CORNELL LAW LIBRARY OJornpU Slam i'rliaol ICibratg Cornell University Library KF 9619.B62P8 1901 Prosecution and defense; practical direct 3 1924 020 200 832 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/cu31924020200832 PROSECUTION AND DEFENSE PRACTICAL DIRECTIONS AND FORMS FOE THE GRAND-JURY ROOM, TRIAL COURT, AND COURT OF APPEAL IN CRIMINAL CAUSES, WITH PULL CITATIONS OF PRECEDENTS FROM THE REPORTS AND OTHER BOOKS BY JOEL PRENTISS BISHOP, LL. D. Honorary Doctor Juris Utriusqtjk of the Universitt of Bbrne, SECOND EDITION BY WINSLOW EVANS, Ph. D. Or THE FjEOBiA, III., Bab CHICAGO T. H. FLOOD AND COMPANY 1901 Entered according to Act of Congress, in tlie year 188S, by JOEL PEENTISS BISHOP, In tlie office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1901, by T. H. FLOOD & CO., In the office of the Librarian of Congress, at Washington. STATE JOIXRNAL PRINTINa COMPANY, Printers and Stereotypers, madison. wis. PREFACE TO SECOND EDITION. In the revision of this work 1 have not undertaken to change the text or the forms of Mr. Bishop. The method is peculiarly his own, and designed by him to round out and complete his series of works on criminal law. It would be hazardous for any one else to undertake any substantial changes therein. His thoroughness. leaves little to be done by one merely revis- ing the work. .., '; , The most that t haVe, been able to di>*is to bring the anno- tations down to date. I have ventured upon the addition of " Forms of Bills of Exceptions," by reason of a criticism of the work for their omission from the first edition. The work re- mains essentially that of Mr. Bishop, and as such is again given to the Bench and Bar, who have already stamped with approval the many works of this ripe and learned author. WINSLOW EYANS. PREFACE TO FIRST EDITION. This volume completes my Oriminal-law Series. The great undertaking was entered upon thirty-two years ago, and it has been consuming ever since the larger part of an active life of uninterrupted law writing. It consists of the personal exam- ination by one mind of all the sources of the American criminal law, including all the English, Irish, American and leading Scotch and colonial reported cases, — of reducing the appar- ently and in some respects actually discordant mass to a sys- tem, — of eliminating from the system, not by slurrings over or denials, but by bringing to view and explaining, such ill-formed doctrines and absurdities as the courts can be readily induced to cast off, — and presenting the whole in language as compact, and with as few repetitions, as perspicuity and an exact pre- cision would permit, and otherwise in manner deemed best adapted to practical, every-day use. The finished Series is in six volumes ; namely, " Criminal Law," two volumes ; Criminal Evidence, Criminal Pleading, and Criminal Practice, combined under the name of "Criminal Procedure," two volumes; "Stat- utory Crimes," one volume; and the present work, one volume, ending with a "General Index" to the whole.' Further and ample explanations of the nature of the work and the manner of its execution are given in three Introductions published in the last editions of " Criminal Law," " Criminal Procedure " and "Marriage and Divorce" respectively. This volume consists of full and ample " directions " for the various steps in every sort of criminal cause within the range iln another view, this series con- every-day use and necessity that no sists of only five volumes. " Statu- practitioner who cares for any of my tory Crimes " comprehends the work law writings will be without it. The separately published under the title price of " Statutory Crimes " is but of " Commentaries on the Written little more than of this work, so that Laws and their Interpretation," it need not be reckoned in the cost meant for civil practice, and of such of my Criminal-law Series. Vl PBEFACE TO FIEST EDITION. of the reported cases, whether on the common law or on a statute, and whether on behalf of the State or of the defend- ant, with the needful " forms," and references to the other precedents in the books. The indictments are given in the alphabetical order of the offenses, and the citations of the American precedents in the alphabetical order of the states. For the rest of the matter, arranged in chapters preceding and following those containing the indictments, the alphabetical order did not seem practical or best. Whether this closing instalment of the series should be con- densed, as it is, to one volume, or with less labor be made to occupy more expansively two or three, and so bring to me more money and to the profession less profit, was a question settled by a sacrifice which I should be glad to know will be appreciated in my life-time; but, if this cannot be, I rest con- tent in the certainty of the verdict of the future. All my friends, all the lawyers, whom I consulted, said it was impos- sible to do otherwise than put the work into not less than two volumes or spoil it. If, now it is finished, gentlemen will do me the favor to look into it and see how in fact it is, they shall receive my hearty thanks. They will discover that, excluding what by universal consent is of no practical value, this one volume contains more matter in quantity, not speaking of the quality, than all the other books of forms and precedents in the criminal law, English and American, old and new, in how- ever many volumes, combined. I repeat, that this is what one who " looks " will " see." I ask no reader to accept this state- ment except as the result of his personal examination. Let me suggest for observation the following: First. Our books of precedents are full of verbosity, by all opinions useless, not retained in the forms in this volume. Few persons are prepared to accept the whole truth on this point, as to which it can be affirmed only that those who " look " will" see." 1 1 1 present an illustration which, I " That D. S., late, etc., on, etc., at, submit, is not an extreme instance, etc.and within the jiirisdietion of this but simply a fair average. The in- court, did lay a wager and bet with dictment in Sherban v. Com., 8 a certain J. C., and that the said D. S. Watts, 212, as in substance copied did then and there lay a wager and for use into a current book of prece- bet of fifty dollars with the said J. O. dents, is,— that a certain J. R. would be elected PKEFACE TO FIEST EDITION. TU Secondly. Our books of precedents are, without exception, largely made up of useless repetitions; a thing which need be said but once being repeated, and again repeated, and thence continually dozens and even hundreds of times. By which means great numbers of pages are consumed with what might more clearly appear, and in a way more convenient for use, on a single half page. One illustration is where verbose counts are multiplied, varying only in such few words as in the pres- ent work are introduced, between brackets, into the single form given. Another illustration consists in constant repeti- tions of such ridiculous surplusage as " not having the fear of God before his eyes, but being moved and seduced by the in- stigation of the devil," " with force and arms," " to the great damage of the said," etc., "to the great displeasure of Al- mighty God," and immense quantities of other stuff of this sort. Other illustrations will occur to any one who compares our books of precedents in common use with the following pages. Thirdly. Our books of precedents are almost destitute of references to places in the other books where precedents may be found. The free insertion of such references here has given the reader practical access to nearly five thousand precedents neither printed nor cited in all the other books of precedents combined. I would not, with this specification, intercept the reader's further looking and seeing. There is more discoverable; and my wish is to stimulate him, not only to examine what is thus governor of the commonwealth of lay a wager and bet of fifty dollars Pennsylvania at an election to be with one X, that a certain M., who held in said commonwealth under was then and there a candidate the constitution and laws of said nominated for the public oflSce of commonwealth, on, etc., the said J. E. governor of this state, would, at an then and there being a candidate election to be held under the consti- nominated for public ofBce, to wit, tution and laws of this state, on, etc., for the office of governor of said be elected governor thereof; against commonwealth; contrary, etc., and the peace, etc." against, etc." [Conclude as in Book I, This sort of condensation, if there ch. 3.] were no other, would almost, per- The same form, omitting nothing haps quite, reduce a two-volume which any pleader would deem im- book to one volume. But I have in- portant, is, as given post. § 398, but troduced other condensations also^ little over half as long; namely, — vastly more effective. " That A., etc., on, etc., at, etc., did b via PBEFACK TO FIKST EDITION. indicated, but, uninfluenced by suggestions from me, to pursue for himself the investigation to the end. By the means thus pointed out, this volume is made harmo- nious with the other volumes of the series. They, too, are condensed beyond what is common in books on the criminal law. If they seem to occupy large space, it is because of the great dimensions to which our criminal law has grown. Con- tinually, in writing those volumes, I had to struggle with the immensity of the material, and even to reject more or less of what presented strong claims to a place on the written page. But it has been otherwise in preparing this volume. Without any absolute restriction as to its number of pages, and without making it greatly larger than the average, I found room in it for all my material, omitting not even a word deemed impor- tant, and compressing nothing to its detriment. True, the reader will sometimes wish to look into books cited, but this, is an incident of every text-book. Though not approving of verbose indictments, I have still furnished to the lovers of verbosity the amplest facilities for spinning the humdrum thread through as long a series of use- less allegations, repetitions and counts as their hearts may de- sire. The stuff is all given, in approved form, and with the amplest directions for its use. It is even my claim that for this sort of service the book is a great improvement on its more wordy predecessors ; for, with it, the pleader will feel a larger freedom than with them in roaming over these marvelous old grounds. To illustrate, the " devil " clause appears here, in its proper place, in various precedents copied in exact words from books in common use. The pleader can thus know its terms and position, and as easily transfer it into every indictment he draws as though it were repeated in every one of these forms. And he will feel more liberty in making amplifications upon it; resulting, let us hope, in new and useful views concerning Satanic influences, and something valuable aided to " science." So the art of multiplying counts uselessly is here explained, and all the help which can be of practical service for doing it is furnished. For more of the plan of the book, not necessary to be here repeated, the reader is referred to the first chapter, and to the first sub-title of the second. PEEFAOE TO FIRST EDITION. IX Nearly all the forms for the indictment, whether on the com- mon law or on a statute, are given in terms to satisfy the com- mon-law requirements as unmodified by statutes. In the few instances where mere statutory forms are inserted, the fact that they are such, and that they are not good at the common law, is distinctly stated. Those of ancient origin are con- structed by eliminating from the approved precedents the al- legations which the courts have adjudged to be useless; and, where there is doubt of the necessity of an allegation, or other- wise it is in reason useful, it is retained. The rejected allega- tions are presented once in their several proper connections und«r each offense ; and their uselessness, and the authorities showing it, are pointed out. Since, in the states where statu- tory forms are provided, the pleader has his choice between them and those of the common law, the forms here given are severally good in every state in the Union, and in the United States courts, except in the few instances where the contrary is specified. And as the common law is widely abused for its alleged unreasonable requirements regarding the indictment, and because I have a profound sympathy for the wronged, I take pleasure and pride in pointing to the forms in the follow- ing pages, and demanding a comparison of them with the statutory ones in " the most favored state " of the Union. Even in mere brevity, they are, as a whole, scarcely inferior; in rea- son, they are not objectionable for length; and, as furnishing precise pointings-out of the offense charged, they are surpassed by none ever enacted or devised. To this there are simply a very few partial exceptions. Nor is this conclusion modified by what is mentioned in the text, of the remissness of some of the courts in not excluding from their records disgraceful verbosity and needlessly multi- plied and complicated counts.^ Lax judicial habits constitute no part of the law. The purpose of the directions interspersed with the forms is obvious, requiring no explanation. The concluding " General Index," opening to one view the contents of the entire series, will save the active practitioner a great deal of time. It was not deemed necessary to consume space with a separate index to the present volume, except to 1 Posf, §§11-14. X PEEFACE TO FIEST EDITION. the forms. And all in search of forms should consult that index, not the general one to the series. In other connections I have mentioned, though with less particularity than desirable, that great impediment to the im- provement of our legal literature, — piracy, and the counte- nance given it by the profession. I include herein, not only technical piracy, but all appropriations by legal w^riters of the labors of others without the acknowledgment which honesty demands. The evil has been creeping on us for ages, in later years its progress has been enormous, and it has now become so gigantic that it would seem impossible for reform to be longer postponed. The course of reform in nearly all things is uniform, and it is as well known as the path of the sun. An evil grows until earth can endure it no longer. Then from some person or body of persons comes the protest ; those who profit from the evil quietly put their hands over the mouths of the people, and their fingers in the ears of those who ought to hear, and for themselves assume the appearance of ignorance alike of the protest and the evil. The protest becomes louder and louder, the very rocks send it through all the air, and the policy of silence is of necessity reversed. Those from whom the protest came are vilified, the entire vocabulary of oppro- brious epithets is emptied upon them, falsehood blackens them, and they are even denied a place in decent society. But the morning nevertheless arrives, what was dark is illumined, and the day travels onward to its noon. In the present instance, reform ought to be possible by other means. Those who profit by piracy in legal literature are com- paratively few, and those who are injured by it are not only numerous, but they constitute a considerable part of the more educated and enlightened public. If the literature of the law kept step with the mechanic arts in improvement, the practice would be a very different thing from what it is now. And if the same protection were given it by copyright laws and a public sentiment sustaining them which improvements in me- chanic arts receive from patent laws and their sustaining pub- lic sentiment, the improvements in the one would equal those in the other. In the preface to the seventh edition of " Crim- inal Law " I briefly pointed out the steps by which the prac- ticing lawyers can, if they will, with little trouble and expense. PEEFACE TO FIEST EDITION. XI correct the evil and bring the day to our legal literature. An author cannot do it; the work does not belong to me. It is not the proper function of any legal writer, it is for the prac- ticing part of the profession. If they will not take up the work, mine must be to give such warning as will prevent others from throwing away their lives in feeding pirates. A good may thus be accomplished indirectly; for even the pirates know that, if honest authorship ceases, their vocation is gone. The present spectacle is amazing. Our practicing lawyers and judges constitute a body of men not surpassed in good qualities by any other in the community. If, as may happen, a lawyer sunk in the depths of wickedness utters a falsehood with every wag of his tongue, if he steals the books from the shelves of his neighbors and claims them as his own, if at night he prowls about with the pads of the burglar on his feet and in the day loads his sideboard and table with plate for which he never paid, he will sigh in vain for any recognition among his professional brethren except what the state's attorney will give him. But let the same man, with the same purpose, fear- ful of prisoQ bars, turn aside into legal authorship, — let him write his lies in a law book, — let him steal, not printed paper, sheepskin and plate, but, what is infinitely more valuable and in a just view more to be protected, the illumined jewels and star-gems which were shed with the brain-sweat and brain- blood of honest authorship, — let him put, I repeat, this stolen matter into a law book, mingled, or not, with original gangrene from his own brain, saying at every sentence, not in words, but by the more effective lie which is implied in the withhold- ing of due acknowledgment, " This is mine," thus making every page bristle with thefts and with falsehoods, then will all the learned judges, from the robed pomp of the highest judicial tribunal of the nation down through the unadorned benches of the state tribunals, listen and bow with profoundest defer- ence to what is quoted from " the learned author," decide cases by it, and honor it by writing or citing it in their opinions. Professors of law will recommend it to pupils, alike for the building up of their understandings, and the destruction of tJieir morals. And the legal reviews will stand as guards about the thief to see that no hound pursues him. Is there nothing here for reform ? Will those eminent and honored men who XU PEEFACB TO FIEST EDITION. thus inconsiderately reacti out their hands to sustain the mean- est of villains continue their encouragement forever ? Will they even join the hunt against those who plead for reform ? Until they take this further step, I shall refuse to believe that they will take it. Excellent men often do thoughtlessly, or through neglect to inform themselves of the facts, what on due enlightenment and reflection they would abhor. As a consequence of this abuse, we hear constant complaints of the quality of our legal literature. Yet the cause is obvious, and so is the remedy. When the ocean is black with pirate- craft, no one wonders that commerce languishes. And if we could imagine a state of things in which, in addition to this, all the people, including the public press, bestowed equal praise, equal rewards in money, and equal protection from the prison and the gallows, upon the mariner who, three days after leav- ing port, returned with a cargo taken at the cannon's mouth, and hira who, after a three years' voyage, brought back a like cargo for which he had honestly paid, it would not require an appeal to science to ascertain why there were so few merchant ships upon the ocean, and the few bore so little of value. The monstrosity of a human skull filled with brains both strong enough to do fit work in legal authorship and weak enough to expend their energies in feeding pirates, thus doing alike to their owner and the public a hundred-fold more harm than good, — sacrificing a life, not like our great exemplar to save the world, but like Satan in his fall to damn it, — is not abun- dant even in the dime museums. In view of the condition of things just mentioned, and in view of the further fact that books occupying the sphere of this vol- ume seems hitherto to have been the special delight of the pirates, — in view, in short, of the strong probability that the contents of this volume, which only very great labor could pro- duce, would be pillaged and swallowed, — it was but after a long struggle between inclination and duty, and with deep re- grets, that, to satisfy the just expectations of the professional public, I resolved to add this venture to the not unsuccessful ones which have gone before. If it is His will, without whose leave not even a pirate's sail was ever filled, that this frail bark shall pass through these seas unharmed to the haven beyond, I will thank God, whether man shall also have given occasion PEEFACE TO FIEST EDITION. XIU for my thanks or not. Nor should I quite despair, even if I did not remember that we have copyright laws, and that, though they need amendment, they are much more effective for the protection of an author* than the pirates commonly sup- pose. The cycles are changing. Captain Kidd could once roam the ocean, murder his victims, rob them, sink their ships; and acquire a wealth for which, in after ages, all the fools would turn out and dig. But that sort of captain has had his day, and the night for him has come. And who knows how near may be the time when Heaven's breath will find its way into the legal profession, and move the hearts of the true and sturdy ones in it to sweep clean the seas of legal authorship, and leave its path as secure as are the watery ones of commerce in times of peace ? Craving the pardon of any reader who may not understand the necessity of saying in this preface what he disapproves, I commit this volume, with the rest of the series, to the indul- gence which has hitherto made success in these labors possible. J. P. B. Cambridge, March, 1885. CONTENTS. BOOK I. PRELIMINARIES. Chaftbb Section L In GEiNERAii OF Precedents and Other FobMS 1-8 IL SuaaESTioNS as to the Drawing of the Indictment OR Information 9-36 § 9. Introduction. 10-34. Brevity and how promoted. 2S-27. Directness and distinctness of allega- tion. 28-36. Practical methods for drawing indict- ment. ni Suggestions as to Preparations for the Defense 37-41 BOOK IL COMMON TO ALL OFFENSES. rv. Familiar Allegations which are to be Omitted because Needless. 42-49 V. The Introductory and Closing Parts of the In- dictment or Information and the Indorsements Thereon 50-73 § 50-52. Introduction. 53-56. Caption. 57-64. Commencement. 65-69. Concluding part. 70-73. Indorsements. VI Allegations in the Body of the Indictment Com- mon TO All the Offenses. 73-90 § 73. Introduction. 74-77. Name and addition of defendant. 78, 79. Names of third persons. 80-90. Time and place. VH The Allegation of a Previous Offense Render- ing the Present More Heatilt Punishable 91-97 CONTENTS. Chaptbr Sbotioh VILL The Forms of Allegation against the Respect- ITB Participants in One Offense 98-130 § 98, 99. Introduction. 100-113. The attempt. 113-118. Principals and accessories in felony. 119-133. Tlie like participants in other crimes. 133-137. Compounding. 138-130. Misprision. IX Indictments and Complaints on Private Statutes AND Municipal By-laws 131-136 § 131. Introduction. 133. Private statutes. 133-136. Municipal by-laws. BOOK III. THE SPECIFIC OFFENSES. X. Abortion. 137-146 XL Adultery, Fornication, Bastardy, Living in Adul- tery OR Fornication, Open and Notorious Lewd- ness 147-163 XIL Animals, Offenses Relating to 163-177 § 163. Introduction. 164-166. Illegal marking and altering marks. 167, 168. Unlawful driving. 169. Unlawful herding. 170. Purchasing and slaughtering. 171-176. Neglect to restrain, estrays, impoimd- ing, etc. 177. Unlicensed keeping of dogs. XIII Arson and Other Burnings 178-199 § 178. Introduction. 179-190. The substantive offense. 191-195. Attempts. 196-199. Practical suggestions. XIV. Assault and Battery 200-389 § aOO. Introduction. 301-310. The indictment in generaL 311-336. Special forms and aggravations. 337-339. Practical suggestions. XV. Bankruptcy and Insolvency, Offenses Connected with 330-339 XVL Blasphemy and Profanbness ; 240-344 XVIL Bribery 245-250 OOMTENTS. XVU Chapter Bbction XVIIL BUBGLABT AND OTHER BREAKINGS 251-361 § 351. Introduction. 353--257. The substantive ofiEensa 358-361. Attempt. XIX. Carrying Weapons 263-268 XX Champerty and Maintenance 369, 270 XXL Cheats at Common Law. 371-377 XXIL Concealment op BirIh, or Child Murder 378 XXIII Conspiracy 279-315 § 279. Introduction. 380-386. Indictment in generaL 387-313. For particular conspiracies. 313-315. Practical suggestions. XXIV. Contempt of Court and the Like 316-339 § 316. Introduction. 317-331. Tlie summary proceeding. 332, 323. Indictment for disobeying judicial or- ders. 324-329. Same for other contempts. XXV. Counterfeiting and the Like as to Coin 830-344 XXVL Cruelty to Animals 345-362 XXVIL Disturbing Meetings... .< 363-372 XXVIIL Drunkenness 378-376 XXIX Dueling 377-381 XXX Election Oppenses 383-400 § 382, 383. Introduction. 384^388. Illegal voting and attempts thereat. 389-391. Offenses by election oflScers. 393-394. Other obstructions and undue influ- encing. 895-398. Betting on elections. 399, 400. Practical suggestions. XXXL Embezzlement 401-413 XXXIL Extortion 413-417 XXXin False Pretenses 418-434 XXXIV. Fish and Game 435-440 XXXV. Forcible Entry and Detainer 441-448 XXXVL Forcible Trespass i 449-453 XXXVII. Forgery op Writings and its Kindred Offenses 453-480 XXXVIII. Fraudulent Conveyances, Sales and Conceal- ments 481-487 XXXIX Gaming 488-507 XVIU CONTENTS. Chiftes Sbotion XL. Hawkees and Peddlers 508-510 XLL Health Regulations 511-514 XLIL Homicide, the Substantive Felony of 515-548 § 515. Introduction. 516-540. Indictment under comnion-law rules. 641-546. Same as modified by statutes. 547, 548. Practical suggestions. XLIIL Homicide, Attempts by Assault and Otheewisb to Commit 549-559 XLIV. Hoese-kacino and Furious Driving 560-563 XLV. Incest 563-566 XLVL Innkeeper Refusing Guest 567 XLVn. Kidnaping and False Imprisonment 568-573 XLVIIL Labor Offenses 573-580 XLIX Larceny, Simple and Compound 681-616 L. Libel and Slander 617-639 § 617. Introduction. 618-637. By written or printed words. 628-631. By signs, pictures and effigies. 633-635. By oral words. 636-639. Practical suggestions. LL Liquor Keeping and Selling ., 640-660 LIL Lord's Day 661-671 LIIL Lotteries 673-679 LIV. Malfeasance and Non-feasance in Office 680-693 LV. Malicious Injuries to the Person 693-696 LVL Malicious Mischief 697-733 § 697. Introduction. 698-700. In general 701-707. At common law. 708-717. To animals under statutes. 718-731. To other personal property under statutes. 723-730. To the realty under statutes. 731, 732. Practical suggestions. LVIL Marriage, Offenses against. 733-740 LVIIL Mayhem and Statutory Maims 741-748 LIX. Neglects 749-758 LX Neutrality Laws, Offenses against. 759, 760 LXL Noxious and Adulterated Food and the Like. . . 761-772 CONTENTS. XIX Chiptbb Bbction LXH Nuisance. 773-835 §773,774. Introduction. 775-777. In general. 778, 779. Barratry. 780-787. Bawdy-house. 788-790. Combustible and other dangerous things. 791, 793. Common scold. 793-795. Disorderly house. 796, 797. Eavesdropping. 798-801. Evil shows and exhibitions. 803-804. Exposure of person. 805-809. Gaming-house. 810-810. Injurious or offensive air. 817-833. Liquor and tippling shops. 833-836. Making self a nuisance. 837-831. Noxious and offensive trades, eta 833, 833. Offensive and hurtful noises. 834, 835. Unwholesome food and water. LXIIL Obstructing Justice and Government 836-S54 § 836, 837. Introduction. 838-848. Injuring, resisting, etc., official person. 844^847. Refusing to assist officer. 848, 849. Usurping or assuming office. 850, 851. Embracery. 853-854. Other obstructions. LXIV. Peace, Breaches op the 855-861 LXV. Pension Laws, Offenses against the 863-868 LXVL Perjury. 869-877 LXVIL Piracy 878, 879 LXVIIL Polygamy. 880-883 LXIX Postal Defenses 884^888 LXX. Prison Breach, Rescue and Escape 889-898 LXXL Prize-fighting 899-903 LXXIL Rape and Carnal Abuse or Children 903-914 LXXIIL Receiving Stolen Goods 915-918 LXXIV. Refusing Office 919 LXXV. Registry Laws, Violating. 930-933 LXXVI. Riot, Rout, Affray, Unlawful Assembly 934^930 LXXVII. Robbery 931-938 LXXVIIL Sedition. 939-943 LXXIX. Seduction and Abduction of Women 943-951 LXXX Self-murder 953-954 LXXXL Sepulture 955-958 XX CONTENTS. Chapter Section LXXXIL Slave-trade. 959-961 LXXXIII. Sodomy. 962-985 LXXXIV. Subornation of Perjury 966-969 LXXXV. Tax and other Revenue Laws 970-975 LXXXVL Threatening Letters and Other Threats 976-980 LXXXVIL Tools, Offenses as to 981-985 LXXXVIIL Treason 986-989 LXXXIX. Trespass TO Lands 990-995 XC. Unlicensed Business 996-1001 XCl Usury. 1002,1003 XCIL Vagrancy and Other Like Offenses 1004-1010 XCIIL Way 1011-1029 § 1011-1013. Introduction and general formula. 1014-1020. Ordinary and turnpike streets and roads. 1021, 1032. Railways. 1023. Public bridges. 1024, 1025. Public squares and pleassure grounds. 1036-1038. Rivers and other ways by water. 1039. Harbors and public ponds. BOOK IV. BEFORE AND AFTER. XCIV. Steps by the Defendant before Verdict 1030-1065 § 1030. Introduction. 1031, 1032. Motion to quash. 1033-1035. Plea to jurisdiction. 1036-1039. Pleas in abatement. 1040, 1041. Demurrers. 1042-1047. Pleas in bar. 1048-1050. General issue. 1051, 1053. Nolo contendere. 1053-1060. Pleadings subsequent to the pleas. 1061-1063. Setting up insanity. 1064. Change of venue. 1065. Application for continuance. XCV. The Record 1066-1073 XCVl Steps to Procure a Reversal 1074^1091 § 1074 Introduction. 1075-1077. Motion for new trial 1078. Exceptions. 1079. Arrest of judgment. 1080-1083. Certiorari. 1083-1091. Writ of error. Page Index to the Cases Cited xxi Index to the Forms AND Subjects 631 INDEX TO THE CASES CITED IN THIS VOLUME. KoT?. — Where the plaintiff is the king or queen (Eex or EefrOi the State, Commonwealth, People, United States, or the like, the defendant's name is put first. The plaintiff's is first in the other cases. Beferences are to sections. A. A- B., Rex V. (Trem. P. C. S69), 1041, 1046. Abbot, S. V. (11 Fost, N. H., 434), 642. Abbott, Eeg. v. (1 Den. C. C. 373, 3 Car. & K. 630, 2 Cox, C. C. 430), 430. , S. V. (8 W. Va. 741), 530. Abgood, Rex v. (3 Car. & P. 436), 977. Abresch, S. v. (41 Minn. 41), 950. Absence, S. v. (4 Port. 397), 743, 745. Aohterberg v. S. (8 Tex. Ap. 463), 699, 717. Aokles, S. V. (8 Wash. 462), 306. Adams v. Com. (33 Grat. 949), 583, 603. , Com. V. (1 Gray, 481), 643. , Com. V. (7 Gray, 43), 583, 916. , Com. V. (127 Mass. 15), 116, 138, 143. , P. V. (17 Wend. 475), 642. V. P. (35 Colo. 533), 680. , Rex V. (Jebb, 185), 853. V. S. (55 Ala. 143), 354. V. S. (60 Ala. 53), 583, 606. V. a (65 Ind. 5fa5), 530. , a V. (16 Ark. 497), 997, 1001. , a V. (Mart., N. C, 30), 630. , a V. (6 N. a 533),, 643. , S. V. (78 Ma 486), 438. Addison v. a (3 Tex. Ap. 40), 583. Adell V. a (34 Ind. 543), 205. Adey, Eeg. v. (1 Den. C. C. 571). 403. Adkinson v. a (5 Baxter, 569), 254. Adler, P. v. (3 Parker, C. C. 349), 1082. Admiralty Case (13 Co. 51), 116. Agee V. a (64 Ind. 840), 305. Ah Chew, a V. (16 Nev. 50), 997. Ah Ho, P. V. (1 Idaho Ter. 691), 777, 783, 787. Ah Sam, a v. (7 Nev. 137), 354. Ah Sing, P. V. (95 OaL 654), 933. Ah Toon, P. V. (68 CaL 863), 558. Ah Woo, P. V. (38 Cal. 305), 460. Ainsworth v. S. (5 How., Miss., 343X 206, 558. Airey, Rex v. (3 East, 30), 430, 435. Albert, Reg. v. (5 Q. B. 37), 777, 803. , U. a V. (45 Fed. R 552), 460. Albreoht v. S. (8 Tex. Ap. 316), 643, 658. V. a (8 Tex. Ap. 313), 85, 643, 65a Albro, Com. v. (1 Gray, 1), 643, 645. Alcott V. a (8 Blaokf. 6), 509, 997, 99a Alderman v. S. (57 Ga. 367), 583, 610. , a V. (40 Iowa. 375), 777, 783. Aldrich v. P. (101 111. 16), 916. Aldridge, S. v. (3 Dev. 331), 148. --, S. V. (86 N. C. 680), 633, 635. Aler, a V. (39 W. Va. 549), 619. Aleway, Rex v. (Trem. P. C. 314), 156, 944 Alexander v. S. (37 Tex. Ap. 94), 7a V. a (37 Tex. Ap. 533), 66. Alf ord V. a (8 Tex. Ap 545), 77. Alfred v. Com. (84 Ky. 333), 530. Alger, Com. v. (7 Cush. 53), 1012, 1029. Alibez, P. V. (49 Cal. 452), 306, 558. Alison, Reg. v. (8 Car. & P. 418). 953. Allen, Com. v. (11 Met. 403), 1012. 1020. , Com. V. (128 Mass. 46), 180. , P. V. (5 Denio, 76), 403. , Reg. V. (1 Den. C. C. 364, 3 Car. & K 869, 3 Cox, C. C. 270), 958. , Reg. V. (3 Moody, 179, 9 Car. & P. 581), 904 , Rex V. (Trem. P. C. 216), 569. V. a (4 Baxter. 31), 695. V. a (10 Ohio St. 387). 180. V. a (13 Tex. Ap 28). 