V. ASHWBLL. 223 then the guilty intent, the animus furandi." I believe the above to be good law. The contention, however, of the Crown was that, although the above might be correct, yet the present case was to be likened to those cases in which finders of a lost chattel have been held gniltj' of larceny. The principle upon which a finder of a lost chattel has been held guilt}' of larceny is that he has taken and carried away a chattel, not believing that it had been abandoned, and at the time of such taking has had the felonious intent, — the proper direction to be given to a jury being, as I understood, " Did the prisoner at the time of finding the chattel intend to appropriate jt to his own use, then believing that the^'true owner could be found, and that the chattel had not been abandoned?" See Reginaw. Thurborn, 1 Denison's Crown Cases, 388 and Regina v. Glyde, L. Rep. 1 C. C. 139. If he did, he would be guiltj' of larcenj' ; aliter he would not. Then it was argued, as argued it was by the counsel for the Crown, that the prisoner in this case was on the same footing as a finder of a chattel. In my judgment the facts do not support it. Keogh, in the present case, intended_to_delivfirJihe coin to the prisoner and the prisoner to receive it. The chattel, TTaniely the coin, was delivefecl over to the prisoner by its owner, and the prisoner received it honestlj'. He always knew he had the coin in his possession after it had been delivered to him. The only thing which was subsequently found was that the coin delivered was worth 24bc?. instgaxTof 12(7., as had been supposed. This argument, as it seems to me, conf ounds the findin°L Ojjt_of a mistake with the jSn,(Jiiig.,Q|ji^.Qhattel. In some cases, as above pointed out, the finder of a chattel may be guilty of larcenj' at common law ; but how does that show that the finder out of a mistake may also be guilty of such a crime ? A mistake is not a chattel. The chattel (namely the coin) in this case never was lost ; then how could it be found ? In mj' judgment the argument upon the point for the Crown is wholly fallacious and fails. It was further urged for the Crown that the present case was covered by authority, and the cases of Cartwright v. Green, 8 Ves. 405, and Merry v. Green, 7 M. & W. 623, were cited in this behalf. I fail to see that either case is an authority for the point insisted upon bj' the Crown. In the first case, Cartwright v. Green, 8 Ves. 405, the question arose upon demurrer to a bill in Chancery as to whether a felony was disclosed upon the face of the bill. Lord Eldon, as he states in his judgment, decided the ease upon the ground that, inasmuch as the bureau in question had been delivered to the defendant for no other purpose than repair, and he had broken open a part of it which it was not necessary to touch for the purpose of repair with the intention of taking and appropriating to his own use whatever he should find therein, it was larceny. I conceive this to be distinctly within the principle I have above stated, — there 224 CASES ON CRIMINAL LAW. [CHAP. XXII. was the taking against the will of tiie owner with the felonious intent at the time of talking. The other case, namely, Merry v. Green, 7 M. & W. 623, which was also the case of a purse in a secret drawer of a bureau which had been purchased at a sale, was clearly decided bj' Parke, B., who delivered the judgment of the Court, upon the principles applicable to a case of finding. The learned Baron says : "It seems to us that though there was a delivery of the secretary and a lawful property in it thereby vested in the plaintiff, there was no deliver^' so as to give a lawful possession of the purse and money. The vendor had no intention to deliver it nor the vendee to receive it ; both were ignorant of its existence ; and when the plaintiff discovered that there was a secret drawer containing the purse and monej', it was a case of simple finding, and the law applicable to all cases of finding applies." I understand the learned Baron, when he says " the law applicable to all cases of finding applies," to mean the law applicable to the cases of finding a chattel; for there are no cases extant as to finding_out a mistake to which his remark could apply. That, too, is the distinction between the present case and that before Parke, B. In Merry u. Green, 7 M. & W. 623, no intention to deliver the chattel (namely, the purse and money) at all ever existed, wjiereas in the presentcase theiLe,_.was every intention to deliver the chattel (namely, the coin), and it was delivered and honesFly received. In my judgment, a man who honestly receives a chattel by delivery thereof to him by its true owner cannot be found guilty of larceny at common law, and in my opinion the prisoner in this case is not guilty of that offence. The second point has now to be considered, namel3', was he guilty of larceny as a bailee within the true intent of § 3 of 24 & 25 Vict. c. 96? To consti- tute a person bailee of a chattel there must be a bailment and not a mere delivery of the chattel. There must be a delivery of a chattel upon contract express or implied to return the chattel or obey the mandate with which the delivery is clogged, or in other words a delivei-y upon condition. The question as it seems to me is this, Is the law in the present case to imply a condition when we know perfectly well that at the time of the delivery of the coin no condition at all was in the contemplation of the parties, excepting that a coin of like value should be returned to Keogh when the prisoner had drawn his wages? _No_ condition to return the coin delivered to the prisoner was ever thought of, and in my judgment, such a condition cannot be implied. Should, however, any condition be implied as to what was to be done if or when any mistake not then contemplated should be discovered, my opinion is that the only condition, if anj', which could be implied would be that the prisoner would not spend or use for his own purposes 19«. out of the 20s. ; and I am of opinion that if the prisoner had, upon finding CHAP. XXII.] EEGINA V. ASHWELL. 225 out the mistake, taken to Keogh 19s., he would have been strictly within his rights. The case of Regina v. Hassall, L. & C. 58, is an express authority to the effect that a person is not a bailee within the statute unless he is under obligation to return the identical chattel deposited with him. In my judgment the prisoner was not a bailee of the sovereign for ' the reasons above given. I am fully alive to the remark which hd,s been made, that if the present case is not one of larceny, it should be. Whether this remark is well founded or not I do not pause to inquire ; but it seems to me that the observations of Bramwell, B., in Regina v. Middleton, L. Rep. 2 C. C. 38, on this head are well worthj^ of consideration. Believing however, as I do, that according to the law of England, as administered from the earliest times, the present case is not a case of larceny at common law, I cannot hold otherwise than I do ; and as for the reasons given above, the prisoner is not, in m^- opinion, guilty of larceny as a bailee, my judg- ment is that the conviction should be quashed. Cave, J. (As the learned judge was unable to attend, the following . judgment, written by him, was read by Lord Coleridge, C. J.) The question we have to decide is, whether under the circumstances stated in the case the prisoner was rightly convicted of larcenj', either at common law or as a bailee. It is undoubtedly a correct proposition that there can be no larceny at common law unless there is also a tres- pass, and that there can be no trespass where the prisoner has obtained lawful possession of the goods alleged to be stolen ; or in other words, the thief must take the goods into bis possession with the intention of depriving the owner of them. If he has got the goods lawfully into his possession before the intention of depriving the owner of them is formed, there is no larceny. Applying that principle to this case, if the prisoner acquired lawful possession of the sovereign when the coin_was acEualIy"^nded to him by the prosecutor, there is no larceny, for at that" time the "prisoner did not steal the coin; but if he only acquired possession when he discovered the coin, to be a sovereign, then he is guilty of larceny, for at that time he knew that he had not the consent of the owner to his taking possession of the sovereign as his own, and the taking under those circumstances was a trespass. It is contended that, as the prosecutor gave and the prisoner received tlie coin under the impression that it was a shilhng and not a sovereign, the prosecutor never consented to^gart with the possession of the sove reign ,^an3 con- sequently there was a taking by the^prisoner without his consent ; but to mymTnHTirTslmpMsible to come to the conclusion that at the time when the sovereign was handed to him, the prisoner, who was then under a bona fide mistake as to the coin, can be held to have been guilty of a trespass in taking that which the prosecutor gave him. It 16 226 CASES ON CRIMINAL LAW. [CHAP. XXII. seems to me that it would be equally logical to say that the prisouer would have been guilty of a trespass if the prosecutor, intending to slip a shilling into the prisoner's pocket without his knowledge, had by mistake slipped a sovereign in instead of a shilling. The only point which can be made in favor of the prosecution, so far as I can see, is that the prisoner did not actually take possession^.untilj^ knew what the coin was of which he was taking possession, in which case, as he then determined to deprive the prosecutor of his property, there was a taking possession simultaneously with the formation of that intention. Had the coin been a shilling, it is obvious that the prisoner would have gained the property in and the possession of the coin when it was handed to him by the prosecutor ; as there was a mistake as to the identity of the coin no property passed, and the question is whether the possession passed when the coin was handed to the prisoner or when the prisoner first knew that he had got a sovereign and not a shilling. There are four cases which it is important to consider. The first is Cartwright v. Green, 8 Ves. 405, which however differs slightly from the present, because in that case there was no intention to give the defendant Green either the property in or the possession of the guineas, but only the possession of the bureau, the bailor being unaware of the existence of the guineas. If the bailee in that case had, before discovering the guineas in the secret drawer, negligently lost the bureau with its eon- tents, it is diflflcult to see how he could have been made responsible for the loss of the guineas. In Merry «. Green, 7 M. & W. 623, the facts were similar to Cartwright v. Green, 8 Ves. 405, except that the bureau had been sold to the defendant. In that case Parke, B., says that though there was a delivery of the bureau to the defendant, there was no de- livery so as to give a lawful possession of the purse and money in the secret drawer. If these cases are rightly decided, as I believe them to be, they establish the principle that a man has not possession of that of the existence of which he is unaware. A man cannot without his consent be made to incur the responsibilities toward the real owner which arise even from the simple possession of a chattel without further title, and if a chattel has without his knowledge been placed in his custody, his rights and liabilities as a possessor of that chattel do not arise until he is aware of the existence of the chattel and has assented to the possession of it. A case much urged upon us on behalf of the prisoner was Rex v. Mucklow, 1 Moody's CsQipi Cagesj 160. In that case a letter containing a draft for £10 lis. 6d. had been delivered to the prisoner, although reallj' meant for another person of the same name, and the prisoner appropriated the draft, and was tried and convicted of larceny. The conviction, however, was held wrong on the ground that he had no animus furandi when he first received the letter. Here, as CHAP. XXII.] KEGINA V. ASHWELL. 227 in the two previous eases, the prisoner was not at first aware of the existence of the draft, and when he became aware of it he must have known that it was not meant for him, yet the judges seem to have held that he got possession of the draft at the time when the letter was handed to him. In Reginaw. Davies, Dearsley's Crown Cases, 640, the facts were similar to those in Mucklow's Case, 1 Moody's Crown Cases, 161 ; and Erie, C. J., then Erie, J., who tried the case, directed the jury that if at the time the prisoner received the order he knew it was not his property but the property of another person of known name and address, and nevertheless determined to appropriate it wrongfully to his own use, he was guilty of larceny, and that in his opini on t he prisoner had not received it until he had discovered, by opening and reading tMletEer, whether it belonged to him or not. " I considered," saysTEi3u3ge7^'that the law of larceny laid down in respect of articles found was applicable to the article here in question." The court, however, quashed the conviction on the authority of Mucklow's Case, 1 MoodyV Crown Cases:; 160. In Eegina v. Middleton, L. Rep. 2 C. C. 38, in which it was held by eleven judges against four that, where there was a delivery of money under a mistake to the prisoner, who received it animo furandi, he was guilty of larceny, there occurs a passage in the judgment of some of the judges who formed the majoritj^, which, is as follows: "We admit that the case is undistinguishable from the one supposed in the argument, of a person handing to a cabman a sovereign by mistake for a shilling ; but after carefully weighing the opinions to the contrary, we are decidedlj- of opinion that the property in the sovereign would not vest in the cabman, and that the question whether the cabman was guilty of larceny or not would depend upon this, — whether he, at the time he took the sovereign, was aware of the mistake, and had then the guilty intent, the animus furandi." For my part I am quite unable to reconcile the cases of Rex V. Mucklow, 1 Moody C. C. 161 and Regina v. Davies, Dears. C. C. 640, and the passage I have cited from Regina v. Middleton, L. Rep. 2 C. C. 38, with those of Cartwright v. Green, 8 Ves. 405 and Merry v. Green, 7 M. & W. 623 ; and being compelled to choose be- tween them, I am of opinion that the law is correctly laid down in Merry v. Green, 7 M. & W. 623, for the following reasons : The accept- ance by the receiver of a pure benefit unmixed with responsibility may fairly be, and is in fact, presumed in law until the contrary is shown ; but the acceptance of something which is of doubtful benefit should not be and is not presumed. Possession unaccompanied by ownership is of doubtful benefit; for although certain rights are attached to the possession of a chattel, they are accompanied also b}' liabilities toward the absolute owner which may make the possession more of a burden 228 CASES ON CRIMINAL LAW. [CHAP. XXIL than a benefit. In my judgment, a man cannot be presrimed to assent to the possession of a chattel ; actual consent must be shown. Now a man does not consent to that of which he is whollj' ignorant ; and I think, therefore, it was rightly decided that the defendant in Merry v. Green, 7 M. & W. 623, was not in possession of the purse and money until he knew of their existence. Moreover, in order that there may be a consent, a man must be under no mistake as to that to which he consents ; and I think therefore that Ashwell did not consent to the possession of the sovereign until he knew that it was a sovereign. Suppose that while still ignorant that the coin was a soA'ereign he had given it away to a third person who had misappropriated it, could he have been made responsible to the prosecutor for the return of 20s f In my judgment he could not. If he had parted with it innocently, while still under the impression that it was only a shilling, I think he could have been made responsible for the return of a shilling and a shilling only, since he had consented to assume the responsibilitj' of a possessor in respect of a shilling onlj'. ' It may be saMJ.hai.a^^xdeiLis responsible for the safe custody of the contents of^ji^QX-d&liKfiEed to him to be carried, although he may be ignorant of the nature of its contents ; but in that case the carrier consents toJ)fe^sponsible for, the safe custodj^'of the box and its contents whatever they may happen to be ; and, moreover, a carrier is not responsible for the loss of valuable articles, if he has given notice that he will not be responsible for such articles unless certain conditions are complied with, and is led by the consignor to beheve that the parcel given to him to carrj' does not contain articles of the character specified in the notice. Batson v. Donovan, 4 B. & A. 21. In this case, Ashwell did not hold himself out as being willing to assume the responsibilities of a possessor of the coin, whatever its value might be ; nor can I infer that at the time of the delivery he agreed to be responsible for the safe custody and return of the sovereign. As, therefore, he did not at the time of delivery subject himself to the liabilities of the borrower of a sovereign, scTalEo I think that he is not entitled to the privilegfs. attending -theJawful possession of a borrowed sovereign. When he discovered that the coin was a sovereign, he was I think bound to elect, as a finder would be, whether he would assume the responsibilities of a possessor ; but at the moment when he was in a position to elect, he also determined fraudulently to convert tlie sovereign to his own use ; and I am there- fore of opinion that he falls within the principle of Regina v. Middleton, L. Rep. 2 C. C. 45, and was guilty of larceny at common law. For these reasons I am of opinion that the conviction was right. [Opinions were also delivered by Lord Coleridge, C. J., and Mathbw, Stephen, Hawkins, Manistt, Field, and Denman, JJ.] CHAP. XXII.J EEGINA V. FLOWERS. 229 REGINA V. FLOWERS, 16 Cox C. C. 33 [1886]. Case reserved by the learned Recorder for the borough of Leicester, at the last Epiphany Quarter Sessions for that borough, upon the trial of an indictment which charged one Charles Flowers with having, on the 31st day of October, 1885, while being servant to one Samuel Len- nard and another, feloniously stolen, taken, and carried away certain money to the amount "oneven^Bflings and one pennj' Ealipinny, the property of the said Samuel Lennard and another, his masters. It appeared from the case that the prisoner had been for about three months next preceding the 31st day orOctober, 1885, a clicker in the service of Messrs. Lennard Brothers, a firm of shoe manufacturers in Leicester, lETwEose^istablishment the following mode of payment of the wages of their employees was adopted, namely: — The amount of wages due to each workman was calculated from the time book and entered in the wages book. Each amount was then made up and put into a small paper bag, which was then sealed ; and the bags so secured, were sent to the various rooms in which the men worked. The foreman of each of such rooms then distributed the bags containing the wages among the men under his charge. When a mis- take occurred the workman affected thereby took his bag to one Francis Cufflin (the clerk) to have the mistake rectified. On the 31st day of October there was due to the prisoner the sum of sixteen shillings and eight pence, and after the workmen had been paid their~wages the prisoner came to Cufflin and said that he was three pence short, and gave him the bag into which his money had been put. The top of the bag had been torn off, and the bag was empty. Another workman named Jinks had also come to Cufflin for a correction^n hlslnoney, statin"g that flvepence or sixpence was due to him, and had handed to Cufflin his bag with seven shillings and eleven pence halfpenny in it. Cufflinjt^reupon gave the jim mistake Jinks's bag, and also three pence in copper, into his hand, and the "prisonefT having received Jinks's bag, went away immediately, and in the presence of one of his fellow-workmen emptied the contents of Jinks's bag into his hand, saying, " The biter has got bit; he has paid me double wages." He then turned to another man and said, " Come on, we '11 go and have a drink on it." At the close of the case for the prosecution, it was submitted on behalf of the prisoner that there was no case to go to the jury, as the evidence failed to show that the prisoner at the time he received the 230 CASES ON CEIMINAL LAW. [CHAP. XXII. seven shillings and eleven pence halfpennj- from Cufflin had the ard- mus furandi^ or guilty mind, essential to constitute the offence of lar- ceny, and that any subsequent fraudulent appropriation of the money by the prisoner was immaterial in so far as the offence of larceny was concerned. The learned Recorder, however, held that there was evidence to go to the jury of the prisoner having the animus furandi at the time he received from Cufflin the money, and he also ruled, in deference to the opinion of certain of the learned judges in Eegina v. Ashwell, 53 L. T. Rep. N. S. 773 ; 16 Cox C. C. 1 ; 16 Q. B. Div. 190 ; 55 L. J. 65, M. C, that if the prisoner received the money innocently but afterwards fraudulently appropriated it to his own use, he was guilty of larceny. Having directed the jury to this effect, he put to them the following questions, namely : — 1. Did the prisoner, from the time he received fi-QajjQufflinJi,e_bag containing the seven shillings and eleven pence halfpenny, know that it did not belong to him? To this the" jury answered. No. 2. Did the prisoner, having received the bag and its contents inno- cently, afterwards fraudulently appropriate them to his own use ? And to this the jury answered. Yes. The learned Recorder thereupon directed a verdict of guilty to be entered on the first count of the indictment, which was that above set out, and reserved the question for the consideration of this court whether, the jury not having found affirmatively that the prisoner had the animus furandi at the time he received the seven shillings and eleven pence halfpenny from Cufflin, he could be rightly convicted of larcenjf by reason of the subsequent fraudulent appropriation by him of the said money to his own use. No one appeared on behalf of the prosecution or the prisoner. Lord Coleridge, C. J. This case might have raised a very subtle and interesting question. The manner in which the learned Recorder has stated it, however, raises a question which is distinguishable &om that which was raised in the case of Regina v. Ashwell. Now, in that case, the judges who decided in favor of the conviction never meant to question that which has been the law from the beginning, and to hold that the appropriation of chattels which had previously been inno- cently received should amount to the offence of larceny. If that case is referred to, it will be seen that I myself assumed it to be settled law that where there has been a delivery of a chattel from one person to another, subsequent misappropriation of that chattel by the person to whom it has been delivered will not make him guiltj' of larceny except by statute. In the present case, however, the learned Recorder appears to have directed the jury that, if the prisoner received the CHAP. XXII.] EEGINA V. i'LOWEES. 231 7s. Hid. innocently, but afterwards fraudulently appropriated the money to his own use, he was guilty of larceny. But no such rule was intended to be laid down in Regina v. Ashwell, and the direction of the learned Recorder was not, in my opinion, in accordance with that decision. It is quite possible for the jury to have considered con- sistently with that direction that a fraudulent appropriation, six months after the receipt of the money, would justify them in finding the pris- oner guilty of larceny. The question we are asked is, whether the jury not having found affirmatively that the prisoner had the animus fur andi at the time he received the money, he was rightly convicted of larceny by reason of the subsequent fraudulent appropriation. In my opinion lie was not. The judgments of those judges who affirmed the convic- tion in Eegina v. Ashwell, if carefully read, show that they considered that to justify a conviction for larceny there must be a taking posses- sion simultaneously with the formation of the fraudulent intention to appropriate, and that was not the case here. Manisty, J. I am of the same opinion. The difference of opinion among the judges who decided the case of Regina v. Ashwell was in the application to the particular facts in that case of the settled prin- ciple of law tllff;Mj1g__iDflnf,e"t Tpppipt. Q£-a— cb.aj±ftl^. /^aiiplgfl -with t.hp subsequent fraudulent appropriation of that chattel, does not amount toTafceny!! 3!Ln3~whiIe certain of the judges were of opinion that there had been a fraudulent taking and not an innocent receipt and held that Ash well had been guilty of larceny, the others, on the contrary, were of opinion that there had been an innocent receipt, and that therefore there had been no larceny. I am glad to think that the old rule of law remains unaffected. Hawkins, J. The old rule of law was not questioned by any of the judges in Regina v. Ashwell. This case is distinguishable, for here the learned Recorder told the jury that if the prisoner received the 7s. ll^d. innocently but afterwards fraudulently appropriated that money to his own use, he was guilty of larceny. It appears clear to me that that direction could not be right, and that the learned Recorder misapprehended the rule of law. Day, J. I was one of those who dissented from affirming the con- viction in Regina v. Ashwell and have only to add that, in my opinion, this conviction cannot be supported. Grantham, J. I am of the same opinion. Conviction quashed. 232 CASES ON CRIMINAL LAW. [CHAP. XXIL VVzW^Ccc«V ^S^^-^ • wfa-j- , "^ '''' 6 ~ ^ ^ Z"^^- "i O *-^- REGINA V. IlEED,! 23 L. J. N. s. M. C. 25 [1853]. CEOWN CASE RESERVED. At the General Quarter Sessions of the Peace, for the County of Kent, holden at Maidstone on the 4th of Januar3', 1853, Abraham Reed was tried upon an indictment for jeloniously s tealing 2 cwt. of coals, the propertj' of William Newton, his master, on the 6th of De- cember, 1852, 'and James Peerless was charged in the same indictment with receiving the coals, knowing the same to have been stolen and was acquitted. The evidence of the prosecutor, William Newton, was as follows : I am a grocer and miller at Cowden and sell coals by retail. The prisoner Reed entered my service last year, about three weeks before the 6th of December. On that day I gave him directions to go to a customer to take some flour and thence to the station at Edisbridge for 10 cwt. of coals. I deal with the Medway Compunj', who have a wharf there, Holman being wharfinger. I told Reed to bring the coals to my house. Peerless lives, about five hundred yards out of the road from the station to my house. Reed went about 9 a. m. and ought to , have come back between 3 and 4 p. m.,' but as he had not come back I went in search of him at half-past 6 and found him at Peerless's. The cart was standing in the road opposite the house, and the two prisoners were taking coals from the cart in a truck-basket. It was dark. I asked Reed what business he had there ; he said to deliver half a hun- dredweight for which he had received an order from Peerless. Reed had never before told me of such an order and had no authoritj' from me to sell coals. Later that evening I went and asked Peerless what coals he had received from my cart ; he said half a hundredweight. I asked him how they were carried from the cart. He said in a sack. I weighed the coals when brought home and found the quantity so brought 1\ cwt. and 4 lb. I went to Peerless's next daj' and found some coals there, apparently from half a hundredweight to three quar- ters. Upon his cross-examination he stated as follows : I believe Peerless had sometimes had coals from me. When I came up they were shutting the tail of the cart, but some coals were in a truck-basket at their feet. Reed said at once that he had received ah order from 1 Coram Lord Campbell, C. J., Jervis, C. J., Pollock, C. B., Parke, B., Coleridge, J., Maule, J., Erie, J., Piatt, B., Williams, J., and Talfourd, J. CHAP. XXII.J EEGINA V. KEED. 233 Peerless. It was two hours later when I asked Peerless and when he said he had ordered them. Keed said he had carried 2 cwt. in, but that was two hours after. On his re-examination he said I think Peer- less had had some coals from me about a fortnight before the 6th. James Holman, another witness for the prosecution, said : I am whar- finger to the Medway Company at the Edisbridge Station and Newton deals there for coals. Reed came on the 6th of December and asked for half a ton for Newton and I supplied him. I entered them at the time to Newton, and now produce the book with the entry. Newton was then re-examined and said : Reed came to me on the morning of the 7th. I told him 2f cwt. were missing. He then said one sack had been left at the wharf bj' mistake. I therefore charged him with only three quarters of a hundredweight. Holman upon re-examination said Reed left a sack behind him but it was an empty one. This being the case for the prosecution, Mr. Ribton, counsel for the prisoner, submitted that there was no case to go to the jury on the charge of larceny, inasmuch as the possession of the coals left at Peer- less's had never been in Newton, the master. Mr. Rose, counsel on the part of the prosecution, contended that the coals were constructively in the possession of Newton and that the offence was properly charged as larceny ; but that under the provisions of the Act 14 & 15 Vict. c. 100, § 13, it was immaterial whether the offence was larceny or embezzlement, as the jury might find a verdict either for larceny or embezzlement. Mr. Ribton then proposed that it should be left to the jury as a charge of embezzlement, but to this Mr. Rose objected on the ground that the receiver must then be acquitted. The Court was of opinion that there was constructive possession in the master, and left the case to the jury as a case of larceny upon the evidence, who thereupon found the prisoner Abraham Reed guilty. Mr. Ribton then applied to the Court to submit the case for the Court of Criminal Appeal, contending that the conviction was wrong in law, as if any offence had been committed it was embezzlement and not larceny. The Court acceded to the application and respited judg- ment, and discharged Reed upon his entering into recognizances him- self in £20 and one surety in £20 to receive judgment at the next Court of Quarter Sessions for Kent. The case was argued originally (April 23, 1853) before Jervis, C. J., Parke, B., Aldekson, B., "Wightman, J., and Cresswell, J. ; but as their Lordships did not agree it was directed to be re-argued before all the judges. 234 CASES ON CRIMINAL LAW. [OHAP. XXII. Loud Campbell, C. J. I am of opinion that the prisoner has been properly convicted of larceny. There can be no doubt that in such a case the goods must have been in the actual or constructive possession of the master, and that if the master had no otherwise the possession of them than by the bare receipt of his servant upon the delivery or care of them for themaster's use, although as against third persons this is in law a receipt of the goods by the master, yet in respect of the servant himself this will not support a charge of larceny ; because as to him there was no tortious taking in the first instance and consequently no trespass. Therefore if there had been here a quantity of coals de- livered to the prisoner for the prosecutor, and the prisoner having re- mained in the personal possession of them, as by carrying them on his back in a bag, without anything having been done to determine his origiriar exclusive possession, had converted them aninio furandi, he would have been guilty of embezzlement and iiot of larceny. But if the servant had done anything which determines his original exclusive possession of the goods so that the master thereby comes construc- tively into possession, and the servant afterwards converts them animo furandi, he is guilty of larceny, andjipt merely of a breach of trust at common law or of embezzlement under the statute. On this supposi- tion he subsequently takes the goods tortiously in converting them, and commits a trespass. We have therefore to consider whether the exclu- sive possession of the coals continued with the prisoner down to the time of the conversion. I am of opinion that this exclusive possession ■was-jdetermined when _the coals were deposited m-the-prose cutor's c art inthe^samejianner as if they had been deposited in_the^rosecutor's cellar, of which "the prisoner had the .charge. The prosecutor was un- doubtedly in possession of the cart at the time when the coals were deposited in it ; and if the prisoner had carried off the cart animo furandi he would have been guilty of larcenj'. Robinson's Case.' There seems considerable difficulty in contending that if the master was in possession of the cart he was not in possession of the coals which it contained, the coals being his property and deposited there by his order for his use. Mr. Hibton argued that the goods received by a servant for his master remain in the exclusive possession of the servant till they have reached their " ultimate destination / " but he was unable, notwithstanding his learning and ingenuity, to give any definition ot " ultimate destination " when so used. He admitted that the master's constructive possession would begin before the coals were deposited in the cellar, when the cart containing the coals had stopped at his door, and even when it had entered his gate. But I consider that the point 1 2 East, P. C. 565. CHAP. XXII.J EEGINA V. EBED. 235 of time to be regarded is tliat wlien tlie coals were deposited in the cart. Thenceforth the prisoner had only the custody orjcharge of the coals as a butler has of his master's plate or a groom of his master's horse. To this conclusion I should have come upon principle ; and I think that Spears's Case is an express authority to support it. The following is an exact copy of the statement of that case signed by Buller, J., in pp. 182, 183 of the 2d volume of the Black Book, con- taining the decisions of the judges in Crown cases and deposited with the Chief Justice of the Queen's Bench for the time being: "John Spears was convicted before me at Kingston for stealing fort}' bushels pf oats of James Brown & Co., in a barge on the Thames. Brown & Co. sent the prisoner with their barge to Wilson, a corn-meter, for as much oats as the barge would cany, and which were to be brought in loose bulk. The prisoner received from Wilson 220 quarters in loose bulk and five quarters in sacks ; the prisoner ordered this quantity to be put into sacks. The quantity in the sacks was afterwards embez- zled by the prisoner ; and the question reserved for the opinion of the judges is whether this was felonj', the oats never having been in the possession of the prosecutor, or whether it was not like the case of a servant receiving change or buying a thing for his master but never delivering it. F. Buller. " Vide Dyer 5 and 1 Shower, 52. " April 25, 1798. " Conviction proper." The question arose whether the corn, while in the prosecutor's barge, in which it was to be brought to the prosecutor's granary, was to be considered in the possession of the prosecutor ; and the judges unani- mously held that from the time of its being put into the barge^t^was in the prosecutor's possession, although "Ithe prisoner had jthe custody or charged it7"^hat case has been met at the bar by a suggestion that ffie'whole cargo of corn, of which the quantity put on board the barge was a part, was or might have been purchased by the prosecutor so that he might have had a title and a constructive possession before the delivery to the prisoner. But the very statement of the case in the Black Book and the authorities there referred to show that the judges turned their attention to the question whether the exclusive possession of the servant had not been determined before the conversion ; and during the argument of The King v. Walsh we have the ratio decidendi in Spears's Case explicitly stated by one of the judges who concurred in the decision, Heath, J. : " That case went upon the ground that the corn was in the prosecutor's barge, which was the same thing as if it had been in his granary." Eead " cart " for " barge," " coals " for " corn," and " cellar " for " granary," and the two cases are for this purpose pre- 236 CASES ON CRIMINAL LAW. [CHAP. XXII. cisely the same. There is no conflicting authority, for in all the cases relied upon by Mr. Ribton the exclusive personal possession of the prisoner had continued down to the wrongful conversion. It is said that there is great subtlety in giving- such an effect to the deposit of the coals^ in the prosecutor's cart ; but the objection rests upon subtlety wholly uncon- nected with the moral guilt of the prisoner, for as to that it must be quite immaterial whether the property in the coals had or had not vested in the prosecutor prior to the time when they were delivered to the prisoner. We are to determine whether this would have been a case of larcenj' at common law before there was any statute against embezzlement ; and I cannot think that there would have been any reproach to the administration of justice in holding that the subtlety arising from the prosecutor having had no property in the subject of the larceny before its delivery to the prisoner who stole it, was suffici- ently answered by the subtlet}' that when the prisoner had once parted with the personal possession of it so that a constructive possession by the prosecutor began, the servant who subsequently stole it should be liable to be punished, — as if there had been a prior property and pos- session in the prosecutor ; and that the servant should be adjudged liable to be punished for a crime instead of being allowed to say that he had only committed a breach of trust, for which he might be sued in a civil action. In aj)proaching the confines of different offences created at common law or by statute, nice distinctions must arise and must be dealt with. In the present case it is satisfactory to think that the ends of justice are effectually gained by affirming the conviction, for the only objection to it is founded upon an argument that the prisoner ought to have been convicted of another offence of the same character, for which he would have been liable to the same punishment. Pabke, B. Now that the facts of Spears's Case have been ascer- tained I consider myself bound by the authority of that decision to say that the prisoner was guilty of larceny. The other judges concurred. Conviction affirmed. SECT. I.] EEX V. RICHARDS. 237 CHAPTER XXni. ,,« Larceny. Subjects of Lakcent. Section 1. Articles part of the Realty. EEX V. RICHAEDS, El'ss. and Et. C. C. 28 [1802] . The prisoners were tried before Mr. Sergeant Best, at the Lent Assizes for the Countj^ of Hertford, in the year 1802, on an indictment on the 4 G. II. c. 32, ^ charging them, in the first count, with stealing, on the 25th of February, 1802, at Abbott's Langley, five hundred pound s weight of lead of the value of £5, belonging to Thomas^il- fi ers h^-o e^i jKarl of"€?l3readQirrteeg"iira certain ~outlet Tielonging to his dwelling-house, against the statute, etc. The second count stated that the lead was fixed in an outlet belong- ing to a certain building called the Temple of Pan. The third count, that it was fixed in an outlet belonging to a certain building. The fourth, fifth, and sixth counts were the same as the above, only stating that the lead was fixed in a garden instead of an outlet. It appeared on the trial that the lead stolen consisted of three images, which, at the time they were taken by the prisoners, were standing on three pedestals, to which thej' were" fastened with irons, and the pedestals were fixed in the ground. The images were standing near a brick building called the Temple of Pan, which was erected in an enclosed field belonging to the Earl of Clarendon, about half a mile from his dwelling-house and without his lordship's park pales, from which it was separated by a public road. The Temple of Pan was occasionally used by Lord Clarendon as a 1 By which it is enacted, That every person who shall steal, rip, cut, or break, with intent to steal, any lead, iron bar, iron gate, iron palisado, or iron rail whatso- ever, being fixed to any dwelling-house, outhouse, coach-house, stable, or other building used or occupied witli such dwelling-house, or thereunto belonging, or to any other building whatsoever, or fixed in a ny garden^orchard, courtyard, fence, or outlet belonging to any dwelling-house or otiier "biiilding, shall bvaeemed toTieguiIfy of felony. 238 CASES ON CRIMINAL LAW. [CHAP. XXIII. tea-drinking place. ^The building had doors and windows, which were kept shut when the family of Lord Clarendon were not using it ; the doors opened into the place where the images stood. The only other building within the inclosure was an open building, which was once a barn, but it was then only used as a coach-house when the familj' came to the Temple of Pan. The jury, on very clear evidence, found both prisoners guilty ; but judgment was respited, in order to take the opinion of the judges on the question, whether the stealing of lead, situate as these images were, was felony. In Easter term, on the 6th of May, 1802, all the judges met at Lord Ellenborough's chambers, when the conviction was held wrong, thisjbeing no outlet or garden belonging to any house or building. FEEENS V. O'BRIEN r r^fT>:'2{ [188^].' Case stated by justices under 20 & 21 Vict. c. 43, and 42 & 43 Vict. c. 49& r. At the hearingof an informata on before two justices of the county of Durham, charging the respondent with having feloniously stolen, taken, and carried awaj- two buckets of water, the property of the appellants, and of the value of \d., it was proved that the appellants were the owners of a collierj' in the county of Durham, which was supplied with water by the VVeardale and Shildon Water Companj-,. Limited ; th.at the colliery being out of the district in which the water company were authorized to supply water by their Act of Parliament, a meter was placed upon the water company's ground, and the water was brought fi'om "the^ meter to the colliery by means of undCTg round pipes laid down by the appellants ; that the water was then supplied to houses occupied by the appellants' workmen bj' means of branch pipes to which taps were attached, the workmen being allo wed to take wate r from the taps on paj-ment of a fixed price ; and that the respondent was seen to take the water in question from one of the taps without having agreed to pay for the same. The respondent having pleaded " not guilty " and desired to be dealt with summarily, the justices declined to convict her of the offence charged. The question of law for the opinion of the Court was whether or not water could be the subject of larceny at common law. E. Ridley, for the appellants, was not required to argue. SECT. I.] EEGIKA V. EDWARDS. 239 Granger, for the justices, contended that water could not be the subject of larceny at common law, and that this contention was sup- ported by. the fact that the legislature had thought it necegsary to impose statutory penaltiesfor the taking .of water from pipes belonging to -water companies" l^To & 11 Vict. c. 17, § 59, amended by 26 & 27 Vict. c. 93, § 16. The Court (Field and Mathew, JJ.) were of opinion that water, under the circumstances and in the condition described in the case, could be the subject of a larceny at common law, and they directed the case to be remitted to the justices with a statement of this opinion. Case remitted. EEGINA V. EDWARDS, 13 Cox C. C. 384 [1877]. COURT OF CRIMINAL APPEAL. The prisoners were tried at the "West Kent Quarter Sessions, held at Maidstone, on the 5th of January, 1877, on an indictment charging them with stealing three dead pigs, the property of Sir William Hart Dyke, Bart. The evidence was to the following effect : The three pigs in question having been bitten by a mad dog. Sir William Hart Dyke, to whom they belonged, directed his steward to shoot them. The steward thereupon shot them each through the head and ordered a man named Paj-lis to bury them behind the barn. The _steward stated that he had no intention_Qf_digging them up again or of making any use of them. Taylis"buried the pigs, pursuant to directions, behind the barn on land belonging to Sir William Hart Dyke, in a place where a brake stack is usually placed. The hole in which the pigs were buried was three feet or more deep, and the soil was trodden in over them. The prisoner Edwards was employed to help Paylis to bury the pigs. Edwards was seen to be covering the pigs with brakes, and in answer to Paylis's question why he did so, said that it would keep the water out, and it was as well_tq_bury them " clean and decent." The twoprisoners went thi~same^vening ana"Hug up the pigs, and took them to the railway station, covered up in sacking, with a state- ment that they were three sheep, and sent them off for sale to a sales- man in the London Meat Market, where^ey were sold for £9 js. 9(?., which was paid to the prisoners for them. The counsel for the prisoners submitted that there was no evidence 240 CASES ON CRIMINAL LAW. [CHAP. XXIII. in support of the charge to go to the jurj' on the following grounds ; Firstly-, that the property was not proved as laid in the indictment, as Sir William Hart Dyke had abandoned his property in . the pigs ; secondlj', that under the circumstances the buried pigs were of no value to the prosecutor ; and, thirdly, that under the circumstances the buried pigs were attached to the soil, and could not¥e thelubject of larceny. The Chairman, however, thought that the case was one for the jury, and directed them as to the first point that in his opinion there had been no abandonment, as Sir William's intention was to prevent the pigs being made any use of; but that if the jury were of opinion that he had abandoned the property' they should acquit the prisoners. He also told the jury that he thought there was nothing in the other two objections. The jury found the prisoners guilty. The question for the consideration of the Court is, whether, having reference to the objections taken by prisoners' counsel there was evi- dence on which the jury were justified is convicting the prisoners of larcenj-. If the answer to this question be in the negative, then the conviction to be quashed, otherwise affirmed. No counsel appeared to argue on either side. By the Court : Conviction affirmed. HOSKINS V. TARRANCE. 5 Blackf. 417 [18401 Appeal from the Montgomery Circuit Court. Devtet, J. This was an action of slander. The worfs laid in the declaration to have been spoken by the defendant of the plaintiff, among others, are, " He broke into my room and stole the key." Plea, not guilty. Verdict and judgment for plaintiff. There was eviden ce that the defendant said of the plaintiff, " He broke into a room of my house and stole the key out of the door." The defendant moved the Court to instruct the jurj-, "That the key in tEeHock of~tfie"door of a house, and belonging thereto, is part of the realtjs and not the subject of larceny, unless the same is first severed from the realty by one act and then stolen bj' another and distinct act." The Court refused the charge. This refusal gives rise to a question not free from technical difficul- ties. It was anciently decided in England that charters and other assurances of real estate, and the chest in which they were kept. SECT. I.] HOSKINS V. TAERANCE. 241 savored so much of the realty that they could not be the subjects of theft. But it was held in a later case that a window-sash not hung or beaded into the frame but fastened there by laths nailed aci'oss so as to prevent it from falling out, was the subject of larceny. Rex v. Hedges, 1 Leach C. C. 201. It is not easy, on principle, to reconcile these decisions. The latter case turned on the point that the tem- porary fastening of the window-sash did not make it a fixture. Cer- tainly title papers and the trunk which contains them are not fixtures. Thej' are as removable as any kind of personal property. But such papers descend to the heir or pass to the purchaser of the estate to which they belong. There' is goodreason why they should do so ; the safety of titles, of which they are the evidence, requires it But would not the window-sash have taken the same course in the event of a descent cast, or alienation, of the house to which it was attached ? We see no necessary or reasonable connection between the rule that title papers shall pass with the estate and the principle which has been made to exclude them from the possibility of being feloniously stolen. Indeed, the spirit of that very rule — having the securitj- of title for its object — is violated by withholding from the evidences of title tlfe protection of criminal justice. If all the technical consequences of considering charters and deeds as a part of the real estate were to be carried out, their owner, if dispossessed, would be obliged to resort to an action of ejectment or writ of right to recover them, — a conclu- sion scarcely more absurd than the doctrine that they cannot be the subjects of larceny, which is itself nothing but a technical deduction, and not very fairly drawn, from the premises assumed as its founda- tion. There are certainly various purely personal chattels which at common law go to the heir, with regard .to which theft may be com- mitted, namely, some species of heirlooms, and things in the nature of heirlooms — such as carriages, tables, utensils, and furniture, coat- armor, and pennons, etc. On the contraiy, there are things which go to the executor, the taking oTwEicFwith "whatever intent is but tres- passaii3''not larceny. Emblements not severed from the ground are of this character. But reasoning analogous to that which excludes charters and deeds, though they have no actual connection with the freehold, from being the subjects of larceny — because they pass with the real estate — would include within those subjects emblements, for they follow the personalty, though they are attached to the soil. It is true that the keys of a house follow the inheritance ; and the writers who lay down this doctrine make no distinction between keys in the lock and those in the pockets of their owners. They are never- j theless not fixtures, but personal property, which from a rule of lawj founded on public convenience like title papers go with the land. And 16 242 CASES ON CRIMINAL LA"W. [OHAP. XXIII. as no decision, so far as we know, has as yet ranked them among the articles upon which larcenj' cannot be committed, and as we see no good reason for carrying the doctrine of exemption farther than it has already gone, we feel at liberty, upon the authority of Rex v. Hedges, supra, as well as on principle, to decide that as "personal goods" they are within the purview of our statute relative to crime and punish- ment, and are the subjects of theft. Rev. Sts. 1838, p. 207. The Circuit Court committed no error in refusing the instructioa to the jury which was asked for by the defendant. Section 2. Deeds Savoring of the Realty. REX V. WESTBEER, 1 Leach C. C. 14 [1739]. At the Old Bailey, January Session, 1739, Thomas Westbeer was indicted before Lord Chief Baron Comyns and Mr. Justice Chappie for stealing a parchment writing, purporting tq_be_a_commiasipn, dated in the reign of Queen Anne, empowering the Commissioners therein named (pursuant to an order which had been previously made in Chancery, in a cause between Lord Chesterfield and John Cantrell and others) to enter and ascertain the boundaries of the manors of Brad- bury and Hartsherne and to certify how high the water of^Furnace Pool ought to be kept, etc. ; and also one other parchment writing, purpbrtiiig to be a return made to the said commission. The property was laid to be the goods of our sovereign lord the King, and of the value of four shillings. The Court, upon hearing the evidence, expressed a doubt whether the offence amounted to felony. The jury therefore found a special verdict, "That the prisoner was guilt}' of privately taking away a pai'chment writing, value one pennj', from the records in the Court of Chancery, purporting to be a commission under the broad seal ; and anotiier parchment writing annexed thereto, v.al ue one pe nny, pnrport- ing to be the return to the said commission, with intent to steal the same; that they were the goods of the King; and that the cfinse of which they were the records was finally determined in the year 1717." In Trinity term, 1740, this special verdict and the indictment were removed by certiorari into the Court of King's Bench. Three objec- tions were raised on the part of the prisoner : First, th at it was a fa lse conclusion of the jury that these parchments were the goods of the Ktnf; secondly, that being records, the indictment ought to have S~ECT. ir.] EEX V. WESTBEEK. 243 been on 8 Hen. VI. c. 12, § 3,^ which introduces an entire new law;. (thirdly, that thej' concerned the realtj', and could not become the' subjects of larceny, from their constructive adherence to, and coniiec- tion with, the freehold. This ease was twice argued at the Bar ; but the two first points were'- very slightly spoken to and not much relied upon. On the third point it was argued on the part of the Crown that these parchment writings were neither chattels real nor choses in action ; and the only question would be, whether thej' could be construed to be charters concerning the inheritance. The reason given by Mr. Serjeant Hawkins '■' why a felony cannot be committed of these things is, because, " being of no use but to the owner, they are not supposed to be so much in danger of being stolen and therefore need not be provided for In so strict a manner as those things which are of a known price, and everybody's money." But the present parchments are not of that description, for the jury have affixed such a value to them as will make the offence petty larceny. For charters which concern the realty, the heir may bring his actionj^but^fbr these records no such action will lie. The case in the Year Book ° from which this distinction is drawn, says that felony cannot be committed of charters which concern the realtj', because they cannQt-be-salued ; but a value has been here affixed, and i t is well k nown that for certain purposes old parchments will sell for a considerable price. It is clear that the relation to the realtj' does not alone create the exemption, for there is no doubt but it would be felony to steal an heir-loom, and j-et that {favors of the I'ealtj-. It was admitted by the counsel for thejrisoner that the parchment- writings were neither chattels real nor choses in action ; but it was contended that as thej' related to the boundaries of manors andTh'ie rfght of water, they were charters which concerned the realtj' ; for what can affect the inheritance more than the right of water and the boundaries of a manor? It is true, perhaps, that the heir could not 1 [in. And moreover it is ordained, That if any record, or parcel of tlie same writ, return, panel, process, or warrant of attorney in tlie King's courts of cliancery, elccliequer, the one bench or the other, or in liis treasury, he willingly stolen, taken away, withdrawn, or avoided by any clerk, or by other person, because whereof any judgment shall be reversed ; that such stealer, taker away, witlidrawer, or avoider, their"procuratori,'c6unsellors, and abettors, thereof Indicted, and by process there- upon made thereof duly convict by their own confession, or by inquest to be taken of lawful men, whereof the one half shall be of the men of any court of the same courts, and the otlier half of other, shall be judged for felons, and shall incur the pain of felony. And that the judges of the said courts of the one bench or of the other, have power to hear and determine such defaults before them, and thereof to make due punishment as afore is said.] 2 [1 Hawk. P. C. 142.] » [10 Edw. 4, pi. 14.] 244 CASES ON CRIMINAL LAW. [CHAP. XXIII. maintain an action to recover them, because they are of that nature whicli are called nullius in bonis, and every man has an equal right to resort to them. They are in the possession of the Crown, as being public records, but it does not follow from thence that they are the property of the King. The Court gave no opinion whether these were properly laid to be the goods of the King, nor whether the law as to this case was altered by 8 Hen. VI. c. 12 ; but they were unanimously of opinion that these parchment writings concerned the realty, and that therefore the prisoner was not guilty of the felony charged in the indictment. Section 3. Choses in Action. EEGINA V. POWELL, 5 Cox C. C. 396 [1852]. COURT OF CRIMINAL APPEAL. The following case was stated by Talford, J. : — William Powell was tried before me at the last assizes for Brecon on an indictment charging him with burglariously breaking and entering the dwelling-house of David Williams in the night time, with intent to ''*2BLS22^iSS^chattels therein. The prisoner in 1843 borrowed of David Williams the sum of £600 and executed to him a mortgage in fee of freehold land, and in the year 1848 he borrowed of Williams the further sum of £200 and exe- cuted another mortgage by way of further charge on the same land. Both deeds contained the provisos of redemption and covenants for the payment of the principal and interest of the sums advanced. Williams, the mortgagee, brought an action of debt against the pris- oner for the recoverj' of these sums remaining unpaid, which was pending and approaching trial when the burglary was committed. The., evidence proved that the prisoner committed the burglary in order to steal the mortgage securities ; and in answer to aTquestion piiFto the jury by me, after they had delivered a verdict of guilty, they stated that the offence was committed with intent to steal the mortgage- deeds. In a bundle with the first deed, which had been kept in a drawer ransacked on the night of the burglary, was a satisfied and cancelled bond of a former mortgage belonging to Williams the mort- SECT, in.] KEGINA V. POWELL, 245 gagee, and which was also afterwards kept with both mortgage-deeds ; but these were, in fact, at the office of the mortgagee's attorney when the burglary was committed. On the part of the prisoner it was objected that the intent was not properly alleged in the indictment, as though the mortgage-deeds might be the subject of statutable larceny, as " valuable securities," they were not goods and chattels. I overruled the objection, thinking that the mortgage-deeds being substantially securities for debts and con- taining covenants to pay principal and interest, weredistingHiahable fromd eeds, which as " sayoring, of Jibe realty" were not the subjects of larcejiy_at common law, and that the parchments on which the covenants were inscribed were chattels, if indeed the words "goods and'cfiattels ^^might not be rejected as surplusage. The prisoner was sentenced to ten years' transportation, but doubts having been suggested if he was properly convicted on the objection as applied to the facts, I present this case for the judgment of the Court of Criminal Appeal. The prisoner remains in this country under his sentence. The counsel for the prosecution also relied on the satisfied bond as, at all events, the subject of larceny. The question for the Court is whether the conviction is right. Jervis, C. J., now delivered the judgment of the Court. After reading the case, his lordship said : The case assumes that the prisoner broke and entered the house, with intent to steal the mortgage- deeds, they being securities for money. It is therefore quite unneces- sary to deal with the question whether mortgage-deeds, containing covenants to pay, are distinguishable from deeds savoring of the realty, because securities for money are not goods and chattels. Calye's ease,^ 8 Eep. 33 a ; Chanell v. Eobotham,^ Yelv. 68. The case of R. V. Vyse, 1 Moody C. C. 218, was different; the notes had been paid ; they had become mere paper and stamps, the property of the prosecutor, and were therefore his goods and chattels. • In this cas e, the mortgage securities were not satisfied. We therefore think that tW"convictioii was wrong. Conviction reversed. 