310. V. a (5 Wis. 339), 643. , a V. (91 Me. 358), 1036, 103a xxu INDEX TO CASES CITED. References are to sections. Allen, S. V. (46 Conn. 531), 1043. , S. V. (8 Hawks, 614), 583. , S. V. (4 Hawks, 856), 925. , S. V. (69 Ind. 124), 489, 494. , S. V. (83 Iowa, 346), 83, 642, 777, 830, 833. , S. V. (64 Mo. 67), 1068. , S. V. (69 N. C. 23), 699, 713. AUisbach, S. v. (69 Ind. 50), 583, 598, 993. Allison V. S. (42 Ind. 354), 1013, 1031. Almon, Rex v. (20 How. St. Tr. 803), 619. Alsey V. S. (39 Ala. 664), 583, 608. Alviso, P. V. (55 Cal. 230), 520, 543. Amann v. Damm (8 C. B., N. S., 597), 619. Amarro, Rex v. (Russ. & Ry. 286), 89, 696. Am. Const. Co. v. J. T. & V. W. R Co. (53 Fed. R. 937), 323. Am. F. Ins. Co. v. S. (75 Miss. 24), 285. Amerv, Rex v. (Trem. P. C. last page), 106(). , S. V. (13 R. I. 64), 642, 644. Ames, S. v. (64 Me. 386), 106, 853. , S. V. (1 Mo. 524), 489, 506. , S. V. (10 Mo. 743), 489, 503. Ammons, S. v. (3 Murph. 123), 871. Anderson v. Baker (3 DowL P. C. 107), 76. V. Com. (5 Rand. 627), 944. V. S. (38 Fla. 3), 916. V. S. (48 Ala. 665), 58, 351 V. S. (65 Ala. 553), 460. V. S. (34 Ark. 357), 904, 905. V. S. (7 Ohio, 350). 460. V. S. (9 Tex. Ap. 177), 489. 506. . S. V. (30 Ark. 131), 489, 663, 670. , S. V. (47 Iowa, 143), 420. , S. V. (19 Mo. 341), 111, 306, 904, 910. , S. V. (3 Sm. & M. 751), 1085. . V. U. S. (170 U. S. 481), 89. Andery v. S. (56 Ind. 338), 777, 803. Andre v. S. (5 Iowa, 389), 944, 948. Andrews, Com. v. (2 Mass. 14), 916. , Com. V. (3 Mass. 126), 916. Andrews v. P. (117 111. 195), 70. , 8. V. (26 Mo. 169), 643, 650. , S. V. (51 N. H. 583), 415. Anglesea, Rex v. (18 How. St. Tr. 197), 206. Annesley, Rex v. (17 How. St. Tr. 1094), 530, 539. Anonymous (3 Camp. 74), 138, 141. (Jebb, 155), 937. (8 Wils. 136), 172. Ansoorab v. Shore (1 Camp. 385), 172. Anthony v. S. (4 Humph. 83), 489, 506. V. S. (13 Sm. & M. 263), 553. . U. S. V. (14 Blatch. 92), 973. Antle V. S. (6 Tex. A p. 303), 997, 999. Antrobus, Rex v. (6 Car. & P. 784), 680, 690. Apel, S. V. (14 Tex. 438), 176. Arbintrode v. S. (67 Ind. 367), 643, 652. Arbogast, S. v. (24 Mo. 363), 643. Arbuokle v. S. (32 Ind. 34), 990. Archer, Reg. v. (Dears. 449, 6 Cox, C. C. 515), 430. V. S. (9 Tex. Ap. 78), 643. V. S. (10 Tex. Ap. 482), 85, 643. 653. Arden v. S. (11 Conn. 408), 871, 876. Arlen v. S. (18 N. H. 563), 583. Arlington, P. v. (138 Cal. 356), 460. Armfleld, S. v. (5 Ire. 307), 452. Armington, S. v. (25 Minn. 89), 58, 881. Armstrong, Reg. v. (30 U. C. Q. B. 245), 403. V. S. (37 Tex. Ap. 463), 79. Arnold, Com. v. (4 Pick. 251), 489, 503. , P. V. (46 Mich. 368), 385, 390. , Respublica v. (3 Yeates, 417), 1012, 1015. , Rex V. (16 How. St. Tr. 695), 694, 696. V. S. (53 Ind. 381), 933. Arnope, Rex v. (Trem. P. C. 91), 374 Arrmgton, S. v. (3 Murph. 571), 583. Arter, S. v. (65 Mo. 653), 583. Arundell, Reg. v. (Trem. P. C. 271), 1045. Ashby Folville, Reg. v. (10 Cox, C. C. 269), 1046, 1059. Ashby, Ter. v. (2 Mont. Ter. 89), 1012. Ashley, Com. v. (3 Gray, 356), 83, 777, 782, 783, 784. Ashmall, Reg. v. (9 Car. & P. 236), 138, 142. Ashton, Com. v. (125 Mass. 384), 420, 483. Ashworth v. 8. (63 Ala. 120), 699, 716. V. S. (9 Tex. 490), 148. Aslett, Rex v. (2 Leach, 958, Russ. & Ry. 67, 1 N. R. 1), 403. Aspinall, Reg. v. (1 Q, B. D. 730, 2 Q. B. D. 48, 13 Cox, C. C. 231), 285. Assman, S. v. (46 S. C. 554), 680. Atkins, Rex v. (7 How. St. Tr. 231). 115, 116, 118, 520, 589. , Rex v. (Trem. P. C. 230, 3 Mod. 3, 2 Show. 236), 391. V. S. ^60 Ala. 45), 642, 652. V. S. (16 Ark. 568), 1043. • , S. V. (42 Vt. 252), 619. Atkinson, Reg. v. (11 C )x, C. C. 830), 929. , Reg. V. (11 Mod.. ';9), 415, 416. Atkyns, S. v. (1 Ala. 180), 489, 493. Atwell V. S. (63 Ala. 61), 484, 485. Atwood, Com. v. (11 Mass. 93), 460, 464, 467. Atzroth V. a (10 Fla. 207), 164, 166. INDEX TO CASES CITED. XXUl References are to sections. Auberry, S. v. (7 Mo. 304), 643, 647. Auberton, Com. v. (133 Mass. 404), 642, 659. Aucarola, U. S. v. (17 Blatch. 423), 569, 571, 573. Audley, Rex v. (3 How. St Tr. 401), 58, 904, 905, 914, 963. Aumond, Eeg. v. (2 U. C. ,Q. B. 166), 972. Austin, Reg. v. (3 Cox, C. C. 59), 1043. V. S. (12 Mo. 393), 1039. V. S. (43 Tex. 245), 1065. Avery, S. v. (44 Vt. 629), 699, 728. Avila, P. V. (43 Cal. 196), 916. Ayer, S. v. (40 Kan. 43), 871. Ayers. S. v. (8 Baxter, 96), 530, 589. Aylett, Rex v. (1 T. R. 63), 873. AyliflEe, Rex v. (Trem. P. C. 3), 987. B. Babbett v. S. (87 Ala. 91), 430. Baboock. P. v. (7 Johns. 301), 373. V. U. S. (34 Fed. R 873), 968. Baocigalupo v. Com. (33 Grat. 807), 80, 306. 556. 558. Bachelder, U, S. v. (2 Gallis. 15), 838, 841. Bacon, Com. v. (135 Mass. 521), 977, 979. , S. V. (7 Vt. 219), 420. V. Towne (4 Gush. 217), 93. Badger, Reg. v. (6 Ellis & B. 137), 415. Badgley, P. v. (16 Wend. 53), 477. Badinelli, U. S. v. (34 Fed. R. 873), 968. Bailey. Com. v. (13 Allen, 541), 437. ' , Reg. V. (4 Cox, C. C. 390), 285, 289, 489 496. , Reg.' V. (6 Cox, C. C. 39), 420. , Reg. V. (7 Cox, C. C. 179), 403. , Reg. V. (Dears. 244, 6 Cox, C. C. 241), 354, 361. , Reg. V. (Law R. 1 C. C. 347, 12 Cox, C. C. 129), 583. V. S. (3 Tex. 302), 489, 506. , S. V. (1 Fost, N. H., 343), 775, 777. , S. T. (11 Fost, N. H., 531), 871. , S. V. (34 Mo. 350), 871. , U. S. V. (47 Fed. R. 117), 679, 887. Baird, Com. v. (4 S. & R. 141), 643. Bakeman, Com. v. (105 Mass. 53), 1013, 1031, 1043. Baker, Com. v. (10 Gush. 405), 643, 650. , P. V. (3 Abb. Pr. 43), 1065. . Reg. v(Law R. 3 Q. B. 631), 750, 777. ■'" V. S. (3t> Ala. 531), 564 V. S. (3 Har. & J. 5), 489, 503. V. S. (57 Ind. 255), 680. 690. V. S. (33 Miss. 343), 1038. V. S. (5:S N. J. L. 45), 793. V. a (31 Ohio St 314), 420. ■ •, S. V. (58 Ind. 4173. 1012. Baker, S. v. (71 Mo. 475), 643. Bakewell, Rex v. (Russ. & Ry. 35), 403. Baldwin, Com. v. (11 Gray, 197), 460. , Rex V. (2 Leach, 928, note, Russ. & Ry. 241, 3 Camp. 265), 1068. , S. V. (1 Dev. &Bat 195), 777, 833. , S. V. (80 N. C. 390). 890, 895, 896. , S. V. (39 Tex. 155), 680, 685. Ball, Reg. v. (6 Cox, C. C. 360), 871. , Rex V. (6 Car. & P. 563), 853. V. S. (48 Ark. 94). 460. V. U. S. (163 U. S. 662), 530. Ballard, S. v. (26 W. Va. 90), 247. Ballon, Com. v. (124 Mass. 36), 776, 777, 782, 830. Balls, Reg. v. (Law R. 1 C. C. 338), 403. , S. V. (73 Miss. 57), 263. Baltimore & Ohio R. Co., S. v. (15 W. Va. 363), 58, 85, 663, 668. Baltimore, etc. Turnpike t. Garrett (50 Md. 68), 983. Bamfield, Rex v. (1 Moodv, 416), 460, 470. Bangor, Rex v. (36 How. St Tr. 463), 939. Bangs, Com. v. (9 Mass. 387), 138, 141. Bank v. S. (34 Tex. Ap. 559), 530. Bankhead, S. v. (35 Mo. 558), 365. Banks, Reg. v. (13 Cox, C. C. 393, 5 Eng. R. 471), 385, 287. Bannon, Com. v. (97 Mass. 214), 1038. Barbee. S. v. (136 Mo. 440), 420. Barber, P. v. (48 Hun, 198), 384. V. S. (34 Ala. 313), 916. V. S. (13 Fla. 675), 569. Barbone, Rex v. (Trem. P. C. 73), 335, 633, 634. Barbot, Rex v. (18 How. St Tr. 1330), 520. Bardv. S. (55 Ga. 319), 306, 558. Barefoot, S. v. (89 N. C. 565), 453. Barfoot, Reg. v. (13 East, 506), 247. Barker, Com. v. (13 Cush. 186), 530. V. S. (13 Tex. 373), 489, 506. , S. V. (2 Gill & J. 246), 672. , S. V. (38 Okio St 583), 1041. Barkuloo, S. v. (18 Wash. 141), 582. Barmon et al., U. S. v. (156 U. S. 464), 285. Barnardiston, Rex v. (9 How. St. Tr. 1333), 325, 619, 623. , Rex V. (Trem. P. C. 55), 631. Barnes, Com. v. (13 Gray, 36), 777, 830. , Com. V. (133 Mass. 242), 285, 286. V. S. (19 Conn. 398, 30 Conn. 232), 642, 652. V. S. (9 Tex. Ap. 128), 933. Barnesciotta v. P. (10 Hun, 137), 1037. Barnett v. S. (54 Ala. 579), 997. , S. V. (3 Kan. 350), 933, 936. , S. V. (83 N. C. 615). 881. Barney, Com. v. (10 Cush. 480), 180. T. S. (12 Sm. & M. 68), 1038. XXIV INDEX TO CASES CITED. Eeferenoes are to sections. Barnoldswick, Reg. v. (4 Q. B. 499), 1046. Baroisse, Reg. v. (5 Cox, C. C. 559), 420. Barran, Reg. v. (Jebb, 245), 582, 592. Barrett, Com. v. (108 Mass. 302), 900, 902. , P. V. (1 Johns. 66), 285, 290. , Reg. V. (3 Car. & K. 343), 520, 530. , Reg. V. (Leigh & C. 263, 9 Cox, C. C. 255), 777, 782. V. a (35 Ala. 406), 1043, 1044. , S. V. (8 Iowa, 536), 460, 466. , S. V. (43 N. H. 466), 173, 174. , a V. (20 R. I. 313), 998. Barring v. Com. (3 Duv. 95), 777, 810, 816. Barrows v. R (11 IlL 121), 1064. Barrv, Reg. v. (4 Fost. & F. 389), 385, 290". Barth v. a (18 Conn. 432), 82, 643, 647. Bartholomew, Reg. v. (1 Car. & K. 366), 871. Bartilson, Com. v. (4 Norris, Pa., 482), 285 291 Bartlett v. a (21 Tex. Ap. 500), 558. , S. V. (55 Me. 300), 54^ 58, 87, 254, ,582, 585, 586, 593. Bartlej" v. Riohtmyer (4 Comst. 88), 394. Bartman. P. v. (81 CaL 200), 871. Barton, Reg. v. (11 A & E. 343), 1012, 1017. V. a (89 Ark. 68), 583. V. a (13 Neb. 260), 1038. , a V. (142 Mo. 450), 558. Bass V. a (63 Ala. 108), 699, 716. V. a (29 Ark. 142), 890, 895. V. a (17 Fla. 685), 56. Bassett v. Spofford (11 N. H. 127), 93. Batchelder, S. v. (5 N. H. 549), 443, 446, 857. Bateman, a v. (3 Ire. 474), 460. Bates, Reg. v. (3 Cox, C. C. 301), 430. , a V. (10 Conn. 373). 148, 149. Bathhurst, Rex v. (Say. 335), 442. Batre v. S. (18 Ala. 119), 328. Batstone. Reg. v. (10 Cox, C. C. 30), 180, 885. Batterson v. a (63 Ind. 531), 58, 904, 908. Battery, a v. (6 Baxter, 545), 560. Battle V. a (4 Tex. Ap. 595), 306, 904, 910. Baugh, U. a V. (4 Hughes, 501), 885. Baughman, a v. (20 Iowa, 497), 777, 830, 822. Baumer v. a (49 Ind. 544), 564. Baumon, S. v. (53 Iowa, 68), 58, 460, 470, 1041. Baxter, Rex v. (Trem. P. C. 45), 631. Baxter, Rex v. (Trem. P. C. 196), 1013, 1026. . Rex V. (Trem. P. C. 265), 944, 945. Bayley, Reg. v. (Dears. & B. 121), 403. Bayly, Rex v. (Trem. P. C. 216), 569. Baynton, Reg. v. (14 How. St. Tr. 597), 944 Beal, a V. (37 Ohio St. 108), 354. Beale, Com. v. (5 Pick. 514), 173. Beall V. a (53 Ala. 460), 354 Beaman, Com. v. (8 Gray, 497), 583. Beamish, Com. v. (31 Smith, Pa., 389), 460, 474, 475. Bean, Com. v. (11 Cush. 414), 699, 737. , a V. (36 N. H. 133), 306, 316. Beans v. Emanuelli (36 Cal. 117), 93. Beard v. S. (54 Ind. 413), 582, 593. Beardmore, Rex v. (3 Bnr. 793), 317. Bearse, Com. v. (108 Mass. 487), 111, 306, 213, 326, 558. , Com. V. (133 Mass. 542), 365, 372. Beasley v. P. (89 111. 571), 520, 538. V. a (50 Ala. 149). 530, 543. Beasom, S. v. (40 N. H. 367), 838, 840. Beatty v. Gilderbanks (15 Cox, C. C. 138), 937. , U. S. V. (60 Fed. R. 740), 430. Beaver, P. v. (49 Cal. 57), 354 Becall, Rex v. (1 Car. & P. 310), 403. Bechtelheimer v. S. (54 Ind. 138), 530, 538. Beckman, S. V. (57 N. H. 174), 1013, 1031. Beckwith v. P. (36 111. 500), 306, 556, 558. Beokwortb, S. v. (68 Mo. 83), 254 Beechey, Rex v. (Russ. & Ry. 319), 403. Begg, Rex v. (28 How. St. Tr. 849), 987. Beggs V. a (55 Ala. 108), 881. ^' V. a (133 Ind. 54), 993. Beekman, S. y. (3 Dutcher, 134), 699, 717. Beery v. U. S. (2 Col. Ter. 186), 885. Beeton, Reg. v. (Temp. & M. 87, 3 Car. & K. 960), 916. Behee, P. v. (90 Mich. 356), 420. Behm, S. v. (72 Iowa, 533), 526. Belding, Com. v. (13 Met. 10), 83, 1013, 1015. Belk V. Broadbent (3 T. R. 183), 93. Bell, Com. v. (17 Ky. L. R. 277), 438. V. a (5 Eng. 536), 333. 343. V. a (1 Swan, Tenn., 42), 633, 635. V. S. (1 Tex. Ap. 598), 933. V. a (89 Ala. 61), 363. , a V. (37 Md. 675), 306, 315. , a V. (5 Port. 365), 58, 1013, 1036. Bellville, S. v. (7 Baxter. 548), 1013, 1017. Belvin, U. S. v. (46 Fed. R. 381), 392. Bem bridge. Rex v. (33 How. St. Tr. 1, 3 Doug. 327), 680, 687. Ben V. a (23 Ala. 9), 206. INDEX TO CASES CITED. XXV References are to sections. Ben V. S. (9 Tex. Ap. 107), 489, 506. Benedict v. S. (12 Wis. 313), 56. , S. V. {11 Vt. 236), 977. Benfield, Rex v. (3 Bur. 980), 638, 635. Ben.iamin, P. v. (2 Parlser, C. C. 201), 1082. — , S. V. (49 Vt. 101), 643, 646. Benner. U. S. v. (5 Cranoh, C. C. 347), 777, 794. Bennett v. AUcott (2 T. R. 166), 294. , Com. V. (108 Mass. 27), 777, 820. , Com. V. (118 Mass. 443), 403, 404, 407. , P. V. (5 Abb. Pr. 884), 642, 644. , P. V. (37 N. Y. 117), 58. , Reg. V. (3 Den. C. C. 340, 3 Car. & K. 124, 5 Cox, C. C. 207), 871. , S. V. (62 'Ark. 516), 460. , S. V. (4 Dev. & Bat. 43), 442, 452. , S. V. (102 Mo. 356), 998. , U. S. V. (12 Blatchf. 345), 864. , U. a V. (16 Blatchf. 388 1. 887. Benson v. S. (1 Tex. Ap. 6), 699. , S. V. (28 Minn. 424). 430. 433. , U. S. V. (17 C. C. A. 293). 285. Bent, Reg. v. (1 Cox, C. 0. 356, 1 Den. C. C. 157, 2 Car. & K. 179), 384, 387. Bentley, S. v. (6 Lea, 305), 263, 866. Benton v. S. (59 N. J. L. 551), 619. Ben well. Rex v. (6 T. R. 75), 973. Bergman v. Backer (157 U. S. 655), 543. Berkley v. S. (4 Tex. Ap. 122), 1078. Bernard, Reg. v. (1 Post. & F. 240), 116, 520, 538. Berrian v. S. (2 Zab. 9), 1068. Berrisford v. S. (66 Ga. 53). 460. Berritt. S. v. (17 N. H. 268). 929. Berry v. S. (67 Ind. 332), 643, 653. V. S. (10 Tex. Ap. 315), 973, 974. Berryman, S. v. (8 Nev. 363), 583. Berthand, Rex v. (4 Went. PI. 55), 436. Bess, S. V. (30 Mo. 419), 148, 158. Best, Reg. v. (8 Moody, 134), 127. , Reg. V. (6 Mod. 137, 2 Ld. Raym. 1167), 285, 300. Bethel, Rex v. (8 How. St. Tr. 747), 206. Bethune v. S. (48 Ga. 505). 254. Betsall, S. v. (11 W. Va. 703), 254. Betsworth, Rex v. (Trem. P. C. 93), 274. Bettesworth, Rex v. (Trem. P. C. 221), 919. Bettilini, U. S. v. (1 Woods, 654), 972. Betts. Reg. v. (Bell, C. C. 90, 8 Cox, C. C. 140), 583. , Reg. V. (16 Q. B. 1033), 1013, 1015. Beverhn, S. v. (30 Kan. 611). 558. Bevington v. S. (3 Ohio St. 160), 460, 467. Bevins. S. v. (70 Vt. 574), 509. Bibb V. S. (83 Ala. 84), 503. , S. V. (68 Mo. 286), 460, 471. Bickford, U. S. v. (4 Blatch. 337), 866. Bid well, Reg. v. (1 Den. C. C. 232, 3 Car. & K. 564, 2 Cox, C. C. 398), 333. Bieber v. S. (45 Ga. 569), 118, 916. Bierman, Com. v. (13 Bush, 345), 673, 677. Biers, Rex v. (1 A. & E. 327), 285. Bigaouette v. Paulet (134 Mass. 123), 294. Bigby V. S. (44 Ga. 344), 148. Bigham v. S. (31 Tex. Crim. R. 244), 254. Biggleston, Rex v. (Trem. P. C. 10), 520. Bilbro V. S. (7 Humph. 534), 642, 650. Billingham, Rex v. (2 Car. & P. 234), 899. Billings V. S. (107 Ind. 54), 460. Billingsley, S. v. (43 Tex. 93), 223, 935. Binger v. P. (31 111. Ap. 867), 391. Binns, Rex v. (26 How. St. Tr. 595), 633, 940. V. 8. (38 Ind. 277), 1065. Birchfield, Ex parte (52 Ala. 377), 1010. Bird V. Randall (8 Bur. 1345), 308. , Reg. V. (5 Cox, C. C. 1, 11, 3 Den. C. C. 94), 306, 214, 520, 1043, 1059. , Reg. V. (12 Cox, C. C. 357, 4 Eng. R. 533), 583. . Rex V. (35 How. St. Tr. 750). 987. Bishop, S. V. (7 Conn. 181), 983. — , S. V. (51 Vt. 287), 254. Biswell, Reg. v. (2 Cox, C. C. 279), 944. 945. Bittick V. S. (40 Tex. 117), 206, 558. Bittings V. S. (56 Ind. 101). 460. Bittle V. S. (78 Md. 526), 558. Bixby V. Dunlap (56 N. H. 456). 803. Black V. S. (36 Ga. 447). Ill, 583, 614. V. S. (57 Ind. 109), 904, 905. V. S. (3 Md. 376), 699, 720. Blackburn, Com. v. (1 Duv. 4), 285, 312, 943. V. S. (23 Ohio St. 146), 520, 533, 540. Blackson, Rex v. (8 Car. & P. 48), 116, 118. Blackwell v. S. (36 Ark. 178), 642, 651. , S. V. (3 Ind. 539). 699, 726. , S. V. (lOS. C. 35), 318. Blagge V. Ilsley (127 Mass. 191), 294. Blair, Com. v. (126 Mass. 40). 138, 142. V. Forehand (100 Mass. 136), 177. , S. T. (41 Tex' 30), 489. Blaisdell, S. v. (49 N. H. 81), 254 Blake, Com. v. (12 Allen, 188), 642. 777, 820. V. Lanyon (6 T. R. 221), 808. , Reg. V. (6 Q. B. 126), 285, 312. , Rex V. (Trem. P. C. 41), 942. , Rex V. (Trem. P. C. 194), 890. 893. XXVI INDEX TO CASES CITED. Eeferences are to sections. Blake, S. v. (39 Ma 332), 306, 904, 906, 910. V. U. S. (18 C. C. A. 117), 839. Blan, S. V. (69 Mo. 317), 520. Blancliard, Com. v. (105 Mass. 173), 643, 646. , P. V. (90 N. Y. 314), 420. Blanchett, Com. v. (157 Mass. 486), 420. Bland v. Com. (10 Bush, 622). 695. Blandy, Rex v. (18 How. St Tr. 1118), 530. 533. Blaney. Com. v. (133 Mass. 571), 206, 743, 74.1 Blann v. S. (39 Ala. 353), 1012, 1033. Blason v. Bruno (33 Barb. 530), 482. Blauvelt, S. v. (9 Vroom, 306), 420. Blevinss Case (5 Grat. 703 1, 582. Blitz V. U. S. (153 U. S. 308). 384. Blizard v. Kelly (2 B. & C. 383), 98. Blizzard, S: v.-(70 Md. 385), 430. Block V. 8. (66 Ala. 493), 643. , U. S. V. (15 Bankr. Reg. 335, 4 Saw. 311), 231. Blodgett. Com. v. (13 Met. 56), 569, 570. Bloedow. S. V. (45 Wis. 379), 742. Bloom V. P. (33 Colo. 416), 3a3. V. S. (57 Miss. 752), 513. Bloomer v. S. (48 Md. 531), 385, 391. Bloomaeld, Reg. v. (Car. & M. 537), 430. Bloomhuff V. S. (8 Blackf. 305), 777, 794 Bloor, S. V. (30 Mon. 574), 680. Blunt, Reg. v. (1 How. St. Tr. 1409), 987. Blythe, S. v. (1 Dev. & Bat. 199), 643. Boardman, S. v. (64 Me. 523),777, 782. Bobbitt, S. V. (70 N. C. 81), 871. Bode V. S. (7 Gill, 326), 643, 653. Bogan V. S. (84 Ala. 449), 643. Bogardus. S. v. (4 Mo. Ap. 315), 363. Bogart, P. V. (3 Parker, C. C. 143, 3 Abb. Pr. 193), 680, 688, 1083. Boggs, U. S. V. (31 Fed. R. 337), 871. Bohannon, S. v. (31 Mo. 490), 306. Bohl V. S. (3 Tex. Ap. 683), 642, 653. Bolm, S. V. (19 Wash. 36), 937. Boies, S. V. (34 Me. 335), 939. Bokien, S. v. (14 Wash. 403), 430. Boland, Ex parte (11 Tex. Ap. 159), 136. Boles V. S. (58 Ark. 35), 79. Bolin V. S. (51 Neb. 581), 67. Boling, S. (3 Humph. 414), 82. BolUom, Com. v. (3 Pick. 281). 489, 503. Bolton V. S. (5 Coldw. 650), 582. Bond, Com. v. (1 Gray, 564), 337. , Rex V. (27 How. St Tr. 533), 987. Bonker v. P. 37 (Mich. 4), 734 Bonnell v. S. (64 Ind. 498), 420. Bonner v. S. (55 Ala. 343), 583, 593. Bonnet, Eex v. (15 How. St Tr. 1331), 879. Bonney v. S. (3 Idaho, 1015), 619. , S. V. (34 Me. 323), 460. 467. Bontien, Rex v. (Russ. & Ry. 260), 460, 473. Boogher, S. v. (3 Mo. Ap. 443), 619. Book, S. V. (41 Iowa. 550), 58, 489, 503. Bool, S. V. (62 Ark. 512), 365. Boon, Com. v. (2 Grav, 74). 374 , S. V. (4 Jones, N. C, 463), 13, 46, 272, 419, 420, 432. Booth V. Com. (7 Met 385), 148. , Cora. V. (2 Va. Cas. 394). 206. , Rex V. (Russ. & Ry. 7), 337. Bootie, Rex v. (2 Bur. 864), 890, 895. Boott, Com. V. (Thacher, Crim. Cas. 390). 378. Bovk V. P. (91 N. Y. 5), 403, 409. Borrego v. Ter. (8N. M. 446), 520. Borum v. S. (66 Ala. 468), 254 Boss, S. V. (74 Ind. 80), 263. Bostick V. S. (34 Ala. 266), 460, 461. Bostock V. S. (61 Ga. 635), 520. Boston Glass Manuf. v. Binney (4 Pick. 435), 303. Boston & Worcester R. Co., Com. v. (11 Cush. 513), 520, 531. Bos worth. Com v. (113 Mass. 200), 1043. , P. V. (64 Hun, 72), 254 , S. V. (51 Conn. 1), 349. , S. V. (13 Vt 402), 1012, 1016. Botlield, Reg. v. (Car. & M. 151). 1012. Boucher, Rex v. (Trem. P. C. 150), 66, 874 1068. Boughner, S. v. (5 S. D. 461), 642. Boulov. S. (49 Ala. 23), 1010. Boult, Reg. V. (3 Car. & K. 604), 460, 475. Boulton, Keg. v. (1 Den. C. C. 508, 2' Car. & K. 917, 3 Cox, C. C. 576), 420, 437. Bourne. Rex v. (4 Went PL 43), 403.. Bouvier, Com. v. (160 Mass. 398), 871. Bowel V. S. (106 Ala. 178), 79. Bowen, Com. v. (13 Mass. 356), 952, 953. , Reg. V. (3 Cox, C. C. 483), 430. , Reg. V. (1 Den. C. C. 32, 1 Car. & K. 501), 933. , Reg. V. (13 y. B. 790), 420. , S. V. (16 Kan. 475), 80, 520, 544. Bower, Rex v. (Cowp. 323), 272. Bowler, Reg. v. (Car. & M. 559), 384, 388. V. S. (41 Miss. 570), 420. Bowlus, S. V. (3 Heisk. 29), 871. Bowman, Com. v. (3 Barr, 202). 1013. V. Russ (6 Cow. 334), 93. Boyall. Rex v. (3 Bur. 833), 333. Boyd V. S. (4 Baxter, 319), 696. V. S. (4 Minn. 331), 556. INDEX TO CASES CITED. XXVll Eeferences are to sections. Boyden, U. S. v. (1 Lowell, 366), 973. Boyer, Corn. v. (2 Wheeler, Grim. Cas. 140), 285. , S. V. (70 Mo. Ap. 156), 206. Boyes, Eeg. v. {1 B. & S. 811), 247, 249. Bovington, S. v. (56 Me. 512), 384, 385. Boykin v. S. (34 Ark. 443). 582. 592. Boyle, Eeg. v. (7 Cox, C. C. 428), 173. , S. V. (25 Md. 509), 1086. Boynes, Eeg. v. (1 Car. & K 65), 871, 877. Boynton, Com. v. (12 Cusk 499), 763, 765, 767. , Com. V. (2 Mass. 77), 460, 466. , Com. V. (116 Mass. 343), 188, 142. Boys, Eex v. (Say. 143), 323. Brackett v. S. (2 Tyler, 152), 1069, 1083. Braddee v. Com. (6 Watts, 530), 460. Bradden, Eex v. (Trem. P. C. 85), 941. Braddon, Eex v. (9 How. St. Tr. 1127), 968. Bradford, Com. v. (9 Met. 268), 384, 386. ■ , Com. V. (136 Mass. 42), 180, 185, 186. , Eeg. V. (Bell, 368, 8 Cox, C. C. 309), 1013, 1031. ■ , S. V. (33 La. An. 931), 206. 558. Bradlaugli, Eeg. v. (15 Cox, C. C. 317), 343, 343. , Eeg. V. (2 Q. B. D. 569, 3 Q. B. D. 607), 619, 636. Bradley, Com. v. (3 Cush. 553), 881, 883. . Com. V. (16 Gray, 341), 206. V. S. (33 Ark. 704), 58, 87, 254. V. S. (10 Sm. & M. 618). 553. , S. V. (48 Conn. 535), 285. , S. V. (68 Mo. 140), 430. , S. V. (34 Tex. 95), 206, 838, 839. Bradshaw, Eex v. (17 Car. & P. 238), 173. 174 Brady, Eeg. v. (Jebb, 357), 115, 558. , Eex V. (1 B. & P. 187, 2 Leach, 803), 206, 838, 839. ■, Eex V. (1 Leach, 327), 871, 876. , S. V. (107 N. C. 833), 385. Brahany, Com. v. (123 Mass. 245), 177. Branohport, etc. IPlankroad. P. v. (5 Parker, C. C. 604), 1012, 1017. Brand v. U. S. (18 Blatch. 384), 887. Brandon, S. v. (28 Ark. 410), 642, 647. Brandreth, Eex v. (32 How. St. Tr. 755), 987. Brandt v. Com. (18 Norris, Pa., 290), 58, 116, 520, 543. • , S. V. (41 Iowa, 593), 403, 409. Brannan, Eeg. v. (14 Cox, C. C. 394), 113. , S. V. (50 Iowa, 373), 916. Brant, S. v. (14 Iowa, 180), 699, 737. Brantley v. S. (13 Sm. & M. 468), 206, 558. Braun, Eeg. v. (9 Cox, C, C. 284), 237. Bray, Eeg. v. (9 Cox. C. C. 218), 871. , S. v. (1 Mo. 180). 206. Braynell, Eeg. v. (4 Cox, C. C. 403), 977 979. Brazean, U. S. v. (79 Fed. E. 464), 887. Brazier v. S. (66 Ala. 96), 699, 723. Breden, Eeg. v. (16 U. C. Q. B. 487), 520 539 Brenan, Reg. v. (6 Cox. C. C. 381). 173. Bressant. Com. v. (126 Mass. 246), 1043. Brewer, Eex v. (6 Car. & P. 363), 460, 468. V. S. (59 Ala. 101), 881. V. S. (5 Tex. Ap. 348). 699, 733. , S. V. (33 Ark. 176), 322, 935. , S. V. (8 Mo. 373), 680, 691. Brewster, U. S. v. (7 Pet. 164), 460, 466. Bridges v. S. (37 Ark. 334), 58, 85, 663, 665. , , S. V. (34 Mo. 353), 395. Bridgraan, S. v. (49 Vt. 203), 148, 149. Briellat, Rex v. (22 How. St. Tr. 909), 683, 940. Brien v. Com. (5 Met. 508), 1090. Briggs, Com. v. (11 Met. 573), 642, 655. , Eex V. (1 Moody, 318, 1 Lewin, 61), 306, 696, 742, 747. , S. V. (1 Aikens, 336), 699, 705. Briley, S. v. (8 Port. 472), 742, 745. Brilliant, P. v. (58 Cal. 314), 871. Brinster v. S. (13 Tex. Ap. 613), 33, 904. Brisby, Eeg. v. (3 Car. & K. 962, 1 Den. C. C. 416), 323. Bristow V. S. (36 Tex. Crim. E. 379), 206. Britain v. S. (3 Humph. 208), 148, 777, 802. Britt V. State (9 Humph. 31), 420. Brocker, S. v. (32 Tex. 611), 352, 699, 717. Brockway v. S. (36 Ark. 629), 489, 503. Brodrib, Rex v. (6 Car. & P. 571), 853. Broil V. S. (45 Md. 356), 437. Bromley, S. v. (25 Conn. 6), 376. Brooks. Com. v. (9 Gray, 399), 699, 714. , Eex V. (Trem. P. C. 151), 53, 876. , Rex T. (Trem. P. C. 175), 93. , Eex V. (Trem. P. C. 195), 90, 828, 831, 850. , S. V. (43 Tex. 63), 403, 409. , U. S. V. (4 Cranoh, C. C. 437), 364, 365, 867. Broome v. Eeg. (13 Q. B. 834), 54. , Eex V. (4 Went. PI. 31), 193. Brotherton, Eex v. (1 Stra. 702, 3 Sess. Cas. 224), 662. Broughton, Eex v. (Trem. P. C. Ill), 415. , State V. (71 Mass. 90), 403. Brower, P. v. (4 Paige, 405), 318. Brown v. Com. (8 Mass. 59), 460, 467. V. Com. (2 Va. Cas. 516), 378. XXVlll INDEX TO CASES CITED. Eeferences are to sections. Brown v. Com. (86 Va. 466), 66. , Cora. V. (14 Gray, 419), 31, 138. , Com. v. (15 Gray, 189), 484, 485. . Com. V. (121 Mass. 69), 138, 142. , Com. V. (12 Met. 523), 642, 650. , Com. V. (13 Met. 365), 777, 838, 831. V. P. (86 111. 339', 460, 475. V. P. (39 Mich. 232), 582. , P. V. (27 Cal. 500), 583. •, Reg. V. (Car. & M. 314), 847. , Reg. V. (3 Car. & K 504, 3 Cox, C. C. 137, 1 Den. C. C. 291), 420, 738, 922. -, Reg. V. (3 Cox, C. C. 348), 420. , Reg. V. (7 Cox, C. C. 443), 385, 291 , Reg. V. (10 Q. B. D. 381), 109. V. S. (6 Baxter, 423), 306, 904, 910. V. S. (5 Eng. 607), 489. V. a (48 Ga. 689), 489, 503, 507. V. S. (48 Ind. 38), 642. V. S. (76 Ind. 85), 699. V. S. (2 Lea, 158), 1010. V. S. (26 Ohio St. 176), 699, 715. V. S. (2 Tex. Ap. 115), 46, 385, 388. V. S. (7 Tex. Ap. 619), 254. V. S. (13 Tex. Ap. 358), 347. -v. S. (104 Ga. 535), 643. , S. V. (16 Conn. 54), 1013. - — , S. V. (69 Ind. 95), 929. , S. V. (8 Jones, N. C, 443), 583, 602. , S. V. (12 Minn. 490), 415. , S. V. (7 Ore. 186), 520. , S. V. (1 R. L 528), 460. , S. V. (113 N. C. 645), 933. , S. v.(47 Ohio St. 102), 564. , S. V. (6 Wash. 609), 838. . U. S. V. (58 Fed. R. 558), 391. Browne, Rex v. (Jebb, 31), 994. Browning, Reg. v. (3 Cox, O. C. 437), 871, 877. V. S. (1 Tex. Ap. 96), 206, 558. V. S. (2 Tex. Ap. 47), 206, 316. Bruce, S. v. (5 Ore. 68), 384, 386. Bruckheimer. Com. v. (14 Gray, 39), 509. Brunskill, Reg." v. (8 U. C. Q. B. 546), 973, Brunson, S. v. (3 Bailey. 149), 148, 156. Bruton v. S. (31 Tex. 337), 1065. Bryan v. S. (45 Ala. 86), 643, 652. V. S. (44 Ga. 328), 577. , S. V. (89 N. C. 531), 699, 727. , S. V. (112 N. C. 848), 430. Bryant v. P. (119 Cal. 595), 430. V. S. (73 Ind. 400), 205, 1043. V. S. (116 Ala. 445), 583. , S. V. (17 N. H. 323), 460, 464, 474. Bryden, Com. v. (9 Met. 137). 642. Bryson. S. v. (82 N. C. 576). 365. Bubb, Reg. v. (4 Cox, 0. C. 455), 520, 535. Buchanan, P. v. (1 Idaho Ter. 081), 777, 783. , Reg. V. (3 Cox, C. C. 36),. 997, 1001. V. S. (55 Ala. 154), 148. , S. V. (5 Har. & J. 317), 285, 391. Buck, Com. V. (13 Met. 534). 643. , S. V. (43 Mo. Ap. 443), 619. Buckingham, Cora. v. (2 Wheeler, Crira. Cas. 181), 619, 627. Buokland v. Com. (8 Leigh, 733), 75, 460, 466. Buckles V. EUers (73 Ind. 230), 294. Buckley, Com. v. (145 Mass. 181), 79. V. S. (3 Greene, Iowa, 163), 460, 466. Buckman. S. v. (8 N. H. 303), 763. 766. Buckner.'S. v. (52 Ind. 278), 642, 649. Buokwell, Reg. v. (9 Cox, C. C. 883), 235. Budge V. Parsons (3 B. & S. 382), 361. Buffingtou, S. V. (20 Kan. 599), 944, 951. Bull, Com. V. (13 Bush, 656), 673, 677. , Reg. V. (13 Cox, C. C. 608), 419, 430. V. Tilt (1 B. & P. 198), 1045. Bullion, S. V. (43 Tex. 77), 489, 503. Bulloch V. S. (10 Ga. 46), 403. Bullock, Reg. v. (Dears. 653), 385,391. , Reg. V. (Law R. 1 C. C. 11.5). 353. V. S. (13 Tex. A p. 42), 180. Bulman, Com. v. (118 Mass. 456), 777, 794, 795. Bulmer, Reg. v. (Leigh & C. 476, 9 Cox, C. C. 493), 430. Bunn, Reg. v. (13 Cox, C. C. 316), 285, 308. Bunnell v. Greathead (49 Barb. 106), 294. , S. V. (81 Ind. 315), 642. Buntin v. S. (68 Ind. 38), 933, 937. Bunyan, Reg. v. (1 Cox, C. C. 74), 777, 802. Burohard v. S. (3 Oreg. 78), 043, 653. Burd V. S. (39 Tex. 509), 430, 430. Burdette, S. v. (145 Mo. 674), 254. Burdine v. S. (25 Ala. 60), 489, 493. Burgess v. Coney (Trem. P. C. 315), 1068. , P. V. (35 Cal. 115), 254. , Reg. V. (Leigh & C. 358, 9 Cox, C. C. 347), 111, 954 V. S. (44 Ala. 190), 699, 716. Burgon, Reg. v. (Dears. & B. 11), 430. Burgson, S. v. (53 Iowa, 318), 460. Burke's Case (1 Lewin. 318), 460, 464. Burke, Cora. v. (121 Mass. 39), 662, 649. , V. P. (4 Hun, 481), 743. , P. V. (34 Cal. 661), 904, 905. , Reg. V. (10 Cox, C. C. 519), 1065. V. S. (34 Ohio St. 79), 80. V. S. (5 Tex. Ap. 74), 354. INDEX TO OASES CITED. XXIX References are to sections. Burke, S. v. (151 Mo. 136), 70. Burks, Rex v. (7 T. R. 4), 619. Burling, S. v. (103 Iowa, 681), 460. Burn by v. Bollett (16 M. & W. 644), 765. Burnel, Rex v. (2 Leach, 588), 582. 588. Burner v. Com. (13 Grat. 778), 977, 1001. Burnett, Rex v. (4 M. & S. 272), 777, 810, 814. Burnham v. Morrissey (14 Gray, 226), 321. Burnham v. S. (37 Fla. 327), 619. Burns v. Com. (3 Met., Ky., 13), 215, 695. V. P. (5 Lans. 189), 384, 388, 871, 876. , P. V. (75 Cal. 627), 390. • ; P. V. (131 CaL 529), 582. , P. V. (53 Hun, 274), 79. , S. V. (80 N. C. 376), 484, 485. , S. V. (20 N. H. 550), 643. , U. S. V. (54 Fed. R. 351), 1026. Burnsides, Reg. v. (Bell, 0. C. 283, 8 Cox, C. C. 370), 420. Burrell, Reg. v. (10 Cox, C. C. 462), 1013. , Reg. V. (Leigh & C. 354), 944. , S. V. (86 Ind. 313), 633, 635. Burridge, Reg. v. (3 Moody & R 296), 977. Burroughs, P. v. (1 Parker, C. C. 211), 871, 875. V. S. (17 Fla. 643), 520. , S. V. (3 Halst. 436), 699, 734 BuiTow V. S. (7 Eng. 65), 430. Burrows, S. v. (11 Ire. 477), 272. Burt, S. V. (25 Vt. 373), 838, 843. Burton, Reg. v. (13 Cox, C. C. 71, 13 Eng. R. 418), 111. , Rex v. (1 Moody, 237), 403. , Rex V. (4 Went. PI. 38), 473. -^, S. V. (3 Ind. 93), 415, 416. Bush, P. V. (4 Hill, N. Y., 183), 105, 180, 194, 195. V. S. (5 Tex. Ap. 64), 364, 365, 371. V. S. (55 Neb. 195), 1043. Butcher,- Reg. v. (Bell, C. C. 6, 8 Cox, C. C. 77), 420. -, S. V. (79 Iowa, 110), 365. Butland, Com. v. (119 Mass. 317), 871. Butler V. P. (4 Denio, 68), 354, 355, 257. , P. V. (3 Cow. 347), 94, 583. , P. V. (3 Parker, C. C. 377), 530, 1082. , P. V. (Ill Mich. 483). 285. , Rex V. (6 Car. & P. 368), 111, 206, 224 225 V. a (34 Ark. 480), 206, 558. V. S. (17 Ind. 450), 1012, 1023. V. S. (25 Fla. 347), 643. , S. V. (Conference, 331), 442. , S. V. (26 Minn. 90), 403. Butler, S. v. (47 Minn. 483), 420. , U. S. V. (1 Hughes, 457), 394. Butman, S. v. (43 N. H. 490), 553. Butter, Rex v. (13 How. St. Tr. 1249), 460. Butterfleld, Reg. v. (2 Moody & R. 533, 1 Cox, C. C. 39), 117. , S. V. (75 Mo. 397), 254. Butterick, Com. v. (100 Mass. 1), 408. , Com. V. (100 Mass. 13), 460. Butterworth, Reg. v. (13 Cox, C. C. 132, 2 Eng. R. 195), 582. Button, Reg. v. (8 Car. & P. 660), 206, 213. , Reg. V. (3 Cox, C. C. 229, 11 Q. B. 929), 285. Buxton, Com. v. (10 Gray. 9), 777, 820. , S. V. (2 Swan, Tenn., 57), 680. Bybee, S. v. (17 Kan. 462), 306, 212, 558, 1078. Byford, Rex v. (Russ. & Ry. 531), 354, 255 Bykerdike, Rex v. (1 Moody & R. 179), 285, 308. Byrd v. S. (1 How., Miss., 247), 1090. Byrne, Reg. v. (4 Cox, C. C. 248), 96. , Rex V. (27 How. St. Tr. 455). 987. , Rex V. (38 How. St. Tr. 806), 987. , S. V. (45 Conn. 273), 180, 185. Byrnes, Com. v. (126 Mass. 248), 642, 644. Byron, Rex v. (19 How. St. Tr. 1177), 530. , S. V. (30 Mo. 210), 148, 158. 0. C. D., S. V. (N. Chip. 284), 1069. C. T., Rex V. (Ti-em. P. C. 144), 875. Cabannes, P. v. (30 CaL 525), 699. Cable V. S. (8 Blackf. 531), 777, 817, 820. Cadle, S. v. (19 Ark. 613), 575. Cadwell v. S. (17 Conn. 467), 777, 782, 784. Caesar, P. v. (1 Parker, C. C. 645), 94, 582. , S. V. (9 Ire. 391), 520. Cagle, S. V. (2 HumpK 414), 148, 156. Cain V. S. (18 Tex. 387), 575. , S. V. (8 W. Va. 720), 642. , S. V. (9 W. Va. 559), 642, 652. Caister, Reg. v. (30 U. C. Q. B. 247), 984. Caldwell v, Richards (2 Bibb, 331), 93. V. S. (49 Ala. 34), 58, 699, 702, 716. V. S. (63 Ind. 283), 395, 396. V. S. (2 Tex. Ap. 53), 169. , S. V. (79 Iowa, 432), 420. , S. V. (112 N. C. 854), 420. . S. V. (28 Tex. Ap. 566 1, 520. Calef, Com. v. (10 Mass, 153), 148, 158. xxs INDEX TO OASES CITED, Eeferences are to sections. Call, Com. V. (21 Pick. 515), 420. , S. V. (48 N. H. 126), 419, 420, 424. Callahan v. S. (63 Ind. 198), 944, 949. Calligan, S. v. (17 N. H. 353), 206, 553, 558. Callingwood, Reg. v. (2 Ld. Raym. 1116, 6 Mod. 288), 106, 583. 611. Calvert v. S. (8 Tex. Ap. 538), 66. Camden Turnpike v. Fowler (4 Zab. 205), 983, 984. Cameron, S. v. (3 Heisk. 78), 403. Cammeyer, S. v. (8 La. An. 312), 1078. Camp V. Bennett (16 Wend. 48), 1087. V. S. (25 Ga. 689), 520. Campbell v. Com. (3 Norris, Pa., 187), 58, 580, 543. V. Com. (2 Rob., Va., 791), 699, 723 V. Com. (9 Smith, Pa., 266), 48, 365, 368. , Com. V. (116 Mass. 32), 777, 820. V. Cooper (34 N. H. 49), 308. ■ V. P. (8 Wend. 636), 871, 876. V. Reg. (1 Cox, C. C. 269, 11 Q. B. 799, 3 Cox, C. C. 463), 582, 588, 1068, 1090. , Reg. v. (18 U. C. Q. B. 413), 420. , Rex V. (2 Leaoh, 564). 582, 588. , Rex V. (Trem. P. C. 34), 944 V. S. (55 Ala. 89), 489, 503. , S. V. (12 R. L 147), 643, 644. , S. V. (44 Wis. 539), 403. Campion, Reg. v. (28 U. C. Q. B. 259), 983. Canada, S. v. (48 Iowa, 448), 1064 Canney, S. v. (19 N. H. 135), 254 Canning, Rex v. (19 How. St. Tr. 283), 871. Canter v. P. (1 Abb. Ap. 305), 1043. ■ V. S. (7 Lea, 349), 420. Canterbury, S. v. (8 Fost., N. H., 195), 1012, 1023. Cantor v. P. (5 Parker, C. C. 217), 43, 58, 94 460. 475. Cantril, U. S. v. (4 Cranch, 167), 460, 466. Canwell, Reg. v. (11 Cox, C. C. 263), 206, 214 Cape V. Scott (Law R. 9 Q. B. 269), 173. Capp, Cora. V. (12 Wright, Pa., 53), 1084 Carabin, S. v. (33 Tex. 697), 176. Carcan, S. v. (90 Me. 142), 403. Carder v. S. (17 Ind. 307). 205. Cardoza, S. v. (11 S. C. 195), 385. Cardoze, Com. v. (119 Masa 210), 777, 782, 787. Carel, Com. v. (105 Mass. 582), 871, 874 Carew v. Rutherford (106 Mass. 1), 303. Carey, Com. v. (2 Pick. 47), 460. 466. , P. V. (Sheldon, 573), 777, 794 Cargen v. P. (39 Mich. 549), 520. Cargo of Sugar, U. S. v. (3 Saw. 46), 973. Carland. S. v. (3 Dev. 114), 871. Carlile, Reg. v. (1 Cox, C. C. 239), 46, 620, 631. , Rex V. (6 Car. & P. 636), 639. Carlisle, Reg. v. (Dears. 337, 6 Cox, C. C. 36B), 385, 391. , Respublica v. (1 Dall. 35), 987. V. S. (78 Miss. 387), 933. Carlton v. Com. (5 Met. 532), 254 Carpenger, P. v. (5 Parker, C. C. 338), 699, 725, 726. Carpenter, Com. v. (108 Mass. 15), 979. — V. P. (8 Barb. 603), 944 , P. V. (1 Mich. 273), 1013. V. S. (4 How., Miss., 163). 56. , S. V. (63 Mo. 594), 663. 668. , 8. V. (20 Vt. 9), 325. 328. , S. V. (54 Vt. 551), 838, 840. Carper v. S. (37 Ohio St. 572), 489. Carr v. S. (34 Ark. 448). 263. V. S. (50 Ind. 178), 777, 805. V. S. (5 Tex. Ap. 153), 642, 656. -^^ — , S. V. (43 Iowa, 418). 933. -, S. V. (25 La. An. 407), 460, 475. — -, S. V. (5 N. H. 367), 460, 466. , S. V. (6 Oreg. 133). 489. Carrico v. S. (11 Mo. 579), 206, 215. Carrillo, P. v. (54 Cal. 63), 403. Carroll, P. v. (3 Parker, C. C. 73), 1083. , Rex V. (1 Leach, 55), 742, 743. V. S. (58 Ala. 396), 993. Carruthers, Reg. v. (1 Cox, C. C. 138), 977. Carson, Com. v. (6 Phila. 381), 489. Carter, Reg. v. (1 Cox, C. C. 170), 460, 470. , Reg. V. (10 Cox, C. C. 645), 430. V. S. (55 Ala. 181), 384 V. S. (53 Ga. 336), 583, 610. V. S. (5 Tex. Ap. 458), 520. V. S. (29 Tex. Ap. 5), 891. , S. V. (Conference, 210), 530. , S. V. (49 S. C. 265), 180. V. Ter. (1 New Mex. 317), 1038. , U. S. V. (4 Cranch, C. C. 732), 1034 Cart Wright's Case (114 Mass. 330), 317. Carver v. S. (69 Ind. 61), 85, 663, 668. , S. V. (49 Me. 588), 116, 354 256, 583, 585, 586. , S. V. (13 R. I. 385), 642. Gary, S. v. (4 Wash. 424), 999. Cases of Books, U. S. v. (3 Bond, 371), 973. Casey, P. v. (73 N. Y. 393), 80, 206, 214 217. V. S. (37 Ark. 67), 520. Caslin, Rex v. (Trem. P. C. 219), 919, 1046. Casper v. S. (47 Wis. 535), 285. Cassady, S. v. (12 Kan. 550), 60, 254 INDEX TO CASES CITED. XXXI References are to sections. Cassel, S. v. (2 Har. & G. 407 \ 583, 603. Casteel, S. v. {53 Mo. 134j, 583. Casson v. S. (37 Fla. 331), 1043. Castle, Reg. v. (Dears. & B. 363, 7 Cox, C. C. 375), 849. Castleberry v. S. (63 Ga. 443), 699, 730. Castles, Com. v. (9 Gray, 123), 460, 464, 472. Castleton, P. v. (44 How. Pr. 238), 680, 687. Castro, Reg. v. (Law R. 9 Q. B. 219), 318. Cathcart v. Robinson (5 Pet. 264), 481. Catholic Protectory, P. v. (61 How. Pr. 445), 1010. Catlin, Com. v. (1 Mass. 8), 148. Cavanagh, P. v. (3 Parker, C. C. 650), 1083. Cawood, S. V. (3 Stew. 360', 285, 300. Cellier, Rex v. (7 How. St. Tr. 1043), 987. Central Bank v. Veasev (14 Ark. 671), 93. Central Bridge, Com. v. (12 Cush. 342), 1012, 1023. Cesure v. S. (1 Tex. Ap. 19), 180. Chadbourn, S. v. (80 N. C. 479), 997, 998. Chaffee, U. S. v. (4 Ben. 330). 864. . U. S. V. (2 Bond, 110 , 973. Chalkley, Rex v. (Russ. & Ry. 258), 699, 717. Chalmers, P. v. (5 Utah, 301, 374), 206. , Rex V. (1 Moody, 353), 460, 472. Chamberlain, 8. v. (6 Nev. 257), 530. Chamberlin. S. v. (30 Vt. 559), 871. Champion, Rex v. (Trem. P. C. 138), 460, 463. Chancellor v. S. (47 Miss. 378). 564. Chandler, P. v. (1 Buf. 560), 430. , P. V. (4 Parker, C. C. 331), 430. ; Reg. V. (Dears. 453, 6 Cox, C. C. 519), 46, 750, 751. , S. V. (2 Harring., Del., 553), 44, 341, 343. , S. V. (34 Mo. 371), 306, 212, 555, 558. Cliapin V. P. (57 III. Ap. 577), 318. , S. V. (17 Ark. 561), 1046. Chapman v. Com. (5 Whart. 437), 180. , Com. V. (11 Cush. 423), 520. V. P. (39 Mich. 357). 530. , Reg. V. (1 Den. C. C. 433, 2 Car. & K. 846, 3 Cox, C. C. 467), 871, 876. , S. .-. (6 Nev. 320), 116, 933. Chappie, Rex v. (Russ. & Ry. 77), 699, 713. Charles v. P. (1 Comst. 180), 679. V. S. (6 Eng. 389), 306. Charleston, Reg. v. (l.B. & S. 460, 9 Cox, C. C. 40), 1043. Charretie, Reg. v. (3 Cox, C. C. 499), 394 Charretie, Reg. v. (13 Q. B. 447), 247. Chartrand, S. v. (36 Iowa, 691), 777, 782, 784. Chase, Com. v. (125 Mass. 202), 763, 767. , Com. V. (127 Mass. 7), 985. V. P. (3 Col. Ter. 509), 489, 777, 805. , P. V. (16 Barb. 495), 385. V. S. (50 Wis. 510), 520. Cheaney V. S. (36 Ark. 74), 944, 950. Cheatham v. S. (59 Ala. 40', 180, 1041. Cheek v. S. (38 Ala. 337), 750. Cheezem y. S. (3 Ind. 149), 643. Cherry, S. v. (3 Murph. 7), 520. Chetwynd, Rex v. (18 How. St. Tr. 290), 520. Chezem v. S. (56 Neb. 496), 583. Chick V. S. (7 Humph. 161), 743, 745. Chidester v. S. (35 Ohio St. 433), 460, 477. Child, Com. v. (13 Pick. 198), 619. , Reg. V. (5 Cox, C. C. 197), 871. , Reg. V. (Law R. 1 C. C. 307, 13 Cox. C. C. 64), 180, 187. 699. , S. V. (43 Kan. 611), 206. Childers, S. v. (32 Greg. 119), 460. Childs V. S. (55 Ala. 25), 1064. V. S. (15 Ark. 204), 934, 925. Chiles V. S. (1 Tex. Ap. 27). 489, 506. Chiovaro, Com. v. (129 Mass. 489), 113, 116, 530, 539. Chisholm, Com. v. (103 Mass. 313), 643, 644. Chittenden v. Catlin (3 D. Chip. 32), 93. V. S. (41 Wis. 385), 619. Chrisp, S. V. (85 N. C. 538 1, 343. Christey, Reg. v. (1 Cox, C. C. 339), 975 Christian v. Com. (33 Grat. 954), 111, 306, 904, 910. , Reg. V. (Car. & M. 388), 871. Christman, S. v. (67 Ind. 328), 642, 654. Christopher, Reg. v. (Bell, 37, 8 Cox, C. C. 91), 96, 582. Chumley, S. v. (67 Mo. 41), 306, 558. Church, Com. v. (1 Barr, 105), 1013, 1036. Churchill, Com. v. (3 Met. 118), 642. . S. V. (35 Me. 306), 643, 655. Claflin, U. S. v. (13 Blatch. 178), 97a Clapp, Com. V. (5 Gray, 97). 642, 655. , Com V. (5 Pick. 41), 672, 679. Clare, Rex v. (28 How. St. Tr. 887),- 987. Clarissa, S. v. (11 Ala. 57), 111, 206, 213, 326. Clark V. Com. (5 Casey, Pa., 139), 1034. , Com. V. (3 Ashm. 105), 378. V. P. (3 Lans. 339), 420. XXXll INDEX TO CASES CITED. References are to sections. Clark, P. V. (10 Mich. 310), 385, 390. , Reg. V. (Dears. 198, 6 Cox, C. C. 310, 3 Car. & K 367), 96, 583. , Reg. V. (Law R. 1 C. C. 54, 10 Cox, C. C. 338), 1013, 1031. , Rex V. (1 Brod. & B. 473), 530, 533, 1043. , Rex V. (Russ. & Ry. 181), 583. V. S. (19 Ala. 553), 489. V. S. (46 Ala 317), 306. V. S. (117 Ala. 1), 530. , a V. (3 Ind. 451), 643. , S. V. (8 Ire. 236), 58, 583. , a V. (54 N. H. 456), 148, 158. , a v; (33 Vt. 293). 642. , S. V. (43 Vt. 629), 87, 353, 254 , a V. (72 Iowa, 30), 438. , U. a V. (4 Bankr. Reg. 59), 231. , U. a V. (Crabbe, 584), 403, 885. Clarke, Reg. v. (1 Car. & K. 431), 354. — , Rex V. (Cowp. 35), 489, 491. , Rex V. (3 Leach, 1036), 583. , Rex V. (4 Went. PI. 47), 538, 539. , Rex V. (4 Went. PI. 50), 879. V. S. (8 Ohio St. 630), 58. , S. V. (46 Iowa, 155), 1064. Clary v. S. (33 Ark. 561), 933. , a V. (64 Me. 369), 285. Clay V. P. (86 HI. 147), 619. -J- V. S. (43 Ala. 350), 430. V. a (3 Tex. Ap. 499), 148. Clayton v. a (60 Md. 272), 777, 828, 831. , a V. (33 Ark. 185), 643, 997. , U. a V. (3 Dil. 219), 391. Cleary v. a (56 Ark. 134), 068. Cleaveland v. a (20 Ind. 444), 643. Clegg, Reg. V. (3 Cox, C. C. 295), 699, 719. Clement v. Milner (3 Esp. 95), 172. , Reg. V. (36 U. C. Q. B. 297), 106, 871, 874. Clements v. P. (5 Parker, C. C. 337), 460, 469. Cleveland v. a (8 Tex. Ap. 44), 993. . 8. V. (58 Me. 564), 520. Cleworth, Reg. v. (4 B. & a 937), 85, 88, 663. Click V. a (3 Tex. 283), 569. . a V. (3 Ala. 36), 66, 363. Clifford, Com. v. (8 Cush. 315), 933. V. a (56 Ind. 345), 420. Clinch, Rex v. (1 Leach, 540), 460.470. Cline, P. V. (44 Mich. 290), 420. Close, a V. (35 Iowa, 570), 58, 763, 777, 810, 816. Closs, Reg. V. (Dears. & B. 460, 7 Cox, C. C. 494), 273. 375. Cloud V. a (36 Ark. 151), 643, 653. Clough, P. V. (17 Wend. 351), 420. Clouser v. Clapper (59 Ind. 548), 394. Cluck V. a (40 Ind. 363). 1078. Clue, Com. v. (3 Rawle, 498), 1043. Coal-Heavers' Case (1 Leach, 64), 695. Coames, S. v. (47 Kan. 136), 403. Coats V. P. (4 Parker, C. C. 662), 403, 1033, 1086. Cobb, Rex v. (4 Went. PI. 79), 296. , S. v. (1 Dev. & Bat. 115), 58, 777, 1012, 1027. Cobbett, Rex v. (29 How. St. Tr. 3), 619, 633. Cobbett's Case (Whart St. Tr. 333), 619,637. Cobel v. P. (5 Parker, C. C. 348), 138, 143, 530, 538. Coburn, Com. v. (133 Mass. 555), 530, 531. Cochran v. P. (175 IlL 28), 143. Cookreham v. S. (7 Humph. 11), 364, 365, 370. Codling, Rex v. (38 How. St. Tr. 178), 699 721 Cody! Com. v. (165 Mass. 133), 933. V. a (100 Ga. 105), 403. Coe. Com. v. (115 Mass. 481), 480. Coffey, S. v. (41 Tex. 46), 206, 838. 839. Coffin, U. a V. (156 U. S. 433), 114. Coggins V. a (7 Port. 263), 66, 489, 493. Coggswell, S. V. (3 Blackf. 54), 415. Cohea v. S. (11 Tex. Ap. 632), 116, 354, 356. Cohen, Ex parte (6 Cal. 318), 320. , Com. v. (130 Mass. 198), 43, 58,916. V. P. (5 Parker, C. C. 330). 58, 916. , P. V. (8 Cal. 42), 403. , P. V. (118 Cal. 74), 871. V. a (50 Ala. 108), 916. V. a (33 Ark. 236), 489, 506. -v. S. (37 Tex. Crim. R. 118), 415. Cohn, a V. (9 Nev. 179), 180, 189. Colbert, S. v. (75 N. C. 368), 871. Golden v. Eldred (15 Johns. 330), 1'73. Cole V. P. (84 111. 216), 285, 399. , Rex V. (Trem. P. C. 198), 828, 831. V. a (5 Eng. 318), 306, 558, 1068. V. a (10 Eng. 318). 109. Coleman v. Com. (25 Grat. 865), 460, 474, 475. , P. V. (10 Cal. 334), 520. V. a (3 Tex. Ap. 513), 254. , a V. (5 Port. 33), 520, 539. Colemer, Rex v. (Trem. P. C. 58), 940. Colepeppar, Rex v. (Trem. P. C. 190), 206, 233. Collberg, Com. v. (119 Mass. 350), 222. CoUedge, Rex v. (8 How. St. Tr. 550), 987. Collioott, Rex v. (2 Leach, 1048, Russ. & Ry. 212), 460, 476. Collier v. a (4 Tex. Ap. 12), 353, 699, 711. Collins V. Com. (3 S. & R 320), 285, 289. , Com. V. (2 Cush. 556), 663, 664. INDEX TO CASES CITED. XXXlll References are to sections. Collins V. Larkin (1 R. I. 219), 173. V. P. (39 III 233), 938. 934. , Reg. V. (9 Car. & P. 456), 619, 621. , Reg. V. (Leigh & C. 471, 9 Cox, C. C. 497), 111, 583, 613. , Rex V. (3 Leach, 837), 460. V. S. (58 Ind. 5), 777, 830. , S. V. (3 Hawks, 191), 343. , S. V. (48 Me. 317), 83, 777, 830. , S. V. (4 N. Dak. 438), 79. , S. V. (63 Vt. 195), 871. Colly V. S. (55 Ala. 85), 430. Colmer, Rex v. (Trem. P. C. 58), 683. Colter, S. V. (6 R. 1. 195), 354, 255. Colton. Com. v. (8 Gray, 488), 86, 489, 503, 563, 670. , Com. V. (11 Gray, 1), 643, 655. Com. V. S. (84 Va. 582), 642. Combs, a V. (130 N. C. 607), 699. Comer, Rex v. (1 Leach, 36), 354. Comfort V. Com. (5 Whart. 437), 58, 846. , S. V. (5 Mo. 357), 206, 558. Commings, Rex v. (5 Mod. 179), 680, 688. Compton, Rex v. (7 Car. & P. 189), 87, 254. V. 8. (13 Tex. Ap. 371), 564. Concannon, Com. v. (5 Allen, 503), 403. Conev, Reg. v. (8 Q. B. D. 53'4, 15 Cox, C. C. 46), 899. V. S. (3 Tex. Ap. 62), 306, 216. Conger, P. v. (1 Wheeler, Crim. Cas. 448), 420. Coningsmark, Rex v. (9 How. St. Tr. 1), 520. Conlee, S. v. (35 Iowa, 237), 680. Conley, S. v. (39 Me. 78), 54, 58, 520. Conn V. S. (110 Ala. 56), 781. Connell, Reg. v. (6 Cox, C. C. 178), 1043, 1059. Conner v. Com. (3 Binn. 38), 680, 690. V. Com. (13 Bush, 714), 520. V. Com. (2 Va. Cas. 30), 871. V. a (14 Mo. 561), 254. V. a (6 Tex. Ap. 455), 58, 583. , a V. (30 Ohio St. 405), 642. Connohan, a v. (10 Wash. 368), 743. Connolly, Com. v. (97 Mass. 591), 430. Connor, P. v. (17 Cal. 354), 582. Conolly V. P. (3 Scam. 474), 206, 933, 984. Conoly V. a (2 Tex. Ap. 413), 354. Conrad, U. a v. (59 Fed. R. 458), 679. Conroy, In re (54 How. Pr. 433), 1010. Conspirators, Rex v. (3 How. St. Tr. 159), 987. Conway v. Reg. (1 Cox, C. C. 210). 1044, 1059. Conwell V. S. (3 Ind. 387), 929. Cony, Com. v. (3 Mass. 523), 415. Cook, Rex V. (13 How. St. Tr. 311), 987. V. a (11 Ga. 53), 82, 564 , a V. (53 Ind. 574), 460. , U. a V. (17 Wall. 168), 509. V. Wood (30 Ga, 891), 294. Cooke, P. V. (6 Parker, C. C. 31), 43, 58, 430, 425. , Reg. V. (1 Post. & M. 64), 420. V. a (25 Fla. 698), 643. Cooley V. a (55 Ala. 162), 881. Coombes, Rex v. (1 Leach, 388), 520, 538. Cooper, Reg. v. (3 Car. & K. 586), 460. , Reg. V. (1 Den. C. C. 459, 3 Cox, C. C. 559, 3 Car. & K. 876), 306, 318. , Reg. V. (Law R. 3 C. C. 133), 403, 411. , Reg. V. (1 Q. B. D. 19, 13 Cox, C. C. 133), 420. , Reg. V. (2 Q. B. D. 510, 13 Cox, C. C. 617), 420. — - V. 8. (37 Ark. 413), 484, 48.5. V. a (37 Ark. 431), 484, 485. V. 8. (75 Ind. 63), 365. V. a (101 Ga. 788), 403. V. a (106 Ga. 119), 1088. , S. V. (33 La. An. 1084), 1078. Cope. Rex v. (6 A. & E. 226, 7 Car. & P. 720), 680, 690. Copeland, Reg. v. (Car. & M. 516), 420, 425. Copely, Ter. v. (1 N. M. 571), 489, 502. Copp, a V. (15 N. H. 212), 838, 840. Copping V. 8. (7 Tex. Ap. 61), 365. Corbett, Reg. v. (4 Fost. & F. 555), 760. , a V. (1 Jones, N. C, 364), 272. , 8. V. (12 R. L 288), 619. Cordell v. 8. (i2 Ind. 1), 530. Core V. James (LawR. 7 Q. B. 135), 33. Corley, S. v. (4 Bax. 410), 460. Corll, 8. V. (73 Ind. 535), 642. Cornelius v. 8. (13 Tex. Ap. 349), 904, 905. Cornell v. 8. (7 Bax. 520), 777, 810, 813. V. a (85 Md. 1), 420. Cornwall v. Reg. (33 U. C. Q. B. 106), 569. 1086, 1090. Corrigan, 8. v. (34 Conn. 276), 642. Corson, a v. (59 Me. 137), 58, 871, 875. Cosser, Reg. v. (13 Cox. C. C. 187), 403. Costello, Com. v. (118 Mass. 454), 777, 820. , Com. V. (133 Mass. 193), 642, 659. Costley, Com. v. (118 Mass. 1), 58, 530. Cothran v. 8. (39 Miss. 541), 871. Cottle, a V. (15 Me. 473), 643, 655. , a V. (70 Me. 198), 439. Cotton, a V. (4 Fost., N. H., 143), 583, 603. Cottril, a V. (31 W. Va. 163), 643. Coulson, Reg. v. (1 Den. C. C. 593, 4 Cox, C. C. 237), 430, 433. XXXIV INDEX TO CASES CITED. Eeferenoes are to sections. Counsil. S. V. (Harper. 53), 916. Courtney, Reg. v. (7 Cox, C. C. Ill), 871. Cousins v. S. (50 Ala. 113), 997, 1001. Coverdale v. S. i60 Ind. 307), 643, 649. Covinston v. S. (6 Tex. Ap. 513), 168. Covey V. S. (33 Tex. Ap. 390), 871. Covy V. S. (4 Port. 186), 489, 503. Cowdin, S. v. (38 Kan. 269), 430. Covvell, S. V. (4 Ire. 331), 148. Cowley V. P. (21 Hun, 415, 83 N. Y. 464, 8 Abb. New Cas. 1), 46. 75, 81, 750, 751, 753. Cowper, Rex v. (13 How. St. Tr. 1106), 520. Cox, Com. V. (7 Allen, 577), 699, 718. , P. V. (9 Cal. 33), 530. , Reg. V. (3 Cox, C. C. 58), 695. , Rex V. (Trem. P. C. 253), 577. V. S. (8 Tex. Ap. 354), 66. V. a (13 Tex. Ap. 479). 871. , S. V. (32 Mo. 566), 997, 998. Coxhead, Rex v. (1 Car. & K 623), 378. Coxwell V. S. (66 Ga. 309), 530. Coy, Ex parte (137 U. S. 731), 385. Crabtree, 8. v. (27 Mo. 333), 663, 664. Craddoclc, Reg. v. (3 Den. C. C. 31, 4 Cox, C. C. 409), 583, 589, 603. Craft, S. V. (73 Mo. 456), 111, 583, 614. Cramer. P. v. (5 Parker, C. C. 171), 642, 1043, 1059, 1068. Cramp. Reg. v. (5 Q. B. D. 307, 14 Cox, C. C. 401), 109, 138, 141. , Rex V. (Russ. & Ry. 337), 426. Crane, U. S. v. (3 Clif. 211). 332. Craven, Rex v. (Russ. & Ry. 14), 583, 601. Crawford, Com. v. (9 Gray, 128), 489, 503. ■ , Reg. V. (2 Car. & K. 139, 1 Den. C. C. 100), 306, 313. V. S. (33 Ind. 304), 777, 805. V. S. (94 Ga. 773). 363. , S. V. (10 Rich. 361), 148, 159. Crawshaw, Reg. v. (Bell, C. C. 303, 8 Cox, C. C. 375), 673, 777, 819. Creed. Com. v. (8 Gray, 387), 306, 313, 558. Creevey, Rex v. (1 M. & S. 373), 619. Crespin, Reg. v. (11 Q. B. 913), 206. Crichton v. P. (6 Parker, C. C. 368, 1 Abb. Ap. 467). 138, 141. Crighton, Rex v. (Russ. & Ry. 63), 403. Crim V. S. (43 Ala. 53), 180. Crirani v. Com. (119 Mass. 826), 1068, 1089, 1090. Crisham, Reg. v. (Car. & M. 187), 115, 904 914 Crisp', Rex v. (1 B. & Aid. 283), 127. Crispe, Rex v. (Trem. P. C. 83), 385, 810. Crissie, P. v. (4 Denio, 525), 420, 428. Crocker v. Mann (3 Mo. 473), 173. , Rex V. (3 Leach, 987, Russ. & Ry. 97, 3 New R. 87), 460, 464. V. 8. (47 Ala. 53), 933. Crof ton V. S. (35 Ohio 8t. 349), 777, 783, 785, 786. Crofts V. P. (3 Scam. 443), 460, 469. Cronin, P. v. (34 CaL 191), 520. , Reg. V. (36 U. C. Q. B. 343). 180. Crook, Rex v. (6 How. St Tr. 301), 919. Crookham v. S. (5 W. Va. 510), 206, 556, 558. Cropper, Reg. v. (3 Moody, 18), 460, 472. Crosby, 8. v. (17 Kan. 896), 403. , U. S. V. (1 Hughes, 448), 385, 312. Cross V. P. (47 111. 152), 66, 460, 469. , Rex V. (Trem. P. C. 13fi), 875. , Rex V. (Trem. P. C. 236), 691. , 8. V. (44 W. Va. 815 1, 1043. Crossfield, Rex v. (26 How. St. Tr. 1), 987. Crossley, Rex v. (7 T. R. 315), 4, 871, 873, 874 Crossly, Com. v. (162 Mass. 515), 67. Crosswell, P. v. (3 Johns. Cas. 337), 619. Crow V. S. (41 Tex. 468), 206. Crowe, In re (3 Cox, C. C. 123), 940. V. P. (93 111. 331), 619. Crowley, P. V. (23 Hun, 413), 365, 366. , S. V. (41 Wis. 371), 285, 390. Crowner. 8. v. (56 Mo. 147), 148, 158. Crowther, Com. v. (117 Masa 116), 85, 663, 666, 670. Crozier v. P. (1 Parker, C. C. 453), 944, 949. , S. V. (12 Nev. 300), 530. Cruikshank, U. S. v. (1 Woods, 308), 394 Crump V. Com. (84 Va. 937), 301. Crumpton. Reg. v. (Car. & M. 597), 520, 530. Cruse, Reg. v. (3 Moody, 53, 8 Car. & P. 541), 306, 314 Crusen v. S. (10 Ohio St. 358), 871. Culkin. Rex v. (5 Car. & P. 131), 530. Cumberland v. Rex (3 B. & P. 354), 1013, 1033. Cummings, Com. v. (6 Gray, 487), 643. Cummins v. S. (58 Ala. 387), 347. V. S. (13 Tex. Ap. 121), 582, 608. Cundick, Rex v. (D. & R., N. P., 13), 956. Cunningham, Com. v. (13 Mass. 245), 1043. , P. V. (1 Denio, 534), 776, 777, 838, 831. , P. V. (3 Parker, C. C. 581), 1083. V. 8. (3 Speers, 346), 878. V. 8. (61 N. J. L. 666), 420. Cure, S. V. (7 Iowa, 479), 777, 805. INDEX TO CASES CITED. XXXV Eeferenoes are to sections. Curlin v. S. (4 Yerg. 143), 332, 935. Curling, Rex v. (Russ. & Ry. 123), 879. Curran, Com. v. (119 Mass. 206), 642, 644. , S. V. (51 Iowa, 113), 944, 948. Currie v. Henry (2 Johns. 433), 93. Curry v. S. (17 Fla. 683), 164. V. S. (4 Tex. Ap. 574), 206, 904, 910. Curtis, Com. v. (9 Allen, 366), 136, 171. , Com. V. (11 Pick. 134), 583, 588, 1043. V. P. (Breese. 197 1, 206. 558. V. P. (1 Scam. 385), 206, 558. , S. V. (4 Dev. & Bat. 233), 442. , S. V. (30 La. An. 814), 254. Custer, S. v. (65 N. 0. 339), 1010. Cuthbert, S. v. (T. U. P. CharL 13), 1079. Cuthell, Rex v. (27 How. St. Tr. 642), 619, 631. Cutter, fe. V. (65 Mo. 503), 58. Cutts, Reg. V. (4 Cox, C. C. 435), 871. Cyphers, P. v. (5 Parker, C. C. 666), 1038, 1086. D. D., Rex V. (Trem. P. C. 371), 1034. Daily v. S. (10 Ind. 536), 583, 593. Dakin v. Hudson (6 Cow. 331), 93. Dale, Reg. v. (Dears. 37, 6 Cox, C. C. 93), 680, 687. , Rex V. (1 Moody, 5). 530. , S. V. (8 Oreg. 239), 403. , S. V. (141 Mo. 384), 354. Dana. S. v. (59 Vt. 614). 151. Dalton, P. V. (58 Cal. 326), 958. , S. V. (27 Mo. 13), 206, 212, 558. Damerest v. Baring (6 Cow. 76', 619. Dammaree, Reg. v. (15 How. St. Tr. 522), 987. Damon, S. v. (2 Tyler, 287), 1043. Dana, Com. v. (3 Met. 339), 673, 678. Danby, Rex v. (11 How. St. Tr. 599), 1045. Daney, S. v. (83 N. C. 608), 306, 904, 910. Danforth, S. v. (3 Conn. 112), 306, 556, 558. Danger. Reg. v. (Dears. & B. 307, 7 Cox, C. C. 303). 420, 437. Daniel v. S. (61 Ala. 4), 420. , S. V. (89 N. C. 553), 577. Daniels. Com. v. (3 Va. Cas. 403), 865. V. S. (60 Ala. 56), 993. Dann, Rex v. (1 Moody, 434), 1043. Dannelly, Rex v. (Russ. & Ry. 310), 116. 354, 356. Darley, Rex v. (4 East, 174), 489, 507. Darling, Com. v. (139 Mass. 112), 353, 254, 356. Darnell v. S. (43 Tex. 147), 167. V. S. (6 Tex. Ap. 482), 346. Dashing v. S. (78 Ind. 357), 337. Daukwart, S. v. (107 Iowa, 704), 246. Davenport, etc. R. Co., S. v. (47 Iowa, 507), 1012. Davidson, Com. v. (1 Cush. 33), 420. v. Goodall (18 N. H. 433), 394 . S. V. (38 Mo. 374), 933. Davis's Case (Chase, Decis. 1), 987, 1031. Davis v. Com. (13 Bush, 318), 80, 881. V. Com. (6 Casey, Pa., 431), 699. , Com. V. (9 Mass. 415), 285, 291. , Com. V. (131 Mass. 353), 643. V. Com. (98 Ky. 708), 933. , P. V. (4 Parker, C. C. 61), 306, 313, 558. , P. V. (31 Wend. 309), 460, 467. , P. V. (73 Cal. 355), 530. , Reg. V. (11 Cox, C. C. 181), 420, 434 , Reg. V. (2 Moody, 177, 9 Car. & P. 437), 460, 475. , Reg. V. (18 U. C. Q. B. 180), 420. . Rex V. (1 Leach, 493), 695. ■ V. S. (54 Ala. 88), 254 V. S. (3 Coldw. 77). 354 V. S. (33 Ga. 98), 80, 582, 588. V. S. (40 Ga. 339), 583. V. S. (3 Har. & J. 154), 109,- 306, 963, 965. V. S. (52 Ind. 488), 777, 805, 820. V. S. (69 Ind. 130), 933. V. S. (39 Md. 355). 520. V. S. (7 Ohio, 204), 489, 503. V. S. (19 Ohio St. 270), 58, 489, 502. V. S. (32 Ohio St. 24), 489, 502. V. S. (43 Tex. 326), 904, 908. V. S. (2 Tex. Ap. 162), 176. V. S. (4 Tex. Ap. 456). 306, 213. V. S. (13 Tex. Ap. 215), 164. V. S. (51 Neb. 301), 1043. V. S. (72 Wis. 54), 569. , S. V. (41 Iowa, 311), 530. , S. V. (53 Iowa, 353), 460, 464, 473, 474. , S. V. (2 Ire. 153). 58, 164. , S. V. (23 Minn. 423), 58, 384, 385. , S. V. (29 Mo. 391), 206, 212. , S. V. (70 Mo. 467), 753, 754. , S. V. (69 N. C. 313), 460. , S. V. (84 N. C. 787), 871. , S. V. (87 N. C. 514), 530. , S. V. (26 Tex. 301), 206, 212, 558. , U. S. V. (5 Mason, 356), 583. V. Utah (151 U. S. 262), 520, 543. Davison, Reg. v. (3 Fost. & F. 350, 8 Cox, C. C. 360), 1043, 1044, 1059. , Rex V. (31 How. St. Tr. 99), 680, 687. Davitt, Reg. v. (11 Cox, C. C. 676), 987. Dawes, Reg. v. (33 U. C. Q. B. 333), 984. XXXVI INDEX TO CASES CITED. Eeferences are to sections. Dawkins, S. v. (33 S. C. 17), 354. Dawson v. P. (35 N. Y. 399), 206, 314, 556, 558. V. S. (53 Ind. 478), 992. , U. S. V. (Hemp. 643), 55, 58, 520. Day V. Com. (33 Grat. 915), 489, 503. V. a (31 Tex. Ap. 213), 665. V. S. (52 Ind. 478), 992. , S. V. (100 Mo. 348), 871. , S. V. (52 Ind. 483), 1012, 1015. , S. V. (3 Vt. 138), 1012, 1016. Dealy v. U. S. (152 U. S. 539), 285. Dean, Com. v. (110 Mass. 64), 420,438. , Com. V. (21 Pick. 334), 643. V. S. (Mart. & Yerg. 127), 489. V. S. (147 Ind. 215), 403. Dean, Rex v. (4 Went. PI. 53), 337. Dearborn, S. v. (15 Me. 402), 983, 984. , S. V. (54 Me. 442), 206, 838, 839. Deasy, Reg. v. (15 Cox, C. C. 334). 987. Deavitt. S. v. (47 Vt. 287), 375. Debbs, U. S. v. (64 Fed. R. 724), 322. .U. S. V. (65 Fed. R. 210), 285. De Berenger, Rex v. (3 M. & S. 67), 285, 310. Deberry, S. v. (5 Ire. 371), 373. Debolt, S. V. (104 Iowa, 105), 977. Deokard, v. S. (38 Md. 186), 871. Dedham, Com. v. (16 Mass. 141), 750, 755. Deeds, Rex v. (Trem. P. C. 233), 691. Deer. Reg. v. (Leigh & C. 340, 9 Cox, C. C. 325), 916. Degey, P. t. (3 Wheeler, C'rim. Cas. 135), 365, 366. De Grieff, U. S. v. (16 Blatch. 30), 385. De Hart, S. v. (6 Baxter. 223), 430. Dejardin, Cora. v. (126 Mass. 46), 629. Delamere, Rex v. (11 How. St.Tr. 509), 987. De la Motte, Rex v. (21 How. St. Tr. 687, 4 Went. PI. 1), 987. Delano v. S. (66 Ind. 348). 777, 834. Delany, Com. v. (1 Grant, Pa., 334), 385, '390. V. P. (10 Mich. 241), 148, 158. Delaval, Rex v. (3 Bur. 1434), 294. Delay. S. v. (93 Mo. 98), 420. De liongchamps, Republica v. (1 Dall. Ill), 977. Dempsey v. S. (3 Tex. Ap. 439), 1078. Denew, Reg. v. (14 How. St. Tr. 895), 385. Denham, Jleg. v. (35 U. C. Q. B. 503), 642, 649. Dennee, U. S. v. (3 Woods, 47), 285, 312. Dennis v. P. (1 Parker, C. C. 469), 460, 467. , Rex V. (Trem. P. C. 330), 263. V. S. (17 Fla. 389), 384, 388, 871, 876. V. S. (103 Ind. 143), 543. Dent, Reg. v. (1 Car. & K. 349, note), 430. V. Ross (53 Miss. 188), 173. , S. V. (3 Gill & J. 8), 206, 558. Denton, Reg. v. (18 Q. B. 761, Dears. 3), 1013, 1017. Depardo, Rex v. (Russ. & Ry. 134), 520, 538. Derbyshire, Reg. v. (3 Q. B. 745), 1012, 1033. Derixson v. S. (65 Ind. 385), 993. Desmartean, Com. v. (16 Gray, 1), 530. Desmond, Com. v. (103 Masa 345), 642, 644. , Com. V. (123 Mass. 13), 384, 385. Despard, Rex v. (28 How. St. Tr. 346), 987. Dessauer, Reg. v. (31 U. C. Q. B. 331), 430. Detroit Police Justice, P. v. (41 Mich. 324), 483. Devereaux, S. v. (41 Tex. 383), 484, 485. Devett, Reg. v. (8 Car. & P. 639), 520. Devine, Com. v. (155 Mass. 234), 968. Devon, Rex v. (4 B. & C. 670), 1013, 1023. Devonshire, Rex v. (Trem. P. C. 188), 108, 306, 335, 378, 1034, 1053, 1055. De Witt V. Dennis (30 How. Pr. 131), 331. Dewitt, Reg. v. (4 Cox, C. C. 49), 928. Dewsnap, Rex v. (16 East, 194), 777, 828, 831. Dextra. Com. v. (143 Mass. 38), 664. Dickenson, Rex v. (1 Saund. 134), 1081. Dickey, U. S. v. (Morris, 413), 871, 876. Dickinson v. S. (70 Ind. 347), 109, 305, 933 937 Dickson, S. v. (88 N. C. 643), 420, 433. , S. V. (124 N. C. 871), 680. Didieu v. P. (4 Parker, C. C. 593), 58, 180, 188. 189. Diggs v. S. (49 Ala. 311), 58, 347, 680, 691. Dillane, Com. v. (11 Gray, 67), 643. Dillard. S. v. (5 Blackf. 365), 929. V. S. (3 Heisk. 360), 306, 904, 910. V. S. (65 Ark. 404), 558. Dillon V. S. (9 Ind. 408), 520. Dil worth, Reg. v. (3 Moody & R. 531), 306, 313, 558. Dineen, S. v. (10 Minn. 407), 206, 313, 814. Dingley, Rex v. (Trem. P. C. 313), 385, 898. Dinkens v. S. (42 Tex. 350), 1065. Dinkey v. Com. (5 Harris, Pa., 186), 944. Disharoon v. S. (95 Ga. 351), 149. Dixon, Reg. v. (3 Cox, C. C. 289), 460, 470. , Rex V. (3 M. & S. 11), 763, 764. V. S. (29 Ark. 165), 58, 530, 545. INDEX TO CASES CITED. XXXVll References are to sections. Dixon V. S. (4 Blackf. 313). 176. V. a (13 Fla. 631), 1068, 1079. . S. V. (104 la. 741), 80, 830. . U. S. V. (4 Cranch, C. C. 107), 777, 803. Dobson, Reg. v. (1 Cox, C. C. 351), 1012. 1036. , Rex V. (7 East, 318), 680, 691. Dodd V. S. (33 Ark. 517), 254. Dodson, a V. (4 0reg. 64), 530, 543. Doe, a V. (79 Ind. 9), 583. -^, a V. (50 Iowa, 541), 509. Doel, P. V. (133 Cal. 486), 460. Doherty v. Com. (109 Mass. 359), 643. , Com. V. (10 Cush. 53), 100, 106, 109, 354 , Com. V. (103 Mass. 443), 363, 268. , Com. V. (116 Mass. 13), 643, 646. , Com. V. (137 Mass. 30), 403, 411. Dohme v. a (68 Ga. 339), 777, 805. Dolan V. P. (64 N. Y. 485), 1036, 1038. , P. V. (9 Cal. 576), 530. V. S. (133 Ind. 141), 643. , a V. (69 Me. 573). 95. Dollarhide v. U. a (Morris, 333), 206, 313. Donahoe, Cora. v. (130 Mass. 280), 643. Donald, P. v. (48 Mich. 491), 403. Donaldson, a v. (3 Vroom, 151), 305. Donuell v. a (58 Ark. 343), 460. Donnelly, Rex v. (38 How. St. Tr. 1070). 987. , Rex V. (1 Moody. 438), 460, 470. V. a (3 Dutcher, 468), 1090. Donninger v. a (53 Ind. 336), 489, 504. Donovan, Com. v. (16 Gray, 18), 777, 783, 830, 831. , Com. V. (170 Mass. 328), 248. , Reg. V. (4 Cox, C. C. 399), 111, 306. Dooley, a v. (89 Iowa, 584), 530. Dooly, a V. (64 Mo. 146), 354. Doran, Rex v. (38 How. St. Tr. 1041), 987. Dorman v. S. (34 Ala. 216), 642. Doore, 8. v. (83 Mo. 157), 643. Dorrell v. S. (80 Ind. 566), 598, 993, 995 Dorus, Com. v. (108 Mass. 488), 977, 979. Doty,' a V. (5 Oreg. 491), 306, 558. Doud, a V. (7 Conn. 384), 890, 891. Dougan, S. v. (110 Mo. 130), 642. Dougherty, Com. v. (6 Gray, 349), 699, 730. V. P. (1 Colo. Ter. 514), 138, 141. , a V. (4 Oreg. 300), 673, 673. Doughty, Rex v. (Trem. P. C. 385), 115, 530, 539, 1090. Douglas V. Reg. (3 Cox, C. C. 163), 680. ■ , Reg. V. (Car. & M. 193), 109, 306, 313. 381. , Rex V. (1 Moody, 463), 430. Douglas, a Y. (41 W. Va. 537), 520. Douglass V. Com. (8 Watts, 535), 278. , Rex V. (1 Camp. 313). 430. V. a (73 Ind. 385), 777, 820. Dourdon, S. v. (3 Dev. 443), 460, 467, 474. Dovaston v. Payne (3 H. Bl. 527), 172. Dove, Com. v. (3 Va. Cas. 36), 642. Dow, Com. V. (10 Met. 383). 136, 177. Dowd, a V. (39 Kan. 413), 619. Dowdell V. S. (58 Ind. 333), 642. Dowe, S. V. (27 Iowa. 373), 420. Dowell, S. V. (3 Gill & J. 310), 583. Dowers, S. v. (45 N. H. 543), 1007. Dowlin, Rex v. (5 T. R. 311). lOBs. Dowling, Reg. v. (3 Cox, C. C. 509), 530, 943. V. a (5 Sm. & M. 664), 56. Downing, Reg. v. (3 Car. & K. 383), 115, 520, 539. V. a (66 Ga. 160), 763, 773. , a V. (15 Wash. 413), 403. Downs, a V. (148 Ind. 324), 248. Doyle V. a (49 Ala. 28), 403. Doyley, Rex v. (Trem. P. C. 235), 241, 343. Dozier, a v. (73 N. C. 117), 254. Drakalrd, Rex v. (31 How. St. Tr. 495), 619. Drake, Com. v. (134 Mass. 31), 138, 143. . a V. (1 Winst. 341). 451. Draper, Rex v. (30 How. St. Tr. 959), 619. Drennan, Ter. v. (1 Mont. Ter. 41), 1078. Drew V. Com. (1 Whart. 379), 460. , Com. V. (3 Cush. 379), 489. 503. V. a (5 Eng. 83), 43, 489, 506. Dreyer v. S. (11 Tex. Ap. 503), 583. Driver, S. v. (78 N. C. 433), 1069. Drury v. Defontaine (1 Taunt. 131), 663. Du Bois V. a (50 Ala. 139), 583, 589, 603, 604. Ducey, Com. v. (136 Mass. 269), 306, 838, 839. Ducommun v. Hysinger (14 III. 349), 93 Dudley, Com. v. (6 Leigh, 613), 381. Duffleld, Reg. v. (5 Cox, C. C. 404), 385, 303, 308. Duffin, Rex v. (33 How. St. Tr. 318), 619, 631. DuflEy, Reg. v. (1 Cox, C. C. 383), 1038. , Reg. V. (2 Cox, C. C. 45), 639. , Reg. V. (4 Cox, C. C. 173), 1038. , Reg. V. (4 Cox, C. C. 394), 619, 621. Dufour, a V. (63 Ind. 567), 460, 475. Dugdale v. Reg. (1 Ellis & B. 435, Dears. 64), 639, 1084. Duggins, S. V. (146 Ind. 427), 910. XXXVIH INDEX TO CASES CITED. References are to sections. Dukes V. S. (11 Ind. 557), 58, 530, 540. Dumar, P. v. (43 Hun, 80), 583. Dunbar v. U. S. (156 U. S. 185), 973. Duncan. S. v. (9 Port. 360), 575. Dunkel, P. V. (39 Mich. 355), 695, 750, 757. Dunlap, S. v. (81 Me. 389), 643. Dunn, Com. v. (Ill Mass. 435), 643, 777, 830. V. Reg. (13 Q. B. 1031). 871. , Reg. V. (1 Car. & K. 730), 871. , Reg. V. (13 Q. B. 1036), 871. , Rex V. (36 How. St. Tr. 839), 385, 387. , S. V. (36 Ark. 34), 148. , S. V. (73 Mo. 586), 935. Dunne v. P. (158 111. 586), 306, 558. , S. V. (109 N. C. 839), 838. Dunnett, Reg. v. (1 Car. & K. 435), 750, 757. , Rex V. (3 Leach, 581), 460, 475. Dunning, Reg. v. (Law R. 1 C. C. 390, 11 Cox, C. C. 651), 871. Durden v. S. (53 Ga. 664), 939. Durham, S. v. (73 N. C. 447), 904, 905. Duval V. Reg. (14 L. C. 53). 1086. Duvall V. S. (63 Ala. 13), 583. Dwyer v. S. (13 Tex. Ap. 535), 530, 544. Dyer v. Com. (33 Pick. 408), 916. , Com. V. (188 Mass. 70), 578. , S. V. (59 Me. 303), 138, 148. , a V. (41 Tex. 530), 430, 430. , 8. V. (85 Md. 346). 67. , S. V. (67 Vt. 690), 305. Dyott V. Com. (5 Whart. 67), 339. Dyson, Rex v. (Russ. & Ry. 533), 530, 593. E. Eadon, Rex v. (31 How. St. Tr. 1064), 853. Eagan, Cora. v. (103 Mass. 71), 306. Eagleton. Reg. v. (Dears. 376, 6 Cox, C. C. 559), 373, 373, 480, 434. Ean, S. T. (Iowa, 58 N. W. R. 898). 149. Earhart, Reg. v. (Leigh,.671), 699,735. Earle, Com. v. (1 Whart. 535), 530, 533. Early v. Com. (86 Va. 931), 66. Earp, S. V. (41 Tex. 487), 583. Eason. S. v. (70 N. C. 88), 443. , S. V. (86 N. C. 674), 430. East Boston Ferrv, Com. v. (13 Allen, 589). 750. 756, Easterby, Rex v. (3 Leach, 947, Russ. & Ry. 37), 699, 731. Eastman, Com. v. (1 Cush. 189), 385, 391. V. Rice (14 Me. 419), 173. Eastrington, Rex v. (5 A. & E. 765), 1046. Eal;on, Com. v. (9 Pick. 165), 643. . Com. V. (15 Pick. 373), 673, 677. Eaton, Rex v. (33 How. St. Tr. 786), 619, 631. , Rex V. (33 How. St. Tr. 1018), 619. 631. , Rex V. (31 How St. Tr. 937), 343. , Rex V. (4 Went. PI. 199), 631. Eberle, Com. v. (8 S. & R. 9), 385. Eccles. Rex v. (1 Leach, 374, 3 Doug. 337), 385, 391, 301. Eckert, Com. v. (3 Browne, Pa., 349), 777, 1013, 1035. Eokler, S. v. (106 Mo. 585), 950. Edes, Rex v. (Trem. P. C. 61), 633, 940. Edgerton v. S. (67 Ind. 588), 663. Edmonds v. S. (34 Ark. 730), 79, 530. Edmondson v. S. (41 Tex. 490), 530. , S. v. (43 Tex. 163), 580. Edmundson, S. v. (64 Mo. 398), 530. Edson V. S. (148 Ind. 383), 583. Edwards, Com. v. (13 Cush. 187), 643, 644. , Com. V. (4 Gray, 1). 643. 655. , Reg. V. (8 Car. & P. 611), 580, 535, 536. , Rex V. (1 East, 378), 439. , Rex V. (Russ. & Ry. 383), 881. , Rex V. (Trem. P. C. 103), 375. , Rex V. (Trem. P. C. 198), 443, 1060. V. S. (49 Ala. 334), 430. V. S. (63 Ind. 34), 58, 87, 354. V. S. (10 Tex. Ap. 35). 148, 153, , S. V. (19 Mo. 674). 6. 937. , S. V. (36 Mo. 394), 588. , S. V. (70 Mo. 480), 530. Egner v. S. (85 Ohio St. 464), 58. Eighmy v. P. (79 N. Y. 546), 871, 876. Eilenbecker v. Plymouth Cp. Dist. Ct. (134 U. S. 31), 319. Eitel V. S. (33 Ind. 301), 85, 663, 668. Elbow Lake v. Holt (69 Minn. 349), 648. Elder, S. v. (65 Ind. 383), 138. Elkins V. S. (13 Ga. 435), 643. Ellars V. S. (35 Ohio St. 385), 430, 438. Ellins, Rex v. (Russ. & Ry. 188), 885. Elliot, Reg. y. (Leigh & C. 108), 156, 177, 803. - — , Rex V. (3 How. St. Tr. 393), 633, 940. , Rex V. (1 Leach, 175), 460. 465. Elliott V. Com. (13 Bush, 176), 583. V. S. (36 Ohio St. 318). 977, 979. Ellis V. Com. (78 Ky. 130). 699. , Reg. V. (3 Car. & K. 470), 530, 589. V. S. (7 Blackf. 534), 777, 838. , S. V. (71 Mo. Ap. 369), 365. , S. V. (119 Mo. 437), 79. Ellison y. S. (6 Tex. Ap. 348). 997, 999. Elmsly's Case (3 Lewin, 136), 306, 558. Elrington, Reg. v. (1 B. & S. 688), 306, , Reg. V. (9 Cox, C. C. 86), 1043. INDEX TO CASES CITED. XXXIX References are to sections. Elschlep V. S. (11 Tex. Ap. 301), 904, 905. Elsey V. S. (47 Ark. 573), 385. Elvios, S. V. (101 Mo. 343), 558. Elweli, Com. v. (1 Gray, 463), 81. , Cora. V. (3 Met. 190). 150. Ely, Reg. v. (15 Q. B. 837, 4 Cox, C. O. 381), 1013. 1046. Embry v. Com. (79 Ky. 439), 860. Emden, Rex v. (9 East, 437), 1043. Emerick. S. v. (35 Ark. 834), 643, 653. Emert v. Missouri (106 U. S. 396), 509. Emery, S. v. (65 Vt. 464), 839. Emmet, Rex v. (38 How. St. Tr. 1098), 987. Emory v. S. (6 Blaokf. 106), 415. Endsley v. S. (76 Ind. 467), 443. England, S. v. (19 Mo. 386), 58. English, Com. v. (11 Phila. 439), 385, 313 , P. V. (30 Cal. 314), 306, 558. , Reg. V. (13 Cox, C. C. 171), 430. , S. V. (67 Mo. 136), 583. Enloe, S. v. (4 Dev. & Bat. 373), 385, 313. Enoch, P. V. (13 Wend. 159), 580. Enochs, S. T. (69 Ind. 314), 993. Enwright, Com. v. (98 Ky. 635), 777. V. S. (58 Ind. 567), 489. Epps V. 8. (103 Ind. 539), 533. Eppstein v. S. (11 Tex. Ap. 480), 643. Erb V. S. (35 Ark. 631), 642. Erie's Case, (3 Lewin, 133), 696. Errington v. Com. (10 L. R. A, 343), 643. Errington's Case (3 Lewin, 317), 520, 524 Ervington, P. v. (181 IlL 408), 555. Esdaile, Reg. v. (1 Fost. & F. 313, 8 Cox, C. C. 69), 385, 391. Eslava v. S. (44 Ala. 406), 489, 506. Espy V. S. (47 Ala. 533), 643. Essex, Rex v. (Trem. P. C. 305), 1013, 1033, 1043, 1053. Etherington, Rex v. (3 Leach, 671), 583, 587. Euper V. S. (35 Ark. 629), 489, 503. Evans, Com. v. (132 Mass. 11), 763, 770. , Com. V. (13 S. & R. 436), 415. , In re (1 Ch. 352), 322. V. P. (90 111. 384), 385, 391. V. P. (12 Mich. 37), 530. , Reg. V. (7 Cox, C. C. 151), 582. ; Reg. V. (Dears. & B. 336, 7 Cox, C. C. 393), 849. , Rex V. (5 Car. & P. 553), 430, 433. V. S. (1 Humph. 394), 306, 558. , S. V. (7 Gill & J. 390), 583, 593. , S. V. (5 Ire. 603), 777, 783. ;, a V. (88 Wis. 355), 564. V. Walton (Law R. 3 C. P. 615), 303. Everett, Rex v. (8 B. & C. 114), 853. d Evers, S. v. (49 Mo. 542), 420. Ewell V. S. (6 Yerg. 364), 564. Ewington, Reg. v. (3 Moody, 233, Car. & M. 319), 871, 876. Ezell v. a (54 Ala. 165), 530, 543. F. Faderman, Reg. v. (4 Cox, C. C. 359), 460, 478. Fair, a v. (106 N. C. 760), 403. Fairchild, P. v. (48 Mich. 31), 180. Fairlee v. P. (11 111. 1), 58, 530. Fairlie, Reg. v. (9 Cox, C. C. 309), 738, 871, 876. Falkingham, Reg. v. (Law R. 1 C. O. 223, 11 Cox, C. C. 475), 219. Fallon, Reg. v. (Leigh & C. 317, 9 Cox, C. C. 243), 583, 589. Falvey, Com. v. (108 Mass. 304), 699, 714. Fancher. a v. (71 Mo. 460), 430. Fanning, Reg. v. (10 Cox, C. C. 411), 881. Fanshaw, Rex v. (Trem. P. C. 199), 1013. 1033, 1068, 1086. Farley, a v. (14 Ind. 33), 305. Farmer, Rex v. (Trem. P. C. 109), 375. , Rex V. (Trem. P. C. 369), 1003. , a V. (4 Ire. 334). 58, 904, 905. Farrell, Com. v. (105 Mass. 189). 1043, 1044. — , Reg. V. (9 Cox, C. C. 446), 777, 802. V. a (38 Ind. 136), 777, 794, 830. V. a (45 Ind. 371), 643, 653. Farren, Com. v. (9 Allen, 489), 763, 770. Farrier, a v. (1 Hawks, 497), 378, 977. Farrington, Rex v. (Trem. P. C. 350), 118. Faucett, a v. (4Dev. & Bat.107), 642. Faulk V. a (38 Crim. Tex. R. 77), 430. Faulkner, Reg. v. (13 Cox, C. C. 550), 180. , Reg. V. (36 U. C. Q. B. 529), 642. Fauntleroy, Rex v. (1 Moody, 53), 460, 475. Fearnley, Rex v. (1 T. R. 316), 53, 333. Fears, U. a v. (3 Woods. 