1 In Calye's case it is said : " Wiiich words (bona et cattaUa) do not of their proper nature extend to charters, and evidences concerning freehold or inheritance, or obligations, or other deeds or specialties, being tilings in action." 2 In Chanell v. Robotham, which was an action of trespass for taking goods and chattels, it was held that the plaintiff was not entitled to recover a bond or the value of it under that description. 246 CASES ON CRIMINAL LAW. [CHAP. XXIII. Section 4. "Written Papek or Parchment not Savoring of the Realty, and not Containing Operative Choses in Action, AND therefore, Viewed as Mere Pieces of Paper or Parch- ment, AND so, AS "Goods and Chattels." REX V. WALKER,! 1 Moody C. C. 155 [1827J. The prisoner was tried before Newman Knowllys, the Recorder, at the September Sessions at the Old Bailey in the year 1826, for grand larcen3\ The indictment consisted of eight counts. The first count charged iim with stealing, on the 9th of October, in the Inner Temple, one roU of parchment, being records of the Court of Common Pleas at West- minster and containing remembrances and rolls of the said court and dockets of causes entered of record in the said court, value ten shillings, the property of our lord the King. The second count was the same as the first, except laying the prop- erty to be in the four judges of the Court of Common Pleas by their respective names and offices. The third count was the same as the first, except laj-ing the prop- erty in the three prothonotaries of the said court by their respective names and offices. The fourth count was the same as the first, except laying the property in Thomas Sherwin. The facts to prove the stealing were clear ; and the jury found the prisoner guilty on the first four counts. In Hilary term, 1827, the Judges met and considered this case, and held, that as the records did not concern the realty, as was the case in R. v. Westbeer,^ stealing the parchment was larceny, and the conviction therefore right. 1 [The offence was committed prior to the passage of the Statute 7 & 8 Geo. IV. c. 29, § 21 of whicli provides specifically for the larceny of records, and the case therefore proceeds upon the common law.] ^ [1 Leach C C. 13, above p. 242.] SiSOT. IV.] REGINA V. WATTS. 247 EEGINA V. WATTS, 4 Cox C. C. 336 [1850]. COURT OF CRIMINAL APPEAL. Wilde, C. J., now delivered the judgment of the Court. We have considered this ease and we are all of opinion that the counts in the indi ctment which chargejthe_stealing^ a piece of paper, the propexty of Goldsmid and others the masters of the prisoner, are supported by the evidence. By the statement of the case it appears that Goldsmid and others are the directors of the company and that by its constitution they have the appointment and dismissal of the servants in the emploj of the society ; that they fix and pay their salaries and also fix the duties which they are to perform. The prisoner was a salaried clerk in the office and therefore he was their servant. They have also the ultimate charge and custody of the documents of the company, and by the course of business between the company and its banlfers the paid checks, which are part of the company's documents, are returned to the directors and become the vouchers of the directors ; j^_sjich-di*e69: tors t hey were entitled to the paper in question as one of those. One of the prisoner's appointed~diIEies"was to receive and keep for his em- ployers such returned checks ; any such paper in his custody would be in the possession of his emploj'ers. The paper in question, there- fore, as soon as it had passed from the hands of the messenger andjir- rivedjt its ultimate destination (the custody of tlie prisoner for the directo^ was really in their possession ; and when he afterwards ab- stracted it for a fraudulent purpose he was guilty of stealing it from them, as a butler who has the keeping_ of his master's plat^ would be guilty ofTarceny^if he should receive plate frora the silversmith£or his master aFhis master's h ouse, and afterwards fraudulently convert it to his own use before it had in any other way than by his act of receiving it come to the actual possession of the master. This case is distin- guishable from those in which the goods have onlj' been in the course of passing toward the master, as in Begina v. Masters, j;lifirfc„the prisoner's duty was only to receive the money from one fellow-servant and" pass it oil to another, who was the ultimate accountant to the master. Here the paper had reached its ultimate destination when it came to the prisoner's keeping, and that keeping being for his masters made his possession theirs. In this view of the case no difficulty arises 248 OASES ON CRIMINAL LAW. [OHAP. XXIII. as to the part ownership from the fact that the prisoner was a share- holder in the company. As such he had no property in this paper. Conviction affirmed. Section 5. Animals^ Fek^ NATUEiE. REX V. SEARING, Euss. & Rt. 350 [1818]. The prisoner was tried before Mr. Baron Wood at the Lent Assizes for Hertfordshire in the year 1818 for larceny in stealing "five live tame ferrets confined in a certain hutch," of the price of fifteen shil- lings, the property of Daniel Flower. The jury found the prisoner guilty ; but on the authoritj' of 2 East, P. C. 614, where it is said that ferrets (among other things) are consid- ered of so base a nature that no larceny can be committed of them, the learned judge respited the judgment until the opinion of the judges could be taken thereon. It appeared in evidence that ferrets are valuable anirp als, and those in question were sold by the prisoner for nine shillings. liTEister term, 1818, the Judges met and considered this case ; they were of opinion that ferrets (though tame and salable) could not be the subject ofJsrceny and that judgment ought to be arrested.' MULLALY V. PEOPLE, 86 N. Y. 365 [1881]. Ereor to the General Term of the Supreme Court, in the first judicial. department, entered upon an order made May 20, 1881, which affirmed a judgment of the Court of General Sessions in and for the • [" 6. Larceny cannot be committed in some tl^inga whereof the owner may have a lawful property and such whereupon he may maintain an action of trespass in re- spect of the baseness of their nature, as mastiffs, spaniels, gray-hounds, blood-hounds, or of some things wild by nature yet reclaimed by art or industry, as hears, foxes, ferrets, etc., or their whelps or calves, because though reclaimed they serve not for food but pleasure, and so differ from pheasants, swans, etc., made tame, which, though wild by nature, serve for food. " Only of the reclaimed hawk, in respect of the nobleness of its nature and use for princes and great men, larceny may be committed if the party know it to be re- claimed. 1 Hale P. C. 511."] SECT, v.] MULLALY V. PEOPLE. 249 county of New York, entered upon a verdict convicting the plaintiff in error of the crime of petit larceny in stealing a dog. Eakl, J. The prisoner was convicted of stealing a dog of less value than $25. His counsel contended at the trial and has argued before us that stealing a dog is not larceny, and whether it is or not is the sole question for our present determination. The learned opinion pronounced at the general term leaves but little to be written now. At common law the crime of larceny could not be committed by feloniously taking and carrying away a dog. Whar- ton's Cr. Law [4th ed.],.§ 1755 ; 4 Black Com. 235 ; 1 Hale's Pleas of the Crown, 510 ; Coke's Third Inst. 109. And yet dogs were so far regarded as property that an action of trover could be brought for their conversion, and they would pass as assets to the executor or administrator of a deceased owner. Bacon's Abr., Trover, D. ; 1 Wms. on Ex'rs, [6th Am. ed.J 775. The reason generally assigned by common-law writers for this rule as to stealing dogs is the baseness of their nature, and the fact that they were kept for the mere whim and pleasure of their owners. When we call to mind the small spaniel that saved the life of William of Orange and thus probably changed the cuiTent of modern history (2 Motley's Dutch Republic, 398) ; and the faithful St. Bernards, which after a storm has swept over the crests and sides of the Alps start out in search of lost travellers, the claim that the nature of a dog is essentially base, and that he should be left a prey to every vagabond who chooses to steal him, will not now receive readj' assent. In nearly every household in the land can be found chattels kept for the mere whim and pleasure of the owner, a source of solace after serious labor, exercising a refining and elevating influence, and yet they are as much under the protection of the law as chattels purely useful and absolutely essential. This common-law rule was extremely technical and can scarcely be said to have had a sound basis to rest on. While it was not larcenj' to steal a dog, it was larceny to steal the skin of a dead dog, and to steal many animals of less account than dogs. Lord Coke in his In- stitutes, cited above, said: "Of some things that be ferm naturae, being reclaimed, felony may be committed in respect of their noble and generous nature and courage, serving oh vitce solatium of princes and of noble and generous persons to make them fitter for great em- ployments, as all kinds of falcons and other hawks, if the party that steals them know they be reclaimed." In the reign of William I. it was made grand larceny to steal a chattel valued at twelve pence or upwards, and grand larceny was pun- 250 CASES ON CRIMINAL LAW. [CHAP. XXIII. ishable by death, and one reason hinted at by Lord Coke for holding that it was not larceny to steal dogs was that it was not fit that "a person should die for them;" and yet those ancient law-givers thought it not unfit that a person should die for stealing a tame hawk or falcon. The artificial reasoning upon which these rules were based is wholly inapplicable to modern societj'. Tempora mutantur et leges mutam^ tur in illis. Large amounts of money are now invested in dogs, and they are largely the subjects of trade and traffic. In many ways they are put to useful service, and so far as pertaihs to their ownership as personal propertj', they possess all the attributes of other personal propertJ^ If the common-law rule referred to ever prevailed in this State, we have no doubt it has been changed by legislation. It is provided in 2 R. S. 690, § 1, that every person who shall be convicted of stealing "the personal property" of another, of the value of $25 or un'der, shall be adjudged guilty of petit larceny ; and then, on page 703, § 33, "personal property," as used in that chapter, is defined to mean *■' goods, chattels, effects, evidences of rights of action," and certain written instruments. This definition of personal property' is certainly comprehensive enough to include dogs. We think it was intended to be taken literally, and that the law- makers meant to make it the crime of larceny to steal any chattel which had value and was recognized by the law as property. In a note to § 33 (3 R. S. 837), the revisers say that " this broad and comprehensive definition is given to prevent the enumeration of each particular instrument or article that may be the subject of larceny, robbery, embezzlement, or obtaining property under false pretences. The ancient idea that rights in action were not subjects of larceny has been gradually yielding to the extension of commerce, the increase of business, and the necessities of mankind, until at last we have begun to believe that anything which can be stolen, and which is or value to the owner, should be protected by the law." At the same time a system_forjthe_Laxation_ofdogswa8 en acted (1 R7 ^. 704), and it can scarcely be supposed that the legis- lature meant to regard dogs as propertj' for the purpose of taxation and yet leave them without protection against thieves. The definition of personal property found in the statute is not to be referred to the common law but to the common understanding of the time when the statute was enacted. In view, therefore, of all the circumstances to which we have alluded and for all the reasons stated, we are of opinion that the law-makers intended, by the legislation contained in the Revised Statutes, to change the common-law rule as to stealing dogs, if it was before recog- SECT. y.J KEGINA V. SHICKLE. 251 nized as having force in this State ; and to this effect are the only judicial decisions upon this subject which have been rendered in this State so far as they have come to our knowledge. People v. Maloney, 1 Parli. Cr. 593 ; People v. Oampbell, 4 id. 386 ; see, also, People ex rel. Longwell v. McMaster, 10 Abb. [N.S.] 132. Our attention has been called by the counsel for the prisoner to cer- tain decisions in other States, which tend to sustain his contention. Findlay v. Bear, 8 Serg. & Eawle, 571 ; State of Ohio v. Lymus, 26 Ohifl_at- 400 ; State v. Holder, 81 N. C. 527 ; Ward v. State, 48 Ala. 161. But so far as those cases announce views in conflict with those above expressed, we are not disposed to follow tliem. "We conclude therefore that the conviction was right and should be affirmed. All concur, except Folger, C. J. dissenting, holding that the com- mon law does not recognize a dog as the subject of larcen_y, and that the- Revised Statutes, in its definition of the subjects of larcenj', do not include that animal. Judgment affirmed. EEGINA V. SHICKLE, L. R. 1 C. C. R. 158 ; 11 Cox C. C. 189 [1868]. The following case was stated by Cockburn, C. J. : — James Shickle was tried before me at the last assizes for the County of Suffolk on an indictment for larceny for stealing eleven tame partridges. There "was no doubt that the prisoner had taken the birds animo furandi, but a question arose whether the birds in question could be the subject of larceny ; and the prisoner having been convicted I re- served the point for the consideration of the Court. The birds in question had been reared from eggs which had been taken from the nest of a hen partridge and which had been placed under a common hen. They were about three wecksoldj,nd could fly a little. The ben had at first been kept under a coop in the prosecu- tor's orchard, the young birds running in and out, as the brood of a hen so confined are wont to do. The coop had however been removed and the hen set at liberty, but the young birds stil l remained abou t the place with the hen asjiex brood and^slept iinder her wings at night. It is'well known that birds of a wild nature, rearecTiinder a com- mon hen, when in the course of Nature they no longer require the protection and assistance of the hen and leave her, betake themselves 252 CASES ON CRIMINAL LAW. [CHAP. XXIII. to the woods or fields and after a short time differ in no respect from birds reared under a wild hen of their own species. The birds_in. question were_neither tam e by nat ure nor reclaimed. If they could be said to be tame at all it was only that their instinct led them during their age of helplessness to remain with the hen. On their attachment to the hen ceasing, the wild instincts of their nature would return and would lead them to escape from the dominion and neighborhood of man. On the other hand, from their instinctive at- tachment to the hen that had reared them, and from their inability to escape, they were practically in the power and dominion of the prose- cutor. The question is, whether under the circumstances, there can be such property in birds of this description as can be the subject-matter of larceny. Douglas, for the prisoner. These birds w&fercB naturm, and unless reclaimed are not the subject of larceny. The case finds that they were not tame nor reclaimed ; that they were restrained by their in- stinct only from betaking themselves to the woods or fields, not being confined in any way. They could not therefore be the subject of larceny. No counsel appeared for the Crown. BoviLL, C. J. I am of opinion that upon the facts stated, the ques- tion asked of us must be answered in the affirmative, and that the conviction is right. The case states that " from their inability to es- cape they were practically in the power and dominion of the prosecu- tor." That is sufficient to decide the point. In Regina u. Cory the law on the subject is very clearly laid down by my brother Channell. He there says, speaking of pheasants hatched under circumstances similar to those here : " These pheasants, having been hatched by hens and reared in a coop, were tame pheasants at the time they were taken, whatever might be their destiny afterwards. Being thus, the prosecu- tor had such a property in them that they would become the subject of larceny, and the inquiry for stealing them would T)e of precisely the same nature as^ if" the'birds had been common fowls or any other poul- trj^-the character of the birds' in no way affecting the law of the ease but only the question of identity." In that statement of the law we all concur. The question here is, "Were these birds the subject of property? They were so when first hatched and they remained so at the time they were taken by the prisoner, though it might be that at a later period they would become wild and cease to have an owner. The prisoner therefore was rightly convicted. Channell, B., concurred. Byles, J. I am of the same opinion. The usual cases of larceny of animals are those of animals which being at first wild have become SECT. VI.] PEOPLE V. WILLIAMS. 253 tame and reclaimed. In this case the only difference is that the birds here are tame and have been so from their birth, though they maj^ be- come wild at a future time. Blackbuun and Lush, JJ., concurred. Conviction affirmed.^ Section 6. Conversion of Reaitt into Chattels by Severance ; Subsequent taking Br Distinct and Separate Act. PEOPLE t). WILLIAMS, 35 Cal. 671 [1861J. By the Court, Crockett, J. The defendant having been found guilty of grand larceny moved to arrest the judgment on the ground that the indictment does not charge the commission of a felony and is insuiB- cient. The Court arrested the judgment and the prosecution has apgealedr- ^ '^ The indictment charges that the defendant " did unlawfully and feloniouslj' take, steal, and carry away from the mining claim of the Brush Creek Gold and Silver Mining Company, — a corporation duly organized under the laws of the State of California, — fifty-two pounds of gold-bearing quartz rock, the personal goods of the said Brush Creek Gold and Silver Mining Company, of the value of four hundred dollars." The defendant maintains that the indictment is insufl5clent because it does not appear therefrom that the quartz rock had on a previous occasion been severed from the ledge and thus become personal prop- erty before the alleged taking by the defendant ; and that there is no averment which rebuts the inference^ that, the- rock may .have been broken or dug out~of the mine by the defendant .himaelfLand.Jni.me- diately taken~away ; in which event it is claimed the offence was only ■ a trespass on real property and not a larceny, which can only be predi- cated on the felonious taking of personal property. The question for decision is, whether or not the indictment charges in sufficiently explicit terms that the rock at the time of the com- mission of the offence was personal property, and not a part of the realty. The Criminal Practice Act, § 246, provides that an indictment shall 1 [See also Begina v. Head, 1 F. & F, 860.] 254 CASES ON CRIMINAL LAW. [CHAP. XXIII. be sufficient in that respect if the " act or omission charged, as the oflFence is clearly and distinctl}' set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended ; " and if "the act or omission charged as the offence is stated with such a degree of certainty as to enable the Court to pronounce judgment upon a conviction according to the right of the case." Applying this rule to the indictment under discussion, would a per- son of " common understanding" on reading it infer that the defend- ant severed the rock from the ledge and immediately carried it away ; or rather that, finding it already severed by some one else, or having himself severed it on a previous occasion, he afterwards removed it? If it be doubtful in which sense a person of common understanding would interpret the indictment, it is insufficient unless it necessarily imports the crime of grand larceny, whether it be understood in one sense or the other. It should appear plainly and explicitly on the face of the indictment that a larceny and not a mere trespass was com- mitted. If tlie language emploj-ed be capable of two interpretations without doing violence to its terms, onlj' one of which imports a charge of larcenj', the indictment is bad. A person charged with crime has a right to be informed, in plain, intelligible language free from reason- able doubt, of the specific act which he is alleged to have committed. Doesjtjjlainl}- appear from this indictment whether the rock alleged to have been stolen was severed b}- Ihe defendant from the ledge at the time of the theft, or whether it had been severed on a previous oc- casion and was carried away on a subsequent occasion ? The indictment obviously leaves this question in doubt. It is en- tirely silent as to whether the rock was a^ part of a ledge, and was broken off and immediately carried_away by the defendant, or whether, finding it already severed, he afterwards removed it. In cither case it migimbe^true, as alleged in the indictment, that the defendant did " steal, take, and carry awaj' from the mining claim of the Brush Creek Gold and Silver Mining Company . . . fifty-two pounds of gold-bearing quartz rock ; " and yet in the first event it would be only a trespass, while in the latter it would be a larceny, as these offences have been defined by numerous aiitiiorities. But an indictment should be capable of no such double interpretation. It should state facts which if true would necessarily import that the crime imputed to the defendant had been committed. We have seen tliat this indictment does not come up to this standard, and that all the facts which it avers may be true without necessarily implicating the defendant in the crime of grand larceny'. We have not o^'erlooked the fact that the indictment avers the rock SECT. VI. J' PEOPLE V. WILLIAMS. 255 to have been " the personal goods of the said Brush Creek Gold and Silver Mining Company." But this cannot cure the infirmity of the indictment, which should describe the property talsen with sufficient accuracy to enable the Court to decide for itself whether it be of a character which renders it a subject of larceny. It is not sufficient to denominate the pi-opertj;_as 'i^ersonal goods" without describing it so as to enable the Court to decide that question for itself. We have thus far discussed the case on the theory that if the rock formed a part of a ledge or lode and was severed by the defendant and immediately removed by him, the offence was only a trespass and not a larceny. We find in the books much subtle reasoning in respect to the differ- ence between trespass and larcen3' in this class of cases. From an early period in English jurisprudence it has been held that in conse- quence of the stable and permanent nature of real estate, an injury to it is not indictable at common law ; and it is therefore not larceny to steal anything adhering to the soil. Hence it has been held that if a person with a felonious intent severs and carries awaj' apples from a tree or the tree itself, or growing grass or grain, or copper or lead attached to a building, the offence is only a trespass and not larceny. But if the thing had been previousl3' severed from the soil, whether by the owner or by a third person, or even on a previous occasion by the thief him- self, it has thus become personal property and is the subject of larceny. This rule involved many technic al niceties, which have resulted- in what appear to us to be pure absurdities. For example, if the article stolen was sevefeBTfrom the soil by the thief himself and immediately carried away, so that the whole constituted but one transaction, it was held to be onlj' a trespass ; but if after the severance he left the article for a time and afterward returned for it and took it away on another occasion, then it became a larceny. It therefore became necessary to determine what space of time must intervene between the severance and the taking to convert the trespass into a larceny, ^t first it was held that at least one day must intervene, on the t heory_thatJJi£!.-Iaw w^Juld n ot ta ke notice of the fractioiis of a„day. But this rule has been relaxed, and it is now held that no particular space of time is necessary, only the severance and taking must be so separated by time as not to constitute one transaction. The authorities maintaining these nice distinctions are fully collated in 2 Bishop on Criminal Law, §§ 667, 668, 669. We confess we do not comprehend the force of these distinctions nor appreciate the reasoning by which they are supported. We do not perceive why a person who takes apples from a tree witli a felo- nious intent should only be a trespasser, whereas if he had taken them from the ground after they had fallen he would have been a thief; nor 256 CASES ON CRIMINAL LAW. [CHAP. XXIII. ■why the breaking from a ledge of a quantity of rich gold-bearing rock with felonious intent should only be a trespass if the rock be imme- diately carried off; but if left on the ground and taken off by the thief a few hours later it becomes larceny. The more sensible rule, it ap- pears to us, would have been that by the act of severance the thief had converted the property into a chattel ; and if he then removed it with a felonious intent he would be guilty of a larceny, whatever dis- patch may have been employed in the removal. But we do not feel at liberty to depart from a rule so long and so firmly established by nu- merous decisions, and we have adverted to the question mainly for the purpose of directing the attention of the legislature to a subject which appears to demand a remedial statute. Judgment affirmed, and ordered that the remittitur issue forthwith. Section 7. — Conveesion of Animals feb^e nature into Subjects OP Larceny bt Killing ; Subsequent taking by distinct and SEPARATE Act. ' '" EEGINA «. laWNLEY, 12 Cox C.^C. 59 [1871]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of this court by Mr. Justice Blackburn. The prisoner and one George Dunkley were indicted before me at the Northampton Spring Assizes for stealing 126 dead rabbits. In one count they were laid as the property of William HoUis ; in another as being the property of the Queen. There were also counts for receiving. It was proved that Selsey Forest is the property of Her Majesty. An agreement between Mr. Hollis and the Commissioners of the "Woods and Forests on behalf of Her Majesty was given in evidence, which I thought amounted in legal effect merely to a license to Mr. Hollis to kill and take away the game, and that the occupation of the soil and all rights incident thereto remained in the Queen. No point, however, was reserved as to the proof of the property as laid in the indictment. The evidence showed that Mr. HoUis's keepers, about eight in the morning on the 23d of September, discovered 126 dead and newly killed rabbits and about 400 yards of net concealed in a ditch in the forest behind a hedge close to a road passing through the forest. SECT. VII.] EEGINA V. TOWNLEY. 257 The rabbits were some in bags and some in bundles, strapped to- gether by the legs, and had evidently been placed there as a place of deposit by those who had netted the rabbits. The keepers lay in wait, and about a quarter to eleven on the same day Townley and a man, who escaped, came in a cab driven by Dunk- ley along the road. Townley and the man who escaped left the cab in charge of Dunkley and came into the forest and went straight to the ditch where the rabbits were concealed and began to remove them. The prisoners were not defended by counsel. It was contended by the counsel for the prosecution that the rabbits on being killed and reduced into possession bj' a wrong-doer became the property of the owner of the soil, in this case the Queen (Blades v. Higgs, 7 L. T. N. S. 798, 834) ; and that even if it was not larceny to kill and carry away the game at once, it was so here, because the kill- ing and carrying away was not one continued act. 1 Hale P. & C. 610, and Lee u. Risdon, 7 Taunt. 191, were cited. The jurj', in answer to questions from me, found that the rabbits had been killed by poachers in Selsey Forest, on land in the same occu- pation and ownership as the spot where they were found hidden. That Townley removed them, knowing that they had been so killed, but that it was not proved that Dunkley had any such knowledge. I thereupon directed a verdict of not guilty to be entered as regarded Dunklej', and a verdict of guilty as to Townley, subject to a case for the Court of Criminal Appeal. It is to be taken as a fact that the poachers had no_ intention to abandon the wrongful possession of the rabbits which they had acquired by taking them, but placed them in the ditch as a place of deposit till they could conveniently^ remove them. The question for the Court is, whether on these facts the prisoner was properly' convicted of larceny. The prisoner was admitted to bail. Colin Blackburn. No counsel appeared to argue on either side. BoviLL, C. J. {after stating the facts). The first question that arises is as to the nature of the propertj'. Live rabbits are animals fercB natures, and are not the subject of absolute property ; though at the same time they are a particular species of property ratione soli, — or rather the owner of the soil has the right of taking and killing them, a^nd^assoon as he has exercised tliat right they become the absolute property of the owner of the soil. That point was decided in Blades v. Higgs, supra, as to rabbits, and in Lonsdale v. Rigg, 26 L. J. 196, Ex., as to grouse. In this case the rabbits having been killed on land the property of the Crown, and left dead on the same ground, would 17 258 OASES ON CKIMXNAL LAW. [CHAP. XXIII. therefore in the ordinary course of things have become the propert}' of the Crown. But before a person can be convicted of larceny of a thing not the subject of larceny in its original state, as e. g., of a thin gat- tachedjto. thejBOil, there must not only be a severance of the thing from the soil but a felonious taking of it also after such severance. Such is the doctrine as applied to stealing trees and fruit therefrom, lead from buildings, fixtures, and minerals. But if the act of taking is continu- ous with the act of severance, it is not larceny. The cas eof larceny of ?mimaJs.j^(9 na?wr(S^atan.d^ on J;he same principle. Where game is killed and falls on another's land, it becomes the property of the owner of the land, but the mere fact that it has fallen on the land of another does not render a person taking it up guilty of larceny, for therejnust be a severance between the act of killing and the act of taking the game away. In the present case we must take it that the prisoner was one of the poachers or connected with them. Under these circumstances we might come to the conclusion that it was a continuous act, and that the poachers netted, killed, packed up, and attempted to carry away the rabbits in one continuous act, and therefore that the prisoner ought not to have been convicted of larceny. Martin, B. I am of the same opinion. It is clear that if a person kills rabbits and at the same time carries them away, he is not guilty of larceny. Then, when he kills rabbits and goes and hides them and comes back to carry them away, can it be said that is larcenj'? A passage from Hale's P. C. 510, " If a man comes to steal trees, or the lead of a church or house, and sever it, and after about an hour's time or so come and fetch it away, it is felony, because the act is not con- tinuated, but interpolated, and in that interval the property lodgeth in the right owner as a chattel, and so it was argued by the Court of King's Bench (9 Car. 1), upon an indictment for stealing the lead off West- minster Abbey," was relied on by the prosecution. There is also a dictum of Gibbs, C. J., to the same effect in Lee v. Risdon (7 Taunt. 191). I am not insensible to the effect of those dicta; but here we must take it as a fact that the poachers had no intention to abandon possession ^f the rabbits, but put them in the ditch for convenience sake ; and I concur in thinking that the true law is that, when the poachers go back for the purpose of taking them awaj-, in continuation of the original intention, it does not amount to larceny. Bramwell, B. Our decision does not appear to me to be contrary to what Lord Hale and Gibbs, C. J., have said in the passages referred to. If a man having killed rabbits on the land of another, gets rid o f them_because heJa_^Ln_termpteil_and-then-gQe^ away_aaA__afterward8 comes back to remove the rabbits, that is a larceny ; and^o^jf on being pursued, he throws them away ; and it is difficult to perceive any dis- SECT. VII.] BEGIN A V. TOWNLBY. 259 tiiiction where the owner of a chattel attached to the freehold finds it on his land severed, and tlie person who severed it having abandoned it afterwards comes and takes it away. It is in those eases so left as to be in the possession of the true owner, and the act is not, as Lord Hale expresses it, continuated. In this case, however, the rabbits were left by the poachers as trespassers in a place of deposit, though it hap- pened to be on the land of the owner ; and it is just the same as if they had been taken and left at a public house or upon the land of a neigh- bor. If they had been left on the land of a neighbor or at a public house, could it have been said to be larceny? Clearly not ; and if not why is it larceny because the poachers left them in a place of deposit on the owner's own land ? It seems to me that the case is not within the dicta of Lord Hale and Gibbs, C. J., but that here the act was con- tinuous, and that there^wa^an asportation bj- thejoachers_to_aj)lace of deposit, where they remained not in the owner's possession. Byles, J. "Tliaimol^sayTIiat I Havelriot entertained a doubt in this case ; but upon the whole I think that this was not larceny. The wrongful taking of the rabbits was never abandoned bj' the poach- ers, for some of the rabbits were in their bags. It could hardly be said that if a poacher dropped a rabbit and afterwards picked it up that could be converted into larceny, yet that would follow if the conviction were upheld. Blackburn, J. I am of the same opinion. Larcenj' has always been defined as the taking and carrying away of the goods and chattels of an- other person ; and it was very early settled where the thing taken was not a chattel, as where a tree was cut down and carried away, that was not larceny, because the tree was not taken as a chattel out of the owner's possession and b ecaus e jhe severance of the tree^was accompanied by the_taMng_ofjt_away. The same'Evfapplied to fruit, fixtures, min- erals, and the like things, and statutes have been passed to make steal- ing in such cases larceny. Though in the House of Lords, in Blades v. Higgs, it was decided that rabbits killed upon land became the prop- erty of the owner of the land, it was expressly said that it did not fol- low that every poacher is guilty of larcenj-, because as Lord Cranworth said, " Wild animals while living, though they are, according to Lord Holt, the property of the owner of the soil on which they are living, are not his personal chattels so as to be the subject of larceny. They par - takelvEle iFving of the "quality of th^soU^ancraj^iiffi..^ frnit , considereXaJparTofThe realtyr If aTman enters my orchard and fills ' dri?H^!toiwlrrtrapples,' which he has gathered from my trees, he is not guilty of larceny, though he has certainly possessed_himself of my property ; and the same principle is applicable to wild animals.'' The pnnciple is"as^ld as 11 Year Book (par. 33), where it is reported that 260 CASES ON CRIMINAL LAW. [CHAP. XXIU, a forester who had cut down and carried away trees could not be ar- raigned for larceny though it was a breach of trust ; but it was said it would have been a diflFerent thing if the lord of the forest had cut down the trees and the forester had carried them away, then that would have been larceny. So that in the case of wild animals if the act of killing and reducing the animals into possession is all one and continuous, the offence is not larceny. The jury have found in this case that the prisoner knew all about the killing of the rabbits, and that they were lying in the ditch. It is clear that during the three hours they were lying there, no one had any physical possessidii of thein and that" they were still left on the owner's soil ; but I do not see that that makes any difference. Then there is the statement from Hale's P. C. 510, where it is said that larceny cannot be committed of things that adhere to the freehold, as trees, or lead of a house, or the like, yet that the Court of King's Bench decided that where a man severed lead from Westminster Abbey and after about an hour's time came and fetched it away, it was felony, because the act is not continuous but interpolated ; and Lord Hale refers to Dalton, c. 103, p. 166 ; and Gibbs, C. J., expressed the same view very clearlj' in Lee v. Eisdon. Now if that is to be un- derstood as my brother Bramwell explained, I have no fault to find with it ; but if it is to be said that the mere fact that the chattel having been left for a time on the land of the owner has thereby remained the own- er's property, and that the person coming to take it awaj' can be con- victed of larceny, I cannot agree with it as at present advised. If we are to follow the view taken by my brother Bramwell of these authori- ties, they do not apply here, for no one could suppose that the poach- ers ever parted with the possession of the rabbits. I agree that in point of principle it cannot make any difference that the rabbits were left an hour or so in a place of deposit on the owner's land. The pass- age from Lord Hale may be understood in the way my brother Bram- well has interpreted it, and if so the facts do not bring this case within it. Conviction quashed. REGINA V. FETCH, 14 Cox C. C. 116 [1878]. This was a case reserved for the opinion of this Court by B. B. Hunter Rodwell, Esq., Q.C., M.P., the Chairman of the second court of the West Suffolk Quarter Sessions. The prisoner was indicted under the Statute 24 & 25 Vict. c. 96, § 67, for larceny, as a servant to the Maharajah Dhuleep Sing, of SECT. VII.J EEGINA V. FETCH. 261 sixty-one dead rabbits, the property of his master. There was also a count for receiving. The prisoner was employed by the Maharajah to trap rabbits upon ajpaTt_of_Mj_estate^anid it was the duty of the prisoner forthwith to take daily the rabbits so trapped to the head keeper. ' CXfiTEhTmofning of the 9th day of February, about half past eleven, an under-keeper named Howlett, also employed by the Maharajah, was out on his beat in the parish of North Stowe, when he observed the prisoner go three or four times from the places where his rabbit-traps were set to a spot near a furze-bush on his beat. On examining this later in the day, he found sixty-one dead rabbits in a bag hidden in a hole in the earth near the furze-bush. Howlett took twenty of the rabbits out of the bag and marked them' by cutting a small slit under the throat. He then replaced them in the bag and covered it up in the hole in the ground as before. In cross-examination Howlett said that his reason for marking the rabbits was that he might know them again. Early on the following Sunday morning the prisoner was seen b}' Howlett and a police constable, who had been watching the spot, to take the rabbits from the hole in the ground and put them in his cart, and he was driving the cart away along the road in a contrary direction to the head keeper's house, where he should have deposited them, when he was stopped and taken into custody by the police. Counsel for the prisoner contended that there was no evidence to go to the jury of the larceny charged In the indictment, and referred to Eegina v. Townley, L. Eep. 1 C. C. R. 315 ; 12 Cox C. C. 59. The Court, however, held that there was evidence to go to the jury of larcenj', and that the present case was distinguishable from that of Eegina v. Townley, in consequence of the continuity of the possession having been broken bj' Howlett, the servant of the Maharajah, he hav- ing taken twenty of the rabbits out of the bag and marked them as described. The Court agreed with the contention of counsel for the prisoner that there was no evidence of any intention on the part of the prisoner to abandon possession of the rabbits, and this point was not left to the jury- The Court left the case generally to the jury, who found the prisoner guilty of the larceny charged, and the prisoner was sentenced to three months' imprisonment with hard labor ; execution of the judgment was respited until the decision of this Court. The Court reserved for the opinion of this Court the question whether, upon these facts, the prisoner was properly convicted of the larceny charged. 262 CASES ON CRIMINAL LAW. [CHAPi XXIII. CocKBDKN, C. J. This conviction must be quashed. The case is really governed by that of Regina w. Townley, where the law on the sub- ject is fully stated in the judgment of Blackburn, J. At common law, to constitute larceny it was necessary that there should be a taking and carrying away of the chattel ; and among the instances put in the old books are those of growing trees and lead fixed to a building, which constitute part of the freehold, where a severance was necessary to turn them into chattels ; and unless there was an interval between the one act of turning them into chattels and the other act of taking them away, during which there was a change in the possession from the person who severed them to that of the owner, the final act of carrying them awaj' by the person who severed them did not form the subject-matter of larceny. So in the present case, although property in wild animals, as decided in Blades v. Higgs, 11 H. of L. Gas. 621, becomes that of the owner by being killed on his land, it does not follow that, when a man without right goes upon the land and kills wild animals, they becojD£_sa reduced into the possession of the owner of the land as_to_render the man liable to the charge of larceny for carrj^ng them away. In Regina V. Read the principle was the same as that which governs this case. It is true that in that case the prisoner was employed to trap rabbits and had authority to kill rabbits, and that availing himself of that authority, he trapped and killed rabbits ; but that was not in fulfilment of his duty, but with the intention of taking the rabbits for his own pur- poses and not for his master. He reduced them into his own posses- sion and not that of his master. In no sense did he reduce them into the possession of his master, for he took them direct from the trap to where the bag was concealed and put them into his bag. The only circum- stance that appears to distinguish this case is the fact that the keeper Howlett marked some of the rabbits, but that was done, not with the intention of altering the possession of them, but for the purpose of identifying them. That fact does not make any difference in the case. I am of opinion that the conviction should be quashed. Pollock, B. I am of the same opinion. This case was reserved that it might be determined whether there was anj' distinction between it and Regina v. Townley, and whether the nicking of the rabbits by the keeper could be considered as a reducing of them into the possession of the master. There is really no distinction. It is impossible to say that all that the prisoner did was not in his conduct as a thief. Field, J. I am of the same opinion. There is no question raised as to any reduction of the rabbits into the possession of the master by the act of trapping them, but it is said that the continuitj' of posses- sion by the prisoner was broken by the act of the keeper in going to the trap and nicking the rabbits. It appears to me that there is no SECT. I.] REGINA V. HOLLOWAY. 263 foundation for any distinction between this case and Regina v. Townley. HuDDLESTON, B. I am of the same opinion. There was no intention on the part of the prisoner to abandon his possession of the rabbits I agree that the act of the keeper in nicking the rabbits was not for the purpose of reducing them into the possession of the master but for identifying them. I do not agree in the distinction of this case from Regina v. Townley drawn by the chairman of the Court of Quarter Ses- sions. There was no evidence from which it might have been inferred that the rabbits had been reduced into the possession of the master. LiNDLET, J. I am of the same opinion. Conyiction quashed. CHAPTER XXIV Larceny. Question not of Custody or of Title, but of Possession. Section 1. Wrongful Taking of Mere Custody. REGINA V. HOLLOWAY, 3 Cox C. C. [241]. CROWN CASE RESERVED. (Coram Lord Denman, C. J., Parke, B., Aldeeson, B., Coleridge, J., and CoLTMAN, J.) The prisoner, William HoUoway, was indicted at the General Quar- ter Sessions, holden in and for the borough of Liverpool, on December 4, 1848, for stealing within the jurisdiction of the court 120 skins of leather, the property of Thomas Barton and another. Thomas Barton and another were tanners, and the prisoner was one of many workmen employed by them at their -tannery, in Liverpool, to dress skins of leather. Skins when dressed were delivered to the fore- man and every workman was paid in proportion to and on account of the work done by himself. The skins of leather were afterwards stored in a warehouse adjoining to the workshop. The prisoner, by opening a window and removing an iron bar, got access clandestinely to the 264 CASES ON CRIMINAL LAW. [CHAP. XXIV. warehouse and carried away the skins of leather mentioned in the in- dictment, and which had been dressed bj' other workmen. The pris- oner did not remove these skins from the tannery ; but they were seen and recognized the following day at the porch or place where he usuallj- worked in the workshop. It was proved to be a common practice at the tannery for one workman to lend work, that is to say, skins of leather dressed by him, to another workman, and for the borrower in such case to deliver the work to the foreman and get paid for it on his own account, and as if it were his own work. A question of fact arose as to theintenti on of the prisoner i n taking the skins from the warehouse. The jury found that the prisoner did not intend to remove the skins from the tannery and dispose of them elsewhere, but that his intention in taking them was to deliver them to the foreman and to get paid for them as if they were his own work ; and in this way he intended the skins to be restored to the possession of his masters. The jury, under direction of the Court, found the prisoner guilty ; and a point of law raised on behalf of the prisoner was reserved, and is now submitted for the consideration of the justices of either Bench and barons of the Exchequer. " The question is, whether, on the finding of the jury, the prisoner ought to have been convicted of larceny. " Judgment was postponed, and the prisoner was liberated on bail taken for his appearance at the next or some subsequent Court of Quarter Sessions to receive judgment, or some final order of the Court." Lowndes, in support of the conviction. The finding of the jury shows that the prisoner committed larceny. Parke, B. Is not this case governed by E. v. Webb, 1 Moody C. C. 431? Lowndes. The cases are distinguishable. In that case, miners em- ployed to bring ore to the surface and paid bj- the owners according to the quantity produced, removed from the heaps of other miners ore produced by them and added it to their own heaps, the ore still re- maining in the possession of the master ; and it was held not to be a larceny. Here the skins were removed from the place in which they had been put by the master for custody into a place in which they were, in fact, in the prisoner's custodj'. In R. v. Webb, the ore was never out of the master's custody ; in this case, the skins were distinctly out of the master's custody. ' Coleridge, J. In the case of R. ■«. Webb there was the interval in which the ore passed from one heap to the other ; was it not then out of the master's custody? SECT. I.] EEGINA V. HOLLOW AY. 265 Lowndes. There was no intent to injure the owner in that case. Coleridge, J. There was the intent to obtain payment for ore which the miner had not dug from the earth. Parke, B. It is essential that the t aking should be with, tbejntent to deprive t he owner of the^progertjMn the_thiiig„ taken ; the jury did not find that in tliis case, but only that the intention of the prisoner was to get paid for the skins, as if they had been his own work. Lowndes. It^ not necessary _that Jihere should^ be the intention whoUjJo_depm^Jhejow^ ; it is enough if the chattel is taken for the purpose of getting a benefit difierent from the mere use ^jt. In this case, th6ugB~fEere was an intention to return the skins, there was not the intention that the owner should be put into the situa- tion in which he was before the taking ; for though he was to have the skins, he was to have them minus the wages. Parke, B. The taking must be with i ntent tq^ ae(iuire„the.,eBtire dominion to the taker. ioiowc^SST' The taking must be treacherous, — for evil gain. Parke, B. East's definition is, " The wrongful or fraudulent taking or carrj-ing away by anj' person of the mere personal goods of another person anywhere, with a felonious intent to convert them to his (the taker's) own use and make them his property, without the consent of the owner." 2 East, PI. Cr. 553. Lowndes. In 3 Inst. 107, Lord Coke defines larceny to be " the fe- lonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another, neither from the person nor by night in the house of the owner." Bracton and Fleta describe it as "Con- tractatio rei alienae fraudulenta, cum animo furandi, invito illo domino, cujus res ilia fuerat." (Bracton, lib. iii. c. 32, fol. 150 ; Fleta, hb. i. c. 36; Glanville, lib. vii. c. 17; lib. x. c. 15, follows Bracton). The "Mirror " gives the word " treachereusement ; " that is, without a hona fide claim. In 4 Blackst. Com. 232, it is said that the taking must be "felonious; that is, done animo furandi, or, as the civil law ex- presses it, lucri causa." Blackstone, therefore, uses these phrases as synonj'mous. Lord Denman, C. J. Suppose a man takes the horse of another with intent to keep him for a year, ride him through all the counties of Eng- land, and then return him ; is that a larceny ? Paeke, B. There must be an intention in the taker to acquire the whole dominion over the thing, to make it his own ; to do what he likes with it. Lowndes. The facts in this case show a taking lucri causa. Parke, B. The case of E. v. Webb has decided otherwise. 266 CASES ON CRIMINAL LAW. [CHAP. XXIV, Aldeeson, B. This is rather an obtaining money by false pretences than a larceny. Lowndes. If this is not a larceny it ■would follow that if chattels were taken for the purpose of obtaining money for them by false pretences from the owner and in that way converted to the use of the taker, he would not commit larceny. If the statement does not suBSciently show what offence has been committed, the case may be restated. Lord Denman, C. J. No. The facts on which we are to decide must be stated at once. This court is not to be used to keep these cases alive. Alderson, B. This will not prevent you from bringing an indictment for obtaining money under false pretences. Lowndes. No money was obtained. Alderson, B. The attempt to commit' a misdemeanor is a misde- meanor; and if the removal of the skins amounted to such an attempt, the indictment may be preferred. The only question here is, whether the Recorder ought to have directed the jury to find a verdict of not guilty. Lord Denman, C. J. If I thought the question was open after the authorities, I must say that a great deal might be urged in support of the proposition that these facts show a larceny to have been com- mitted ; because ihe„owner ja^ depriyed^fifJijaL. prepejiyjEor._sp4agJi4pe, and the probability is that the intent distinguishing the case from lar- ceny may be altered. The case which I put, of borrowing a horse for a year, without the owner's consent, with intent to ride it through Eng- land and then return it, shows this. But if we say that borrowing alone would constitute larceny, we are met by similar cases the other way. With regard to the definition of larceny, we have of late_ years said that there must be an intention to deprive the owner permanently oHiis progSE^y? which was not the intention in this case. We are not dis- posed to encourage nice distinctions in the criminal law ; yet it is an odd sort of excuse to say to the owner, " I did intend to cheat j-ou in fact and to cheat my fellow workmen afterwards." This, however, is not an act which is not punishable ; for if it is not a misdemeanor, which at the first sight it appears to be, it is an act done toward committing that misdemeanor. We must abide by former decisions and hold that a conviction for larceny cannot in this case be supported. • Parke, B. I am of tha same opinion. We are bound by the authori- ties to say that this is not larceny. There is no clear definition of lar- ceny applicable to every case ; but the definitions that have been given, as explained by subsequent decisions, are sufficient for this case. The definition in East's "Pleas of the Crown "is, on the whole, the best; SECT. I.] EBX V. PHIPOE. 267 but it requires explanation, for what is the meaning of the phrase "wrongful and fraudulent"? It probably means "without claim of right." All the cases, however, show that, if the intent was not at the moment of taking to usurp the entire dominion over the property' and make it the taker's own, there was no larceny. If therefore a man takes the horse of another with intent to ride it to a distance and not return it, but quit possession of it, he is not guilty of lareenJ^ So in R. u. Webb, in which the intent was to get a higher reward for work from the owner of the property. If the intent must be to usurp the en- tire dominion over the property and to deprive the owner wholly of it, I think that that essential part of the oflfence is not found in this case. Alderson, B. I cannot distinguish this case from R. v. Webb. CoLEKiDGE, J., concurred. CoLTMAN, J. We must not look so much to definitions, which it is impossible a priori so to iramenthat they^ shall include every cas^, asj» tttSluasesln which the ingredients that are necessary to constitute~tEe~ offence are stated. If we look at thejcases which have been decided, we'sfiall find that in this case one necessary ingredient — the intent to deprive entirely and permanently — is wanting. REX V. PHIPOE, 2 Leach C. C. 673 ; 2 East P. C. 599 [1795]. CROWN CASE KESEEVED. [Abridged statement from Roscoe, Crim. Evid. 11 Eng. Ed. 884.] The prisoner was charged with robbing the prosecutor of a promissory note. It appeared that the prosecutor had been decoyed by the prisoner into a room for the purpose of extorting money from him. Upon a table covered with black silk were two candlesticlis covered also with black ; a pair of large horse pistols ready cocked ; a tumbler glass filled with gunpowder ; a saucer with Leaden balls ; two knives, one of them a prodigiously large carving knife, their handles wrapped in black •crape ; pens and inkstand ; several sheets of paper and two ropes. The prisoner, Mrs. Phipoe, seized the carving knife, and threatening to take away the prosecutor's life, the latter was compelled to sign a promissory note for £2,000 upon a piece of stamped paper which had been provided by th« prisoner. It__was_objected that there was no_property in the prosecutor, and the point being reserved for the opinion of the judges. 