510), 838. Feely, Com. v. (1 Va. Cas. 331), 885. , Com. v. (2 Va. Cas. 1), 60, 68, 335, 338. Fehrenback, U. a v. (3 Woods, 175), 385 313 Fein v. u! a (1 Wyom. Ter. 346), 973. Fellinger v. P. (15 Abb. Pr. 138), 354. Fellowes, Reg. v. (1 Car. & K. 115), 871. Fellows, a V. (50 Wis. 65), 148. Fenerhaven. a v. (96 Iowa, 399), 916. Fenlason, a v. (79 Me. 117), 871. Fenly, a v. (18 Mo. 445), 460, 475. xl INDEX TO CASES CITED, References are to sections. Fenn, S. v. (41 Conn. 590), 583, 604. Fenton v. P. (4 Hill, N. Y., 126), 430, 428. , Rex V. (Trem. P. C. 267), 750, 757. Fenwiok, U. S. v. (4 Cranch, C. C. 675), 939. Ferens v. O'Brien (15 Cox, C. C. 333), 592. Ferguson's Case (1 Lewln, 181), 530, 539. Ferguson, Reg. v. (Dears. 437, 6 Cox, C. C. 454), 933, 937. , Rex V. (3 Stark.- 489), 385, 308. V. S. (6 Tex. Ap. 504), 58. Fernley, Rex v. (11 How. St. Tr. 382), 987. Ferrall, Reg. v. (3 Den. C. C. 51, 4 Cox, C. C. 431), 332, 333. Ferrell v. S. (44 Ijr. J. L. 416-431), 907. Ferrers, Rex v. (19 How. St. Tr. 886), 530. , Rex V. (Trem. P. C. 139), 460, 471. Ferry, S. v. (61 Vt. 634), 306. Fielding, Reg. v. (14 How. St. Tr. 1337), 881. Fields, S. v. (Mart. & Yerg. 137), 415, 1084. V. Ter. (1 Wyom. Ter. 78), 489. V. Walker (23 Ala. 155), 1034. Fiegle, Com. v. (3 Phila. 315), 997. Fifield, S. V. (18 N. H. 34), 838. 840. Filburn, Com. v. (119 Mass. 397), 890, 893. Finderburk v. S. (75 Miss. 20), 699. Findley v. P. (1 Mich. 334), 1038. , S. V. (45 Iowa, 485), 643, 643. Finertv. Rex v. (36 How. St. Tr. 901), 619, 631. Finley, S. v. (6 Kan. 366), 206, 312, 558. Finn v. Com. (6 Barr, 460), 838, 840. V. Com. (5 Rand. 701), 1078. Finney, Rex v. (26 How. St. Tr. 1019), 987. First, S. V. (82 Ind. 81), 376. Firth, Reg. v. (Law R. 1 C. C. 172), 593. Fischer v. S. (101 Wis. 33), 578. Fish, P. V. (4 Parker, C. C. 306, Shel- don, 537), 272, 273, 1034, 1041. Fisher, P. v. (14 Wend. 9), 285, 308. , Rex V. (3 Camp. 563), 619. V. S. (46 Ala. 717), 354. , S. V. (3 Ire. Ill), 365. , S. V. (58 Mo. 356), 460. , S. V. (65 Mo. 437), 460, 475. V. U. S. (1 Okla. 352), 70. Fisk, Com. v. (8 Met. 238), 777, 1013, 1025. V. S. (9 Neb. 62), 306, 904, 910. Pisler, U. S. v. (4 Bis. 59 1, 460, 467. Fitch V. Com. (93 Va, 834), 871. Fitchburg R. Co., Com. v. (120 Mass. 372), 530, 531. Fitts, S. V. (44 N. H. 631), 750, 757. Fitzgerald v. Com. (135 Mass. 366), 489. 496. V. P. (49 Barb. 133, 4 Abb. Pr., N. S., 68, 37 N. y. 413), 530. , S. V. (1 Dev. & Bat. 408). 520. Fitzharris, Rex v. (8 How. St. Tr. 343), 987, 1034. Fitzmaurice, Rex v. (Jebb, 29), 430, 436, 868. Fitzpatrick, Rex v. (31 How. St. Tr. 1170), 619, 633. , Rex V. (Russ. & Ry. 513), 890, 898. , S. V. (4 R. I. 369), 3S4. Fitzsimons, Reg. v. (4 Cox, C. C. 346), 167. Fitzwater v. Stout (4 Harris, Pa., 33), 173. Flack, P. V. (135 N. Y. 334), 385. , S. V. (34 Mo. 378), 489. Flagg. S. V. (50 N. H. 331), 838, 840. Flannelly, Com. v. (15 Gray, 195), 763, 770. Flannery, Reg. v. (Jebb, 343), 977. Flannigan, Reg. v. (33 U. C. Q. B. 593), 1068. Fleak, S. v. (54 Iowa. 439), 148. Fleetwood v. Curley (Hob. 2fi7&), 619. , S. V. (16 Mo. 448), 1013, 1015. Fleming v. P. (5 Parker, C. C. 353), 881. Flemming, S. v. (66 Me. 143), 1038. Fletcher, Reg. v. (3 Car. & K. 215), 180, 188. , Reg. V. (Leigh & C. 180, 9 Cox, C. C. 189), 403, 411. .S. V. (5 N. H. 357), 997, 1001. , S. V. (1 R. L 193), 643. Flinn v. S. (34 Ind. 386). 530. V. S. (97 Wis, 44), 530. Flint, Rex v. (Russ. & Ry. 460), 430. , S. V. (33 La. An. 1388), 460. Five, S. V. (36 Me. 313), 460, 470. Flynn, Com. v. (3 Cush. 535), 871. , Com. V. (3 Cush. 539), 111, 180, 194. , S. V. (35 Tex. 354), 777, 794. , U. S. V. (15 Blatch. 303), 973. Fookler, S. v. (33 Kan. 543), 254. Foering, Com. v. (Brightly, 315), 285, 889. Fogerty, Com. v. (8 Gray, 489), 904, 905, 906. Foley. Ex parte (63 Cal. 508), 633. 635. , Com. V. (99 Mass. 499), 81, 374. , S. V. (15 Nev. 64), 1045. Folkes, Rex v. (1 Moody, 354), 115, 904, 914. Follett, S. V. (6 N. H. 53), 673, 677. FoUis V. S. (37 Tex. Crim. R. 535), 285. Foltz V. S. (33 Ind. 315), 663. INDEX TO CASES CITED. xli Eeferenoes are to sections. Ford, Com. v. (5 Gray, 475), 306, 313. , Rex V. (Russ. & Ry. 339), 306, 558, 838, 839. , S. V. f38 La. An. 797), 460. V. S. (3 Pin. 449), 583. y. S. (85 Md. 465), 677. Fore. S. v. (1 Ire. 378), 148. Fores v. Wilson (Peake, 55), 394. Forrest, U. S. v. (3 Cranch, C. C. 56). 403. Forsvth, Rex v. (Russ. & Ry. 374), 332. Fort, S. V. (4 Dev. & Bat. 192), 443. Fortenburg y. S. (47 Ark. 188), 489. Forth, Rex v. (Trem. P. C. 80), 325, 633, 634. Fortune, Com. v. (105 Mass. 593), 111, 583. 613. Forty-three Gallons of Whiskey, U. S. y. (93 U. S. 188), 642, 645. Fossett V. S. (11 Tex. Ap. 40), 164, 165. Foster, Com. y. (3 Met., Ky., 1), 859. , Reg. y. (6 Cox, C. C. 25), 699, 719. , Reg. y. (3 Q. B. D. 301, 13 Cox, C. C. 393), 430. V. S. (39 Ala. 339), 582, 916. y. S. (6 Lea, 313), 520. V. S. (1 Wash. 411), 503. , S. y. (37 Iowa, 404), 403. , U. S. y. (4 Hughes, 514), 390. Foulkes, Reg. y. (Law R. 3 C. C. 150), 403. Foulks, S. V. (57 Mo. 461), 871, 877. Fouts V. S. (8 Ohio St. 98), 58. Fowke, Rex v. (20 How. St. Tr. 1077), 285 31^ Fowle, Rex y. (4 Car. & P. 593), 285, 391 Fowler v. Alsop (Trem. P. C. 363), 489, 503. , Rex y. (1 East, P. C. 461), 295. Fox, Com. y. (7 Gray, 585), 31. , Com. y. (10 Phila. 204), 997, 1000. , P. y. (35 Mich. 492), 871. , Reg. y (10 Cox, C. C. 503), 96, 1068. V. S. (3 Tex. Ap. 329), 148. , U. S. V. (1 Lowell, 199), 973. Foxby, Reg. y. (1 Salk. 266, 6 Mod. 178, Holt, 274), 1087. Foy, Rex y. (Vern. & S. 540), 116, 520, 539, 1043. Fraher. Com. y. (126 Mass. 56), 777, 820. Frain y. S. (40 Ga. 529), 582. Fraker, S. v. (148 Mo. 143), 58. Frampton, Reg. y. (Dears. & B. 585), 916. Francia, Rex y. (15 How. St. Tr. 897), 987. Francis y. Maas (3 Q. B. D. 341), 763, 772. . Rex V. (6 Went. PI. 373), 731. Frank, P. y. (38 Cal. 507), 460. Frank, S. y (41 La. An. 596), 354. Franklin, Com. v. (4 Dall. 255), 285. , Reg. V. (4 Fost. & F. 94), 430. Y. S. (53 Ala. 414), 420. y. S. (13 Md. 336), 643. Franks, Rex y. (3 Leach, 644), 337. , S. y. (38 Tex. 640i, 111, 393. Fraser, Rex v. (1 Moody, 419), 696. Frasher y. S. (3 Tex. Ap. 363), 789. Frazee v. 8. (58 Ind. 8), 395. Fredericks, Com. y. (119 Mass. 199), 643. Fredrick y S. (3 W. Va. 695\ 583. Freel y S. (125 Ind. 166), 306. Freelove, Com. v. (150 Mass. 66), 66. Freels, S. y. (3 Humph. 328), 306, 933, 937 Freeman, P. v. (1 Idaho Ter., N. S., 322), 582. , Rex y. (Trem. P. C. 85), 385, 300. y. S. (6 Port. 372), 1013, 1015. y. S. (11 Tex. Ap. 93), 564. , S. y. (8 Iowa, 428), 838, 840. , S. y (37- Iowa, 333), 83, 777, 830, 823. , S. y (31 Mo. 481), 56, 58, 306, 313, 1068. , Ter. V. (McCahon, 56), 643. Freeth, Rex y. (Russ. & Ry. 127), 430, 433. Freind, Rex y. (13 How. St. Tr. 1), 987. French v. P. (3 Parker, C. C. 114), 643, 1038, 1053, 1055. , Reg. y. (34 U. C. Q. B. 403), 643, 653. Frerichs, IT. S. v. (16 Blatch. 547), 973. Fricker, S. y. (45 La. An. 646), 410. Friend, Rex v. (Russ. & Ry. 30), 750, 757. , S. y. (47 Minn. 449), 582. Friers, S. ex rel. y, (10 Wash. 348), 385. Fries, U. S. y. (Whart. St. Tr. 610), 987. Frisbie y. U. S. (157 U. S. 160), 66, 865. Frith. Rex y. (33 How. St. Tr. 307), 1063. Frost, Rex v. (32 How. St. Tr. 471), 633, 940. Froud, Rex y. (Russ. & Ry. 389, 1 Brod. & B. 300), 460, 470. Frowen, Reg. y. (4 Cox, C. C. 266), 254. Fry y Derstler (Yeates, 278), 304. , Reg. y. (Dears. & B. 449, 7 Cox, C. C. 394). 420. Frye v. S. (36 Tex. Crim. R, 583), 871. Fugitt, S. y (66 Mo. Ap. 635), 365. Fulkerson, U. S. y. (74 Fed. R. 619), 887. , U. S. y (74 Fed. R. 631), 679. Fullagar, Reg. y. (14 Cox, C. C. 370), 403, 411. xlii INDEX TO CASKS CITED, Eeferences are to sections. Fuller, Com. v. (133 Mass. 563), 285, 290 391. , Com. V. (8 Met. 313). 341. . Rex V. (14 How. St. Tr. 518), 619. , Rex V. (2 Leaoh, 790). 106, 852. , Rex V. (Russ. & Ry. 308), 341. , S. V. (33 N. H. 259), 642, 649. FuUford, Reg. v. (Leigh & C. 403, 9 Cox, C. C. 453), 1012, 1015. Fulmer v. Com. (1 Out., Pa., 503), 583. Fulton. P. V. (1 Kernan. 94). 442. , S. V. (19 Mo. 680), 489, 503, 503. Fvjrguson, Reg. v. (Dears. 437, 6 Cox, C. C. 454, 39 Eng. L. & Eq. 536), 109, 306. Furlong v. Bray (2 Saund. 182, 1 Mod. 272), 320. Fussell, Reg. v. (3 Cox, C. C. 291), 941. G. Gabe v. S. (1 Eng. 519), 460, 467. V. S. (1 Eng. 540), 337. Gabrielsky v. S. (13 Tex. Ap. 428), 871. Gaddy v. S. (8 Tex. Ap. 127), 403. Gade, Rex v. (3 Leach, 732), 460, 475. Gager, S. v. (26 Conn. 607, 38 Conn. 333). 365. Gahagan v. P. (1 Parker, C. C. 378), 881. Galavan, Com. v. (9 Allen, 371), 111, 306, 213, 236. 555, 558. Gallagher, Com. v. (1 Allen, 593), 83, 777, 820. , Com. V. (126 Mass. 54), 582, 603. , Com. V. (6 Met. 565), 206, 212, 933, 935 937 V. S. "(26 Wis. 423), 489. 502. Gallatin v. Tarwater (143 Mo. 40), 375. Galliard v. Laxton (9 Cox, C. C. 137), 890, 893. Galligan, Com. v. (118 Mass. 303), 1068, 1079. Galloway v. S. (39 Ind. 442), 871. Gaming Implements, Com. v. (119 Mass. 332), 489, 507. Gandy v. S. (10 Neb. 243), 285. V. S. (13 Neb. 445), 317. Garcia, P. v. (25 Cal. 531), 403, 411. , P. M. (58 CaL 103), 306. , S. V. (38 Tex. 543), 170. Gardiner v. P. (6 Parker, C. C. 155), 1043. 1053, 1055, 1068. , P. V. (6 Parker, 0. C. 143), 1034, 1083. , Reg. V. (2 Moody, 95, 8 Car. & P. 737), 871, 876. Gardner v. Cole (21 Iowa, 205), 481. , Reg. V. (1 Car. & K. 628), 885. , Reg. V. (Dears. & B. 40, 7 Cox, C. C. 136), 420, 425. , S. V. (38 Mo. 90), 777, 803, 803. Gardner, U. S. v. (10 Pet. 618), 333. Garland, Reg. v. (11 Cox, C. C. 324), 96, 420. Garling v. S. (2 Tex. Ap. 44), 58. Garmire v. S. (104 Ind. 444), 460. Garnett, P. v. (35 Cal. 470), 487. Garrett, Reg. v. (Dears. 232, 22 Eng. L. & Eq. 607), 111, 420, 434. Gartrell v. S. (14 Ind. 280), 153. Garvey, Reg. v. (1 Cox, C. C. Ill), 871. , a V. (28 La. An. 925), 1078. , S. V. (11 Minn. 154), 206, 214. Gascoigne, Rex v. (1 Leach, 280), 933. Gaston. S. v. (73 N. C. 93), 582. Gate Fulford, Reg. v. (Dears. & B. 74, 7 Cox. C. C. 230), 1013, 1017. Gateley, Com. v. (126 Mass. 52), 916. Gates, P. V. (13 Wend. 311), 420. V. S. (95 Ga. 340), 530. , S. V. (37 Minn. 53), 944. Gathercole's Case (2 Lewin, 237), 619, 627. Gaust V. a (68 Ind. 101), 643. Gavigan, a v. (36 Kan. 323), 460. Gay V. S. (3 Tex. Ap. 127), 6. Gaynor, Reg. v. (Jebb, 262), 871. Gedicke, a v. (14 Vroom, 86), 138. Gee, Com. v. (6 Cush. 174), 997, 1000. Geer, a v. (48 Kan. 753), 968. Geisse v. Beall (5 Wis. 324), 318. Genkinger v. Com. (8 Casey, Pa., 99), 642. Gentry v. a (6 Ga. 503), 337. George v. P. (167 111. 447), 54. German, P. v. (110 Mich. 244). 871. Gerrard, Rex v. (Trem. P. C. 38). 941. , Rex V. (Trem. P. C. 278), 987. Giardina v. Greenville (70 Miss. — , 13 So. R. 341). 1014. Gibbons v. P. (33 III. 442), 489, 492. , Rex V. (19 How. St. Tr. 275), 871. , S. V. (1 Southard, 40), 378. Gibbs, Rex v. (1 East, 173), 460. Gibert. U. S. v. (2 Sumner, 19), 879. Gibney, Com. v. (2 Allen, 150), 929. Gibs V. Jenkins (Hob. 191a), 619. Gibson v. P. (5 Hun, 542), 94, 583. V, a (44 Ala. 17), 871. V. a (38 Ala. 571), 111. V. a (54 Md. 447), 180. , a V. (26 La. An. 71). 871. , a V. (33 W. Va. 97), 319. Gideon, U. S. v. (1 Minn. 292), 699, 711. Gilbert, S. v. (13 Vt. 647), 582. Gilchrist, Rex v. (3 Leach, 657), 460, 468. Giles, Com. v. (1 Gray, 466), 642, 655. , Reg. V. (7 How. St. Tr. 1130), 558. , Reg. V. (Leigh & C. 502, 10 Cox, C. C. 44), 420. , Rex V. (7 How. St. Tr. 1129), 111, 206. INDEX TO CASES CITED. xliii References are to seotiona. Giles V. S. (6 Ga. 376), 619. Gilkes. Rex v. (8 B. & C. 439), 333. , Rex V. (3 Car. & P. 53), 333. Gilkinaon, P. v. (4 Parker, C. C. 36), 643, 1041. Gill, Rex V. (3 B. & Aid. 304), 390, 391. Gilland, Cora. v. (9 Gray, 3), 643, 644. Gillespie v. S. (6 Humph. 164). 1003. Gillis, S. V. (75 Miss. 331 1, 403. Gillman v. S. (55 Ala. 848), 997. 1000. Gilmore. S. v. (4 Fost, N. H., 461), 750, 756. , S. V. (9 W. Va. 641), 643, 653. Gimbart v. Pelah (3 Stra. 1373), 173. Girardin, P. v. (1 Mich. 90), 619, 636. Girr, P. v. (53 CaL 639), 109, 306, 904, 910, 911. Gise V. Com. (81 Smith, Pa., 428), 881, 883. Gitt Lee, S. v. (6 Oreg. 435), 489. Glackan v. Com. (3 Met., Ky., 333), 430. Glasgow, S. V. (Conference, 88), 680, 691. Glass V. Com. (33 Grat. 837), 643, 658. Gleason, S. v. (56 Iowa. 303), 582. Glenn v. S. (60 Ala. 104), 58, 484, 485. Glennan, Rex v. (36 How. St. Tr. 437), 385, 887. Gloucester, Com. v. (110 Mass. 491), 1018, 1086, 1089. Glover. Com. v. (Ill Mass. 395), 58, 116, 353, 354, 356, 583, 585. 586, 603. , Reg. V. (Leigh & C. 466, 9 Cox, C. C. 500), 403. , Rex V. (Trem. P. C. 344), 890, 895. Goddard, Com. v. (4 Allen, 318), 480. , Rex V. (3 Leach, 545), 583, 588. ■ — -, S. V. (69 Me. 181), 58, 306, 818. Godfrey v. P. (5 Hun, 869, 63 N. Y. 807), 742, 744. , Reg. V. (Dears. & B. 426, 7 Cox, C. C. 392), 420. Goding, Com. v. (8 Met. 130), 489, 503. Godsoe, Com. v. (105 Mass. 464), 881, QQQ Gogai-ty v. Reg. (3 Cox, C. C. 806), 943. Goings, S. V. (4 Dev. & Bat. 153), 904, 908. Golding, U. S. v. (3 Cranch, C. C. 313), 885 Goldman, P. v. (1 Idaho Ter. 714), 777, 805. , S. V. (44 Tex. 104), 997. 999. , U. S. V. (3 Woods, 187), 394. Goldshede, Reg. v. (1 Car. & K. 657), 385. Goldsmith, Com. v. (13 Phila. 638), 385. , Reg. V. (Law R. 3 C. C. 74, 13 Cox. C. C. 479), 916. 918. V. S. (63 Ga. 85), 854. Goldstein, Com. v. (114 Mass. 373), 180, 185, 187. , Rex V. (Russ. & Ry. 473, 8 Brod. & B. 801), 460, 465. Gomm, Reg. v. (3 Cox, C. C. 64), 403. Gompertz, Reg. v. (9 Q. B. 834, 3 Cox, C. C. 145), 385. 391. Gooch, S. V. (7 Blackf. 468), 153. Good V. S. (61 Ind. 69), 583. Goodall, Reg. v. (3 Cpx, C. C. 41), 143. Goodchild, Reg. v. (8 Car. & K 393), 143. Goods, S. V. (34 Mo. 361), 997. Goodenough, Reg. v. (Dears. 310), 408. Goodere, Rex v. (17 How. St. Tr. 1003), 530 539 Goodfellow, Reg. v. (Car. & M. 569), 871, 876. Goodhall, Reg. v. (1 Den. C. C. 187), 142. , Rex V. (Russ. & Ry. 461), 430. Goodhue v. Com. (5 Met. 553), 643, 649. V. P. (94 111. 37), 403. Goodloe V. S. (60 Ala. 98), 56, 1064. Goodman, Rex v. (13 How. St. Tr. 859), 106, 835, 558. Goodnow. Com. v. (117 Mass. 114), 90, 1013, 1015. Goodrich v. P. (3 Parker, C. C. 633, 19 N. Y. 574), 58, 763, 764, 765. , S. V. (46 N. H. 186), 582. , S. V. (14 W. Va. 834), 881, 883. , S. V. (69 Minn. 176), 460. Goodson V. S. (83 Tex. 131), 583, 606. V. S. (39 Fla. 511), 79. Goodwin's Case (1 Lewin. 313), 885. Goodwin, Com. v. (133 Mass. 19), 977, 979. Gorbiitt, Reg. v. (Dears. & B. 166, 7 Cox, C. C. 331), 583), 584. Gordon, Rex v. (31 How. St. Tr. 485), 987. , Rex V. (33 How. St. Tr. 175), 619. , Rex V. (33 How. St. Tr. 313), 619, 637. , Rex V. (1 Leach. 515), 580, 838. V. S. (59 Ind. 75), 1064. V. S. (3 Tex. Ap. 154), 680. Gorham, S. v. (11 Conn. 333), 384, 385. , S. V. (65 Me. 370), 95, 643, 644. , S. V. (55 N. H. 153), 933. Gorman, Com. v. (16 Gray, 601), 177. V. S. (43 Tex. 331). 306, 318. Goss, Reg. V. (Bell, C. C. 208, 8 Cox, C. C. 262). 420. , S. V. (69 Me. 33), 403, 409. Gostwick, Rex v. (Trem. P. C. 187), 385, 393. G jtley. Rex v. (Russ. & Ry. note), 187. Goughlemann v. P. (3 Parker, C. C. 15), 904, 903. Gould V. P. (89 111. 816), 939. xliv INDEX TO CASES CITED. Eef erences are to sections. Goulding v. S. (83 Ala. 48), 364 Goure, U. S. v. (4 Cranch, C. G. 488), 838, 840. Gouilay, Rex v. (Jebb. 83), 403. Govers, Rex v. (Say. 306), 373, 376. Gowen, Com. v. (7 Mass. 378), 777, 1013. 1015. Grady, Com. v. (108 Mass. 413), 643, 644. Graliam, P. v. (1 Buf. 151), 460. , Reg. V. (13 Cox, C. C. 57), 403. , Rex V. (3 Leach, 547), 583. , Rex V. (4 Went. PI. 25), 466. 474 V. S. (1 Pike, 171), 489, 506. , a V. (51 Iowa. 72), 206, 558. , S. V. (13 Kan. 299), 403, 409. , S. V. (3 Sneed, 134), 243. Grahme, Rex v. (13 How. St. Tr. 646), 9S7. Grainger, Rex v. (3 Bur. 1617), 1039. Grames, S. v. (68 Me. 418), 643, 645. Grand Trunk Ry. Co., S. v. (59 Me. 189 , 1012, 1015. , S. V. (60 Me. 145), 520, 531. Granioe, P. v. (50 Cal. 147), 520. Grant, Com. v. (116 Mass. 17), 871. V. P. (4 Parker, C. C. 527), 944, 949, 1043, 1044, 1059. V. S. (55 Ala. 201), 582. , S. V. (35 Fla. 581), 79. , S. V. (80 Iowa, 216), 285. Graves, P. v. (5 Parker, C. C. 134), 79, 958. V. S. (63 Ala. 134), 354. Gray, Reg. v. (Leigh & C. 365, 9 Cox, C. C. 417), 699, 719. , Rex V. (7 Car. & P. 164), 904 V. S. (2 Harring., Del., 76), 1090. V. S. (7 Tex. Ap. 10), 680, 691. , S. V. (29 Minn. 142). 420, 430. Great North of England Ey. Co., Reg. V. (9 Q. B. 315, 3 Cox, C. C. 70), I0I2, 1015. Great Western Ry. Co., Reg. v. (21 U. C. Q. B. 555), 1012. Green v. Com. (13 Allen, 155), 530, 1068, 1087. , P. V. (15 Cal. 512), 583. , Reg. V. (3 Car. & K 209), 460, 466. , Reg. V. (Dears. & B. 113, 7 Cox, C. C. 186), 1043. , Reg. V. (Jebb, 383), 460, 471. , Rex V. (Trem. P. C. 6, 7 How. St. Tr. 159), 520. V. S. (58 Ala. 190), 739. V. S. (66 Ala. 40), 520. V. S. (I Tex. Ap. 83), 306, 558. , S. V. (34 Ark. 791), 871. , S. V. (7 La. An. 518), 206, 558. , S. V. (Ill Mo. 585), 520. , S. V. (52 S. C. 520), 680. Greenaore, Rex v. (8 Car. & P. 35), 520. Greenall, P. v. (115 N. Y. 520), 520. Greene v. S. (79 Ind. 537), 176. Greenen, Com. v. (II Allen, 341), 777, 820. Greenhalgh, S. v. (24 Mo. 373), 306, 313, 555 558 Gree]riiff, Rex v. (I Leach, 363), 890, 893. Greenlee v. S. (4 Tex. Ap. 345), 206, 904, 910. , S. V. (1 Dev. 523), 460. Greenley v. S. (60 Ind. 141). 530. Greenwood, Reg. v. (33 U. C. Q. B. 250), 180. , Reg. V. (23 U. C. Q. B. 255), 116, 520 539 — - V. S. (64 Ind. 250), 205. , S. V. (5 Port.- 474), 582, 1068. Greep, Rex v. (5 Mod. 343), 871. Greepe. Rex v. (3 Salk. 513), 873. Greer v. S. (50 Ind. 367), 205. Greeson v. S. (5 How., Miss., 33), 938. G-egg V. S. (61 Ind. 333), 583. Gregory v. Derby (8 Car. & P. 749), 93. V. Reg. (15 Q. B. 957, 5 Cox, C. C. 347), 619, 1068. , Reg. V. (Law R. 1 C. C. 77, 10 Cox, C. C. 459), 106, 583, 611. , Reg. V. (8 Q. B. 508), 619, 630. , Rex V. (5 B. & Ad. 555), 819. , S. V. (83 La. An. 787), 180. Grewell, S. v. (19 Kan. 189), 993. Grey, Reg. v. (4 Fost. & F. 73), 777, 798. , Rex V. (Trem. P. C. 215, 9 How. St. Tr. 127), 385, 294 Griepe, Rex v. (1 Ld. Raym. 256), 872. Griffin, Com. v. (21 Pick. 538), 841. , P. V. (1 Idaho Ter.,N. S., 476), 663. V. S. (87 Ark. 437), 680, 890, 895. 897. V. S. (26 Ga. 493), 111, 254, 360. V. S. (4 Tex. Ap. 390), 403. , S. V. (43 Tex. 538), 777, 803, 804 , S. V. (18 Vt. 198), 333. . S. V. (89 Mo. 49), 440. Griffith, Rex v. (Vern. & S. 612), 335, 826. Griggs, S. V. (34 W. Va. 78), 395. Griffiths, Com. v. (126 Mass. 253), 983. Grimwade. Reg. v. (1 Den. C. C. 30, 1 Car. & K. 592, 1 Cox, C. C. 85), 977. Grisham v. S. (2 Yerg. 589), 148, 156. Gross V. S. (2 Ind. 135), 1065. Grover, S. v. (38 La. An. 567), 871. Gruby, Reg. v. (1 Cox, C. C. 249), 420. Grund v. S. (40 Ala. 709), 1068. Grupe V. S. (67 Ind. 337), 642, 652. Guernsey, S. v. (9 Mo. Ap. 313), 993. Guest, S. V. (100 N. C. 410), 74 Guiteau, U. S. v. (Official Record of the case, 1), 530, 536. Gulick V. Loder (3 Green, N. J., 573), 98. INDEX TO CASES CITED. xlv References are to sections. Gulliver v. Gozens (1 C. B. 788), 173. Gulston, Reg. v. (3 Ld. Raym. 1310), 939 Gunyon v. S. (68 Ind. 79), 890. 893. Gurnee, S. v. (14 Kan. Ill), 993. Gurney, Reg. v. (11 Cox, G. C. 414), 285. 391. , S. V. (33 Me. 537), 643. 645. Gustafson.S. v. (50 Iowa, 194), 484, 485. Gustin, S. V. (3 Southard, 744), 460, 1068. Gutsole V. Mathers (1 M. & W. 495), 98. Guy, Rex v. (6 Went. PL 401), 854 H. H. P., Rex V. (Trem. P. C. 163), 874 , Rex V. (Trem. P. C. 196), 1012. Hackett v. Com. (3 Harris, Pa., 95), 58, 111 354 359 Hackley. P. v.' (34 N. Y. 74), 106S. Hadoraft, Com. v. (6 Bush, 91), 643, 65i. Haddon, S. v. (49 S. C. 308), 904 Hadfleld, Reg. v. (Law R. 1 C. C. 253, 11 Cox, C. C. 574), 1013, 1031. , Rex V. (37 How. St. Tr. 1281), 987. Hadley, S. v. (54 N. H. 224), 285. Hadlook, S. v. (43 Me. 283), 643. Hafter v. S. (51 Ala. 37), 643, 656. Hagar v. S. (35 Ohio St. 368), 87, 254 Hasgerty v. P. (6 Lans. 333, 53 N. Y. 476), 898. Hague, Reg. v. (9 Cox, C. C. 412), 384 387. Haigh, Rex v. (31 How. St. Tr. 1092), 937 Haight. P. V. (54 Hun, 8), 354 V. Badgeley (15 Barb. 499), 303. Hailey, S. v. (3 Strob. 73), 306, 838, 840. Haines, Reg. v. (3 Car. & K. 368, note), 530, 530. , S. V. (30 Me. 65), 777. 805, 807. Halbrook v. S. (34 Ark. 511), 881. Hale V. Com. (98 Ky. 353), 354 , P. V. (1 Wheeler, Crim. Cas. 174), 430. V. S. (36 Ark. 150), 642, 653. , S. V. (44 Iowa, 96). 1035. , U. S. V. (4 Cranch, C. C. 83), 420. Hales, Rex v. (17 How. St. Tr. 161), 460. Haley v. S. (63 Ala. 83), 633, 635. , S. V. (53 Vt. 476), 81, 777, 830. Halford, Reg. v. (11 Cox, C. C. 88), 583. Halifax, S. v. (4 Dev. 345), 1013, 1019. Halkem v. Com. (3 Va. Cas. 4), 583, 593. Hall. Com. v. (15 Mass. 340), 1012. Hall, Com. v. (97 Mass. 570), 460, 467. V. P. (43 Mich. 417), 87, 354 255. V. P. (90 N. Y. 498), 391. , P. V. (6 Parker, C. C. 643), 933. , Reg. V. (1 Post. & F. 33), 285, 391. V. S. (9 Fla. 303), 553. V. S. (8 Ind. 439), 583. V. S. (30 Ohio, 7), 643, 651. V. S. (39 Pla. 637), 509. V. S. (120 Ind. 153), 365. V. S. (40 Neb. 320), 904 , S. V. (3 Post., N. H.,384), 1013. , S. Y. (5 S. C. 120), 680. , S. V. (37 Tex. 333). 164 165. V. Triggs (3 Ch. 319), 323. , U. 8. V. (4 Cranch, C. C. 329), 460, 466. Hallenback, P. v. (2 Abb. N. Cas. 66), 619. 636. Haller, In re (3 Abb. N. Cas. 65\ 1004 Hallett V. S. (39 Ohio, 168), 118. Hailey v. S. (43 Ind. 509), 420. Halsey v. S. (1 Southard, 334), 415. Ham V. S. (4 Tex. Ap. 645), 460. Hambden, Rex v. (Trem. P. C. 307), 987, 1045, 1083, 1086, 1087, 1090. Hambleton, S. v. (33 Mo. 453), 699, 710. V. Veere (2 Saund. 169), 303. Hamblin, S. v. (4 S. C. 1), 582, 593. Hamilton v. Lomax, (26 Barb. 615), 294 V. Lyman (9 Mass. 14). 93. , P. V. (101 Mich. 87), 652. V. Reg. (3 Cox, C. C. 11, 9 Q. B. 371). 46, 430,425. , Reg. V. (1 Cox, C. C. 244), 420, 425. , Rex V. (7 Car. & P. 448), 285. , Rex V. (Post. 1), 987. V. S. (63 Ark. 543), 530. V. S. (16 Fla. 288), 420. V. S. (25 Ind. 436), 489, 494 V. S. (34 Ind. 380), 1075. V. S. (36 Ind. 280), 205. V. S. (75 Ind. 586), 489, 503. V. S. (11 Tex Ap. 116), 87, 254 V. S. (36 Tex. Ap. 306), 79. , S. V. (1 Houst. Crim. 361), 699, 730. , S. V. (65 Mo. 667), 871. 876. Hamilton Mfg. Co., Com. v. (120 Mass. 383), 579. Hamlin v. Mack (33 Mich. 103), 173. , S. V. (47 Conn. 95), 1038. Hammond, S. v. (80 Ind. 80), 977, 980. , U. S. V. (2 Woods, 197), 1036, 1038. Hamp, Reg. v. (6 Cox, C. C. 167), 385, 312. Hampden, Rex v. (9 How. St. Tr. 1054), 942. , Rex V. (Trem. P. C. 37), 941. Hampson, Rex v. (Trem. P. C. 191), 442. xlvi INDEX TO OASES OTTED. Beferences are to sections. Hampton v. S. (8 Humph. 69), 682, 916. Hancock, Reg. v. (14 Cox, C. C. 119), 118, 583, 916. Hand, S. V. (1 Eng. 165), 420. Haney v. S. (34 Ark. 263), 520, 545. V. S. (5 Wis. 529), 206, 558. , S. V. (1 Hawks, 460), 619. Hank v. S. (148 Ind. 238), 1038. Han kins, Reg. v. (2 Car. & K. 833), 871. Hanks, S. v. (66 N. C. 612), 993. Hanley, Com. v. (121 Mass. 377), 642, 644. , S. V. (47 Vt. 290), 858. Hanlon, S. v. (62 Vt. 334), 904. Hanna v. P. (19 Micli. 816), 306, 558. Hannon, Reg. v. (2 Moody, 77, 9 Car. & P. 11), 460, 478. Hanrahan v. P. (91 III. 143), 306, 558. V. S. (57 Ind. 537), 489, 504. Hanselman, P. v. (76 Cal. 460). 79. Hansford v. S. (54 Ga. 55), 88, 306. Hansill, Reg. v. (3 Cox, C. C. 597), 118. Hansom, Reg. v. (2 Car. & K 913, 4 Cox, C. C. 138), 206, 213. , Rex V. (31 How. St. Tr. 1), 120, 385, 808. , Rex V. (Trem. P. C. 143), 875. Hany v. S. (4 Eng. 198), 489, 506. Haran, S. v. (64 N. H. 548), 460. Hardin, S. v. (106 Ga. 384), 66. V. S. (23 Ind. 347), 1038. V. S. (13 Tex. Ap. 186), 1046. Harding's Case (1 GreenL 22), 443, 444. 445. Harding V. S. (54 Ind. 359), 460. Hardwick, S. v. (2 Mo. 226), 997, 998. Hardy v. Com. (17 Grat. 592), 933. , Com. V. (2 Mass. 303 1, 1079. , Reg. V. (Law R 1 C. C. 378, 11 Cox, C. C. 656), 1013, 1031. , Rex V. (34 How. St. Tr. 199, 2 Chit. Crim. Law, 79, 4 Went. PI. 14), 987. , S. V. (47 N. H. 538), 206, 392. Hare, U. S. v. (2 Wheeler, Crim. Cas. 283), 885. Hargrave. S. v. (103 N. C. 328). 430. Harkin. S. v. (7 Nev. 377), 520. Harkins, Com. v. (128 Mass. 79), 420. Harley, Com. v. (7 Met. 463), 430. , Com. V. (7' Met. 506), 285. ■ , Reg. V. (1 Car. & K. 89). 885. Harlow v. Com. (11 Bush, 610), 777, 783. Harman, Reg. v. (2 Ld. Raym. 1104), 408, 411. Harney, Com. v. (10 Met. 423), 111, 180, 194 Harper, S. v. (69 Mo. 435), 206, 212, 558. Harries, IT. S. v. (2 Bond, 311), 978. Harriman, Com. v. (137 Mass. 287), 484. , S. V. (75 Me. 562). 699, 711. , U. S. V. (1 Hughes. 525), 206, 320. Harrington, Com. v. (130 Mass. 35), 91. T. S. (54 Mo. 490), 460, 474, 475. Harris, Com. v. (13 Allen, 534), 672, 678. , Com. V. (8 Gray, 470), 1043. , Com. V. (101 Mass. 29), 777, 833. , Reg. V. (4 Cox, C. C. 140), 233, 234. , Reg. V. (11 Cox, C. C. 659), 777, 802. , Rex V. (7 Car. & P. 353), 871, 876. , Rex V. (1 Leach, 135), 383. , Rex V. (1 Moody, 393), 460, 475. , Rex V. (4 T. R 303, 3 Leaoh, 549), 513. , Rex V. (Trem. P. C. 65), 633,940. V. S. (31 Ala. 363), 489. V. S. (50 Ala. 137), 90, 643, 656. V. S. (60 Ala. 50), 583, 600. V. S. (54 Ind. 2), 205. V. S. (1 Tex. Ap. 74). 1090. V. S. (2 Tex. Ap. 102), 77, 583. V. S. (9 Tex. Ap. 308). 489, 502. V. S. (32 Tex. Ap. 677), 262. . S. V. (27 Iowa, 429), 777, 820. , S. V. (38 Iowa, 343), 285, 312. . S. V. (5 Ire. 387), 460, 464. , S. V. (13 Nev. 414), 70, 520, 1041. , S. V. (2 Sneed, Tenn., 224), 643. , S. V. (106 N. C. 682), 66. Harrison, Rex v. (3 How. St. Tr. 1869), 335 336 , Rex V. (13 How. St. Tr. 834), 530. V. S. (36 Ala. 348), 460. V. S. (2 Coldw. 332), 109, 206, 558. V. S. (3 Tex. Ap. 558), 1061 Harrow, Rex v. (4 Bur. 2090), 1013, 1017. Harry, Rex t. (4 Went. PI. 54), 721. Harsant, Rex v. (Trem. P. C. 342), 997, 999. Hart V. Aldridge (Cowp. 54), 303. , Com. V. (11 Cush. 130), 642, 655. , Com. V. (10 Gray, 465), 777, 782. , Com. V. (6 J. J. Mar. 119), 37a , Rex V. (30 How. St Tr. 1131), 619, 623. . Rex V. (1 Moody, 486, 7 Car. & P. 653), 460, 468. V. S. (55 Ind. 599), 582. V. S. (3 Tex. Ap. 39), 642. , S. V. (34 Me. 36), 777, 828. Hartley, Rex v. (Russ. & Ry. 189), 408. Hartman. S. v. (41 Tex. 562), 206, 212. Hartmann v. Com. (5 Barr, 60), 285. Hartshorn, Reg. v. (6 Cox, C. C. 895), 460. 6 V , >, INDEX TO CASES CITED. xlvii Eeferenoea are to sections. Hartshorn v. S. (29 Ohio St. 635), 116, 254, 256. Hartung, P. v. (4 Parker, C. C. 356), 116, 520, 533, 539. Hartwell, Com. v. (138 Mass. 415), 520, 530. , U. S. V. (3 Clif. 221), 1051. Harvey, Com. v. (Ill Mass. 420), 642, 644. , Reg. 7. (8 Cos, C. C. 99), 871. , Reg. V. (11 Cox, C. C. 663), 342. , Rex V. (Trem. P. C. 66), 633, 940. , Rex V. (Trem. P. C. 197), 1012, 1015. , S. V. (3 N. H 65), 442. Harwood v. Siphers (70 Me. 464), 77. Hascall, S. v. (6 N. H. 353), 871. Haskell, S. v. (33 Me. 137), 403. Haskins v. Royster (70 N. C. 601), 303. Haslam, Rex v. (1 Dan. C. C. 73), 394. Haslip V. S. (4 Hayw. 273), 206, 742, 748. V. S. (10 Neb. 590), 460, 464. Hass V. S. (53 N. J. L. 34), 619. Hastings. Com. v. (9 Met. 259), 306, 838, 839. Haswell, Rex v. (Russ. & Ry. 458), 890, 892. Hatch V. S. (40 Ala. 718), 1068. V. S. (8 Tex. Ap. 416), 1078. V. S. (10 Tex. Ap. 515), 890. Hatchard, Rex v. (33 How. St. Tr. 674), 619. Hatcher, Com. v. (6 Grat. 667), 642, 650. Hatfield, S. v. (73 Mo. 518), 58, 904, 905. Hathaway, Com. v. (13 Mass. 299), 1063. , Reg. V. (14 How. St. Tr. 639), 633, 635. , Reg. V. (14 How. St. Tr. 690), 939, 1068. , S. V. (106 Mo. 336), 999. Hattabough, S. v. (66 Ind. 323), 205. Hatton, Com. v. (15 B. Monr. 537), 642. Haughey, Com. v. (3 Met., Ky., 233), 420. Hawkes, Reg. v. (3 Moody, 60), 460, 472. Hawkins, Com. v. (11 Bush, 603), 306, 212, 859. V. Eckles (2 B. & P. 359), 173. , Rex V. (1 Den. C. C. 584), 403. , Rex V. (Peake, 8), 871. , Rex V. (Trem. P. C. 167), 874, 968. V. S. (54 Ga. 653), 680. V. S. (125 Ind. 570). 318. , S. V. (5 Eng. 71), 1038, 1058. Hawks, Com. v. (IS Allen, 550), 777, 1005. Hawley v. Com. (1 Mat. 847), 116. V. Com. (75 Va. 847), 530, 539. Haws, S. V. (41 Tex. 161), 164, 165. Hawthorn v. S. (56 Md. 530), 460. Hayden, Com. v. (150 Mass. 332, 333, 334), 36. , S. V. (45 Iowa, 11), 87, 354. , S. V. (15 N. H. 355), 460, 466. Hayen v. P. (3 Parker, C. C. 175), 1089, 1090. Hayes, Rex v. (Trem. P. C. 5), 941. V. P. (5 Parker, C. C. 335), 43, 58, 881 , S. V. (34 Mo. 358), 890, 893. , S. V. (59 Kan. 61), 403. Hayne, S. v. (4 S. C. 403), 997, 1001. Haynes v. Com. (28 Grat. 943), 1078. , Com. V. (3 Gray, 73), 90, 777, 803. , Rex V. (4 M. & S. 214), 272. V. Ter. (3 Wyom. 167), 420. Hays V. S. (40 Md. 633), 138, 141. V. S. (77 Ind. 450), 305. , S. V. (67 Mo. 693), 206, 313. Haystead, Reg. v. (7 U. C. Q. B. 9), 984. Hayton, Rex v. (Trem. P. C. 191), 443. Hayward, Com. v. (10 Mass. 34), 460, 465, 474. , 8. V. (1 Nott & McC. 546), 871. Hazelton, Reg. v. (LawR. 2 C. C. 134, 13 Cox, C. 0. 1), 430. Hazen, S. v. (104 Iowa, 16). 430. Hazle, S. v. (30 Ark. 156), 00, 777, 803. Heacock, S. v. (106 Iowa, 191), 619. , Ter. V. (4 N. M. 354 1, 403. Heane, Reg. v. (4 B. & S. 947), 1033. Hearn v. S. (34 Ark. 550), 859. Hearsey, Com. v. (1 Mass. 137), 373. Heath, Reg. v. (2 Moody, 33), 582, 584, 605. , Rex V. (18 How. St. Tr. 1), 871, 1065. V. S. (36 Ala. 273), 838, 843. , S. V. (70 Mo. 565), 403. Heaton, S. v. (77 N. C. 505), 132. Hebel, S. v. (72 Ind. 361), 403. 409. Hedges, Rex v. (38 How. St. Tr. 1315), 285, 313. Heed, P. v. (1 Idaho Ter., N. S., 531), 460. Heflin, S. v. (8 Humph. 84), 935. Heilman v. Martin (3 Ark. 158), 1034. Hein, S. t. (50 Mo. 363), 680, 691. Heldt, S. V. (41 Tex. 230), 642, 651. Helfrioh v. Com. (9 Casey, Pa., 68), 148. 149. Helfrick v. Com. (29 Grat. 844), 643, 658. Helm, S. V. (6 Mo. 363), 148. Hembree v. S. (53 Ga. 342), 871, 875. Hemmingway v. S. (68 Miss. 371), 403. Henbaok v. S. (53 Ala. 523), 997. Henderson v. P. (117 III. 265), 871. , Reg. V. (11 Cox, C. C. 593). 583. , Reg. V. (3 Moody, 192, Car. & M. 328), 420. V. S. (59 Ala. 89), 489. xlviii INDEX TO CASES CITED. References are to sections. Henderson v. S. (63 Ala. 193), 633, 635, 859. V. S. (50 Ind. 234), 997, 1001. V. S. (1 Tex. Ap. 482), 403, , S. V. (15 Mo. 486), 838, 840. , a V. (1 Rich. 179), 619. Hendric, U. S. v. (2 Saw. 476), 247, 249. Hendricks v. Com. (1 Mat. 934), 437. Henfield's Case (Whart. St. Tr. 49), 760. Henn, S. v. (39 Minn. 464-476), 582. Henning, S. v. (33 lad. 189), 247. , U. S. V. (4 Cranch, C. 0. 645), 569, Henry, Com. v. (10 Harris, Pa., 253), 420. V. S. (33 Ala. 389), 520. ■ V. S. (35 Ohio St. 128), 80, 460, 471. , S. V. (1 Lea, 720), 403, 411. , S. -v. (47 La. An. 1587), 933. Hensey, Rex v. (19 How. St. Tr. 1341), 987. Henshall's Case (2 Lewin, 135), 109, 206, 214. Henshaw, Reg. v. (Leigh & C. 444, 9 Cox. C. C. 472), 111, 420, 434. Hensler, Reg. v. (11 Cox, C. C. 570), 420. Hensley v. S. (1 Eng. 252), 643. Henson, Reg. v. (Dears. 24), 777, 810, 815. Henwood, Reg. v. (11 Cox, C. C. 526), 582. Heppingstall, Reg. v. (8 Cox, C. C. Ill), 206, 313. Herine v. Com. (13 Bush, 295), 642. Herrick, Com. v. (6 Cush. 465), 642. Hersey, Com. v. (2 Allen, 173), 520, 533. Heseiton, S. v. (67 Me. 598), 1038. Hess V. S. (73 lud. 537), 460. Hesseltine, S. v. (130 Mo. 468), 460. Hevey, Rex v. (1 Leach, 232), 285. Hevice, Respublica v. (2 Yeates, 114, 3 Wheeler, Crim. Cas. 505), 285, 296. Hewet, Rex v. (5 How. St. Tr. 883), 987. Hewgill, Reg. v. (Dears. 315), 420. Hewins, Reg. v. (9 Car. & P. 786), 871, ST6. Heydon, Rex v. (4 Co. 41a), 520. Heymann v. Reg. (Law R. 8 Q. B. 102), 285, 391. Heywood, Reg. v. (Leigh & C. 451, 9 Cox, C. C. 479), 916. Hibbert, Reg. v. (13 Cox, C. C. 82, 13 Eng. R. 433), 285, 308. Hickey, Com. v. (136 Masa 350), 643, 644. Hickley, Rex v. (Trem. P. C. 171), 968. Hickling, S. v. (12 Vroom, 208), 385, 300. Hickman, Com. v. (3 Va. Cas. 333), 871. Hickman, Rex v. (1 Leach, 318), 583, 588, 597. , Rex V. (1 Moody, 34), 977. Hicks, Com. v. (7 Allen, 573), 1013, 1021. - V. S. (60 Ga. 464), 365. V. S. (105 Ga. 267), 520. Higbie. P. v. (66 Barb. 131), 420. Higginbotham v. S. (50 Ala. 133), 306. Higgins, Rex v. (3 East, 5), 106, 403, 413. , S. V. (53 Vt 191), 643, 646. Higginson, Rex v. (2 Bur. 1232), 777, 794, 795. Higler v. P. (44 Mich. 299. note). 420. Hignera, P. v. (122 Cal. 466), 950. Hill, Com. V. (14 Gray, 24), 776, 777, 782, 820, 821. , Reg. V. (1 Car & K. 168), 235. , Rex V. (20 How. St. Tr. 1318), 180, 699. , Rex V. (Russ. & Ry. 190). 420. , Rex V. (6 Went. PI. 389), 273. V. a (3 Heisk. 317), 904, 905. , a V. (72 Me. 238), 430. , a V. (73 N. C. 345), 1064. , a V. (79 N. C. 656), 699, 716, Hillam, Reg. v. (12 Cox, C. C. 174, 2 Eng. R 337), 333. Hillman, Reg. v. (Leigh & C. 343, 9 Cox. C. C. 386). 138, 141. Hilton, Reg. v. (Bell, C. C. 20, 8 Cox, C. C. 87), 582. , Reg. V. (2 Cox, C. C. 318), 233, 234. , Rex V. (Trem. P. C. 174), 968. , a V. (26 Mo. 199), 890, 893. , a V. (32 N. H. 285), 205. Hinckley, a v. (38 Me. 21), 403, 411. Hindman, P. v. (99 Cal. 1), 520. Hindmarsh. Rex v. (2 Leach, 569), 89, 530, 538. Hinds, Com. v. (101 Mass. 209), 460, 475. V. a (55 Ala. 145), 180. Hing, S. V. (16 Nev. 307), 520. Hinley, Reg. v. (2 Moody & R. 524), 572, 584. Hinson, S. v. (31 Ark. 638), 58, 364, 365, 371. , a V. (83 N. C. 597), 558, 1013, 1021. Hintermeister v. S. (1 Iowa, 101), 643, 660. Hirschfelder v. S. (118 Ala. 113), 509. Hiss V. a (24 Md. 556), 680, 687. Hitchings, Com. v. (5 Gray. 483), 643. Hite V. S. (9 Yerg. 357), 1043. Hix, S. V. (3 Dev. 116), 489. Hizer v. S. (12 Ind. 330), 395, 396. Hoar, Com. v. (121 Mass. 375), 642, 644. Hoare, Rex v. (6 M. & S. 266), 443. INDEX TO CASES CITED. slix Eeferences are to sections. Hobaok v. Com. (38 Grat. 932}, 306, 558, 695. Hobbs V. S. (9 Mo. 855), 460, 466. , a V. (3 Tyler, 380), 306, 333. Hodges V. Windham (Peake, 39), 394. Hodgsoa V. Little (9 Cox, C. C. 337), 438. , S. V. (66 Vt. 134). 