268 CASES ON CEIMINAL LAW. [CHAP. XXIV. they held accordinglj'. They said that it was essential to larceny that the propert}' stolen should be of some value ; that the note in this case did not on the face of it import either a general or special property in the prosecutor, and that it was so far from being of any the least value to him, that he had not even the property of the paper on which it was written ; for it appeared that both the paper and ink were the property of Mrs. Phipoe, and the delivery of it by her to him could not, under the circumstances of the case, be considered as vesting it in him ; but if it had, as it was a propertj' of which he was never, even for an instant, in the peaceable possession, it could not be considered as property taken from his person, and it was well settled that, to constitute the crime of robberj', th^.propertj- must not only be :v;aljiable, but it must also be taken from the person and peaceable possession of the o wner. EEGINA V. MANNING, et al., 6 CoxC. C. 86 [1852]. Michael Manning and John Smith were tried at the Manchester Borough Sessions on the 5th of August, 1852, for stealing on the 17th of July twenty-four bags, the property of John Sheridan. The prose- cutor was a potato-dealer and used bags in that trade, and he also dealt largely in bags which he bought and sold. The prisoner Man- ning Lad been for several j-ears in the prosecutor's service and had the care of his warehouse, in which the bags were kept. The prisoner Smith had for five years regularly supplied the prosecutor with bags which be made, and from time to time when he had finished a lot his custom was to take them and put them down at the warehouse door of the prosecutor outside the warehouse, and very shortlj' after any bags had been so left, either he or his wife, but generally' his wife, used to come to receive payment for them from the prosecutor. On the night of the 16th of July the prosecutor had a quantity of bags in his ware- house " marked." On the morning of the 17th of July the prisoner Manning went into his master's warehouse and brought out twentj'-four of the bags which had been so marlied by his master on the previous night, and put them down outside the warehouse b}- the door at the place where Smith used to deposit the bags he brought for the proseci^ tor, and for which he had to be paid. Shortly after Manning had brought the prosecutor's bags out of his warehouse and so placed them at the door. Smith's wife came and asked for pa5'ment for them, as for bags that her husband had brought that morning. Upon this Smith was sent for and was told what his wife had said, and the bags, which SECT. I.] BEGINA V. MANNING, ET AL. 269 were then lying where Manning had placed them, were pointed out to him, and he was asked whether he had brought those bags there ; he said j'es, he had brought them there an hour before, and that his wife had been working at them till twelve o'clock the night before in order to finish them.. " Naj'," said the prosecutor, " those bags are mine." " YeSj!.' replied Smith, " they_will be jour s when you Jhavepaid far tliem^' Upon this the prosecutor pointed out to the two prisoners, Manning being then also present, the ihark that had been put upon the bags the night before, when thej' both turned the color of this (holding up a piece of red blotting -paper) , and they were given into custody. The recorder told the jury that if they were satisfied that Manning brought his master's bags out of the warehouse and placed them out- side by the door in the manner stated, for_the_j2urposo of enabling Smith to receive paym ent for them^foim Jtds jmagtgi;, and witli^ thejn- tent that he should do s o as if they had been new bags just then fin- ished by Smith, and for which he would be entitled to be paid, that that would be larceny ; and that if they were satisfied that this had been so done by Manning, in pursuance of previous concert and arrange- ment between him and Smith, that Smith, though absent when the bags were so removed out of the warehouse, would be accessary before the fact to the felony. The jury said that thej- were satisfied that the bags had been so remoA'ed out of the warehouse bj- Manning for the purpose and with the intention aforesaid, and that the same had been done in pursuance of a previous arrangement between him and Smith, and they found both the prisoners guilty ; and the recorder sentenced the prisoners to be imprisoned in the borough jail, and to be there kept to hard labor for six months. The question for the opinion of this court is, whether the facts stated and found amounted to larceny. This case came on for argument before Jervis, C. J., Alderson, B., Coleridge, J., Cresswell, J., and Piatt, B. Cross appeared in support of the conviction, but was not called upon. Jeevis, C. J. This is a clear case. The direction was quite right ; and R. w. Hall (1 Den. C. C. 381) is expressly in point. Alderson, B. Smith, though not present when the sacks were re- moved, was an accessary before the fact. Conviction affirmed. 270 CASES ON CRIMINAL LAW. [CHAP. XXIV. Section 2. Acquisition of Title. REGINA V. PRINCE, 1 L. R., C. C. R. 150 ; 11 Cox C. C. 193 [1868]. The following case was stated by the Common Sergeant : — The prisoner was tried before me at the August session of the Cen- tral Criminal Court on an indictment charging him, in the first count, with stealing money to the amount of £100, the^property of Henry Allen ; in the second count, with receiving the same, knowing it to have been stolen ; and in two other counts the ownership of the money was laid in the London and Westminster Bank. It appeared in evidence that the prosecutor, Henry Allen, had paid moneys amounting to £900 into the London and Westminster Bank on a deposit account in his name, and on the 27th of April, 1868, that sum was standing to his credit at that bank. On that day the wife of Henry Allen presented at the bank a forged order purporting to be the order of the said Henry Allen, for payment of the deposit, and the cashier at the bank, believing the authority to be genuine, paid to her the deposit and interest in eight bank notes of £100 each, and other notes- Among the notes of £100 was onejumbered 72,799, dated the 19thof November, 18G7. ~ " ^^ On the 1st of July, 1868, the wife of Henry Allen left him and his house, and she and the prisoner were shortly afterwards found on board a steamboat at Queenstown on its way from Liverpool to New York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her possession nearly all the remainder of the notes obtained from the bank. The note for £100, No. 72,799, was proved to have been paid away by the prisoner in payment for some sheep in Ma)!^, 1868, and he said he had it from Mrs. Allen. Upon this evidence it wasjobjected by prisoner's counsel that the counts alleging the property to be in Henry Allen must fail, as the no te had never been in his possession ; and that as to the other counts the evidence did not show any larceny of the note from the bank by the wife, but ra ther an obtaining^^by -forgery or false p retences by her, and that the receipt by the prisoner from her was not a receipt of stolen property. I held, however, that the forged order presented by the wife was under the circumstances a mere mode of committing a larceny against the London and Westminster Bank, and that the prisoner was liable to be convicted on the fourth count. SECT. II.] BEGINA V. PRINCE. 271 The jury found the prisoner guilty on that count and I respited judg- ment and reserved for the consideration of the Court the question whether the obtaining the note from the bank by Mrs. Allen under the circumstances stated was a larceny by her ; if not the conviction must be reversed. BoviLL, C. J. I am of opinion that this conviction cannot be sus- tained. The distinction between "larceny and false pretences is mate- rial. In larceny thejtak ing must be a gainst tjie^mlL of tha^owner. That is of the essence of the offence. The cases cited by Mr. Collins on be- half of the prisoner are clear and distinct upon this point, showing t'hat the obtaining of property from its owner or his servant a bsolutelx.au- t horized to deal with it by false pretences will not amounFTo' larceny. The cases cited on the other side are cases where the servant had only a limited authority from his master. Here, however, it seems to me that the bank^lei-k had a general authority~tD-part-wtt'h15bth the prop- erty in and possession of his master's money on receiving what he be- lieved to be a genuine order, and that as he did so part with both the property in and possession of the note in question the offence commit- ted by Mrs. Allen falls within the cases which make it a false pretence and not a larceny, and therefore the prisoner cannot be convicted of knowingly receiving a stolen note. ChanSell, B. I am of the same opinion. The cases cited on one side and the other are distinguishable on the ground that in one class of cases the servant had a general authority to deal with his master's property and in the other class merely a special or limited authority. If the bank clerk here had received a genuine order he would have paid the money for his master and parted with the property, and the tran- saction would have really been what it purported to be. Ifj^owever, the clerk makes a mistake as to the genuineness of a signature, never- theless he has authoritj' to decide that point ; and if he pays money on a forged order the propert3' therein passes from the master and cannot be said to have been stolen. Btles, J. I am of the same opinion. I would merely say that I ground my judgment purely on authority. Blackburn, J. I also am of the same opinion. I must say I can- not but lament that the law now stands as it does. The distinction drawn between larceny and false pretences — one being made a felony and the other a misdemeanor, and yet the same punishment attached to each, — seems to me, I must confess, unmeaning and mischievous. The distinction arose in-ibrmer-times, and I take it that it_was then held i&-SffiQtjofJ|ife that in larceny the taking must be against the will of the owner, larceny then being a capital offence. However, as the law now 272 CASES ON CRIMINAL LAW. [CHAP. XXIV. stands, if^hejajvner |ntended^th£j5roger^_to gass, though he would not so have intended had he known the re al facts, that is sufBcient to pre- vent the offence of obtaining another's property' from amounting to larceny ; and where the servant has an authority co-equal with his master's and parts with his master's propertj', such property cannot be said to be stolen inasmuch as the servant intends to part with the property in it. If, however, the servant's authoritj' is limited, then he can only part with the possession and not with the property ; if he is tricked out of the possession the offence so committed will be larceny. In Kegina v. Longstreeth ' the carrier's servant had no authority to part with the goods except to the right consignee. His authority was not generally to act in his master's business but limited in that way. Tlie offence was in that case held to be larcenj' on that ground, and this distinguishes it from the pawnbrokei^s case ^ which the same judges, or at any rate some of them, had shortly before decided. There the ser- vant from whom the goods were obtained had a general authority to act for his master and the person who obtained the goods was held not to be guilty of larcenj'. So in the present case the cashier holds the money of the bank with a general authority from the bank to deal with it. He has authorit}' to part with it on receiving what he believes to be a genuine order. Of the genuineness he is the judge ; and if under a mistake he parts with money he none the less intends to part with the property in it, and thus the offence is not, according to the cases, larceny but an obtaining by false pretences. The distinction is inscrutable to my mind^ but it exists in the cases. There is no statute enabling a count for larceny to be joined with one for false pretences ; and as the prisoner was indicted for the felony the conviction must be quashed. Lush, J. I also agree that the conviction must be quashed. I ground m}' judgment on the distinction between the cases which has been pointed out. The cashier is placed in the bank for the very pur- pose of parting with the money of the bank. He has a general author- ity to act for the bank and therefore that which he does his masters the bankers do themselves through him. Conviction quashed. 1 1 MooJy C, C. 137. " Regina v. Jackson, 1 Moody C. C; 119. SECT. III.] EEX V. -WILKINSON. 273 Section 3. Larceny by Owner. Eightfdl Adverse Possession. PALMER V. THE PEOPLE, 10 Wend. 165 [1833J. Certiorari to court of special sessions. Isaac Palmer was charged before a justice of the peace of Steuben County with having feloniously stolen five bunches of shingles, the propertj' of one R. O. Jennings. He was tried before a court of special sessions, convicted, and sentenced to pay a fine of $6 and to be imprisoned thirtj' days. The shingles were levied upon by Jennings as being the propertj' of Palmer, by virtue of an execution which Jennings held as a constable, were left at the place where the levy was made, and Palmer was informed of the levj'. Palmer subsequently sold the shingles, charged the constable with hav- ing taken them away^, and said that he would make him pa}' for them, and accordingly brought a suit against the constable. The defendant sued out a certiorari. By the Court, Savage, C. J. There is no doubt a man may be guilty of larceny in stealing his own property, when done with intent to charge another person with the value of it. 2 East's Cr. L. 558, § 7 ; 1 Hawkins, c. 33, § 30. The constable, b}' levying on the shingles, had acquired a special property in them, 7 Cowen, 297 ; 6 Johns. R. •196 ; and the charge was well laid by stating the property to be in the constable, 8 Cowen, 137; 14 Mass. R. 217. The evidence fully war- ranted the conviction, and the judgment of the court of special sessions must be affirmed. REX V. WILKINSON, Russ. & Ry. 470 [1821]. The prisoners were tried before Mr. Justice Park (present Lord Chief Justice Abbott) at the Old Bailey Sessions October, 1821, on an indictment for stealing six thousand six hundred and ninety-six pounds of weight of nux vomica, value thirty pounds, the property of James Marsh, Henry Coombe, and John Young in a certain boat belonging to them in the port of London, being a port of entry and discharge. It appeared in evidence that the prosecutors were lightermen and agents and were employed by a Mr. Cooper, a merchant, who delivered 18 274 CASES ON CRIMINAL LAW. [CHAP. XXIV. them warrants properly filled up to enable them to pass the nux vomica through the custom house for exportation to Amsterdam. The quan- tity was thirty bales of nux vomica, consisting of seven hundred and fifty bags. For exportation this commodity paid no duty; but for home con- sumption there was a duty of two shillings and sixpence on the pound weight though the article itself was not worth above one penny per pound. Messrs. Marsh & Co. entered the bales for a vessel about to sail to Amsterdam, called the " Yoi'k Merchant," then lying in the London dock ; and having done what was necessary delivered back the cocket bill and warrants to Cooper, considering him as the owner, and Marsh & Co. gave a bond to Government with Cooper under a penalty to export these goods. Marsh & Co. were to be paid for lighterage and for then- services. After this Marsh & Co. employed the prisoner Wilkinson as their servant, who was a lighterman (and who had originally introduced Cooper to them to do what was necessary respecting the nux vomica) , to convey the goods from Bon Creek, where they were, to the " York Merchant" at the London docks, and lent their boat with the name " Marsh & Co." upon it to enable him so to do. The prisoner Wilkinson accordingly went and got the nux vomica by an order commanding the person who had the possession of it to de- liver it to Mr. John Cooper. The bales were marked C. 4 to 33. When Wilkinson received the cargo, instead of taking it to the " York Merchant" he, one William Marsden, and the other prisoner Joseph Marsden, took the boat to a Mr. Brown's, a wharfinger at Lea Cut in the County of Middlesex, and there unloaded it into a warehouse which William Marsden had hired three weeks before, and which they had used once before. The two prisoners and William Marsden were there employed a long time in unpacking the bales, taking out the nux vomica, repacking it in smaller sacks, and sending it by a wagon to London, and refilling the marked bales with cinders and other rubbish which thej' found on the wharf. The prisoner Wilkinson then put the bales of cinders, etc., on board the boat, took them to the " York Merchant," hailed the vessel, and said he had thirty bales of nux vomica, which were put on board and re- mained so for two or three days when the searcher of the customs discovered the fraud. Marsh & Co. admitted that they had not been called on for any du- ties nor sued upon the bond, though the bond remained uncancelled. The defence was, and which Cooper was called to prove, that the goods were not his (Cooper's) , but that he had at William Marsden's SECT. III.] EEX V. WILKINSON. 275 desire lent his name to pass the entry ; and that he had done so but did not know why ; that he did not know it was a smuggling transaction, or that the object was to cheat Government of the importation duties. If these were to be considered as the goods of Cooper then it should seem a felony was committed upon them by Wilkinson and the two Marsdens by taking them in the manner described out of the hands of Marsh & Co. without their knowledge or consent, who as lightermen or carriers had a special property in them and who were also liable to Gov- ernment to see the due exportation of them. Even if they were the goods of William Marsden, who superintended the shifting of them from the bales to the sacks, the question for the judges to consider was whether this can be done by an owner against a S£ecial_bailee who has ja^ Jiimself xesppiisible,Jthat_a given thing shall be done with the goods, and which the owner without the knowl- e"3ge~aF'c6nsent of such bailee had by a previous act entirely prevented. The learned judge told the jury that he would reserve this point for the opinion of the judges ; but desired them to say whether they thought the general property in the goods was in Cooper or William Marsden. The jury found the prisoners guilty and that the property was Wil- liam Marsden's. In Michaelmas term, 1821, eleven of the judges (Best, J., being ab- sent) met and considered this case. Four of the judges, namelj', Rich- ardson, J., BuRRODGH, J., Wood, B., Graham, B., doub ted whether this was larceny because there was no intent to cheat Marsh & Co. or to charge them, buit the intent was to cheat the Crown. Seven of the judges, namelj', Garrow, B., Holrotd, J., Park, J., Batley, J., Richards, C. B., Dallas, C. J., Abbott, L. C. J., held it a larceny be- cause Marsh & Co. had a right to the possession until the goods reached the ship ; they had also an interest in that possession, and the , intent to deprive them of their possession wrongfullj' and against their will was a felonious intent as against them, because it exposed them .to a suit upon the bond. In the opinion of part of the seven judges this would have been larceny although there had been no felonious intent against Marsh & Co., but only an intention to defraud the Crown.^ 1 Vide Fost. 124. 276 CASES ON CEIMINAL LAW. [CHAP. XXIV. REX V. BRAMLEY, Ross. & Ri. 478 [1822]. The prisoner was tried upon a charge of burglary before Mr. Clarke, the King's counsel, at the spring Assizes for the County of Derby in the year 1822. The indictment charged the prisoner with a burglary in the dwelling- house of one Thomas Noon, and with stealing a box, two purses, twenty-two pounds ten shillings in silver, six shillings and threepence in copper, a promissory note for the payment of ten pounds, and eigh- teen promissory notes for the payment of one pound each, the property of the said Thotaas Noon. In another count the property was stated to belong to Sarah Sisson, Ann Fretwell, and Ann Noon. The box and the other articles (all of which were in the box when taken by the prisoner) were the property' of a Female Friendly Society established under the statute 33 G. III., c. 54, and the rules, orders, and regulations of which had been exhibited to and allowed and confirmed by the Sessions as directed by that statute. The society held their meetings at a public-house kept by Thomas Noon, the person men- tioned in the indictment ; and the funds of the society were kept in the box, which, with the funds it contained, was always deposited in a bedchamber in the house of Thomas Noon after the meetings of the society had ended. It was directed by the rules of the society that the box should remain in the custody of the landlord of the house or any other person whom the society should appoint, he being responsible for whatever effects were lodged therein. The persons in whom the property was laid in one of the counts of the indictment, namely, Sarah Sisson, Ann P>etwell, and Ann Noon, were stewardesses of the societ^^, appointed according to its rules. The box (as directed also by the rules of the society) had three different locks upon it, and each stewardess had one ke3^ The stewardesses were (by the same rules) to serve for one year and then to resign their keys, cash, and books to the new stewardesses. The society met on the evening of the night in which the offence was committed, and the box with the funds in it was, after the meeting broke up, deposited in the usual place in Thomas Noon's house, from whence it was afterwards taken b}' the prisoner, who gained admis- sion to the chamber by means of a ladder and breaking open the window. The^ prisoner had been for some time a member of the society. One of the rules of the society was tliat each member should pay sixpence SECT, ni.] EEGINA V. WEBSTBB. 277 to the stock everj' fourth Monday ; and that if a member failed to pay for four successive nights she should be excluded. The prisoner had failed to pay for four successive nights, the last of which was the night the property was taken ; b ut no order for excluding her had been made by the^society. The prisoner was convicted ; but a case was reserved for the opinion of the judges upon the question whether, considering the situation in which the prisoner stood with respect to this property, the conviction was proper. In Easter term, 1822, the Judges (ten of them being present) were clear that as the landlord was answerable _to the, society for the prop- erty the conviction was right. REGINA V. WEBSTER, 9 Cox C. C. 13 [1861]. Case reserved for the opinion of this Court by the Chairman of the West Riding Sessions, held at Sheflfleld. William Webster was indicted at the West Riding of Yorkshire spring Intermediate Sessions, held at Sheffield, on the 22d May, 1861, for stealing, on the 11th of May, at Ecclesfield, three sovereigns and one half sovereign, the propertj' of Samuel Fox and others. It was proved on the trial that James Holt was in possession of a shop, where goods were sold for the benefit of a society called the " Stockbridge Band of Hope Co-operative Industrial Society." Each member of the society partook of the profit and was subject to the loss arising from the shop. IJolt (being himself a member) had_ the sole management, and was answerable for the safety of .all the pfoperty"and money' coming^ to his possession in the course of^^uch managfement: — The prisoner, "also a member of the society, assisted in tEie^hop without salary. On the occasion of the alleged larceny. Holt had marked some sov- ereigns and half-sovereigns and placed them in the till. The prisoner was suspected of taking some of them, and when charged with this, he admitted that he had taken the coins which formed the subject of this charge, and produced them from his pocket. The prosecution failing to prove that this was a friendly society duly enrolled, elected to amend the indictment by substituting the name of James Holt for that of Samuel Fox and others, and the same was amended accordingly. The counsel for the prisoner put in a copy of the rules of the society, with the name of John Tidd Pratt printed at the end thereof, and 278 CASES ON CRIMINAL LAW. [CHAP. XXIV. proved that this copy had been examined with the original copy, signed and sealed by the registrar of friendly societies, but which was not produced. He also put in a conveyance of the shop and premises to Samuel Fox and others as trustees. No other evidence of the trusteeship was given. The counsel for the prosecution objected that in order to prove the society to be a friendly society under the 18 & 19 Vict. c. 63, it was necessary to produce the original copy signed by the registrar, or to account for its absence suflBciently to justify the admission of secondary evidence. I overruled this objection, and admitted this evidence as proof that the society was duly enrolled. It was contended for the prisoner that Fox and others were the trustees ; that this was a friendly society, and that the property should be laid in Fox and others, and not in Holt, and that the prisoner could not therefore be convicted on the indictment as amended ; that as to any special property Holt might have in the money taken, he was joint owner of it with the prisoner, and as partner with him was equally in possession of it, and could not therefore be convicted. The Court overruled these last mentioned objections, and the pris- oner was convicted and sentenced to be imprisoned in the house of correction at "Wakefield for nine calendar months, subject to the opinion of the Court of Criminal Appeal whether under the circum- stances the conviction was right. The prisoner was admitted to bail to await the decision of the Court of Criminal Appeal. A copy of the rules of the society accompanies this case, and is to be taken as incorporated therewith. Wilson Overend, Chairman. Williams, J. How does this case differ from Rex v. Bramley, Russ. & Ry. 478, where a member of a benefit society entered the room of a person with whom a box containing the funds of the society was deposited, and took and carried it away, and it was held to be larceny, and the property to be well laid in the bailee ? Pollock, C. B. No doubt a man who has pawned his watch with a pawnbroker may be indicted for stealing it from the pawnbroker The present case finds that Holt was in possession of the shop and had the sole management, and was answerable for the safety of all the property and money coming to his possession in the course of such management, and therefore he may, quoad hoc, be treated as the owner. ' ' " By the Court, Conviction affirmed. SECT. I.] KBGINA V. EILET. 279 CHAPTER XXV. Larceny : Different Forms of Taking. Section 1. Stealing from One's Own Custody. '^;^U^Ma,-^ rdZ( ' the reports in the 860 CASES ON CBIMINAL LAW. [CHAP. XXIX. Law Journal show that they may be sustained in law on reasonable grounds. But those grounds are against the prosecution in this ease. Lush, J. I am of the same opinion. The property, if stolen, in this case must have been stolen by the wife. It is admitted that the wife did not steal the property when she left Burslem, as a wife cannot steal her husband's propert}', and they are one person in the eye of the law, and neither can be a witness for or against the other in criminal pro- ceedings. At what time, then, did she become a thief? It is said when she became an adulteress. But how can that be? Adulter}' aifords ground for a divorce, but the mere act of adultery does not make a difference in the status of husband and wife per se, and consti- tute the wife a thief if she takes away her husband's propertj\ There- fore, if the property was not stolen by the wife in this case, the prisoner could not be guilty of receiving it, well knowing it to be stolen. REX V. WILLIS, 1 Moody C. C. 375 [1833]. The prisoner, the wife of John Willis, was tried and convicted before Mr. Justice Park, at the spring Assizes for the County of Wilts, in the year 1833, for stealing twenty-flve sovereigns, ten half sovereigns, eight half crowns, and forty shillings, the property of William Orchard, and thirty or forty others, and among them the prisoner's husband ; all of whom were named in the indictment. This was a case of a friendly society held at the public-house kept by the prisoner's, husband, he being a member of the society, and the box containing the property was always left in the house of the husband of the prisoner ; but the box had four locks, kept by the stewards, of whom he was not one. The facts of the case were quite clear ; the wife having broken open this box and stolen a great deal of money to pay some debts of a former husband, and the jury convicted her to the learned judge's satisfaction as to the facts, but the learned judge thought it right to ask the opinion of the judges whether a wife can be convicted of larcen}', in stealing money in which her husband has a joint property, and deferred the sentence. The learned judge referred the judges to 1 Hale P. C. 514, Russell on Crimes, p. 19 ; Rex v. Bramlej', Russ. & Ry. 478 ; and to the first case in the Old Bailey Sessions Papers for the January Sessions 1818, CHAP. XXX,] BEGINA V. BIRD. 361 tried before the learned judge, in the presence of Lord Tenterden, then Mr. Justice Abbott. In Easter term, 1833, this case was considered at a meeting of the Judges, and they were of opinion that the conviction was wrong ; and the prisoner was discharged. K-i ^^ ri CHAPTER XXX. Larceny. Withholding not Lakcent. EEGINA V. BIRD, 12 Cox C. C. 257 [1873]. COURT OF CRIMINAL APIEAL. Case reserved for the opinion of this Court at the General Court of Quarter Sessions for the County of Buckingham, holden at Aylesbury, in the said county, on the 15th of October, 1872. Elizabeth Bird was tried upon an indictment which charged that she, the said Elizabeth Bird, "on the 12th of October, 1872, 19s. in money, of the monej's of Maria Lovell, feloniously did steal, take, and carry away, against the peace of our Lady the Queen, her crown, and dignity." It was proved that the said Elizabeth Bird was the daughter of a man who travelled about to fairs with a " shooting gallery " and a " merry- go-round," or " revolving velocipede machine," for riding on which he made a charge of Id. to each person for each ride. On the day in question the said Maria Lovell got into the " merry- go-round," which was then in charge of the said Elizabeth Bird, and handed to the said Elizabeth Bird a sovereign in payment for the ride, asking her to give her the change. The said Elizabeth Bird thereupon handed to the said Maria Lovell lid., and said she would give her the rest of the change when the ride was finished, as the " merry-go-round" was then about to start. The said Maria Lovell assented to this, and about ten minutes after when the ride was over, she found the said 362 CASES ON CEIMINAL LAW. [CHAP. XXX, Elizabeth Bird, who was then attending to the shooting gallery, and (asked her for her change, to which the said Elizabeth Bird replied that she had onlj' received from her Is., for which she had given the proper change, and she declined to give any more. Upon these facts it was contended by the counsel for the prisoner : first, that the prisoner could not be convicted of stealing the 19s., because no specific 19s. had ever been appropriated as the change for the sovereign handed to the prisoner, nor had there been a taking, either actual or constructive, of the 19s. from the said Maria Lovell; secondly, that under the above form of indictment, the prisoner could not be convicted of stealing the sovereign ; and that even if the indict- ment was sufficient, there was no evidence of a felonious taking of the sovereign, as it was not taken from Maria Lovell against her will ; and further, that the prisoner could not be convicted of larceny of the sov- ereign as a bailee, because, assuming that there was any evidence of a bailment, which was denied, the bailment was not to re-deliver the same money which was delivered to the prisoner. I overruled the objections, and directed the jury that if they were satisfied that the said Maria Lovell gave the prisoner the sovereign, and that she knew it and wilfully refused to give the said Maria Lovell the remainder of the change, they might properly convict the prisoner of stealing the 19s. The jury having returned a verdict of guilty, I reserved the above points for the consideration of the Court for the Consideration of Crown Cases Reserved, and judgment was in the meantime postponed and the prisoner admitted to bail. The question for the opinion of the Court is whether, under the circumstances above stated, the prisoner was properly convicted on the above indictment. Dated this eleventh day of November, 1872. (Signed) Buckingham and Chandos, Chairman of the above Court of Quarter Sessions. The case was first argued in the Court for the Consideration of Crown Cases Reserved, before Kelly, C. B., Martin, B., and Brett, Grove, and Quain, JJ., who directed it to be argued before all the judges. Graham for the prisoner. The conviction cannot be supported. First, there was no larceny of the sovereign, because the prisoner was not bound to return it to the prosecutrix. To make the prisoner a fraudulent bailee she must have been bound to return the sovereign in specie: Regina v. Hassell, L. & C. 58 ; 8 Cox C. C. 491; Regina V. Garrett, 2 F. & F. 14 ; Regina v. Hoare, 1 F. & F. 647. CHAP. XXX.J BEGINA V. BIRD. 363 [Blackbdrn, J. May the prisoner not have been a bailee of the sovereign subject to her right of lien on it for Is. ?J Not here, as the sovereign was handed to the prisoner with the intention that it should become her property, and credit was given to her for the change. [CocKBURN, C. J. Was there any intention to part with the sovereign ?] It is submitted that there was : Regina v. Thomas, 9 C. & P. 741 ; Eex V. Harvey, 1 Leach C. C. 467 ; Parlte's Case, 2 East P. C. 671 ; Regina v. Oliver, Bell C. C. 287 ; Cox C. C. 384 ; Regina v. Prince, 11 Cox C. C. 145 ; L. Rep. C. C. R. 150 ; Walsh's Case, Russ. & Ry. 215 ; Regina v. Reynolds, 2 Cox C. C. 170 ; Rex v. Nicholson, 2 Leach C. C. 610. If t he prosecutr ix intends to part with the propertj^ the mere fact that the possession was obtained by a fraud does not make the crtfSiTce larceny : RexlrTJactson, 1 Moodj' C. C. 119 ; Rex t). Atkinson, 2 East P. C. c. 16, § 104 ; Regina v. North, 8 Cox C. C. 433 ; Regina V. Williams, 7 Cox C. C. 355 ; Regina v. M'Kale, 37 L. J. 97, M. C. ; 11 Cox C. C. 32. [CocKBURN, C. J. Suppose the prosecutrix never intended to part with the property in the sovereign until she got the 19s. change? Mellor, J. Was there a voluntary parting with her entire interest in the sovereign ? Blackburn, J. The prosecutrix never thought of giving the prisoner credit for the 19s. Kelly, C. B. The real question is. Was this but one transaction? A few minutes elaps- ing while the machine was going round is immaterial.] It is contended that the property in the sovereign was parted with, and that the prose- cutrix could not have maintained an action to recover it, as she never intended to have that sovereign returned to her. Secondlj-, the con- viction for stealing 19s., as alleged in this indictment, cannot be sus- tained. Before the 14 & 15 Vict. c. 100, § 18, it was necessary to allege in the case of money stolen the specific coins, and it was cus- tomary to charge the stealing of so many pieces of the current coin of the realm called sovereigns, shillings, etc., as the case might be, and it was necessary to prove that some one of the specific coins alleged was stolen. To remove diflSculties that had arisen on this state of the law, §18 enacts that " in every indictment in which it shall be necessary to make any averment as to any money, etc., it shall be sufficient to describe such monej', etc., simply as monej', without allegation so far as regards the description of the property, specifying any particular coin, and such allegation so far as regards the description of the prop- erty shall be sustained by proof of any amount of coin, although the particular species of coin of which such amount was composed shall not be proved. Now, under the allegation of stealing 19s. in this in- dictment, the prisoner could not be convicted of stealing a sovereign. That was a variance. The prosecutrix was bound to prove that shillings had been stolen. Having particularized the money stolen, it should 364 CASES ON CRIMINAL LAW. [OHAP. XXX have been proved that shilling pieces were stolen. [Grove, J. The allegation is not nineteen pieces of the current coin called shillings, but 19s. in money. Blaokbuen, J. That means, I should say, money to the value of 19s.] The word shilling must be taken as descriptive of the thing stolen, and must be proved: Archb. Crim. Pleadings, 190 (ed. 1862) ; Regina v. Deeley, 1 Moody C. C. 303 ; Regina v. Owen, 1 Moody C. C. 118; Regina «. Craven, Russ. & Ry. 46; Regina u. West, Dears. & B. 109 ; 7 Cox C. C. 183 ; Regina v. Bond, 1 Den. C. C. ; Regina v. Jones, 1 Cox C. C. 105. The judges retired to consider, and on their return into court, CoCKBDRN, C. J., said : The majority of the judges are of opinion that the prisoner was not properly convicted of stealing the 19«. charged in the indictment, for she had not taken them from the prose- cutrix, and could not therefore be convicted on this indictment. The majority of the judges do not say that she might not have been con- victed on an indictment charging her with stealing the sovereign if the issue had been properly left to the jurj'.^ Upon the present indictment, however, she must be discharged. Conviction quashed. REX V. BANKS, Russ. & Rr. 441 [1821]. The prisoner was tried and convicted before Mr. Justice Bayley, at the Lancaster Lent Assizes, in the year 1821, for horse-stealing. It appeared that the prisoner borrowed a horse, under pretence of carrying a child to a neighboring surgeon. Whether he carried the child thither did not appear ; but the day following, after the purpose for which he borrowed the horse was over, he took the horse in a different direction and sold it. The prisoner did not offer the horse for sale, but was applied to to sell it, so that it was possible he might have had no felonious intention till that application was made. The jury thought the prisoner had no felonious intention when he took the horse ; but as it was borrowed for a special purpose, and that purpose was over when the prisoner took the horse to the place where he sold it, the learned judge thought it right upon the authority of 1 In Begina v. Gumble [12 Cox 0. C], 248, a similar case to this, the court below amended the indictment, and substituted a sovereign for 19s. 6rf., and the Court for the Consideration of Crown Cases Beserved a£Srmed the conviction. [Eeporter's note.] CHAP. XXX.] REGINA V. GAEDNEE. 365 2 East P. C. 690, 694, and 2 Russ. 1089, 1090,1 to submit to the con- sideration of the judges whether the subsequent disposing of the horse, when the purpose for which it was borrowed was no longer In view, did not in law include in it a felonious taking. In Easter term, 1821, the Judges met and considered this case. They were of opinion that the doctrine laid down on this subject in 2 East P. C. 690 & 694, and 2 Russell, 1089 & 1090, was not correct. Thej' held that if the prisoner had not a felonious intention when he originally took the horse, his subsequent withholding and disposing of it did not constitute a new felonious taking, or make him guilty of felony ; consequently the conviction could not be supported. i^GiNA V. Gardner, 9 Cox C. C. 253 [1862]. COURT OF CRIMINAL APPEAL. The following case was reserved at the Middlesex Sessions. Edward Gardner was tried on an indictment charging him in the first count with stealing one banker's check and valuable security for the payment of £82 19«., and of the value of £82 19s., and one piece of stamped paper of the property of James Goldsmith. In the second count the property was stated to be the property of Thomas Boucher. It appeared from the evidence of Thomas Boucher, a lad of fourteen, that he found the check in question ; that having met the prisoner Gardner, in whose service he had formerly been, he showed it to him ; that the prisoner (Thomas Boucher being unable to read) told him it was only an old check of the Royal British Bank ; that he wished to show it to a friend, and so kept the check ; that Boucher very shortly on the same day went to the prisoner's shop and asked for the check ; that the prisoner from time to time made various excuses for not giving up the check, and that Boucher never again saw the check. It also appeared that the prisoner had an interview with Goldsmith, in which he said that he knew the check was Goldsmith's, asked what 1 In 2 Russ. 1089, it is said that, " In the case of a delivery of a horse upon hire or loan, if such delivery were obtained bona fide, no subsequent wrongful conversion pending the contract will amount to felony ; and so of other goods. But when the purpose of the hiring or loan for which the delivery was made, has been ended, felony may be committed by a conversion of the goods." 366 CASES ON CEIMTNAL LAW. [CHAF. XXXI. reward was offered, and upon being told 5s., said he would rather light his pipe with it than take 5s. The check has never been received either by Goldsmith or Boucher, though there was some evidence (not satisfactory) by the prisoner's brother of its having been inclosed in an envelope and put under the door of Goldsmith's shop. The jury found, "That the prisoner took the check from Thomas Boucher in the hopes of getting the reward ; and, if that is larcenj^, we find him guilty." Thereupon the judge directed a verdict of guiltj' to be entered, and reserved for the opinion of this Court whether upon the above finding the prisoner was properlj'- convicted. Pollock, C. B. In this case the prisoner was convicted of stealing a check. He took the check awaj"^ from a boy who found it, and did not immediately give information to the owner, but withheld it in the expectation of getting a reward. The taking of the check from the finder was not a felonious taking, and the merely withholding it in the expectation of a reward was not a larceny. The rest of the Court concurring, Conviction quashed. CHAPTER XXXI. Larceny. Invasion of a Wrongful Possession. COMMONWEALTH v. FINN, 108 Mass, 466 [1871]. Indictment containing two counts, the first for robbing Richard Dootson, the second for receiving thirty-one gold sovereigns, of the property of Dootson, knowing them to have been stolen. At the trial in the Superior Court for Norfolk, before Dewey, J., it appeared that Dootson stole the sovereigns from their real owner and afterwards on the same day was robbed of them by Lot Arm- strong ; and there was evidence that the defendant received the CHAP. XXXI.] COMMONWEALTH V. FINN. 367 sovereigns from Armstrong. As to the defendant's gniltj- knowledge, there was conflicting testimony ; and he introduced evidence of good character, and that he was drunk at the time when the sovereigns were received. The judge, against the objection of the defendant, instructed the jury that they would be authorized to find the ownership of the sov- ereigns to be in Dootson, if they were satisfied that he had actual- possession of them at the time of the robbery ; and on the question of guilty knowledge instructed them that, if the defendant received the sovereigns under such circumstances as would satisfy a man of ordi- nary intelligence and caution that they were stolen, they would be authorized to find the guilty knowledge charged. The jurj' returned a verdict of not guilty on the first count and guilty on the second count ; and the defendant alleged exceptions. Wells, J. In charging the robbery, the goods stolen were properly described as being of the propertj' of the person from whom they were taken ; although as against the true owner he had no title or right in the goods, and his possession was tortious. Besides the authorities cited by the Attorney General, see Rose. Crim. Ev. (6tli ed.) 602, 604, and cases there referred to. The decision in Commonwealth v. Morse, 14 Mass. 217, seems to have been a departure from the rule at common law, and has been corrected by statute. Rev. Sts. c. 133, § 11. Gen. Sts. c. 172, § 12. The defendant does not controvert this as applied to an indictment for larceny or robbery. But as the conviction in this case was only upon the count for receiving the stolen goods, it is cont e nded that this oflence mus t have J)eerLgubsefluent_to_theJerniinatLQn_ of__tbe possession ^ftEe^ original thief, so that ownership at that time could not properly be alleged to be in him. There are two answers to this objection, either of which we think is sufficient. 1. Possession is ^j-i'ma _/aae evidence of title. Against all persons not having a better right, it constitutes or rather answers for a right of property. An action alleging property may be maintained upon it ; because a mere stranger, who derives no title, right, or authority from the previous owner, cannot set up his title against the right thus gained bj^ possession. Burke v. Savage, 13 Allen, 408. This is true, not only as against one who disturbs that possession ; but if the pos- session is not parted with voluntarilj'-, it is, equally so against any one who afterwards meddles with the property without right. 2. The ofl'ence of receiving stolen goods is accessory onlj' to the principal offence of larceny. The receiver is an accessar}' after the fact. The principal offence being established, either by proof of 368 CASES ON CRIMINAL LAW. [CHAP. XXXII. the facts or by production of a record of couviction therefor, it is onlj necessary to show further the receipt of the goods (involving of course their identity) and guilty knowledge. Identity of the property in- volves the element of ownership as an essential part of its description ; but if there has been a conviction of the principal offender, the record establishes the ownership sufficiently for all purposes of the prosecution •against the accessories. Identity in substance is all that is then re- quired to be proved. It must folio Wj _wethinki,that, injiny^jirosecu- tion against the receiver an allegation of ownership is good, if it be such"as' would be sufficient to maintain a prosecution for thejirincigal offence of larceny of the same goods. The thief and the receiver may be joined in the same indictment. Commonwealth v. Adams, 7 Gray, 43. It would be strange if the same allegation of ownership would not be good against both parties in such an indictment. CHAPTER XXXn. Laecent, Conventional Taking bt Bringing Goods into New Jurisdiction. COMMONWEALTH v. HOLDER, 9 Gray, 7 [1857]. Indictment for stealing at Milford in this county goods of Henry W. Dana. At the trial in the Court of Common Pleas there was evidence that the defendant broke and entered the shop of said Dana at Smith- field in the State of Ehode Island, and stole the goods mentioned in the indictment, and brought them into this county. The defendant asked that the jury might be instructed that the indictment could not be maintained, because the courts of this Sta^e could not take cogni- zance of a Jarceuy committed in another State. But Meflen, C. J., refused so to instruct the jury, and instructed them that the evidence, if believed, was sufficient to support the indictment. The defendant being convicted alleged exceptions. Shaw, C. J. A majoritj' of the court are of opinion that this case must be considered as settled by the case of Commonwealth v. Up- richard, 3 Gray, 434, and the principles stated and the precedents CHAP. XXXII.] COMMONWEALTH V. HOLDER. 369 cited. Though to some extent these colonies before the Revolution were distinct governments and might have different laws, it was not unreasonable, as they all derived their criminal jurisprudence from the English common law, to regard the rule applicable to a theft in an English county of goods carried by the thief into another as analo- gous, and adopt it. We are of opinion that Massachusetts did adopt it, and this is established by judicial precedent, before and since the Revolution, and is now settled by authority as the law of this State. Thomas, J. The real question in this ease is, whether the defendant can be indicted, convicted, and punished in this Commonwealth for a larceny committed in the State of Rhode Island. If it were a new question, it would be enough to state it. The obvious, the conclusive answer to the indictment would be that the offence was committed within the jurisdiction of another, and, so far as this matter is con- cerned, independent State, of whose law only it was a violation, and of which its courts have exclusive cognizance. By the law of that State the offence is defined and its punishment measured ; by the law which the defendant has violated he is to be tried. Whether the acts done by him constitute larcenj', and, if so, of what degree, must be determined bj' that law. Its penalties only he has incurred ; its means of protection and deliverance he may justly invoke, and especially a trial by a jury of his peers in the vicinage where the offence was committed. This obvious view of the question will be found upon reflection, I think, to be the only one consistent with the reasonable security of the subject or the well defined relations of the States. It is well known that the laws of the States upon the subject of larceny materially differ. In most of them the common law of larceny has been greatly modified by statutes. The jurisprudence of all is not even based on the common law ; in several the civil law obtains. In cases where a difference of law exists, by which law is the defend- ant to be judged, — the law where the offence (if any) was committed, or where it is tried ? For example, the defendant is charged with taking with felonious intent that *hich is parcel of the realty, as the gearing of a mill or fruit from a tree. By the St. of 1851, c. 151, the act is larceny in this Commonwealth. If it appears that in the State where the act was done it was, as under the common law, but a tres- pass, which law has the defendant violated and hy which is he to be tried ? Or suppose the defendant to be charged with the stealing of a slave, — a felony in the State where the act is done but an offence not known to our laws. The difficulty in both cases is the same. You have not only conflicting jurisdictions but different rules of con- duct and of judgment. 24 370 CASES ON CEIMINAL LAW. [CHAP. XXXII. But supposing the definitions of tlie offence to be the same in the two States, the punishments may be very different. Where such differ- ence exists, which penalty has the defendant justly incurred and which is he to suffer? For example, the offence is punishable by imprisonment in Ehode Island, saj' for a year ; in this State the same offence is pun- ishable by imprisonment from one to five years ; is the defendant liable to the heavier punishment? Or suppose he has been convicted in Rhode Island, and in consideration of his having indemnified the owner for the full value of the goods taken, his punishment has been more mercifully measured to him, can he, after he has suffered the punishment, and because the goods were, after the larceny, brought into this State, be made to suffer the penalty of our law for the same offence ? Or suppose him to have been convicted in Rhode Island and a full pardon extended to him, can he be tried and convicted and pun- ished here ? Again : the power to indict, convict, and punish the offence in this State proceeds upon the ground that the original caption was felonious. If the original taking was innocent or but a trespass, the bringing into this State would not constitute a larceny. You must therefore look at the law of the State where the first caption was made. And how is the law of another State to be ascertained ? What is the la w of anoth er State is a question of fact for the jury. The jury in this way are in a criminal case made not only to pass upon the law, but to pass upon it as a matter of evidence, subject, strictly speaking, neither to the direction nor the revision of the court. Again : the defendant isjindjcted here for the l arceny committed in Rhode Island; while^ in custody here awaiting his trial, he is de- manded of the Executive of this State by the Secutive of Rhode Island as a fugitive from the justice of that State, under the provisions of the Constitution of the United States, art 4, § 2, and the U. S. St. of 1793, c. 45. Is he to be tried here, or surrendered up to the State where the offence was committed and tried there? Or if he has been already tried and convicted and punished in this State, is he to be sent back to Rhode Island to be tried and punished again for the same offence? And would his conviction and punishment here be any answer to the indictment there? Or if he has been fully tried and acquitted here and then demanded by the Executive of Rhode Island, is he, upon requisition, to be sent to that State to be again tried, to be twice put in jeopardy for the same offence ? It is quite plain no ground in law would exist for a refusal to surrender. The defendant was indicted for larceny, not for the offence of bring- ing stolen goods into the Commonwealth. He was, under the instruc- tion of the presiding judge, tried for the larceny in Rhode Island, was CHAP. XXXII.] COMMONWEALTH V. HOLDER. 371 convicte d for the I arcens_in_BIioda -Island, and must be punished, if at all, for the larceny in Rhode Island. And under the rule given to the jury is presented a ease where, for one and the same moral act, for one and the same violation of the rights of propertj', the subject may be twice convicted and punished. Nay more, if a man had stolen a watch in Rhode Island and travelled with it into everj^ State of the Union, he might, under the rule given to the jury, if his life endured so long, be indicted and punished in thirty-two States for one and the same offence. And it is well to observe that it is the retention of the property which is the cause of the new offence, and the carrying • of it from the place of caption into another State. If the defendant had stolen prop- erty in Rhode Island and consumed or destroj-ed it, and then had removed to Massachusetts, but one offence would have been com- mitted, and that in Rhode Island. Such are some of the more obvious difficulties attending the position that an offence committed in one State may be tried and punished in another. The doctrine violates the first and most elementary princi- ples of government. No State or people can assume to punish a man for violating the laws of another State or people. The surrender of fugitives from justice, whether under the law of nations, treaties with foreign powers, or the provisions of the Constitution of the United States, proceeds upon the ground that the fugitive cannot be tried and punished by anj' other jurisdiction than the one whose laws have been violated. Even in cases of the invasion of one countrj- by the subjects of another, it is the violation of its own laws of neutrality that the latter countrj' punishes, and not the violation of the laws of the country invaded. The exception of piracy is apparent rather than real. Piracy may be punished by all nations because it is an offence against the law of nations upon the seas, which are the highways of nations. The ruling of the learned Chief Justice of the Common Pleas was, I may presume, based upon the decisions of this court in Commonwealth V. CuUins, 1 Mass. 116, and Commonwealth v. Andrews, 2 Mass. 14. It is certainly the general duty of the court to adhere to the law as decided. Especially is this the case where a change in the decision would impair the tenure by which the rights and property of the sub- ject are held. But even with respect to these, where it is clear a case has been decided against the well settled principles of law and of reason, it is the duty and the practice of the courts to revise such decision, and to replace the law on its old and solid foundation. This is peculiarly the duty of the courts where such decision works its in- justice by impairing the personal rights of the citizen, or by subjecting him to burdens and penalties which he never justly incurred. 372 CASES ON CRIMINAL LAW. [CHAP. XXXII. In m3' judgment, the courts of this Commonwealth have not, and never had, under the Constitution of the United States or otherwise, the rightful power to try a man for an offence committed in another State. It is in vain, it seems to me, to attempt to preserve and make rules of conduct decisions founded upon wholl3- erroneous views of the relations which the States of the Union bear to each other under the Constitution, and in conflict with well settled principles of constitu- tional and international law. I should be content to rest my dissent from the judgment of the Court in the case at bar upon the principles affirmed in the recent case of Commonwealth v. Uprichard, 3 Gray, 434. In effect that case overrules, as its reasoning thoroughly undermines, the earlier cases. They cannot stand together. But as the decision in the case at bar rests upon the authority of the cases in the first and second of Massachusetts Reports, it may be well to examine with care the grounds upon which they rest. Such an examination will show, I think, not only that the cases were put upon erroneous views as to the relation of the States, but that they were also unsound at common law. In the case of Commonwealth v. CuUins, a jury trial where three judges of the court were present, the evidence showing that the goods were taken in the State of Rhode Island, Mr. Justice Sedgwick, who charged the jurj-, said that "the Court were clearly of opinion that stealing goods in one State and convejing stolen goods into another State was similar to stealing goods in one county and convej'ing the stolen goods into another, which was always holden to be felony in both counties." Whatever the points of similarity, there was this obvious and vital difference, to wit, thaj; ^cfinvJciion Ja_^nej;OTinty_was a barto cpnvjctipn in another, and that convi{3tiojLiji,one,State.is jio bar t,a_con-viction ia,.auo_thfir State. It was a doctrine of the common law that the asportation of stolen goods from one countj' to another was a new caption and felony in the second county, — a legal fiction devi sed for greater facility in c on- victing the offender where it was juncertain where the first caption took place. The foundation of the rule was that the possession of the owner continued, and that every moment's continuance of the trespass may constitute a caption as well as the first taking. But in what respect was the taking in one State and conve3'ing into another State similar to the taking in one county and conveying into another county? It could only be " similar" because the legal relation which one State bears to another is similar to that which one countj' bears to another ; because, under another name, there was the same thing. If a man is to be con- vinced of crime by analogy, the analogy certainly should be a close CHAP. XXXII.] COMMONWEALTH V. HOLDER. 373 one. Here it wa s but a shad ow. In_Uie__different_£Qynti_es there was ope law, one mode of trial, the sarne interpretation of the law, and the same punishmentr~The rule, mode of trial, and jurisdiction were not The States of the Union, it is quite plain, hold no such relation to each other. As to their internal police, their law of crimes and punish- ments, they are whoUj- independent of each other, liaving no common law and no common umpire. The provision indeed in the Constitu- tion of the United States for surrendering up fugitives from justice by one State to another is a clear recognition of the independence of the States of each other in these regards. It excludes the idea of any jurisdiction in one State over crimes committed in another, and at the same time saves any necessity or reason for such jurisdiction. Nor is there any provision in the Constitution of the United States which impairs such independence, so far as the internal police of the States is concerned. On the other hand, the widest diversity exists in the institutions, the internal police, and the criminal codes of the several States, some of them, as Louisiana and Texas, having as the basis of their jurisprudence the civil and not the common law. In the relation which Louisiana holds to this State can any substantial analogy be found to that which Surrej' bears to Middlesex? An analogy closer and more direct could have been found in the books when Commonwealth v. Cullins was decided. It was that of Scotland to England, subject both to one crown and one legislature ; yet it had been decided that when one stole goods in Scotland and carried them to England, he could not be convicted in the latter country. Rex v. Anderson (1763), 2 East P. C. 772; 2 Russell on Crimes (7th Amer. ed.), 119. Or an analogj' might have been found in the cases of goods stolen on the high seas and brought into the counties of England, of which the courts of common law refused to take cognizance because they were not felonies committed within their, jurisdiction. 1 Hawk. c. 33, § 62 ; 3 Inst. 113. In these cases a test would have been found, applicable to the alleged larceny of Cullins, to wit, the offence was not committed in a place within the jurisdiction of the court, but in a place as foreign to their jurisdiction, so far as this subject-matter was concerned, as__England„or._the neighboring p rovinc es. The case of Commonwealth v. Cullins has no solid principle to rest upon. The case of Commonwealth v. Andrews, two years later, may be held to recognize the rule laid down in Commonwealth v. Cullins, though it was an indictment against Andrews as the receiver of goods stolen by one Tuttle in New Hampshire ; and though there is, at the least, plausible ground for saying that there was a new taking by 374 CASES ON CBIMINAL LAW. [CHAP. XXXII. Tuttle at Harvard in the county where the defendant was indicted and tried. Indeed, Mr. Justice Parker takes this precise ground ; though he adds that "the common-law doctrine respecting counties may well be extended by analogy to the case of States united, as these are, under one general government." If that union was with reference to or concerned the internal police or criminal jurisprudence of the several States ; if it was not obviously for other different, distinct, and well defined purposes ; and if we could admit the right of the court to extend by analogy the provisions of the criminal law and so to enlarge its jurisdiction, there would be force in the suggestion. As it is, we must be careful not to be misled by the errors of wise and good men. Judge Thatcher puts the case wholly on the felonious taking at Harvard. Mr. Justice Sedgwick, though having the same view as to the taking at Harvard, does not rest his opinion upon it, but upon the ground that the continuance of the trespass is as much a wrong as the first taking. This doctrine applies as well where the original caption was in a foreign country as in another State of the Union. If you hold that every moment the thief holds the property he commits a new felonj', 3'ou may multiply his ofiences ad infinitum / but in so carrying out what is_at _theL.best a legal fictioji, you shock Jihe common sense of men and their sense of justice. Mr. Justice Sedgwick will not admit the force of the objection that the thief would be thus twice punished, but regards with complacency such a result. But as we are to pre- sume that the punishment is graduated to the offence, and as far as punishment may expiates the wrong, the mind shrinks from such a consequence. But saying that whatever he might think upon this question if it were res integra, he puts his decision upon the case of Paul Lord decided in 1792, and that of Commonwealth v. CuUins. Chief Justice Dana relies upon the eases before stated and a general practice, and also upon the principle that every moment's felonious possession is a new caption. Such was the condition of the law in this State when the case of Commonwealth v. Uprichard came before the court. In that case the original felonious taking was^n_the province of _ Nova Scotia. The bringing of the stolen goods into this Commonwealth was held not to be a larceny here. But if it be true that every act of removal or change of possession is a new caption and asportation, that every moment's continuance of the trespass is a new taking, — if this legal fiction has any life, it is difficult to see why the bringing of the goods within another jurisdiction was not a new offence. No distinction in principle exists between this case and a felonious taking in another State and bringing into this. So far as the law of crimes and punishments is CHAP. XXXII.] BEX V. SIMMONDS. 375 concerned, the States are as independent of each other as are the States and the British Provinces. The case of Commonwealth v. Uprichard rests, I think immovably, upon the plain grounds that laws to punish crime are local and limited to the boundaries of the States which prescribe them ; that the com- mission of a crime in another State or country is not a violation of our law, and does not subject the offender to any punishment prescribed by our law. These are principles of universal jurisprudence, and as sound as they are universal. It is sometimes said that after all the oflfender is only tried and con- victed for the offence against our laws. This clearly is not so. It is only by giving force to the law of the country of the original caption that we can establish the larceny. It is the continuance of the caption felonious by the law of the place of caption. In the directions given to the jury such effect is given to the laws of Rhode Island. The jury were instructed that if the defendant broke and entered into the shop of Henry W. Dana in Smithfield in Rhode Island and thence brought the goods into this county, the indictment could be maintained. The felonious taking in Rhode Island is the inception and groundwork of the offence. The proceeding is in substance and effect but a mode of enforcing the laws of and assaming jurisdiction over offences committed in another State. For the reasons thus imperfectly stated, I am of opinion that the instructions of the Court of Common Pleas were erroneous, that the exceptions should be sustained, the verdict set aside, and a new trial granted. Exceptions Overruled. REX V. SIMMONDS, 1 Moody C. C. 408 [1834]. The prisoner was convicted before Mr. Justice Gaselee, at the spring Assizes 1834, for the County of K ent, of stealing two geldings in that county. The horses were stolen in Sussex. The prisoner was apprehended with them at Croydon in Surre}^ The only evidence to support the chai-ge of stealing in Kent was, that wEeiTtEe prisoner was apprehended at-CrOydotrphe -said~he- had been at Dorking to fetch them, and that tEey~BelongMWTiis "brother, who lived at Bromley. The police officer offered to go to Bromley. They took the horses and went as far as Beckenham church, when the prisoner said he had left a parcel at the Black Horse, in some place in Kent. The police officer accordingly 376 CASES ON CBIMINAL LAW. [CHAP. XXXH. went thither with him, each riding one of the horses ; when they got there the officer gave the horses to the hostler. The prisoner made no inquiry for the parcel but made his escape, and afterwards was again apprehended in Surrey. The prisoner was convicted, but the learned judge did not pass sentence upon him, reserving the question whether there were any evidence to support the indictment in Kent. At a meeting of all the Judges m Easter term, 1834, they were unan- imously of opinion that there was no evidence to bejieft to the jury of stealing in Kent, and that no judgment ought to be given upon this conviction, but that the prisoner should be removed to Surrey. STATE V. BARTLETTji 11 Vermont 650 [1839]. Indictment for stealing two oxen. Plea, not guilty. Upon the trial in the court below testimonj^ was introduced tending to show that the^j-espondentjtple^ the oxen in the PrQxince-of- Lower Canada and drove them iato, this county, where he sold them. The respondent contended that though the jury should find the facts which the testimony tended to prove, still the indictment could not be maintained. But the Court charged the jury that if they found from the testimony that the oxen were stolen by the respondent in Canada, and were driven by him into this county, the indictment was sustained. To the charge of the Court the respondent excepted. The jury returned a verdict of guilty. After verdict the respondent filed a motion in arrest of judgment because the minute made by the clerk of the 90iirt upon said indictment did not show the " day, month, and year " when it was filed. The minute of the clerk was as follows: "Orleans County Court, Dec. T. 1838. Received and filed this 29th, 1838." The Court overruled the motion, to which the respondent also excepted. Redfield, J. . . . The only remaining ground urged by the respon- dent's counsel is that an indictment for larceny cannot be sustained here where the original caption was in the Province of Canada. If this question were entirely new and to be now decided upon the weight of authority at common law, I confess I should incline to the view taken 1 (See Commonwealth v. Uprichard, 3 Gray, 434 ; Cummings v. State, 1 Har. & Johns. 340; Hamilton u. State, 11 Ohio, 434; State v. Ellis, 3 Conn. 185; Simmons i;. Commonwealth, 6 Binn. 617 ; State v. Brown, 1 Hayn. 100; Simpson v. State, 4 Humph. 456.] CHAP. XXXII.] STATE V. BARTLETT. 377 by the respondent's counsel. For it is expressly laid down by all the English law writers upon this subject that " if the original taKing be such whereof the common law cannot take cognizanceToFiFffie goods be taken at sea, the~tEieT^cannot~be Tndicted of the larceny in any coTintj' into" wEicIT he' shall carry~tEeiri?^" 2TKussell on Crimes, 175. TKTcasTonErPii^eTjS Inst. 113; 1 Hawk. P. C. c. 33, § 32. The same exceptions obtained in regard to goods taken in any other part of the United Kingdom and brought into any county in England. Rex v. Anderson, 2 East's P. C. c. 16, § 156, p. 772. These obstacles were removed by the statute of 45 & 54 Geo. III. , and 7 & 8 Geo. IV. But in this State the rule has been too long settled and recognized by too long and uniform a course of practice and decision to be now changed unless it be by act of the legislature. We think, too, that the reasons are quite sufficient why the law, upon principles of mere policy, should not be changed. Larceny consists in the felonious taking and carrjdng awaj' of the goods of another. It implies a forcible violation of the right of the owner in regard to possession as well as property ; and that this should be done segretly or f eloniou gly. Now precisely the same reason found in all the books why the offender is guilty of larceny in every county into which be conveys the goods, — n amely, ' ' tha t everY moment's con- tinuance of the trespass and felouj' amounts to a new caption and as- portation," — =■- willitpply to"the~piFesent case with the siime force Of its original use. Hence it has been decided that where goods are taken in one of the United States and brought into another the offender may be indicted in the latter State and there tried. State v. Mockridge, decided by this court some years since in the County of Chittenden and not re- ported. The same rule obtains in some of the other States. Common- wealth V. Cullins, 1 Mass. R. 116 ; Commonwealth v. Andrews, 2 Mass. 14 ; State v. Ellis, 3 Conn. 185. New York and North Carolina have decided otherwise. '" ^TTis believed no good reason can be urged why the rule should ap- ply as between the American States and not extend to all countries. These States so far as punishment for crimes is concerned are as foreign to each other as distinct nations. There could be no pretence that in the case of Mockridge the stealing of money in the State of New York was any more punishable here than if he had taken it in Canada or even in a countrj' where there is no law on the subject. It could only be upon the ground that the bringing the money into this State "amounted to a new caption and asportation" like the carrying of goods feloniously through more than one county, which is indictable in either county. Such has been the long established practice in this State. A case is mentioned»by one of my brethren as having occurred 378 CASES ON CRIMINAL LAW. [CHAP. XXXII. while the late Judge Tichenor was Chief Justice of this court, where the original taking was in Canada and the offender was convicted here. Other cases of a similar character are known to have occurred in the State at different periods. We are not disposed to relax the rule. The argument that it might operate severely upon offenders who took prop- ertj' in a remote section of the Union, and after having carried it through many intervening States should finally be arrested, having passed perhaps a jurisdiction where larceny was a capital offence , is on e of those arguments ab inconvenienti which are always specious but not always safe to be relied upon. I t is suffic ient to say tha t no c ountry not absolutely barbarous would ever presume to punish_.any__one a second time for the same offence. Again, it would never be in the power of a second jurisdiction to punish the same offence unless the first jurisdiction, after having inflicted the utmost punishment, should surrender the expiated offender to be still further punished, which is not a supposable case in an}- Christian country. The judgment of the Court is that the respondent take nothing by his exceptions and motion. No further objections being urged he was sentenced to confinement in the State prison. EEGINA V. CARR, 15 Cox C. C. 131, note [1877]. John Cakr wa s indicte d.£a.tustealing 168 bonds of the Peruvian Gov- ernment, the property of Lionel Cohen and others ; s econd count, for felgniously receiving the same. "" — There were other counts charging him as an accessary before and after the fact. The bonds in question on the 2d June, 1877, were transmitted by the prosecutors to a customer in Paris. They were traced safely as far as Calais, and were stolen from the train after leaving that place. On the 4th of September the prisoner was found dealing with them in London, and the question arose as to the jurisdiction of this court to try the case, the robbery having been committed in France. The Solicitor- General submitted that the prosecutors never having parted with their property in the bonds, they were still under the pro- tection of the law and that the subsequent possession of the bonds in this country was sufficiently recent to enable the jury to find a verdict of larceny against a person who was dishonestly dealing with them here. The decision in Rex v. Prowes, 1 Moody C. C. 349, was cer- tainly opposed to this view, but no reasons were given for that judg- CHAP. XXXII.] EEX V. PEOWBS. 379 ment and a doubt as to the soundness of the decision was expressed by Parke, B., in Eegina v. Madge, 9 C. & P. 29. The case of Eegina V. Debrueill, 11 Cox C. C. 207, was referred to. As to the counts charging the prisoner with receiving and also as an accessary, the 24 & 25 Vict. c. 94 contemplated a case of this kind where the original offence was committed abroad. Denman, J. There can be no doubt that this was a larceny fully completed in France. I do not at all say that it might not be a very reasonable thing that any one afterwards dealing here with propertj- so stolen might make cogent evidence of having received them knowing them to have been stolen just as much as if they had been stolen in England ; but it appears to me that the point has been too solemnly decided for me to give the go-by to those decisions. It has been sol- emnly decided and acted upon so often that there is no jurisdiction in England to try a case where the stealing has been committed abroad, either against the principal or the accessary, that I have nothing to do but to act upon those decisions and to direct an acquittal in this case. I entertain no doubt that the case of Rex v. Prowes (ubi sup.) is directly in point, and Regina v. Madge (ubi sup.) fortifies it to the ex- tent of recognizing and acting upon it. Debrueill'scase alsojJecides that a conviction of receiving under similar circumstances could not be sustained. The^risoner inust therefore be acquitted. EEX «.. PROWES,! 1 Moody C. C. 349 [1832]. The prisoner was tried and convicted before Mr. Selwyn, K. C, at the spring Assizes for the County of Dorset in the year 1832, and or- dered to be transported for seven years ; but the execution of the sen- tence was respited in order that the opinion of the judges might be taken on the case. The indictment charged the prisoner with stealing at Dorchester, in the Countj' of Dorset, a quantity of wearing apparel, the propertj- of Thomas Cundy. The things had been taken by the prisoner from a box of the prosecutor's at St. Helier's in the island of Jersej', while the pfoSScuior~was"abseht at his work at a short distance, and without his leave ; thej' were shortlj^ afterwards found in the possession of the pris- oner at Weymouth, in the County of Dorset, where he had been appre- hended on another charge. 1 [See Rex v. Anderson, 2 East. P. C. 772; Regina v. Debruiel, 11 Cox C. C. 207 (1861).] 380 CASES ON CRIMINAL LAW. [CHAP. XXXIII. A doubt occurred whether the original taking was such whereof the common law could take cognizance ; and if not whether the case fell within the statute 7 & 8 G. IV. c. 29, § 76 ; or in other words whether the island of Jersey could [be] considered as part of the United Kingdom. 2 Russell, 175. If the original taking be such whereof .the, common law cannot take cogmzanceT'as if the goods be stolen a^t sea,jthethief cannot be indicted in anycouiity into which hfi may carry them. 3 Inst. 113 ; 1 Haw. P. C. 33, § 92. A similar exception prevailed formerly where the original taking was in Scotland or Ireland ; and it appears to have been holden that a thief who had stolen goods in Scotland could not be indicted in the County of Cumberland, where he was taken with the goods. Kex v. Anderson and others, Carlisle summer Assizes, 1763 ; and before the judges, November, 1763 ; 2 East, 772, c. 16, § 156. This case was considered at a meeting of all the Judges (except Lord Lyndhurst, C. B., and Taunton, J.,) in Easter term, 1832 ; and they held unanimously that the conviction was wrong and that the case was not within 7 «& 8 G. IV. c. 29, § 76. CHAPTER XXXIII. Larceny. The Physical Act of Taking. The prisoner was tried before Thomas Denman, Esquire, Common Serjeant, at the Old Bailey Sessions, January, 1824, on an indictment for stealing a leathern bag containing small parcels, the property of William Ray, the guard to the Exeter mail. At the trial it appeared that the bag was placed in the front boot, and the prisoner, sitting on the box, took hold of the upper end of the bag, and lifted it up from the bottom of the boot on which it rested. He hanSed the upper part of the bag to a person who stood beside the wheel on the pavement, and both had hold of it together, endeav- oring to pull it out of the boot, with a common intent to steal it. CHAP. XXXIII.] EEGINA V. WHITE. 381 Before they were able to obtain complete possession of the bag, and while they were so engaged in trying to draw it out, they were interrupted by the guard and dropped the bag. The prisoner was found guilty, but the facts above stated were specially found by the jury, in answer to questions put to them by the Common Serjeant. The Common Serjeant entei-taining some doubts whether the pris- oner could be truly said to have "stolen, taken, and carried away" the bag, he respited the judgment, in order that the opinion of the judges might be taken on the case. In Easter term, 1824, the Judges met and considered this case. They held the conviction right, being of opinion that there was a complete asportation of the bag. EEGINA V. WHITE, 1 Deaks. C. C. 203 ; 6 Cox C. C. 213. [1853]. The prisoner was indicted at the last Quarter Sessions for Bei-wick- upon-Tweed for stealing 5000 cubic feet of carburetted hydrogen gas of the goods, chattels, and property of Robert Oswald and others. Mr. Oswald wasa partner in the Berwick Gas Company, and the prisoner, a householder in Berwick, had contracted with the company for the supply of his house with gas to be paid for by meter. The meter, which was hired by the prisoner of the companj', was connected with an entrance pipe through which it received the gas from the companj^'s main in the street, and an exit pipe through which the gas was con- vej-ed to the burners. The prisoner had the control of the stop-cock at the meter, by which the gas was admitted into it through the entrance pipe, and he only paid the company and had only to pay them for such quantity of gas as appeared by the index of the meter to have passed through it. The entrance and exit pipes were the property of the pris- oner. The prisoner, to avoid paying for the full quantity of gas con- sumed and without the consent or knowledge of the company, had caused to be inserted a connecting pipe with a stop-cock upon it into the entrance and exit pipes and extending between them ; and the en- trance pipe being charged with the gas of the company, he shut the stop-cock at the meter so that gas could not pass into it, and opened the stop-cock in the connecting pipe, when a portion of the gas as- cended through the connecting pipe into the exit pipe and from thence to the burners and was consumed there, and the gas continued so to ascend and be consumed until by shutting the stop-cock in the con- necting pipe the supply was cut off. This operation was proved to 382 CASES OK CKIMINAL LAW. [CHAP. XXXIII. have taken place at the time specified by the prosecutor. It was con- tended for the prisoner that the entrance pipe into which the gas passed from the main being the property of the prisoner, he was in law- ful possession of the gas bj' the consent of the company as soon as it had been let into his entrance pipe out of their main, and that his di- verting the gas in its course to the meter was not an act of larceny. I told the jury that if they were of opinion on the evide nce that the en- trance pipe was used by the_company for the conveya nce of the gas by the permission of the prisoner, but that he had not by his contrac t any interest in the gas or right of cqntrpl over it un til it passed thro ugh the meter, his property in the pipe was no answer to the charge that there was nothing in the nature of gas to prevent its being the subject of larceny ; and that the stop-cock on the connecting pipe being opened by the prisoner and a portion of the gas being propelled through it by the necessary action of the atmosphere and consumed at the burners, there was a sufficient severance of that portion from the volume of gas in the entrance pipe to constitute an asportavit by the prisoner ; and that if the gas was so abstracted with a fraudulent intent he was guilty of larceny. The jury answered the questions put to them in the affir- mative and found the prisoner guilty ; I postponed judgment, taking re- cognizance of bail according to the statute for the appearance of the prisoner at the next Sessions to receive judgment if this court should be of opinion that he was rightly convicted. Hallantine for the prisoner. The prisoner was not guilty of larceny. He received the gas with the full consent of the company, and the evi- dence only shows that he did not account with the company according to his contract. The prisoner was guilty of fraud in evading the ac- counting by the meter, but his conduct was not felonious. LoKD Campbell, C. J. He took the gas from the company against their will instead of receiving it properly and accounting for it. Ballantine. The Gas Works Clauses Act, 10 Vict. c. 15, § 18, pro- vides a specific penalty for this verj' offence, which would hardly have been done if it had been regarded as a larceny. Maule, J. That clause may be intended to provide against frauds of a different kind, such as damaging the machinery or altering the in- dex of the meter, which would not be larceny. Lord Campbell, C. J. Is not this a taking invito domino ? Ballantine. The delivery of the gas is voluntary and the possession was not obtained by fraud. Maule, J. The taking was by turning the gas into a new channel without the leave of the company and that was done with intent to defraud. Ballantine. There was no trespass. CHAP. XXXIII.] EEGINA V. HANDS. 383 Maule, J. If this gas when taken was in the lawful possession of the prisoner and he was only guilty of a breach of contract in not ac- counting, you must say the same of the surreptitious introduction of new burners. Ballantine. An evasion of the meter and an interference with it stand on the same ground. The meter is only the voucher of an ac- count, and if there is a delivery according to contract on the one hand and onl^' a fraudulent dealing with a voucher on the other, there is no larceny. Lord Campbell, C. J. I think that the conviction ought to be affirmed and that the direction of the learned recorder was most accu- rate. Gas is not less a subject of larceny than wine or oil ; but is there here a felonious asportation ? No one who looks at the facts can doubt it. The gas no doubt is supplied to a vessel which is the property of the prisoner, but the gas was still in the possession of the company. Then, being in the possession of the companj- and their propertj', it is taken away animo furandi by the prisoner. If the property remains in the company until it has passed the meter, — which is found, — to take it before it has passed the meter constitutes an asportation. If the as- portation was with a fraudulent intent — and this the jury also have found — it was larcen3^ As to the Act of Parliament the legislature has for convenience sake added a specific penalty, but that cannot reduce the offence to a lower degree. My brother Maule has, however, given a probable explanation of that provision. Parke, B., Maule, J., Talfourd, J., and Martin, B., concurred. Conviction affirmed. REGINA V. HANDS, 16 Cox C. C. 188 [1887]. CROWN CASE RESERVED. Case reserved by the Quarter Sessions for the County of Gloucester as follows : — Prisoners Hands and Phelps were severally indicted for that on the 29th day of November, 1886, they did feloniouslj- steal, take, and carry away one cigarette, of the goods and chattels of Edward Shenton, against the peace of our said Ladj' the Queen. Prisoner Jenner was indicted for an attempt to steal, etc. Prisoners Jenner and Phelps pleaded guiltj'. Prisoner Henrj' Hands pleaded not guilt}' and was given in charge to the jury. 384 CASES ON OEIMINAL LAW. [CHAP. XXXIII. This is a case of larcenj' from what is known as an automatic box," and the circumstances are as follows : — Mr. Edward Shenton is the lessee of the Assembly Rooms at Chel- tenham and has fixed against the wall of the passage leading from the High Street to the rooms an ' ' automatic box." This box presents the appearance of a cube of about eight or ten inches, and in the upper right-hand corner (facing the operator) of the front face there is a horizontal slit or opening of sufficient size to admit a penny piece. In the centre of the face is a projecting button or knob about the size of a shilling. In the lower left-hand corner is a horizontal slit or opening of suffi- cient size to allow of the exit of a cigarette. There is an inscription on the face of the box : " Only pennies, not halfpennies." Also : " To obtain an Egyptian Beauties cigarette place a penny in the box and push the knob as far as it will go." If these directions are followed a cigarette will be ejected from the lower slit on to a bracket placed to receive it. The box is the property of the Automatic Box Company. The ciga- rettes with which it was charged belonged to Mr. Shenton. For some time past Mr. Shenton has found on clearing the box, which he did once or twice a day, that a large number of metal disks (brass and lead) of the size and shape of a penny had been put in and a corresponding number of cigarettes had been taken out. In consequence of this discovery a watch was set upon the box, and upon the day named in the indictment, the box having been previously cleared, two gentlemen were seen to go to it ; each put something in and each took a cigarette as it appeared. The box was then examined and found to contain one English penny and one French penny. These coins were left in. The box was locked and the watch was again set. Shortly after this, three lads (afterwards proved to be the three pris- oners) were seen to come to the entrance of the passage. One of them came in, went to the box, put something in, obtained a cigarette, and then rejoined the other two at the entrance. This was repeated a second time. The third time it was observed that the box would not work, and while the lad, who afterwards was found to be the prisoner Jenner, was pushing at the knob the watchman came from his place of concealment and put his hand upon him. The box was then opened and a piece of lead was discovered stuck in the " valve," which had the effect of preventing the machinery of the box from working. CHAP. XXXIII.j KEGINA V. HANDS. 385 It was then found that the box contained (besides the English and French pennies already mentioned) two disks of brass about the size and shape of a penny. No other coin or metal piece was found in the box and no one (but the three lads as above mentioned) had approached it after the two gentlemen who had put in the English and French pennies. The prisoner Jenner was given in charge to the police and the two other prisoners were subsequentlj' apprehended. Upon being brought together at the police station the prisoners all made statements more or less implicating themselves and each other. The prisoner Hands said : Me and Jenner met Phelps about 7.45 p. M. Phelps said : " I want to go to Dod wells." I did not go and we went down into the High Street. Phelps and Jenner stopped by the Assembly Eooms and went in ; I remained outside. I believe Jenner was caught at the box. Mr. Shenton's man took him inside. I after- wards put a penny in the box and had a cigarette mj-seif. The pieces of brass produced are cut in our shop, the blacksmith's shop at Mr. Marshall's. In leaving the case to the jury the learned chairman told them that they would have to consider : First, was there a theft committed ; that is, was Mr. Shenton unlawfullj' deprived of his property without his knowledge or consent? Secondly, if that were so, were they satisfied that the prisoner (Hands) took any part in the robber^' ? He also told them that if they thought that the prisoner was one of the three lads who came to the entrance of the passage and that he was there with the others for the common purpose of unlawfully taking the cigarettes from the box ; or that he afterwards partook of the proceeds of the robberj' ; or that he had taken a part in making the disks, knowing for what purpose they were to be used, that they would be justified in find- ing him guilty although he might not actually have put the disks into the box or have taken out a cigarette. The jurj' found the prisoner (Hands) guilty, and upon motion in ar- rest of judgment on the ground that " the facts as disclosed by the evi- dence were not sufBcient to constitute a larceny,'' all the prisoners were allowed to stand out on bail until the next Quarter Sessions. The question for the Court was whether the facts as disclosed by the evidence were sufficient to constitute a larceny. Lord Coleridge, C. J. In this case a person vras indicted for com- mitting a larceny from what is known as an " automatic box," which was so constructed that if j-ou put a penny into it and pushed a knob in accordance with the directions on the box a cigarette was ejected on to a bracket and presented to the giver of the penny. Under these circumstances there is no doubt tliat the prisoners put in the box a 25 386 CASES OK CRIMINAL LAW. [CHAP. XXXIV piece of metal which was of no value but which produced the same effect as the placing a penny in the box produced. A cigarette -was ejected, which the prisoners appropriated ; and in a case of that class it appears to me there clearly was larceny. The means by which the cigarette was made to come out of Jhe Jbox^ were fraudulentj.nd the cigarette so made to come out was appropriated. It is perhaps as well to say that the learned chairman somewhat improperly left the question to the jury. He told them that if they thought that the prisoner Hands was one of the three lads who came to the entrance of the passage and that he was there with the others for the common purpose of unlawfully taking the cigarettes from the box, or that he afterwards partook of the proceeds of the robbery, they would be justified in finding him guilty, — he did not say larceneously or feloniously ; and he further directed them that if they thought the prisoner had taken a part in making the disks, knowing for what purpose they were to be used, they would be justified in finding him guilty although he might not actually have put the disks into the box or have taken out a cigarette. Now I am not quite sure that simply the fact of doing an unlawful thing, as joining in the manufacture of a disk that some one else was to use, would make him guilty of larceny. He might be guilty of sometliing else but I doubt very much whether he could be convicted of larceny. As upon the facts of the case, however, I do not think that the jury could have been misled ; and as upon the facts there was undoubtedly a larceny committed, I am not disposed to set aside the conviction. Pollock, B., Stephen, Mathbw, and Wills, JJ., concurred. Conviction affirmed. CHAPTER XXXIY. Larceny with Aggravation. Section 1. Laecent from the Person. REGINA V. SELWAY, 8 Cox C. C. 235 [1859]. The prisoners were indicted for robbery and stealing from the per- son. The evidence showed that the prosecutor, who was paralyzed, received, while sitting on a sofa, in a room at the bade, of Tiis~iliop, a SECT. TI.] KEX V. CAMPBELL. 387 violent blow on the head from one of the prisoners, while the other went to a cupboard in the same room, and stole therefrom a cash box, with which he made off. Orridge, for the prisoners, submitted that on this evidence there was no proof of a stealing from the person. The cash box at the time it was stolen was at some distance from the place where the prosecutor was sitting, and could not be said, therefore, to be about his person. Robinson, for the prosecution, contended that it was quite suffi- cient for the purposes of the indictment to show that the cash box was under the protection of the prosecutor ; it need not be in his bodily possession. He was near enough to it to protect it, at least by raising an alarm. It was laid down in 1 Hale P. C. 533, " If a thief put a man in fear, and then in his presence drive away his cattle, it is a robberj-. So, if a man being assaulted bj' a robber throw his purse into a bush, or flying from a robber, let fall his hat, and the robber in his presence take up the purse or hat and cany it awaj', this would be robbery." The Common Sergeant, having consulted Mr. Justice Crowder and Mr. Baron Channell, held that although the cash box was not taken from the prosecutor's person, j-et it being in the room in which he was sitting, he being aware of that fact, it was virtually under the pro- tection of his person. He should under the circumstances leave this question to the ysry: Wag _the cash box under the protection of t he prosecutor's person at the time when it was stolen? The jury found that it was. Guilty. Ca^ ^. ^c'-.0 J C_4./. -z^SJ-T /5J£^ o, C^u. /^ ^^ ^ ^— <y driving a stranger, would the money be re- ceived for the master so as to become the propert3- of the latter?] Such coachman has no authority to receive any money for his mas- ter ; the prisoner, however, was entitled to take freight. [BoviLL, C. J. He was expresslj* forbidden to do so on this occasion.] Can it be said that he may be guilty of embezzlement if in obedience 1 24 & 26 Vict. c. 96, § 68, enacts that " Whosoever, being a clerk or servant or being employed for the purpose or in the capacity of a clerlt or servant, shall fraud- ulently embezzle any chattel, money, or valuable security which shall be delivered to or received or taken into possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant, or other person so employed. . . .'• a 4 C. & P. 390. ' Russ. & Ey. 139. 400 CASES ON CRIMINAL LAW. [CHAP. XXXVL of orders he receives money, and yet not guilty of that crime if he is acting contrary to his master's commands? See note to Regina v. Har- ris^ in 2 Russell on Crimes, 4th ed., p. 453. [Blackburn, J. In suggesting that case to be erroneous the editor seems to assume that the decision proceeded on the words " by virtue of his emploj'meut," whereas it did not. Bramwell, B. Suppose the captain of a barge let his master's ves- sel as a stand to the spectators of a boat-race and took paj'ment from them for the use of it?] Such use would not be in the nature of his business. [Blackburn, J. In the note to this section bj' Mr. Greaves he re- marks : " Mr. Davis''' rightlj' says that ' this omission avoids this tech- nical distinction ; ' but he adds, ' still it must be the master's money which is received by the servant, and not money wrongfully received by the servant by means of false pretences.' This is plainly incorrect." But in my opinion Mr. Davis was plaiulj' correct and Mr. Greaves wrong. Regina v. Thorpe.'] BoviLL, C. J. In the former Act relating to this offence were the words " by virtue of his employment." The phrase led to some diflS- cultj' ; for example, such as arose in Regina v. Snowlej- * and Regina v. Harris.' Therefore in the present statute those words are left out, and § 68 requires instead that in order to constitute the crime of em- bezzlement, by a clerk or servant the " chattel, monej', or valu- able security . . . shall be delivered to or received or taken into possession by him, for or in the name or on account of his master or employer.'' Those words are essential to the definition of the crime of embezzle- ment under that section. The prisoner here, contrarj' to his master's orders, used the barge for his, the servant's, own pui'poses and so earned money which was paid to him, not for his master but for him- self ; and it is expressly stated that there was no proof that he pro- fessed to carry for the master, and that the hirer at the time of paying the money did not know for whom he paid it. The facts before us would seem more consistent with the notion that the prisoner was mis- using his master's property and so earning money for himself and not for his master. Under those circumstances the mone}' would not be re- ceived " for" or "in the name of" or "on account of" his master but for himself, in his own name, and for his own account. His act there- fore does not come within the terms of the statute, and the conviction must be quashed, 1 Dears. C. C. 844. 2 Davis' Criminal Statutes, p. 70. 8 Dears. & B. C. C. 562. * 4 C. & P. 390. 6 Dears. 0. C. 844. CHAP. XXXVI.] KEX V. HEADGB. 401 Bramwell, B. I am of the same opinion. I think in these cases we should look at the substance of the charge and not merely- see whether the case is brought within the bare words of the Act of Parliament. Now the wrong committed bj' the prisoner was not fraudulent or wrongful with respect to money, but consisted in the improper use of his master's chattel. The offence is, as I pointed out during argument, only that which a barge-owner's servant might be guilty of, if when navigating the barge, he stopped it, allowed persons to stand upon it to view a passing boat-race, charged them for so doing, and pocketed the monej' they paid to him. There is no distinction between that case and this save that the supposititious case is more evidently out of the limits of the statute, The use of this barge by the prisoner was a wrongful act yet not dis- honest in the sense of stealing. But I will add that I do not think this ease even within the words of the statute. The servant undoubtedly did not receive the money " for" his master nor " on account of" his master nor "in the name" of his master. Nevertheless I doubt ex- tremely whether on some future day great difHcultj' m&y not arise as to the meaning of these expressions in § 68, fori doubt whether, although the servant had used his master's name, he would have been within the terms of the Act of Parliament. " In the name of" his master is a very curious expression. Suppose a person in service as a carter had also a horse and cart of his own and emploj'ed them to do some or other work, professing them to be his master's, and received hire for it "in the name of" his master, would that be embezzlement? Could he be rightly convicted under this section? I doubt it extremely'. The words " in the name of" his master, although inserted with a desire to obviate diflSculties, seem to me likely hereafter to raise them. REX V. HEADGE, Russ. & Ry. 160 [1820]. The prisoner was tried and convicted before Mr. Justice Bayley at the Old Bailey Sessions, September, 1809, on the statute 39 G. III. c. 85,^ for embezzling three shillings, wliich he received for and on account of his masters, James Clarke and John Giles. 1 Which enacts that if.any servant or clerk or any person employed for the pur- pose in the capacity of a servant or clerk to any person whomsoever, shall, by virtue of such emploj'ment, receive or take into his possession any money, goods, etc., or effects, for or in the name or on the account of his master or employer, and sliall 26 402 CASES ON CRIMINAL LAW. [CHAP. XXXVI. It appeared from the evidence that the prosecutors desired a neigh- bor, one Francis Moxon, to go to their shop and purchase some articles in order that they might discover whether the prisoner put the money which he received for the goods sold into the till ; the prosecutors sup- plied Moxon with three shillings of their own money for this purpose, which money thej' marked. Moxon went to the shop, bought the arti- cles, and paid the prisoner the three shillings. The prisoner embezn zled this money. It was urged on behalf of the prisoner that the prosecutors had con- structively the possession of this money up to the time of the embezzle- ment and that they had parted with nothing but the mere custody. The prisoner it was contended might have been indicted for larceny at com- mon law, but that the statute did not apply to cases where the money before its delivery to the servant had been in the master's possession and might legally be considered the masters' at the time of such deliv- ery, as Moxon in this case was the masters' agent and his possession theirs. The learned judge before whom this case was tried thought it de- served consideration and reserved the point for the opinion of the judges. In Michaelmas term, 1809, the Judges met and held the conviction right, upon the authority of Bull's Case,'' in which- the judges upon similar facts held a common-law indictment could' not be supported., It seemed to be the opinion of the judges that the statute did not apply to cases vhich are larceny at common law.^ REGINA V. BOWERS, L. E. 1 C. C. R. 41 [1866]. COURT FOR CROWN CASES RESERVED. The following case was stated by the assistant judge of the Mid- dlesex Sessions : — Samuel Bowers was tried before me at the Sessions of the Peace for Middlesex, on the 10th of January, 1866, upon an indictment which fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such ofEender shall he deemed to have feloniously stolen the same from his master or employer, for wliose use or In whose name or on wliose account the same was or were delivered or taken into the possession of such servant or clerk or other person so employed, although such money, goods, etc., was or were so taken or re- ceived into the possession of his or their servant, clerk, or other person so employed. 1 Cited in Bazeley's Case, 2 Leach C. C. 841 ; s. o. 2 East, P. C. notis. 2 [So Regina v. Gill, 6 Cox C. C. 295 (1854).] CHAP. XXXV[.J EEGINA V. BOWERS. 403 charged? him with' having feloniously embezzled several sums of mone}-, the property of John Clark, by -whom, it was alleged, he was emploj'ed as clerk and servant. The prisoner was emploj'ed by the prosecutor under an agreement dated Maj- 9, 1864:, of which the following is a copy : — Memorandam of agreement made and entered into this 9th day of May, 1864, between Samuel Bowers of the one part, and Robert Skirrow, John Clark, and John Quick, coal owners and merchants, of the other part, wit- nesseth that the said Samuel Bowers hereby agrees to become, and the said Skirrow, Clark, and Quick agree to engage the said Samuel Bowers as their agent or traveller for the sale of coals, one guinea per week to be paid to the said Samuel Bowers as salary, and one shilling per ton to be paid as com- mission upon all coals sold by him when the prices realized are in accordance with the current prices delivered ; any dealers he may be the means of se- curing as customers to the wharf, sixpence per ton to be paid for such ser- ,vices ; two shillings and sixpence to be paid for cartage and delivery of coals. The said Samuel Bowers likewise agrees to collect all moneys in connection with his orders; but the said Skirrow, Clark, and Quick will not hold him respOTsible for any bad debts that maybe contracted,, but expect him to be as cautious as practicable in securing good and solvent customers : the before- mentioned commission not to become due until the money has been received by, the said Skirrow, Clark, and Quick. The said Samuel Bowers also agrees not to, keep or retain in his possession moneys collected on behalf of the said Skirrow, Clark, and Quick more than one week from the date of receiving the same. The said Skirrow, Clark, and Quick agree to take the board and blinds now fitted up at the residence of the said Samuel Bowers at the cost price to him, on condition that they have free use, without charge, of that part of his residence now used as an office; It is mutually agreed that, should dissatisfaction arise on either side, a month's notice in writing must be given; In June, 1865, the prisoner was desirous of selling coals by retail on his own account, and the prosecutor consented to supply him with coals for that purpose, but then made an alteration in the mode of remunerating him, which is specified in a letter, of which the following is a copj' : — London, June 3, 1865. Mr. Samuei, Bowers : Dear Sir, — As you are now going into the retail coal trade on your own account, we think it best' to have a proper un- derstanding; and in future we pay you a commission only, — your salary will be stopped from this date. We find a very large amount standing against you, and we particularly request you to do all you possibly can to get it in; The writer will wait upon you on Wednesday at the usual time, and hopes you will have a large amount of money ready. Yours truly, Skirrow, Clark, & Quick. The prisoner consented to the proposed alteration, and continued td obtain orders from various persons for coals, which were supplied by 404 CASES OK CKIMINAL LAW. [CHAP. XXXVI. the prosecutor, the invoices being made out in the name of the pros- ecutor's firm ; and in the three instances charged in this indictment such invoices were produced b^- the customers, who proved payment of the several amounts in such invoices to the prisoner, whose receipt was attached to each invoice. The prisoner did not account to the prosecutor for either amount. The manner of accounting was for the prosecutor to call on the prisoner weeklJ^ who then paid him a sum of mone_y on account of what he had received ; and once a month the prisoner attended at the prosecutor's office, when the names of the customers who had been supplied with coals were called over, and the prisoner stated whether they had paid, handing over in respect of the amounts he reported as having been paid the surplus beyond his weekly- payments on account. He did not report that either of the sums in this indictment had been paid, but on the contrary repre- sented them as still due after he had received the money. The coals supplied for the purpose of his retail trade were charged to liim as to other customers ; but this account was kept quite distinct from the account of the monej's received by the prisoner on the prosecutor's account. The sums alleged to have been embezzled were not received by the prisoner until after the second agreement had been made ; and at the prisoner's place of business a board was exhibited, describing him as agent to the prosecutor. It was contended that he was not a clerk or servant to the prosecutor within the meaning of the statute. I declined to stop the case, and the jury found the prisoner guilt}-. The question for the opinion of the Court is, whether the pris- oner, under the circumstances herein stated, was a clerk or servant to the prosecutor, so as to be liable to be convicted of the crime of embezzlement. Erle, C. J. We are all of opinion that this conviction must be quashed. The facts stated fall within the cases cited by Mr. Collins, which decide that a person who is employed to get orders and receive money, but who is at liberty to get those orders and receive that money where and when he thinks proper, is not a clerk or servant within the meaning of the statute. The construction of the documents decides this case. Under the first agreement the prisoner was a ser- vant ; but under the second he was at liberty to dispose of his time in the way he thought best, and to get or to abstain from getting orders on any particular day as he might choose; and this state of things is inconsistent with the relation of master and servant. Conviction quashed. CHAP. XXXVI.] KEGINA V. BAILEY. 405 REGINA V. BAILEY, 12 Cox C. C. 56 [1871]. COURT OF CRIMINAL APPEAL. Case reserved for the decision of this Court. The prisoner was tried before me at the Michaelmas Quarter Sessions of the Peace, holden by adjournment at Sheffield, in and for the West Riding of the County of York, on the 28th of November, 1870, upon an indictment which charged Lim with having feloniously embezzled several sums of money, the property of Joseph Hall and another, his masters. The prosecutors, the said Joseph Hall and Charles Haziehurst Greaves, who carried on business in partnership in Sheffield as brewers and wine and spirit dealers, under the firm of William Greaves & Companj-, employed the prisoner from 1861 to 1866 as traveller and booklceeper, at a weekly wage of 15s. The prisoner then left the pros- ecutors' service and took other employment. About three years after this the prisoner was again engaged by Messrs. Greaves & Company on a fresh agreement. The terms (which were not in writing) are stated in the evidence of Joseph Hall to have been as follows : — Tbe prisoner was employed as ti'aveller to solicit orders for, and to collect the monej's due on the execution of such orders by, the firm, and to pay over to the said Joseph Hall, or to Charles Haslehurst Greiives, or to the clerk at the brewery in Siieffleld, the total net amount of the moneys so collected b}- the prisoner on the evening of the day when such moneys were so received by him, or on the daj^ following, in case the prisoner should then be travelling at a distance from the brewerj-. In case the prisoner had neither received money nor ob- tained orders, he was not expected to go to the brewery that day, but when he came there it was his dutj' to enter in the cash book of the firm the name and address of the customer from whom he had received anj' money, the amount, the date of the receipt, and the discount al- lowed (if any) to the customer, and to pay over to the firm the net amount of the money received b,y him, the discount being deducted. Every three months the prisoner had an account given to him of the various sums then owing bj' the customers to the firm, and it was the prisoner's duty to deliver these accounts and apply for payment from the customers on presenting them. In case such accounts were not paid, the firm enforced payment thereof. Tlie prisoner had no authority 406 CASES ON CRIMINAL LAW. [CHAP. XXXVI. to retain in his hands moneys belonging to tiie firm. He had to travel in the ttiwn of Sheffield and neighborhood. His district comprised about six miles round Sheffield and included the town of Rotherham. He was to be exclusively in the employment of the firm, to whom he was to give the whole of his time, — the whole of every day. The pris- oner had no salary, but was paid by a commission of five per cent, on all orders for goods he obtained for the firm, and an additional five per cent, on the amount of cash collected by him on payment by the custo- mers for the goods supplied by the firm on such orders. The firm were to pay to the prisoner his commission every week, but this was not al- ways done with regularity, and the prisoner was not always regular in his attendance at the brewery, and, although the firm complained of his irregularitj', they did not discharge him. It was farther stated by Joseph Hall on cross-examination that the prisoner could get orders when and where he pleased within his district, and that he had to collect money as soon as he could, and as he chose. His duty was to go to both old and new customers of the firm, and to collect money when and where he. thought proper; he was not bound by particular orders ; he was at liberty' to dispose of his time as he pleased, but he was to employ the whole of it in the service of the firm. It was proved and admitted bj- the prisoner on the 21st of October that he had retained in his hands, and had not accounted for, several sums of money which he had received from the firm bj' virtue of the before-mentioned emploj-ment ; the three sums charged in the indict- ment had been received by the prisoner on the 26th of May, the 1st of June, and 26th of August respectively'. During the course of the case the counsel for the prisoner called my attention to Regina v. Bowers, L. Rep. 1 C. C. R. 45 ; 10 Cox C. C. 250, and at the close of the case for the prosecution it was con- tended that the prisoner was not a clerk or servant to the prosecutors within the meaning of the Stat. 24 & 25 Vict. c. 96. I declined to stop the case, and directed the jury to decide whether the prisoner had been proved bj- the evidence of Joseph Hall to be a servant to the prosecutors or not. The jury found the prisoner guilty, judgment being respited until the opinion of the Court of Criminal Appeal is pronounced upon the above objection, and defendant is on bail. The question for the opinion of this Honorable Court is, whether the prisoner, under the circumstances herein stated, was a clerk or servant to the prosecutors, so as to be liable to be convicted of the crime of embezzlement. Walter Spencer Stanhope, Chairman. CHAP. XXXVI.J COMMONWEALTH V. HAYS. 407 Forbes, for the prosecution. The conviction was right. This case is distinguishable from Begina v. Bowers, where the prisoner was paid by commission and was at liberty to get orders or not, as he pleased, for in the present case the prisoner was bound to devote the whole of his time to the prosecutors' service. In Regina v. Turner (11 Cox C. C. 551) it was held by Lush, J., that a traveller who was bound to "diligently employ himself in going from town to town in England, Ireland, and Scotland, and soliciting orders for the prosecutor, and who was not without the prosecutor's written consent to take or execute any order for vending or disposing of similar goods to the prosecutors for or on account of himself or any other person, and who was to be ■paid by commission, and to render weekly' accounts," was a clerk ot servant within the 24 & 25 Vict. c. 96, § 68. [Bramwell, B. The eflTect of the agreement here is that the prisoner was not to be told how he was to work, but still he was to work. Blackburn, J. He was a servant to do this kind Of work, but might use his own discretion as to the way of doing it.] In Bowers's case it was optional with the prisoner whether he got any orders at all. [Bovili,, C. J., referred to Begina V. Tite, L. & C. 13 ; 8 Cox C. C. 458. A traveller paid by commis- sion and employed to get orders and to receive pa)-ments was held to be a clerk or servant, although he was at liberty to receive orders for other persons also. In this ease the prisoner was bound to devote the whole of his time to the prosecutors.] BoviLL, C. J. The evidence in this case cleai'ly showed that the prisoner was a clerk or servant within the statute. There is nothing in the evidence inconsistent with that relation. Eegina v. Tite conclu- sively shows that the prisoner was a clerk or servant. The conviction will be affirmed. The rest of the Court concurred. Conviction affirmed. COMMONWEALTH v. HAYS, 14 Gray, 62 [1858]. Indictment on St. 1857, c. 233.* The indictment contained two counts, one for embezzlement, and one for simple larceny. At the trial, . . . Amos Stone . . testified as follows : " I am treasurer of the Charlestown Five Cent Savings Bank. . . . The defendant came into ^ ["If any person, to whom any money, goods, or other property, which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently con- vert to his own use, or shall secrete with intent to embezzle or fraudulently convert to his own use, such money, goods, or property, or any part thereof, he shall be deemed, by so doing, to have committed the crime of simple larceny."] 408 CASES ON CRIMINAL LAW. [CHAP. XXXVI. the bank, and asked to draw his deposit. ... I took his book, balanced it, and handed it back to him. It was for one hundred and thirty dollars in one item. I then counted out to him two hundred and thirty dollars, and said, ' There are two hundred and thirty dollars.' The defendant took the monej' to the end of the counter and counted it, and then left the room. Soon after the defendant had left, I discovered that I had paid him one hundred dollars too much. After the close of bank hours I went in search of the defendant, and told him that I had paid him one hundred dollars too much, and asked him to adjust the matter. ... I said to him, ' I can prove that you got two hundred and thirty dol- lars.' He replied . . . ' If you can prove it, you will get it ; otherwise, you won't.' I intended to pay the defendant the sum of two hundred and thirty dollars, and did so pay him. I then supposed that the book called for two hundred and thirty dollars. . . . The defendant asked the Court to instruct the jury that the above facts did not establish such a delivery or embezzlement as subjected the defendant to a prosecution under the St. of 1857, c. 233, and did not constitute the crime of larcenj-. The Court refused so to instruct the jury, and instructed them " that if the sum of two hundred and thirty dollars was so delivered to the defendant, as testified, and one hundred dollars, parcel of the same, was so delivered by mistake of the treasurer, as testified, and the' defendant knew that it was so delivered by mistake, and knew he was not entitled to it, and afterwards the money so delivered by mistake was demanded of him by the treasurer, and the defendant, having such knowledge, did fraudulently, and with a felonious intent to de- prive the bank of the monej-, convert the same to his own use, he would be liable under this indictment." The jury returned a verdict of guilty, and the defendant alleged exceptions. BiGELOW, J. The statute under which this indictment is found is certainly expressed in very general terms, wliich leave room for doubt as to its true construction. But interpreting its language according to the subject-matter to which it relates, and in the light of the existing state of the law, which the statute was intended to alter and enlarge, we think its true meaning can be readily ascertained. The statutes relating to embezzlement, both in this country and in England, had their origin in a design to supply a defect which was found to exist in the criminal law. By reason^ of nice and subtle dis- tinctions which the courts of law had recognized and sanctioned, it was difficult to reach and punish the fraudulent taking and__apprQpri- ation of monej' and chattels b}' persons exercising certain Jtrades and occupations, by virtue of which they held a relation of confidence or trust toward their emploj-ers or principals, and thereby became pos- CHAP. XXXVI.] COMMONWEALTH V. HAYS. 409 sessed of their property-. In such cases the moral guilt was the same as if the offender had been guilty of an actual felonious taking ; but in many cases he could not be convicted of larceny, because the property which had been fraudulently converted was lawfully in his possession by virtue of his employment, and there was not that technical taking or"asportatiou wlmnrls essential to the proof of the crime of larceny. The King o. Bazeley, 2 Leach (4th ed.), 835 ; 2 East P. C. 568. The statutes relating to embezzlement were intended to embrace this class of offences ; and it may be said generally' that they do not apply to cases where the elemen t of a breack^of trust- or confidence in the fraudulent conversion of money or chattels is not shown to exists ThisTsthe distinguishing feature of the provisions in the Rev. Sts. 0. 