643. Hogan, Com. v. (113 Mass. 7), 643. , Reg. V. (1 Den. C. C. 377, 5 Cox, C. C. 355), 306, 318. Hogg, Reg. V. (35 U. C. Q. B. 66), 384, SS7 Hoit,'s. V. (3 Fast, N. H., 355), 680, 690. Holcomb V. Coonish (8 Conn. 375). 819. , P. V. (3 Parker, C. C. 656), 306, 838, 839. Holden, Rex v. (Russ. & Ry. 154, 3 Taunt. 334), 460, 466. V. Soanlin (30 Vt. 177), 93. Holland v. S. (33 Ind. 343), 583. , S. V. (38 Ark. 343), 489, 506. HoUenbeck, S. v. (36 Iowa, 113), 138. Holies. Rex v. (Trem. P. C. 294), 206, 333, 1034, 1068, 1086. HoUingberry, Rex v. (3 Ben. & H. Lead. Cas. 34, 6 D. & R. 345. 4 B. & C. 339). 285, 300. Hollingworth v. S. (39 Ohio St. 553), 984. HoUingsworth, S. v. (100 N. C. 535), 70. Hollis, Reg. V. (18 Cox, C. C. 463, 6 Eng. R. 319), 138, 141. Hollister v. Com. (10 Smith, Pa., 103). 354. Hollohan v. S. (33 Md. 399), 206, 933, 937. Hollon. S. V. (33 Kan. 580), 890, 891. HoUoway v. Reg. (3 Den. C. C. 287, 17 Q. B. 317), 53, 890, 893, 894, 1068. , Reg. V. (1 Den. C. C. 370), 582, 584. Holly V. S. (54 Ala. 338), 600. , U. S. V. (3 Cranch, C. C. 656), 777, 805. Holman v. Johnson (Cowp. 341), 973. , Reg. V. (Leigh & C. 177, 9 Cox, C. C. 301), 403, 588, 610. , S. V. (39 Ark. 58), 1018. Holmes, Com. v. (17 Mass. 336), 619, 626. , Com. V. (119 Mass. 195), 643. , P. V. (6 Parker, C. C. 25), 80, 530. , Reg. V. (Dears. 207, 3 Car. & K 360, 6 Cox, C. C. 316), 777, 803. , S. V. (38 Conn. 330), 582. , S. V. (56 Iowa, 588), 777, 783. , S. V. (83 N. C. 607), 420. , (J. S. V. (5 Wheat. 413), 89, 530, 538. Holoman v. S. (3 Tex. Ap. 610), 43, 80, 673, 673. Holroyd, Reg. v. (3 Moody & R. 339), 1013, 1021. Holt, Rex V. (33 How. St. Tr. 1190), 619, 621. , Rex V. (3 Leach, 593, 5 T. R. 436), 619. 631. V. S. (38 Ga. 187), 929. V. Ter. (4 Okla. 76), 520. , S. V. (84 Me. 509), 852. Holtzhauer, U. S. v. (40 Fed. R. 76), 530. Homer, Com. v. (5 Met. 515), 890, 893. , S. V. (40 Me. 438). 777, 788, 784. Hone, Rex v. (9 How. St. Tr. 571), 987. Honeyman, Respublica v. (3 Dall. 338), 530. Honig, S. V. (78 Mo. 249), 916. Honselman v. P. (108 111. 173), 963. Hood. P. V. (6 Cal. 236), 180. , Rex V. (1 Moody, 281), 306, 838, 839. V. S. (44 Ala. 81), 871. Hook, S. V. (4 Kan. Ap. 451), 156. Hooker, S. v. (17 Vt. 638), 306, 838, 839. Hooper, Com. v. (104 Mass. 549), 430. , Com. V. (Thacher, Crim. Cas. 400), 878. V. S. (8 Humph. 93), 460, 466. v. S. (56 Ind. 153), 643. , S. V. (1 Houst. Crim. 17), 577. Hoopes, Rex V. (Trem. P. C. 558), 1083. Hoover v. S. (59 Ala. 57), 148. , S. V. (31 Ark. 676), 699, 723. Hope V. Com. (9 Met. 184). 588. , S. V. (15 Ind, 474), 489, 502. Hopkins v. Com. (3 Met. 460), 96. V. P. (13 Wend. 76), 916. , Reg. V. (Car. & M. 354), 944 , S. V. (5 R L 53), 777. 830. Hoppe, S. V. (39 Iowa, 468), 583, 603. Hopper V. S. (54 Ga. 389), 148, 944, 949. , S. V. (71 Mo. 425), 115. 530, 539. Horan v. S. (7 Tex. Ap. 183), 838, 840. Hord. S. V. (123 Ind. 34). 643. Horn, S. v. (19 Ark. 578). 365. , S. V. (93 Mo. 190), 79. Home, Reg. v. (4 Cox, C. C. 263), 890, 898. , Rex V. (Cowp. 673, 20 How. St. Tr. 651), 619. 631, 1079. V. S. (1 Kan. 43), 520. Horsley, Rex v. (Trem. P. C. 4), 987. Horton. Com. y. (2 Gray, 69), 673, 676. . Com. V. (9 Pick. 306), 1051, 1053. V. S. (33 Tex. 79). 460, 464. Horwell, Rex v. (1 Moody, 405, 6 Car. & P. 148). 460, 468. Hoskins v. S. (37 Ind. 470), 583. Hotine, Reg. v. (9 Cox, C. C. 146), 933. INDEX TO CASES CITED. References are to sections. Houck, S. V. (73 Ind. 37), 777. Houghton, Com. v. (8 Mass. 107), 460, 467. House, S. V. (55 Iowa, 466), 420. Housh V. P. (75 111. 487), 63. Houston V. 8. (13 Tex. Ap. 595), 170. Houx, S. V. (109 Mo. 594), 904. Howard v. S. (34 Ark. 433), 58. 520, 585 V. S. (64 Ind. 516), 58, 489, 494 V. S. (67 Ind. 401), 205. , S. V. (6 Conn. 475), 890. 891. , a V. (63 Ind. 502), 58. 871, 876. , S. V. (66 Minn. 309). 247. -, S. V. (67 N. C. 24), 663, 671. , a V. (92 N. C. 772), 44. , U. a V. (7 Bis. 56), 864. , U. a V. (3 Sumnei% 12), 206, 212, 2^3 Howarth, Reg. v. (11 Cox, C. C. 588), 420. Howarth, Eeg. v. (33 U. C. Q. B. 537), 663, 665. Howe, Com. v. (13 Gray, 26). 777, 820. , Com. V. (132 Mass. 250), 58, 420. Howell, Eeg. v. (9 Car. & P. 437), 699, 727. , Eeg. V. (1 Cox, C. C. 190), 254. , Eeg. V. (4 Fost. & F. 160), 285, 294. . S. V. (1 Ga. Dec. 158), 306, 558. Howerton. a v. (59 Mo. 91). 933, 936. Howley. Rex v. (28 How. St. Tr. 1183), 987. Hoxey, Com. v. (16 Mass. 385), 365,368, 393 Hoye, Com. v. (11 Gray, 463), 642, 655. Hoyer, Com. v. (135 Mass. 309), 643, 653. Hoym, P. V. (20 How. Pr. 76), 663, 671. Hubbard, Com. v. (34 Pick. 98), 174 Hubbs, a V. (58 Ind. 415). 305. Hube, Eex v. (5 T. E. 543), 365. Huber v. a (35 Ind. 175). 777, 820. Huokeby, a v. (87 Mo. 414). 871. Huoks, Eex v. (1 Stark. 521), 871. Hudgens v. Com. (3 Duv. 339), 890, 891. Hudson, Eeg. v. (BeU, 363, 8 Cox, C. C. 305), 385, 291. V. a (61 Ala. 333), 180. V. a (1 Blackf. 317), 21. Huff, a V. (11 Nev. 17), 530. , a V. (13 Nev. 140), 520. Huffman, Pennsylvania v. (Addi- son, 140), 460, 471. Huggins, Eex v. (3 Car. & P. 414), 520. v. a (41 Ala. 393), 916. . a V. (13 Rich. 403), 530. Hughes, Eeg. v. (Bell, C. C. 243, 8 Cox. C. C. 378), 583, 916. . Eeg. V. (1 Car. & K. 519), 871, 876. Hughes. Reg. v. (1 Fost. & F. 736), 335. , Eex v. (4 Car. & P. 373), 939. , Eex V. (1 Moody, 370), 403. V. Eoss (1 Stew. & P. 258), 98. V. a (1 Eng. 131), 890, 893. V. a (65 Ind. 39), 205. , a V. (76 Mo. 333). 582, 614 , a V. (85 N. C. 663), 254 , a V. (23 W. Va. 743), 1078. , a V. (43 Tex. 518), 247. Hulbert, Com. v. (13 Met. 446), 420. Humbard v. S. (31 Tex. Ap. 300), 619. Humphreys v. S. (17 Fla. 381), 384 388, 871, 876. Humphries, Com. v. (7 Mass. 243), 933 Hunkins, a v. (43 N. H. 557), 482, 483. Hunn, a V. (34 Ark. 321), 489, 506. Hunnicut, S. v. (34 Ark. 562), 403. Hunt. Com. v. (4 Met. Ill), 285, 305, 308. . Com. V. (4 Pick. 252), 206, 904 910. V. Middlesworth (44 Mich. 448), 93 V. P. (3 Parker, C. C. 569), 138, 143, 530, 538. , P. V. (120 Cal. 281), 838. V. a (3 Ind. Ap. 383), 349. , Eeg. V. (3 Cox, C. C. 215), 942. , Eex V. (3 B. & Aid. 566), 285, 943. V. a (55 Ala. 138), 583, 592. V. a (9 Tex. Ap. 404), 206, 316. Hunters Case (1 Lewin, 3), 180, 190. Hunter v. Burnsville Turnpike (56 Ind. 313), 984 V. Com. (39 Smith, Pa., 503), 206, 558. , Eeg. V. (10 Cox, C. C. 643), 420. ■ , Eex V. (2 Leach, 624), 460, 471. , a V. (8 Blackf. 212), 680, 690. Huntley, P. v. (112 Mich. 569), 558. , Eeg. V. (Bell. C. C. 238, 8 Cox, C. C. 260), 583, 916. Huntly, a V. (3 Ire. 418), 58, 262. Huntzinger v. Com. (1 Out., Pa., 336), 285 Hupp, a V. (31 "W. Va. 355), 79. Hurd, Com. v. (177 Pa. St. 481), 680. Hurley, S. v. (71 Me. 354), 54 58, 180. Hurrell, Eex v. (Eyan & Moody N. P. 396), 74 583. Hurst, a V. (11 W. Va. 54), 430. Hurt V. a (55 Ala. 314), 254 Hussey, Com. v. (Ill Mass. 433), 403, 411. Hutohins v. Com. (3 Va. Cas. 331), 564 Hutchinson, Com. v. (6 Allen. 595), 648, 646. , Rex V. (Trem. P. C. 164), 874 • , S. V. (36 Me. 261), 148. , a V. (26 Tex. Ill), 176. INDEX TO CASES CITED. li References are to sections. Hutchinson, S. v. (95 Iowa, 566), 910. Hutchison v. Com. (1 Norris, Pa., 473), 403. , Com. V. (114 Mass. 325), 430. Huxley, Reg. v. (Car. & M. 596), 933, 937. Hyde, S. v. (37 Minn. 158), 643. Hyman, Rex v. (3 Leach, 935), 916. Hynes, Reg. v. (13 U. C. Q. B. 194), 408. 411. Hynde, Rex v. (Trem. P. C. 339), 336. Ihrig V. S. (40 Ind. 433), 643, 653. Imsand, U. S. v. (1 Woods, 581), 973. Ingham, Reg. v. (5 B. & S. 857), 530. Ingraham, U. S. v. (49 Fed. R. 155), 871. Ingram, S. v. (16 Kan. 14), 583. Inks, S. V. (135 Mo. 678), 530. Inman, S. v. (54 Ga. 319), 583, 588. Insall V. S. (14 Tex. Ap. 145), 609. Intoxicating Liquors, Com. v. (4 Al- len, 593), 643, 645. , Com. V. (13 Allen. 53), 643, 645. , Com. V. (6 Alien, 599), 643, 645. , Com. V. (97 Mass. 334), 643, 645. , Com. V. (103 Mass. 448), 642, 645. , Com. V. (105 Mass. 181), 643, 645. . Com. V. (108 Mass. 19), 643, 645. , Com. V. (109 Mass. 371), 643, 645. , Com. V. (110 Mass. 183), 642, 645. , Com. V. (110 Mass. 416), 643. , Com. V. (110 Mass. 499), 643. , Com. V. (113 Mass. 13), 643, 645. , Com. V. (116 Mass. 37), 648, 645. , Com. V. (133 Mass. 8), 648, 645. Irvin V. S. (19 Fla. 873), 1064. Irvine, S. v. (8 Heisk. 155), 642, 654. Irving, Reg. v. (13 Q. B. 439), 984. Irwin, S. v. (30 W. Va. 404), 317. Isaaca, Reg. v. (Leigh & C. 380, 9 Cox, C. C. 338), 138, 141. Iseley v. S. (8 Blackf. 403). 489, 506. Ivens, Rex v. (7 Car. & P. 818), 567. Ives, S. V. (13 Ire. 838), 916. Ivey V. S. (13 Ala. 376), 75, 378. 379. V. S. (61 Ala. 58), 859. Ivy, Rex v. (Trem. P. C. 185), 460. J. C, Rex V. (Trem. P. C. 337), 333. Jackalow, U. S. v. (1 Black, 484), 933. Jackman, P. v. (96 Mich. 869), 619. Jacks, S. V. (54.1nd. 413), 643. Jackson, Com. v. (1 Grant, Pa., 368), 58, 443. , Com. V. (15 Gray, 187), 138, 143. V. P. (3 Scam. 831), 881. , P. V. (8 Barb. 637), 583, 601, 603. Jackson, P. v. (3 Hill. N. Y., 92), 138. 140, 142, 143, 580, 538. , P. V. (8 Parker, C. C. 391), 904, 905. , Rex V. (18 How. St. Tr. 1070), 530. . Rex V. (25 How. St. Tr. 783), 987. V. S. (76 Ga. 551), 408. V. S. (43 Tex. 421), 347. , S. V. (89 Mo. 561), 460. , S. V. (4 Blackf. 49), 643, 652. , S. V. (39 Conn. 22), 430, 485. , S. V. (12 Ire. 839), 699, 703. , S. V. (39 Me. 391), 148. , S. V. (73 Me. 91), 54, 58, 347, 248. , S. V. (36 Ohio St. 281). 871. , S. V. (112 Mo. 585), 480. V. U. S. (48 C. C. A. 453), 66. , U. S. V. (4Cranch, C. C. 483), 90, 777, 800. , U. S. V. (3 Saw. 59), 415. Jacobs, Com. v. (9 Allen, 374), 106, 858. V. S. (61 Ala. 448), 871, 874. , S. V. (88 Mo. 379), 998. , S. V. (103 N. C. 897), 365. Jacobson, Reg. v. (14 Cox, C. C. 583), 957. V. S. (55 Ala. 151), 489, 506. Jaeger, S. v. (68 Mo. 403), 643. James, Com. v. (1 Pick. 375), 58. , Reg. V. (1 Car. & K 530), 111, 306, 212, 236. , Reg. V. (13 Cox, C. C. 127), 430. , Reg. V. (3 Den. C. C. 1, 3 Car. & K 167. 14 Jur. 940), 738. V. S. (45 Mo. 573, 3 Morris State Cas. 1741), 1069. Jameson, S. v. (74 Iowa, 613), 438. Jane v. Com. (3 Met., Ky., 18), 530. J'Anson v. Stuart (1 T. E. 748), 781. Jaques, S. v. (68 Mo. 860), 643. Jarman, Reg. v. (14 Cox, C. C. Ill), 111, 430. Jarrald, Reg. v. (Leigh & C. 801, 9 Cox, C. C. 307), 368. Jarrell v. S. (58 Ind. 893), 805. Jarvis, Reg. v. (Dears. 553, 7 Cox, C. C. 58), 841. Jasper, S. v. (4 Dev. 333), 58, 364, 365, 367. JavJns V. U. S. (11 Ap. D. C. 345), 486. Jay V. S. (69 Ind. 158), 985. Jaynes, S. v. (78 N. C. 504). 180, 181. Jefiferys, Rex v. (18 How. St. Tr. 1193), 520. Jeffrey, S. v. (33 Ark. 186), 489, 663, 670. Jeffreys v. Com. (13 AUen, 145), 58, 430, '1090. , S. V. (8 Murph. 480), 44, 530. Jeffries, Com. v. (7 Allen, 548), 430. Jenkins v. 8. (50 Ga. 358), 583, 588. V. S. (7 Tex. Ap. 146), 699, 733. , S. V. (8 Tyler, 377), 583. lii INDEX TO CASES CITED. References are to sections. Jenks, Rex v. (2 Leach, 774), 254. V. S. (39 Ind. 1), 1078. Jennerson, S. v. (14 Kan. 133X 993. Jennings v. Com. (105 Mass. 586), 354, 614, 1068. V. Com. (17 Pick. 80), 777, 783. , Com. V. (131 Mass. 47.), 881, 883. , Reg. V. (Dears. & B. 447, 7 Cox, C. C. 397), 583, 584. V. S. (9 Mo. 863), 206. V. S. (7 Tex. Ap. 350), 530. Jennison, U. S. v. (1 McCrary, 326), 867. Jenson, Rex v. (1 Moody, 434), 403. Jericho, S. v. (40 Vt. 131), 1013, 1018. Jernigan, S. v. (3 Murph. 12), 582. Jeirett. Reg. v. (23 U. C. Q. B. 499), 933. Jesse, S. V. (3 Dev. & Bat. 297), 904, 905. , S. V. (3 Dev. & Bat. 98), 904, 905. Jessup. Com. v. (13 Smith, Pa., 34), 643, 652. , S. V. (42 Kan. 423), 185. Jett V. Com. (18 Grat. 933), 460, 466, 479. Jillard v. Com. (2 Casey, Pa., 169), 643. Jim V. a (8 Humph. 603), 420. , S. V. (3 Murph. 3), 354, 255. Joaquin, S. v. (43 Iowa, 131), 430, 438. John, Reg. v. (13 Cox, C. C. 100), 420, 429, 977, 980. , Rex V. (7 Car. & P. 324), 584. , S. V. (5 Jones, N. C, 163), 933. Johns, Com. v. (6 Gray, 274), 871. Johnson v. Browning (6 Mod. 216), 93. V. Com. (5 Bush, 430), 403, 407. V. Com. (24 Grat. 555), 583, 603. V. Com. (39 Grat. 796), 58, 87, 354, 583, 585, 586, 603, 603, 1078. V. Com. (13 Harris, Pa., 386), 530. 533. , Com. V. (10 Allen, 196), 881. , Com. V. (8 Mass. 87), 1034. V. Mofifatt (19 Mo. Ap. 159), 349. Y. P. (22 111. 314), 385, 390, 391. V. P. (55 N. y. 513), 91. , P. V. (2 Wheeler, Crim. Cas. 361), 520. — , Reg. V. (Dears. & B. 340, 7 Cox, C. C. 379), 583. , Reg. V. (Leigh & C. 489, 10 Cox, C. C. 13), 111. 583, 614. • , Reg. V. (Leigh & C. 633. 10 Cox, C. C. 114), 306. 904, 909. , Rex V. (6 East, 583). 1034. , Rex V. (2 Leach, 1103), 403. , Rex V. (3 M. & S. 539), 403, 582, 601, 602. , Rex V. (Trem. P. C. 119), 415, 1041, 1054. V. S. (46 Ala. 213), 871. Johnson v. S. (50 Ala. 456), 904, 908. V. S. (59 Ala. 37), 582. V. a (61 Ala. 9), 993. V. S. (33 Ark. 181), 583. V. S. (36 Ark. 343), 420. V. a (37 Ark. 98), 643. V. S. (3 Dutoher, 313), 285, 300. V. S. (65 Ind. 204), 180, 185. V. S. (68 Ind. 43), 582, 600, 992. V. S. (74 lud. 197), 643. 652. V. a (4 Sneed, 614), 489, 506. V. a (41 Tex. 65), 430, 430. V. a (1 Tex. Ap. 130), 206, 558. V. S. (1 Tex. Ap. 146), 354. V. S. (4 Tex. Ap. 63), 777, 794. V. S. (9 Tex. Ap. 349), 460. ■ V. S. (76 Ga. 790), 871. V. S. (93 Ga. 36), 558. , S. V. (69 Ind. 85), 148. , S. V. (19 Iowa, 330), 180, 194 , S. V. (36 Iowa, 407), 460. , a V. (13 Minn. 476), 881. , a V. (67 N. C. 55), 904, 905. . a V. (37 Mmn. 493), 66. ; a V. (119 N. C. 883), 354. , U. a V. (2 Saw. 482), 247, 249. Johnston V. Com. (10 Hams, Pa., 103), 663. , Reg. V. (5 Cox, C. C. 133), 460. , Reg. V. (3 Moody. 354), 430, 435. V. a (Mart. & Yerg. 139), 489, 506. V. S. (7 Sm. & M. 58), 489, 490. ■ v. U. a 130 C. C. A. 613), 838. Joice V. S. (53 Ga. 50), 904, 905. Jole, Rex v. (Trem. P. C. 138), 875. Jolly, a V. (3 Dev. & Bat. 110), 148, 151. 154. Jones V. Com. (13 Bush, 356), 583. V. Com. (15 Gray, 193), 177. V. Com. (31 Grat. 830), 6fl6. V. Com. (31 Grat. 836), 385, 300. , Com. (7 Gray, 415), 642, 655. V. Davers (Cro. Eliz. 496), 619. , Reg. v. (1 Car. & K. 243), 530. — , Reg. V. (3 Car. & K. 336), 885. , Reg. V. (9 Car. & P. 761), 337. 339 , Reg. V. (6 Cox, C. C. 467), 430. , Reg. V. (11 Cox, C. C. 393), 580. , Reg. V. (1 Den. C. C. 101, 8 Car. & K. 165), 582. , Reg. V. (1 Den. C. C. 818, 2 Car. & K. 398, 2 Cox, C. C. 434), 977. , Reg. Y. (4 Fost. & F. 25), 760. , Rex V. (31 How. St. Tr. 251), 680. 687. , Rex V. (1 Leach, 174), 577. . Rex V. (1 Leach, 537), 87, 254. V. S. (50 Ala. 161). 460. V. S. (60 Ala. 99), 888. V, a (63 Ala. 37), 77, 363. V. a (37 Ga. 51), 306, 558. INDEX TO CASES CITED. liii Eeferenoes are to sections. Jones V. S. (35 Ind. 1S3), 530. V. S. (50 Ind. 473), 430. V. S. (59 Ind. 339), 583. V. 8. (60 Ind. 241), 205. V. 8. (11 Sm. & M. 315), 306, 558. V. a (58 Ark. 390), 530. V. 8. (97 Ga. 430), 372. , 8. V, (4 Halst. 357), 460. , 8. V. (10 Iowa, 306), 87, 354 . 8. V. (13 Iowa, 269), 285, 291. , 8. V. (9 Ire. 38), 348. ■, S. V. (3 Lea, 716), 680, 687. , S. V. (68 Mo. 197), 484, 485. , 8. V. (33 Vt. 443), 699. 739. V. Ter. (5 Okla. 536), 503. V. U. S. (5 Cranch, C. C. 647). 430. V. Winchester (6 N. H. 497), 1034. Jordan v. Cir. Ct. of Wapello Co. (69 Iowa, 197), 333. V. Hovey (72 Mo. 574), 294, V, P, (19 Colo. 417), 530. V. S. (60 Ga. 656), 1079. ■ . V. 8. (143 Ind. 433), 181. , 8. V. (139 la. 387), 58, 777, 820, 822. , 8. V. (19 Mo. 312), 206, 558. , S. V. (75 N. C. 27). 87, 254, 259. Joseph V. S. (43 Ind. 370), 777, 830. Josephine v. 8. (39 Mo. 613), 530, 533. Josslyn V. Com. (6 Met, 336), 354. Jourdan, 8. v. (32 Ark. 203), 582. Joy V. 8. (14 Ind. 139), 30. Joyner, 8. v. (81 N. C. 534), 643. Judd, Com. V. (2 Mass. 389), 385, 811. , P. V. (10 Cal. 313), 530. Judge V. S. (58 Ala. 403), 1078. Judges of Elections, U. 8. v.(l Hughes, 493). 392. Judy, S. V. (60 Ind. 188). 363. Julien, 8. v. (48 Iowa, 445), 484, 485. Jumpertz v. P. (21 111. 375), 1068. Jupitz V. P. (34 111. 516), 916. Justice V. 8. (17 Ind. 56), 77. » .». , S. V. (3 Dev. 199), 372. K. Kaas, Com. v. (3 Brews. 422), 116. Kahlmeyer, Com. v. (134 Mass. 333), 777, 830. Kahn v. 8. (58 Ind. 168), 460, 464, 474. Kain v. 8. (1 Ohio St. 806), 530. Kaiser, P. v. (119 Cal. 456), 564. Kaler, 8. v. (56 Me. 88), 643, 645. Kambieskey v. 8. (36 Ind. 225), 1038. Kannon v. S. (10 Lea, 386), 530. Karn, 8. v. (16 La. An. 183), 642. Kaster, S. v. (35 Iowa, 221), 90, 777, 810, 813. Kaub, 8. V. (Mo. Ap., 1 West. 411), 677. Kaufman v. 8. (49 Ind. 348), 916. V. 8. (59 Iowa, 373), 489, 503. Kavanaugh v. S. (41 Ala. 899), 890,895. Keach, 8. v. (40 Vt. 113), 285. Kealey, Reg. v. (2 Den. C. C. 68, 5 Cox, C. C. 198), 111, 430. 434. Keane v. Boycott (3 H. Bl. 511), 303, Kearney, Rex v. (28 How. St. Tr. 683j, 987. V. S. (48 Md. 16), 601. Kearns, Com. v. (1 Va. Cas, 109), 460, 470. Kearney, Ex parte (55 Cal. 213). 859. Keasling, S. v. (74 Iowa, 538), 520. Keat, Reg. v. (3 Moody, 34', 871, 876. Keefe, Com. v. (7 Graj-, 333), 643. V. P. (40 N. Y. 348), 53, 58, 520, 1069, 1070. , Rex V. (Jebb, 6), 430, 436, 868. Keel, 8. v. (54 Mo. 183), 871, 876. Keeler v. S. (4 Tex. Ap. 537), 403. Keen v. Reg. (3 Cox, 0. C. 341), 1068. Keenan, P. v. (13 Cal. 581), 1078. , Rex V. (38 How. St. Tr. 1339), 987. Keighley, Reg. v. (Dears. & B./145, 7 Cox, C. C. 317), 430. 435. Keiser v. S. (78 Ind. 430), 643. Keither v. S. (10 Sm. & M. 193), 56. Kelleher, Reg. v. (14 Cox, C. C. 48), 420. Keller v. S. (51 Ind. Ill), 420. V. 8. (11 Md. 525), 642, 644. Kellogg, Com. v. (7 Cush. 478), 385, 386. Kelly, Com. v. (13 Gray, 175), 777, 830. , P. V. (34 N. Y. 74), 331, , Reg. V. (Jebb, 399), 530, 536, , 8. V. (13 R. I. 533), 374. , U. S. V. (35 Law R., Bost., 657), 961. Kelsey, U. S. v. (43 Fed. R. 883), 390. Kempf, S, V, (11 Mo. Ap. 88), 699. Kendall, Com. v. (12 Cush. 414), 83, 642, 655. Kennard, Com. v. (8 Pick. 138), 206, 838, 839. V. 8. (35 Tex. Crim. R. 276), 306. Kennedy, Com. v. (15 B. Monr. 581), 395. 397. , Com. V. (170 Mass. 18), 558. V. P. (39 N. Y. 345), 520. , Rex V. (26 How. St. Tr. 354), 987. V. S. (63 Ind. 136), 530, 540. V. 8. (34 Ohio 8t. 310), 430. , Territory v. (3 Mont. Ter. 530), 1075. Kennett, Rex v. (5 Car. & P. 383), 680, 690. Kennon, 8. v. (21 Mo. 262), 672, 677. Kenriok, Reg. v. (1 Cox, C. C. 146), 335. , Reg. V. (5 q. B. 49), 385, 390. Kent, Com. v. (6 Met. 231), 342. , Rex V. (13 East; 330), 1012, 1033. , Rex V. (2 M. & S. 518), 1012,1046, Kentucky v. Ohio (24 How., U, S., 66), 575. liv INDEX TO CASES CITED. References are to sections. Kenyon v. P. f26 N. Y. 203), 949. , P. V. (5 Parker, C. C. 254), 944, 949 Keonn v. S. (64 Ark. 231), 438. Kerkin v. Jenkins (9 Cox, C. C. 311), 254, 261. Kern v. S. (7 Ohio St. 411), 642, 647. Kerr v. S. (36 Ohio St. 614), 486. Kerrigan, Reg. v. (Leigh & C. 883, 9 Cox, C. C. 441), 420, 425. Kerrison, Rex v. (3 M. & S. 526), 1012, 1023. Kershaw's Case (1 Lewin, 218), 939. Kessel, U. S. v. (63 Fed. R 59), 866. Kessler v. S. (50 Ind. 229). 977, 980. Kesslering, S. v. (12 Mo. 565), 489, 503. Ketchingham v. S. (6 Wis. 436), 148. Key V. S. (37 Tex. Crim. R 77), 642. Keyn, Reg. v. (13 Cox, C. C. 403), 89, 520, 538. Kidd, Rex v. (14 How. St. Tr. 123), 89, 530, 538. , Rex V. (14 How. St. Tr. 147), 879. Kidder v. S. (58 Ind. 68), 364, 365, 371. Kiene v. RufiE (1 Iowa, 482), 619. Kilber v. Com. (94 Va. 804), 520. Kilbourn, S. v. (9 Conn. 560), 997, 1001. Kiley v. S. (120 Ind. 65), 505. Kilgore, Ex parte (3 Tex. Ap. 247), 318. Kilkelly v. S. (43 Wis. 604), 206, 212, 558. Killian, Com. v. (109 Mass. 345), 1012, 1031. Killough, S. V. (32 Tex 74), 206, 212, 558. Kilmarnock, Rex v. (18 How. St. Tr. 441). 987. Kilpatrick v. P. (5 Denio, 277), 699, 727. Kimball, Com. v. (7 Gray, 328), 775, 776, 777, 782, 784, 794, 795, 830, 821. , Com. V. (108 Mass. 473). 871, 876. , Com. V. (7 Met. 304), 643, 649. . 8. V. (104 Iowa, 19), 564. Kimbrough, S. v. (3 Dev. 431), 530, 1069. Kimmel v. P. (93 III. 457), 871. Kimpton, Reg. v. (3 Cox, C. C. 396), 871. Kinch, Rex v. (28 How. St. Tr. 619), 520. Kindred, U. S. v. (4 Hughes, 493), 1046. King, Com. v. (13 Met. 115), 1012. 1015. , P. V. (27 Cal. 507), 520. , Reg. V. (7 Q. B. 782), 285, 291. . Rex V. (Trem. P. C. 317), 919, 1046. , Rex V. (6 Went. PL 372), 711. V. S. (17 Fla. 183), 777, 782. V. S. (40 Ga. 244), 881. V. S. (5 How., Miss., 730), 1090. V. S. (2 Ind. 523), 642. V. S. l44 Ind. 285), 682. King V. S. (103 Ga. 263), 871. , S. V. (8 Ire. 4111, 1012, 1023. , S. V. (69 N. C. 419), 180. , S. V. (67 N. H. 219). 420. Kingman, Com. v. (14 Gray, 85), 643, 655. Kingsbury, Com. v. (5 Mass. 106), 285, 390. Kingsley, P. v. (2 Cow. 533), 460. Kingston, Rex v. (8 East, 41), 333. , Rex V. (30 How. St. Tr. 355), 881. Kinkaid v. P. (139 EL 213), 254. Kinley, S. v. (43 Iowa, 294), 871. Kinloch, Rex v. (Foster, 16), 1034, 1035, 1053. Kinney v. Com. (30 Grat. 858), 1078. , P. V. (110 Mich. 97), 420. Kinsman v. S. (77 Ind. 132), 63, 699, 716. Kirby, Com. v. (3 Cush. 577), 206, 838, 839. V. U. S. (174 XJ. S. 47), 917. Kirk V. Com. (9 Leigh, 627), 337. V. S. (6 Mo. 469), 569. Kirkham v. P. (170 111. 9), 520. Kirkman, S. v. (104 N. C. 911), 66. Kirkpatrick, S. v. (32 Ark. 117), 871. Kirton, Reg. v. (6 Cox, C. C. 393), 871. Kirwan, R«x v. (28 How. St. Tr. 775), 987. Kistler v.S. (54 Ind. 400), 977. Kit V. S. (11 HumplL 167). 933. Kizza V. S. (38 Tex. Crim. R 319), 365. Kleespies v. S. (106 Ind. 383). 503. Kleim, P. v. (1 Edm. SeL Cas. 13), 1062. Klein v. S. (76 Ind. 338), 643. Kliffield T. S. (4 How., Miss., 304), 643. Kline v. S. (44 Miss. 317), 668, 665. Kneeland, Com. v. (30 Pick. 206), 241, 243. Knight, Com. v. (13 Mass. 274). 871. , Reg. V. (14 Cox, C. C. 31), 284, 420. , 8. V. (43 Me. 11), 530. Knightley, Rex v. (13 How. St Tr. 398), 987. Knouse, S. v. (29 Iowa, 118), 520. Knowles, Rex v. (12 How. St, Tr. 1167), 520. , Rex V. (Trem. P. C. 11), 520, 1037, 1057, 1060. V. S. (3 Day, 108), 629. Knowlton, Com. v. (2 Mass. 530). 440. Knox. Com. v. (6 Mass. 76), 663, 667. , Rex V. (7 How. St. Tr. 763), 285. Kobe, S. V. (26 Minn. 148), 642. Kohn, Reg. v. (4 Fost. & F. 68), 385, 286, 699, 721. Koll. P. V. (3 Keyes, 236). 997, 1000. KoUock V. U. S. (9 App. D. C. 420), 973. Kolshorn v. S. (97 Ga. 343), 499. Koppersmith v. S. (51 Ala. 6), 861. Koster v. P. (8 Mich. 431), 354. INDEX TO CASES CITED. Iv EefereDoes are to sections. Krider, S. v. (78 N. C. 481), 583, 606. Kroeger, S. v. (47 Mo. 553), 460, 469. Kube, S. V. (20 Wis. 217), 420, 425. Kuhuke, S. v. (26 Kan. 405), 643. Kurz V. S. (79 Ind. 488), 643. Kyle V. S. (10 Ala. 236), 890, 893. V. S. (10 Mo. 389), 489, 506. L. Labbalte v. S. (6 Tex. Ap. 357), 460, 464. La Beau v. P. (6 Parker, C. C. 371), 111, 206, 313, 558. La Bore, S. v. (26 Vt. 765), 881. Labouchere, Reg. v. (14 Cox, C. C. 419), 619. Lacefield v. S. (34 Ark. 375), 306, 558. Lad, Eex v. (1 Leach, 96), 534. Ladd V. S. (17 Fla. 315), 430. Lafontaine, Com. v. (3 Gray, 479), 642. Lagrone v. S. (13 Tex. Ap. 436), 633, 635. Lake v. P. (1 Parker, C. C. 495), 530, 1086. , Reg. V. (11 Cox, C. C. 333), 430, 426. Lakeman, Com. v. (5 Gray, 82), 316. Lamb, Com. v. (1 Gray, 493), 180. , S. V. (65 N. 0. 419), 460, 470. Lambert v. P. (7 Cow. 166, 9 Cow. 578), 285, 391, 1068. , Rex V. (3 Camp. 398), 619. ,Rex V. (33 How. St. Tr. 954), 619, 621. , Rex V. (31 How. St. Tr. 335, 3 Camp. 398), 619, 621. Lambertson v. P. (5 Parker, C. C. 200), 963. Lambeth, S. v. (80 N. C. 393), 420. Lamden v. S. (5 Humph. 83), 871, 876. Lanauze, Reg. v. (3 Cox, C. C. 363), 403. Lancaster, Rex v. (1 How. St. Tr. 89), 987, 1068. V. S. (9 Tex. Ap. 393), 583. , S. V. (36 Ark. 55), 633, 635. Landringham v. S. (49 Ind. 186), 385, 288. Lane, Com. v. (113 Mass. 458), 881. V. S. (37 Ark. 373), 643. V. S. (151 Ind. 511), 520. , S. V. (80 N. C. 407), 460. Laney, S. v. (87 N. C. 535), 993. Lang, Com. v. (10 Gray, 11), 206, 556, 558. Langcake, Respublica v. (1 Yeates. 415), 742. Langdale v. P. (100 111. 363), 460, 470. Langdon, S. v. (39 Minn. 393), 643. Langford v. S. (45 Ala. 36), 420, 438. Langford, S. v. (3 Hawks, 381), 699, 707, 777, 833. - — , S. V. (3 Ire. 354), 489, 777, 805. Langham v. S. (55 Ala. 114), 303, 576. Langlev, Com. v. (14 Gray, 21), 776, 777, 782, 820, 821. Langrish, Rex v. (Trem. P. C. 176), 370. Lanier, S. v. (89 N. C. 517), 403. Lanigan, Com. v. (2 Law R, Bost., 49), 206, 904, 910. Lannan, Com. v. (1 Allen, 590), 420. Lapoint, U. S. v. (Morris. 146), 569. Lara, Rex v. (3 Leach, 647, 6 T. R 565), 272. Larkin, Reg. v. (Dears. 365, 6 Cox. C. C. 377), 910. , S. V. (11 Nev. 314), 530. Larned v. Com. (13 Met. 340), 254 Lamer, Reg. v. (14 Cox, C. C. 497), 420. Larney v. Cleveland (34 Ohio St. 599), 91. Lartigue," S. v. (89 La. An. 643), 583. La Rue v. S. (64 Ark. 144), 530. Lasindo v. S. (3 Tex. Ap. 59), 777, 782. Lasington's Case (Cro. Eliz. 750), 74 Lastro v. S. (3 Tex. Ap. 363), 170. Lasure v. S. (19 Ohio St. 43), 1037. Latham v. Reg. (5 B. & S. 635, 9 Cox, C. C. 516). 285, 290, 420, 1068. Lathrop v. S. (6 Blackf. 502), 680, 691. , S. V. (15 Vt. 279), 420. V. Stuart (5 McLean. 167), 93. Latimer, Reg. v. (15 Q. B. 1077), 639. Lattinville, Com. v. (120 Mass. 385), 642, 652. Laurence. P. v. (137 N. Y. 517), 583. Lavake, S. v. (26 Minn. 526), 643. Lavarre v. S. (1 Tex. Ap. 685), 583, 593. Lavett V. P. (7 Cow. 339), 1084 Lavey v. Reg. (2 Den. C. C. 504, 5 Cox, C. C. 269), 871. Lavonsair, Com. v. (132 Mass. 1), 777, 783. Lawes, Reg. v. (1 Car. & K 63), 253, 254 Lawlor, Reg. v. (6 Cox, C. C. 187), 871. Lawrence v. Com. (30 Grat. 845), 904 908. V. Smith (5 Mass. 362), 1034 V. S. (59 Ala. 61), 1037. Lawry, S. v. (4 Nev. 161), 206, 213. Laws. U. S. V. (2 Lowell, 115), 885. Lawson v. S. (20 Ala. 65), 148, 153. V. S. (55 Ala. 118), 643, 656. V. S. (3 Lea, 809), 871. V. S. (13 Tex. Ap. 364), 354 Laydon v. S. (53 Ind. 459), 530. Layer. Rex v. (16 How. St. Tr. 93), 987, 1037, 1053. Lea V. S. (64 Miss. 378), 871. . S. V. (3 Ala. 603), 871, 874 Leach, S. v. (60 Me. 58), 680, 691. Ivi INDEX TO CASES CITED. Eeferenoes are to sections. Leadbefcter v. U. S. (170 IT. S. 606), 80. Leary, Rex v. (26 How. St. Tr. 295), 987. V. a (39 Ind. 544), 777, 794, 820. Leath v. Com. (32 Grat. 873', 489.502. Leatham, Reg. v. (8 Cox, C. C. 425), 247. 249. Leatherbarrow, Reg. v. (10 Cox, C. C. 637), 237. Leathers, S. v. (31 Ark. 44), 442. Leatherwood v. S. (6 Tex. Ap. 244), 263. Leavitt, S. v. (66 Me. 440), 582, 592. Lee V. Kane (6 Gray, 495). 93. , Reg. V. (1 How. St. Tr. 1403), 987. , Reg. V. (Leigh & C. 309, 9 Cox, C. C. 304), 420. , Reg. V. (Leigh & C. 418, 9 Cox, C. C. 460), 420. 435. , Reg. V. (2 Moody & R. 381), 460, 466. , Rex V. (5 Esp. 123), 619. , Rex V. (Trem. P. C. 247), 690. V. West (47 Ga. 311), 303. Lee Ping Bow, S. v. (10 Greg. 27), 582. Leech, Rex v. (9 How. St. Tr. 351), 319, 393, 1038. Le Croy, S. v. (8 S. D. 369), 254 Leefe, Rex v. (3 Camp. 134), 871, 876. Leeman v. S. (35 Ark. 488), 415. Legassy, Com. v. (113 Mass. 10), 1031. Legge, Reg. v. (6 Cox, C. C. 220), 871, 876. Lehman. U. S. v. (39 Fed. R. 768), 420. Leigh, S. V. (3 Dev. & Bat. 127), 680, 690. V. Webb (3 Esp. 165), 93. Leighton. S. v. (.3 Fost., N. H., 167), 489, 777, 805. Leisenring. Com. v. (11 Phila. 389), 403. Leland v. Kingsbury (24 Pick. 315), 93. Lemon v. S. (19 Ark 171), 699, 717. Lemons v. S. (50 Ala. 130), 642, 656. Lenahan v. P. (5 Thomp. & C. 265), 206, 558. Lennard v. S. (104 Ga. 506), 1038. Lennox's Case (3 Lewin, 268), 933. Lennox, P. v. (106 Mich. 625), 420. , Reg. V. (26 U. C. Q. B. 141), 997. Lenoir Justices, S. v. (4 Hawks, 194), 680, 690. Leobold v. S. (33 Ind. 484), 420. Leonard, Com. v. (8 Met. 529), 642. . Com. V. (8 Met. 530), 642, 649. , Reg. V. (1 Den. C. C. 304, 2 Car. & K 514, 3 Cox, C. C. 284), 4'40. V. S. (39 Ohio St. 408), 337, 344. Leoni v. S. (44 Ala. 110), 904, 905. Leper, S. v. (70 la, 748), 138. Leslie, S. v. (16 N. H. 93), 483, 483. Levens. S. v. (23 Mo. 469), 1013, 1019. Lever, Rex v. (Trem. P. C. 330), 779, 1083. Leverson v. Reg. (L. R. 4 Q. B. 394, 11 Cox, C. C. 286), 1086. Levi V. S. (4 Bax. 289), 763. , S. V. (41 Tex, 563), 420. Levy V. P. (80 N. Y. 327), 180, 188, 189, 190. . Lewellen v. S. (18 Tex 538), 395. Lewis, P. V. (1 Wheeler, Crim. Cas. 181), 460, 466, 467. , Reg. V. (9 Car. & P. 523), 111, 306, 212, 336. 558. , Reg. V. (Trem. P. C. 343), 437. V. S. (41 Ala. 414), 983. V. S. (16 Conn. 33), 354. V. S. (1 Head, 329), 1037. V. S. (49 Miss. 354), 180. V. S. (3 Tex. Ap. 26), 263. , S. V. (1 Winst. 307), 890, 89a , S. V. (96 la. 286), 70, 415. Liles, S. V. (78 N. C. 496), 583, 600. Linoe, Reg. v. (13 Cox, C. C. 451), 430. Lincoln, Com. v. (11 Allen, 333), 420, 425. , Rex V. (Russ. & Ry. 431), 871. Lindenburg, S. v. (13 Tex. 37), 871. Lindsay, Coin. v. (11 Cush. 415, note), 699. , Rex v. (14 How. St Tr. 987), 987. , S. V. (34 Ark. 373), 489. Linn, Com. v. (KS Pa. St. 32), 833. Linney v. S. (5 Tex. Ap. 344), 169. Lipsohitz V. P. (35 Colo. 261), 285. Lipsey, S. v. (3 Dev. 485), 1075. Lisles, S. v. (58 Mo. 359), 642, 653. Lister, Reg. v. (Dears. & B. 309, 7 Cox, C. C. 343), 58, 777, 778. V. S. (3 Tex. Ap. 17), 1078. Little, Rex v. (1 Bur. 609), 509. — , S. V. (67 Mo. 634), 306, 904, 910. , S. V. (1 Vt. 331), 958. Littlefield, S. v. (70 Ma 453), 520. Livermore, S. v. (44 N. H. 386), 180. Liverpool, Rex v. (3 East, 86), 1013, 1017. Lloyd, Rex v. (Cald. 415), 442. , S. V. (77 Wis. 630), 871. , U. S. V. (4 Cranoh, C. C. 472), 206. Lock, Rex v. (Trem. P. C. 248), 890, 898. Locke, Com. v. (114 Mass. 288), 643, 646. , S. V. (35 Ind. 419), 420. Lockett V. S. (63 Ala. 5), 180. V. S. (40 Tex. 4), 365. Lookhart, Ter. v. (8 N. M. 533), 871. Locklin, S. v. (81 Me. 351), 387. Lodano v. S. (35 Ala. 64), 648, 652. Loeffner v. S. (10 Ohio St. 598), 53a Loftin, S. V. (3 Dev. & Bat. 31), 736. Loftus v. S. (N. J.. 1890), 415. Logan V. S. (3 Lea, 232), 206, 558. V. S. (5 Tex. Ap. 306), 997, 999. INDEX TO CASES CITED. Ivii References are to sections. Logg V. P. (93 111. 598). 939. Lohman, P. v. (3 Barb. 316), 140. Long's Case (5 Co. 120a), 520. Long, Rex v. (4 Car. & P. 433), 530, 529 V. S. (13 Ga. 393), 58, 933, 1079. V. S. (56 Ind. 133), 1038. V. S. (43 Tex. 467), 167. V. S. (10 Tex. Ap. 186). 343. Longmead, Rex v. (8 Leach, 694), 974. Longshoi-e Printing & Publishing Co. V. Howell (36 Oreg. 587), 303. Longfcon Gas Co., Reg. v. (2 Ellis & E. 651), 1013, 1015. Longworth, S. v. (41 Tex. 163), 403. Lonon, S. v. (19 Ark. 577), 206. 232. Lonsdale, Reg. v. (3 Cox, C. C. 383), 460, 470. Loomis V. P. (19 Hun. 601), 483, 483. , S. V. (37 Minn. 531), 582. Loose, Reg. v. (Bell, C. C. 359, 8 Cox. C. C. 303), 582, 610. Lopez, S. V. (18 Tex. 33), 489. 493. Lord V. S. (16 N. H. 335), 777, 805, 807. , S. V. (16 N. H. 357), 777, 1013, 1015. Lorimer v. S. (76 Ind. 495), 777, 803, 804. Lose V. a (73 Ind. 385), 978. Lossen v. S. (63 Ind. 437), 699, 993. Loudon, S. V. (3 Head. 364), 757. Louisville, etc. Turnpike v. S. (3 Heisk. 189), 757. Love, Rex v. (5 How. St. Tr. 43), 987. , S. V. (3 Dev. & Bat. 367), 443, 453. Lovelace, Rex v. (Trem. P. C. 273), 838, 840, 1046. Lovelass, Reg. v. (1 Moody & R. 349, 6 Car. & P. 596). 853. Lovell, Reg. v. (2 Moody & R. 336), 403. , Rex V. (1 Leach, 248), 460, 470. V. S. (45 Ind. 550), 56, 58. Lovett, S. V. (3 Vt. 110), 838, 840. Lowe V. S. (4 Tex. Ap. 34), 80, 777, 783. , S. V. (66 Minn. 386), 530. Lowenberg v. P. (5 Parker, C. C. 414), 530, 1086, 1088. Lowenthal v. S. (33 Ala. 589), 58, 403, 408. Lowick, Rex v. (13 How. St. Tr. 267), 987. Lowrie, Reg. v. (Law RICO. 61, 10 Cox, C. C. 888). 582, 605. Loyd V. S. (42 Ga. 831), 116, 354, 356. Luberg, Com. v. (18 Norris, Pa., 85), 460. Ludden v. S. (Neb., 48 N. W. R 61). 318. Ludwig, S. V. (31 Minn. 203), 642, 658. Luf kin, Com. v. (7 Allen, 579), 350. Lumley v. Gye (2 Ellis & B. 316), 303. Lumsden, U. S. v. (1 Bond, 5), 83, 760. Luscomb, Com.' v. (130 Mass. 43), 763, 770. Lusk, S. v. (16 W. Va. 767), 58, 347, 350. Lutz V. Com. (5 Casey, Pa., 441), 530. Lyerly, S. v. (7 Jones, N. C, 158), 148, 154. Lyles, U. S. v. (4 Cranch, C. C. 469), 106, 306, 335. Lyman v. S. (45 Ala. 72), 1048, 1044 V. S. (47 Ala. 686), 1043, 1044 Lynch, Com. v. (8 Gray, 884), 663. 664 V. P. (16 Mich. 473), 663, 666. , P. V. (11 Johns. 549), 943. , P. V. (39 Mich. 374), 806. 904 910. , U. S. V. (49 Fed. R 851). 887. Lyon. Rex v. (8 Leach, 597), 460, 471. V. S. (61 Ala. 324), 583, 600. Lyons v. P. (68 111. 271). 87, 354 , Reg. v. (8 Cox, C. C. 84, Bell, 38), 180, 185, 187. M. Mabey, Reg. v. (37 IT. C. Q. B. 348), 134 McAdams v. S. (10 Tex. Ap. 317), 582. McAfee. Com. v. (108 Mass. 458), 520. McAllister, S. v. (86 Me. 374), 58, 64, 583. McAloon, S. V. (40 Me. 133), 916. McAlpin V. S. (3 Ind. 567), 777, 805, 809. McAnulty, S. v. (86 Kan. 538), 254 McArdle, U. S. v. (3 Saw. 367), 588. Macarty, Reg. v. (6 Mod. 301, 2 Ld. Raym. 1179), 373. MoBennet, Rex v. (Jebb, 148), 977. McBride v. Com. (13 Bush, 837), 583. , S. V. (8 Humph. 66), 489, 506. , S. V. (36 Wis. 409), 520, 529. , U. S. V. (7 Mackey, 371), 185. McCann, Rex v. (37 How. St. Tr. 399), 987. V. IT. S. (3 Wy. Ter. 374), 408. McCam, S. v. (11 Humph. 494), 306, 558. McCarney v. P. (83 N. Y. 408). 