126, §§ 27-30, creating and punishing the crime of embezzle- ment, which carefully enumerate the classes of persons that may be subject to the penalties therein provided. Those.4irovisiqns_have_been strictly construed, and the operation of the statute has been carefully confined to persons having in their possession, bj- virtue of their occu- pation or employment, the money or property of another, which has been fraudulent!}' converted in violation of a trust reposed in them. Commonwealth v. Stearns, 2 Met. 343; Commonwealth v. Libbey, 11 Met. 64 ; Commonwealth v. Williams, 3 Gray, 461. In the last named case it was held, that a person wasjot guilty of embezzlement, under Rev. Sts. c. 126, § 30, who had converted to his own use money which had been delivered to hi m by another for safe k eeping. The St. of 1857, c. 233, was probably enacted to supplj- the defect which was shown to exist in the criminal law by this decision, and was intended to embrace cases w here pm Bfii'tv hai beenjdesi^edly delivered to a person as a bailee or keeper, and had been fraudulently converted by Elm. But in this class of cases there exists the ele- ment of a trust or confidence reposed in a person by reason of the delivery of property to him, which he voluntarily takes for safe keep- ing, and which trust or confidence he has violated by the wrongful conversion of the property. Beyond this the statute was not intended to go. Where money paid or property delivered through mistake has been misappropriated or converted by the party receiving it, there is no breach of a trust or violation of a confidence intentionallj' reposed by one party and voluntarily assumed b^' the other. The moral tur- pitude is therefore not so great as in those cases usually compre- hended within the offence of embezzlement, and we cannot think that the legislature intended to- place them on the same footing. We are therefore of opinion that the facts proved in this case did not bring it within the statute, and that the defendant was wrongly convicted. Exceptions sustained. 410 CASES ON CRIMINAL LAW. [CHAP. XXXVH. ' CHAPTER XXXVII. Cheating by False Pbetences.i Section 1. Obtaining of Title': Inoperative Intent to Pass" Title. EEX V. ADAMS, Etjss. & Ry. 225 [1812]. The prisoner was tried before Mr. Justice Chambre, at the Lent Assizes held at Taunton, in the year 1812, for a grand larceny in steal- ing a hat, stated in one count to be the property of Robert Beer and in another count to be the property of John Paul. The substance of the evidence was, that the prisoner bought a hat of Robert Beer, a hat maker at Ilminster. That on the 18th of January he called for it, and was told it wonld be got ready for him in half an hour, but he could not have it without paj'ing for it. While he remained with Beer, Beer showed him a hat which he had made for one John Paul ; the prisoner said he lived next door to him, and asked when Paul was to comeTof "his hat, and was told he was to come that afternoon in half an hour or an hour. He then went away, saying he would send his brother's wife for his own hat. SoQa_after he wentJiejnelAboyJ;QjriiQm_Jhe,Has jaot-known. The prisoner asked the boy if he was going to Ilminster, and being told that he was going thither, he asked him if he knew Robert Beer there, telling him that John^aii Hiad sent him to Beer's forbis^hat. but added that as he the prisoner owed Beer for a hat which he had not money to pay for, he did not like to go himself, and therefore desired the boy (promising him something for his trouble) to take the message from Paul and bring Paul's hat to him the prisoner ; he also told him that Paul himself, whom he described by his person and a peculiarity of dress, might perhaps be at Beer's, and if he was the boy was not to go in. The prisoner accompanied him part of the way, and then the boy proceeded to Beer's, where he delivered his message and received the 1 [As to cheats at common law, see Commonwealth v. Warren, above, p. 11 ; Rex V. Bryan, 2 Strange 866 ; Eex v. Lara, 2 Leach C. C. 652 ; Regma o. Class, Bears. & B. 460 ; 7 Cox C. C. 491 ; Roscoe Grim. Evid., " Cheating."] SKCT. II.] EEGINA V, KILHAM. 411 hat, and after carrying it part of the way for the prisoner by his desire, the prisoner received it from him, saj'ing he would talte it himself to Paul. The fraud was discovered on Paul's calling for his hat at Beer's, about half an hour after the boy had left the place ; and the prisoner was found with the hat in his possession and apprehended. From these and other circumstances, the falsitj' of the prisoner's^ representation and his fraudulent purpose were sufficiently' established / but it was ob jected on the part of the prison er that the offence_was not larceny, and that the indictment should have been upon the statute for obtaining goods by false pretences. The prisoner was convicted, but the learned judge forbore to pass sentence, reserving the .question for the opinion of the judges. In Easter term, 25th of April, 1812, all the Judges were present (except Lord Ellenborough, Mansfield, C. J., and Lawrence, J.), when they held that the conviction was wrong ; that it was not larceny, but obtaining goods under a false pretence.^ l^jjj! 5C t'-^-lS y^i^ ^v-a frrn t-l^e^'^t i^ ^c-^n^t-j "&— c- - Section 8. The Pretence : Other Cases. REX V. BARNARD, 7 C. & P. 784. REGINA V. BUEL, 15 Cox C. C. 608. REGINA V. HUNTER, 10 Cox C. C. 642. f- 416 CASES ON CRIMINAL LAW. [CHAP. XXXVII. REGINA V. RANDELL, 16 Cox C. C. 335. REGINA V. SAMPSON, 52 L. T. R. (N. S.) 772. Section 9. Continuing Pretence. REGINA V. MARTIN, L. R. 1 C. C. R. 56 ; 10 Cox C. C. 383. Section 10. Remoteness op Pretence. REGINA V. LARNER, 14 Cox C. C. 497. COMMONWEALTH v. HARKINS,i 128 Mass. 79. Section 11. Intention to Refund. REGINA V. NAYLOR, 10 Cox C. C. 149. 4^' A. /. C. CR. J/ Section 12. Limitation to Subjects op Common-Law Larceny. REGINA V. ROBINSON, Bell C. C. 34. Section 13. Statutory Revesting of Title upon Conviction. BENTLEY v. VILMONT, L. R. 12 App. Cas. 471. > [See Regina v. Taylor, 15 Cox C. C. 266. Same v. Same, id. 268.] CHAP. XXXVIII.J KBGINA V. DOLAN. 417 CHAPTER XXXVIII. Receiving Stolen Goods. Section 1. Limitation to Goods Technically " Stolen." EEGINA V. KENNY, 2 Q. B. D. 307 ; 13 Cox C. C. 397 [1877]. above, p. 359. Section 2. Whether Goods Stolen Goods ok not at time of Receiving. EEGINA V. DOLAN, 1 Dears. C. C. 436 ; 6 Cox C. C. 449 [1855]. COURT OF CRIMINAL APPEAL. The following case was stated by M. D. Hill, Esq., Q. C, Recorder of Birmingham : — At the Sessions held in Birmingham, on the 5th day of January, 1855, William Rogers was indicted for stealing, and Thomas Dolan for receiving, certain brass castings, the goods of John Turner. Rogers pleaded guiltj' and Dolan was found guiltj-. It was proved that the goods were found in the pockets of the pris- oner Rogers bj' Turner, who then sent for a policeman, who took the goods and wrapped them in a handkerchief, Turner, the prisoner Rogers, and the policeman going toward Dolau's shop. When they came near it the policeman gave the prisoner Rogers the goods, and the latter was then sent by Turner to sell them where he had sold others ; and Rogers then went into Dolan's shop and sold them and gave the money to John Turner as the proceeds of the sale. Upon these facts it was contended on the part of Dolan that Turner had resumed the possession of the goods, and that Rogers sold them to Dolan as the agent of Turner, and that consequently at the time they were received b^- Dolan, thej' were not stolen goods within the meaning of the statute. 27 418 CASES ON CRIMINAL LAW. [CHAP. XXXVIlI. I told the jur^-, upon the authority of the case of Regina v. Lyons and another, Car. & M. 217, cited by the counsel for the prosecution, that the prisoner was liable to be convicted of receiving, and the jury found him guilty. Upon this finding I request the opinion of the Court of Appeal in Criminal Cases on the validity of Dolan's conviction. Dolan has been sent back to prison, and I respited judgment on the conviction against him until the judgment of the court above shall have been given. O'Brien for the prisoner. This conviction cannot be sustained. The objection is, that when the goods reached the hantls of Dolan they were not stolen goods. They had been restored to the possession of the owner, and the sale to the prisoner was with the owner's authority. Lord Campbell, C. J. There seems to be great weight in that objection but for the authority of the case cited. It can hardly be supposed that if goods were stolen seven years ago, and had been in the possession of the owner again for a considerable period, there could be a felonious receipt of them without a fresh stealing. O'Brien. That was the view taken by the learned recorder ; and R. V. Lj'ons, Car. & M. 217, which was cited for the prosecution, does not appear to have been a case much considered. Coleridge, J., in that case, said, that for the purposes of the day, he should consider the evidence as sufficient in point of law to sustain the indictment, but would take a note of the objection. Coleridge, J. I certainly do not think so to-day. O'Brien. There is also a slight circumstance of distinction between that case and the present. It does not appear in that case that the stolen property was ever actually restored to the hands of the owner, nor that he expressly directed the thief to take it to the prisoner. {He was stopped.) £easley for the prosecution. E. v. Lyons is expressly in point, and the learned judge who decided it does appear to have had his attention recalled to the point after the conviction, and still, upon deliberation, to have thought there was nothing in the objection. The facts are thus -stated in the marginal note: "A lad stole a brass weight from his master, and after it had been taken from him in his master's presence it was restored to him again with his master's consent in order that he might sell it to a man to whom he had been in the habit of selling sim- ilar articles which he had stolen before. The lad did sell it to the man ; and the man being indicted for receiving it of an evil-disposed person, well knowing it to have been stolen, was convicted and sen- tenced to be transported seven years." The report adds that after the sentence, "the matter was subsequently called to his Lordship's SECT. II.J KEGINA V. DOLAN. 419 attention by the prisoner's counsel, j-et no alteration was made in the judgment of the court ; from which it is to be inferred that, upon con- sideration, his Lordship did not think that in point of law the objection ought to prevail." The present is, however, a stronger case than that ; because here in truth the master did not recover possession of the stolen goods. They were in the hands of the police ; and what the master did must be considered as done under the authority Of the police. Lord Campbell, C. J,. No ; the policeman was the master's agent. Platt, B. And the sale was bj- direction of the master. £easley. The statute does not require that the receipt should be directly from the thief. It only requires that the prisoner should receive stolen goods, knowing them to have been stolen ; and that is proved in this case. In manj' cases it has been held that where the owner of property has become acquainted with a plan for robbing him, his consent to the plan being carried out does not furnish a defence to the robbers. R. v. Egginton, 2 B. & P. 508. Lord Campbell, C. J. But to constitute a felonious receiving, the receiver must know that at that time the property bore the character of stolen property. Can it be said that, at any distance of time, goods which had once been stolen would continue to be stolen goods for the purpose of an indictment for receiving, although in the mean time they may have been in the owner's possession for j-ears? Cresswell, J. The answer to that in this case seems to be that the policeman neither restored the propertj' nor the possession to the master ; that the goods were in the custodj' of the law ; and that the master's presence made no difference in that respect. Beasley. That is the argument for the prosecution ; and it is man- ifest that if the policeman had dissented from the plan of sending Rogers to Dolan's shop, the master could not have insisted upon -the policeman giving up the property to him. Lord Campbell, C. J. I feel strongh" that this conviction is wrong. I do not see how it can be supported, unless it could be laid down that, if at anj* period in the historj- of a chattel once stolen, though afterwards restored to the possession of the owner, it should be re- ceived by any one with a knowledge that it had been stolen, an offence would be committed within the statute. I think that that would not be an offence within the statute any more than it would make the receiver an accessar}' to the felony at common law. If the article is restored to the owner of it, and he, having it in his possession, after- wards bails it to another for a particular purpose of delivering it to a third person, and that third person receives it from that bailee, I do not see how it can, under these circumstances, be feloniously received from that bailee. Then what are the facts here? [His Lordship 420 CASES ON CEIMINAL LAW. [CHAP. XXXVIII. stated the facts as above.] Turner, the owner, therefore had I think as much possession of the goods as if he had taken them into his own hands, and with his own hands delivered them to another person for a particular purpose, which was performed. He was, subsequent to the theft, the bailor and the other person was the bailee of the goods. Then they were carried to the prisoner by the authority of the owner ; and I cannot think that under those circumstances there was a re- ceiving within the statute. As to the ease cited, I cannot help thinking that the facts cannot be quite accuratelj' stated, and that there was something more in that case than appears in the report ; but if not, I am bound to say that I do not agree in that decision. CoLKRiDGB, J. I have no recollection of the case cited, and I have no right, therefore, to say that it is not accuratelj' reported ; but, assuming it to be so, I am bound to say that I think I made a great mistake there. What is the case ? If for a moment the interference of the policeman is put out of the question, the facts are, that the goods which had been stolen were restored to the possession of the real owner and were under his control, and having been so restored, thej were put again into the possession of Rogers for a specific pur- pose, which he fulfilled. It seems then to me that when, the second time, they reached the hands of Eogers, they had no longer the char- acter of stolen goods. Then, if that would be the case, supposing the policeman to be out of the question, does the interference of the police- man according to the facts here stated make any difference? I think not. It is the master who finds the goods and sends for a policeman ; and it is bj' the authority of the master that the policeman takes and keeps the goods, and afterwards hands them back to Rogers. Indeed, it seems to me that all that was done was done by Turner's authoritj' ; and that it must be considered that the property was under the control of the real owner when he sent Rogers with tliem to the prisoner. In this state of facts, the interference of the policeman seems to me of no importance. Cresswell, J. I do not dissent from the decision that this con- viction is wrong ; but as we are called upon in this court to give the reasons of our judgment, I must say that I cannot concur in all tlie reasons which I have heard given in this case. If it had been neces- sary to hold that a policeman, by taking the stolen goods from the pocket of the thief, restores the possession to the owner, I should dis- sent. I think that we cannot put out of question the interference of the policeman; and that while the goods were in his hands they were in the custody of the law ; and that the owner could not have de- manded them from the policeman or maintained trover for them. But as the case finds that the policeman gave them back to Rogers, and SECT. II.J EEGINA V. SCHMIDT. 421 then the owner desired him to go and sell them to Dolan, I think that Rogers was employed as an agent of the owner in selling them, and that consequently Dolan did not feloniously receive stolen goods. Platt, B. I am of the same opinion. The case is, that the stolen goods were found by the owner in the pocket of the thief. They were restored to his possession, and it does not appear to me verj- material whether that was done by his own hands or by the instrumentality' of the policeman. Things being in that state, it seems to have come into their heads that they might catch the receiver ; and it was sup- posed that by putting the stolen property back into the custody of Rogers, they could place all parties statu quo they were when the property was found in the pocket of Rogers ; but I agree with the rest of the court that the act of Parliament does not appl3- to a case of this kind ; for if it did, I see no reason why it should not equally apply to restored goods stolen ten years ago. Williams, J. The reason whj' I think the conviction wrong is, that the receipt, to come within the statute, must be a receipt without the authority' of the owner. Looking at the mere words of the indictment, everj' averment is proved bj' this evidence ; but then the question is, whether such a receipt was proved as is within the statute, namely, a receipt without the owner's authority ; and here Rogers was emplo3-ed by the owner to sell to Dolan. Conviction quashed. REGINA V. SCHMIDT, L. R. 1 C. C. R. 15 ; 10 Cox C. C. 172 [1866]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of this Court by the deputy-chair- man of the Quarter Sessions for the western division of the County of Sussex. John Daniels, John Scott, John Townsend, and Henry White were indicted for liaving stolen a carpet-bag and divers other articles, the property of the London, Brighton, and South Coast Railway Com- pany ; and the prisoner, Fanny Schmidt, for having feloniously re- ceived a portion of the same articles, well knowing the same to have been stolen. The evidence adduced before me as deputy-chairman of the Court of Quarter Sessions at Chichester, for the western division of the County of Sussex, on the 20th October, 1865, so far as relates to the 422 CASES ON CKIMINAL LAW. [CHAP. XXXVIII. question I have to submit to the Court of Criminal Appeal, was as follows : — On the 29th July, 1865, two passengers by the prosecutors' line of railway left a quantity of luggage at the Arundel station, which luggage was shortly' afterwards stolen therefrom. On the 30th July a bundle containing a portion of tlie stolen prop- erly was taken to the Angmering station, on tlie same line of railwaj', by the prisoner Townsend, and forwarded by him to the female pris- oner, addressed " Mr. F. Schmidt, Waterloo Street, Hove, Brighton." The bundle was transmitted to Brighton, in the usual course, on Sundaj' morning, the 30th. Meanwhile the theft had been discovered, and shortly after the bundle had reached the Brighton station, a policeman (Carpenter) attached to the railwaj- company, opened it, and having satisfied him- self that it contained a portion of the property stolen from the Arundel station, tied it up again, and directed a porter (Dunstall) in whose charge it was, not to part with it without further orders. About 8 p. M. of the same day (Sunday, 30th), the prisoner John Scott went to the station at Brighton and askfed the porter (Dunstall) if he had got a parcel from the Angmering station in the name of Schmidt, Waterloo Street. Dunstall replied, " No." Scott then said, "It is wrapped up in a silk handkerchief, and is directed wrong; it ought to have been directed to 22 Cross Street, Waterloo Street." Dunstall, in his evidence, added, "I knew tlie parcel was at the station, but I did not say so because I had received particular orders about it." The four male prisoners were apprehended the same evening in Brighton on the charge, for which they were tried before me and convicted. On Monday morning, the 31st July, the porter (Dunstall), by the direction of the policeman (Carpenter), took the bundle to the house No. 22 Cross Street, Waterloo Street, occupied as a lodging-house and beer-house by the female prisoner and her husband (who was not at home or did not appear), and asked if her name was Schmidt, on ascertaining which he left the bundle with her and went away. Car- penter and another policeman then went to the house, found the bundle unopened, and took the prisoner to the town hall. All the prisoners were found guilty, and I sentenced each of them to six months' imprisonment with hard labor. They are now in Petworth jail in pursuance of that sentence. At the request of the counsel for the female prisoner I consented to reserve for the opinion of this Court the question. Whether the goods alleged to have been received bv her had not, SECT. II.] BEGINA V. SCHMIDT. 423 under the circumstances stated, lost their character of stolen property, so that she ought not to have been convicted of receiving them with a guilty knowledge within the statute. Hasler Hollist. Pearce ( Willoughby with him) for the prisoner. The conviction is wrong. To support a conviction for receiving stolen goods, it must appear that the receipt was without the owner's authority. In this case, in consequence of the conduct of the railway company, the propertj' had lost its character of stolen propertj' at the time it was delivered at the receiver's house \iy the railway porter. The property is laid in the indictment as the property of the railwaj- company, and Carpenter was not an ordinary policeman, but, as the case states, a policeman attached to the railway companj'. He opens the bundle, and finding therein some of the stolen property, he gives it to Dun- stall and orders it to be detained until further orders, and in the meantime the thieves were arrested ; Carpenter then directs Dunstall to take the bundle to the receiver's house, so that the receiver got the ; stolen property from the railwaj' company, who alone on this indict- ment are to be regarded as the owners of the property. The railway company, the owners, having got their property back, make what must be considered a voluntary delivery of it to the receiver. The case is similar to Regina v. Dolan, 6 Cox C. C. 449 ; 1 Dears. C. C. 436, where, stolen goods being found in the pockets of the thief by the owner, who sent for a policeman, and then, to trap' the receiver, the goods were given to the thief to take them to the receiver's, which he did, and the receiver was afterwards arrested, it was held that the receiver was not guilty of feloniouslj' receiving stolen goods, inasmuch as they were delivered to him under the authority of the owner. In that case Regina v. Lyons, Car. dc M. 217, was expressly overruled. Lord Campbell, C. J., said, in Regina v. Dolan, "If an article once stolen has been restored to the owner, and he having had it fully in his possession, bails it for any particular purpose, how can any person who receives the article from the bailee be said to be guilty of receiving stolen goods within the meaning of the Act of Parliament ? " Hurst, for the prosecution. Unless this case is distinguishable from Regina v. Dolan, the conviction, it must be conceded, is wrong. But the facts of this case are more like the view taken by Cresswell, J. , in Regina v. Dolan, " That while the goods were in the hands of the policeman, they were in the custody of the law ; and the owner could not have demanded them from the policeman, or maintained trover for them." In that case the real owner intervened, and had manual possession of the stolen goods ; here he does not. The goods 424 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. belonged to the railway passenger and the company are only bailees* [Mellor, J. The policeman merely opened the bundle in the course of its transit to see what was in it, and then sent it according to its direction. It was in the hands of the policeman, not of the company. Eele, C. J. Suppose a laborer steals wheat, and he sends it by a boy to his accomplice, and the policeman stops the boj^ ascertains what he has got, then tells him to go on, and follows and apprehends the ac- complice, is not the accomplice guilty of feloniously receiving? Mel- lor, J. Here the policeman does nothing to alter the destination of the bundle. The element of the real owner deaUng with the stolen property is wanting in this case. Keating, J. Scott directs the address to be changed.] The bundle was sent by the thieves through the railway company to the receivers ; the real owner had nothing to do with this part of the transaction. [Lush, J. If the true owner had sued the company for the property, the company could not have justified detaining or converting it.] If a policeman knows of stolen goods being in the hands of an innocent agent, and does not take possession for the owner, and the innocent agent, by the policeman's directions, delivers them to a receiver, that does not prevent the receiver being guilty of feloniouslj' receiving. Pearce, in reply. Before the bundle was sent out for delivery the thieves were in custody, and having secured them. Carpenter then gives orders for the bundle to be delivered to the receiver. Carpenter was the servant of the railway company, who are the owners for the purpose of this 'indictment, and the delivery therefore was by the owners. [Erle, C. J., and Mellor, J., were of opinion that the conviction was right, but Martin, B., Keating, and Lush, JJ., held the conviction wrong. In consequence of the prisoner having suffered half the term of imprisonment from inability to get bail and the further unavoidable delay, the case was not sent to be argued before all the judges.] Martin, B. I think that this conviction was wrong on two grounds, the one substantial, the other formal. I think that Mr. Pearc£s argu- ment, founded on the indictment, that the property is there laid to be property of the railway company, is well founded; and it seems to me that Dolan's case applies to this. Erle, C. J. I am of opinion that the conviction was right. The question is whether, at the time this stolen propertji^ was received by the prisoner, it was the property of the London and Brighton Railway Company ; and if so whether, when the policeman Carpenter caused the delivery to be stopped for the purpose of detecting the parties implicated, it thereby lost the character of stolen property. If it had lost the character of stolen property at the time it was received by the SECT. II.] EEGINA V. SCHMIDT. 425 prisoner, the receiving by her will not amount to felony. But in this case I tliink that the railway company, when they took this bundle into their possession, were acting as bailees of the thief, and were innocent agents in forwarding it to the receiver, and that the things did not lose their character of stolen property by what was done by the policeman. Keating, J. I agree with my brother Martin that the conviction was wrong. It seems conceded, on the authority of Dolan's case, that if the property had got back again for any time into the hands of the true owner, the conviction would be wrong. It is said that, in this case, the owners mentioned in the indictment, the railway company, were ^not the real owners, whereas in Dolan's case the real owner intervened. But I think there is no distinction in principle between this case and that. The railway company are alleged in the indictment to be the owners of the property, and we sitting here can recognize no other persons than them ; they are the owners from whom the property was stolen, and it got back to their possession before it was received hy the prisoner. I can see no real distinction between this case and Dolan's. All the reasons given for the judgment in that case ^pply equally t6 the case of the ownership in this case. The principle I take to be, that when once the party having the right of control of the property that is stolen gets that control, the transaction is at an end, and there can be no felonious receipt afterwards. I think the test put by mj' brother Lush in the course of the argument, as to the real owner suing the railwaj' company for the property' after they had got the control of it, is decisive of the matter. Mellor, J. I agree entirely with my brother Erie, C. J., and think the conviction Vas right. The indictment rightty alleges the property to have been in the railway company at the time it was stolen ; they had the bailment of it from the true owner. Then it is stolen while in their custod3', and the next step is, the thieves afterwards send a por- tion of it by the same railway company to be forwarded to the receiver at Brighton ; so that the railway company get possession of this part from the thieves under a new bailment. Then the policeman examines the property and directs it not to be forwarded until further orders ; but this was not done with the view of taking possession of it or alter- ing its transit, but merely to see whether it was the stolen property. I agree with Dolan's case, but in the present case I think the stolen propertj' had not got back to the true owner. LcsH, J. I agree with my brothers Martin, B., and Keating, J., and think that the conviction was wrong. I think that the goods had got back to the owner from whom they had been stolen. Had the rail- way company innocently carried the goods to their destination and delivered them to the prisoner, the felonious receipt would have been 426 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. complete ; but while the goods are in their possession, having been previouslj' stolen from them, the goods are inspected, and as soon as it was discovered that they were the goods that had been stolen, the railway company did not intend to carry them on as the agents of the bailor ; the forwarding them was a mere pretence for the purpose of finding out who the receiver was. It was not competent to the railway company to saj-, as between them and the original bailor, that thej' had not got back the goods. They were bound to hold them for him. In afterwards forwarding the goods to the prisoner, the company was using the transit merely as the means of detecting the receiver. Martin, B. I onl}' wish to add that I meant to say that I think the conviction wrong in substance in consequence of the interference of the policeman with the propertj-, and this independently of the form of indictment.^ Conviction qtiashed. UNITED STATES v. DeBARE, 6 Biss. 358. The indictment charged that on the 19th of November, 1874, the defendant, with intent to defraud the United States, wilfully and feloni- ously received from one Crawford a quantitj' of postage stamps, the said stamps having been stolen from a post-oflfice of the United States, and the defendant, at the time he received the same, knowing them to have been stolen. At the trial the testimonj- disclosed the following facts : — In the night of November 12, 1874, the post-offlce at Unionville, Missouri, was robbed by Crawford, and postage stamps to the amount of about $156 were stolen. The robber was detected and arrested at Qnincj", 111. Previous to his arrest, he had deposited the stamps in the form of an enclosed package in the express office at Quincy, di- rected to the defendant at Milwaukee, Wisconsin. After his arrest, he surrendered otlier property stolen from the Unionville post-offlce, and on request of the Quincy postmaster gave the latter a written order on the agent of the express company for the package of stamps, Upon presentation of this order at the express office the stamps were delivered to the Quinc}'^ postmaster, who testified that he took the package to his office, opened it, counted the stamps, and placed them in the post-office vault. He thus retained possession of the stamps until subsequentl}^ ordered by the post-office department to let them > [See Ri-ginii r. Hiinoock, 14 Cox C. C. 11!) (1878).] SECT. II.J UNITED STATES V. DeBARE. 427 go forward to the consignee. Using tlie external wrapper and fasten- ings he found upon the package when it came to his possession, he re-inclosed the stamps and re-dcposited them in the express office to be forwarded, the package bearing the identical directions placed upon it by the original consignor. Testiraonj- was given on the trial to show that the stamps after being thus forwarded came to the hands of the defendant. The jurj- were instructed, that in order to convict, it must be proven as charged in the indictment, that the defendant received the stamps from Crawford, and that if the jury should find from the evidence that the Quincy postmaster, as his individual act, or for and in behalf of the post-offlce department, forwarded the stamps to the defendant, and that the defendant received them from the postmaster and not from Crawford, there must be a verdict of acquittal, even though the stamps were originally stolen by Crawford. The verdict was against the accused. His counsel moved for a new trial on two grounds : — . 1st. That the verdict was against the evidence and the instrnctiona of the Court, and moreover, upon the facts proved, that the jurj- should have been directed to render a verdict of acquittal. 2d. That when the stamps came into the hands of the Quincj' post- master, their character was that of stolen propertj' recovered by the owner ; that they thereafter ' ceased to have that character, and that when received by the defendant, they were not, as to the person from whom they came, stolen stamps, and therefore there could be no con- viction in this case. Dtek, J. . . . The ownership of these stamps was in the United States. The Quincy postmaster was the agent of the owner. When Crawford surrendered them to this agent they were reclaimed propertj' that had been stolen, but their character as stolen property ceased in the hands of the postmaster, so far as the subsequent receiver was concerned. The moral turpitude of a receiver under such circumstances may be as great as in case the propertj' comes directlj^ from the hands of the thief, because the criminal intent on his part exists equally in both cases. But to create the offence which the lavr punishes, the property when received must, in fact, and in a legal sense, be stolen propert3'. If these stamps were received by the defendant, they did not, when received, upon the proof made bear this character. They bad been captured from the thief by the owner, and the act of forwarding them to the alleged receiver was the act of the owner. 428 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. Section 3. Only Goods Stolen Within the Jurisdiction. REX V. PROWES, 1 Moody C. C. 349 [1832]. CROWN CASE RESERVED. REGINA V. MADGE, 9 C. & P. 29 [1839]. The prisoner was indicted for stealing, within the jurisdiction of the Central Criminal Court, various articles of household furniture, etc., belonging to one Colonel Latour. Clarkson, for the prosecution, stated to his Lordship that the prop- erty in question had been deposited by the prosecutor in a house at Boulogne, in France, and that the prisoner had stolen it at Boulogne, but being found in possession of it at the custom house in London he had been taken before the Lord Mayor, who had committed him for trial. Parke, B. There is a case precisely in point on the subject. Clarkson. Your Lordship alludes to the ease of Rex v. Prowes.* That case even goes further than the present, for there ttie property was taken at Jersey, which is under the dominion of the British Crown, and 3-et it was held that the courts here bad not jurisdiction. I recol- lect also a case before Mr. Serjeant Arabin in which I, not being aware of the decision of the judges, thought that the bringing of the property into England was a larceny, and Mr. Serjeant Arabin thought so too, and the prisoner was convicted ; but I am bound to saj' that a pardon was afterwards granted on the ground that the decision of the learned judge was incorrect. Parke, B. There is no doubt upon the point on the authority of Rex y. Prowes. That case is precisely in point, though rather stronger than the present. His Lordship afterwards said that it had been intimated to him that some of the judges had expressed a wish to have the case of Rex v. Prowes reconsidered, and that in consequence of this the Lord Mayor had committed the prisoner ; but if it was not so he should act upon the authoi'ity of the decision in that case. His Lordship, having caused 1 Ry. & Moody C. C. R., 349. , SECT. III.] EEGINA V. CAER. 429 a communication to be made to the Lord Mayor upon the subject and having received his answer, directed the prisoner to be brought up and the jurj- to be charged with the indictment. The prisoner was ac- cordingh- put to the bar and the jury charged. Parke, B., upon this said that the Lord Mayor had not committed the prisoner for trial in consequence of any intimation from the judges that it was desirable to reconsider the case of Rex v. Prowes, but it was thought right that the prisoner should be publiclj- tried and ac- quitted in order that the attention of the legislature might be drawn to the state of the law in case they should think it right to interfere by any legislative provision on the subject. His Lordship then told the jur3' that they had no jurisdiction so as to convict the prisoner and therefore they must pronounce a verdict of acquittal. Verdict, not guilty. EEGINA V. CAER, 15 Cox C. C. 129 [1882]. CROWN CASE RESERVED. Case reserved for the opinion of this Court by North, J. The prisoners were tried before me at the Old BaiJe}' at the Session of the Centra] Criminal Court on the 13th day of September last for felony in respect of tweutj--flve bonds (£20 each) of Egyptian Preference Stock, two bonds of 1000 dollars (ten shares) and 500 dollars (five shares) respectively of the Illinois Railway, and thirty other bonds of Egyptian Unified Stock. The first count charged the prisoners with stealing these securities upon the high seas within the jurisdiction of the Admiralty of England ; the second count charged that they being British subjects within the jurisdiction of the Admiral tj' of England upon the British ship " Ava- lon," then being in a certain foreign port, to wit, the port of Rotter- dam, stole the same securities ; the third count charged them with larceny of these securities within the jurisdiction of the Central Crim- inal Court ; the fourth count charged them with receiving the same securities within the jurisdiction of that court, well knowing them to have been stolen ; and the fifth and sixth counts respectively charged them with having been accessaries after the fact to the theft and the receiving respectivelj' of the same securities by persons unknown. A copj- of the abstract of the indictment was set out in the schedule to this case and the indictment may be referred to as a part thereof. I was asked by the counsel for the prisoner Wilson to quash the 430 CASES ON CRIMINAL LAW. [CHAP. XXXVin. second count of the indictment; but it was suggested by Sir H, Giffard, Q. C, who appeared for the prisoner Carr, that the better course would be that the prisoners should refuse to plead, and I should direct pleas of not guilty to be entered, and this was accordingly done. . The material facts proved were as follows : — 1. On the 12th day of July last the above mentioned Egj'ptian Pref- erence Stock and Illinois bonds were made up by Messrs. Kelker & Co., bankers at Amsterdam, into a parcel which was marked outside "value £50," and was addressed to Messrs. Mercia, Backhouse, & Co., in London. The Unified Stock was made up into another parcel similar to the first except that it was marked outside as " value £100." These parcels were of a class known as " valued parcels." They were traced clearly from Amsterdam to Rotterdam, to the office of Messrs. Pieters ^& Co., the agents there of the Great Eastern Railway Com- pany, on whose behalf thej' were received. 2. There was evidence that these two parcels were j( with two others) taken from Pieters & Co.'s office by a man employed hy them for that purpose and placed by him on board the steamship " Avalon" about half-past five p. m. on the same 12th July. 3. The " Avalon " is a British vessel registered at Harwich and sail- ing under the British flag. She is about 240 feet in length with a gross tonnage of 670 tons, and draws about ten feet six inches of water when loaded. She is the property of the Great Eastern Railway Com- pany' and is regularly employed bj* them in their trade between Har- wich and Rotterdam. On the evening in question she was lying in the river Maas, at Rotterdam, about twenty or thirty feet (the captain also described it as " about the breadth of the court " ) from the quay and against a " dolphin," a structure of piles for the use of the company's ships only, projecting from the quay for the purpose of keeping vessels off the quay. She was moored to the quay in the usual manner. 4. The place where the " Avalon " was lying was in the open river, sixteen or eighteen miles from the sea. There is not any bridge across the river between that point and the sea. The tide ebbs and flows there and for many miles farther up the river. Tiie place where the " Avalon " was lying at the dolphin is never dry and that vessel would not touch the ground there at low water. The Admiralty chart show- ing the river Maas from Rotterdam to the sea was put in evidence at the suggestion of the counsel for the prisoners and was proved by the captain of the " Avalon " to be correct. It is marked J. T. H. 1. 5. While the " Avalon " was Ij'ing at the dolphin, as above de- scribed, persons wei'e allowed to pass backward and forward between her and the shore without hindrance. SECT. III.] EEGINA V. CARE. 431 6. The "Avalon" sailed for England the same evening, about six o'clock, and arrived at Harwich the following morning. Upon her ar- rival the two valued parcels above mentioned (and one of the other parcels) were at once missed, and upon inquiry it was found that they had been, stolen. The parcel containing the Unified Stock and the third parcel have never since been traced ; but the parcel containing the Egj'ptian Preference Stock and the Illinois bonds was found in the prisoners' possession on the 1st August. 7. The prisoners are British subjects. 8. It was contended for the prisoners that there was no evidence upon which the jury, could find them guilty upon the counts charging them with stealing the securities. I was of that opinion, and so di- rected the jury, and the prisoners were accordinglj' acquitted upon those counts. 9. It was also contended for the prisoners that unless the jurj- found that the securities had been stolen from on board the "Avalon" the prisoners must b(} acquitted, as, if thej- had been stolen after leaving Pieters & Co.'s oflace and before reaching the ship, the offence of steal- ing them was one which th'is court had not jurisdiction to try, and there- fore the prisoners could not be tried here for receiving, according to the case of Ilegina v. John Carr' (one of these prisoners), reported in 1 Regina v. Caer. (Central Criminal Court. Before Mr. Justice Denman. November 22d, 1877.) John Carr was indicted for stealing 168 bonds of tlie Peruvian Government, the property of Lionel Colien and others ; second count for feloniously receiving the same. There were other counts charging him as an accessary before and after the fact. The Solicitor-General and Poland were counsel for the prosecution and Besley and Grain for the defence. Tlie bonds in question, on the 2d June, 1877, were transmitted by the prosecutors to a customer In Paris. They were traced safely as far as Calais and were stolen from the train after leaving that place. On the 4tli of September the prisoner was found dealing with them in London, and tlie question arose as to the jurisdiction of this court to try the case, the robbery having been committed in France. Tlie Solicitor-General submitted that the prosecutors never having parted with their property in the bonds, they were still under the protection of the law, and that the subsequent possession of the bonds in this country was sufficiently recent to en- able the jury to find a verdict of larceny against a person who was dishonestly deal- ing with them here. The decision in Rex v. Prowes, 1 Moody C. C. 349, was certainly opposed to this view ; but no reasons were given for that judgment and a doubt as to the soundness of the decision was expressed by Parke, B., in Regina v. Madge, 9 C. & P. 29. The case of Regina „. DSbruelll, U Cox C. C. 207, was re- ferred to. As to the counts charging the prisoner with receiving and also as an 432 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. vol. Ixxxvii., p. 46, of the Sessions Papers at the Central Criminal Court, and the cases there cited. I took this view and directed the jury that unless they were satisfied that the securities had been taken from the " Avalon " they must acquit the prisoners. They found both the prisoners guilty. 10. I was not asked to leave and did not leave any question to the jury whether the securities were stolen before or after the " Avalon " commenced her voj'age from Rotterdam. There was no evidence upon which the jury could have found that the theft occurred after the voj-age began ; the evidence rather pointed to its having occuiTed be- fore she sailed. 11 . It was further argued on the prisoners' behalf that even if the securities had been stolen from the "Avalon" there was nothing to show that they had been taken from a British subject and therefore the case did not come within the Acts 17 & 18 Vict. c. 104, § 267, 18 & 19 Vict. c. 91, § 21, or 30 & 31 Vict. c. 124, § 11, and the thief was amenable to the law in Holland onlj- ; and further that the ease of Ee- gina V. Anderson, L. E. 1 C. C. E. 161 ; 11 Cox C. C. 198, was no authority to the contrarj', inasmuch as the prisoner in that case, though a foreigner, was one of the crew of a British vessel and therefore owed allegiance to the law of England, and upon that ground could be tried here. The counsel of the Crown did not dispute that the offender might be tried in Holland but insisted that he might be tried here also. 12. I expressed my opinion that if the "Avalon" had at the time when the securities were stolen been sailing up or down the river Maas, accessary the 24 & 25 Vict. c. 94 contemplated a case of this kind, where the original offence was committed abroad. Beslei/ relied on the decision in Rex u. Prowes {ubi sup.) and Regina v. Hogetoran (Cent. Crim. Court Sess. Paper, vol. 79, p. 268) and Regina v. Nadal (84 Cent. Crim. Court Sess. Paper, p. 295). Denman, J. Tliere can be no doubt that this was a larceny fully completed in France. I do not at all say that it might not be a very reasonable thing that any one afterwards dealing here with property so stolen might make cogent evidence of having received them knowing them to have been stolen, just as much as if they had been stolen in England ; but it appears to me that the point has been too sol- emnly decided for me to give the go-by to those decisions. It has been solemnly decided and acted upon so often that there is no jurisdiction in England to try a case where the stealing has been committed abroad, either against the principal or the accessary, that I have nothing to do but to act upon those decisions and to direct an acquittal in this case. I entertain no doubt that the case of Rex v. Prowes (ubi mp.) is directly in point and Regina v. Madge [ubi sup.) fortifies it to the extent of recog- nizing and acting upon it. Debrueil's case also decides that a conviction of receiv- ing under similar circumstances could not be sustained. The prisoner must therefore be acquitted. SECT. III. J BEGIKA V. CARE. 433 the person who took them, whether an Englishman or a foreigner, could clearly have been tried here upon the authority of Regina v. Anderson ; that the law is the same whether the ship be anchored or sailing, as ap^ pears from the cases of Rex v. Jemot, and Rex v. Allen, 7 C. & P. 664 ; 1 Moody's C. C. 494, where the vessels were lying in port, and which cases are referred to by Lord Blackburn with approval in Regina V. Anderson ; and that it could not make any legal difference whether the vessel was made fast to the bottom of the river by anchor and cable or to the side of the river by ropes from the quay. I also expressed mj' opinion that although the fact that the prisoner in Regina v. An- derson was one of the crew was referred to more than once in the judgment of Bovill, C. J., it was not mentioned by an}' of the other judges and was not the ground of the decision ; and that it made no difference in the present case whether the securities stolen from the " Avalon " were taken by one of the crew or passengers or by a stranger from the shore. 13. I directed the jury accordingly telling them that if they came to the conclusion that the securities were taken from the ship the taking them was an offence which could be tried here ; and that if so the pris- onei's could now be tried here for receiving and could be found guilty of that offence if the jury thought the facts proved warranted such a finding. I stated at the same time that I should, if necessary, reserve the point for the eousideratiou of this court. 14. "With respect to the receiving no difficulty of law arose and no point was reserved. 15. The jury found both prisoners guilty upon the fourth count. I postponed passing sentence until the opinion of the Court is given ; and the prisoners remain in custody. The question upon which I desire the opinion of this Court is whether under these circumstances there was any jurisdiction to try the prison- ers at the Old Bailey for the ofl"ence of which they have been found guilty. If answered in the affirmative the conviction is to stand. If otherwise the conviction is to be quashed ; but the prisoners are to re- main in custodj' to be tried upon another indictment on which a true bill against them has been found by the grand jury. Ford North. Coleridge, C. J. This case has been argued at some length and the question raised bj- it is no doubt of considerable importance. The facts are these : The bonds which the prisoners have been convicted of feloniouslj' receiving were on board an English ship in the river Maas off Rotterdam in front of a " dolphin," and was moored bj' ropes to the land of Holland. The tide ebbs and flows in the river, and at the place 28 434 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. where she was lying in front of the " dolphin" there is always enough water to float ships of her class. There was no actual proof when or by whom the bonds were stolen. The case states, " There was no evi- dence upon which the jury could have found that the theft occurred after the voyage began ; the evidence rather pointed to its having oc- curred before she sailed." Whether the bonds were carried off the ship on to the shore and sent by some conveyance to the prisoners in Eng- land or whether thej' were brought bj' the prisoners to England does not appear. The prisoners were acquitted of stealing the bonds and /found guilty of receiving them with guilty knowledge that they had ^been stolen. It is obvious that the prisoners could not be convicted -of ■feloniously receiving the bonds unless they were storerTwrthirrElie'same jimsdTction where the receiving took place, and therefore it becomes material to inquire whether the jurisdiction of the Admiralty attached so that the prisoners could be tried at the Old Bailey. It is admitted that the exact point raised in this case has never arisen for decision in our courts before. There appear but two points for us to decide. 1. Was the ship within the jurisdiction of the Admiralty so as to make offences committed upon it triable according to the English law? 2. If that point is answered in the afBrmative were the prisoners, according to the decisions, liable to be tried in the English courts? First, as to the place. The place appears to me to come within the old definition of the Admiralty jurisdiction. Thejhip— was at a part of the riv er which is never dry and where it would not touch the ground^at low watei-7"aiid tbe fide ebbs and flows in the river and g^eat^shi^sjjo lie and hover there. That is suflScient to bring this ship within the Admi- fa:ltj''jurisdiction. Without saying that the reports of the case of Rex V. Jemot and Rex «. Allen (ubi sup.) are as full as could be desired, it seems very difficult to draw any tangible distinction between them and the present case. This ease also falls within the decision of Regina v. Anderson (ubi sup.) where the ship was half-way up the river Garonne in France, and at the time of the offence about three hundred yards from the nearest shore, and this Court held, the prisoner having been convicted of manslaughter, that the offence had been committed within the jurisdiction of the Admiralty and that the Central Criminal Court had jurisdiction to try the prisoner. I am unable to distinguish this case from that, but if anything Regina v. Anderson seems an a fortiori case. Then, as to the second point, whether there is anything in the personality of the prisoners which would make them not liable by the law of England. It is true that some of the judges in Regina v. Ander- son (ubi sup.) place reliance upon the fact that the prisoners formed part of the crew of the vessel, but Bovill, C. J., in his judgment points out that England has always insisted on her right to legislate for per- SECT. III.] EEGINA V. CARE. 485 sons on board her vessels in foreign ports. None of the judges sug- gested that their judgments would have been in any wa}- altered if the prisoners had not in those cases formed part of the crew. I think it makes no difference whether a person is a British subject or not who comes on board a British ship where the British law reigns and places himself under the protection which that flag confers ; if he is entitled to t he privi leges and protection of the British ship he is liable to the disabilities which it creates for him. I am unable therefore to make a distinction between a passenger or stranger on board a ship and one of the crew, and it makes no difference in mj- mind whether the person is on board voluntarily or-involuntai-ily ; if while on board he is entitled to the protection of its flag, he is also bound by the obligations imposed by the law governing that ship. Tlj^ utmost that can be said as re- gards the theft in this c ase is that the bonds maj' have been stolen by some one wh o came on board casualTyl it ma}' be a foreigner who took them off the vessel at Rotterdam. Suppose the thief had not been able to get off the ship and had been captured and brought here, could he •have been tried here? In m}- opinion he could, for if while he was on board the ship be was entitled to the protection of the British flag he was at the same time equally liable to the disabilities of the criminal law of this country. It appears to me that the evidence shows that the bonds were stolen within the jurisdiction of the English law, and I am of opinion that the prisoners therefore were triable at the Central Criminal Court for receiving them, well knowing them to have been stolen. I think that the conviction should be aiHrmed. Pollock, B. I am of opinion that the conviction should be affirmed. The prisoners were convicted of the offence of feloniously receiving stolen goods, and the question is, Were the prisoners within the jurisdic- tion of the Central Criminal Court for all purposes? The general rule of law is that a person on board an English ship is to be treated as within the dominion of the English Crown ; and it is admitted that if the ship had Been on the high seas or had been moored in the middle of the river this rule would have applied to the case. Then what dis- tinction can there be because the ship was tethered by ropes to the shore? Xlhlnk there is no distinction. SJie_wa£aJaTgejhip carrying passengers and goods from Harwich to Rotterdam, and was in a tidal riveTat Rotterdam at a spot^ where great ships go. She was there for the purpose of unloading and when unloaded would return to Harwich. I think therefore the conviction was right. Lopes, J. I think, also, that the conviction should be aflSrraed. As to the question of the thief not being one of the crew of the vessel, I do not think that that matters. The thief was on board an English ship at the time the bonds were stolen and therefore came within the English law. 436 CASKS ON CRIMINAL LAW. [CHAP. XXXVIII. Stephen, J. Since the time of Richard II. the jurisdiction of the Admiralty has been extended to waters where great ships go. There are many statutes which gave jurisdiction to particular courts in partic- ular oases. But the juiisdictionof the_ Admijalty_itsel£ha8jQever been defined in any other way than as. laid, do wa lathe reported cases. The case of Rex v. Jemot bears on the question of local jurisdiction and de- cided that the Admiralty had jurisdiction over a theft on board ah English vessel in a Spanish port, and shows that the jurisdiction of the Admiral was not confined to the waters outside creeks, ports, harbors, etc. Rex v. Allen (uM sup.) is to the same effect. Regina v. Ander- son (ubi sup.) goes further and affects both the questions of place and person, the place being in a foreign river and the person being an American subject who had committed manslaughter on board an Eng- lish ship. No doubt tlie prisoner was one of the crew of that ship ; but it seems to me that we cannot lay down the rule in narrower terras than that the jurisdiction of the Admiral extends to all tidal waters where great ships go and to yi persons on. board^qfJheniLjvhether foreigners or not. There is no reason which should induce us to lay down restrictions to the extent which has been contended hy the pris- oners' counsel, that the Admiralty jurisdiction extends onlj' when the British flag is flying and not when it is lowered. It seems to me that the protection of the British flag and the English jurisdiction are co- extensive and that protection and obedience must co-exist. I think therefore that the thief in this case, if he had been captured, might have been tried at the Old Bailey. Williams, J. I concur. ^ ^ ^ f^ ; .y .44^'"^ <"-" ^ "V^ Conviction affirmed COMMONWEALTH v. ANDREWS, 2 Mass.' 14 [1806]. The indictment set forth that one Amos Tuttle, at Boston, in the County of Suffolk, feloniously stole certain goods, the property of Moses Dow ; and that the defendant Andrews " at Boston, aforesaid, in the County of Suffolk, aforesaid, on the same second day of July, did abet and maintain him, the siaid Tuttle, in committing and perpetrating the said felony and theft, and there, after the said goods and chattels were stolen as aforesaid, knowingly did receive all the same goods and chat- tels of him the said Tuttle, knowing the same to have been stolen, taken and carried away as aforesaid, against the peace," etc. It appeared in evidence that Tuttle stole the goods at Bedford, in SECT. III.] COMMONWEALTH V. ANDREWS. 