80. McCarron, Com. v. (3 Allen, 157), 763, 770. McCarthy v. Ter. (1 Wy. Ter. 311), 415. V. S. (56 Ind. 203), 663. McCarty, Com. v. (153 Mass. 577), 871. V. S. (16 Ind. 810), 305. V. S. (37 Miss. 411), 1013, 1081. McCauley v. S. (26 Ala. 135), 1043, 1044 McChesney, S. v. (90 Mo. 130), 430. McClanahan, Com. v. (3 Met., Ky., 8), 83, 363, 265. McClellan, Com. v. (101 Mass. 34), 350. Iviii INDEX TO CASES CITED. References are to sections. McClellan v. S. (33 Ark. 609), 460. Macclesfield, Rex v. (Trem. P. C. 39), 941. McCliDtook, S. V. (1 Greene, Iowa, 892), 306, 213, 228. , S. V. (8 Iowa, 203), 206. McClung, S. V. (35 W. Va. 280), 354 MoClure v. Com. (5 Norris, Pa., 353), 460. V. S. (37 Ark. 436), 58, 680, 685. , S. V. (4 Blackf. 328), 958. McComas v. S. (11 Mo. 116), 206, 904, 910. MoCone, S. v. (59 Vt. 117), 871. MoConico v. S. (49 Ala. 6), 881. McConkey, S. v. (49 Iowa, 499), 420, 425. McConnell v. Kennedy (29 S. C. 180), 460. ■ , Keg. V. (3 Moody, 298, 1 Car. & K. 371), 460, 470. McCool V. S. (23 Ind. 127), 643. McCormaok, P. v. (4 Parker, C. C. 9), 1082. McCormick, S. v. (27 Iowa, 403), 520. , U. S. V. (1 Cranch, C. C. 106), 735 736 MoCourtney, S. v. (6 Mo. 649), 929. McCoy V. S. (3 Eng. 451), 306, 542, 555, 558. V. S. (15 Ga. 205), 583. 610. , a V. (89 N. C. 466), 582. McCray, S. v. (74 Mo. 303), 1012. McCreary v. Com. (5 Casey, Pa., 323), 1043, 1044. McCroskey, S. v. (3 McCord, 308), 871. McCrystal, S. v. (43 La. Ann. 907), 247. McCuUey V. S. (63 Ind. 428), 205. McCuUough V. S. (63 Ala. 75), 680. McCurdy, Com. v. (5 Mass. 324), 439. McCutcheon v. P. (69 111. 601), 58, 642, 652. McDade v. P. (29 Mich. 50), 111, 180, 194. McDaniels v. P. (118 111. 301), 582. MoDermott v. P. (5 Parker, C. C. 102), 80, 180, 189, 194, 195. McDonald's Case (3 Lewin, 46), 180. McDonald, Com. v. (5 Cush. 365), 111, 583, 612. , P. V. (9 Mich. 150), 206, 904, 910. T. S. (68 Miss. 728), 643. , S. V. (67 Mo. 13), 111, 206, 212, 238, 535. , S. V. (9 W. Va. 456), 354. , U. S. V. (65 Fed. R. 486), 679. MoDonell, P. v. (80 Cal. 385), 343. McDonnall v. P. (168 111. 93), 520. McDowell V. S. (61 Ala. 172), 582. 593. , a V. (84 N. C. 798), 1012, 1017. McDuell, U. a V. (5 Cranch, C. C. 391), 777, 789. McDuffie, a V. (34 N. H. 523), 699, 713. Mace V. S. (9 Tex. Ap. 110), 254. McElroy, S. v. (3 Heisk. 69), 1013. 1019. , Ter. V. (1 Mon. Ter. 86), 415. , U. a V. (2 Mon. Ter. 494), 403. McEntee v. a (24 Wis. 43), 582, 603. MoEvoy, Reg. v. (20 U. C. Q. B. 344), 206, 558. McGahagin v. a (17 Fla. 665), 699, 716. McGardiner, S. v. (1 Ire. 27), 460, 475. McGarry t. P. (2 Lans. 337), 180, 189. McGavaron, Reg. v. (3 Car. & K 330, 6 Cox, C. C. 64), 206, 904. McGehee v. a (58 Ala. 360), 992. MeGinnis v. S. (9 Humph. 43), 1043. McGilvery, a v. (20 Wash. 240), 564. MeGinnis, S. v. (37 Ark. 363), 509. , a V. (71 Iowa, 685), 428. McGrath, Com. v. (115 Mass. 150), 306, 742, 748. , a V. (73 Mo, 181), 643. McGregor, Reg. v. (1 Car. & K 439), 580. , Rex V. (Russ. & Ry. 33. 3 Leach, 932, 3 B. & P. 106), 401, 403. , a Y. (41 N. H. 407), 777, 782. McGrew v. a (13 Tex. Ap 340), 564. McGuff V. a (88 Ala. 147), 904 MoGuffin, S. V. (36 Kan. 315), 543. McGuire v. P. (3 Parker, C. C. 148), 1083. V. a (37 Ala. 161), 58, 460, 461. McHale, Com. v. (1 Out., Pa., 397), 385, 312. Mclnnis v. a (51 Ala. 23), 489, 503. Mclntire, a v. (59 la. 267), 582. Mcintosh, Rex v. (28 How. St Tr. 1315), 987. Mclntyre, a v. (19 Minn. 93), 138, 141, 530. Mclvor, Com. v. (117 Mass. 118), 777, 830. Mack V. a (63 Ala. 138), 420. Mackalley's Case (9 Co. 61b), 115, 530, 539 McKay v. a (12 Mo. 492), 1068. McKee, Ex parte (18 Mo. 599), 321. MoKeen v. a (7 Tex. Ap. 631), 116. McKenna, P. v. (81 CaL 158), 430. . a V. (16 R. I. — ), 642. McKenney, Com. v. (14 Gray, 1), 643, 655. McKenzie v. a (6 Eng. 594), 420. McKettrick, a v. (14 a C. 346), 206. Mackey v. a (3 Ohio St. 362), 58. MoKie V. a (37 Tex. Crim. R. 544), 619. McKieruan, Com. v. (128 Mass. 414), 642, 653. , a V. (17 Nev. 224), 460. McKinley v. S. (8 Humph. 73), 337. , S. V. (83 Iowa, 445), 79. McKinney v. P. (32 Mich. 284), 699, 718, 730. INDEX TO CASES CITED, lix References are to sections. McKinney, P. v. (10 Mich. 54), 60, 403, 409, 1078. , P. V. (3 Parker, C. C. 510), 871. MoKinnon, P. v. (1 Wheeler, Crim. Cas. 170), 206. MoKinstry, S. v. (50 Ind. 465), 285, 288. McKnight v. S. (6 Tex. Ap. 158), 148. Maclane, Re.x v. (26 How. St. Tr. 723), 987. MoLane v. S. (4 Ga. 835), 180, 190. , S. V. (15 Nev. 345), 520. , S. V. (43 Tex. 404), 403. McLaughlin, Com. v. (12 Cush. 612), 206, 213. , Com. V. (105 Mass. 460), 111, 699, 714. . Com. V. (122 Mass. 449), 871. V. S. (45 Ind. 838), 38, 777, 830. MoLeod, S. v. (5 Jones, N. C, 318), 582. MoLeran. S. v. (1 Aikens, 311), 460, 473. Macloon, Com. v. (101 Mass. 1), 21, 530, 535, 537. McMahan v. S. (13 Tex. Ap. 220), 683, 635. MoMahon, Reg. v. (26 U. C. Q. B. 195), 987. McManus, S. v. (89 N. C. 555), 372. McMillen v. S. (60 Ind. 216), 111, 977, 980. V. S. (5 Ohio, 268), 460, 467. McMinn, S. v. (34 Ark. 160), 588, 1043. , a V. (81 N. C. 585), 699, 733. McNair v. P. (89 111. 441). 619, 636. V. Rempublicam (4 Yeates, 826), 442. MoNally, S. y.. (34 Me. 310), 642, 645. McNamara, Com. v. (116 Mass. 840), 376. V. P. (24 Col. 61). 937. McNamee v. P. (31 Mich. 473), 958. McNeil V. S. (47 Ala. 498), 148. Macomber, Com. v. (8 Mass. 254), 180, 187. -, S. V. (7 R. L 349). 384, 886. Macpherson, Reg. v. (Law R. 3 P. C. 368, 11 Cox, C. C. 604), 606. McQuarrie, Reg. v. (23 U. C. Q. B. 600), 430. McQuiggan, Reg. v. (3 L. C. 340), 881. McQuillen v. S. (8 Sm. & M. 587), 1068. McRoberts, S. v. (4 Blackf. 178), 569. McSherry, Com. v. (8 Gray, 481, note), 642. McTigue V. S. (4 Baxter, 313), 933. Mc Waters v. S. (10 Mo. 167), 929. Mc Williams, S. v. (7 Mo. Ap. 99), 672, 677. Madden v. S. (1 Kan. 340), 138. Maddox, S. v. (74 Ind. 105), 205. Magee, S. v. (11 Ind. 154), i'20. Magoon, Com. v. (173 Mass. 214), 349. Magrath, S. v. (19 Mo. 678), 206. Maguire, P. v. (26 Cal. 685), 663, 671. V. S. (47 Md. 485), 642. 653. , a V. (69 Mo. 197), 1065. Mahar v. S. (38 Ark. 207), 680, 687. Mahoney, P. v. (18 Cal. 180), 1064 Mahony, Reg. v. (6 Cox, C. C. 487), 460, 464 Maile v. Com. (9 Leigh, 661). 530. Main, a v. (31 Conn. 573), 777. 782. Maine Central R Co., a v. (60 Me. 490), 520, 581. Mainey, a v. (65 Ind. 404), 1013. Mains v. a (43 Ind. 837), 58, 775, 777, 783, 794 Maires, a v. (4 Vroom, 142), 415. Mairs, a v. (Coxe, 453), 306, 558. Major, Rex v. (3 Leach, 773), 977. , S. V. (14 Rich. 76), 582, 593. Malcolmson v. a (25 Tex. Ap. 367), 403. Maley v. a (81 Ind. 193), 430. Malim, a v. (14 Nev. 388), 58, 403. Malloy, Com. v. (119 Mass. 847), 890, 893. , a V. (30 La. An. 61), 354 , a V. (5 Vroom, 410), 699, 734 Malone v. S. (51 Ala. 55), 1013. V. a (14 Ind. 319), 1003. , U. a V. (8 Ben. 574), 973. Maloney, a v. (13 R. I. 351), 888. Manchester, a v. (3 Baxter, 416), 757. Manchester, etc., a v. (53 N. H. 538), 520, 531. Manderfield, Cono. v. (8 Phila. 457), 673, 677. Maney v. a (6 Lea, 318), 438. Manheim v. a (66 Ind. 65), 58, 489, 505. Manley, a v. (107 Mo. 864), 409. Manlove, Rex v. (Trem. P. C. 346), 895. Manly v. a (53 Ind. 315), 530. Mann. Com. v. (1 Va. Cas. 308), 680, 691. , D. C. V. (30 Wash. L. R 534), 648. Manning, Reg. v. (1 Den. C. C. 467), 520. , Reg. V. (Law R. 1 C. C. 338, 12 Cox, C. C. 106), ISO. Mansell v. Reg. (Dears. & B. 375), 1068. V. Reg. (8 Ellis & B. 54), 1086. Manser. Reg. v. (4 Post. & F. 45), 232. Mansfield, a v. (33 Tex. 129), 582. Manton, Ter. v. (7 Mon. 162), 520. Manvelle v. a (58 Ind. 63), 642. Man-zau-mau-ne-kah v. U. a (1 Pin. 134). 530. Mapes V. P. (69 111. 533), 642, 653. March, Reg. v. (1 Car. & K. 496), 111, 206, 558. Margerum, Rex v. (Trem. P. C. 168), 968. Marion, P. v. (38 Mich. 255), 460. INDEX TO CASES CITED. References are to sections. Markham v. U. S. (160 U. S. 319), 871. Marks v. S. (45 Ala. 38), 673, 673. , U. S. V. (3 Abb., U. S., 531), 415, 865. Marner, Reg. v. (Car. & M. 638), 331. Marriott, Reg. v. (8 Car. & P. 435), 520, 535. Marsden, Rex v. (4 M. & S. 164), 619, 633. Marsh, Reg. v. (1 Den. C. C. 505, 3 Cox, C. C. 570), 111, 873. Marshall, Kex v. (1 Moody, 158), 354, 255 , Rex V. (Russ. & Ry. 75). 460, 473. , Rex V. (4 Went. PI. 52). 354, 255. V. S. (5 Tex. Ap. 273), 520, 533. V. S. (123 Ind. 138), 306. , S. V. (47 Mo. 378), 871. 877. ■ , S. V. (45 N. H. 381), 384, 386. Martin, Com. v. (17 Mass. 359), 933. , Com. V. (108 Mass. 29, note), 777, 830. V. Payne (9 Johns. 387), 394. V. Reg. (3 Cox, 0. C. 318), 619, 631, 1068, 1090. , Reg. V. (9 Car. & P. 215), 111, 306, 904, 913. , Reg. V. (11 Cox, C. C. 343), 96, 341. , Reg. V. (1 Den. C. C. 398. 3 Car. & K. 950, 3 Cox, C. C. 447), 583, 593. , Reg. V. (10 L. C. Q. B. 435), 443. , Reg. V. (Law R. 1 C. C. 56, 10 Cox, C. C. 383). 430. , Reg. V. (8 Q. B. D. 54, 14 Cox, C. C. 633), 694. , Rex V. (1 Leaoh, 171), 593. , Rex V. (3 Leach, 923), 337, 339. , Rex V. (Russ. & Ry. 324), 426. , , Rex V. (Trem. P. C. 349), 687. v.S. (28 Ala. 71), 180. V. a (33 Ark. 134), 58, 890, 895. V. S. (1 Tex. Ap. 525), 354 V. a (1 Tex. Ap. 586), 420, 426. , a V. (34 Ark. 340), 80, 642, 049. , a V. (9 Humph. 55), 460, 472, 474 , a V. (3 Murph. 533), 939. Martinez v. a (7 Tex. Ap. 394), 871. Marwilsky v. a (9 Tex. Ap. 377), 430, 430. Mary v. a (34 Ark. 44), 180. Maskall, Rex v. (31 How. St. Tr. 653), 939. Mason, Reg. v. (3 Car. & K. 633), 922. , Reg. V. (29 U. C. Q. B. 431), 871. V. a (43 Ala. 543). 354 V. S. (55 Ark. 529), 871. Massey, Reg. v. (Leigh & C. 306, 9 Cox, C. C. 834), 403. V. a (74 Ind. 368), 643. Massie v. Com. (30 Grat. 841), 642. V. a (5 Tex. Ap. 81), 871, 876. Masters v. Carter (4 Dowl. P. C. 577. 1 Har. & W. 673), 76. Masterson v. Matthews (60 Ala. 360), 96. Mather, P. v. (4 Wend. 329), 385. Mathes v. Dobsohuetz (73 111. 438), 483. Mathews, Rex t. (3 Leach, 584), 206. V. a (10 Tex. Ap. 379), 430, 430, 933 Mathis, a V. (31 Ind. 377), 1013. , a V. (3 Pike, 84), 777, 805. . a V. (30 Tex. 506), 680, 690. Matthews, Reg. v. (13 Cox, C. C. 489, 6 Eng. R. 339), 583. , Reg. V. (1 Den. C. C. 596), 583. 916. , Rex V. (15 How. St. Tr. 1333), 987. V. a (55 Ala. 65), 354 V. S. (35 Ohio St. 536). 777, 1013r V. a (3 Yerg. 333), 460, 467. , a V. (20 Mo. 55), 111, 583, 593, 613. , a V. (37 N. H. 450), 319. , a V. (43 Vt. 543). 858. Mauck V. a (66 Ind. 177), 1013. Maulsby, Ex parte (13 Md. 635). 330. Maupin, S. v. (57 Mo. 805), 460. , a V. (71 Mo. Ap. 54), 491. Maurer, S. v. (7 Iowa. 406), 777, 794 Maxwell, Conx v. (3 Pick. 139 , 663,666. V. P. (158 111. 348), 378. , P. V. (1 Wheeler, Crim. Cas. 163). 582. May, Reg. v. (5 Cox, C. C. 176), 306. V. a (4 Tex. Ap. 434), 881. Mayberry, S. v. (48 Me. 318), 285, 391. Maybury, Reg. v. (4 Fost. & F. 90), 1013, 1015. Mayfield v. S. (44 Tex. 59), 306, 558. Mayhew v. Locke (7 Taimt 63), 330. Maynard v. P. (135 IlL 416), 871. V. a (46 Ala. 85), 583, 598. , a V. (8 Baxter, 348), 838, 848. Mays V. S. (88 Tex. Ap. 484), 79. Mead, Com. v. (160 Mass. 319), 403. V. a (53 N. J. L. 601), 460. Meadows, Reg. v. (1 Car. & K. 399), 944 Meakin, Reg. v. (11 Cox, C. C. 270), 420. Meany, Reg. v. (Jebb, 249). 890. 891. Mears v. Com. (3 Grant, Pa., 385), 306, 904 910. , Reg. V. (3 Den. C. C. 79, 4 Cox, C. C. 423), 285. 294, 946. Med bury, S. v. (3 R 1 138), 75, 437. Medley, Reg. v. (6 Car. & P, 293), 777, 835. Meek v. S. (53 N. J. L. 601), 460. , a V. (70 Mo. 355), 138. Meier v. S. (57 Ind. 386), 643. V. a (10 Tex. Ap. 39), 306, 316. Meiers v. S. (56 Ind. 336), 520, 1038. Meinhart, S. v. (73 Mo. 563), 904, 905. Mellish, Rex v. (Russ. & Ry. 80), 403. INDEX TO OASES CITED. Ixi Eeferenoea are to sections. Melton V. S. (3 Humph. 389), 619. Melville, S. v. (U R I. 417), 489, 495. Melvin, P. v. (2 Wheeler, Crim. Cas. 263). 285, 308. Menham, Reg. v. (1 Fogt. & F. 369), 89. Mercer, Reg. v. (17 U. C. Q. B. 603), 247. Meredith, Rex v. (Russ. & Ry. 46), 680, 690. V. S. (60 Ala. 441), 206, 558. Merrifield, Com. v. (4 Met 468), 582, 593 Merrill, P. v. (3 Parker, C. C. 590), 569. , a V. (3 Blackf. 346), 619, 716. Merritt v. S. (59 Ala. 46), 997, 998. Merwin v. P. (26 Mich. 398), 583. Mesa, P. V. (93 Cal. 580), 904. Meskell, S. etc. v. (N. J., 38 AtL R 383), 438. Messenger, Com. v. (4 Mass. 463), 663, 667. Messingham, Rex v. (1 Moody, 257), 916. Metcalf, S. v. (17 Mon. 417). 520. Meuly V. S. (3 Tex. Ap. 383), 1013. ^ Meyer, S. v. (1 Speers, 305), 85,663, 664. Meyers, S. v. (68 Mo. 366), 88. , S. T. (99 Mo. 1070), 66. Miazza v. S. (86 Miss. 613), 643, 649. Mellen, U. S. v. (53 Fed. R 239), 385. Milburne v. Byrne (1 Cranch, C. C. 239), 303. • Michael, Reg. v. (3 Moody, 130, 9 Car. & P. 356), 530, 533. , Rex V. (3 Leach, 138, Russ. & Ry 39), 337. V. S. (40 Ala. 361), 1045. Michell, Reg. v. (14 Cox, C. C. 490), 23^ Middiebrook v. S. (43 Conn. 257), 317, 319 Middieditch, Reg. v. (1 Den. C. C. 93, 3 Cox, C. C. 313), 977, 979. Middlesex Justices, Reg. v. (3 Q. B. D. 516), 1009. , Middleton v. S. (Dudley, S. C, 375), 430, 430. , S. V. (11 Iowa, 346), 489, 503, 777, 805. , S. V. (5 Port. 484), 1038. Midville, Reg. v. (4 Q. B. 340), 1013, 1017. Mifflin, Com. v. (5 Watts & S. 461), 396. Mikels V. S. (3 Heisk. 331\ 1043. Milan v. S. (34 Ark. 346), 206, 558. Milburn, U. S. v. (4 Cranch, 0. C. 719), 777, 805. Miles V. a (58 Ala. 390), 285, 288. , a V. (89 Me. 142), 246. V. U. S. (103 U. a 304), 881, 882. Millain, a v. (3 Nev. 409), 530. Millar v. a (2 Kan. 174), 206, 558. Miller v. Com. (18 Bush, 731). 672, 673. V. Com. (78 Ky. 15). 583. , Com. V. (8 Gray, 484), 95, 376. V. P. (3 Scam. 233), 342. V. P. (13 Colo. 166), 79. , Reg. V. (14 Cox. C. C. 356), 696. , Rex V. (6 Went. PI. 368), 909. , Rex V. (6 Went. PI. 394), 910. V. a (58 Ga. 200), 582. V. a (73 Ind. 88), 420. V. a (33 Miss. 356), 395. V. a (99 Ga. 207), 273. , a V. (34 Conn. 522). 642. , a V. (27 Ind. 15), 205. , a V. (58 Ind. 399), 583. , a V. (25 Kan. 699). 206, 312, 558. , a V. (24 Mo. 532), 997, 998. , a V. (13 Vt. 437), 838, 840. , a V. (Ill Mo. 542), 907. , a V. (3 Wash. 131), 254 , U. a V. (14 Blatch. 93), 973. Mills V. Com. (1 Harris, Pa., 631), 138, ^140. V. McCoy (4 Cow. 406), 93. , P. V. (17 Cal. 276), 58, 904, 908. , Reg. v. (Dears. & B. 205, 7 Cox, C. C. 263), 420. V. a (52 Ind. 187), 56, 58, 904, 905. V. a (53 Neb. 263), 403. , a V. (2 Dev. 420), 452. , a V. (17 Me. 211), 420. , a V. (10 Vroom, 587), 860. , a V. (146 Mo. 195), 460. , U. a V. (7 Pet. 138). 885. Milner, Rex v. (Trem. P. C. 241), 805. Mims, a V. (26 Minn. 183), 403. , a v. (26 Minn. 191), 403. Minter v. a (104 Ga. 743), 365. Mitohel, Reg. v. (3 Cox, C. C. 1), 619, 621. . Reg. V. (3 Cox, C. C. 93), 1039, 1043. Mitchell V. Com. (33 Grat. 845), 1078. V. Com. (78 Ky. 204). 138, 140. V. Com. (1 Mat. 856), 977. , Com. V. (7 Gray, 324), 900, 901. , P. V. (55 Cal. 236), 254. , Reg. V. (2 Den. O. C. 468, Dears. 19. 3 Car. & K. 181, 5 Cox, C. C. 541), 933 , Reg. V. (2 Fost. & F. 44), 460, 475. —, Reg. V. (2 Q. B. 636), 206. V. a (55 Ala. 160), 489, 506. V. a (63 Ind. 376), 58, 643, 649. V. a (63 Ind. 574), 643. V. a (1 Tex. Ap. 735), 56. V. a (8 Yerg. 514), 56, 520. , a V. (6 Mo. 147), 489, 503. Moah, Reg. v. (Dears. 636, 7 Cox, C. C. 60), 403, 409. ■ Mock V. a (11 Tex. Ap. 56), 973. Ixii INDEX TO CASES CITED. References are to sections. Moders, Rex v. (6 How. St. Tr. 374), 881. Moffatt V. S. (6 Eng.- 169), 489, 506. , S. V. (7 Humph. 250). 871, 876. Mohn, Com. v. (3 Smith, Pa., 243), 775, 777 793 Mohr', S. V. (53 Iowa, 361), 58, 643, 643, 644. , S. V. (68 Mo. 303), 403. Mohun. Rex v. (13 How. St. Tr. 950), 530, 1068. Molett V. S. (33 Ala. 408), 750. MoUer, U. S. v. (16 Blatch. 65), 972. Molony, Reg. v. (2 Cox, 0. C. 171), 420. Monaghan, Reg. v. (11 Cox, C. C. 608), 1012, 1031. Monarch, Com. v. (6 Bush, 298), 489, 503. Monck V. Hilton (3 Ex. D. 268), 1009. Monday v. S. (33 Ga. 673), 206, 558. Mondy, S. v. (34 Ind. 268), 643. Moneghan, P. v. (1 Parker, C. C. 570), 1038. Mongeon v. P. (55 N. Y. 613), 138. 143. Montague, Rex v. (Trem. P. C. 309), 106, 156. Montee v. Com. (3 J. J. Mar. 132), 489, 502. Montejo, P. v. (18 CaL 38), 916. Monteth, Rex v. (3 Leaoh, 702), 206, 933, 937. Montgomery v. S. (4 Tex. Ap. 140), 206, 555, 558. , S. V. (56 Iowa, 198), 420. , S. V. (92 Me. 433], 509. , S. V. (109 Mo. 645), 937. Moody V. P. (20 111. 315), 569, 1065. , P. V. (5 Parker, C. C. 568), 699, 706, 1031, 1032. , Rex V. (5 Car. & P. 23), 871, 876. , S. V. (69 N. C. 529), 1069. Mooney v. Maynard (1 Vt. 470), 173. Moore v. Com. (6 Met. 343), 148. , Com. V. (11 Gush. 600), 777, 783, 785. , Com. V. (130 Mass. 45), 253, 254. V. P. (47 Mich. 639), 254. , P. V. (3 Wheeler, Grim. Gas. 82), 206. ■ , P. V. (103 Cal. 508), 963. ■ , Rex V. (2 Leach, 575), 885. , Rex V. (1 Moody, 133), 343. V. S. (40 Ala. 49), 583, 588, 1068. V. S. (65 Ind. 313), 489, 504. ■ V. S. (2 Ohio St. 500). 47, 520. . V. S. (13 Ohio St. 387), 643, 650, 1078. V. S. (3 Pin. 373), 206, 743, 748. V. S. (7 Tex. Ap. 608), 739. . , S. V. (39 Conn. 344). 888, 839. , S. V. (3 Butcher, 105), 384, 386. , S. V. (1 Ind. 548), 415. • , S. V. (6 Ind. 436), 460. Moore, S. v. (Meigs, 476), 509. , S. V. (14 N. H. 451), 643. , U. S. V. (60 Fed. R. 738), 867. V. U. S. (160 U. S. 208 1, 403. Moorehouse, Rex v. (4 Doug. 388, Cald. 554), 333. Moors, Rex v. (6 East, 419, n.), 853. Moran, Com. v. (130 Mass. 281), 1038, 1058. , S. V. (7 Iowa, 236), 520, 545. More, U. S. v. (3 Cranch, 159), 415. Moreau. Reg. v. (11 Q. B. 1028), 871. Moreland, S. v. (37 Tex. 726), 176. Morgan, Rex v. (4 Went. PI. 106), 802. V. S. (11 Ala. 289), 564 V. S. (48 Ala. 65), 1079. V. S. (13 Fla. 671), 164, 166. V. S. (13 Sm. & M. 242), 206, 553, 558. V. S. (77 N. C. 37), 303. , S. V. (3 Dev. & Bat. 348). 460. , S. V. (62 Ind. 35), 205, 1043. , S. V. (85 N. C. 581), 520. -, S. V. (1 Winst. 246), 443. , S. V. (112 Mo. 203), 420. , U. S. V. (Morris, 341), 871. 876. Moriarty, S. v. (74 Ind. 103), 375. Morley v. Greenhalgh (3 B. & S. 874), 361, 489, 507. , Rex V. (Trem. P. C. 280), 520. Mormann v. S. (24 Miss. 54 1, 553, 556. Morrell v. P. (33 111. 499), 871. Morrill, Com. v. (8 Gush. 571), 430. V. S. (38 Wis. 438), 509. Morris, Com. v. (1 Va. Gas. 176), 619, 633. V. P. (1 Parker, G. C. 441), 1068. , Rex V. (1 Leach, 109), 916. , Rex V. (3 Leaoh, 1096, Russ. & Ry. 370). 460, 475. , S. V. (37 La. An. 480), 354 , U. S. v. (1 Curt. C. G. 33), 1034 V. Whitehead, (65 N. C. 637), 317. Morris, etc. R. Go. v. S. (7 Vroom, 553), 777, 790. Morrison v. Com. (7 Dana, 218), 777, 830. , P. V. (13 Wend. 399), 482. , S. V. (3 Ire. 9), 890, 893. Morrissey, S. v. (33 Iowa, 158), 354 , S. V. (70 Me. 401). 530. Morse, Com. v. (2 Mass. 128), 343. , Com. V. (2 Mass. 138), 460, 467. V. Reed (28 Me. 481), 172. Morton, In re (10 Mich. 208), 321. Morton v. P. (47 111. 468), 420, 431. V. S. (3 Tex. Ap. 510), 46, 619. V. S. (37 Vt. 310), 460, 469. , S. Y. (8 Wis. 353), 460, 467, 479. Moseley, Reg. v. (Leigh & C. 93), 430. V. White (1 Port. 410), 93. Moser, S. v. (33 Ark. 140), 241, 343, 244 859. INDEX TO CASES CITED. Ixiii References are to sections. Moses, Rex v. (7 Car. & P. 433), 460, 478. V. S. (58 Ind. 185), 777, 828. 881. , S. V. (7 Blackf. 344), 680, 687. , S. V. (2 Dev. 453), 530. Mosiey, Rex v. (1 Moody, 98, 1 Lewin, 189), 520. Moss, Res- V. (Dears. & B. 104, 7 Cox, C. C. 300), 489, 496. Most, Reg. V. (7 Q. B. D. 344, 14 Cox, C. C. 583), 106, 558. Mosfcyn v. Fabrigas (Cowp. 161), 1034. Mott, Com. V. (31 Pick. 493), 97. V. S. (39 Ark. 147), 180. Moulden v. S. (5 Lea, 577), 430, 916, 918. Moulton, Com. v. (10 Cush. 404), 643. . Com. V. (108 Mass. 307), 977, 979. , U. S. V. (5 Mason, 537), 89, 583. V. Wilby (9 Cox, C. C. 318), 438. Mouncer, Rex v. (3 Leach, 567), 354, 255 Mount V. Com. (1 Duv. 90), 460, 466, 474 V. S. (7 Ind. 654), 489, 497. Mowry, Com. v. (11 Allen, 20), 933, 935. ^ Moy Looke, S. v. (7 Oreg. 54), 569. Moye V. S. (9 Tex. Ap. 88), 484, 485. Moylan, Reg. v. (19 U. C. Q. B. 531), 639. Mueller v. S. (76 Ind. 310), 663. Mulcahy v. Reg. (Law R. 3 H. L. 306), 385, 987. Mulhisen, S. v. (69 Ind. 145), 75, 80, 643, 653. Mulling V. S. (74 Ga. 10), 149. Mulrey, Com. v. (170 Mass. 103), 430. Mulvaney, U. S. v. (4 Parker, C. C. 164), 58, 886. Mumford, S. v. (1 Dev. 519), 871. Munch, S. V. (33 Minn. 67), 403. Munco, S. V. (13 La. An. 635), 558. Munday, S. v. (78 N. C. 460), 430. Munger, S. v. (15 Vt. 2901, 643. Munn V. P. (69 111. 80), 997, 1001. Munro, Reg. v. (34 U. C. Q. B. 44), 777, 794 , a V. (13 La. An. 635), 206. Munson v. P. (5 Parker, C. C. 16), 777. 810, 816. , Reg. V. (2 Cox, C. C. 186), 180. — V. S. (79 Ind. 541), 460. , S. V. (76 Mo. 109), 212. Muntz, S. V. (3 Kan. 383), 643. Murfreesboro, S. v. (11 Humph. 317), 1012, 1017. Murphy v. Com. (33 Grat. 960), 206, 556, 558. , Com. V. (2 Allen, 163), 151. , Com. V. (12 Allen, 449), 977, 979. , Com. V. (3 Gray, 510), 643, 655. V. P. (90 IlL 59), 643, 653. Murphy, P. v. (39 Cal. 53), 520, 549. , Reg. V. (8 Car. & P. 397), 385. , Reg. V. (4 Cox, C. C. 101), 403. , Reg. V. (13 Cox, C. C. 298), 420. , Rex V. (19 How. St. Tr. 693), 460, 475. V. S. (55 Ala. 252), 838. V. S. (63 Ala. 1), 354 V. S. (24 Miss. 590), 642. V. S. (36 Ohio St. 638), 80. , S. V. (6 Ala. 765), 285, 388. 292. , S. V. (6 Ala. 845), 916. , S. V. (8 Blackf. 498), 583. , S. V. (5 Eng. 74), 890, 891. , S. V. (31 Ind. 441), 205. , S. V. (72 Me. 433), 1079. , S. V. (47 Mo. 374), 6, 643, 653. , S. V. (36 La. An. 415), 460. , S. V. (101 N. C. 697), 871. Murray v. Reg. (7 Q. B. 700), 881. , Rex V. (1 Moody, 276), 403. V. S. (18 Ala. 727), 682. V. S. (48 Ala. 675). 354 V. S. (41 Iowa, 580), 204, 206. Murrell v. S. (44 Ala. 367), 576, 577. Murry v. Com. (5 Leigh, 720), 460, 466. V. S. (1 Tex. Ap. 174), 1065. Muse, S. V. (4 Dev. & Bat. 319), 643. Musgrave v. S. (133 Ind. 397), 385. Musquez v. S. (41 Tex. 336), 583, 593, 609. Muston, S. V. (31 La. An. 443), 403. Mutters, Reg. v. (Leigh & C. 491, 10 Cox, C. C. 6), 90. 777, 838, 831. Mycall, Com. v. (2 Mass. 136), 460, 463, 474 Mycock, Reg. v. (12 Cox, C. C. 28), 944 Myers, Com. v. (1 Va. Cas. 188, 3 Wheeler, Crim. Cas. 545), 1043. V. P. (26 111. 173), 75, 582, 592. V. P. (67 111. 503). 643. T. S. (121 Ind. 15), 306. , S. V. (30 Mo. 409), 993, 993. Mytton, Rex v. (4 Doug. 333), 333. ]sr. Nail, S. V. (19 Ark. 563), 846. Name Unknown, Com. v. (6 Gray, 489), 643, 646. Napier v. S. (50 Ala. 168), 489, 506. Napman v. P. (19 Mich. 353), 136. Nash, P. V. (5 Parker, C. C. 473), 1082. V. Reg. (4 B. & S. 935, 9 Cox, C.- C. 434), 233. V. S. (7 Ind. 666), 305. Nasmith, Reg. v. (43 U. C. Q. B. 242), 750, 751. Nason, Com. v. (9 Gray, 135), 430, 433. Nations, S. v. (1 Ire. 335), 443. , S. V. (81 Tex. Ap. 561), 306, 313, 558. Ixiv INDEX TO CASES CITED. References are to sectiong. Naylor, Reg. v. (Law R. 1 C. C. 4, 10 Cox, C. C. 149), 420. , P. V. (33Cal. 607), 871. Neaderhouser v. S. (38 Ind. 357), 777, 1013, 1036. Neal, S. V. (130 N. G 613). 349. Neales v. S. (10 Mo. 498), 777, 830. Necomb v. S. (37 Miss. 383), 530, 543. Nedow, S. V. (93 Me. 71), 254 Neel V. S. (4 Eng. 359), 317. Neeley, S. v. (20 Iowa, 108), 530. Neff, S. V. (58 Ind. 516), 305. Nelson v. P. (5 Parker, C. C. 39), 306, 213, 558. , P. V. (56 Cal. 77), 933. , P. V. (58 Cal. 104), 353, 254. V. S. (32 Ark. 192), 871. V. S. (39 Ala. 667), 530. V. S. (1 Tex. Ap. 41), 530. , S. V. (19 Mo. 393), 489, 503. , a V. (8 N. H. 163), 583. , S. Y. (38 La. An. 942), 262. , S. V. (146 Mo. 356), 871. , U. S. V. {5 Saw. 68), 699, 726. Nesbit, Com. v. (10 Casey, Pa., 398), 663. 1069. Ness, S. V. (47 Ark. 553). 871. Nettles V. S. (49 Ala. 35), 384. Nettleton, Rex v. (1 Moody, 359), 403. Nevill, Rex v. (Trem. P. C. 43), 631. Neville, Reg. v. (6 Cox, C. C. 691, 871. Nevills V. S. (7 Coldw. 78), 206, 904, 910. Nevins, P. v. (1 Hill. N. Y., 154), 317. New, S. V. (22 Minn. 76), 403. New Sarum, Reg. v. (7 Q. B. 941), 1012, 1023. New York Central, etc. R Co., P. v. (74 N. Y. 303), 1013, 1015. Newall, Reg. v. (6 Cox, C. C. 21), 871. Newell V. S. (115 Ala. 54), 530. Newberry, S. v. (36 Iowa, 467), 555. Newboult, Reg. v. (Law R. 1 C. C. 344, 13 Cox, C. C. 148), 180. Newburyport, Com. v. (103 Mass. 139), 1013, 1023. Newburyport Bridge, Com. v. (9 Pick. 142), 1012, 1033. Newcomb v. S. (37 Miss. 383), 80. Newcomer, Com. v. (13 Wright, Pa., 478). 403. Newell, Com. v. (5 Gray. 76). 643. Newfane, S. v. (13 Vt. 432), 1012, lOia Newill, Rex v. (1 Moody, 458), 180. Newland, Reg. v. (3 Cox, C. C. 283), 608. V. S. (30Ind. Ill), 993. , S. V. (7 Iowa, 243), 460. 466. Newman's Case (3 Leon. 170), 95. Newman, Reg. v. (1 Ellis & B. 558, Dears. 85, 3 Car. & K. 85), 619, 639, 1046. , Rex V. (Trem. P. C. 123), 415. Newman, Rex v. (Trem. P. C. 180), 460, 474, 475. V. S. (49 Ala. 9), 254. V. S. (63 Ga. 533), 642, 653. Newsome, S. v. (5 Ire. 250), 263. , a V. (13 W. Va. 859), 306, 313, 695. Newton, Reg. v. (1 Car. & K. 469), 871, 874. , Reg. V. (3 Car. & K. 85), 1068. , Rex V. (Trem. P. C. 69). 637. , a V. (59 Ind. 173), 489, 503. , a V. (44 Iowa, 45), 204, 306, 904, 910, 911. , a V. (36 Ohio St. 365), 403. . a V. (43 vt. 537), 583. Neyoe, P. v. (86 CaL 393), 403. Nichol V. Martyn (3 Esp. 783), 303. Nicholas, Reg. v. (1 Cox, C. C. 318), 354 NichoUs, Reg. v. (10 Cox, C. C. 476), 904 908. Nichols, Com. v. (10 Allen, 199), 763, 770. , Com. V. (134 Mass. 531), 399, 300. V. a (46 Miss. 384). 520, 541. V. a (8 Ohio St. 435), 1078. , a V. (8 Conn. 496), 306, 558. , a V. (5 Iowa, 413), 489, 506. , S. V. (38 Iowa, 110), 460. , a V. (15 Wash. 1), 619. Nicholson, U. S. v. (3 Woods, 315), 891. Nickerson, Cora. v. (5 Allen, 518), 206. , S. V. (46 Iowa, 447), 871. , S. V. (30 Kan. 545), 777, 830. Nine. S. v. (105 Iowa, 131), 420. Nipper, S. v. (95 N. C. 653), 582. Nixon V. P. (3 Scam. 367), 58, 206, 555, 558. V. a (55 Ala. 120), 484, 48.5. . a V. (5 Jones, N. C, 257), 981, 982. . a V. (18 Vt. 70), 777, 783. Noakes v. P. (33 N. Y. 380), 80. , P. V. (5 Parker, C. C. 391), 460, 470. , a V. (70 Vt. 347), 530. Noble V. P. (83 Colo. 9), 530. V. S. (59 Ala. 73), 403. . U. a V. (5 Cranch, C. C. 371), 460, 467. Noelke, P. v. (94 N. Y. 137), 672, 677. , U. a V. (17 Blatch. 554), 887. Noles V. a (34 Ala. 672), 58, 520, 543. Nolton, U. a V.' (5 Blatch. 427), 973. Noonan, Rex v. (Jebb, 108), 853. Norfolk, Reg. v. (1 How. St. Tr. 957), 987. Norman, S. v. (3 Dev. 323), 881. Norris v. S. (25 Ohio St. 317), 80, 430. North, a V. (37 Mo. 464), 997, 998. North Brookiield, Com. v. (8 Pick. 463), 1013, 1017. Northfleld, S. v. (13 Vt. 565), 680, 690. INDEX TO CASES CITED. Ixv Eeferenoes are to sections. Northumberland, S. v. (46 N. H. 156), 1013, 1017. Norton, Com. v. (11 Allen, 366), 430. , Com. V. (13 Alien, 550), 777, 834, 1000, 1007. , Rex V. (4 W«nt. PI. 147), 415. , S. V. (3 Zab. 33), 285, 313. Norwich, Rex v. (Trem. P. C. 308), 1013, 1023. Norwood V. S. (45 Md. 68), 148, 159. Nosworthy, Rex v. (Trem. P. C. 75), 633, 634, 1039. Nott, Reg. V. (4 Q. B. 768), 853. Nourse v. S. (3 Tex. Ap. 804), 916. Nowlin V. S. (49 Ala. 41), 1012, 1017. Noyes v. Newmarch (1 Alien, 51), 93. V. S. (13 Vroom, 418), 285. , S. V. (10 Fost, N. H., 279), 777, 805, 809. Nuckolls V. Com. (33 Grat. 884), 489. Nundocomar, Rex v. (30 How. St. Tr. 923), 460, 475. Nutter, Com. v. (8 Grat. 699), 109, 306, 555, 558. o. Oaks, Com. v. (113 Mass. 8), 777, 833. Dates, Reg. v. (Dears. 459, 6 Cox, C. C. 540), 420. , Rex V. (10 How. St. Tr. 1079), 871. O'Baldwin, Com. v. (103 Mass. 310), 900. Ober, Com. v. (13 Cush. 493), 509. O'Brian, Reg. v. (2 Car. & K. 1 15, 1 Den. C. C. 9, 1 Cox, C. C. 126), 21, 115, 530, 539. O'Brien, Com. v. (13 Cush. 84), 385, 300. , Com. V. (107 Mass. 308), 306. 321. , Com. V. (172 Mass. 248), 420. V. Reg. (2 Cox. C. C. 123), 520. V. Reg. (3 Cox, C. C. 360), 987, 1090. V. S. (10 Tex. Ap. 544), 489, 503. O'Callahan, Reg. v. (14 Cox, C. C. 499), 106, 138, 143. Ochotski, P. V. (115 Mich. 601). 206. O'Coigly, Rex v. (26 How. St. Tr. 1191), 987. O'Connell v. Com. (7 Met. 460), 916. V. Reg. (1 Cox, C. C. 413, 11 CI. & F. 155). 11. V. S. (6 Minn. 279), 904, 905. O'Connor, Com. v. (7 Allen, 583), 368, 368. , Reg. V. (5 Q. B. 16\ 385, 308. Odell, S. V. (8 Blackf. 896), 680. , S. V. (43 Iowa, 75), 83, 775, 777, 783, 784. Odlin, Com. v. (33 Pick. 375), 642, 655. O'Donnell, Com. v. (1 Allen, 593), 763, 770. , S. V. (10 R. I. 473), 642. OfEener, Com. v. (2 Va. Cas. 17), 489, 506. O'Flaherty, S. v. (7 Nev. 153), 306, 312, 558. Ogilvie, Rex v. (3 How. St. Tr. 887), 987. O'Gorman, 8. v. (68 Mo. 179), 680. Oil V. Rowley (69 111. 469), 173. O'Keefe, S. v. (41 Vt. 691), 643. , S. V. (141 Mo. 371), 950. Old V. Com. (18 Grat. 915), 680, 690. O'Leary v. P. (4 Parker, C. C. 187), 306, 558, 1083, 1089. Oliveira v. S. (45 Ga. 555), 415. Oliver, Reg. v. (Bell, C. C. 387, 8 Cox, C. C. 384), 694. , Reg. V. (13 Cox, C. C. 588), 334. Y. S. (37 Ala. 134), 420, 431. V. 8. (66 Ala. 8), 1038. V. S. (17 Ark. 508), 838. 843. O'Malia v. Wentworth (65 Me. 139), 1008. O'Meara v. S. (17 Ohio St. 515), 306, 904, 910. One Case, etc., IT. 8. v. (6 Ben. 493), 973. One Hundred Barrels of Spirits, U. 8. V. (3 Abb., U. 8., 305), 973. O'Neal, 8. v. (1 Houst, Crim. 58), 115. Oneby, Rex v. (17 How. St. Tr. 80), 530. O'Neil. P. V. (48 Cal. 357), 306, 904, 910. O'Neill V. Reg. (1 Car. & K. 138), 633, 940. O'Niel, S. V. (33 Iowa, 373), 530. Opie, Rex v. (1 Saund. 300), 385, 313, 851. Orchard, Reg. v. (3 Cox, C. C. 248), 777. 802. Ormond, 8. v. (1 Dev. & Bat. 119). , 743,745. O'Rourke v. 8. (8 Tex. Ap. 70), 904, 908. Orr, Reg. v. (13 U. C. Q. B. 57), 333. V. 8. (18 Ark. 540), 489, 506. Orrell, S. v. (1 Dev. 139), 530. Orton, Reg. v. (3 Q. B. D. 490, 14 Cox, C. C. 436), 871. Orvis, S. V. (13 Ind. 569), 430. Orwig, 8. V. (34 Iowa, 108), 403. Osborn, Rex v. (3 Bur. 1697), 373. V. 8. (53 Ind. 536), 944. Osborn Mills. Com. v. (130 Mass. 33), 579 750 757. Osborne, 8. v. '(69 Mo. 143), 43, 58, 148, 158. Osmer, Rex v. (5 East, 304), 206, 838, 839. Ottawa, etc. Road, Reg. v. (42 U. C. Q. B. 478), 1013. Ixvi INDEX TO CASES CITED. References are to sections. Otway, Reg. v. (4 Cox, C. C. 59), 997, 1001. Oulaghan, Reg. v. (Jebb, 270), 206, 904, 910. Overshiner v. Com. (2 B. Monr. 344'), 777, 830. Ovorton, Reg. v. (2 Moody, 263, Car. & M. 655), 871, 876. , Reg. V. (4 Q. B. 83), 871. Oviatt V. a (19 Ohio St. 573), 699, 715. Owen, Rex v. (18 How. St. Tr. 1203), 619. , Rex V. (2 Leaoh, 572), 583. , S. V. (15 Mo. 506), 642. Owens, Rex v. (1 Moody, 305), 353. V. S. (52 Ala. 400), "699, 730. , S. V. (1 Houst Crim. 73), 577. -, S. V. (22 Minn. 338). 138. Oxford, Reg. v. (9 Car. & P. 525), 987. Oxx V. S. (59 N. J. L. 99), 420. Pace, S. V. (9 Rich. 355), 323. Packard, Reg. v. (Car. & M. 236), 520, 533 Paddie, Rex v. (Russ. & Ry. 484), 977. Padgett V. S. (68 Ind. 46), 489, 777, 805, 809. Page, Com. v. (26 Grat. 943), 1180. , P. V. (3 Parker, C. C. 600), 1083. ■ , Reg. V. (3 Moody, 319, 9 Car. & P. 756), 94, 96, 337, 340. , Rex V. (Russ. & Ry. 393, 1 Brod. & B. 308), 236. Paioe, Reg. v. (1 Car. & K 73), 180, 188. Paige, S. V. (50 Vt. 445), 777, 820. Painter, S. v. (40 Iowa, 298), 1065. . S. V. (67 Mo. 84), 109, 306, 555, 558. , S. V. (70 N. C. 70), 699, 713. Palch, S. V. (21 Mon. 534), 460. Palmer v. P. (43 Mich. 414), 777, 1005. V. P. (138 III 356), 520. , Rex V. (1 Leach, 353), 460, 476. , Rex V. (2 Leach, 680), 582, 588. , Rex V. (2 Leach, 978, Russ. & Ry. 72), 460, 466. , S. V. (35 Me. 9), 206. 213. , S. V. (4 Mo. 453), 777, 805. , S. V. (50 Kan. 318), 430. , U. S. V. (3 Wheat. 610), 89. Pancake, S. v. (74 Ind. 15), 489. 503. Pardenton, Reg. v. (6 Cox, C. C. 347), 750, 757. Pardue v. S. (4 Baxter, 10), 254. Pargeter, Rex v. (3 Cox, C. C. 191), 520, 530. Paris, S. v. (49 Ala. 25), 354. Parker's Case (2 Dy. 186a), 115, 116, 118, 520, 539. Parker, Com. v. (4 Allen, 313), 148, 157. , Com. V. (117 Mass. 112), 489, 496. , Com. V. (9 Met. 263), 138, 140. , Com. V. (165 Mass. 326), 403. , P. V. (114 Mich. 443). 460. , Reg. V. (Car. & M. 639), 871, 876. , Reg. V. (Law R. 1 C. C. 335, 11 Cox, C. C. 478), 871, 877. , Reg. V. (3 Q. B. 393), 285, 390. , Reg. V. (2 Moody, 1), 420. V. S. (9 Tex. Ap. 351), 933. V. S. (16 Lea, 476), 663. V. S. (61 N. J. L. 808), 643. , S. V. (34 Ark. 158), 582. , S. V. (81 N. C. 531), 66. , S. V. (81 N. C. 548), 699, 716. , S. V. (43 N. H. 83), £85, 291. , S. V. (57 N, H. 123), 148, 149. Parkinson v. S. (3 W. Va. 589), 1012, 1017. Parks V. S. (4 Tex. Ap. 134), 148. Parkyns, Rex v. (13 How. St. Tr. 63), 987. Parmenter, Com. v. (121 Mass. 854), 420. Parmer v. S. (41 Ala. 416), 583. 606. Parnell, Reg. v. (14 Cox, C. C. 508), 285. , S. V. (16 Ark. 506), 85, 643, 653. Parrish, S. v. (8 Humph. 80), 1038. Parry, Reg. v. (1 How. St. Tr. 1095), 987. , Rexv. (Trem. P. C. 339), 365. 366. Parshali, P. v. (6 Parker, C. C. 129), 944. Parsons v. Bellows (6 N. H. 289), 93. , Reg. V. (Law R. 1 C. C. 24, note), 353. 254. V. S. (2 Ind. 499), 395. , S. V. (54 Iowa, 405), 403, 409. Partridge, Reg. v. (6 Cox, C. C. 183), 430. Patee v. S. (109 Ind. 545), 420. , S. V. (121 N. C. 659), 520. Pater, Ex parte (5 B. & S. 299), 319. Patrick, Com. v. (80 Ky. 605), 558. Pattee, Com. v. (12 Cush. 501), 489, 503. Patten, S. v. (10 La. An. 299), 1078. Patterson, P. v. (103 Cal. 339), 564. , S. V. (116 Ind. 49), 386. , S. V. (7 Ire. 70), 777. 794 Patton, S. V. (4 Ire. 16), 1012, 1017. Patty, U. S. V. (9 Bis. 439), 887. Paul V. Frazier (3 Mass. 71), 294. , S. V. (69 Me. 215), 420. , U. S. V. (6 Pet. 141), 58, 90, 254. Payne v. Com. (31 Grat. 855), 672, 673, 076, 677. V. S. (74 Ind. 203), 653. V. S. (5 Tex. Ap. 35), 206, 555, 558. V. S. (38 Tex. Crim. R. 494), 907. Payson, S. v. (37 Me. 361), 777, 810, 812. Peabody, P. v. (35 Wend. 4i2), 460. 467. Peachee v. S. (63 Ind. 399), 977, 980. INDEX TO OASES CITED. Ixvii Eeferenoes are to sections. Peacher v. S. (61 Ala. 23), 583, 600. Pearoe, Reg. v. (9 Car. & P. 667), 206. 