437 the State of New Hampshire, and immediately brought them to Dun- stable in Massachusetts, and there concealed them in a wood. He was pursued, arrested, carried back to New Hampshire, and there committed to prison. By information obtained from him while in prison, by one Symonds, whom Tuttle believed to be an accomplice, but who in fact was tlie agent of a voluntary association instituted for detecting thieves, etc., and bringing them to punishment, the goods were found, and with Tuttle's consent, carried to Groton in the County of Middlesex, and afterwards to Harvard, in the County of Worcester. In the meantime Symonds, for a sum of money much less than the value of the goods procured from Dow a bill of sale or release of his right in them, with- out disclosing to him that he had them in possession, and with the sole view, as he testified, of procuring the conviction of Andrews, whom he and his associates believed to be in the practice of "receiying stolen goods. Tuttle having been liberated on bail, in company' with Symonds, took the goods at Harvard, brought them to Boston, and there sold ■them to Andrews, the defendant, in a manner and under circumstances which showed satisfactorilj' that he must have known them to have been stolen. The defendant was convicted, and now Parsons and Otis of counsel for him moved for a new trial, as on a verdict against evidence. Daka, C. J. We all concur in opinion upon this point. In the case of Paul Lord, which has been referred to, this objection was • taken and fully argued on the trial. The counsel for the defendant proposed to take a special verdict ; but as the facts were all before the court and they agreed in opinion upon the law, the jury were instructed that the indictment appeared to tlie Court to be well maintained by the evidence, if they found the facts true. They accordingly found a gene- ral verdict of guilty, and the point was not afterwards stirred. I recollect also another case, so long ago as when the late Judge Trow- bridge was Attorney-General. A man had been from this province into Rhode Island to purchase sheep. On his way home, while yet in their government, some other sheep joined his flock, and he drove them all into the County of Bristol, where he was indicted and convicted. Great mischiefs would follow from a contrary determination, which would also overthrow three solemn decisions of this court, which are now remembered ; and I believe if our records were searched many more would be discovered. There have been many instances, I am satisfied, of persons who have stolen horses in the neighboring States, and, having been pursued and found in possession of them in this State, have been here indicted and convicted. The principle appears to me well established that the original taking being felonious, every act of pos- 438 CASES ON CKIMINAL LAW. [CHAP. XXXVIII. session continued under it by the thief is a felonious taking ; and wherever he carries the articles stolen, he maj' there be indicted, con- victed, and punished for the felonj-. The offence charged on the defendant is the receiving the goods in Boston, knowing them to have been stolen. If the principal could be tried and convicted in this county, the accessary may be tried and con- victed here also. The same reason which authorizes a conviction in the case of stealing goods in one county and bringing them into another applies, in my mind, to the case ot stealing in one State and bringing them into, another, namely, that every moment's felonious possession is, in con- templation of the law, a new taking, stealing, and carrying away. Having respect then to principles, as well as to cases solemnly de- cided, I do not see sufficient ground for granting a new trial. New trial refused. PEOPLE V. WILEY, 3 Hill (N. Y.), 194. Certiokari to the New York Oj'er and Terminer, where the defendant was convicted, in December, 1841, of receiving certain personal prop- erty, knowing it to have been stolen. The property was described in the indictment as follows : " Ten promissory notes, commonly called bank notes, of the value, etc. ; eleven bonds of the State of Maryland issued under an Act of the General Assembl3' of that State, at the Decem- ber session, in the year 1838, each for £250 sterling, lawful money of Great Britain, with interest at 5 per cent, payable in London at any time after the expiration of fifty years from their date, and dated July^ 1, 1839, with coupons attached, which bonds were of the value of, etc., • each ; six other bonds of the State of Maryland for $1000 each, and of the value of, etc., issued under the Act of the General Assembly, etc., at the December session, 1834, bearing an interest, etc. ; the goods,' chattels, property, moneys, and effects of the President, directors and company of the Frederick County Bank, situate at Frederick, Mary- land," etc. The case was this : The bank was robbed between Saturday evening May 22, 1841, and the next Monday morning. Several of the bills stolen were notes of the bank, complete in form, but not issued. The instruments called " bonds " in the indictment ran thus : " Be it known, that there is due from the State of Maryland, two hundred and fifty pounds sterling, lawful money of Great Britain, payable," etc. [as in tbe indictment] with coupons attached, and with dates, times, etc., as. SECT. III.] PEOPLE V. WILEY. 439 stated in the indictment. The other instruments described by the in- dictment as six other bonds, etc., were thus: "Be it known that the State of Mar3-Iand is indebted to J. J. Cohen, Jr., & Brothers, or bearer, $1000, being of stock created in pursuance of Chap. 241 of the acts," etc. They were all signed by the State commissioner of loans, and countersigned by the proper person, but not sealed ; nor did they purport to be sealed, or exhibit any mark on them to represent a seal. The thieves fled with the propertj- to the city of New York ; and on the 16th of June, 1841, the defendant, who was a police justice of the city of New York, wrote to the cashier of the bank (Mr. Doyle), saying that if the agents of the bank could have a personal interview with him, he had no doubt he could arrange matters in a manner that would be satisfactory, by a restitution of the loss. In consequence of this, Messrs. Beall and Tyler were sent to negotiate with the defendant, with full powers to act on the basis of the letter. The^^ reached New York on Sunday night, the 20th of June. On Monday morning they opened the negotiation with the defendant, who said his employer was absent, and mentioned Thursdaj' or perhaps Wednesday' evening as the time when he might be able to attend to the business ; he said also that the reward of 6 per cent, offered in a newspaper for the recovery of the property was not satisfactory to his employer ; that the latter expected 10 per cent. On Wednesday' evening the defendant told Messrs. Beall and Tyler his emploj'er had returned and insisted on 10 per cent. He inade various offers of the amount to be returned, — from $90,000 to $115,000, —said it was impossible to restore $125,000 or $124,000, the sum demanded b^' the agents of the bank, as the parties concerned had used a small portion of it. He fell to 8 per cent, as the reward ; and the negotiation went on till it was finally agreed to restore $120,- 000, for 8 per cent, on that sum, he mentioning Friday-, Saturday, Sundaj', or Monday, as the time for making the restoration. He saw the agents of the bank occasionally till Saturda}- morning, when he said,' " 1 am ready for you, j'ou must come up to the scratch," and that he had provided a room up town where he would close the contract Thej' went to the place and he came there, accompanied by the clerk of his court and others to aid in counting the money. He brought a valise or small band-trunk, saying, " There is the stolen propertj'." The bonds were found, and the counting proceeded till the amount was ascertained and certified. Some gold had been stolen, which he said it was idle to talk of restoring, as gold was never restored in such cases. The agents paid him the 8 per cent., which amounted to $9809.52, in Mar3land bank funds. For this he gave his receipt, expressing it to be " as a settlement upon the restoration of $122,619, of the issues of the Frederick County Bank." The transaction was closed on Saturday the 26th of 440 CASES ON CKIMINAL LAW. [CHAP. XXXVIII. June, when the defendant and the agents exchanged receipts and dis- charges of that date. The bank never recovered any part of the gold. The agents and others were examined and cross-examined at great length as to the above circumstances and various others connected with ihem. It appeared that in the course of the negotiation, the defendant advised caution, saying, " These thieves are scary birds." Peter See, the defendant's clerk, was sworn as a witness for him ; by whom the defendant's counsel, " in order to show the publicity given to his proceedings bj' the defendant prior to the receipt of the property in question, proposed to prove that ttie defendant, previously to Saturday the 26th of June, stated freely during the week that he expected shortly to obtain possession of the property which was stolen from the Fred- erick County Bank." This was objected to, on the ground " that even for the purpose proposed, the defendant could not give his own declara- tions in evidence." The Court sustained the objection, and the defend- ant excepted. The Court charged the jury, 1. That the issues or promissory notes of the bank were the personal property of the bank, within the mean- ing of the statute on .which the indictment was founded ; and that the instruments called bonds, although not sealed or marked with an L. S., were well described in the indictment. 2. That the articles were to be considered as stolen in this State, though first stolen in and brought from another, and so were capable of being criminally received here. 3. That, as to the section of the statute under which the prisoner stood in- dicted — namely, 2 Rev. Sts. 680, § 71 — a very literal construction should not be adopted ; that it was the intent with which the stolen property was received that constituted the essence of the offence ; that the prop- erty must have been received not only with knowledge, but with evil intent (malo animo), and this intent must have been either to wrong the Commonwealth or to wrong the owner, — that is to sa^', either to as- sist the felon in escaping detection, or to prevent detection or punish- ment, ortodejKive the^ojyner in whole or in part of his property ; that, in accordance with this principle, if Wiley received the stolen goods at the request of the owners, and for the purpose of returning the goods to the owners, he was not guilty. 4. That if he received the property from the person who stole it, knowing it to have been stolen, with in- tent to extort from the bank a large reward for its restoration, and secretly- retained it while he employed himself in efforts to extort such reward from the agents of the bank, and then delivered it to the bank on receiving the reward, he appropriating the latter to himself or divid- ing it with the felon, he was guiltj'. 5. If, however, he did notreceive the stolen property till Saturday morning the~2Bin'of June, and then received it at the request of the agents of the bank for the purpose of SECT. IV.] REGINA V. WADB. 441 delivering it to them in pursuance of the previous agreement between the agents and himself, and did so actually deliver it without delay, he ■was not guiltj-. l^utif^_on^the day mentioned, l^e received.. thS- stolen property, knowing it to have been stolen, with the view and intent, without tEe^ knowledge and consent of the owners or theii, ?igents, to aTSpropriate" to hllBSeirihe fewaircr'agreed upon, or to divide it between lriTnseif"and1;he~felon, and iTIie did so appropriate or diyi^ejhe reward, thrsT would be a corrupt receiving of stolen property within the statute. The defendant excepted to the first and second instructions contained in the charge, and " so much of the fifth as declared that, under the other circumstances supposed in said instructions, the defendant would still be guilty of the offence charged in case he had, in receiving the alleged stolen property, the motive of obtaining from the bank, either for his own benefit or that of the alleged thief, the reward agreed upon, and because of the reference by the court to a supposed ignorance or want of consent on the part of the owners to the appropriation of the reward, not alleged or attempted to be proved." On the argument in this court, the exception to the second instruction was waived. [A new trial was denied.] / >, ^ Section 4. Distinction between Larceny fkom Thief and Receiving. EEGINA V. WADE, 1 C. & K. 739. The prisoners Wade and Kenyon were indicted for having broken and entered the house of Thomas Worsley at Warrington, and having stolen therefrom one watch, two handkerchiefs, and other articles his property, the prisoner Leigh being indicted for receiving the watch and the handkerchiefs, knowing them to have been stolen. Tlie prisoners Wade and Kenyon pleaded guilty. The prisoner Leigh pleaded not guiltj' and was tried. It was proved by the servant of a pawnbroker that the wife of the prisoner Leigh had pledged the stolen watch on a day subsequent to the robbery, and James Jones, a constable of Warrington, also proved that he had seen all the three prisoners together, they being in custody together at Manchester, when Leigh said tiiat he had left Kenj'on's house with Kenyon before the robbery, that he had afterwards gone to Dun- ham (about eiglit miles from Manchester) and returned. Leigh was 442 CASES ON CRIMINAL LAW. [CHAP. XXXVIIL then discharged. But the witness subsequently went to Manchester again, and caused hini to be again apprehended ; and Leigh's wife then, in the presence of Leigh, told this witness that she had taken the watch and pawned it for 10«. She added that Leigh had also told her to take two handkerchiefs, and that, as she was about to go with them, a police- man came, and she left them in a cellar next door to her husband's house. Upon that information, the witness went to the cellar and found the handkerchiefs. Afterwards, when Leigh was in custody in the lockups with Wade, Leigh told the same witness that while he (Leigh) was before with "Wade in the same place, Wade had told him (Leigh) that he had " planted" the watch and handkerchiefs under a flag in the soot-cellar in his (Leigh's) house ; and that when he (Leigh) was discharged, as before mentioned, he had gone and taken the things, and had desired his wife to pledge the watch for as much as she could get upon it. The watch and handkerchiefs were identified as the property of the prosecutor. Pollock, C. B. I doubt whether, when the possession has been transferred bj' an act of larceny, the possession can be considered to remain in the owner. Were it so, then every receiver of stolen goods, knowing them to be stolen, would be a thief; and so on, in series from one to another, all would be thieves. I f this w as an act done b}- the prisoner (Leigh) in opposition to^ Wade, or agains t his will, then it might be a question whether it were a receiving. But if Leigh took the articles in consequence of information given by Wade, Wade telling Leigh in order that the latter^mightjise the uiformation by taking the goods, then it is a receiving. Verdict, guilty. Section 5. Act of Receiving. REGINA V. SMITH, 1 Dears. C. C. 494 [1855]. The following case was reserved for the opinion of the Court of Criminal Appeal by Mr. Edwin James, Q. C, Recorder of Brighton. At the Quarter Sessions of the Peace for the borough of Brighton, holden at the Town Hall in the said borough, before tlie Recorder of the borough, on the 8th day of May, 1855, the prisoner, Thomas Smith, wp,s indicted for feloniouslj- receiving a stolen watch, Jilie4u;op- erty of John Nelson, knowing the same to have been stolen. It was SECT, v.] KEGINA V. SMITH. 443 proved that John'Nelson, the prosecutor, between eleven and twelve o'clock on the night of the 12th of April in this year, was in a public- house called the " Globe " in S^dward Street in the said borough ; he was in company with a prostitute named Charlotte Duncan, who lodged in a room of a house No. 17 Thomas Street, Brighton, which belonged to the prisoner, of whom she rented the room. The prisoner and five or six other persons were present in the apart- ment in the Globe Inn when the prosecutor and Charlotte Duncan entered ; while the prosecutor was drinking in the "Globe," his watch, being the watch named in the indictment, was taken from his person by some one who forced open the ring which secured the watch to a guard. The prosecutor heard the click of the ring and immediately missed his watch, and taxed the prisoner as the thief. A policeman was sent for and a partial search made, but the watch was not found. T he prisoner w as present all that time, and also a man named Hollands was present all the time. Soon after the loss of the watch the prose- cutor and the girl Charlotte Duncan went together to Charlotte Dun- can's room in Thomas Street. After they had been there together little more than an hour the prisoner came into the I'oom where they were, and said to the prosecutor, " Was not you in the ' Globe,' and did not you lose your watch?" The prosecutor said, "Yes." The prisoner thensaidLiiWhat_would you give to have your watch back aga>in?" Prosecutor said, " I 'd give a "sovereign." Prisoner then said, " Well, thenT'let the young woman come along with me, and I will get you the watch back again." Charlotte Duncan and the prisoner then went together to a house close by, in which the prisoner himself lived. Thej' went together into a room in which Hollands was. This was nearly one o'clock. There was a table in the room ; on first going in Charlotte Duncan saw there was no watch on the table, but a few minutes afterwards she saw the watch there. The prisoner was close to the table. ^ She did not see it placed there, but she stated .it miist have been placed there bj' Hollands, as, if the prisoner to whom she was talking had placedit there, she must have observed it. The prisoner told Charlotte Duncan to take the watch and go and get the sovereign. She took it to the room in 17 Thomas Street, to the prose- cutor, and in a few minutes the prisoner and Hollands came to that room. Hollands asked for the reward. The prosecutor gave Hollands half-a-crown, and said he believed the watch was stolen, and told him to be off. Hollands and the prisoner then left. , The prisoner did not then say anything, nor did the witnesses see him receive any monej-. Hollands absconded before the trial. The recorder told the jury that, if they believed that when the prisoner went into the room 17 Thomas Street and spoke to the prosecutor about the return of the watch and 444 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. took the girl Duncau with him to the house where the watch was given up, the prisoner knew that the watch was stolen ; and if- the jury believed that the watcli was then in tlie custody of a person with the cognizance of the prisoner, that person being one over whom the pris- oner had absolute control, so that the watch would be forthcoming if the prisoner ordered it, there was ample evidence to justify them in convicting the prisoner for feloniously receiving the watch. The jury found the prisoner guilty, and, in answer to a question from the recorder, stated that they believed that, though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. Sentence was passed on the prisoner, but was respited until the opinion of the Court could be taken. The question for the opinion of the Court is, if the conviction of the prisoner is proper. This case was argued on the 2d day of June, 1855, before Lord Campbell, C. J., Alderson, B., Ekle, J., Platt, B. and Crowdee, J. No counsel appeared for the Crown. Lord Campbell, C. J. I think that the conviction was right. In the first place the direction of the learned recorder was unexception- able. According to the decided cases as well as to the dicta of learned judges, manual possession is unnecessary. If we were to hold a con- trary doctrine, many receivers must escape with impunitj'. Then it has been held in decided cases, including Regina v. Wiley,'' that there may be a joint possession in the receiver and the thief; that is the ratio decidendi on which the judgment in that case proceeds. Then, was not there ample evidence to justify the jurj' in coming to the con- clusion at which they arrived ? I think there was. They might, it is true, have drawn a different conclusion, and have found that Smith was the thief ; and if they had drawn that conclusion, he would have been entitled to an acquittal. Another inference which they might have drawn, and which would also have resulted in a verdict of not guilty, was, that Hollands being the thief, the watch remained in his exclu- sive possession, and that the prisoner acted as his agent in restoring the watch to the prosecutor ; but the jury have come to a different conclusion, and I think they were justified in so doing. We have instances in real life, and we find it represented in novels and dramas drawn from real life, that persons are employed to commit larcenies and so deal with the stolen goods that they may be under the control of the emploj-er. In this case Hollands may have been so employed by the prisoner, and the watch may .have been under the prisoner's 1 Below, p. 445. SECT, v.] KEGINA V. WILEY. 445 control, and if so, there was evidence of a possession both by Hollands and the prisoner. Alderson, B. There was abundant evidence from which the jury might come to the conclusion at wliicli thej- arrived, although there was evidence the other way. Erle, J. The doubt in these cases has arisen as to the meaning of the word "receive," which has been supposed to mean manual posses- sion by the receiver. In Regina i). Wiley, Patteson, J., sa3-s, that a manual possession, or even a touch, is not essential to a receiving, but that there must be a control over the goods by the receiver. Here the question of control was left to the jury, and thej' expressly- found that though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. Platt, B. There was some evidence that the prisoner might have been the thief, and the prosecutor charged him with being the thief ; but a search was made and the watch was not found, and it was proved that Hollands absconded before the trial ; from that and the other facts of the case, the jury might well find that Hollands was the thief and the prisoner the receiver. Ceowdek, J. I also think that both the direction and the convic- tion were right. There was sufficient evidence that Hollands was the thief. The question is then put to the jury, " Was the w atcli_uiidfiJ:-~the Control of the prisoner? And they saj' it was. That finding is suffl- clent to suppSftTiheir vef3ietj^ and the conviction was right. Conviction affirmed. REGTNA V. WILEY, 4CoxC. C. 412 [1850]. At the Northumberland Quarter Sessions, holden at Newcastle-upon- Tyne, on the 26th of July, 1850, Bryan Straugham, George Williamson, and John Wiley were jointly indicted for stealing and receiving five hens and two cocks, the property of Thomas Davison. It was proved that on the morning of the 28th da_y of January, at about half-past four o'clock, Straugham and Williamson were seen to go into the house of John Wiley's father with a loaded sack that was carried by Straugham. John Wiley lived with his father, in the said house, and was a higgler attending marlcets, with a horse and cart. Straugham and Williamson TeiKarned in the house aBiout ten minutes and were then seen to come out of the back door, preceded by John Wiley with a candle, Straugham again carrying the sack on his shoulders, and to go into a stable be- 44G CASES ON CBTMIKAL LAW. [CHAT>. XXXVIII. longing to the same house, situate in an enclosed j^ard at the back of the house, the house and stable being on the same premises. The stable door was shut hj one of them, and on the policemen going in they found the sack lying on the floor, tied at the mouth, and the three men standing round it as if they were bargaining, but no words were heard. The sack had a hole in it, through which poultry feathers were seen protruding. The bag when opened was found to contain six hens, two cocks, and some live ducks. There were none of the inhabitants up in the house but John Wiley, and on being charged with receiving the poultry, knowlng^fr^tO'be stolen, he~ sa1dTi"e3id not JhiiiElie would have bought tlie'BeiSi'' The jury found Straugham and William- son guilty of stealing the poultry laid in the indictment, and John Wiley guilty of receiving the same, knowing it to have been stolen. The bench Itold the jury that the taking of Straugham and Williamson, with the stolen goods, as above by Wiley, into the stable over which he had control, for the purpose of negotiating about buying them, he well knowing the goods to have been stolen, was a receiving of the goods within the meaning of the statute. The bench, however, submitted a question to this court, whether under the circumstances the conviction of Wiley was proper. The three prisoners were again jointly indicted for stealing and receiving the nine ducks which were found in the sack above mentioned, and upon the same evidence and upon the same direction by the bench the jury again found Straugham and Williamson guilty of stealing and Wiley guilty of receiving the nine ducks, know- jng tliem to have been stolen, and the bench reserved a similar question for the consideration of this court on this indictment. This case was first argued on Saturday, April 27, before Lord Camp- bell, C. J., Parke, B., Alderson, B., Cresswell, J., and Erie, J. Otter, for the prisoner. The earlier statutes made it felony to buy or to receive ; but the 7 & 8 Geo. IV. c. 29, § 54, does not contain the word " bu3' ; " and the buying of stolen goods is not now a felony, unless the goods are aetuallj- received into the possession of the bu3'er. The negotiation, therefore, between the thieves and Wiley has no weight. There cannot be a joint possession of thief and receiver, any more than of bu^-er and'seller ; the possession of one is antagonistic to that of the other. R. v. Parr, 2 Mood^' & R. 346. An actual receipt is necessary to make out a case of civil liability within the Statute of Frauds. Farina v. Home, 16 M. & W. 119. Hill's Case, 1 Den. C. C. 453, is also in point, because here the propert3' never was actually or " potentially " in the possession of Wile}'. ZiiiMell, contra. There was evidence for the jury of a possession by Wiley. He materially assisted in removing the stolen property into the stable, and he had first of all received it into the house. 2 East, SECT. V.J EEGIXA V. WTIXV. 447 P. C. 7C5; R. V. Davis, 6 C. & P. 178; Richardson's Case, 6 C. & P. 335. A constructive possession is enough ; and Hill's Case onlj' introduces a difflcultj- bj* using the word " potential," the exact mean- ing of which it is not verj' easy to define. It is quite immaterial that the house belonged to the prisoner's father. R. v. Gruncell, 9 C. & P. 365. Otter in reply cited R. v. "Wilkins, 1 Leach, 522. Cur. ado. vult. By the direction of the judges, the case was re-argued on Tuesdaj-, November 26, before Lord Campbell, C. J., Parke, B., Aldeeson, B., Patteson, J., Coleridge, J., Maule, J., Cresswell, J., Erle, J., Platt, B., Williams, J., Talfourd, J., and Martin, B. Otter, for the prisoner. Bj' taking the thieves with the stolen prop- erty into the stable, the prisoner might perhaps have been indicted as an accessary at common law. [Parke, B. I doubt that, unless it was done to facilitate jLheir escape.] At all events that is an offence quite dlBefent from the one charged ; for to make him an accessaiy, he must receive the felon. 1 Hale, P. C. 618, 619, 620. The early statutes upon this subject appl^' to persons "bu3-ing or receiving" stolen prop- erty. 1 Anne, Stat. 2, c. 9, § 2 ; 5 Anne, c. 31, § 5 ; 25 Geo. IL c. 10, § 3 ; 21 Geo. III. c. 69, § 1 ; but in 7 & 8 Geo. IV. c. 29, § 54, the word "buy" is left out, and "receive" stands alone; the inference there- fore is that a buying, still less a bargaining for goods, is not enough, unless thej' are actuall}- received. The question turns upon the mean- ing of the word "receive." Now, with regard to stolen goods, the propert}- and the constructive possession remain in the owner, from whom they have been stolen ; the thief has no more than the actual possession ; and if he does not part with that, he parts with nothing. He can give the receiver nothing but the actual possession ; and the moment he gives that, he ceases to have any possession of any kind. Fyson v. Chambers, 9 M. & W. 460. In Armory v. Delamirie, 1 Stra. 505, the plaintiff obtained possession lawfully ; but if an_unlawful '■ possession is lost, trover cannot be maintained. Such being the situa- tionof the thief and "receiver, in order to constitute a receiving there must be a willing parting with the possession on the part of the thief and a willing taking of possession on the part of the receiver. [Lord Campbell, C. J. Maj' there not be a joint possession bj" the thief and receiver?] It is submitted that there cannot; for the possession of the thief is antagonistic to that of the receiver. In R. v. Wade, 1 C. & K. 739, it appeared that W. had stolen a watch from A. ; and while W. and L. were in custody together, W. told L. where he hnd " planted" it. Upon L.'s discharge, he went to the place and took the watch; upon which Pollock, C. B.. said, " If this was an act done bj' the pris- 448 CASES OK CRIMINAL LAW. [CHAP. XXXVIII. oner (L.) in opposition to W., or against his will, then it might be a question whether it would be a receiving." [Alderson, B., referred to R. V. Hill, 1 Den. C. C. 453 ; 3 Cox C. C. 533.] That case shows that no constructive receipt is sufficient. [Lord Campbell, C. J. The expression is " possession actual or potential ; " it implies therefore that there may be a sufficient possession without corporal touch. Martin, B. What is meant by "potential possession"?] It means at least that it should be accompanied with a disposing power ; it can- not mean a Constructive possession, because in that case the prisoner had a constructive possession of the stolen propertj- by the delivery to the carrier for her. [Alderson, B. There must be actual possession ; but two people may have actual possession at the same time.] Regina V. Parr, 2 Moody & R. 346, is an authority against the notion of a joint possession by thief and receiver. In the present case, Wiley never had manu.al possession of the stolen goods ; and it is clear that the thieves did not intend to part with the possession without payment, or at all events until the bargain was complete. [Lord Campbell, C. J. Suppose the bargain had been completed, but the policeman came in while the parties remained in statu quo? Parke, B. You saj' that there must be a giving by the thieves?] Yes. [Alderson, B. It is consistent with the direction of the chairman that the thieves kept possession all the time. Parke, B. Yes, it considers the simple act of taking the thieves with the goods into the stable a receiving.] Suppose that Wiley had knocked down the thieves and taken the stolen property from them, might he not have been indicted for stealing them? Would there not liave been a sufficient possession by the thieves to maintain trespass? Purnell v. Young, 3 M. & W. 288; Ashmore v. Hardy, 7 C. & P. 50L If the price had not been agreed, the thieves might and would have taken the goods awaj'. The prisoner had still a locus penitentice. [Patteson, J. If the goods were left for several hours in Wiley's house with his permission, he might be guilty of receiving, though the thieves afterwards took them awaj-.J That would be a very different ease. Here they were not left by the thieves at all. Ziiddell, contra. The direction of the chairman imports all the facts previously stated up to the apprehension of the prisoners ; because the expression is, taking the thieves " as above." In the argument for the prisoner, a constructive possession per alium has been confounded with a joint actual possession by two. In R. v. King, Russ. & Rj'. 332, goods had been removed from the possession of the prosecutor by A., in the absence of B., and B. afterwards joined in carrying them awaj-; it was held that B. could not be convicted of stealing ; and in 2 Russ. on Crimes, 240, the case is classed as a case of receiving. It is doubt- SECT, v.] EEGINA V. WILEY. 449 ful whether mere naked possession will support either trespass or trover, so that test fails ; but the real question is, Had the prisoner actual or potential possession? [Lord Campbell, C. J. If a man knowingly receives stolen goods male animo, is he not a receiver within the statute?] That is the definition in 2 East P. C. 766 ; and actual does not necessarily mean manual possession. If a letter is dropped into a letter box, it is in the possession of the owner of the box ; he has the power of taking it into his manual possession at anj'- moment. Here Wiley exercised a control over the goods. [Lord Campbell, C. J. Suppose that he had assisted in carrying the bag?] In that ease he would clearly be guilty of receiving. [Lord Campbell, C. J. Then, does it make any difference, the three being engaged in a joint act, which carries the bag and which the candle?] Not the least. Under the Stat. 2 Will. IV. c. 34, §§ 7 and 8, it has been decided that a possession of counterfeit coin bj- one of two persons is the joint possession of both, if they were acting in concert, and both had knowledge of the possession. R. v. Rogers, 2 Moody C. C. 85 ; R. V. Gerrish, 2 Moody & R. 219. Then "receive" and " have in possession" are convertible terms. Cole's Case, 2 East P. C. 767. [Erle, J. That case shows that they are not convertible terms. Lord Campbell, C. J. Was not Wiley as much in possession as the other two?] He had a "potential" possession. [Lord Campbell, C.J. I wish that word had not been used. It has no definite legal meaning.] It is satisfied, at all events, if the prisoner has the physical power of taking manual possession. [Coleridge, J. If " as above " imports into the direction of the chairman all that had been previously stated, j'our argument may be well founded ; but it is an odd expression.] If that is not so, there is no case against Wile}' at all, because he may have taken the men into the stable quite innocently'. The chairman must be understood as speaking with reference to all the circumstances of the case ; otherwise whj- are they all stated? The different statutes which have been referred to were passed with the intention of enlarging the definition of an accessarj' after the fact ; but, unless this is a receiving witliin the statute, the effect will have been to narrow instead of enlarge it. Otter, in replj'. The conviction cannot be sustained if it is doubtful in whose possession the goods were. R. v. Gerrish affords no assis- tance in interpreting the word " receive," upon which this question turns. In that case the joint possession would convict both of the same offence ; but it would be a strange consequence if a joint actual possession by two should be suflScient to convict one of the offence of stealing and the other of that of receiving. The direction of the chair- man excludes from the consideration of the jury all that occuiTed in 29 450 CASES ON CRIMINAL LAW. [cHAP. XXXVIIL the stable. [Cresswell, J. Suppose B. is in danger of being cap- tured, and C. knowing that B. is carr3-ing stolen goods, conceals him in his house, does he feloniously receive the goods?] He does not. [Parke, B. You say that there must be a receipt of the goods inde- pendent of the receiving of the thief.] Yes, if a lodging-house keeper is asked to buy a stolen watch, and says, " Sleep here, and I '11 tell you in the morning," is he guilty of receiving stolen goods, though in the morning he may saj', " I will have nothing to do with it " ? [Parke, B. He who receives a thief is not an accessarj' unless he does it with a view to assist the thief in eluding justice. Lord Campbell, C. J. Instead of a watch, put the case of a hamper. Suppose A. brings a hamper to B.'s house, and saj's, " I have stolen this, will j-ou keep it for me till the morning," and B. consents, is he not a receiver of stolen goods ?] That would depend upon whether the thief parted with the possession of it. Tf the thief left it, he probably would be held a re- ceiver ; but if the thief remained with it all night, and he only received the goods and the thief together, it is submitted that he would not. Cur. adv. vult. The learned judges retired to consider the 'case, and after some in- terval returned into court, and differing in opinion, delivered their judgments seriatim. Martin, B. I am of opinion that this conviction is wrong. The question turns upon the construction of the Stat. 7 & 8 Geo. IV. c. 29, § 54, which enacts " that if any person shall receive any chattel, "money, valuable securitj', or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law, or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony ; " and I apprehend that the true rule of construction is laid down in the case of Becke v. Smith, 2 M. & W. 195, by Parke, B., who says : " It is a very useful rule in the construction of a statute to adhere to the ordin- ary meaning of the words used and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further.'' Now the question is, "What is the meaning of the word " receive " as applied to the facts of this case ? I understand the facts to be these. Two men stole some fowls, which they put into a sack, and carried to the house of Wiley's father, for the purpose of selling them to Wiley. All three went together from the house to an outhouse ; the bag was carried on the back of one of the thieves; and when the policeman went in, the saqk SECT, v.] EEGINA V. "WILEY. 451 was found lying on the floor unopened, and the three men around it as if thej' were bargaining, but no words were heard. Now I am of opinion that Wiley, under those circumstances, never did receive those fowls. I entirely agree that the question arises upon the possession ; there is no question of propertj- here, f6r that remained in the original owner ; but it seems to me that the two men had the stolen articles in th eir posSP Sjginn gg Vf-nrlnrs aHvprgply tr. Wilpy ; and that thej never intended to part with thatjiossessionunless some bargain was cftn- cluded for the_£urchase of them. Upon this ground I am of opinion that Wiley never did " receive " tiie goods in the ordinary and proper sense of that word, and I think i t is exceedingly im portant that offences should be so broadly and clearlj' defined that all persons maj- understand what is the'oftence with which they are charged. Talfourd, J. I am also of opinion that this conviction is wrong. The question turns on the word " receive" as applied to the facts of this case; and it seems to me that the magistrate gave an improper direction to the jury on that subject, because he told them that the taking by Wiley of the two thieves with the stolen goods in the manner stated, to a stable over which he had control, for the purpose of traffick- ing as to the purchase of the stolen propertj', was a receiving within the statute ; and I think it was not. The persons asserting the right of possession at that time were the two thieves ; a nd the position of Wile}'', as a person negotiating for the purchase, excludes the idea of his having anj"^ possession. There was still for him a locus penitentice; he might still have determined not to take the fowls ; and the whole matter was, I think, inchoate and incomplete. Williams, J. I am of opinion that this conviction is right. I think that the charge was made out against Wiley, if the jury were satisfied that he had possession of the property, knowing it to be stolen, with a corrupt and wicked mind. In this case there is no doubt as to his knowledge, or as to the corrupt and wicked mind ; and the only ques- tion is, whether he had possession. N ow, it ap pears to me that he had a common purpose with Straugham and Williamson of carrying the ^stoleiTgoods Trom the house to the stable ; and to effectuate that pur- pose it was necessary that one or more of them should have manual possession of the goods. Accordingl}-, one hand carried the sack ; and that was not Wiley's ; but as the three had a common purpose, I think that they were all agents of one another, and that the possession of the man who had the fowls was the possession of the prisoner. Platt, B. I concur in opinion with my brothers Talfourd and Martin, and tliink the conviction wrong. In order to convict Wiley as a receiver of stolen goods, I think that it was necessar)' to show that he actually received the goods, that is, that they were in such a position 452 CASES ON CRIMINAL LAW. [CHAP. XXXVIU. as to be under his dominion, exclusive of that of the thieves. If it was to be taken tliat, while the sack was carried from the house to the stable, and Wilej' was lighting the carrier, the goods were in the joiiit possession of the three at that time, this difficulty must arise, — that the same act which constituted the joint possession by the hand of one of them would be a felonious asportaoit by the one, and a felonious re- ceiving bj- the other ; t he very same act would convict thg^t wo of entire ly different offences. I think that catinot' be j'TSd that as no bargain had been begun at that time, and the thieves retained the control and pos- session of the goods, — not a legal possession, of course, but the actual possession, — and as there was no intention on the part of the thieves of parting with the property', unless a bargain was made, it would be much too strong to say that a party who only contemplated becoming the pos- sessor if a bargain could be completed, was a receiver within the statute. Therefore, in my opinion, the direction of the chairman was wrong. Erle, J. I am of opinion that the conviction was right on two grounds. First, upon the facts found and left to the jury, I think that Wiley co-operated with the thieves in removing the stolen property from the house to the stable, which was under his control, for the pur- pose of more securely bargaining and evading the officers of the law. If Wiley had actually taken part in carrying the goods, I believe in the minds of many of the judges there would be no doubt that he had had a joint possession with the thieves, which would be sufficient to convict him of the present charge ; and as he accompanied them, and lighted them to the stable, I think he did co-operate with them in trans- porting the goods as much as if he had helped to carr3' them. I found my opinion on the law, which has often been laid down, that where goods are stolen, and the removal from the owner's premises is com- plete,- and the thief aftei-wards procures somebody to assist him in removing them again to a place of greater security, the person who so removes them is not liable to be convicted of larceny, because by the first removal the larceny was complete. A person who so co-operates is certainly a criminal within the intention of the law, and I think that the law is strong enough to reach him as a receiver of stolen goods. That is one ground of my opinion ; but I also attach a wider meaning to the word " receive " than some of my learned brothers are disposed to give to it. It appears to me that, with reference to acts of felonious receiving or taking, the rules of the civil law relating to possession have no application.* Originally the person who received and assisted a 1 The correct use of the terra " possession " requires extensive and precise know- ledge, and the introduction ot the term into the description of a felony would give complexity and not clearness to the criminal law. (See Von Savigny on Possession Ijy Sir Erskine Perry .J SECT, v.] REGINA V. WILEY. 453 thief, after he had committed a larceny, was held to be an accessary after the fact ; but then several statutes were passed, in consequence of the imperfect state of the law, which only rendered a person punishable who harbored the thief. By those statutes the guilty receipt of the stolen property was made punishable ; and I think that the word " receive," as applied to the goods, ought to be construed with reference to the other offence of harboring the thief. If a man harbors a thief with a view in anj' waj' to assist his escape, he is guilty ; and so, I think, if he harbors the goods for the purpose of assisting the thief, he is guilty of a felonious receiving within the meaning of the statute. If the owner of a stable authorizes thieyes to deposit ijR, that stable stolen goods, he is guilty of receiving them. That proposition by itself wouTfl"'probaT)T3^''nor be' contested ; and I think that, if he authorizes the thieves to go into the stable with the stolen goods, he is not the less a receiver because the thieves stay with the property. The earlier statutes clearly- did not contemplate a bargain or consent to the transfer of the stolen propertj' as essential to the offence of receiving ; for both in the 29 Geo. II. c 30, and 2 Geo. III. c. 28, the crime of receiving is expressed thus : " Everj" person who shall privately buj' or receive any stolen lead, &c., bj' suffering any door, window, or shutter to be left open or unfastened between sun-setting and sun-rising, for that pur- pose ; " so that the offence there contemplated involved no communi- cation with the thief at all after he had possession of the stolen goods, but applied to the practice of leaving open a place of deposit previously known to the thieves. Such a case is certainly within the mischief of the statute ; and in 2 East P. C. 765 it is expresslj'' laid down " that in order to constitute a receiver, generally so called, it is not necessary that the goods should be actually purchased by him ; neither does it seem necessary that the receiver should have any interest whatever in the goods ; it is sufBcient if they be in fact received into his possession in any manner malo animo, as to favor the thief ; " and the same law is to be found in 2 Buss, on Crimes, 247, where several authorities are cited. It is there said : " If the prisoner received the property for the mere purpose of concealment, without deriving anj- profit at all, he is just as much a receiver as if he had purchased it." Per Taunton, J., R. V. Richardson. It seems to me, therefore, that the statute contem- plated precisely such a taking as is proved in this case. With respect to the latter ground of decision, I take into consideration the facts that the goods were taken into the stable, and were found lying on the ground there in the manner stated. Cresswell, J. I agree with those of the judges who think the con- viction right. The direction of the chairman is the matter to be looked at ; and the words " as above" embody in the summing up the 454 CASES ON CEIMINAL LAW. [CHAP. XXXVIII. manner in which the goods were t^ken to the stable. Wiley carried the light, and he therefore assisted in the removal of the goods to the stable. If the goods had been carried by the thieves from one part of the owner's premises to another but not finally taken away, and the prisoner Wiley had afterv\ards been called in to assist in removing them off the premises, he would undoubtedly have been guilt}' of lar- ceny ; there would have been a sufficient asportaoit by him, and he would therefore have had a joint possession in so removing them. Substituting then for the deposit on the premises of the original owner a deposit elsewhere, the prisoner who assists in the removal of them must equally have a joint possession during that removal ; and knowing them to be stolen, he is, I think, while he is engaged in that act, a felonious receiver. If it were necessary, I should be also inclined to put the larger construction on the word -'receive" suggested by my brother Erie. Macle, J. I think that this conviction is wrong. Coleridge, J. I also think the conviction wrong. We must decide this case upon the direction given by the chairman at Sessions, which, if construed strictly, might confine the case to the mere fact of leading the thieves to the stable ; but I think it is far better and more con- venient to treat it as including all the circumstances stated upon the case. Looking then at the circumstances, it is to be observed that the case states no previous invitation by the prisoner, or communication between him and the thieves ; but he is in his father's house with the thieves, and he helps them to convey the goods to the stable, with, it may be assumed, the guilty purpose of buying, and so obtaining posses- sion of the stolen property, upon a contingency which never happened. Until some bargain had been concluded, he never intended to take (sEa'^e'^fit, nor in fact, could he have taken possession; This there- fore "is nbf a case" of joint constructive "possession ; nor did the thieves intend to admit him to any actual possession except upon a bargain which was never made. The charge of receiving must im- port possession, actual or constructive ; and in this case I can find neither one nor the other. I entirely concur with my brother Martin in thinking that, in administering the process of the criminal law, we ought to go on broad grounds of construction, intelligible to ordi- nary people. Patteson, J. Upon the whole, I am of opinion that this conviction is wrong. I do not mean to saj' that it is necessary, in order to con- stitute a receiving, that the prisoner should in everj- case actuall}' touch the stolen property, or that there may not be cases of joint possession bj' the thief and receiver in which a conviction would be projTer : but I think that there must be such circumstances in the case as will show SECT, v.] KEGINA V. "WILEY. 455 thaX_the_stolen prqgertj;^ was under the coijlj:,QL,or power ofibejficejxer either jointly with or separately from the thief; and in my opinion there is an^aBsence of such circumstances in this case. Here the property was all the time in the manual possession of the thieves ; WiieycondiurEea Tttsmtoa place where it was proposed to bargain for the purchase, but he is apprehended before the sack is opened, or any- thing done. How far the fact that the sack was found lying on the floor of the stable and the three men round it might have justified a conviction, I cannot inquire, because the chairman directed the jury that the taking into the stable was in itself a receiving ; but I incline to think that fact would not have fixed the prisoner, because it was not intended that the goods should be taken by him until a bargain had been made. Alderson, B. I agi'ee with the majority of the court. There is nothing to show that the goods were ever out of the manual possession of the thieves. I agree that there may be a joint possession by the thief and receiver ; and if the stolen articles had ever been out of the manual possession of the thieves, and had then been jointly convej-ed by the three, Wilej' might have been liable to be found guilty as a receiver ; but here the thieves take the goods into the house ; it does not appear what took place in the house ; then thej' come out, and Wilej' admits them into a stable under his control. There is nothing to show that, before they went into the house, there was any previous communication. Now, those are all the facts which were left to the jury in this case, and I think that they were not sufficient for the purpose. The prisoner never had possession; he_intended to bargain for the property and to take ^ possession if th e -bargain waa.JiQm.pleted, but he never did so. There must in these cases be a dividing line, which it is always diflScult to define with accuracy ; but I think in this case the dividing line was not reached, and that the bench laid down an inaccurate rule to guide the jury. Parke, B. I also think the conviction wrong. It is our duty to confine ourselves to the case submitted to us ; and the question reserved is whether the conviction is right, the bench having told the jury " that the taking of Straugham and Williamson with the stolen goods, as above, by Wiley into the stable, over which he had control, for the purpose of negotiating about the buying of them, he well knowing the goods to have been stolen, was a receiving of the goods by him within the meaning of the statute." We are not to speculate whether the three were j^articipes criminis; the word " receive " must be understood in its ordinary signification, and must mean a taking into possession, actual or constructive. Here, I think, there is no proof that the property ever got into the possession of Wiley at all ; certainly none by his taking 456 CASES ON CRIMINAL LAW [cHAP. XXXVIIL Williamson and Straugham into the stable. He never touched the goods, and they never intended to part with the possession of them except upon the contingency of his becoming a purchaser, which did not happen. The only question is, whether by letting the thieves with the goods into the stable, he received the goods. I think JhatjUiere. musi.bejy;e- ceiving of the goods into possession as distinct in some way ^XrfiiaJbe receiving of the thief ; and that the receiving of the thief with the goods into a house is not a receiving of the goods within the statute, in a case like this, any more than it would be in the case of a thief received into a house with a stolen watch in his pocket. Lord Campbell, C. J. I agree with those of the judges who think the conviction right, and concurring in their reasons, I have little to add. I think that there is a receiving within the statute wherever a person, knowing goods to be stolen, has possession of them for a bad purpose. It is wholly immaterial whether he has an}' propertj' in them ; and if we look to analogies derived from the Statute of Frauds, or the rules relating to actions of trespass or trover, our judgment is likely to be misled. The material question is, whether there has been a possession malo animo; and all the judges, I believe, are of opinion that there may be a sufficient possession, though there is not a manual possession. Now, what are the facts from which it may be said that Wiley had possession? The sack was brought to his father's house, and he enters into a common purpose with the thieves of carrying the goods from the house to the stable, over which he had control, for the purpose of bargaining, and that was an illegal purpose. Then had not Wiley possession for that purpose? The thieves had no intention of then finally parting with the possession ; but they had the common purpose of carrying the goods into the stable. Straugham carried the sack ; but the possession of Straugham was also the possession of Williamson, and if of Williamson, wliy not of Wiley also? he went before with the candle. Suppose he had assisted in the very act of carrying it> would he not have had possession ? And does it signify what part each took in carrying out the common purpose ? No doubt there maj' be a joint possession by the thieves and the alleged receiver; and it seems to me that, during that removal, Wiley certainly had such a joint possession of the stolen property ; but I cannot stop there. Upon a fair construction of this ease, I think that the whole transaction was laid before the jurj', and that we are to express our opinion upon the whole case. Then, what follows? The sack is found lying in the stable, no one touching it ; it is not in the actual manual possession of any one of the three, but in my opinion, quite as much in the posses- sion of Wiley as of the others. I cannot say that there can be no possession by the receiver unless the thieves had intended permanently SECT. V.J EEGINA V. WOODWARD. 457 to part with the possession ; and so I think the verdict warranted by the evidence of what occurred in the stable. Conviction reversed. REGINA V. WOODWARD, 9 Cox C. C. 95 [1862]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of the Court of Criminal Appeal. At the Quarter Sessions of the Peace for the County of Wilts, held at Marl- borough, on the 16th day of October, 1861, before me, Sir John Wither Awdry, Bart., and others my fellows, Benjamin Woodward, of Trow- bridge, in the County of Wilts, dealer, was found guilty of receiving stolen goods, knowing them to have been stolen, and was thereupon sentenced to nine calendar months' imprisonment with hard labor, and the prisoner now is undergoing Ws sentence. The actual deliverj- of the stolen property was made by the principal felon to the prisoner's wife, in the absence of the prisoner, and she then paid 6c?. on account, but the amount to be paid was not then fixed. Afterwards the prisoner and the principal met and agreed on the price, and the prisoner paid the balance. Guilty knowledge was inferred from the general circumstances of the case. It was objected that the guilty knowledge must exist at the time ofjeceiling,. and that when the wife received the goods the guilty knowledge could not have come to the prisoner. The. Court overruled this objection, and directed the jury that until the subsequent meeting, when the act of the wife was adopted by the prisoner and the price agreed upon, the receipt was not so complete as to exclude the effect of the guilty knowledge. If the Court shall be of opinion that the circumstances before set forth are sufficient to support a conviction against the prisoner for the felonious receipt, the conviction is to stand confirmed ; but if the Court shall be of a contrary opinion, then the conviction is to be quashed. J. W. AWDET. Erlb, C. J. The argument of the learned counsel for the prisoner has failed to convince me that the conviction was wrong. It appears that the thief brought to the premises of the prisoner the stolen goods 458 CASKS ON CKIMINAL LAW. [CHAP. XXXVIII. I and left them, and that sixpence was paid on account of them by the prisoner's wife, but there was nojhingin tJjBJiature of a complete re- ceipt of the goods mitUthe^ thief found the husband an d a^^ed w ith hira"as to the amoujit, and was paid the balance. The receipt was complete from the time when the thief and the husband agreed ; till then the thief could have got the goods back again on paj'ment of the sixpence. I am of opinion therefore that the conviction should be affirmed. Blackburn, J. The principal felon left the stolen property with the wife as the husband's servant, but the Court below, as I understand the case, doubted whether the husband could be found guilty of feloni- ously receiving, as he was absent at the time when the goods were de- livered to the wife, and could not then know that they were stolen. It is found that, as soon as the husband heard of it, he adopted and rati- fied what had been done, and that as^soqrLas he adopted it he had a guilty knowledge ; he therefore attliat_tim£ received the goods know- ing them to have been stolen. Keating, J. I am of the same Opinion. The case finds that the agreement as to the price was not complete till the thief and the hus- band agreed. I think tlierefore that t he receip t w as not com plete till then, and that the conviction was right. If we were to hold that the conviction was not right, the consequences would be verj- serious. Wilde, B. I read the case as showing that the wife received the goods on the part of the prisoner her husband, and that act of her was capable of being ratified on the part of the prisoner. If so, that makes the first act of receiving bj' the wife his act. In the case of Regina v. Dring and Wife, the only statement was " that the husband adopted his wife's receipt," and the Court thought the word " adopted" capable of meaning that the husband passively consented to what his wife had done, and on that ground quashed the conviction. But here the pris- oner adopted his wife's receipt by settling and paying the amount agreed on for the stolen goods. Mellor, J., concurred. Conviction affirmed. REGINA V. ROGERS, 37 L. J. M. C. 83 [1868]. CROWN CASE RESERVED. Case reserved by the learned Assistant Judge for Middlesex. John Rogers, Richard Irwin, Alfred Johnson, and Chai'les Byatt SECT. V.J KEGINA V. EOGEES. 459 were tried before me at the Sessions for Middlesex, on the 3d of March, 1868, for stealing and receiving a watch, the property of John Shaw. B3'att pleaded guilty ; Rogers was found guilty of stealing ; and Irwin and Johnson were found guilty of receiving with a guilty knowledge. John Rogers resided at Liverpool, and forwarded by railwaj- a box containing the watch in question and several other stolen watches to the prisoner Byatt, and the box was delivered in due course to Byatt, in the County of Middlesex. The box was addressed to his house in the handwriting qf Rogers, and a similar box, empty, with similar address in Rogers's handwriting, was found at Byatt's. That box was taken by Rogers to the railway office in Liverpool on the 13th of Jan- uary and booked as a parcel for London. Rogers was asked if he wished to pay the carriage, and he did so. The box was then for- warded in the ordinary manner. The box containing the articles named in the letter set out in the case (and among them the stolen watch in question) was sent by railway in the same manner on the 30th of January at ten o'clock in the morning, but the railway clerk could not say by whom it was brought to the office. The watch in question was stolen from the owner at Liverpool on the 29th of January about seven p. m. I t was contende d that a s Rogers w as not_shown_JoJiave left Liverpool', the Court had no jurisdiction to try him. I told the jurj- that if they believed Rogers to have stolen the watch, his transmission df 'fniffo the"cbunty by the agencj' of the "railway was sufflcieiit to give the Court jurisdiction, although he did not personally convey it. It was proved that Rogers had advised B^-att of the transmission of the box by a letter found in Byatt's possession, which letter was as follows : — LiVERPOoi/, Jan. 30, 1868. I send you up the goods this morning. They are as follows: — £. ». 13 W. Leavers ., 15 12 4 W. Genevas 1 12 1 R. Leaver 6 1 R. Geneva 15 1 Red Case, 1 oz. 2 dwts 15 1 Red Slang, 1 oz. 17 dwts 2 5 Ditto 1 oz. 2 dwts 17 29 6 Try and deal this time without so much wrangling; you did not come down as you promised. Dick. 460 CASES ON CRIMINAL LAW. [CHAP. XXXVIH. Articles corresponding witii this letter were contained in the box found at B^-att's. Irwin and Johnson were proved to have been at B3-att'8 house on the arrival of the box, and the jury found that they knew of the box and the contents having been forwarded by Rogers, and that they were present on its arrival, aiding and abetting Byatt in the receipt of the watch in question, they well knowing it to have been stolen ; but it was not proved that either of them had manual possession of it, all the pri- soners, Byatt, Irwin, and Johnson, having been taken into custody be- fore the box was opened. I have to ask this honorable Court whether, upon the facts here stated, the conviction of Rogers, Irwin, and John- son, or either of them, can in point of law be sustained. Kelly, C. B. With regard to the conviction of Rogers, the facts were, that the watch was stolen by him at Liverpool and forwarded by railway to Byatt in Middlesex, for the purpose of being sold and dis- posed of by him there. The question is, whether the possession of the watch, in contemplation of law, remained with Rogers. I think the authorit}' cited to us is conclusive. Constructive possession is deemed equivalent to actual possession in criminal as well as civil cases ; and her e Rog ers must be deemed to hajve retained the control over the a rti- cle. Then, possession being thus retained by him, his conviction must be aflflrmed. Then, as to Irwin and Johnson, the jurj- have found that they knew of the box having been forwarded by Rogers, and that they were present on its arrival, aiding and abetting Byatt in the receipt of the watch, they well knowing it to have been stolen. Aiders and abet- tors in a felony can be indicted, tried, and convicted as principals ; therefore, as to them, the conviction must also be affirmed. The rest of the judges agreed. Conviction affirmed. Section 6. Successive Receivings : Receiving from a Receitek. STATE V. IVES, 13 Iredell, 338 [1852]. Appeal from the Superior Court of Law of Currituck County, at the fall term, 1851, his honor Judge Settle presiding. The defendant was indicted for receiving stolen goods, and was con- victed upon the following counts in tlie bill of indictment : — 5th count. And the jurors, etc., do further present, that the said Josiah Ives, afterwards, to wit, on the 1st day of February, a. d. SECT. VI.] STATE V. IVES. 461 1851, in the county aforesaid, with force and arms, one bale of cotton, of the value of ten shillings, and one barrel of tar, of the value of six shillings, of the goods and chattels of said Caleb T. Sawj'er, before then feloniously stolen, taken, and carried away, feloniously did receive and_hire, he, the said Josiah Ives, then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried awa^-, contrarj' to the form of the statute in such cases made and pro- vided, and against the peace and dignit}' of the State. 6th count. And the jurors, etc., do further present, that, at and in the county aforesaid, on the 1st day of March, 1851, certain goods and chattels, to wit, one bale of cotton, of the value of ten shillings, and one barrel of tar, of the value of six shillings, of the goods and chattels of Caleb T. Sawyer, feloniously were stolen, taken, and carried away, by some person to the jurors unknown ; and that the said Josiah Ives, afterwards, to wit, on the 2d day of March, 1851, in the county afore- said, the said bale of cotton and the said barrel of tar feloniously did have and receive, he, the said Josiah Ives, on the day and year last afore- said, ih the county aforesaid, well knowing the said bale of cotton and the said barrel of tar to have been theretofore feloniously stolen, taken, and carried awa}', contrary to the form of the statute in such case, made and provided, and against the peace and dignity of the State. There was a motion in arrest of judgment, which was overruled. Judgment against the defendant, from which he appealed to the Supreme Court. . Pearson, J. The defendant was convicted upon the fifth and sixth counts in the bill of indictment ; and the case is' here upon a motion in arrest of judgment. The fifth count was abandoned by the Attorney- General, and the question is upon the sixth count. A receiver of stolen goods is made an accessary by the statute of Anne ; and it is provided, by another section of that statute, that, if the principal felon escapes and is not amenable to the process of the law, then such accessarj' may be indicted, as for a misdemeanor. This statute was so construed as to require, in the indictment for a misde- meanor, an averment that the principal felon was not amenable to the process of the law. Foster, 373. Our statute, Eev. Stat. c. 34, §§53 and 54, is taken from the statute of Anne, and has received a similar construction. Groffs Case, 1 Mur. 270, and see the remarks of Hen- derson, judge, in Good's Case, 1 Hawks, 463. The objection taken to the indictment, is the absence of an averment, that the principal felon is not amenable to the process of the law ; and it is insisted that, as the principal felon is alleged to be some person to the jurors unknown, it could not be averred that he had " escaped and eluded the process of the law," in the words used by our statute, 462 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. and it was urged that the statute did not apply to a case of the kind. The Attorney-General in reply took the position, that the averment that the principal felon was some person to the jurors unknown, neces- sarily included and amounted to an averment, that he had escaped and eluded the process of the law, so as not to be amenable to justice. This would seem tq_be.so ; but we give no definite opinion, because there is another defect in the count, which is clearly fatal. After averring that the cotton and tar had been stolen by some per- son to the jurors unknown, the indictment proceeds : "Afterwards, etc., the said Josiah Ives, the said bale of cotton and the said barrel of tar feloniously did have and receive, well knowing the said bale of cotton and barrel of tar to have been theretofore feloniously stolen," etc. There i§L no a,yerment from whom th£ defendant received the cotton and_tar. We cannot imply that he received them from the person who stole them. It maj' be that he received them from some third person ; and this question is presented : A. steals an article, B. j^eceives it, and C. re- ceives it from B. Does the caseTalT within the statute ? We think not. The statute obviously contemplates a case where goods are received from the person who stole them ; he is termed the principal felon. In the case put above, A. is the principal felon, B. is his accessary, butC. is a receiver from a receiver, — an accessar3' of an accessarj'. In fact, it cannot be said whether A. or B. is the principal felon in regard to him. The statute does not provide for such a case. It makes the receiver an accessarj' ; and in case the principal is not amenable to the process of law, such accessary/ may be prosecuted as for a misdemeanor. Con- sequently it is necessarj- to point out the principle, and the matter is involved in the doctrine of " principal and accessary.'' This and many other omissions are, in England, remedied bj' the statutes, Will. III. and Geo. II., by which " the act of receiving" is made a substantive felony, without reference to the person who stole or the person from whom the goods are received. Under those statutes, the fifth count, which the Attorney-General has properly abandoned, would be good ; for the oflfence is to " receive and have " stolen goods. We have not adopted those statutes. Of course the decisions and forms in the mod- ern English books cannot aid us. Duncan's case, 6 Ired. 98, presents another instance, to provide for which we have no statute. Pee Curiam. Judgment below reversed, and judgment arrested. SECT. VI.] KEGINA V. KEAEDON. 463 REGINA V. REARDON,! L. R. 1 C. C. R. 31 [1866]. CROWN CASE RESERVED. The following case was stated by Lush, J. : — The prisoners were jofntly indicted before me at Manchester for re- ceiving stolen goods knowing them to have been stolen. There was no evidence of a joint receipt ; but Reardon, who kept a house of her own, was in the practice of receiving stolen propertj' from the thief or his accomplice and of selling it to Bloor, who also had a place of business of his own. The jury found each guilty. I sentenced Bloor ; but an objection having been taken that upon the indictment a conviction of both could not stand I respited the sentence against Reardon and re- served for the opinion of the Court of Criminal Appeal the question whether the conviction against her is sustainable upon this indictment. This case was argued on the 28th of April, 1866, before Pollock, C. B,, Bramwell, B., Byles, J., Pigott, B., and Lush, J. CoUingham for the prisoner Reardon. The question in this case is whether, upon an indictment of two persons for a joint receipt, both can be convicted when no joint receipt but only a separate receipt at different times is proved. Before the 14 & 15 Vict. c. 100, if two or more persons were jointly indicted for receiving, and, no joint act of re- ceiving was proved, the prosecutor was put to his election and could onl^- convict one of them ; R. v. Messingham.^ The 14 & 15 Vict. c. 100, § 14, remedied this inconvenience to some extent; and although that section is now repealed it has been re-enacted by the 24 & 25 Vict. c. 96, § 94, which provides that " if upon, the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separate!}' received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be proved to have re- ceived anj' part or parts of such property." That section however onlj- applies to a separate receipt of different parts of the stolen property', at 1 The 24 & 25 Vict. i-. 96, § 94. enacts that, "If upon the trial of any two or more persons indicted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be proved to have received any part or parts of the said property." •■i 1 Moody C. C. 257. 464 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. the same time leaving the old law to operate where there has been a separate receipt of the whole at successive times. [Pollock, C. B. A man who receives the whole of the stolen prop- erty receives a part ; for the whole embraces all the parts. Bramwell, B. The old-fashioned indictment would have alleged that the two prisoners " then and there" (^. e., at the same time and place) received the goods ; and in this case that averment could not have been proved.] This point was raised in Regina v. Dring ^ but was not decided. Bj- the 24 & 25 Vict. c. 96, § 93, any number of receivers at different times of the stolen property or of any part thereof may be charged with substantive felonies in the same indictment ; but the proper mode of carrying out that enactment is to indict them for separate receipts in different counts, and not as was done here to indict them for a joint re- ceipt in a single count. Pollock, C. B. The object of the enactment in question was to do awaj' with certain technical objections which prevailed previously. By the 93d section any number of receivers of the same stolen property or of different parts of it may be indicted together, although there has been no joint receipt ; and it is clear that under that section no distinc- tion is made between separate receipts at the same time and separate receipts at different times. That section throws light on the 94th ; and although there is some color for the objection we are all of opinion that no distinction can be made for the purposes of that section between a separate receipt of the whole and a separate receipt of part of the stolen property. It would be absurd to convict both prisoners if it were proved that each separately received a part, and to acquit one if it were proved that each separately received the wliole." Conviction affirmed. 1 Dears. & B. C. C. 329. 2 [See also Rex v. Messingham, 1 Moody C. C. 257 (1830) and Regina v. Dovey, 2 Den. C. C. 86 (1851), — both cases of pleading, but both distinctly implying, how- ever, that a second receiver is indictable in the common form under the ordinary re- ceiving statutes. In each of these cases there was a receiving from a receiver. In each case the first and second receiver were indicted jointly. And it was held, and very properly, that as their acts were separate they were guilty of no joint act and could not under the then existing statutes be jointly indicted. The whole question, however, was treated merely as one of pleading or procedure, and there is no intima- tion in the opinions that the second receiver could not be indicted at all. If the case could have been disposed of upon the merits, namely, upon the point that the second receiver was guilty of no indictable offence, the court would have rested its decision upon that ground and would not have treated the question before it as a question of pleading or procedure. The treatment of these cases in Roscoe Grim. Evid. p. 19, supports the same conclusion. "Rex v. Messingham,'' says that work, "shows that several persons cannot be convicted of distinct felonies which are charged in an in- dictment as a joint felony. . . . But now by the 24 & 25 Vict. c. 96, § 94, . . . this difficulty is removed."] SECT. VII.] COMMONWEALTH V. BEAN. 465 Section 7. The Qdestion of Lucri Causa. REX V. EICHAEDSON, 6 C. & P. 335 [1834]. M . f-"'' fi"-' FouE of the prisoners were indicted for sacrilegiously breaking and entering a chapel, called St. Philip's Chapel, in the parish of Clerken- well, and stealing therein certain things. The other prisoner was charged as receiver. Taunton, J. (in summing up with respect to the receiver) , said : Whether he made any bargain or not is a matter of no consequence. If he received the property for the mere purpose of concealment with- out deriving anj' profit at all he is just as much a receiver as if he had purchased it. It is a receiving within the meaning of the statute. Yerdict, three of the prisoners guilty and two of them not guilty. COMMONWEALTH v. BEAN, 117 Mass. 141 [1875]. Complaint on the Gen. Sts. c. 161, § 43, charging the defendant with receiving a pair of eye-glasses, knowing them to have been stolen. At the trial in the Superior Court on appeal before Lord, J., there was evidence tending to show that the defendant received the ej'e- glasses from one Daniels, knowing them to have been stolen, as a friendly act and without emolument or benefit to the defendant or anj' intent to receive benefit on his part ; but only that they were taken to aid Daniels in £oncealing them. The defendant asked the judge to rule that if such was the case it did not constitute the offence of receiving stolen goods within the stat- ute. The judge declined so to rule but instructed the jury that the de- fendant's motive was immaterial if he received them knowing them to have been stolen and for the purpose of aiding Daniels in concealing them. The jury returned a verdict of guilty and the defendant alleged exceptions. Endicott, J. The statute provides that whoever receives or aids in the concealment of stolen goods, knowing the same to have been stolen, shall be punished. Gen. Sts. c. 161, § 43. The ruling at the trial was correct. There was evidence that the defendant received the ej-e- 30 466 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. glasses from Daniels, knowing them to have been stolen, and aided Daniels in their concealment. That he did this as a friendlj- act to Daniels without any benefit or intent to receive benefit himself is immaterial. Exceptions overrule^. Section 8. Guilty Knowledge. COMMONWEALTH v. LEONARD, 140 Mass. 473 [1886].- Indictment in three counts. The first count alleged that on July 1 , 1883, certain articles, the goods, chattels, and property of the Boston and Lowell Railroad Corporation, were feloniousi}- stolen, and that the defendant afterward, on the same daj', " the goods, chattels, and prop- erty aforesaid, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have, and did then and there aid in the concealment of the same," he " well knowing the said goods, chat- tels, and property to have been feloniously stolen, taken, and carried away." The second and third counts were similar in form, but the property was in each diflTerently described and at a different date, namel}-, on August 1, 1883, and September 1, 1883, respectively. The defendant asked the judge to instruct the jurj' as follows : " 1. If the jury are not satisfied beyond a reasonable doubt that the accused knew that the goods were stolen he is entitled to an acquittal. 2. To justify a conviction it is not sufficient to show that the accused had a general knowledge of the circumstances under which the goods were stolen, unle ss the jury are also satisfied that, h e knew that_ t be circu m- gta nces were such as c ons tituted larce ny." The judge refused to give these instructions and upon the matters embraced therein instructed the jury as follows : — " He must know that the goods were stolen but he does not need to know the hour nor day they were stolen ; he must undoubtedly have notice which would put him on his guard as knowledge that the goods were acquired and turned over to him by a person not taking them by mistake, not by right, but taking them as thieves take them, that is, for the purpose of defrauding the railroad and cheating them out of their property." SECT. VIII.] EEGINA V: EYMES. 467 The rlefendant's counsel here suggested " by larcenj-," and the judge gave this further instruction : — " By the taking and carrying awa}^ of property it is the fraudulent talking awaj- of the property- of another for the purpose of converting it to the taker's use to deprive the owner of it. These goods must have been taken that way and were stolen goods ; tliey must have been taken by McCarty as thieves take them, not by mistake or accident, or hy taking from those who had no right to give, but taking when he knew that he had no right to take them." The jury returned a verdict of guilty- on the third count and of not guilty on the other counts, and the defendant alleged exceptions. Field, J. . . . The offence of receiving stolen property, knowing it to have been stolen, must be considered as distinct from the offence of receiving embezzled property knowing it to have been embezzled, Pnb. Sts. c. 203, §§ 48, 51, although embezzlement under our statutes has been held to be a species of larceny. Commonwealth v. Pratt, 132 Mass. 246. The punishments of the two offences may be different, as the offence of receiving embezzled goods maj^ be punished bj- a fine without imprisonment. If_the_propertyJiad actuallj- been stolen, a be- lief on the part of the defendant that it had been stolen is tantamount to Knowledge. If the defendant knew all the facts and the facts consti- tuted larceny as distinguished from embezzlement, it would be no defence that the defendant thought that the facts constituted embez- zlement. If the defendant did not know the facts but believed from the circumstances that the property had been either embezzled or stolen, and it had been actuallj' stolen, it was competent for the jury to find the defendant guilty of the offence charged. The second request for Instructions was therefore rightlj- refused. The first request for instructions states the law with substantial cor- rectness. It is contended that the instructions given on this point, rightly construed, are the same in effect. We find it unnecessary to decide whether the case called for a more careful definition of larcenj' as distinguished from embezzlement or from wilful trespass. Exceptions sustained. EEGINA V. EYMES, 3 C. & K. 326 [1853]. Receiving. The indictment was in the following form: "The jurors, etc., present that Richard Rymes, of, etc., on, etc., at, etc., one cheese, of the value of thirteen shillings, of the goods and chattels 468 CASES ON CRIMINAL LAW. [CHAP. XXXVIII, of James Pollard, then lately before unlawfully, knowingly, and de- signedly obtained from the said James Pollard bj"^ false pretences, unlawfully did receive and have, be the said Richard Rymes then well knowing the said goods and chattels to have been unlawfully, know- ingh', and designedly obtained from the said James Pollard by false pretences, against the form of the statute," etc. It was proved by a person named Richard Smith that he had gone to the shop of Mr. Pollard and had obtained a cheese bj' false pre- tences ; and with respect to the prisoner's receiving the cheese, he said, " I took the cheese to Rymes, who keeps a beer house ; he asked what I wanted for it ; I said I wanted id. a pound, and he gave me 45. for it ; and I paid him back some of the money for beer." It was proved by Mr. Pollard that the cheese was worth 13s. 8c:?., and a con- stable named Wright proved that he found part of the cheese in the thatch of the prisoner's house. Carrington, for the prisoner, addressed the jury, and contended that the allegation that the prisoner knew that the cheese had been obtained by false pretences was not proved. Buying an article at an under price had been held to be a fact from which the jury might infer that the buyer knew it to be stolen, but here Smith had proved everything that had occurred, and it was quite clear that the prisoner could not have had the slightest knowledge that the cheese was obtained by false pretences, or obtained from Mr. Pollard. Vaughan Williams, J., left the case to the jury on the question, whether the prisoner knew that the cheese had been obtained by false pretences ; and directed the jurj', that if the prisoner did not know that the cheese was obtained by false pretences, thej- ought to acquit him. Verdict, not guilty. REGINA V. HARRIET and ANTHONY ADAMS, 1 F. & F. 86 [1858]. Larcent and Receiving. The woman was charged with having stolen, and the man (her husband) with having received, eleven mining tools. The evidence was that the woman had picked them up from a rubbish-heap, where they had been placed (not as rubbish), on the premises of the prosecutor, and delivered them to the man, telling him how she had obtained them, and that he had sold them as old iron. Ckowdeb, J. {to the jury) , after stating to them the law as to the duty of a finder of property, as applicable to the charge against the SECT. IX.] EBGINA V. ODDY. 469 ■woman, and leaving the case as against her with them : Before j-ou can convict the man you must be satisfied that he knew that the goods had been stolen. Itjaaay be that he did ..not know (upon the law as I liave laid it down, as to the duty. of the finder of property to take proper means to find the owners) that this was a theft.' If so, he cannot be guilty of receiving with a guilty knowledge of the goods being stolen. Both guilty; recommended to mercy; fourteen days' imprisonment. Section 9. The Question of Knowledge. EEGINA V. WHITE, 1 F. & F. 665 [1859]. Receiving. The prisoner was charged with receiving lead, the prop- erty of the Queen, he well knowing it to have been stolen. Bramwell, B. (to the jury). The knowledge charged in this indict- ment need not be such knowledge as would be acquired if the prisoner had actually seen the lead stolen ; it is suflflcient if j'ou think the cir- cumstances were such, accompanj'ing the transaction, as to make the prisoner believe that it had been stolen. Guilty. REGINA V. ODDY, 5 Cox C. C. 210 [1851]. COURT OF CRIMINAL APPEAL. [Indictment for receiving stolen goods.] At the trial it was proved that the cloth mentioned in the indictment had been stolen on the night between the 2d and 3d of March, 1851, from a mill, and was the property of the party named in that behalf in the indictment. It was further proved that the defendant was found in possession of it on the 10th of March, 1851, under circumstances which it was suggested showed an attempt to conceal the possession. It was further proved that the defendant, upon the cloth being discovered in ' That is, it is apprehended that the other prisoaer had not taken proper means to find the owner. [Reporter's note.] 470 CASES ON CKIMINAL LAW. [CHAP. XXXVIII. his possession, declared that he had obtained the cloth from a woman, who was called as a witness at the trial on the part of the prosecution, and who swore that it had not been obtained from her. The counsel for the prosecution proposed further to prove that the defendant's house had been searched within an hour after the property named in the in- dictment was found in his possession, and that upon this search two other pieces of cloth were found in the house ; and also, that on the 13th of December, 1850, the defendant had been in possession of two more pieceg of cloth, and that these four pieces of cloth had been stolen on the night between the 4th and 5th of December, 1850, from another mill, and were the property of different owners, no one of whom was connected with the owner of the cloth mentioned in the indictment. The counsel for the defendant objected to the reception of this evidence. LoRto Campbell, C. J. I am of opinion that the evidence was as little receivable under the 3d count for receiving as upon the 1st or 2d counts for stealing. It would be evidence to prove that the prisoner is a very bad man, and likely to commit such an offence ; but by the law of Eng- land one offence is not allowed to be given in evidence to prove another. How can the possession of other stolen goods show any knowledge that the particular goods mentioned in the indictment were stolen ? It can lead to no such conclusion. With regard to the admission in evidence of proof of previous utterings upon indictments for uttering forged notes, I have always thought that those decisions go a great way, and I am by no means inclined to apply them to the criminal law generally ; but certainly evidence of that description shows the prisoner skilful in dealing with forged paper, and that may lead to the inference that he knew the particular notes to be forged ; but there is no ground upon which, from evidence like this, the scienter can be inferred upon a charge of feloniously receiving stolen goods. A similar point was prop- erly decided by my brothers Alderson and Talfourd, in Sirrell's case, at Liverpool ; and I think this evidence was improperly admitted, and that the conviction must be quashed. Aldekson, B. In the cases of uttering, the act received in evidence is of the same nature as that which it is to explain ; but the evidence which is offered to prove a guilty knowledge on this occasion is quite consistent with the supposition that on the former occasions the prisoner himself stole the goods. Here the prisoner is found noFto have stolen, biit to have received, the goods. The other judges concurring. Conviction reversed. CHAP. XXXIX.] REX V. WILSON AND OTHERS. 471 CHAPTER XXXIX.1 Forcible Entry. EEX V. WILSON AND ELEVEN OTHERS, 8 D. & E. 357 [1799]. This was an indictment for a forcible entry and detainer at commoa law. The first count stated that the defendants on, ^tc, in the parish of St. Peter, in the county of the borough of Carmarthen, with force and arms, unlawfully and injuriously, and with a strong hand, entered into a certain mill, and certain lands and houses, and the sites of a certain mill and certain houses, with the appurtenances, being in the possession of M. Lewis, and him the said M. Lewis from the pos- session of the said premises unlawfully and injuriously, and with a strong hand, expelled and put out, and unlawfully and injuriously kept him out, and still keep him out, against the peace, etc. The third count was to the same eflect, only varying in the description of the premises. The second and fourth counts were the same as the first and third respectivelj', only omitting the words " with a strong hand." To all these counts there was a general demurrer, and joinder is ^emurrer. [Opinions by Lord KENroN, C. J., Geose, J., Lawkence, J., and Le Blanc, J.] Judgment for the Grown on the first and third counts. On a subsequent day in the term, Lord Kenton, C. J., said : We wish that the grounds of our opinion may be understood. We do not in the least doubt the propriety of the decision in this case the other day, but we desire that it may not be considered as a precedent in other cases to which it does not apply. Perhaps some doubt may hereafter arise respecting what Mr. Serjeant Hawkins says, that at common law the part^"^ may enter with force into that to which he "has aTegaTtitle. But without giving any opinion concerning that dictum one Way or the other, but leaving it to be proved or disproved whenever that question shall arise, all that we ' [See as to this offence at commoa law, 1 Hawkins, P. C. 495 : Of Forcible En- tries and Detainers.] 472 CASES ON CHIMIN Ali LAW. [CHAP. XXXIX. wish to say is that our opinion in this case leaves that question un- touched, it appearing by this indictment that the defendants unlawfully entered, and therefore the Court cannot intend that they had any title.* HARDING'S CASE," 1 Greenleaf, 22 [1820]. The defendant was indicted for that he " with force and arms, to wit, with an axe and auger, unlawfully, violentlj^, forcibly, injuriously, and with a strong hand did enter into the dwelling-house of Joseph Gate in said Portland, and in his actual and exclusive possession and occupation with his family ; and the said Harding did then and there unlawfully, violently, forcibly, injuriously, and with a strong hand bore into said dwelling-house with said auger, and cut away a part of said house, and stove in the doors and windows thereof with said axe, said Joseph's wife and children being in said house, thereby putting them in fear of their lives," etc. Preble, J. ... The indictment is at common law. If the facts charged, therefore, do not constitute an indictable offence at common law, no sentence can be pronounced upon the defendant. The earlier authorities do sanction the doctrine that at common law, if a man had a right of entry in him, he was permitted to enter with force and arms where such force was necessary to regain his pos- session. (Hawk. P. C. c. 64, and the authorities there cited.) To remedy the evils arising from this supposed defect in the common law, it was provided by Stat. 5, Rich. II. c. 7, that " none should make any entry into any lands or tenements, but in cases where entry is given by the law ; and in such cases, not with strong hand, nor with multitude of people, but only in a peaceable and easy manner." The anthorities are numerous to show that for a trespass — a mere ciyil injury, unaccompanied with actual force or violence, though alleged to have been committed with force and arms — an indictment will not lie. But in Rex v. Bathurst, Sayers' Report, 226, the Court held that for- cible entry into a man's dwelling-house was an indictable offence at common law, though the force was alleged only in the formal words, vi et armis. In Rex v. Bake, 3 Burr. 1731, it was held that for a forcible entry an indictment will lie at common law ; but actual force 1 [See Rex p. Bathurst, Snyer's Report, 225 (1755).] 2 [See Commonwealth v. Shattuck, 4 Gush. 141 (1849).] CHAP. XXXIX.] BEX V. BAKE AND OTHERS. 473 must appear on the face of the indictment, and is not to be implied from the allegation that the act was done vi et armis. In the King v. Wilson, 8 D. & E. 357, an indictment at common law charging the defendant with having unlawfull3- and with a strong hand entered the prosecutor's mill and expelled him from the possession, was held good. In this latter case. Lord Kenyon remarks, " God forbid these facts, if proved, should not be an indictable offence ; the peace of the whole country would be endangered if it were not so." The case at bar is a much stronger one than either of those cited. Xhe peace of the State w ould indeed be jeopardized if any lawless individual, d estitute o f gropertj', might, without being liable to be indicted and punished, unlawfully, violentlj^, and with a strong hand, armed with an axe and auger, forciblj* enter a man's dwelling-house, then in his actual,, exclusive possession and occupancy with his wife and children, stave in the doors and windows, cutting and destroying, and putting the women and children in fear of their lives. REX V. BAKE and OTHERS, /"£ 3 BuER. 1731. n,t /'■'■ Mr. Dunking showed cause why an indictment should not be quashed. He called it an indictment for a forcible entry, and argued " that an indictment for a forcible entr}- maj' be maintained at common law." He cited a case in Trin. 1753, 26, 27 Geo. II. B. R. Rex v. Brown and Others ; and Rex v. Bathurst, Tr. 1755, 28 Geo. II. S. P. But, N. B. This indictment at present in question was only for (vi et armis) breaking and entering a close (not a dwelling-house) and un- lawfully and unjustly expelling the prosecutors, and keeping them out of possession. Mr. Justice Wilmot. No doubt an indictment will lie at common law for a forcible entry, though they are generally brought on the Acts of Parliament. On the Acts of Parliament, it is necessary to state the nature of the estate, because there must be restitution ; but they may be brought at common law. Here the words " force and arms" are not applied to the whole ; but if they were applied to the whole, yet it ought to be such an actual force as implies a breach of the peace, and makes an indictable offence. 474 CASES ON CKIMINAL LAW. [CHAP. XL. And this I take to be the rule, " That it ought to appear upon the face of the indictment to be an indictable offence." Here indeed are sixteen defendants. But the number of the defend- ants makes no difference in itself; no riot, or unlawful assembly, or anything of that kind is charged. It ought to amount to an actual breach of the peace indictable, in order to support an indictment ; for otherwise it is only a matter of civil complaint. And this ought to appear upon the face of the indictment. Mk. Justice Yates concurred. Here is no force or violence shown upon the face of the indictment, to make it appear to be an actual force indictable, nor is any riot charged, or any unlawful assembly. There- fore the mere number makes no difference. Me. Justice Aston concurred. The true rule is, " That it ought to appear upon the face of the indictment to be an indictable offence." ^ CHAPTER XL. Burglary and Other Breakings.^ Section 1. The Building. PEOPLE V. RICHARDS, 108 N. Y. 137 [1888]. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1887, which affirmed a judgment of the Court of Oyer and Terminer 1 " Hamsocna " quod domus invasioneni Latine eonat fit pluribus modis. Ham- socna est si quis alium in sua vel alterius domo cum haraido •■ assailiaverit vcl per- sequatur, ut portam vel domum sagittet vel lapidet vel colpum [? culpam] ostensibi- lem undecunque facial. Hamsocna est vel hame fare si quis premeditate ad domum » Hen. I, Ixxx. 10; Thorpe, i. 687. — [Stephen's nnte.J •• Haraidum — keri [hereV] reila. The Bavarian laws took a distinction between Aere reita and heimzuclit. For here reita there must be at least forty-two armed men. If there were less it was keimzucht (Thorpe's Glossary). In Ina's laws (13 Thorpe's, 48) it is. said, " Thieves we call as far as 7 men; from vii. to xxxv. a hluih ; after that it i? a Acre." — [Stephen's note.] SECT. I.J PEOPLE V. EICHAEDS. 475 of Broome County, entered upon a verdict, convicting the defendant of the crime of burglary in the third degree. (Reported below, 44 Hun, 278). The material facts are stated in the opinion. Peckham, J. The defendant was chai'ged in the indictment with having committed the crime of burglary in the third degree in that on the 28d day of October, 1884, with force and arms in the night time, at the city of Binghamton, he broke and entered the granite and stone building, erection, and inclosure, known as the Phelps vault, the same being a building, erection, and inclosure for the interment of the dead, and being the property of, etc. Upon the trial the People proved that this vault was made of granite at a cost of $5,000. It was built entirely above ground on a stone foundation, and the structure was ten feet four inches wide, sixteen feet four inches long, ten feet six inches high, and covered with a granite roof. The entrance was by a granite door protected by a bronze gate. The interior of the vault immediatelj- inside of the interior granite door has a compartment about six feet in depth and eight feet across, and is unoccupied. At the rear of this compartment there is a partition across the width of the vault, and behind that partition the bodies are inclosed. There are twelve compartments, or graves, as the3' are described b3' one of the witnesses, and seven of these graves were occupied at the time of the commission of the alleged burglary by the defendant. In front of each grave was a marble slab bearing the name and date of death and the age of the occupant. Other evidence was given in the case con- necting the defendant with the commission of the act of breaking into this structure and examining the dead body of Robert S. Phelps, which was therein contained. His purpose in doing so it is not material to inquire in regard to, under the view which we take of the statute as to burglarj'. At the close of the case for the People, defendant's counsel asked the Court to direct or advise the jury to find a verdict of not guiltj' in behalf of the defendant Richards upon the grounds, — First. That the acts proven in this case are not within the provi- sions of the Penal Code. eat ubl suum hostem esse siet, et ibi eum invadat in die vel nocte hoc faciat ; et qui aliquem in molinum vel ovile fugientem prosequitur harasocna adjudicatur. Si in curia vel dome seditione orta bellum eciam subsequatur et quivis alium fugien- tem in aliam domum infuget, si ibi duo tecta sint liamsocna reputatur. Infiht vel insocna est quod ab ipsis qui in domo sunt contubernales agitur." [Cited in Steplien, History Criminal Law of England, vol. 1, p. 56. Upon this Stephen remarks; " Hamsocna was no doubt the earlier form of burglary." — Ed.] 476 CASES ON CRIMINAL LAW. [CHAP. XL, Second. Upon the ground that the vault or grave is not a building within the meaning of the statute which is capable of being burglarized. Third. That the proof in the case wholly failed to sustain the offence charged in the indictment. The Court denied the motion and held that it was a case for the jurj-. We think the Court erred in that decision. "We do not believe that the structure described in the indictment and the proof is within the statute describing the crime of burglary in the third or an^' degree. As was stated by Andrews, J., in People v. Rogers (86 N. Y. 360), " buiglai'yjiLcommonJawi§_an offence against the habitation of men." It may also be stated that the crime of burglary, even at common law, extends to the felonious breaking and entering a church. 3 Inst. 64 ; 1 Hale's Pleas of the Crown, 556 ; 1 Hawks. Pleas of the Crown, c. 38, § 17 ; 2 Russell on Crimes, 1 ; Regina v. Baker, 3 Cox C. C. 581 ; 2 Wharton's Cr. Law, § 1556. Lord Coke was of the opinion that the crime could be committed in regard to a church because, as he said, it was the mansion-house of the Omnipotent God. Lord Hale said that was only Lord Coke's quaint way of putting it, and that burglary at common law could be committed by breaking and entering, not only a mansion-house, but a church, as a church, and without speaking of it as the mansion-house of God. It will be seen upon examination that there were two exceptions at common law to the general rule that burglary consisted in breaking into a mansion-house, the word "mansion" being synonymous in that respect with "dwelling-house." Those two exceptions were, first, in regard to a church, and second, in regard to breaking through the walls or gates of a town. It was, however, primarily an offence committed against a man's house, his dwelling, and in the night time. The Revised Laws of, the State defined burglary without dividing it into degrees. By the Revised Statutes burglary in the third degree was made to consist of breaking and entering with intent to steal or to com- mit any felony. The exact terms of the statute are as follows: " Everj' person who shall be convicted of bi-eaking and entering in the day or in the night time, (1) Any building within the curtilage of a dwelling-house but not forming a part thereof; (2) Any shop, store, booth, tent, warehouse or other building in which any goods, merchandise, or valuable thing shall be kept for use, sale, or deposit, with intent to steal therein or to commit atij' felonj^ shall upon con- viction be adjudged guilty of burglary in the third degree." (2 R. S., 669, § 17.) From the time of the passage of the Revised Statutes up to 1863, the crime stood as therein defined. By chapter 244 of the Laws of 1863, the above section was amended by inserting in the second subdivision, after the words " or other building," the words, "or any SECT. I.] PEOPLE V. EICHAKDS. 4*77 railroad car, shop, vessel or canal boat." We think it plain that all the words used in the Revised Statutes or in the Statute of 1863, in defining burglary in the third degree, referred to structures erected or built for the purpose of an swering th e nfi^eaaitiaajoOxing men in their intercourse with each other of a trading or commercial nature, where their property might be deposited and used or while awaiting sale or transportation. Hence the Revised Statutes in describing the crime of burglary in the third degree, or the Act of 1863 above mentioned, did not cover such a case as is presented by this indictment and proof; and if this were all there was in the case we think there would scarcely be room for argument on this subject. Great weight, however, is laid by the learned counsel for the People on the language used in the Penal Code. That statute in defining burglary in the third degree enacts as follows (§ 498) : " A person who either, (1) With intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building ; or, (2) Being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree." Section 504 saj^s : " The term ' building,' as used in this chapter, includes a railway car, vessel, booth, tent, shop, or other erection or inclosure." There is contained in the section of the Code one alteration in the definition of the crime, as it is made burglary to break and enter a building with intent to commit a crime, instead of, as in the old statute, with an intent to commit a larceny or felony. As section 504 does not saj' that the term " building " shall only include such structures as are therein named, it is argued that anything which can possibly be regarded as a building under the broadest and most liberal signification of that term, is included therein, or at least, is included in the expres- sion added at the end of the section, " or other erection or inclosure." If this be sound, a most sweeping enlargement of the generally ac- cepted idea of the nature of the crime of burglary is accomplished in a statu te w jlichjias been regarded _m_Qre_ iatbe light„ of, a jaodiflcation of the body of the criminal law than as materially altering and enlarging its scope and nature. We do not believe in this instance that any such result was contemplated by the legislature. Leaving section 504 for a moment out of view, the crime of burglary is defined as a breaking into a building with inteni!, etc., and the question arises as to the mean- ing of the word " building." Finding it used in a statute defining burglarj', two courses suggest themselves: (1) to regard the term as limited to those structures which the common law as amended and enlarged by our statutes relative to the crime made capable of being broken and entered burglariously ; or, (2) to take the widest significa- 478 CASES ON CRIMINAL tAMV. [CHAP. XL. tion which has ever been given to the term " building," and hold that every structure within such meaning is within the statute, provided it could be physically broken and entered. We are persuaded that the first course is the true one. We are unable to believe that the legisla- ture meant to accomplish so radical a change in the nature of this crime by the use of language, which by its context is capable of a much more restricted meaning, and one which is fullj- in accord with the nature of the crime as known to the common law and to our stat- utes down to the adoption of the Penal Code. The slight alteration made by the Code as to the intent which is to accompanj' the breaking and entering, from an inteiit to steal or to commit any felony to an intent to commit any crime, does not militate, as we think, against this reasoning, for that alteration is of comparatively sligbt importance and does not really change the nature of the crime. In the absence of other and controlling reasons we are disposed to limit the term " build- ing " to those structures included in the common law and statutory definitions of the crime. Vvefind at cornmonlaw that burglary, so far aiThe cEafacter of the building was concerned, was committed by an unlawful breaking and entering of a dwelling-house. Our early statutes made the breaking and entering of such a structure in the night time with intent to commit some crime therein, when there was a human being within, burglary in the first degree, and when the entry was made in the daj- time, burglarj' in the second degree. Subsequently burglary in the third degree was made to consist in breaking any building within the curtilage of a dwelling-house but not forming a part thereof, or in breaking and entering " any shop, store, booth," etc., as already cited. It is thus seen that up to the time of the adoption of the Penal Code, the structures in regard to whicli burglary could be committed had been quite clearly defined, and the term "building" as used in connection with the crime of burglary had a definite and well understood meaning. To attach the same meaning to it in a statute upon the same subject, passed under the circumstances in which this Penal Code was passed, and where there is no such wide departure from the language used in the Revised Statutes or Act of 1863 as to indicate a different and enlarged sense as to the meaning of the word, seems to us to be the natural and the true course to adopt. There would be no propriety in taking the most enlarged meaning anywhere given to the word and accepting it as the true sense in which it was used in this statute defining burglary in the third degree. Now what effect upon this reasoning does a reference to section 504 have? That section simply says that the term " building" includes a " railroad car, vessel, booth, tent, shop," etc., and leaves out the words "in which any goods, merchandise, or valuable thing shall be SECT. I.] PEOPLE V. KICHAKDS. 479 kept for use, sale, or deposit." This omission we do not regard as very material, or as enlarging in anj' way the definition of the crime, for the specific words used imply substantially the same meaning, which is to be gathered from the use of the words which are omitted, and which is probably the cause of their omission. The meaning of the term " building," other than as including therein the structures specifically mentioned in the statute is still left, as we think, to be gathered pre- cisely' in the same way as it would have been if section 504 had not been passed. We think that the term as used in these two sections of the Penal Code under discussion does not enlarge the character of the crime of burglary to such an extent as to include the structure described in this indictment and in the proof given under it. Careful and painstaking research has been exhibited in the very full briefs furnished us bj- counsel for the People ; but thej- have succeeded in finding no case which would include a structure such as this within the term " building " in connection with any statute similar to ours in regard to burglar}'. We are quite sure none such can be found. Very many cases are cited by counsel on both sides as to what is included in the term " building " when used in various statutes relating to various subjects. Such, for example, as the fire law in cities ; the P^nglish Reform Act of 1832 (§ 27) as to what sort of a building was within the section of that Act as qnalifj'ing the owner or the tenant to vote ; also the English Act in relation to arson, as to what was a building and when it was suflSciently completed to be within the statute ; also the statute in relation to mechanic's liens, as to what was a building upop which a lien could be placed. We do not think that any good can be gained by a separate consideration of each one of those cases. We have looked at them all, and the most that can be said is that each court defines the word with relation to the subject-matter of the statute which was under considera- tion, and the best that can be said has been said by many of the judges in those eases, which is, thatjtjs jmpossible to^v&_aL,gene ral, absol ute, and far reaching definition or meaningJOLlhat -Word which_shaJLcover all possible casesT They say they can but define the language with reference to the facts in each ease and the special subject under con- sideration, and as determining whether in the particular case in hand the structure in question does or does not come within the purview of the statute. That is all that we can do here. Taking the law in regard to burglary from the earliest period of the common law where that crime is referred to down to the present time, we feel quite con- fident that not one case can be found where breaking and entering such a structure as the one in question has been held to come within that crime. We simply intend to decide this ease and no other; and when 480 CASES ON CRIMINAL LAW. [CHAP. XL. we come to examine the indictment, and the proof giving a description of the structure, we come to the belief that it is really nothing more than a grave above ground. The witness speaks of these various com- partments as graves. They are intended solely for the interment of dead bodies, and the structure itself can be put to no other possible use without altering its nature and purpose. The small room, as it is termed, in the front portion of the structure between the outside wall and the place for the deposit of the coffins, is used for nothing. No services of a religious nature could be carried on there, and lan^ua^e could not be tortured into calling that place a church, or a^ place fo r religious worship. If instead of being placed above ground this struct- ure had been placed in a foundation deep enough to receive it, and then used for the purpose of burying the dead, and that onl}', could there be any question that it was not the subject of burglary, even although sufficient of the structure were above ground to enable one to reach it through a door and steps ? We think not ; and we do not think it becomes a building within the statute in regard to burglary any more because it is placed above the ground wh en its sole purp ose is that it shall be used as furnishing graves for the burial of the dead. "" ' It is claimed, however, if this structure is not included in the term " building " as used in this statute, that the words added at the end of section ,504 and already alluded to, namely, " or other erection or enclos- ure," would include it. They undoubtedly would if the widest meaning of those words is to be taken as within the meaning of the legislature, and if whatever could under other circumstances and for other pur- poses be called an erection or inclosure is to be regarded as the subject of burglary. We do not attach anj- such meaning to those words when used in this connection, and we think it quite plain that the legislature never intended any such meaning. A farm lot or a vacant city lot might be inclosed with a fence and inside that fence there would be an inclosure ; can it be supposed possible that the legislature intended that burglary might be committed by breaking and entering such an inclosure? In one sense, and in the widest, anything that is inclosed is an inclosure, and the thing which inclosed it would be the thing the breaking of which and entering the inclosure would be burglary. A bronze statue in a public square is an erection, and if it be of colossal size may be broken and entered. Can any one suppose that burglarj- could be predicated of such an act? These are extreme cases, but they are nevertheless within the possible meaning of those terms, when such meaning is not to be arrived at and limited bj- an examination of the context. SECT. I.] PEOPLE V. EICHAEDS. 481 It is plain that some limitation must be made to the meaning of those words other than their possible capacity when standing alone. Now there are certain rules and canons of construction in such cases as this which seem to us to serve as a perfect guide to the meaning of the language used in this statute. The rule which usually obtains in cases of this kind is that where general words follow specific words designating certain special tteigsTthegeneral words are to be limited to cases of thT s"am-e^"general nature as those which are specified. The rule is familiar and needs not the citation of many authorities. Applying a rule which is so well established both in England and in this country to the case in hand, we think that the phrase " other erection or inclosure " is to be interpreted as including things of a similar nature to those already described by the specific words found in the statute. If this be so, then under the' phrase in question the erection or inclosure included in burglary in the third degree was to be i of that character which mankind used for the purpose of sheltering 1 property, or for the purpose of transporting the same, or the purpose j of trade or commercial intercourse. In arriving at this conclusion it is not necessary that we should also show that the act committed by the defendant subjected him to punish- ment as a crime of some kind. We think it was the plain intent of the law-making power to keep the distinction clear between crimes against / the living and against the property of the living and crimes against! public decency, in the way of desecrating the graves of the dead or' the structures whose only purpose is to be a place for the permanent interment of the dead. Ofiences of this general nature are not pro- vided for by the Penal Code, and whether the particular act of this defendant, as proved in this record, constitutes a crime, it is not neces- sary for us now to determine. The law should not be stretched out of its fair and natural meaning for the purpose of including within the statute of burglarj-^ a case like this. If the legislature think proper, let the law be amended so as to include in plain terms such a case as this record discloses. The argu- ment that the offence of burglary has been constantly enlarged from what it was at common law, and that the intention to enlarge it so as to include a case like this should be easily imputed to the legislature, we think is not sound. WhsnevexJJia. offeMeh^as^ been enlarged in this State by the legislature it has been, by plain language, susceptible of'no'"misunderstanding. We do not think any intent to' enlarge the oflTence to the extent necessary to make the prisoner's act burglary can be founded upon the language used in the Penal Code. These views lead to a reversal of the judgment pf conviction, and as 31 482 CASES ON CEIMINAL LAW. [CHAP. XL. the defendant cannot be convicted of any crime under this indictment he should be discharged. All concur. Judgment accordingly. Section 2. The Intent.