558. , Reg. Y. (9 Cox, C. C. 358), 871. , S. V. (14 Fla. 153), 347. , U. S. V. (3 McLean, 14), 885. Pearson, Com. v. (3 Met. 449), 642, 655. — -, P. V. (3 Scam. 270), 318. , Reg. V. (8 Car. & P. 119), 871. . Rex V. (1 Moody, 313), 583, 603. ; S. V. (3 N. H. 550), 443. Pease, S. v. (74 Ind. 363), 460. Peck, Reg. v. (9 A. & E. 686), 385, 391. V. S. (2 Humph. 78), 337. Peckham, S. v. (9 R. I. 1), 1013. Pedley, Rex v. (Cald. 218), 179, 180. Pedly, Rex v. (1 A. & E. 823), 90, 777, 785, 810, 811. Peebles v. Kittle (3 Johns. 368), 93. Pelfryman, Rex v. (2 Leach, 563), 933. Pelham, Reg. v. (8 Q. B. 959, 2 Cox, C. C. 17), 206, 218. Peltier, Rex v. (38 How. St. Tr. 529, 3 Chit. Crim. L. 52), 619, 637. Pembliton, Reg. v. (Law R. 3 C. C. 119, 13 Ccx, C. C. 607), 699. Pender, S. v. (83 N. C. 651), 600. Penley, S. v. (37 Conn. 587), 430. Penn, U. S. v. (4 Hughes, 491), 1034. Pennaman v. S. (58 Ga. 336), 871, 876. Pennell, S. v. (56 Iowa, 39), 904, 905. Penniman, Com. v. (8 Met. 519), 643. Pennington, S. v. (3 Head, 399), 777, 797. , S. V. (41 W. Va. 599), 564. Penny, S. v. (19 S. C. 218), 750, 757. Peoples, In re (47 Mich. 626), 520. Peppet V. Hearn (5 B. & Aid. 634), 93. Perdue v. Com. (15 Norris, Pa., 311), 871. Perham, S. v. (4 Greg. 188), 415. Perin, Rex v. (3 Saund. 389), 1086. Perkins, Rex v. (4 Car. & P. 537), 899. V. S. (50 Ala. 154), 58, 997, 998, 1041. V. S. (67 Ind. 370), 430. V. S. (1 Tex. Ap. 114), 1065. , S. -v. (6 Fost., N. H., 9), 643, 649. , S. V. (43 N. H. 464), 777, 836. Perrigo, Com. v. (3 Met, Ky., 5), 489, 503. Perrot, Reg. v. (1 How. St. Tr. 1315), 987. Perrott, Rex v. (2 M. & S. 379), 419, 420. Perry, Reg. v. (8 Cox, C. C. 223), 111, 138, 141. V. S. (43 Ala. 21), 1068. V. S. (63 Ga. 403), 890, 893. , S. V. (5 Jones, N. C, 253), 981, 982 , "S. V. (44 Tex. 100), 643. 650. Peter v. S. (4 Har. & McH. 3), 582. Peters v. IT. S. (36 C. C, A. 105). 80. , Com. V. (13 Met. 887), 306, 313, 1043. — , S. T. (51 N. J. 344), 486. Peterson, P. v. (9 Col. 313), 403, 411. , U. S. V. (1 Woodb. & M. 305), 580. Petitt, Rex v. (Jebb. 151), 108. Pettes V. Com. (136 Mass. 248), 460. Pettibone v. U. S. (148 U. S. 197), 279. Pettit, P. V. (3 Johns. 511), 109, 206, 555 558. Pettu's, V. S. V. (84 Fed. R. 791), 871. Peverelly v. P. (3 Parker, C. C. 59), 111, 180, 189, 1088, 1086. Pfomer v. P. (4 Parker, C. C. 558), 530. Phalen v. Com. (1 Rob., Va., 713), 673, 677. Phelps V, P. (6 Hun, 488, affirmed 78 N. Y. 365), 460, 475. V. P. (73 N. Y. 334, 6 Hun, 401), 583, 605. , P. V. (49 How. Pr. 437), 583. , P. V. (5 Wend. 9), 871, 876. , S. V. (65 N. C. 450), 916, Philbrick, S. v. (31 Me. 401), 430. Philipps, Rex v. (6 East, 464), 378, 380, 631. Philley, S. v. (67 Ind. 304), 305. Phillips V. Com. (8 Wright, Pa., 197), lOiSJ, 1017. . Com. V. (16 Pick. 311), 648. , Reg. V. (2 Moody, 353), 699, 737. T. S. (35 Ark. 384), 561. V. Welch (11 Nev. 187), 317. V. Welch (13 Nev. 158), 317, 319. Phillpot, Reg. V. (Dears. 179), 306, 318. Philpot, Com. v. (180 Mass. 59), 977, 979. Philpott, Reg. V. (6 Cox, C. C. 140), 306, 318. Philpotts, Reg. v. (1 Car. & K. 118), 430, 423. Phipoe, Rex v. (2 Leach, 673), 306, 383. Pick, Rex v. (Trem. P. C. 340), 306, 308. Pickens, S. v. (79 N. C. 653), 484, 485. Pickering, Com. v. (8 Grat. 628), 871, 876. Picket V. S. (22 Ohio St. 405), 643. Pickett V. P. (8 Hun, 83), 673, 677. V. S. (10 Tex. Ap. 290), 363. , S. V. (78 N. C. 458), 430. , 8. V. (118 N. C. 133), 838. Pierce v. P. (81 111. 98), 431. , Reg. V. (Bell, C. C. 235, 8 Cox, C. C. 344), 588. V. S. (67 Ind. 354). 305. V. S. (75 Ind. 199), 205. V. S. (13 Tex. 810), 1031. , S. V. (8 Nev. 291), 530. Pierson, S. v. (59 Iowa, 271), 583. Pike, Reg. v. (3 Moody, 70), 460, 470. , S. V. (49 N. H. 399), 530. Ixviii INDEX TO CASES CITED. Eeferences are to sections. Pilcher v. Stafford (4 B. & S. 775), 514. Pilkington, Eex v. (9 How. St. Tr. 187), 929 . Rex V. (Trem. P. C. 183), 393, 929, 1049, 1068. Pim, Rex v. (Russ. & Ry. 435), 460. Pinckard v. S. r63 Ala. 167), 582, 600. Pines V. S. (50 Ala. 153), 254. Pinhorn, Reg. v. (1 Cox, C. C. 70), 530, 526. Pinkard v. S. (30 Ga. 757), 1075. Pinney, Rex v. (5 Car. & P. 254), 680, 690. Pipes of Distilled Spirits, U. S. v. (5 Saw. 431). 973. Pirfenbrink, P. v. (96 111. 68), 320. Pitt V. Knight (1 Saund. 86). 93. Pittman v. S. (35 Fla. 648), 206, 558. Pitzer, S. v. (63 Ind. 362), 993. Plain V. S. (60 Ga. 284), 306, 558. Plank Road v. Faulkner (21 Barb. 312), 983, 984. Plastridge v. S. (6 R. L 76), 777, 820. Plestow, Rex v. (1 Camp; 494), 430. Plumer, Rex v. (Russ. & Ry. 264), 885. , U. S. V. (3 Clif. 1), 1068, 1086. — , U. S. V. (3 Clif. 28), 89, 520, 538. Plumley, Reg. v. (1 Car. & K 600), 520, 530. Plunkett V. S. (69 Ind. 68), 642. , S. \'. (64 Me. 534), 642, 644. Plytn. Rex v. (Trem. P. C. 364), 997. Poage V. S. (3 Ohio St. 229), 460, 464, 473, 1078. Poiuton V. Hill (12 Q. B. D. 306). 1004 Poleson V. S. (137 Ind. 519), 910. Pollard, In re (Law R. 3 P. C. 106), 318, 319. PoUman, Rex v. (2 Camp. 229), 285, 313. Pomeroy v. S. (40 Ala. 63), 1068. Pond V. S. (55 Ala. 196), 354. , U. S. V. (2 Curt. C. C. 265), 886, 1031. Pontius V. P. (82 N. T. 339), 306, 556, 558. Pool, S. V. (2 Dev. 202), 1012, 1017. Pooley, Rex v. (2 Leach, 887), 885. . Rex V. (2 Leach, 900, 3 B. & P. 315), 582, 885. Pope, Rex v. (1 Leach, 336), 582, 588. , S. V. (9 S. C. 373), 180. Porter, Com. v. (10 Met. 363), 642. V. P. (158 111. 370), 910. , Reg. V. (Leigh & C. 394, 9 Cox, C. C. 449), 206, 750, 754 V. S. (1 Tex. Ap. 477), 263, 267. , S. V. (75 Mo. 171), 430. , S. V. (113 N. C. 887), 349. . U. S. V. (3 Day, 283), 888. Portis, Reg. v. (40 U. C. Q. B. 314). 460. Portland, etc. E. Co. v. S. (58 Me. 46), 1013, 1023. Posey. Com. v. (4 Call, 109), 180. Post. Rex V. (Russ. & Ry. 101), 460, 465, 474 Poston V. S. (12 Tex. Ap. 408), 118, 558. Potter, P. V. (35 Cal. 110). 403. V. S. (39 Tex. 388). 582. V. S. (9 Tex. Ap. 55), 460. , S. V. (28 Iowa, 554), 385, 313. Pottmeyer, S. v. (30 Ind. 287), 699, 730. Potts, Rex V. (Russ. & Ry. 353), 115. Poulson, Rex v. (Trem. P. C. 103), 275. Pounds V. U. S. (171 U. S. 35), 973. Powell, Cora. v. (2 Met. Ky., 10), 871. V. S. (62 Ind. 531), 489, 504 V. S. (53 Wis. 217), 87, 254. , S. V. (10 Rich. 373), 509. , S. V. (28 Tex. 626), 871. Powers, P. V. (2 Seld. 50), 94 V. S. (80 Ind. 77), 530. V. S. (87 Ind. 97). 460. , S. V. (35 Conn. 48), 643. , S. V. (13 Ire. 5), 629. Powner, Reg. v. (12 Cox, C. C. 235), 460, 475. Prather, S. v. (54 Ind. 63), 205. ,- — , S. V. (136 Mo. 20), 907. Pray, Cora. v. (13 Pick. 359), 643, 655. , P. V. (1 Mich., N. P., 69), 420. Prendergast, Rex v. (Jebb, 64), 871. Prescott, S. v. (33 N. H. 312), 83, 489, 777, 805, 808. , U. S. V. (2 Abb., U. S., 169, 3 Bis. 335), 334 Presly, S. v. (73 N. C. 304), 993. Presser v. P. (98 111. 406), 943. Preston, Reg. v. (31 U. C. Q. B. 86), 460. Price V. Com. (31 Grat. 846), 1069. V. Jenkings (Cro. Eliz. 865), 619. , Reg. V. (15 Cox, C. C. 389), 956. , Eex V. (Trem. P. C. 75), 633, 684 , Rex V. (Trem. P. C. 177), 270. V. S. (36 Miss. 531), 1075. V. S. (13 N. H. 536). 643. V. S. (35 Ohio St. 601), 530. , S. V. (75 Iowa, 344), 642. , S. V. (32 Tex. Ap. 110), 558. , S. V. (12 Gill & J. 260), 489, 601. , S. V. (6 Halst. 203), 180, 1068. V. U. S. (155 U. S. 3111, 887. Priddy, S. v. (4 Humph. 429), 333, 935. Pridmore, Reg. v. (3 Cox, C. C. 578), 777, 794 Prim V. S. (36 Ala. 344). 1012, 1015. V. S. (32 Tex. 157), 583. Pringle, Reg. v. (3 Moody, 127, 9 Car. & P. 408), 460, 471. Prior V. S. (41 Ga. 155). 206, 558. Pritohard, Rex v. (7 Car. & P. 303), 1063. , S. V. (35 Conn. 319), 430. INDEX TO OASES CITED. Ixix Eef arences are to sections. Pritchford v. S. (3 Tex Ap. 69), 1043. Prius, Com. v. (9 Gray, 137), 285, 386, 391. Proud, Reg. v. (Law R. 1 C. C. 71, 10 Cox, C. C. 455), 871. - , Reg. V. (Leigh & C. 97, 9 Cox, C. C. 33), 403, 411. Pruett, a V. (3 Mo. Ap. 356), 349. Pryor, S. v. (30 Ind. 350), 430, 438. Pulle, S. V. (13 Minn. 164), 385. Purchase, Reg. v. (Car. & M. 617), 403. , Reg. V. (15 How. St. Tr. 651), 987. Purdom, S. v. (3 Mo. 114), 489. Purse, S. V. (4 McCord, 473), 777, 810, 811. Pusey, U. S. v. (6 Bankr. Reg. 384), 884. Putnam, Com. v. (5 Casey, Pa., 396), 385 39^ Pym,'Reg. v. (1 Cox, C. C. 339), 115, 530 539 Pyne,' Rex v. (Trem. P. C. 364), 577. Q. Quail, Reg. v. (4 Post & F. 1076), 100. Quann, Com. v. (3 Va. Cas. 89), 460, 470. Queen v. S. (5 Har. & J. 333), 575. Queloh, Reg. v. (14 How. St. Tr. 1067), 879. Quin, Com. v. (5 Gray, 478), 643. Quincy, U. S. v. (6 Pet. 445), 760. Quinlan v. P. (6 Parker, C. C. 9), 58, 80, 933, 936. Quinn v. S. (35 Ind. 485), 384, 386. , S. V. (47 Iowa, 368), 430. 430, 433. Quirk, Rex v. (4 Went. PI. 46), 530. Quitsow V. S. (1 Tex. Ap. 47), 583, 1079. Quvise, P. V. (56 CaL 396), 583. E. Rabon, S. v. (4 Rich. 360), 115, 530, 539. Radbourne, Rex v. (1 Leach, 457), 530. Radford, S. v. (56 Kan. 591), 520. Radley, Reg. v. (1 Den. C. C. 450, 3 Car. & K. 974, 3 Cox, C. C. 460), 583. Radloflf, Atty.-Gen. v. (10 Exch. 84), 972. , Rafferty v. P. (66 III 118), 1064 Ragan, S. v. (22 Mo. 459), 58, 395, 397. Railford v. S. (59 Ala. 106), 115. , S. V. (7 Port. 101), 643. Raines, S. v. (3 MoCord, 533), 530. Rainey v. S. (8 Tex. Ap. 63), 363. Rainforth v. P. (61 III. 365), 430. Raisler v. S. (55 Ala. 64), 643. Raleigh, Rex v. (2 How. St. Tr. 1), 987. Ramsden, Reg. v. (Ellis, B. & E. 949), 1013, 1017. Ramsey, Reg. v. (1 Cab. & E. 126), 343. V. S. (43 Ala. 404). 890, 893. V. S. (6 Eng. 35), 643, 647. Rand, S. v. (33 N. H. 216), 254. Randall v. Com. (34 Grat. 644), 306, 213 558 , Com. V. (4 Gray, 36), 206, 230. ■ , Com. V. (119 Mass. 107). 582. 605. V. S. (13 Crim. L. Mag. 740), 891. , S. V. (3 Aikens. 89), 460, 467, , U. S. V. (Deady, 534), 885. Randies, S. v. (7 Humph. 9), 391. Ranged, P. v. (113 Cal. 669), 907. Rank v. P. (80 111. Ap. 40i, 977. Rankin, S. v. (3 S. C. 438), 777, 810, 816. Ransford, Reg. v. (13 Cox, C. C. 9, 11 Eng. R. 363), 106, 963, 964. Ranson, Rex v. (3 Leach, 1090), 885. Ratolifife's Case (3 Lewin. 57), 333. Ratoliffe v. Com. (5 Grat. 657), 699, 733 , Reg. V. (15 Cox, C. C. 137), 904, 909. Raudnitz, Reg. v. (4 Fost. & F. 165), 33B Rawlings v. S. (3 Md. 301). 643. Rawson v. S. (19 Conn. 393), 643, 647. Ray, Com. v. (3 Gray, 441), 460. V. S. (50 Ala. 173), 489, 506. Raymond, Com. v. (97 Mass. 567), 768, 768, 769. V. P. (9 Bradw. 344), 777, 783, 787. , S. V. (20 Iowa, 583), 878. , S. V. (11 Nev. 98), 520. Rea V. Hayden (3 Mass. 24), 1034. Read v. P. (86 N. Y. 381), 672, 677. , Reg. V. (1 Cox, C. C. 65), 117. , Rex V. (Trem. P. C. 559), 1053, 1083. , S. V. (13 R. L 135), 365, 373. Reading, Rex v. (3 Leach, 590), 460, 468. Ready v. S. (63 Ind. 1), 489, 504. Reakey, S. v. (63 Mo. 40, 1 Mo. Ap. 3), 3 5*^0 Ream^V. Com. (3 S. & R 207), 460, 474, 475. V. S. (53 Neb. 727), 916. Reardon, Com. v. (6 Cush. 78), 148, 149. Reason, Rex v. (16 How. St. Tr. 1), 520. Reckards, Rex v. (31 Minn. 47), 777, 794. Record, S. v. (56 Ind. 107), 680, 687. Rector v. S. (1 Eng. 187), 1043. Reddie v. Sooolt (Peake, 240), 294. Redhead, Rex v. (35 How. St. Tr. 1008), 285, 942. Redmond, Rex v. (28 How. St. Tr. 1271), 987. V. S. (36 Ark. 58), 642, 653. V. S. (35 Ohio St. 81). 420. Redus V. S. (83 Ala. 53), 363. Ixx INDEX TO CASES CITED. Befereoces are to sections. Reed, Com. v. (10 Casey, Pa., 375), 777, 1012, 1028, 1046. V. P. (1 Parker, C. C. 481), 513. , P. V. (47 Barb. 235), 438. , Res. V. (13 Cox, C. C. 1), 777, 802. , Rex V. (7 Car. & P. 848), 430, 435. V. S. (8 Ind. 300), 530. V. S. (1 Tex. Ap. 1), 489, 503. , S. V. (40 Vt. 60a;, 553. , U. S. V. (1 Lowell, 233), 973. Reedy, S. v. (44 Kan. 190), 564. Reese, S. v. (83 N. C. 637), 420. Reeves, Rex v. (26 How. St. Tr. 530), 619. 621. , Rex V. (3 Leach, 808), 406. V. S. (20 Ala. 33), 38, 206. V. S. (7 Tex. Ap. 276), 254. V. S. (12 Tex. Ap. 199), 489, 503. V. Townsend (3 Zab. 396), 93. Regan, S. v. (67 Me. 380), 643, 645. , S. V. (8 Wash. 506), 206, 520. Reich V. S. (63 Ga. 616), 642, 653. Reichert, U. S. v. (13 Saw. 643), 385. Reid, Res. v. (3 Den. C. C. 88, 5 Cox, C. C. 104), 933. V. S. (53 Ala. 402), 619. V. S. (8 Tex. Ap. 430), 699, 717. , S. V. (30 Iowa, 413), 58. 254. Reiber. Kespublica v. (6 Yeates, 283), 743, 745. Reinlnghaus, S. v. (43 Iowa, 149), 777, 830. Relter, Com. v. (28 Smith, Pa., 161), 680, 690. Renshaw, Reg. v. (3 Cox, C. C. 385), 218. Reside v. S. (10 Tex. Ap. 675). 403. Reyburn, Ter. v. (McCahon, 134), 58, 997, 1001. , U. S. V. (6 Pet. 352), 760. Reynolds, Com. v. (14 Gray, 87), 335, 338. , Com. V. (133 Mass. 454). 254, 355. V. P. (17 Abb. Pr. 413), 530. , S. V. (47 Vt. 397), 642, 644. Rhodes, In re (65 N. C. 518), 317. Rhodes, U. S. v. (30 Fed. R. 431), 871. Ribee, S. v. (37 Minn. 315), 460. Rice V. P. (15 Mich. 9), 306, 558. , P. ex rel. v. (114 N. Y. 349), 332. , Reg. V. (Bell,- C. C. 87, 8 Cox, C. C. 119), 582, 597. , Reg. V. (Law R. 1 C. C. 21, 10 Cox. C. C. 153), 777, 782. , S. V. (149 Mo. 461). 555. V. S. (16 Ind. 398), 305. V. S. (3 Kan. 141), 58, 489, 503. V. S. (8 Mo. 561), 530, 539. • V. S. (1 Yerg. 433), 460, 471. V. S. (87 Tex. Crim. R. 36), 910. Richards v. Foulks (3 Ohio, 66), 93. , P. V. (1 Mich. 216), 385, 391. Richards, Reg. v. (3 Q. B. D. 311, 13 Cox, C. C. 611), 118, 520, 539. , Rex V. (1 Moody & R. 177), 699, 727. , S. V. (33 La. An. 1294), 306, 316. Richardson, Com. v. (136 Mass. 34), 881. V. Fonts (11 Ind. 466), 394 V. Hickman, (23 Ind. 244), 93. V. P. (31 111. 170), 1065. , Reg. V. (46 U. C. Q. B. 375), 206. , Rex V. (1 Moody & R. 402), 283, 291. , Rex V. (4 Went. PI. 23). 476. V. S. (5 Tex. Ap. 470), 364 365, 371. V. S. (66 Md. 205), 633. , S. V. (38 N. H. 208), 838. Richie v. S. (58 Ind. 355), 904, 905. Riohter, S. v. (23 Minn. 81), 642, 653. Rioker, S. v. (29 Me. 84), 180, 190. Rickey, S. v. (4 Halst. 298), 285. Ridenour v. S. (65 Ind. 411), 363. Ridley, Rex v. (3 Camp. 650), 218, 530, 530, 730, 751. , S. V. (48 Iowa, 370), 254. Riggs V. S. (104 Ind. 261, 262), 36. , S. V. (22 Vt. 331), 777, 833. Riley, P. v. (5 Parker, C. C. 401), 1068, 1083. V. S. as Miss. 397), 13, 642, 649. y. S. (33 Tex. 763), 403. Rinaldi, Reg. v. (Leigh & C. 330, 9 Cox, C. C. 391), 460, 478. Ring, S. V. (39 Minn. 78), 403, 409. Ringrose, Rex v. (Trem. P. C. 33), 742, 743. Risley, S. v. (72 Mo. 609), 1013, 1015. Rispal, Rex v. (3 Bur. 1320), 285, 300. Ritchie, S. v. (2 Dev. & Bat. 29), 489. , S. V. (107 N. C. 857), 893. Rives V. S. (Ala., 13 So. R. 434), 346. Roach, Com. v. (1 Grat. 561), 871. Robb, Reg. v. (4 Fost. & F. 59), 944. Robberson v. S. (3 Tex Ap. 503), 484 Robbins v. Gorham. (35 N. Y. 588), 318. V. S. (8 Ohio St 131), 58, 520, 533, 540. , S. V. (9 Ire. 356), 575. Roberts v. Com. (10 Leigh, 686), 489, 491. , Com. V. (1 Cush. 505), 642. , Com. V. (108 Mass. 396), 530, 539. , Com. V. (132 Mass. 267), 777, 820. , Reg. V. (3 Car. & K. 607), 871. , Reg. V. (7 Cox, C. C. 39, Dears. 539, 33 Eng. L. & Eq. 553), 111,343. , Reg. V. (7 Cox, C. C. 423), 460, 473. , Rex V. (1 Camp. 399), 385, 391. , Rex V. (Trem. P. C. 332), 860. V. S. (61 Ala. 401), 583. INDEX TO CASES CITED. Ixxi Eeferences are to sections. Roberts v. S. (21 Ark. 183), 929. V. a (55 Miss. 431), 254 V. S. (33 Ohio St. 171), 489, 491. , S. V. (26 Me. 263), 206, 838, 839. , S. V. (81 N. C. 605), 699, 716. , S. V. (53 N. H. 492), 206, 838. Eobsi-tson, Com. v. (162 Mass. 90), 520. , Reg. V. (Leigh & C. 483, 10 Cox, C. C. 9), 977. 980. , S. V. (33 Tex. 159), 354. , S. V. (50 La. An. 455), 520. Robey, S. v. (8 Nev. 312), 206, 558. Robinius v. S. (63 Ind. 235), 643, 652. Robins, Reg. v. (1 Car. & K 456), 944, 945. Robinson v. Com. (32 Grat. 866), 583, 1043, 1044 V. Com. (101 Mass. 27), 977, 979. , Com. V. (126 Mass. 259), 81. V. Holt (39 N. H. 557), 481. , P. V. (2 Parker, C. C. 235), 530, 532. , Reg. V. (4 Fost. & F. 43), 916. , Reg. V. (Leigh & C. 604, 10 Cox, C. C. 107), 344. , Rex V. (2 Bur. 799), 333. , Rex V. (8 Leach, 749), 977. V. S. (57 Ind. 113), 148. V. S. (5 Pike, 659), 306, 555, 558. V. S. (83 Ga. 1661, 403. , a V. (9 Fost., N. H., 374), 482, 483. , a V. (29 La. Ann. 364), 933. , a V. (19 Tex. 478), 643. , a V. (85 Me. 195), 977. Robson, Reg. v. (3 Moody, 183, 9 Car. & P. 423), 460, 470. Roby, Com. v. (12 Pick. 496), 1043, 1068. Rooco V. a (37 Miss. 357), 1059. Roche, Rex v. (28 How. St. Tr. 754), 987. Rockhill, P. V. (74 Hun, 241), 206. Rockwell V. Nearing (35 N. Y. 303), 173. Roderigas, P. v. (49 Cal. 9), 944, 946. , a V. (7 Nev. 338), 306, 558. Rodgers v. S. (26 Ala. 76), 489, 506. Rodriguez, P. v. (10 Cal. 50), 520. Roe, P. Y. (5 Parker, C. C. 331), 1046. , Reg. V. (11 Cox, C. C. 554), 582. , S. V. (13 Vt 93), 180, 183. Roehm, S. v. (61 Mo. 83), 643, 653. Rogan, Rex v. (Jebb, 62), 933. Rogers, Com. v. (1 S. <& R 124), 442. V. a (11 Tex. Ap. 608), 460. V. a (58 N. J. L. 220). 642. , U. a V. (4 How., U. a, 567, Hemp. 450), 1034 Rogier, Rex v. (1 B. & C. 372), 777, .805. Rohgan, S. v. (18 Wash. 43), 950. Rohrer v. S. (13 Tex. Ap. 163), 871, 874 Rolland v. Com. (1 Norris. Pa., 306), 254 Rollins, S. V. (8 N. H. 550), 206, 569. , a V. (55 N. H. 101), 860. Ronan, Com. v. (126 Mass. 59), 777, 820. Rooker v. S. (65 Ind. 86), 460. Rockwood, Rex v. (13 How. St. Tr. 139), 987. Root V. S. (10 Gill & J. 374). 148, 159. Roote, a V. (5 N. D. 487), 323. Roper, a V. (1 Dev. & Bat. 308), 80, 777, 803. , a V. (6 Dev. & Bat. 208), 43. Roseberry v. S. (50 Ala. 160), 577. Roseborough v. S. (43 Tex. 570), 1076. Rosekrans v. P. (5 Thomp. & C. 467, 3 Hun, 287), 460. Rosenthal, Reg. v. (Law R. 1 Q. B. 93), 777. 801. Rosewell, Rex v. (10 How. St. Tr. 147). 987. Rosinski, Rex v. (1 Moody, 19, 1 Lewin, 11), 206, 223. Ross's Case (2 Pick. 165), 97. Ross, Com. V. (2 Mass. 373). 460, 464 - — , Respublica v. (2 Yeates, 1), 285, 290. V. a (15 Fla. 55), 569. , a V. (26 Mo. 360), 735. Roth V. a (10 Tex. Ap. 27), 583. Roubles, S. V. (43 La. An. 200), 79. Rounds V. a (78 Me. 42), 460. Eoundtree v. S. (58 Ala. 381), 582. V. S. (10 Tex. Ap. 110), 699, 717. V. U. S. (1 Pin. 59), 306, 838, 839. Rourke, Rex v. (38 How. St. Tr. 926), 987. Rouse, P. V. (3 Mich., N. P., 209), 564 . Rex V. (9 How. St. Tr. 637), 987. Roush V. S. (34 Neb. 325), 460. Rowan, Com. v. (3 Dana, 395), 378, 381. , Rex V. (22 How. St. Tr. 1034), 619. 621. V. a (30 Wis. 139), 520. Rowe, Ex parte (7 Cal. 175), 331. Rowed, Reg. v. (3 Q. B. 180), 156. Rowland v. S. (55 Ala. 310), 254 V. Veale (Cowp. 18), 93. Rowlands, Reg. v. (2 Den. C. G. 364, 5 Cox, C. C. 436, 17 Q. B. 671), 385, 308. Rowley v. Howard (33 Cal. 401), 93. , a V. (13 Conn. 101), 385, 291. Roy, a V. (83 Mo. 368), 70. Royal V. a (9 Tex. 449), 489, 491. Royall, U. S. v. (3 Cranch, C. C. 618), 777, 792. , U. a V. (3 Cranch, C. C. 620), 792. Royce, Rex v. (4 Bur. 2073), 929. Roys V. Lull (9 Wis. 324), 93. Ixxii INDEX TO CASES CITED. Belerencea are to sections. Ruby V. S. (7 Mo. 806), 206, 215. , S. V. (68 Me. 543), 777, 820. Rudge, Reg. v. (13 Cox, C. 0. 17). 403. Rufer V. S. (25 Ohio St. 464), 520, 540. Ruffin V. a (36 Tex. Crim. R. 565), 247. Ruge V. S. (62 Ind. 888), 642, 654. Ruggles, Com. v. (10 Mass. 391), 440. , P. V. (8 Johns. 290), 241, 243. Ruhnke, S. v. (27 Minn. 309), 484, 485. RuUoflF, P. V. (8 Parker, C. C. 401), 520, 1081. Rumble, Reg. v. (4 Fost. & F. 175), 760. Rumford Chemical "Works, Com. v. (16 Gray, 231), 777, 828. Rundle, Reg. v. (Dears. 482, 6 Cox, C. C. 549), 754 Runnels, Com. v. (10 Mass. 518), 893, 929. Rupe, S. V. (41 Tex. 83), 520. Rupp, Com. V. (9 Watts, 114), 680, 691. Rushworth, Rex v. (Russ. & Ry. 817), 460, 470. Russell, Reg. v. (3 Ellis & B. 942), 1012, 1029. , Rex V. (6 B. & C. 566), 1012, 1026. , Rex V. (6 East, 427), 82, 1012, 1015. , Rex V. (9 How. St. Tr. 578), 987. , Rex V. (1 Moody, 356), 953. , S. V. (45 N. H. 83), 929. , S. V. (95 Iowa, 406), 781. Ruth, S. V. (21 Kan. 583), 904, 905. Rutherford, S. v. (13 Tex. 24), 206, 558, 1031. Rutter, Rex v. (Trem. P. C. 127), 460, 463. Ryalls V. Reg. (8 Cox, 0. O. 36), 871, 1068. V. Reg. (3 Cox, C. C. 254), 871. Ryan, Com. v. (9 Gray, 187), 642. V. S. (52 Ind. 167), 205. , S. V. (13 Minn. 370), 520. , S. V. (68 Conn. 512), 642. Rye V. S. (8 Tex. Ap. 153), 79. Ryland, Reg. v. (10 Cox, C. C. 569, Law R 1 C. C. 99), 58, 750, 751. , Reg. V. (11 Cox, C. C. 101), 904, 909. Rymes, Reg. v. (3 Car. & K 326), 916. 9ia a, Reg. V. (5 Cox, C. C. 379), 206, 750, 751. S. L., S. V. (3 Tyler, 249), 582, 916. Sabine, Rex v. (4 Went. PI. 203), 629. Sacheverell, Rex v. (10 How. St. Tr. 30), 929. Sacramento, U. S. v. (2 Mon. Ter. 239), 642. Sadler, Rex v. (2 Chit. 519 , 439. Sainsbury, Rex v. (4 T. R. 451), 680, 691. St. George, Reg. v. (9 Car. & P. 483), 111, 206, 214. St. Giles, Rex v. (5 M. & S. 360), 1013, 1017. Sainthill, Reg. v. (3 Ld. Raym. 1174), 1012, 1033. Sallie V. S. (39 Ala. 691), 583, 588, 598. Salop, Rex v. (12 East, 95), 1012, 1023. Salter v. Howard (48 Ga. 601), 303. Sam V. S. (31 Miss. 480), 1084, 1056. , S. V. (2 Dev. 567), 206, 904, 910. Samo V. Reg. (2 Cox, C. 0. 178), 894 Sampson, Com. v. (97 Mass. 407), 663, 669. Sanborn, Com. v. (14 Gray, 893), 306, 212. 215, 933, 935, 937. Sanchar's Case (9 Co. 114o), 1068. Sanchar's Case (9 Co. 117a), 116. Sanchez v. P. (22 N. Y. 147), 520. Sanders v. S. (55 Ala. 183), 58, 680, 691. Sanderson V. S. (151 Ind. 550), 323. Sandford, P. v. (43 Cal. 29), 520. V. S. (6 Eng. 328), 1068. Sands, P. v. (1 Johns. 78), 777, 788. v.S.(80 Ala. 201), 180. Sandy v. S. (60 Ala. 18), 993. V. S. (60 Ala. 58), 430. Sandys, Reg. -t. (2 Moody, 227, Car. & M. 845), 530, 583. , Rex V. ( Jebb, 166), 737. V. Small (3 Q. B. D. 449), 763, 771. Sanford v. S. (12 Tex. Ap. 196), 306, 904, 910. Sanquire, Rex v. (2 How. St. Tr. 748), 58, 520. Santo V. S. (2 Iowa, 165), 643, 643, 645. Sarah v. S. (38 Miss. 367), 111, 206, 213, 558. Sargent, Com. v. (139 Mass. 115), 871. 874. Sarong, S. v. (95 Mo. 349), 439. Satchell, Reg. v. (2 Cox, C. C. 137), 871. V. S. (1 Tex. Ap. 438), 485. Sater v. S. (56 Ind 378), 1038. Satterthwaite v. Dewhurst (4' Doug. 315), 294. Sauerbough, S. v. (122 Ind. 208), 663. Saunders, Reg. v. (3 Dy. 254a), 116. , Reg. V. (3 Plow. 473), 116, 520, 533, 539. , Reg. V. (1 Q. B. D. 15, 13 Cox, C. C. 116), 629, 777, 799. , Reg. V. (Trem. P. C. 100), 276. - — , S. V. (63 Mo. 482). 420. , S. V. (62 Mo. 33), 415. , U. S. V. (77 Fed. R. 170), 354. Sauser v. P. (8 Hun. 303), 881. Sauverchord, P. v. (81 Cal. 650), 306. Savage, S. v. (83 Me. 588), 583. Saviers, P. v. (14 CaL 39), 58, 489, 490, 507. INDEX TO CASES CITED. Ixxiii References are to sections. Savin, In re (131 U. S. 267), 318. Savoye, S. v. (48 Iowa, 563), 285, 394. Sawe V. King (1 Saund. 81), 4S. Sawyer, Reg. v. (3 Car. & K. 101), 47, 89, 520, 538. Saxon, Rex v. (Trem. P. C. 157), 875, 1068. Saxton, S. v. (78 N. C. 564), 904, 905. Saylor, S. v. (6 Lea, 586), 58, 206, 555, 558. Scaggs, S. V. (6 Blackf. 37), 939. , S. V. (33 Mo. 92;, 489, 500. Scales V. S. (47 Ark. 476), 663. Scammon, S. v. (3 Fost. N. H., 44), 974. Scannel, Com. v. (11 Cusli. 547), 904, 905. Scarborough v. S. (46 Ga. 26>, 777, 782. Scarlet v. S. (25 Fla. 717), 430. Schall, Com. v. (3 Pa. Dist. 462), 70. Sohatz, S. V. (71 Mo. 502), 583, 599. Sohieneman, S. v. (64 Mo. 380), 365. Schill, S. V. (37 Iowa, 263), 871. Schilling, S. v. (14 Iowa, 455), 777, 830. Schirman v. P. (33 111. 276), 1068. Schlesinger, Reg. v. (2 Cox, C. C. 200), 871. Schlioht V. S. (56 Ind. 173), 642. Schlottman, S. v. (52 Mo. 164). 859. Schmidt v. S. (78 Ind. 41), 63, 763, 768. Sohultz, S. V. (57 Ind. 19), 871. Schumann, S. v. (133 Mo. Ill), a54. Schuster v. S. (48 Ala. 199), 58, 489, 506. Schutze V. S. (30 Tex. 508), 170. Schwartz, P. v. (32 Cal. 160), 180, 185. Schweiter, S. v. (37 Kan. 499). 643. Soidmore v. Smith (13 Johns. 332), 303. Scofield, Rex v. (Cald. 397), 179, 180. Scoggins V. S. (32 Ark. 205), 881. Scott, Com. V. (1 Rob.. Va., 695), 343. V. P (149 111. 195), 138. , Reg. V. (Dears. & B. 47, 1 Cox, C. C. 164), 237. , Reg. V. (3 Q. B. D. 415, 13 Cox, 0. C. 594), 871, 875. , Rex V. (3 Bur. 1363), 929. , Rex V. (1 Leach, 401), 116, 333. , Rex V. (Russ. & Ry. 415), 904, 908. V. S. (40 Tex. 503), 263. V. S. (13 Tex. Ap. 31), 306, 933, 937 - — , S. V. (2 Dev. & Bat. 35), 58, 699. , S. V. (68 Ind. 267), 993. , S. V. (73 N. C. 461). 206, 904, 910. , S. V. (48 La. An. 293), 66. Scotton, Reg. v. (5 Q. B. 493), 871. Scribner v. S. (12 Tex. Ap. 173), 9, 489, 493. , S. V. (3 Gill & J. 346), 673, 677. Scroggins v. S. (36 Tex. Crim. R. 117), 254. Scudder, Rex v. (1 Moody, 316, 3 Car. & P. 605), 138, 141, 142. Scudder v. S. (63 Ind. 13), 385, 288. Scully V. Com. (11 Casey, Pa., 511), 1069. Seale, Rex v. (8 East, 568). 672. Searcy v. S. (4 Tex. 450), 680, 690. V. 8. (1 Tex. Ap. 440), 354 , S. V. (Ill Mo. 336). 642. Sears, S. v. (71 N. C. 295), 600. Seay, S. v. (3 Stew. 133), 582, 608. Sedberry v. S. (14 Tex. Ap. 233), 643, 649. Seely, S. v. (30 Ark. 163), 306. Seibright v. S. (3 W. Va. 591), 765. Sellers, Com. v. (130 Pa. St. 33), 653. V. S. (49 Ala. 357), 916. Selway. Rex v. (3 Chit. 522). 509. Senior. Reg. v. (Leigh & C. 401, 9 Cox, C. C. 469). 871. Senterflt v. S. (41 Tex. 186). 164, 168. Serjeant, Rex v. (Ryan & Moody, N. P. 353), 285. 296. Serva, Reg. v. (2 Car. & K. 53, 1 Cox, C. C. 292). 89, 520, 538. Sessions. Com. v. (169 Mass. 339), 420. Sevailles, Territory v. (1 New Mex. 119), 58. Seventeen Empty Barrels, U. S. v. (3 Dil. 385), 973. Seville v. S. (Ohio, 30 N. E. R. 631), 303. Seward, Rex v. (1 A. & E. 706), 285. Sewell, Reg. v. (8 Q. B. 161), 323. Seymour v. S. (51 Ala. 53). 509. Shaber, P. v. (33 Cal. 36). 254 Shad bolt. Rex v. (5 Car. & P. 504), 206, 838, 839. Shafer v. S. (18 Ind. 444), 60. Shaffer v. S. (82 Ind. 331), 430. Shaftesbury, Rex v. (8 How. St. Tr. 759), 987. Shanks v. S. (51 Miss. 464), 376. V. S. (35 Tex. Supp. 326), 460, 1065. Shannon v. P. (5 Mich. 71), 206, 218. , Rex V. (Jebb, 209), lli; 206, 213, 226. Sharp V. S. (6 Tex. Ap. 650), 115. ^ , S. V. (106 Mo. 106), 582. Sharpe, Reg. v. (8 Car. & P. 436), 460, 475. , Reg. V. (Dears. & B. 160, 7 Cox, C. C. 314), 957. , Rex V. (1 Moody, 135), 885. Sharpless. Com. v. (2 S.&B. 91), 58, 639, 631. ShatCuck, Com. v. (4 Cush. 141), 443, 444 Shaver, P. v. (107 Mich. 563), 253. Shaw's Case (1 Lewin, 280), 890, 893, 894 Shaw, Com. v. (4 Allen, 308), 592. , Com. V. (7 Met. 52), 384 386, 388. , P. T. (1 Caines, 135), 443. Ixxiv INDEX TO CASES CITED. Eeterences are to sections. Shaw, Eeg. v. fLeigh & C. 579, 10 Cox, C. C. 66;, 871. , Rex V. (Russ. & Ry. 526), 890, 893. V. S. (18 Ala. 547), 206, 558. V. S. (56 Ind. 188), 642. , S. V. (2 Dev. 198), 642. , a V. (3 Ire. 20), 844, 845. Shay V. P. (4 Parker, 0. C. 353), 520, 583. Shea, Com. v. (115 Mass. 103), 777, 820. V. Reg. (3 Cox, C. C. 141). 306, 212, 558. Sheares, Rex v. (27 How. St. Tr. 355), 987. Shearon, S. v. (12 Mon. 539), 558. Shed, Com. v. (1 Mass. 327), 415. Shedd, Com. v. (7 Cush. 514), 285, 291. Sheehan, Com. v. (105 Mass. 174), 642, 644. Sheen, Rex v. (3 Car. & P. 634), 1043. Sheers, Rex v. (4 Went. PL 94), 313. Shelton, Com. v. (99 Ky. 130), 643. , S. V. (90 Tenn. 539), 254. Shellard. Reg. v. (9 Car. & P. 377), 385, 943. Shelledy, S. v. (8 Iowa, 477), 520. Shelters, S. v. (51 Vt. 102), 460. Shepard, Com. v. (1 Allen, 575), 408, 411. , S. V. (10 Iowa, 126), 556. Shepherd, Rex v. (1 Leach, 539), 699, 717. V. S. (64 Ind. 43), 58, 520, 540. V. S. (43 Tex. 501). Ill, 854. Sheppard v. S. (43 Ala. 531), 583. : V. S. (1 Tex. Ap. 304), 489, 493. Sherban v. Com. (8 Watts, 313), 58, 395, 398. Sheriff v. James (1 Bing. 341), 173. , S. V. (1 Mill. 145), 318. Sherley, Rex v. (Trem. P. C. 178), 929. Sherlock, Reg. v. (Law R. 1 C. C. 30, 10 Cox, C. C. 170), 844, 845. Sherman, Com. v. (105 Mass. 169), 111, 583, 612. V. S. (17 Fla. 888). 206, 558. Sherrill. S. v. (81 N. C. 550). 993. Sherwin v. P. (100 N. Y. 351), 333. Sherwood v. Titman (5 Smith, Pa., 77), 294. , S. V. (75 Ind. 15), 138, 142. Shields, S. v. (8 Blackf. 151), 680, 687. Shinn v. S. (57 Ind. 144), 460. V. S. (64 Ind. 13), 933. V. S. (68 Ind. 423), 205. Shipley, Rex v. (4 Doug. 73, 21 How. St. Tr. 847), 619, 621. Sholes, Com. v. (13 Allen, 554), 138, 142. Shooter, S. v. (8 Rich. 72), 285, 300. Short, S. V. (54 Iowa, 393), 354. Shotwell V. S. (37 Mo. 359), 141. Shropshire v. S. (7 Eng. 190), 520. Shuler, P. v. (38 Cal. 490), 933. Siberry v. S. (149 Ind. 684), 520. Sides, S. V. (64 Mo. 383), 530. Sidney, Rex v. (9 How. St. Tr. 818), 987. , Rex V. (6 Went. PI. 391), 374. Sigmon, S. v. (70 N. C. 66), 939. Sikes V. S. (67 Ala. 77), 489, 504. V. S. (30 Ark. 496), 735. Silhoffer, S. v. (48 Iowa, 383), 643. Silk, S. V. (145 Mo. 240), 520. Sill V. Reg. (1 Ellis & B. 553, Dears. 133), 420. Silsbee, Com. v. (9 Mass. 417), 384, 385. Silversides. Reg. v. (3 Q. B. 406), 975. Simmons V. S. (12 Mo. 268), 997, 1001. , U. S. V. (96 U. S. 360), 973. Simms v. S. (2 Tex. Ap. 110), 254 . U. S. V. (1 Cranoh, C. C. 252), 489, 503. Simon v. S. (31 Tex. Crim R. 196), 564 Simonds, Com. v. (11 Gray. 306), 465. , Com. V. (14 Gray, 59), 460, 466. Simons, P. v. (1 Wheeler,' Crim. Cas. 339), 619. , S. V. (70 N. C. 336), 583. Simpson, Com. v. (9 Met. 138), 582. V. S. (5 Yerg. 356), 925. V. S. (Ill Ala. 6), 66. , S. V. (3 Hawks, 460), 699, 703. , S. V. (3 Hawk.s, 620). 372. , S. V. (73 N. C. 269), 699. 713. Sinclair's Case (3 Lewin, 49), 111, 206, 558. Sindercome, Rex v. (5 How. St. Tr. 841), 987. Skelley, Com. v. (10 Grav, 464), 777, 820. Skiff V. P. (2 Parker, C. C. 139), 420. Skofield, S. V. (86 Me. 149), 438. Skutt, Rex V. (1 Leach, 106), 885. Slack, Com. v. (19 Pick. 304), 958. Slaren, Ex parte, (3 Tex. Ap. 662), 136. Sleep, Reg. v. (8 Cox, C. C. 473), 975. Sloan, Com. v. (4 Cush. 53), 642. V. Hubbard (34 Ohio St. 583), 173. V. S. (43 Ind. 570), 305. , S. V. (55 Iowa, 317), 881. Sloanaker, S. v. (1 Houst Crim. 62), 196. Slocum, S. V. (8 Blackf. 315), 699. Slusser v. S. (71 Ind. 380), 305. Small, S. V. (31 Tex. 184), 484. Smalls, S. V. (11 S. C. 362). 247. Smallwood, S. v. (68 Mo. 192), 420. Smart, Com. v. (6 Gray, 15), 403. Smison, Reg. v. (1 Cox, C. C. 188), 750, 757. Smith, Com. v. (6 B. Monr. 21), 43, 82, 777, 794, 795. V. Com. (4 Smith, Pa., 209), 106, INDEX TO CASES CITED. Ixxv Eeferenoes are to sections. Smith, Com. v. (11 Allen, 343), 968. , Com. V. (6 Cush. 80), 777, 833. , Com. V. (1 Mass. 245), 583. , Com. V. (103 Mass. 444), 763, 770. , Com. V. (Ill Mass. 439), 583, 588. , Com. V. (116 Mass. 40), 403, 407. -, Com. V. (166 Mass. 870), 507. , Com. V. (103 Mass. 144), 777, 830. V. Kingsley (19 "Wend. 630), 1087. V. P. (35 111. 17), 285. 394. V. P. (47 N. Y. 803), 420, 423. V. P. (1 Parker, C. C. 817), 871. V. P. (86 Cal. 288 1, 351 V. P. (63 Vt. 201), 871. , P. V. (1 Parker, C. C. 329), 58, 354. , P. V. (5 Parker, C. C. 490), 430. , Reg. V. (3 Cox, C. C. 358), 460. , Reg. V. (3 Cox, C. C. 448), 580. , Reg. V. (6 Cox, C. C. 31), 481. . Reg. V. (6 Cox, C. C. 314), 430. , Reg. V. (14 Cox. C. C. 398), 306, 318, 750, 754. • . Rex V. (3 Car. & P. 449), 206, 750, 751. , Rex V. (4 Car. & P. 569), 180. . Rex V. (5 Car. & P. 107, 1 Moody, 314), 975. , Rex V. (30 How. St Tr. 1335), 247, 348. , Rex V. (2 Leach, 956, Russ. & Ry. 5), 837. , Rex V. (Trem. P. C. 268), 373. V. S. (55 Ala. 59), 582. V. S. (63 Ala. 55), 365. V. S. (60 Ga. 430), 582, 588. V. a (6 Gill, 485), 43, 777, 782, 785. V. S. (71 Ind. 250\ 365. V. S. (1 Kan. 365). 530. V. S. (22 Ohio St. 539), 777. V. S. (42 Tex. 464). 363. V. S. (5 Tex. Ap. 318), 997, 999. V. S. (9 Tex. Ap. 475), 306, 216. V. S. (10 Tex. Ap. 413), 415. V. S. (29 Fla. 408), 460. V. S. (36 Tex. Ap. 577), 79. , S. V. (8 Blackf. 489), 430. , S. V. (3 Hawks. 878), 58, 763, 765. , S. V. (8 Heisk. 465), 376. , S. V. (74 Ind. 557), 205. , S. V. (2 Ire. 127), 442. , S. V. (13 Kan. 374), 60, 68, 408, 409. , S. V. (64 Me. 438), 643, 657. , S. V. (65 Me. 357), 58, 530, 580. , S. V. (67 Me. 838), 58, 530, 543, 1078. , S. V. (34 Mo. 856), 395, 397. . S. V. (66 Mo. 93), 750, 757. , S. V. (75 N. C. 141), 373. , S. V. (20 N. H. 399), 080, 691. , S. V. (43, Tex. 655), 871. , S. V. (132 Ind. 178). 643. . S. V. (40 Kan. 631), 871. , S. V. (41 La. An. 791), 558. Smith, S. V. (137 Mo. 35), 963. , S. V. (61 Vt. 346), 438. , S. V. (19 Wash. 876), 910. , U. S. V. (3 Bond, 338), 973. Smitherman v. S. (68 Ala. 24), 582, 600. Smouse, S. v. (50 Iowa, 48), 70. Smythies, Reg. v. (4 Cox, C. C. 94, 1 Den. C. C. 498, 2 Car. & K. 878, 3 Moody, 186), 460, 475, 879. Snead, Rex v. (2 Show. 339), 273. Sneed v. P. (88 Mich. 348), 60, 68, 530, 543. . S. V. (84 N. C. 816), 680. Snell V. S. (50 Ga. 319), 403. , S. V. (9 R. L nH), 408. Snelling, Com. v. (15 Pick. 331), 619, 622. Snow, Com. v. (14 Gray, 20), 642, 655. , Com. V. (116 Masa 47), 188, 139, 143. , Rex V. (Trem. P. C. 59), 633, 940. V. S. (54 Ala. 188), 354. V. S. (6 Tex. Ap. 384), 583, 593. , S. V. (3 R. L 64), 643, 645. Snowden v. S. (17 Fla. 386), 680, 691. Snyder v. S. (59 Ind. 105), 58, 520, 583, 540. , S. V. (66 Ind. 303), 430. , S. V. (20 Kan. 806), 420. , S. V. (50 N. H. 150), 583. , S. V. (34 W. Va. 83). 