^ COMMONWEALTH v. NEWELL, 7 Mass. 245 [1810]. The prisoners were indicted for feloniously and burglariously break- ing and entering the dwelling-house of Edward Dixon, of Boston, in the night of the 17th of August last, with the intent unlawfully and feloniously to assault the said Dixon, and to cut off one of his ears, with an intention the said Dixon to maim and disfigure ; and after being so entered, for unlawfully and feloniously, assaulting the said Dixon, and cutting off his right ear, with intention him to maim and disfigure, with set purpose, and of their aforethought malice, against the peace and the form of the statutes in such case provided. The prisoners demurred to the indictment. Parsons, C. J. The objection to the indictment is that the facts therein found do not amount to felony. The breaking and entering of a dwelling-house in the night is not burglary, unless it be done with an intent to commit a felony. This position the attorney-general has not contested. The question for our decision then is, whether the \cutting off the ear of Dixon, of set purpose and of maUce aforethought. With the intention to maim and disfigure him, is by our laws a felony ; for if it be not a felony, an intention to do it cannot be an 'intention to commit felony. That the cutting off an ear, maliciously and of set purpose, with the intention to maim and disfigure is not a mayhem by the common law, is not denied ; but the attorn ej'-general has insisted that the Statute of 1804, c. 123, has made the cutting off the ear, with the disposition and intention aforesaid, a mayhem ; that mayhem at common law is felony ; and that, as a necessary conclusion, the cutting off the ear, maliciously and with the intention to maim and disfigure, is by force of the statute a felony. 1 [As to breaking and entering at common law with wrongful but not felonious intent, see chapter, Forcible Entry.] SECT. II.] COMMONWEALTH V. NEWELL. 483 By the ancient common law, mayhem was an injury of a particular nature, constituting a specific offence, the commission of which could be regularly averred by no circumlocution, without the aid of the bar- barous verb mahemiare. It consisted in violently and unlawfully depriving another of the use of a member proper for his defence in fighting, and was puTriisEed by a forfeiture of member for member, in consequence of which forfeiture it was deemed a felonj'. If the sufferer sought this"satisf&ction, or rather revenge, his remedy was by an appeal of mayhem ; and the sovereign punished this injury done to his subject bj: an indictment for a mayhem ; and in both the appeal and indictment the offence must be alleged to have been committed feloniously. A punishment of this description could have existed only in a rude state of civil society ; and as civilization advanced, the punishment was disused, and the offender made satisfaction bj' paying pecuniary damages and was punished by his sovereign by fine and imprisonment, in the same manner as in cases of trespass. So long ago was this punishment disused that Staundford, remarking on the statute of 5 H. IV. 0. 5, which made the putting out of an eye felony, observes that before that statute it was not felony. He however subjoins a qucere, and refers to Bracton. This was the state of the common law long before and at the time when our ancestors emigrated to this country, bringing with them but a very small part of the common law, defining crimes and their punish- ment. Mayhem was therefore never deemed bj- them a felony^ but only an aggravated' trespass at common law ; and as such, the offender was answerable to the partylnjured in a civil action of trespass, and to the government upon an indictment for a misdemeanor ; and no statute- provision, during the existence of the colonial and provisional charters, recognizes mayhem as a distinct offence from trespass, or as constitu- ting a specific felony. We are therefore obliged to consider mayhem as no felony by the common law adopted in this State. The attorney-general has argued that if the indictment is not a suffi- cient description of a felony, yet it may be supported as an indictment for a misdemeanor. There are one or two ancient cases in favor of this position, as Holmes's case,^ and Martin Lesser's case, in the time of Henry IV"., which is reported in Cro. Jac. 497. But in a later case of Rex v. "West- beer,^ the old cases were considered and overruled. The Court, when the prisoner was discharged, observed that in the cases cited for the king, the judges appeared to be transported with zeal too far. 1 Cro. Car. 376. ^ 2 Str. 1133. 484 CASES ON CRIMINAL LAW. [CHAP. XLI. Thus stands this question at common law. But our Statute of 1805, c. 88, in authorizing a conviction of part of an indictment for felony, restrains the conviction to eases where the part, of which the prisoner is found guilty, constitutes of itself a felony. This provision seems to be a statute-construction of the point, which leaves no doubt remaining. Per Curiam. Let judgment be entered that the indictment is bad, and let the prisoners be discharged. REX V. KNIGHT, above, p. 111. REGINA V. POWELL, above, p. 244. CHAPTER XLI. Arson and Other Burnings. Section 1. Indictable Common Law Burning, below the Grade OF Arson. REX V. PROBERT, 2 East P. C. 1030. REX V. ISAAC, 2 East P. C. 1031. Section 2. Arson and Statutory Burnings REX V. ELIZABETH MARCH, 1 Moo. C. C. 182 [1828]. The prisoner was tried before Alexander, C. B., at the Spring assizes for the county of Northampton, in the year 1828, on an indictment which described her as Elizabeth, the wife of John March, and charged her with unlawfully, maliciously, and feloniously setting fire to a cer- tain house of the said John March, with intent to injure him, against the form of the statute. It appeared from the evidence that March the prosecutor, and the prisoner his wife, had lived separate for about two years, she going by her maiden name. It was proved that previous to the act, when she SECT. II.] BEX V. MARCH. 485 applied for the candle with which it was done, she said it was to set her husband's house on fire, because she wanted to burn him to death. Upon another and earlier occasion she used threats of burning him and his house to a cinder. Having borrowed a candle and lantern she went to her husband's thatched house at night, and stuck the candle burning into the thatch. She was observed by a neighbor, and an alarm was given, upon which she ran away : the husband came out and pulled from the roof the burning candle and the straw immediately communicating with it, and so prevented any conflagration. The straw pulled out was proved to have been black and singed. The jury found her guilty. The learned Chief Baron wished to have the opinion of the Judges, whether it is an offence within the 7 & 8 Geo. IV., c. 30, § 2,* for a wife to set Are to her husband's house for the purpose of doing him a per- sonal injury. If not, the conviction appeared to the learned Chief Barou to be erroneous. In Eex v. Ann Gould, 1 Leach, 217, it was held that a woman could not be capitally convicted for stealing the goods of a stranger to the value of 40s. in the dwelling-house of her husband. This case was considered at a meeting of the Judges in Easter term, 1828 (present Lord Tenterden, C. J., Best, C. J., Alexander, C. B., Bayley, Littledale, Gaselee, JJ., and Vaughan, B.), and the conviction, was held wrong ; the learned Judges thinking that to constitute the offence, it was essential that there should be an intent to injure or de- fraud some third person, not one identified with herself. 1 [7 & 8 Geo. IV., c. 30, § 2.] And be it enacted, That if any person shall unlaw, fully and maliciously set fire to any church or chapel, or to any chapel for the re- ligious worship of persons dissenting from the United Church of England and Ireland, duly registered or recorded, or shall unlawfully and maliciously set fire to any fiouse, stable, coach-house, outhouse, warehouse, ofiBce, shop, mill, malt-house, hop oast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the ofEender, or in the possession of any other person, with intent thereby to injure or defraud any person, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon. 486 CASES ON CEIMINAL LAW. [CHAP. XLII, CHAPTER XLII. Section 1. What is a WRvrmQ^.-j-, ^ iv^i^- '^ ,V "i i ■ ■ TP-i "■ "'■"'V" Qj-( ''"-" L.)^-^\ 0^^ : REGINA «. CLOSS, '• ^ '"^ ' 7 Cox C. C. 494 [1857]. nl ' [Indictment in three counts, of which the third was as follows] : And the jurors aforesaid upon their oath aforesaid do further present, that before the time of the commission of the offence in this count here- inafter stated and charged, one J. Linnell of Redhill, in the county of Surrey, an artist m painting of great celebrity, and well known as such to the liege subjects of our Lady the Queen, had painted a certain large and valuable picture, Whereon he had painted his name to denote that the said picture had been painted by the said J. Linnell ; and the jurors aforesaid upon their oath aforesaid do further present, that the said T. Closs being a dealer in pictures, and being a person of fraudulent mind and disposition, and devising, contriving, and intending to cheat and defraud on the 24th day of July, in the year of our Lord, 1857, and within the jurisdiction aforesaid, unlawfully, wilfully, and wickedly did procure and have in his possession for the purposes of sale a certain painted copy of the said picture, on which said painted copy_of_the^aid gieture^was tlien and there unlawfully jjaintecTand^forged the name of the said J. Linnell. And the jurors aforesaid upon their oath aforesaid do further present, that the said T. Closs, well knowing the name of the said J. Linnell so painted upon the said copy to be forged, did then and there, and within the jurisdiction aforesaid unlawfullj', deceitfully, wick- edly, and fraudulently offer, sell, dispose of, utter, and put off to the said H. Fitzpatrick the said painted copy of the said original painted picture with the name of the said J. Linnell so painted and forged thereon as aforesaid, and the said forged name of the said J. Linnell for a certain large sum of money, to wit, the sum of £130, to the great damage and deception of the said H. Fitzpatrick, to the evil example of all others in |he like case offending, and against the peace of our Lady the Queen, her crown and dignity. It was objected by the prisoner's counsel in arrest of judgment that this count disclosed no indictable offence. . . . SECT. I.] EEGINA V. CLOSS. 487 Wlntyre for the prisoner. ... As to the third cdunt. The crime of forgery is defined in Euss. 318, to be " the fraudulent making or altering a writing to the prejudice of another man's right," and it clearly does not include this case. Forgery must be of the whole or of some material part of a written instrument. What was done here was no more than saying that the picture was painted by Linnell. But there cannot be a forgery of a picture. It may be imitated, but it cannot be forged. The name of "Linnell" is no more than a tree or a house painted upon it. It is part of the whole thing imitated, but it is not a forgery. Suppose a man were to put the name of Joseph Mantou upon a gun, and pass it off as made by that maker, surely that would not be a forgery of the gun, although it might be a false pretence knowingly to obtain money by so representing it. The name of a painter on a picture is no more than a trademark on goods, and it has never yet been held that copying trademarks is for- gery. The only subject of forgery here would be the signature, but there is. no averment that there was any uttering of the forged signature as distinct from the picture, even if that would be an offence. Suppose in the case of the gun that it was really made by Manton, but that his name was put on it by some other person, could the instrument be said to be forged, when in truth it was genuine, and nothing about it was spurious except the trademark ? Metcalfe for the prosecution. . . . The third count is a good count for forgery. It shows that the signature of Linnell was a forgery, and that the prisoner knowingly put off the picture with the signa- ture upon it. It is distinctly averred, therefore, that the prisoner uttered the signature if he uttered the picture with the signature at- tached. Suppose he had uttered a separate document, purporting to be a certificate of Linnell, signed by him, that the picture was of his painting, that would surely be a forgery, and the fact that such certificate is on the painting itself will not make it less a forgery ; R. V. Toshack, 1 Dears. C. C. 285 ; 23 L. J. 51, M. C. ; E. v. Sharman, 6 Cox C. C. 312. CocKBUEN, C. J. If you once go beyond a writing where are you to stop? Could there be a forgery of sculpture? There is here no allega- tion of a distinct uttering of the signature. Metcalfe. There is a sufficient averment to sustain the indictment after verdict. Williams, J. It is quite consistent with the facts here that the de- fendant sold the picture without calling attention to the signature. Cur. adv. vult. 488 CASES ON CRIMINAL LAW. [CHAP. XLII. JDDGMENT. CocKBURN, C. J., now delivered judgment as follows: The prisoner was indicted on a charge of having sold to one Fitzpatrick a picture as and for an original picture painted hy Linnell, when in truth it was only a copy, and that he had passed it off by means of having the name "J. Linnell " painted in the corner of the picture in imitation of the original, which bore such signature. There were three counts in the indictment. The first was for obtaining money by false pretences, on which the pris- oner was acquitted. The second was for a cheat at common law ; and the third for a cheat by means of forgery at common law. As to the third count, we are all of opinion that that was no forgery. A forgery must be of some document or writing ; but the name of Linnell in this case can only be regarded as an arbitrary mark put upon the picture by the painter to enable him to recognize his own work. EEGINA V. SMITH. 8 Cox C. C. 32 ; Dears and B., 566 [1858]. Case reserved and stated by the recorder of London : — John Smith was tried before me at the Central Criminal Court, upon an indictment charging him with forging certain documents, and with uttering them, knowing them to be forged. It appeared that the prosecutor, George Berwick, was in the habit of selling certain powders, some called Berwick's baking powders, and others Borwiek's egg powders. These powders were invariably sold in packets, and were wrapped up in printed papers. The baking powders were wrapped in papers which contained the name of George Berwick, but they were so wrapped that the name was not visible till the packets were opened. It was proved that the prisoner had endeavored to sell baking pow- ders, but had them returned to him because they were not Berwick's powders. Subsequently he went to a printer, and representing his name to be Berwick, desired him to print ten thousand labels as nearly as possible like those used by Berwick, except that the name of Berwick was to be omitted in the baking powders. The labels were printed according to his order, and a considerable quantity of the prisoner's powders were subsequently sold by him as Berwick's powders wrapped in these labels. SECT. I.] EEGINA V. SMITH. 489 On the part of the prisoner it was objected that the making or utter- ing such documents did not constitute the offence charged in the indictment. This point I determined to reserve for the consideration of the Court of Criminal Appeal, and I left it to the jury to find whether the labels so far resembled those used by Borwick as to deceive persons of ordi- nary observation, and to make them believe them to be Borwick's labels ; and whether they were made and uttered by him with intent to defraud the different parties by so deceiving them ; directing them in that case to find the prisoner guilty. The jury found him guilty. 'The labels marked " genuine" sent herewith were those used by the prosecutor; those marked "imitations" were the labels the subjects of this prosecution, and reference can be made to them if necessary. The prisoner has been admitted to bail to await the decision of the Court for the consideration of Crown Cases upon the foregoing facts. The following is a copy of the genuine baking powder label : — Patronized by the admiralty I Borwick's original German baking POWDER, for making BREAD WITHOUT YEAST, AND PUDDINGS WITHOUT EGGS. (Directions improved by the Queen's private baker.) By the use of this preparation, as the saccharine properties of the flour, which are destroyed by fermentation with yeast, are preserved, the bread is not only more nutritive, but a larger quantity is obtained from the same weight of flour. Bread made with yeast, if eaten before it becomes stale, ferments again in the stomach — producing indigestion and numerous other complaints : when made with this powder it is free from all such injurious effects. The powder is equally valuable in making puddings and pastry, which it deprives of aU their indigestible properties ; and if dripping or lard be used instead of butter, it removes all unpleasant taste. It will keep any length of time and in any climate. In the sick hospital of the Crimea it was found invaluable. The public are requested to see that each wrapper is signed George Ber- wick, without which none is genuine. Sold retail by most chemists in Id., 2d., 4d., and M. packets, and in Is., 2s. M, and 5s. tins. Wholesale by George Ber- wick, 24 and 25 London Wall, London. Directions on the other side. The following is a copy of the imitation label used by the prisoner : Patronized by the army and navy! Borwick's original German BAKING powder, FOR MAKING BREAD WITHOUT YEAST, AND PUDDINGS without EGGS. (Directions improved by the Queen's private baker.) By the use of this preparation, as the saccharine properties of the flour, which are destroyed by fermentation with yeast, are preserved, the bread is 490 CASES ON CBIMIKAL LAW. [CHAP. XLII. not only more nutritive, but a larger quantity is obtained from the same weight of flour. Bread made with yeast, if eaten before it becomes stale, ferments again in the stomach — producing indigestion and numerous other complaints ; when made with this powder, it is free from all such injurious effects. This powder is equally valuable in making puddings and pastry, which it deprives of all their indigestible properties ; and if dripping or lard be used instead of butter, it removes all unpleasant taste. It will keep any length of time and in any climate. In the sick hospital of the Crimea it was found invaluable. Sold retail by most chemists in Id., 2d., id., and 6rf. packets, and in Is., 2s. Sd. , and 5s tins. Directions on the Other side. The directions indorsed on the backs of the two labels were totidem verbis. The following is a copy of the genuine egg powder label : — BoRWICK'S METROPOLITAN EGG POWDER. A vegetable compound, being a valuable substitute for eggs. One packet is sufficient for two pounds of flour and equal to four eggs. Directions. — Mix with the flour, then add water or milk, for plum, hatter, and other puddings, cakes, pancakes, etc. Price one penny. To be had of all grocers, oilmen, and cornchandlers. The following is a copy of the egg powder label used by the prisoner : Borwick's metropolitan egg powder. A vegetable compound, being a valuable substitute for eggs. One packet ia sufficient for two pounds of flour and equal to four eggs. Directions. — Mix with the flour, then add water or milk, for plum, batter, and other puddings, cakes, pancakes, etc. Price one penny. To be had of all grocers, oilmen, and cornchandlers. M'lntyre, for the prisoner. This is not a forgery either at common law or within the statute. The gist of the offence was the passing ofl" for genuine baking powder that which was not so ; in fact, something that was not so good. This was nothing more than a puff. In Regina v. Closs, 27 L. J. 54, M.C., it was held that a person could not be indicted for forging or uttering the forged name of a painter by falsely putting it on a spurious picture to pass it off as the genuine painting of the artist. This was no more than a printed label, and only differs from Regina v. Closs in that there the name was painted on the picture. In the case of Burgess's sauce labels the Court of Chancery refused to restrain the son from using labels with the father's name upon them. [Pollock, C. B. Suppose a man opened a shop and painted it so as exactly to resemble his neighbor's, would that be forgery?] No. The aflSxing this label to the powder amounts to no more than saj-ing " This is Bor- SECT. I.] EEGINA V. SMITH. 491 wick's powder." If the prisoner had had a license, he would have had a right to use the labels. Huddleston {Poland with him) , for the prosecution. The jury have found that the labels were made and uttered by the prisoner with intent to defraud. The definition of forgery at common law is "the fraudu- lent making or alteration of a writing to the prejudice of another man's right ; " 2 Rus. on Crimes, 318 ; 4 Black. Com. 247 ; Stark. Crim. Law, 468 ; 2 East, P. C. c. 19, § 49, p, 965 ; and the finding of the jury brings this case within that definition. [Channels, B. What was a document at common law which could be the subject of forgery ? Pol- lock, C. B. Was a book of which another man made copies?] It is submitted that it was ; Com. Dig. " Forgerj-." Letters ma}- be the sub- ject of forgery : Chit. Crim. Law, 1022. So a diploma of the College of Surgeons may be : Eegina v. Hodgson, 7 Cox C. C. 122. So also the certificate of the examiners of the Trinity House : Regina v. Toshack, 1 Den. C. C. 492. So a letter of the character of a servant may be : Regina u. Sharman, 1 Dears. C. C. 285. Then this label is a certificate as to the character of an article : Regina v. Closs ; R. v. Colicott, Russ. & Ey. 201 ; Stark. Crim. Law, 479, were ^Iso cited. Pollock, C. B. We are all of opinion that this conviction is bad. The defendant may have been guiltj- of obtaining money under false pretences ; of that there can be no doubt ; but the real offence here was the issuing a false wrapper and inclosing false stuff within it. The issuingjrfthis wrapper without the stuffwithin it would be no offence. In the printing of these wrappers there is no forgery ; the real offence is the issuing them with the fraudulent matter in them. I waited in vain to hear Mr. Huddleston show that these wrappers came within the principle of documents which might be the subject of forgery at common law. Speaking for mj'self, I doubt very much whether these papers are within that principle. Thej' are merely wrappers, and in their present shape I doubt whether they are anything like a document or instrument which is the subject of forgerj' at common law. To say that they belong to that class of instruments seems to me to be con- founding things which are essentially different. It_jaight-^s JscelUie said that if one tradesman used. bxowiPLpaper for wrappers of ttie^same description as another tradesman, he could be accused of forging the brown paper. WiLLES, J. I agree in the definition of forgery at common law, that it is the forging of a false document to represent a genuine document. That does not apply here, for it is quite absurd to suppose that the prisoner was guilty of ten thousand forgeries as soon as he got these wrappers from the printer ; and if he had distributed them over the whole earth and done no more, he would have committed no offence. 492 CASES ON CRIMINAL LAW. [CHAP. XLII. The fraud consists in putting inside the wrappers powder which is not genuine, and selling that. If the prisoner had had one hundred genuine wrappers and one hundred not genuine, and had put genuine powder into the spurious wrappers and spurious powder into the genuine wrap- pers, he would not have been guilty of forgery. This is not one of the different kinds of instruments which may be the subject of forgery. It is not made the subject of forgery simply by reason of the assertion of that which is false. In cases like the present, the remedy is well known : the prosecutor may, if he pleases, file a bill in equity to re- strain the defendant from using the wrapper, and he may also bring an action at law for damages ; or he may indict him for obtaining money under false pretences. But to convert this into the offence of forgery would be to strain the rule of law. Braitwell, B. I think that this was not a forgery, even assuming that the definition of forgery at common law is lai'ge enough to compre- hend this case. Forgerysugposes the po3sibility_of a, genuine docu- ment, and that the false document is not as good as th e genu ine document, and that the one is not as efllcacious for all purposes as the other. In the present case one of these documents is as good as the other — the one asserts what the other does — the one is as true as the otherp5ut' the one is improperly used. But the question now is, whether the document itself is a false document. It is said that the one is so like one used by somebody else that it may mislead. That is not material, or whether one is a little more true or more false than the other. I cannot see any false character in the document. The prisoner may have committed a gross fraud in using the wrappers for that which was not the genuine powder, and may possibly be indicted for obtain- ing money by false pretences, but I think he cannot be convicted of forgery. Channell, B. concurred. Btles, J. Every forgery is a counterfeit. Here there was no coun- terfeit. The offence lies in the use of it. Conviction quashed. COMMONWEALTH v. RAY, 3 Geat, 441, 446. Section 2. The Character op the Writing, REGINA V. MOAH, 7 Cox C. C. 503. REGINA V. SHARMAN, 6 Cox C. C. 312. SECT. lU.] EX PARTE WINDSOR. 493 REGTNA V. TOSHACK, 4 Cox C. C. 38. EEX V. HARRIS, 1 Moo. C. C. 393. REX V. HAWKESWOOD, Leach C. C. 292. REX V. RECULIST, Leach C. C. 811. Section 3. The Essence op Forgery Fictitiousness, not Un- truthfulness. EX PARTE WINDSOR, 10 Cox C. C. 121 [1865]. COURT OF QUEEN'S BENCH. [Before Cockburn, Blackburn, and Shee, JJ.] [Habeas Corpus, — Application for Extradition.] It appeared that . . . Windsor had been a clerk in " The Mercantile Bank of New York," in the United States of America, and that whilst in that capacity he was under suspicion of having made false entries in the bank-books to conceal certa i n embezzlement s. By the law of t^e State of JNew York this is declared to be a forgery in the third degree. Blackburn, J. . . . The only power that the extradition treaty gives to surrender a prisoner is that derived from the statute ; and that stat- ute, as far as I see, does not enact that all fugitives from justice shall be given up, but only those who have committed certain enumerated crimes — it provides for the deliver}- of any person charged with the crime of murder, assault with intent to commit murder, the crime of piracy, arson, robbery, and forgery ; these, both in the treaty and the statute passed to give effect to it, are the defined cases given by those high contracting parties to the treaty on which to deliver over prisoners to each other. Now the charge that is made out against this person is that he, being a clerk in a bank, did steal a large sum of money, and in order to conceal it did make an entry in a book, which entry, as I make it out, was an entry stating on his 494 CASES ON CRIMINAL LAW. [CHAP. XLII. behalf that a certain quantity of specie had been deposited in the vaults, whereas, in point of fact, the statement was wilfully and fraud- ulently false, with the intention to conceal and embezzle. Bu t thoug h he was guilty of that crime, it^ did not amount to forgery. Forgery is the false making of an instrument purporting to be that which it is not ; it is not the making of an instrument which purports to be what it really is, but which contains false statements. Tellin g a lie does not become a forgery because itjs reduced ijito, writing. The guilt of the thing which he has done is by no means more than that. He has not made any statement that is purported to be made by the authority of any person on behalf of that person. Now this man has made a false statement, falsely stating a fact which purports to be what it is. It is quite true that the State of New York by statute has enacted that those guilty of this offence shall, on conviction, be deemed guilty of forgery in the third degree. I pass by, without entering into them, the various observations that have been made to show that this did amount to this crime within the New_York State ; I am inclined to think it would be certainly a crime in the New York State. But then if this is not for- gery, how does the fact that the local State of New York in the United States has declared in effect that he shall be deemed guilty of forgery, make it forgery within the meaning of the extradition statute? That, I think, we cannot do. I think we must construe this statute and the treaty between the two high contracting parties. Her Majesty the Queen of Great Britain on the one part and the United States on the other part, as a bargain and treaty ; but that bargain, notwithstanding the dignity of the parties, must be understood like every other contract according to the meaning of the words fairly understood and the inten- tion expressed by them in terms, both parties using the same EngUsh language and both speaking of the same sort of thing as to the par- ticular crimes for which prisoners shall be given up, — murder, piracy, and forgery. . . . I ^ojxQt. think, if either country wastodeclarethat some particular offence shall be a forgery, or called a forgery ,„that .this will do. The "true and fair meaning of the local statute is merely, that he who commits a crime, though not forgery in itself, shall be punished as if he had committed forgery. In this case the man who is guilty of a crime is a fugitive, and we might wish that the Legis- lature gave us the power to give up any criminals who committed a great crime ; but that has not been done. I agree with my Lord that he is to be discharged, so far as this ground of objection is concerned. SECT. UI.] COMMONWEALTH V. BALDWIN. 495 REGINA V. WHITE, 2 Cox C. C. 210 [1847]. CROWN CASE RESERVED. [Indictment for Forgerj' of a Bill of Exchange.] The biU was dated on the 19th of August, 1846, at three months. It professed to be drawn by Mathew Clarkson on William Nicholson, paj'able to his own order, aiid to be accepted by William Nicholson and indorsed by Mathew Clarkson, and then, per procuration, Thomas Tomlinson, Emanuel White. Alfred Thomas Fellowes was called : I am a partner with Thomas Hart in a bank at Nottingham. On the 1st of September, 1846, the prisoner came to our bank with this bill, which he asked me to discount. He said he had brought it to be discounted ; that he came from Mr. Tomlinson. I called in a clerk (Newton), who said he knew him, that he sometimes carne from Mr. Tomlinson, who was very good, so I dis- counted it. I told the prisoner Mr. Tomlinson had not indorsed it. He said Mr. Tomlinson was from home, but that he could indorse it for him. I asked him if he could, and he said " Yes." I asked Mr. Tomlinson's Christian name ; he said " Thomas." I wrote "per procu- ration Thomas Tomlinson." He said he would sign; his name ; he did sign his name, and I gave him the money. In Trinity term, the Judges who heard the argument assembled to consider the case, and unanimously held that the prisoner's offence was not forgery. . . . COMMONWEALTH v. HENRY W. BALDWIN, 11 Gray, 197 [1858]. Thomas, J. This is an indictment for the forgery of a promissory note ... of the following tenor : — $457.88. Worcester, Aug. 21, 1856. Four months after date we promise to pay to the order of Russell Phelps four hundred fifty seven dollars ^^, payable at Exchange Bank, Boston, value received. Schouler, Baldwin & Co. 496 OASES ON CRIMINAL LAW. [CHAP. XLII. Eussell Phelps testified that the note was executed and delivered by the defendant to him at the Bay State House in Worcester, on the 21st of August, 1856 ; . . . and that in reply to the inquiry who were the members of the firm of Schouler, Baldwin & Co., the defendant said, " Henry W. Baldwin, and William Schouler of Columbus." He fur- ther said that no person was represented by the words " & Co." . . . The government offered evidence which tended to prove either that there never had been any partnership between Schouler and Baldwin, the defendant, or, if there ever had been a partnership, that it was dis- solved in the month of July, 1856. The question raised at the trial and discussed here is whether the execution and delivery of the note, under the facts stated, and with intent to defraud, was a forgery. The writing alleged to be forged in the case at bar was the hand- writing of the defendant, known to be such and intended to be received as such. It binds the defendant. Its falsity consists in the implication that he was a partner of Schouler and authorized to bind him by his act. This, though a fraud, is not, we think, a forgery. Suppose the defendant had said in terms : " I have authority to sign Schouler's name," and then had signed it in the presence of the promisee. He would have obtained the discharge of the former note by a false pretence, a pretence that he had authority to bind Schouler. "It is not," says Sergeant Hawkins, "the bare writing of an instru- ment in another's name without his privity, but the giving it a false appearance of having been executed by him, which makes a man guilty of forgery." 1 Hawk. c. 70, § 5. If the defendant had written upon the note, " William Schouler by his agent Henry W. Baldwin," the act plainly would not have been forgery. The party taki ng the note^kjiowadt-isjotJJtifi-peiSQnal _act of S_choulei\_JHe does not relmpon his sign a ture. He is not d eceived by the-semblance of his signature. H e relies solely upon the averr ed agency and authority of Th"e_ defendant to bind Schoul er. So, in the case before us, the note was executed in the presence of the promisee. He knew it was not Schouler's signature. He relied upon the de- fendant's statement of his authority to bind him as partner in the firm of Schouler, Baldwin & Co. Or if the partnership had in fact before existed but was then dissolved, the effect of the defendant's act was a false representation of its continued existence. In the case of Eegina v. White, 1 Denison, 208, the prisoner in- dorsed a bill of exchange, " per procuration, Thomas Tomhnson, Emanuel White." He had no authority to make the indorsement, but the twelve judges held unanimously that the act was no forgery. SECT. IV.] EEX V. MARSHALL. 497 The nisiprius case of Regina v. Rogers, 8 Car* & P. 629, has some resemblance to the case before us. The indictment was for uttering a forged acceptance of a bill of exchange. It was sold and delivered by the defendant as the acceptance of Nicholson & Co. Some evidence was offered that it was accepted by one T. Nicholson in the name of a fictitious firm. The instructions to the jury were perhaps broad enough to include the case at bar, but the jury having found that the acceptance was not written by T. Nicholson, the case went no further. The in- structions &t nisi prius have no force as precedent, and in principle are plainly beyond the line of the settled cases. The result is that the exceptions must be sustained and a new trial ordered In the common pleas. It will be observed, however, that the grounds on which the exceptions are sustained seem necessarily to dispose of the cause. Exceptions sustained. Section 4. Instances op fictitiodsness as distinguished from MERE untruthfulness. REX V. MARSHALL, Rnss. & Rr. 75 [1804]. The prisoner was tried before Mr. Baron Graham, at the York Summer assizes, in the year 1804. The indictment charged that the prisoner Thomas Marshall, on the 12th of March, 1804, at the parish of Kirkby Overblow, on a bill of exchange, on which was then contained an indorsement as follows, " Joseph Ward," and which bill of exchange was as follows : — No. 654. £28. York, Feb. 24, 1804. Two months after date, pay Mr. Joseph Ward, or order, twenty-eight pounds, value received, as advised by Edward Pratt. Messrs. Fuller & Co. Bankers, London. did falsely make, forge, and counterfeit, an indorsement of the said bill of exchange, as follows: "Luke Marsden," with intention to defraud one Peter Harland. The prisoner came to the house of the prosecutor, Peter Harland, at Kirkby Overblow, in the afternoon of the 12th of March, 1804, to buj' a horse. Harland sold him one for £38. When the bargain was made, the prisoner produced the bill for £28, with other good guinea notes. Harland said he asked no question about the indorsement, but seeing that it was drawn on a good bank in London, desired the prisoner to 32 498 CASES ON CRIMINAL LAW. [CHAP. XLII. give him his name on the back. The prisoner took up pen and ink, and wrote in Harland's presence, " Luke Marsden," on the back. Harland asked him, after he had made the bargain, where he lived. He said in York ; and Harland made no further inquiry, living twenty miles from York. Harland indorsed the bill : it was sent to London, and returned to him unpaid. The other names on the bill, before " Luke Marsden,'' and particularly that of Joseph Ward, were there before the prosecutor took the bill. The prosecutor said he knew nothing of the prisoner, or any Luke Marsden ; that he supposed he wrote his own name, but that had he written John Roberts, he should not have refused the bill. It was proved that the prisoner had lived at York for a few j^ears, under the name of Thomas Marshall, but had left it about a year and a half or two years. That his real name was Thomas Marshall, and that he had never, to the knowledge of the witnesses, gone by the name of Luke Marsden. The jury, under the' learned judge's direction, found the prisoner guilty, and sentence was passed on him, but respited under a doubt whether forgery of the name of the maker or indorser of a bill or note did not import the assumption of the character and credit of another person, and upon a difficulty of reconciling the cases of Rex v. Shep- herd,'' Rex V. Aickles,'' Rex v. Lockitt, and Rex v. Abrahams,' Rex v. Tuft,* and Rex v. Taylor.^ In Michaelmas term, 10th of November, 1804, all the Jtidges (except Heath and Chambre, Js.) being present, it was decided that the convic- tion was right, it appearing that there was no doubt as to the intent to defraud. REX V. WHILEY, Russ. & Rt. 90 [1805]. REX V. LOCKETT, 1 Leach C. C. 110 [1772]. At the Old Bailey in June Session, 1772, Charles Lockett was tried before Mr. Baron Perrptt, present Mr. Justice Aston, for forging an order. for the payment of money ; and also for uttering it, knowing it to be forged, with intention to defraud one John Scholes, etc. The order was in the words and figures following : — 1 2 East, p. C. 967. '^ Ibid. 968. ' Ibid. 940, 941. 4 Ibid. 969. 6 Ibid. 960. SECT. IV.] BEX V. LOCKETT. 499 London, Feb. 14, 1772. Messrs. Neale, James, Fordyoe, and Down, Pay to Mr. William Hopwood, or bearer, sixteen pounds ten shillings and sixpence. £16, 10s., 6rf. R. Vennist. The prisoner went to the shop of Mr. Scholes, a colorman, and bar- gained for a quantity of goods, amounting to £10, Os. 6c?. He desired a bill might be made out, and said he would call in the afternoon and pay for them. He went away and took a small parcel of Prussian blue with him. He returned in the afternoon, seemingly in a great hurry ; said his name was William Thompson, and that he lived at Ware, in Hert- fordshire. He presented the order to pay for the goods, and Mr. Scholes gave him six pounds ten shillings in difference ; but on present- ing it for payment, n o man of t he nam e_ofJBiJiinnist had ever kept cash at the bouse of Neale, James, Fordyce, and Down ; nor did the prosecutor know any such person existing ; and it was in fact a ficti- tious name. The jury found the prisoner guilty of uttering the order, knowing it to be forged ; but as it appeared that no man of the name of Vennist had ever kept cash with these bankers, it was doubted whether this was an order for the payment of monej' within the meaning of the Statute of 7 Geo. II. c. 22, the principle of Mary Mitchell's Case^ being that the words " warrant or order," as they stand in the Act, are synony- mous, and expressive of one and the same idea, and in common par- lance import that the person giving such warrant or order hath, or at least claimeth an interest in the money or goods which are the subject- matter of that warrant or order ; that he hath, or at least assumes to have, a disposing power over such money or goods, and takes on him to transfer the property, or custody of them at least, to the person in whose favor such warrant or order is made. Upon this doubt, the case was referred to the consideration of the Judges ; and in September Session, 1774, Mr. Baron Perrott delivered their opinion to the following effect: the judges are unanimously of opinion. That it is an order for the payment of money within the meaning of the statute ; fo r although no man of the name of V ennist had in fact ever kept cash at Fordyce's banking-shop, yet the natu re of the order assnTTTgg _t,hat there was cash there in the name of the drawer. lyhichhe_had, taken upon him to transfer to the pers on in whose favor the^rder is made ; for it would be a very forced construc- tion of the statute to say, that the forgery of a fictitious name, with intention to defraud, is not within the intention of it. I Foster, P, C. 119. . 500 OASES ON CHIMIN AL LAW. ['CHAP. XLII. EEGINA V. ELIZABETH DUNN, Leach C. C. 59 [1765]. REX V. TUFT, 1 Leach C. C. 206 [1777]. At the Lent Assizes for the county of Leicester, 1777, Edward Tuft was tried before Mr. Justice Nares, for forging an indorsement on a bill of exchange. The jury found the prisoner guilty ; but the learned and humane judge, cautious of passing sentence of death in a case which admitted of doubt, submitted to the consideration of the twelve judges, whether, upon the following state of facts, the conviction was proper. The bill of exchange was the property of one William "Wetheral, out of whose pocket it had been picked or lost, with other things at Leices- ter races. The prisoner had the very same night endeavored to nego- tiate it at Leicester ; but being disappointed, he proceeded to Market Harborough, where he bought a horse of one John Ingram, the landlord of the inn, and oflfered him this bill to change. The landlord not hav- ing cash sufficient in the house, carried it to a banker's in the town, where the clerk told him that it was very good paper, for that he knew the payee who had indorsed it, and that if he (the landlord) would put his name on the back of it, it should be immediately discounted. The landlord however, not knowing the person from whom he had received it, refused to indorse it ; but told the clerk that the gentleman was then at his house, and he would go and fetch him : accordingly he went to the prisoner, who accompanied him to the banker's. The clerk then told the prisoner, t hat it was the rule of their shop never to take a d is- count biU unless the person offering such biU indorsed it ; and there- fore if he (the prisoner) would indorse it, it should be discounted. The prisoner immediatelyindorsed it b y the name of "John Willia ms." which was not his own name, and the banker's clerk, after deducting the discount, gave him the cash for it. The prisoner, in his defence, said he had found it. The Judges were unanimously of opinion that this was a forgery ; for although the fictitious signature was not necessary to his obtaining t he pioney Tancrhis intent in writing a false name was probably only done to conceal the hands through which the bill had passed, yet it was a fraud both on the owner of the bill, and on the person who discounted it. The one lost the chance of tracing his property, and the other lost the benefit of a real [traceable?] indorser, if, by accident, the prior indorsements should have failed. SECT. IV.] KBGINA V. MAKTIN. 601 EEGINA V. SHEPPAED, 1 Leach, C. C. 265 [1781]. EEGINA V. MARTIN, 14 Cox C. C. 375 ; 5 Q. B. D. 34 [1879]. CROWN CASES RESERVED. Case reserved for the opinion of this Court by Cockbum, C. J. The prisoner, Eobert Mart in, was tried before me at the late assizes held at Maidstone on an indictment which charged him in one count with hav- ing forged, in another with having uttered, a forged order for the sum of £ 32 with intent to defraud. The facts were as follows : — The prosecutor, George Lee, is a horse dealer at Ashford, in Kent. The prisoner Martin had been for many years collector of the tolls of the markets of Ashford and Maidstone, and was well known to the prosecutor. In the course of the present year the prisoner, having ceased to hold the above-mentioned office, left the neighborhood, and went to reside in Southwark. On the 2d day of September, being again at Ashford, for what purpose did not appear, he saw the prosecutor Lee in the street in a pony cart, and accosted him, inquiring if he (Lee) had a pony for sale, whereupon the prosecutor recommended him to buy the pony he was then driving. A deal ensued, the result of which was that the prosecutor agreed to sell, and the prisoner to buy, the pony and carriage for £32. The prisoner proposing to give his check for the amount, both parties went into an adjoining inn, in order that the check might be there drawn. The prisoner then produced a printed form of check of the bank of Messrs. Wigan & Co., bankers, of Maidstone, taken from a check-book, of which he had become possessed as a former customer of the bank. This he filled up in the presence of the prosecutor with the name of the latter as payee, signed it in the name of William Mar tin, his name being Robert, and delivered it to the prosecutor, who put it in his pocket without further looking at it, or observing in what name it was signed, after which he proceeded to give possession of the pony and carriage to the prisoner. On the ensuing morning the prisoner drove the pony and carriage to town, and on the day after drove to Barnet Fair, where he sold both. On the check being presented at Messrs. Wigan's bank payment was refused on the ground that the signature was not that of any customer of the bank. The prisoner had been a customer of the bank, and had had an ac- count there in his proper name of Eobert Martin, but his account re- 502 CASES ON CRIMINAL LAW. [CHAP. XLII. maining overdrawn for some time after he had ceased to be the collector of the market tolls, and the bank insisting on the balance due to them being paid, the amount was accordingly paid on the 4th day of June, and the account was then closed. No money was afterwards paid in to prisoner's credit, nor was anj- check drawn by him. He asserted indeed in his defence on this charge that he had expected money to have been paid in to his account, but no evidence was adduced to show that there was any foundation for this statement. No name was men- tioned of any person owing him money, or by whom he expected money to be paid into the bank on his account. He had ceased to all intents and purposes to be a customer of the bank, and must have been fully aware that a check drawn by him on the bank would certainly be dishonored. Under these circumstances there can be no doubt that the prisoner had been guilty of the offence of obtaining the prosecutor's goods by false pretences. But the indictment being for forgery of the check, and it appearing to me doubtful whether the charge of forgery could upon the facts proved be upheld, I reserved the case for the considera- tion of this Court. In considering this question I have further to call attention to the following facts : — The prisoner in drawing this check and delivering it to the prose- cutor did not do so in the name of or as representing any other per- son, real or fictitious. The check was drawn and uttered as his own, and it was so received by the prosecutor, to. whom the prisoner was perfectly well known as an acquaintance of twenty years' standing, and by whom he was seen to sign it. Tjie_gri soner di d not obtain.gi:adit w^h the prosecutor bj' substituting^ the^hristian__name^fJWllUam for that of Robert. He would equally have got credit had he signed his proper name of Robert. The credit was given to the prisoner himself, not to the name in which the check was signed. The check was taken as that of the individual person who had just been seen to sign it, not as the check of William Martin, as distinguished from Robert Martin, or of any other person than the prisoner. On the contrary, if the prosecutor, who knew the prisoner's name to be Robert, had observed that the signature was in the name of William, he would in all proba- bility have suspected something wrong, and would have refused to take the check. There was nothing whatever from which the motive of the prisoner in signing a wrong Christian name could be gathered. Th ere happ ened, indeed, to be a Willia m Martin^ a customer of the bank ; but this was unknowrTto the prisoner ; besides which, as the prisoneT wasperfectly aware that his person and true name were well known to the prose- SECT. IV.J COMMONWEALTH V. FOSTER. 503 cutor, it could not be supposed that he intended to pass himself off as, or the check as the check of, any William Martin other than himself. The only motive which has occurred to my mind as one which might have induced him to sign a false Christian name is that he may have thought that by so doing he might avoid being liable on the check when pay- ment had been, as it was certain to be, refused. This, however, amounts to no more than conjecture. Be it as it may, and whatever may have been the motive, 1^; occurred to me that, while there had been a fictitious signature to the check in question, so far as the Christian name was concerned, yet the signature having been affixed by the pris- oner, and the check delivered by him as his own, though there had been a signature in a fictitious name, the name could not be said to be that of a fictitious person ; and that, in this respect7TEe~case did not fall within the principle of the cases in which it has been held that the use of the pretended name of a fictitious person amounts to forgery. I have therefore sought the assistance of the Court as to whether, under the circumstances, the affixing a fictitious Christian name to this check by the prisoner amounts to forgery as charged in the indictment. A. E. COCKBURN. No counsel was instructed to argue. CocKBUKN, C. J. The conviction must be quashed. This case is concluded by authority. In Dunn's Case, 1 Leach C. C. 57, the judges agreed " that in all forgeries the instrument supposed to be forged must be a false instrument in itself, and that if a person give a note entirely ag his own his subscribing it by a fictitious name will not make ita for- gery, the credit there being given to himself without any regard to the "name or without any relation to a third person." That exactlj' applies to this case. Ldsh, J. I had the same question before me at the last Au- tumn assizes, and I directed an indictment for false pretences to be preferred. CoCKBURN, C. J. That ought to have been done in this case. HuDDLESTON, B., LiNDLET, and Hawkins, J. J., concurred. Conviction quashed. COMMONWEALTH v. FOSTER, 114 Mass. 311 [1873]. [Indictment containing the four counts, each for uttering a forged promissory note. The note described in the first count was signed " Little & Co."] 504 CASES ON CRIMINAL LAW. [CHAP. XLII. At the trial in the Superior Court, before Bacon, J., the government called one G.eorgeJBJLittle, who testified as follows : — " I am a broker at No. 10 State Street; have been in business for three years in State Street ; at one time I was at No. 93 Washington Street, and at another time I was at No. 26 J Exchange Street ; I was trading in real estate ; have known defendant half a dozen years ; de- fendant sent for me to come down to his ofHce, No! 130 State Street, and I went down ; he said he wanted me to make a large note ; I said I had done business under the name of Little & Co., and he told me to sign it ' Little & Co.,' and I did so, and made the note so signed, de- scribed in the first count ; I gave the note to Foster, and he gave me ten dollars ; I had no wrong intention in making the note ; in trade it is sometimes done, that is, notes of this kind are made ; the note was made August 12, 1871." Ebenezer N. Chaddock was then called, and said he was eighty j'ears of age, and used to follow the sea. " In August, 1871, I held Foster's notes for a large amount ; saw the note signed ' Little & Co.' at Fos- ter's office on the twelfth or thirteenth of August, 1871, aM_tOflkJt_of him and gave him up other notes of his and some Hicksville stock that I had for it. He indorsed the note, waiving demand and notice, and gave it to me. Herepresented_ that J;his Little & Co._was„a.largg firm doing business on Franklin Street, in Boston,'and that they had a large manufactory in Charlestown." . . . David G-.Eanney testified : " Am a member of the firm of James L. Little & Co., on Franklin Street ; the members of our firm are James L. Little, James M. Dunbar, David Gr. Ranney, F. W. Haynes, James L. Little, Jr., Joseph A. Tilden ; we have been thirteen years in Frank- lin Street ; no such firm as Little & Co. that I know of; this 'Little & Co.' note in the first count is not made by our firm, nor any member of it." The defendant requested the Court to instruct the jury as follows : — " 1. That if the jury find that the note signed ' Little & Co.' was signed by Geo. P. Little, who had formerly been a member of the firm of Little & Co., and it not appearing that there was any other firm of the name of Little & Co., the hote could not be regarded as a forgery, and therefore 'the defendant could not be convicted of uttering forged paper under the first count in the indictment. " 2. That the note signed ' Little & Co.' being the genuine signature of Geo. P. Little, no statements by the defendant as to the members of that firm could make said note a forgery, however false those state- ments may have been, provided it is not proved that there was in point of fact another firm in Boston doing business under the name of Little SECT. IV.] COMMONWEALTH V. FOSTER. 505 & Co., and therefore the defendant cannot be convicted of uttering a forged note under the first count in the indictment." • • • • • " Wells, J. Two questions are presented by the instructions in re- gard to the note signed "Little & Co." First, whether the fact that the manual operation of attaching the signature was performed by a person of the name of Little who had done business upder the name of Little & Co. is incompatible with a verdict finding the note to be a for- gery. Second, whether it may be found to be a forgery on the part of one who procures it to be so made, intending to use it as the note of some other party or pretended party and thereby defraud another, al- though Little was innocent of fraudulent intent, and signed the note without understanding the purpose for which it was procured. Forgery is not necessarily counterfeiting. One definition quoted approvingly in Commonwealth v. Ray, 3 Gray, 441, is " the making a false instrument with intent to deceive." In The King v. Parkes, 2 Leach (4th ed.), 775, it is defined as " the false making a note or other instrument with intent to defraud." By Gen. Sts. c. 162, § 1, " whoever falsel y makes " a promissory note, " with in teat to injure or,.£leJrj;aud,.any persoii"' is punishable as for the offence of forgery. The falsity of the instrument consists in its purporting to be the note of some party other than the one aetuallj' making the signature. The falsity of the act consists in the intent that it shall pass and be received as the note of some other partj% If there be simulation, or any device in or upon the instrument itself, adopted to make it appear to be the note of such other party, so that the falsity and its proof are both borne upon it, no one would doubt that the charge^QiL&Jgery might be maintained, notwithstanding that the sig- nature is of a name which might lawfully be used by the person who attached it to the note. It.mattexs not by whom the signature is attached, if it, be not,at- tached as,JiiSi,o.wn. If the note is prepared for the purpose of being fraudulently used as the note of another person, it is falsely made. The question of forgery does not depend upon the presence upon the note itself of the indicia of falsity. If extrinsic circumstances are such as to facilitate the accomplishment of the cheat without the aid of any device in the note itself, the preparation of a note with intent to take advantage of those circumstances and use it falsely is " making a false instrument." If Little & Co., "a large firm doing business on Franklin Street, Boston," and " having a large manufactory in Charles- town," were well known and in undoubted credit, and the Little & Co. of George P. Little were of no credit and entirely unknown, and George P. Little made^ad-Sigiifid-JM. note,,M|t_as_ his ^_o^ of his firm, but solely with a view to its use^as^ie defendant in this ease 506 CASES ON CRIMINAL LA"W. [CHAP. XLII. used it, all the elements, both of effect and intent, necessary to consti- tute the offence of forgery, would exist. The position of the case is the same, if the party defrauded knew nothing of either firm except from the representations of the defendant ; and the supposed makers of the note did not in fact exist at all. United States v. Turner, 7 Pet. 132. , Th e distinc tion is plainly drawn in Commonwealth v. Baldwin, 11 Gray, 197, b etween on e who assumes to bin d another, either jointly with_iiimselfi_or_by__grocuration, however groundless and false may be his pretence of authority so to do, and one who signs in such man ner that the instrument may p urpo rt to bear the actual si gnature of anot her party having the same name3_and intending that it shall be so receiv ed. It purports to be the instrument of such other party, among those not familiar with his handwriting, by bearing his name ; and it is a false instrument, and falselj' made, if it was so intended. Commonwealth v. Stephenson, 11 Cush. 481. The second question is, in a measure, involved in the first. To con- stitute forgery, where there has been no subsequent alteration, the fraudulent intent must attend the making of the instrument. But it is not necessary that it should be in the mi nd of the one whose ha nd holds_the_gen in writing the signature. If that isjdone at.the dictatipn or request of another, and for his purposes and use,^nd-hia desigas are fraudulent so as to make it forgerj' if he had written it himself, then the instrument is a forged one. Commonwealth v. Stevens, 10 Mass. 181 ; Commonwealth v. Ray, 3 Gray, 441. The circumstance that the person so emploj'^ed bore the same name as that subscribed to the instrument makes it necessary that it should be made to appear not to have been a genuine transaction ; and that the signature was not at- tached to the paper as a contract of the one who wrote it. If he signed it without understanding its purpose, thoughtlessly, or from unfamiliar- ity with business matters, or being himself deceived, he might not be guilty of a criminal offence, and yet the instrument might be a forgery, so that one who procured it to be so made might be convicted either of the crime of forgery or of uttering a forged instrument. ?f^^o.