395. Society for Useful Manuf., S. v. (13 Vroom, 504), 777, 828. Somerton, Rex v. (7 B. & C. 463), 583, 584. Somerville, Com. v. (1 Va. Cas. 164), 742. Sommers, S. v. (3 Vt. 156), 642. Sonnier, S. v. (38 La. Ann. 962), 47. Sorocold, Rex v. (Trem. P. C. 64), 633, 940. ' Sotherton, Rex v. (Trem. P. C. 155), 874 Soule, Com. v. (2 Met. 31), 699, 730. South Bend v. Martin (143 Ind. 30), 509. South, S. Y. (186 Mo. 678), 354. Southerton, Rex v. (6 East, 136), 977. Southworth, Rex v. (5 Conn. 835), 206. Sowle, Com. v. (9 Gray, 304), 699, 711. Spalding, U. S. v. (4 Cranch, C. C. 616), 285. Sparks, S. v. (60 Ind. 298), 443, 699, 727, 992. , S. V. (78 Ind. 166), 890, 895. Speer, Com. v. (3 Va. Cas. 6.5), 373, 276. Speers v. Com. (17 Grat. 570), 583. Speke, Rex v. (Trem. P. C. 3), 987. Spence, Reg. v. (1 Cox, C. C. 853), 520, 530. , Reg. V. (11 U. C. Q. B. 31), 1012, 1015. Spencer, Rex y. (Trem. P. C. 234), 779. Ixxvi INDEX TO CASES CITED. Beferences are to sections. Spencer v. S. (13 Ohio, 401), 354. , S. V. (45 La. Ann. 1), 871. Spiller, Rex v. (5 Car. & P. 333), 520, 529 , Rex V. (3 Show. 207), 633, 634. Spilling, Reg. v. (2 Moody & R 107), 530. 529. Spilman, Com. v. (124 Mass. 327), 460, 473. Spilsbury v. Mioklewaite (1 Taunt. 147), 319. Spirits, U. S. v. (4 Ben. 471), 973. Spragg, Rex v. (3 Bur. 993), 385, 300. Sprague, Com. v. (138 Mass. 75), 643, 644. . S. V. (4 R. I. 257), 278. Spratt, Com. v. (14 Fhila. 365), 777, 803. Springfield, Com. v. (7 Mass. 9), 1013, 1017. Sprinkle, S. v. (7 Humph. 36), 509. . S. V. (65 N. C. 463), 306, 312. SpurUeck, S. v. (44 Iowa, 667), 82, 777, 783, 784. Squire, Com. v. (1 Met 358), 180, 183. Squires, Com. v. (97 Mass. 59), 148, 904, 905. , P. V. (99 Cal. 327), 347. V. S. (59 Ind. 261), 993. , S. V. (UN. H. 371,254. Staaden v. P. (83 111. 433), 180, 185. Staats, U. S. v. (8 How., U. S.. 41), 867. Stabler v. Com. (14 Norris, Pa., 318), 558. Stafi'ord, Com. v. (12 Cush. 619), 520. Stahl, Com. v. (7 Allen, 804), 777, 805. Stains, Rex v. (Trem. P. C. 207), 1013, 1033. Staley. S. v. (3 Lea, 565), 642, 651. Stamey, S. v. (71 N. C. 303), 643, 654. Standifer, S. v. (5 Port. 533), 1043. Standish, P. v. (6 Parker, C. C. HI), 384, 386. Stanglein v. S. (17 Ohio St. 453), 881. Stanley, Rex v. (Russ. & Ry. 433), 890, 893. V. S (24 Ohio St. 166), 582, 608. , S. V. (33 Iowa, 526). 530, 540. , S. V. (34 Me. 555), 777. , S. V. (3 Mo. Ap. 963), 699. Stannard, Reg. v. (Leigh & C. 349, 9 Cox, C. C. 405), 777, 783. Stanton, S. v. (37 Conn. 431), 763. 771. , S. V. (1 Ire. 424), 460. Staples, P. V. (91 Cal. 33), 582. , S. V. (45 Me. 330), 643. Stapleton, Rex v. (8 How. St. Tr. 502), 987. Stapp, S. V. (39 Iowa, 551), 777, 830. Stark, P. V. (136 N. Y. 538 , 619. Starts V. S. (7 Baxter, 64), 696. Staton, S. V. (66 N. C. 640). 699, 716. V. U. S. (31 C. C. A. 531), 460. Staton, U. S. v. (3 Flip. 319). 973. Stead, Rex v. (8 T. R. 142), 1013, 1015w Stearns, Com. v. (3 Met. 343), 403, 407. , Com. V. (10 Met. 356), 341. , a V. (11 Fost., N. H., 106), 489, 507. Stears, Ter. v. (2 Mon. Ter. 334), 520. Stebbins, S. v. (133 Mo. 332), 403. Steedman v. S. (11 Ohio 82), 460. Steel, Reg. v. (3 Moody, 346, Car. & M. 337), 385, 391. Steele v. P. (45 111. 153), 1065. , S. V. (1 Yerg. 394), 871. Steeley, S. v. (65 Mo. 218), 530. Steels, Reg. v. (11 Cox, C. C. 5), 430. Steerman v. S. (10 Mo. 503), 80, 582, 608. Stegar v. S. (39 Ga. 583), 933. Stein, P. V. (1 Parker, C.X). 303), 916. Stephen v. Com. (3 Leigh, 759), 777, 810, 816. V. S. (11 Ga. 325), 904, 905. Stephens v. P. (4 Parker, C. C. 396), 530. 533, 1068, 1083. , Reg. v. (7 B. & S. 710). 1013, 1026. , S. V. (63 Ind. 542), 58, 148, 151, 153. , S. V. (32 Tex. 155), 582. Stephenson, Com. t. (3 Met., Ky., 236), 58, 247, 248. Sterne v. S. (30 Ala. 43 1, 509. Stetson, P. V. (4 Barb. 151). 430. Stevens v. Com. (6 Met 241), 916. V. P. (1 Hill, N. Y., 261), 94. , Rex V. (5 B. & C. 346), 871. , Rex V. (5 East, 244), 247. , S. V. (30 Iowa, 391), 285, 299. , S. V. (40 Me. 559), 58, 777, 782, 874 , S. V. (62 Ma 284), 582. Stevenson, Com. v. (127 Mass. 446), 420, 428. , Reg. V. (3 Fost. & F. 106), 763, 765. , Rex V. (19 How. St. Tr. 846), 530. V. S. (65 Ind. 409), 643, 649. , S. V. (52 Iowa, 701), 484. , S. V. (91 Me. 107), 403. , S. V. (68 Vt 529), 138. Steventon, P. v. (9 Cal. 273), 530. , Rex V. (3 East, 363), 313. Stewart v. Com. (4 S. & R. 194), 254. V. S. (34 Ind, 142), 460, 464 , S. V. (66 Ind. 555), 58, 1013, 1015. , S. V. (53 Iowa, 284), 138. , S. V. (7 W. Va. 731). 206, 743, 74& Stiles, S. V. (40 Iowa, 148), 680, 691. Still, Com. V. (83 Ky. 275), 871. Stillwell, S. V. (16 Kan. 34), 489. Stimpson, S. v. (4 Zab. 9), 403. Stinson, S. v. (17 Me. 154), 643, 655. , S. V. (134 Mo. 447), 933. INDEX TO OASES OITED. Ixxvii References are to sections. Stookdale's Case (3 Lewin, 230), 520, 526. Stockdale, Rex v. (33 How. St. Tr. 337), 619, 623. Stookley, Com. v. (10 Leigh, 678), 60, 68. 871, 876. Stookwell V. Silloway (113 Mass. 884), 482. V. S. (27 Ohio St. 568), 1078. , U. S. V. (4 Cranch, C. C. 671), 929. Stoddard, Com. v. (9 Allen, 280), 306, 218. Stodder, Com. v. (3 Cush. 562). 997. Stoever, Com. v. (1 S. & R. 480), 1069. Stofer V. S. (3 W. Va. 689), 871, 876. Stogsdale, S. v. (67 Mo. 630), 82, 489, 503. Stokes V. P. (58 N. Y. 164), 1038. , Reg. V. (1 Den. C. C. 307, 3 Car. & K. 536, 2 Cox, C. C. 498), 520. StoUenwerk v. S. (55 Ala. 142), 582, 593. Stoller, S. V. (38 Iowa, 821), 403, 411, Stonage, Rex v. (Jebb, 131), 737. Stone, Com. v. (4 Met. 43), 420. , P. V. (9 Wend. 181), 420, 428. , Rex V. (4 Car. & P. 379), 135. , Rex V. (35 How. St. Tr. 1155), 987. , Rex V. (Trem. P. C. 148). 874. , Rex V (Trem. P. C. 288), 1068, 1086, 1088, 1090. , Rex V. (6 Went. PL 857), 987. V. S. (68 Ala. 115), 254. , Ter. V. (2 Dak. 155), 777, 783, 785. Stoner v. S. (SO Ind. 89 1, 643. Stoops V. Com. (7 S. & R 491), 354 Storey v. Robinson (6 T. R. 188), 173. Storrs V. S. (3 Mo. 9), 643, 650. Story, Rex v. (Russ. & Ry. 81), 430, 436. Stoughton, Rex v. (3 Saund. 157), 1013, 1017. V. S. (5 Wis. 391), 1012, 1028. Stout V. Com. (11 S. & R. 177), 206, 904, 910. — V. S. (78 Ind. 493), 583. Stow, Com. V. (1 Mass. 54), 460. V. P. (35111.81). 483. Stowell, Com. v. (9 Met. 569), 643. , Com. V. (9 Met. 573), 489, 503. Stowers v. Com. (13 Bush, 343), 460, 461, 464. Strain, Com. v. (10 Met. 531), 430. Stratton v. Com. (10 Met. 317), 777, 825. , Rex V. (31 How. St Tr. 1045), 60, 942. V. S. (45 Ind. 468), 699, 724. Strauder, S. v. (11 W. Va. 745), 1078. Strauss, S. v. (49 Md. 288), 643. 654. Straw, S. V. (43 N. H. 393), 385, 291. Strawhern v. S. (37 Miss. 432), 489, 490. Strawn v. S. (14 Ark. 549), 556. Stribbling v. S. (56 Ind. 79), 992. Strickland v. S. (7 Tex. Ap. 34), 20a Stringer v. S. (13 Tex. Ap. 520), 420, 430. Stringfleld v. S. (35 Ga. 474), 997. Strode, Rex v. (Trem. P. C. 186), 939. Strong V. S. (86 Ind. 308), 430. Stroup V. Com. (1 Rob., Va., 754), 96. Strowde, S. v. (99 Iowa, 16), 365. Stubblefleld, S. v. (33 Mo. 568), 364, 365, 371. Studstill V. S. (7 Ga. 2). 520, 589. Sturdevant, P. v. (23 Wend. 418), 672, 677. Sturdivant, S. v. (21 Me. 9), 777, 1012, 1039. Sturge, Reg. v. (3 Ellis & B. 734), 1013. Stutson, S. V. (Kirby. 52), 333. Stuttsman v. S. (57 Ind. 119). 439. Sugland, Com. v. (4 Gray, 7), 904, 905. Sullivan, Com. v. (5 Allen, 511), 83, 777, 1005. , Com. V. (6 Gray, 477), 904 908. V. S. (36 Ark. 64), 278. V. S. (44 Wis. 595), 206, 212, 558. , S. V. (43 Kan. 563), 403. SuUivant v. S. (8 Eng. 400), 111, 206, 904, 910. Sully, P. V. (5 Parker, C. C. 143), 80, 430, 438. Summers, Ex parte (5 Ire. 149), 331. Summers, P. v. (115 Mich. 537), 285, 430. V. S. (9 Tex. Ap. 396), 353, 354, 355 Sumner, P. v. (1 Mich., N. P. 314), 430. : V. S. (74 Ind. 53), 489. 503. . S. V. (10 Vt. 587), 420. Sumpter V. S. (11 Fla. 247), 558. Sunley, Reg. v. (Bell, C. C. 145, 8 Cox, C. C. 179), 975. Sundheimer, S. v. (93 Mo. 311), 530. SutolifEe V. S. (18 Ohio, 469), 520. Sutton, Rex v. (4 M. & S. 583), 619, 631. , Rex V. (1 Saund. 269d), 60, 953. , S. V. (116 Ind. 537), 569. , S. V. (147 Ind. 158), 871. Surles, Com. v. (165 Mass. 59), 138. Swaggerty v. S. (9 Yerg. 838), 916. Swain, Com. v. (IfiO Mass. 354), 506. Swan, Reg. v. (4 Cox, C. C. 108), 333. Swancot v. S. (4 Tex. Ap. 105), 148. Swartzbough v. P. (85 III 457), 699, 711, 717. Sweeney, Com. v. (181 Mass. 579), 777, 810, 813. Sweenie, Reg. v. (8 Cox, C. C. 333), 904. Sweers, Respublica v. (1 Dall. 41), 460, 474 Ixxviii INDEX TO CASES CITED. References are to sections. Sweetman, P. v. (3 Parker, C. C. 358), 58, 871. 876. Swendsen. Reg. v. (14 How. St. Tr. 559), 118. 944. Swenson, P. v. (49 Cal. 388), 206, 558. Swink, a V. (4 Dev. & Bat. 358), 364, 365, 367. Swinney, Com. v. (1 Va. Cas. 146), 420. Switzer, S. v. (63 Vt. 604), 420. Swope, S. V. (20 Ind. 106). 263, 264 Sydserff v. Reg. (11 Q. B. 245), 291. Sykes v. Dixon (9 A. & E. 693), 303. , S. V. (28 Conn. 225). 672, 677. Sylvester, Com. v. (Brightly, 331), 672, 677. Symonds, Com. v. (9 Mass. 163), 365. , S. V. (36 Me. 128), 360, 467. , S. V. (57 Me. 148), 384 Szudurskie, Rex v. (1 Moody, 429), 460, 468. T., A. A. & N. M. R. Co. v. Penn. Co. (54 Fed. R. 746), 322. T. H., Rex V. (Trem. P. C. 1), 987. T. T., Rex V. (Trem. P. C. 99). 738. Tabart v. Tipper (1 Camp. 350), 619. Tabell, S. v. (10 Wash. 498), 438. Taflfs, Reg. v. (4 Cox, C. C. 169), 403, 411. Taggart, P. v. (73 Cal. 81). 254 Talbert v. S. (87 Ala. 27). 506. Tally, S. V. (74 N. C. 322), 148, 154 Tancoek, Reg. v. (13 Cox, C. C. 217), 104.3. Tandy, Rex v. (2 Leach, 833), 337, 339. Tanner, S. v. (50 Kan. 365), 642. Tannet, Rex v. (Russ. & Ry. 351), 420, 426. Tappan, S. v. (15 N. H. 91), 1003. Tarbox, Com. v. (1 Cush. 66), 4 619, 626. Tasborough, Rex v. (Trem. P. C. 169), 968. Tatlock, Reg. v. (3 Q. B. D. 157, 13 Cox. C. C. 328), 403, 583. Tatum V. S. (63 Ala. 147),, 643, 653. Taunt, S. v. (16 Minn. 109), 583, 603. Taylor v. Com. (20 Grat. 825), 904 905. . Com. V. (5 Binn. 277), 87, 443, 446, 856. , Com. V. (14 Gray, 36), 777, 782, 820, 831. , Com. V. (113 Mass. 1), 75. 642, 644 V. Moran (4 Met., Kv-, 127), 93. V. P. (6 Parker, C. "C. 347), 777, 828, 831. , P. V. (3 Denio. 91), 673. 674 , Reg. V. (9 Car. & P. 672), 520, 530. , Reg. V. (6 Cox. C. C. 58), 871. , Reg. V. (Law R. 1 C. C. 194 H Cox, C. C. 361), 306, 314 Taylor. Reg v. (36 U. C. Q. B. 183), 643. , Rex V. (3 B. & C. 502), 777, 805, 1043. , Rex V. (3 B. & P. 596, Russ. & Ey. 63), 403. , Rex V. (1 Camp. 404). 871, 872. , Rex V. (1 Leach, 360), 115, 520, 539. , Rex V. (Trem. P. C. 226), 241. 343. , Rex V. (4 Went. PI. 45), 530, 525; V. Smetten (11 Q. B. D. 307), 672, 675. V. S. (48 Ala. 180), 1064 V. & (59 Ala. 19),' 1010. V. S. (4 Ga. 14), 619. V. S. (6 Humph. 285), 699, 709, 711. V. S. (35 Wis. 298), 777, 828. 830. , S. V. (46 La. Ann. 1269), 558. , S. V. (Ill N. C. 680), 490. Teissedre, S. v. (30 Kan. 476), 777, 820. Temple v. S. (6 Baxter, 496), 443. T. S. (9 Baxter. 109), 442. 990. Templeman, Reg. v. (1 Salk. 55), 1051. Tenney, Com. v. (97 Mass. 50), 403, 411. Tenoroi v. Ter. (1 New Mex. 379), 530. Terrel, U. S. v. (Hemp. 411), 933. Terry, Com. v. (114 Mass. 363), 871. , In re (138 U. S. 289), 318. , S. V. (4 Dev. & Bat. 185), 489. , S. V. (106 Mo. 209), 904 Tervin v. S. (37 Fla. 396), 1038. Thaoher, Com. v. (97 Mass. 583), 672, 678. Thallman, Reg. v. (Leigh & C. 326, 9 Cox, C. C. 388), 777. 803. Thanet, Rex v. (37 Hovr. St. Tr. 823), 929. Thayer. Com. v. (8 Met. 533), 643. Thistlewood, Rex v. (33 How. St. Tr. 681), 987. Thomas v. Com. (2 Rob., Va., 795), 871, 876. , Com. V. (10 Gray, 483), 460, 466. , S. V. (99 Mo. 235), 520. , Reg. V. (11 Cox, C. C. 535), 334 , Reg. V. (Law R 2 C. C. 141, 13 Cox, C. C. 52), 96, 337. , Reg V. (Leigli & C. 313, 9 Cox, C. C. 376), 582. . Rex V. (7 Car. & P. 851), 460, 470. , Rex V. (2 Leach, 634), 885. , Rex V. (3 Leach, 877), 460, 470. V. S. (55 Ala, 360), 1007. V. S. (41 Tex. 27). 180. , S. V. (47 Conn. 546), 777, 820. , S. V. (50 Ind. 292), 83, 489, 494 499. , S. V. (39 La. An. 601), 206. 558. , S. V. (30 La. An. 600), 583. , S. V. (3 McCord, 527), 583. INDEX TO CASES CITED. Ixxix Eeferences are to sections. Thomas, S. v. (13 W. Va. 848), 643. , S. V. (99 Mo. 335), 530. , U. S. V. (3 Abb., U. S., 114), 972. , U. S. V. (4 Ben. 370), 973. , U. S. V. (69 Fed. E. 588), 403. Thompkins v. S. (4 Tex. Ap. 161), 777, 783. Thompson v. Com. (88 Va. 45), 70. , Com. V. (3 Allen, 507), 177. . Com. V. (99 Mass. 444), 150. , Com. V, (108 Mass. 461), 138, 143. , Com. V. (116 Mass. 346), 306, 904, 910. , P. V. (37 Mich. 118), 106, 180, 190, 195. , Reg. V.' (5 Cox, C. C. 166, 16 Q. B. 833), 385, 313. , Reg. V. (11 Cox, C. C. 363), 354, 361. : , Rex V. (8 How. St Tr. 1359), 619. , Rex V. (3 Leach, 910), 460, 471. , Rex V. (4 Went. PI. 96), 300. V. S. (35 Ala. 41), 306, 310. V. S. (49 Ala. 16), 460, 461. V. a (36 Ark. 333), 520. — V. S. (37 Ark. 408), 643. V. S. (36 Tex. 326), 520. V. S. (1 Tex. Ap. 56), 43, 777, 783. V. S. (3 Tex. Ap. 82 1, 777, 783, 784. V. S. (99 Ala. 173), 506. , S. V. (19 Iowa, 399), 460. , S. V. (44 Iowa, 399), 63, 643, 643, 645. , S. V. (3 Kan. 433), 642, 647. . a V. (23 Kan. 338), 354. , S. V. (33 La. An. 796), 403. , S. V. (30 Mo. 470). 306, 743, 748. , S. V. (40 Tex. 515), 167. , S. V. (41 Tex. 523), 206, 313. , S. V. (137 Mo. 630). 583. Thorns, P. V. (3 Parker, C. C. 256), 58, 460, 467, 1086. Thomson v. P. (24 III. 60), 420. Thon V. Com. (31 Grat. 887), 663. Thornburg. S. v. (6 Ire. 79), 460, 471. Thorne, S. v. (81 N. C. 555), 180. Thornton, Com. v. (113 Mass. 457), 360. , Reg. V. (3 Cox, C. C. 493), 323. Thorp, Rex v. (5 Mod. 218), 285, 396. Thrasher, S. v. (79 Me. 17), 436. Throckmorton, S. v. (53 Ind. 354), 305. Thurlow, Com. v. (24 Pick. 374), 642. Thurston, P. v. (3 Parker, C. C. 49), 520, 1082. , Rex V. (Trem. P. C. 7), 520. Tibbetts, Com. v. (2 Mass. 536), 285, 300. , S. V. (86 Me. 189), 436. Tiddeman, Reg. v. (4 Cox, C. C. 387), 977 979. Tidw'ell, a V. (5 Strob. 1), 944 Tierney, Reg. v. (29 U. C. Q. B. 181), 341. , Rex V. (Russ. & Ry. 74), 987. Tilden, U. a v. (21 Law R., Boston, 598), 888. Tilghman, S. v. (11 Ire. 513), 520. Tilley, Rex v. (2 Leach, 662), 890, 893. Tilton, Com. v. (8 Met. 232), 489, 502, 777, 805, 809, 1051. Timmins, Reg. v. (Bell, 376, 8 Cox, C. C. 401), 944. Timmons, a v. (58 Ind. 98), 430. Tindall, Rex v. (6 A. & E. 143), 777, 1013, 1039. V. a (117 Ala. 693), 992. Tingler, a v. (32 W. Va. 546), 460. Tinsdale, P. y. (74 Mo. 72), 642. Tite, Reg. v. (Leigh & C. 39, 8 Cox, C. C. 458), 403. Titus, a V. (98 N. C. 705), 354. Y. a (49 N. J. L. 36), 538. Tivnon, Com. v. (8 Gray, 375), 354, 361, 1078. Tobin, Com. v. (108 Mass. 426), 206, 838, 839. Todd V. a (31 Ind. 514), 420. Tolever, a v. (5 Ire. 452), 58, 442, 445. Tom, a V. (2 Dev. 569), 285, 287. , a V. (2 Jones, N. C, 414), 306, 904, 910. Tomkins v. a (33 Tex. 228), 420, 430. Tomlin, a v. (5 Dutcher, 13), 420. Tomlinson v. P. (5 Parker, C. C. 313), 460, 467. , P. V. (35 Cal. 503), 460. , a V. <77 N. C. 528), 699, 730. Tompkins, P. v. (1 Parker, C. C. 224), 1082. Tompson, Com. v. (2 Cush. 551), 148, 149. Toney v. a (60 Ala. 97), 777, 782, 1010. Tonkinson, Reg. v. (14 Cox, C. C. 603), 582, 610. Toole, Reg. v. (11 Cox, 0. C. 7.5), 582. Topham, Rex v. (4 T. R 126), 619, 620, 635. Torney v. a (13 Mo. 455), 1068. Toshack, Reg. v. (1 Den. O. C. 493, 4 Cox, C. C. 38). 460, 475. Tower, Com. v. (8 Met. 527), 642, 655. Towle, Rex v. (Russ. & Ry. 314), 206, Townley, Rex v. (18 How. St. Tr. 329), 53, 987. Townsend v. P. (3 Scam. 326), 58, 460, 467. ■ , P. V. (3 Hill, N. Y., 479), 777. Townsey, P. v. (5 Denio, 70), 643. Tracey, S. v. (13 R. L 216), 43, 82, 777, 820, 821. Tracy, Com. v. (5 Met. 536), 929. . Rex V. (Russ. & Ry. 452), 699, 719. Ixxx INDEX TO CASES CITED. References are to sections. Tracy, S. v. (73 Md. 447), 79. Train, Reg. v. (2 B. & S. 640), 1012, 1015. Trammel!, S. v. (2 Ire. 379), 285. V. S. (Ill Ala. 77), 838. Travers, U. S. v. (3 Wheeler, Crim. Cas. 490), 520. Travis y. S. (83 Ga. 372), 460. Treadaway v. S. (37 Ark. 443), 420. Trenohard, Rex v. (Trem. P. C. 40), 942. Trequier, P. v. (1 Wheeler, Crim. Cas. 142), 285, 308. Trevenner.Reg. v. (2 Moody & R. 471), 582, 596. Tritto, S. V. (48 Ark. 66), 564. Trot, S. V. (36 Mo. Ap. 29), 50a Trotter, Rex v. (Trem. P. C. 146), 875. Tryer, Respublioa v. (3 Yeates, 451), 232 Tucker. Reg. v. (2 Q. B. D. 417, 13 Cox, C. C. 600), 997, 1000. , Rex V. (2 Car. & P. 500), 871. , Rex V. (1 Moody, 134), 979. V. S. (6 Tex. Ap. 251), 206, 216. Tuell, S. V. (6 Blackf. 344), 838, 840. Tuley, a V. (20 Mo. 432), 1013. 1019. Tuller y. S. (8 Tex. Ap. 501), 180. , S. V. (84 Conn. 280), 583. 610. Tully V. Com. (11 Bush, 154), 890, 893. V. Com. (13 Bush, 143), 890, 893. V. Com. (4 Met. 357), 253, 254 V. P. (67 N. Y. 15), 742, 744 , Reg. V. (9 Car. & P. 337), 430. , U. S. V. (1 Gallis. 247), 879, 1075. Tumey, S. v. (81 Ind. 559). 403. Turbeville v. S. (37 Tex. Crim. R 145), 491. Turman v. S. (4 Tex. Ap. .586), 699, 717. Turner's Case (1 Lewin, 177), 520. Turner v. Com. (5 Norris, Pa.. 54), 54, 58, 520, 543. , Com. V. (3 Met. 19), 569, 570. V. P. (33 Mich. 363), 904 905. , P. V. (1 Cal. 188), 321. , P. V. (113 Cal. 378), 460. , P. V. (123 Cal. 679), 871. , Reg. V. (3 Car. & K. 732), 871, 875. , Reg. V. (12 Cox, C. C. 313, 4 Eng. R. 561), 384, 387. , Reg. V. (3 Moody, 43), 336. , Rex V. (6 How. St. Tr. 565), 87, 353 254 , Rex V. (Trem. P. C. 83), 385, 300. V. a (61 Ark. 359), 520. , a V. (106 Mo. 273), 354 Turnpike, a v. (1 Harrison, 222), 1013, 1017. Turns v. Com. (6 Met. 224), 520, 1068, 1090. Turweston, Reg. v. (16 Q. B. 109, 4 Cox, C. C. 349), 1013, 1017. Tutchin, Rex v. (14 How. St. Tr. 1095), 619. Tutt V. a (63 Mo. 595), 254, 257. Twitchell, Com. v. (4 Cush. 74), 997, 1000. Twombly, Com. v. (Thacher, Crim. Cas. 333), 939. Tye, Rex v. (Russ. & Ry. 345), 530. Tyrie, Reg. v. (11 Cox, C. C. 241), 403, 411. , Rex V. (21 How. St. Tr. 815), 987. Tyrringham's Case (4 Co. 36a), 173. U. Uhl V. Com. (6 Grat 706), 111, 180, 194 Ullman, S. v. (5 Minn. 13), 977. Ulmer v. S. (14 Ind. 52), 88, 583. Umphrey v. S. (63 Ind. 333), 582. Underwood. P. v. (16 Wend. 546), 483, 483. , Terr. v. (8 Mon. 131). 430. United Kingdom Elec. Tel., Reg. v. (9 Cox, C. C. 137), 1012. Upohurch, S. v. (72 N. C. 146), 973. Updegraff v. Com. (6 S. & R 5), 438. Updegraph v. Com. (11 S. & R. 394), 243. Uptou-on-Severn, Rex v. (6 Car. & P. 133), 1012, 1017. Vaile, Reg. v. (6 Cox, C. C. 470), 384 387. Van Alstine. P. t. (57 Mich. 69), 460. , P. V. (57 Miss. 69), 79. Van Auken, S. v. (98 Iowa, 674), 460. Vance v. S. (65 Ind. 460), 904 905. Vandercomb, Rex v. (3 Leach, 708, 1 Ben. & H. Lead. Cas. 516), 354 1043,. 1053, 1055. Vanderpool, P. v. (1 Mich., N. P., 73), 1065. Vanderwood v. a (50 Ind. 395), 648, 650. Vandimark, S. v. (35 Ark. 396\ 430. Van Doran, S. v. (109 N. C. 864), 79. Van Etten v. Hurst (6 Hill, N. Y, 311), 93. Van Gaasbeck, P. v. (9 Abb. Pr., N. S., 328). 254 Van Home v. S. (5 Pike, 349), 460, 461. Van Houten, S. v. (37 Mo. 357), 138, 141. Van Keuren, P. v. (5 Parker, C. C. 66), 460, 467, 1043. Van Leuben, U. S. v. (62 Fed. R. 62), 867. Vann, Reg. v. (2 Den. C. C. 325, 5 Cox, C. C. 379), 955. INDEX TO OASES CITED. Ixxxi Eeferenoes are to sections. Vantioy v. S. (64 Ind. 447), 643. Van Santvoord, P. v. (9 Cow. 655), 1083. Van Sickle, Com. t. (Brightly, 69), 777, 810, 813. , S. V. (57 Mo. Ap. 611), 443. Van Swartow v. Com. (13 Harris, Pa., 131), 648. 651 Vantandillo. Rex v. (4 M. & S. 73), 777, 810, 814. Van Tassell, S. v. (103 Iowa, 6), 533. Van Vaohier v. MoKillip (7 Blackf. 578), 394. Van Zandt v. P. (3 Parker, 0. C. 168), 648, 653. , S. V. (71 Mo. 541), 306, 558. Varney, Com. v. (10 Cush. 403), 619. Vaspor V. Edwards (13 Mod. 658), 172. Vasser v. S. (82 Ala. 586), 1068. Vaughan v. Com. (17 Grat. 576), 854 Vaughn v. S. (3 Coldw. 103), 854, 1007. Vaux's Case (4 Co. 44a), 530, 533. Vavasour, Rex v. (Trem. P. C. 79), 335, 633, 634. Vawter, S. v. (7 Blaokf. 593). 138, 141. Veatch V. S. (56 Ind. 584), 520. Venturio v. S. (37 Tex. Crim. R. 658), 438. Vermont Central R. Co., S. v. (37 Vt. 103), 1013. 1015. , a V. (38 Vt. 583), 1013, 1033. Verones, Reg. v. (1 Q. B. 360), 272. Verrill, S. v. (54 Me. 408l, 530. Vest, S. V. (31 W. Va. 796), 583.' Vialpando, Ter. v. (8 N. M. 311), 530. Vice, P. V. (31 Cal. 344), 933. Vickery, S. v. (19 Tex. 336), 480. Vierra, P. v. (53 Cal. 451), 306, 213. Vincent, Com. v. (108 Mass. 441), 489. V. P. (5 Parker, C. C. 88, 15 Abb. Pr. 334), 94, 460, 475. , Reg. V. (9 Car. & P. 91), 385. 943. , Reg. V. (9 Car. & P. 375), 385, 943. Vint, Rex v. (37 How. St. Tr. 627), 619, 637. Vipont, Rex v. (3 Bur. 1163), 385, 308. Virrier, Reg. v. (13 A. & E. 317), 871. Voght V. S. (145 Ind. 13), 558. Voke. Rex v. (Russ. & Ry. 531), 306, 558. Volmer, S. v. (6 Kan. 379), 95, 643. Von Buden v. S. (96 Wis. 671), 365. Voorhis, S. v. (53 N. J. L. 351), 871. Vorback, S. v. (66 Mo. 168), 430. Vorey, S. v. (41 Minn. 134), 904. Vo.shall, S. V. (4 Ind. 589). 939. Vowels, S. V. (4 Oreg. 334). 743. Voysey, Rex v. (Trem. P. C. 338), 848. w. W. M., Rex V. (Trem. P. O. 180). 939. Waddell v. Com. (84 Ky. 276), 503. Waddington, Rex v. (1 East, 143), 1079. Wade, Com. v. (1 Dall. 337), 403. . Com. V. (17 Pick. 395), 180. Waggoner v. S. (35 Tex. Crim. R. 199), 564. , S. V. (53 Ind. 481), 375. Wagner v. S. (63 Ind. 350), 395, 396. , S. V. (118 Mo. 636). 58. Wagstatf, Rex v. (Russ. & Ry. 398), 977. Wait, Com. v. (131 Mass. 417), 438. Waite, S. v. (101 Iowa, 377), 977. Wakefield's Case (3 Lewin, 1), 385, 296. Wakefield, Rex v. (27 How. St. Tr. 679). 619, 631. , S. V. (9 Mo. Ap. 326), 871. Wakeman, Rex v. (Trem. P. C. 179), 848. Walbridge, P. v. (6 Cow. 512), 680, 691. , P. Y. (133 Cal. 373), 933. Walcot, Rex v. (9 How. St. Tr. 519), 987, 1086. Walden, Com. v. (8 Cush. 558), 699, 711. Walker v. Com. (38 Grat. 969), 254. , Com. V. (108 Mass. 309), 285, 390. , Com. V. (163 Mass. 336), 94. V. Cronin (107 Mass. 555), 303 . V. Play (33 Ark. 103), 93. V. Reg. (8 Ellis & B. 439). 871. , Reg. V. (2 Moody & R. 446), 1043. , Rex V. (23 How. St. Tr. 1055), 285, 312, 942. , Rex V. (Trem. P. C. 361), 691. V. S. (49 Ala. 329), 699. — V. S. (61 Ala. 30), 180. V. S. (35 Ark. 386). 58, 263. V. S. (5 Ga. 491), 148, 159. V. S. (23 Ind. 61), 60, 582. — - V. S. (117 Ala. 43), 403. V. S. (34 Fla. 167), 530. , S. V. (87 N. C. 541), 58, 600, 993. , S. V. (40 Tex. 485), 306, 213, 558. Wall V. S. (33 Ind. 150), 305. , S. V. (39 Mo. 583), 983. Wallace, Com. v. (16 Gray, 321), 285, 390. , Com. V. (108 Mass. 13), 484, 485. V. P. (27 111. 45), 460, 477. , P. V. (9 Cal. 30), 520. , Reg. V. (2 Moody, 200, Car. & M. 200), 699, 721. V. S. (3 Lea, 29), 420. V. S. (10 Tex. Ap. 355), 530. V. S. (13 Tex. Ap. 479), 489, 503. Walls V. S. (33 Ark. 565), 881. , S. V. (54 Ind. 407), 871. , S. V. (54 Ind. 561), 347. Walpole V. S. (9 Baxter. 370), 993. Walsh. Rex v. (1 A. & E. 481). 975. , Rex V. (3 Leach, 1054, Russ. & Ry. 315), 583, 603. , U. a V. (5 DiL 58), 385, 313. Ixxxii INDEX TO CASES CITED. Eeferenoes are to sections. Walter, P. v. (1 Idaho Ter., N. S,, 386), 520. ■Walters, P. v. (1 Idaho Ter., N. S., 371), 520. ■ , Rex V. (Car. & M. 164), 378. , Rex V. (5 Car. & P. 138, note), 238. , S. V. (64 Ind. 236), 699, 730. Walton, Com. v. (U Allen, 238), 83, 777, 820. , Regr. V. (Leigh & C. 388, 9 Cox, C. C. 268), 977, 980. V. S. (13 Tex. Ap. 117), 1010. V. S. (6 Yerg. 377), 460. War, P. V. (20 CaL 117), 58, 306, 313, 214. Warburton, Reg. v. (Law R. 1 C. C. 874), 285, 391. Ward, Com. v. (1 Mass. 473), 285, 290. V. P. (33 111. Ap. 570). 503. , P. V. (110 Cal. 369), 346. , Reg. V. (1 Cox, C. C. 101), 430. , Reg. V. (3 Cox, C. C. 279), 871. , Rex V. (4 A. & E. 384), 1012, 1036. . Rex V. (2 Ld. Raym. 1461, 2 Stra. 747), 95, 460. V. S. (48 Ala. 161), 583, 606. V. S. (50 Ala. 120), 254. V. S. (1 Humph. 253), 1078. , S. V. (7 Baxter, 76), 460. , S. V. (57 Ind. 537), 489, 504. , a V. (64 Me. 545), 1038. , S. V. (6 N. H. 539), 460, 466. • , S. T. (9 Tex. 370), 489, 493. Warden, Com. v. (138 Mass. 53), 777, 802. , U. S. V. (49 Fed. R. 914), 838. Warden, Com. v. (11 Met. 406), 871, 876. V. S. (24 Ohio St. 143), 520. Ware v. S. (2 Tex. Ap. 547), 582, 1079. Warman, Reg. v. (1 Den. C. C. 183, 3 Car. & K. 195), 520. Warner v. S. (51 Ga. 426), 777, 820. , S. V. (74 Mo. 83), 904, 905. Warren, Com. v. (6 Mass. 72), 373. V. S. (18 Ark. 195), 489, 506. V. S. (94 Ala. 79), 373. , S. V. (109 Mo. 480), 79. Warrock v. S. (9 Fla. 404), 306, 556, 558. Warshaner, Rex v. (1 Moody, 466), 460, AT'Q Washburn, Com. v. (138 Mass. 431), 177. — V. P. (10 Mioh. 373), 530, 1084. Washington v. S. (41 Tex. 583), 430. , S. V. (1 Bay, 130), 460. , S. V. (3 Murph. 100), 904. 905. , a V. (48 La. Ann. 1361), 558. Waterford, etc. Turnpike v. P. (9 Barb. 161), 1012, 1017. Waterman, Com. v. (133 Mass. 43), 385 397 V. P. (67 IlL 91), 460, 475. Waters, Com. v. (11 Gray, 81), 90, 643, 646. , Reg. V. (1 Den. C. C. 356, 3 Car. & K. 864, 3 Cox, C. C. 800), 218, 530, 536. , a V. (57 Kan. 703), 830. Watkins. Rex v. (3 Moody, 317, Car. & M. 364), 354. , a V. (37 Iowa, 415), 520. , U. a V. (3 Cranoh, C. C. 441), 272. Watkinson, Reg. v. (13 Cox, C. C. 271, 4 Eng. R 547), 234. Watson V. Musiok (2 Mo. 39), 93. , Reg. V. (3 Cox, C. C. 376), 777, 802. , Reg. V. (Dears. & B. 348, 7 Cox, C. C. 364), 420. , Rex V. (32 How. St. Tr. 2), 987. , Rex V. (Russ. & Ry. 468), 890, 898. V. a (55 Ala. 158), 643, 653. V. a (63 Ala. 19), 993. V. a (39 Ark. 299), 347. V. a (3 Ind. 123), 561. V. a (5 Tex. Ap. 11), 968. V. a (9 Tex. Ap. 337), 111, 138, 141. V. a (13 Tex. Ap. 76), 881, 883. , a V. (65 Mo. 115), 460, 470, 479. , a V. (103 Iowa, 651), 354. Watt V. Ligertwood (Law R. 2 H. L. So. 361), 319. Wattles V. P. (13 Mich. 446). 680, 690. Watts, Rex v. (1 B. & Ad. 166), 973. Waully, Rex v. (1 Moody, 168), 881. Waverton, Reg. v. (17 Q. B. 563, 3 Den. C. C. 340, 5 Cox, C. C. 400), 1013, 1017. Way, In re (41 Mioh. 299), 1010. , a V. (5 Neb. 383). 83, ■ , av. (6Vt. 811), 148. Wayman v. Com. (14 Bush. 466), 848. Wayraell v. Reed (5 T. R. 599\ 973. Wead, Rex v. (4 Went. PI. 59), 192. Weatherby, S. v. (48 Me. 258), 148. Weatherhead, Com. v. (110 Mass. 175), 439. Weathers v. S. (3 Blackf. 278), 871. Weaver, P. v. (47 Cal. 106), 520. Webb's Case, (3 Lewin. 196), 520, 539. Webb V. Knight (3 Q. B. D. 580), 763, 771. , Reg. V. (1 Den. C. C. 338, 3 Car. & K 933, 3 Cox, C. C. 188), 17, 777, 802. , Rex V. (1 Moody & R 405), 530, 529 533 V. S. (9 Tex. Ap. 490), 1064. , a V. (26 Iowa, 363', 430. , a V. (41 Tex. 67), 871. Weber v. Fickey (53 Md. 500), 93. INDEX TO CASES CITED. Ixxxiii Beferences are to sections. "Webster v. Com. (5 Cush. 886), 1087. , Com. V. (0 Cush. 295), 20, 520. V. P. (93 N. Y. 433), 430, 435. , Reg. V. (Bell, C. C. 154, 8 Cox, C. C. 187), 871, 875. , Reg. V. (9 L. C. 196), 904. V. a (8 Blackf. 400), 489, 497. V. S. (9 Tex. Ap. 75), 254. , S. V. (30 Ark. 166), 939. , 8. V. (5 Halst. 293), 643. , S. V. (77 Mo. 566). 558. — , S. V. (39 N. H. 96), 306. 838. Wedge V. S. (7 Lea, 687), 583. V. S. (13 Md. 333), 583. , a V. (34 Minn. 150), 680, 688. Weed V. P. (31 N. Y. 465), 1068. V. a (55 Ala. 13), 642, 653. Weekly, a v. (39 Ind. 206), 925. Weeks v. a (31 Miss. 490), 1068. Wegener, Rex v. (3 Stark. 345), 630. Wein V. a (14 Mo. 135), 583. Weinzorpflin v. a (7 Blackf. 186), 904, 905, 906. Weist V. P. (39 111. 507), 643, 651. Weithoff, P. V. (100 Mich. 393), 503. Welch, a V. (88 Ind. 308), 777. , a V. (31 Minn. 23), 384, 385. , a V. (28 Mo. 600), 973, 974. , a V. (73 Mo. 284), 583. — , a V. (37 Wis. 196), 838, 840. Weldon, Rex v. (26 How. St. Tr. 226), 987. • , Rexv. (4 Went. PL 33), 474. Welham, Reg. v. (1 Cox, C. C. 192), 106, 583, 611. Wells V. Com. (12 Gray, 326), 777, 783, 784. , a V. (31 Conn. 310), 306, 904, 910, 911. Welman. Reg. v. (Dears. 188, 6 Cox, C. C. 153), 430. Welsh, Com. v. (1 Allen, 1), 777, 830. , Com. V. (7 Grav, 334), 900. , a V. (3 Hawks, 404), 111, 460, 464, 479. Wentworth, Com. v. (Brightly, 318), 90, 1013, 1015. ■ , Com. V. (15 Mass. 188), 439. , a V. (37 N. H. 196), 1013, 1021. Wenz V. S. (1 Tex. Ap. 36), 583. Werfel V. Com. (5 Binn. 65), 1012. 1026. Werner v. a (51 Ga. 426), 663, 671. Wesley v. S. (61 Ala. 283), 933. Wessells v. Ter. (McCahon, 100), 583, 606. West V. Columbus (30 Kan. 633), 136. V. P. (137 111. 189), 385. , Reg. V. (3 Car. & K. 784, 3 Cox, C. C. 500), 520, 537. , Reg. V. (Dears. & B. 109, 7 Cox, C. C. 183), 583, 584. , Reg. V. (Dears. & B. 575, 8 Cox, C. C. 13), 430. West, Reg. v. fl Den. C. C. 258, 3 Car. & K 496, 2 Cox, C. C. 437), 460, 471. V. Schlessenger (38 La. An. 564), 871. V. S. (6 Tex. Ap. 485), 582. V. a (1 Wis. 209), 944, 947. V. a (3 Zab. 312), 460. V. a (70 Miss. — ), 642. West Jersey Traction Co. v. Camden (58 N. J. L. 536), 316. Westmoreland v. U. S. (155 U. a 545), 533. West Riding, Rex v. (7 East, 588), 1017. West Riding of Yorkshire, Rex V. (3 East, 343), 1012, 1023. Western, Reg. v. (Law R 1 C. C. 122, 11 Cox, C. C. 93), 871. Westley, Reg. v. (Bell, C. C. 193,8 Cox, C. C. 244). 871, 876. , Reg. V. (11 Cox, 0. C. 139), 1043. Weston, P. V. (4 Parker, C. C. 326, Shel- don, 555), 93, 680, 690, 1054. , Rex V. (2 How. St. Tr. 911), 520, 533 Wetherby v. S. (39 Ala. 702), 904, 910. Wetherford, S. v. (25 Mo. 439), 1064. Wetherill, Rex v. (Cald. 432), 680, 691. Wetwang, Rex v. (Trem. P. C. 64), 633, 940. Whalen, Com. v. (131 Mass. 419), 254. , a V. (98 Iowa, 662), 941. Whaley, Com. v. (6 Bush, 266), 881. Wheat V. a (6 Mo. 455), 997, 1001. Wheatland, Reg. v. (8 Car. & P. 238), 871. Wheatley, Rex v. (3 Bur. 1125, 1 W. Bl. 273), 272, 273. , a V. (4 Lea, 230), 777, 783, 785. Wheeler, P. v. (96 Mich. 1), 653. V. a (42 Md. 563), 489, 777, 805. , a V. (19 Minn. 98), 460. Wheelock, P. v. (3 Parker, C. C. 9), 643. Whelan v. Reg. (28 U. C. Q. B.'3), 58, 520, 542, 1086, 1090. Whiley, Reg. v. (1 Car. & K. 150), 879. , Reg. V. (2 Moody, 185), 881. Whitcomb, Rex v. (1 Car. & P. 124), 680, 691. White V. Com. (4 Binn. 418), 460, 464 V. Com. (6 Binn. 179), 520. V. Com. (9 Bush, 178), 520, 545. V. Com. (29 Grat, 834), 180. , Com. V. (10 Met. 14), 683. V. P. (179 111. 356), 109, 259. , P. V. (55 Barb. 606), 306, 393. , P. V. (34 Cal. 183), 337. — , P. V. (33 Wend. 167, 24 Wend. 520), 530. V. Reg. (13 Cox, C. C. 318), 385, 311. , Reg. V. (Dears. 203, 6 Cox, C. C. 313), 593. Ixxxiv INDEX TO CASES CITED. References are to sections. White, Reg. v. (Law R 1 C. C. 311, 12 Cox, C. C. 83), 750, 753. , Rex V. (1 Bur. 333), 90, 777, 828, 831 , Rex V. (4 Car. & P. 46), 403. , Rex V. (17 How. St. Tr. 1079), 115 520 539 ; Rex 'v. (Russ. & Ry. 99), 838, 840. V. a (49 Ala. 344), 1043, 1044. V. S. (69 Ind. 273), 699, 726. V. S. (13 Ohio St. 569), 206, 326. V. S. (13 Tex. 133), 890, 893. V. S. (1 Tex. Ap. 211), 254. V. S. (11 Tex. Ap. 476), 642. , S. V. (47 Iowa, 555). 1078. , S. V. (6 Ire. 418), 619. , S. V. (14 Kan. 538), 206, 558. , S. V. (19 Kan. 445), 881. -^, S. V. (76 Mo. 96). 278. , S. V. (2 Tyler, 352), 582. , S. V. (129 Ind. 153), 403. ■ , S. V. (98 Iowa, 346), 460. , S. V. 144 Kan. 514), 904. , S. V. (64 Vt. 372), 374. V. Territory (1 Wash. 279). 457. , U. S. V. (5 Cranch, C. C. 38), 180. Whitehead v. Smithers (2 C. P. D. 553), 436. Whitehouse, Reg. v. (3 Cox, C. O. 86), 871. , Reg. V. (5 Cox, C. C. 144), 520, 530. , Reg. V. (6 Cox, C. C. 38), 285, 290. . Reg. V. (6 Cox, C. C. 129), 385, 391. Whitehurst. S. v. (70 N. C. 85), 58, 992, 994. Whiteman v. King (2 H. Bl. 4), 172. , Reg. V. (Dears. 353, 6 Cox, C. C. 370), 699, 726. Whiting V. S. (14 Conn. 487), 66, 642, 649. Whiting V. S. (48 Ohio St. — ), 916. Whitman, Com. v. (118 Mass. 458). 349. Whitney, Com. v. (5 Gray, 85), 374. , Rex V. (1 Moody, 3), 699, 717. V. S. (35 Ind. 503), 904, 905. — -, S. V. (15 Vt. 298), 642. Whitter, S. v. (18 W. Va. 306), 642, 997, 998. Whittier, U. S. v. (5 DiL 35), 887. Whittingham, Rex v. (3 Leach, 912), 403. , S. V. (7 Vt. 390), 1013, 1023. Whitworth,S.v. (8 Port. 434), 489, 502. Wiokey, S. v. (54 Ind. 438), 643. , S. V. (57 Ind. 596), 642. Wiokham, Reg. v. (10 A. & E. 34), 420. Wiedemann v. P. (92 111. 314), 642, 653. Wiggin, S. V. (30 JST. H. 449), 643. Wight, U. S. V. (38 Fed. R. 106), 403. Wilburn, S. v. (7 Baxt. 57), 263. Wilcox, Com. V. (1 Cush. 503), 643. Wilcox, Rex v. (Russ. & Ey. 50), 459, 460. , U. S. V. (4 Blatch. 885), 75, 460, 866, 867. Wilcoxson V. S. (60 Ga. 184), 460. Wilde V. Com. (3 Met. 408), 96. Wildraan, Rex v. (Trem. P. C. 43), 943. Wilgus, Com. V. (4 Pick. 177). 430. Wilhelm v. P. (73 111. 468), 1065. Wilkerson v. 8. (3 Ind. 546), 1003. Wilkes, Rex v. (19 How. St. Tr. 1075, 4 Bur. 3537), 1086, 1090. , Rex V. (19 How. St. Tr. 1382), 60, 619. Wilkins, S. v. (17 Vt. 151). 460, 466. Wilkinson, Reg. v. (42 U. C. Q. B. 493), 619. , Rex V. (6 Went. PI. 374), 736. V. S. (10 Ind. 373), 80, 460, 466. V. S. (59 Ind. 416), 663. . S. V. (3 Vt. 480), 1012, 1024. Wilks V. S. (3 Tex. Ap. 34), 206. 216. Willers, S. v. (27 La. An. 346), 619. Willey V. S. (46 Ind. 363), 520. V. S. (52 Ind. 346), 138. Williams v. Com. (10 Casey, Pa., 178), 285, 390. , Com. V. (3 Cush. 582), 254. , Com. V. (79 Ky. 43), 680. . Com. V. (110 Mass. 401), 699,737. , Com. V. (127 Mass. 285), 484, 485. . Com. V. (9 Met. 273), 583, 588. V. Ellis (5 Q. B. D. 175), 983. V. Evans (1 Ex. D. 377), 563. , P. V. (1 But 568), 460. , P. V. (4 Hill, N. Y., 9), 430. , P. V. (149 N. Y. 1), 871. V. Reg. (1 Cox, C. C. 179), 1090. , Reg. Y. (1 Den. C. C. 539, 4 Cox, C. C. 87, 3 Car. & K. 1001), 173. , Reg. V. (3 Den. C. C. 61), 460, 470. , Rex V. (Comb. 18), 1051. , Rfex V. (36 How. St. Tr. 653), 343. , Rex V. (1 Leach, 539), 306, 223. , Rex V. (1 Moody, 387), 696, 854. , Rex V. (Trem. P.C. 48), 621, 1034 V. 8. (15 Ala. 359), 583. V. S. (44 Ala. 396), 582. V. S. (67 Ala. 183 1, 254. V. S. (35 Ark. 430), 643. V. S. (46 Ga. 212). 254. V. S. (3 Heisk. 37), 530. V. S. (8 Humpli. 585), 206,9Q4,910. V. S. (9 Humph. 80), 460, 466. V. S. (2 Ind. 439), 564. V. S. (47 Ind. 568), 205. V. S. (64 Ind. 553), 148. V. S. (42 Miss. 328), 80, 206, 558. V. S. 1 35 Ohio St. 175), 520. — V. S. 112 Sm. & M. 58). 395. V. S. (42 Tex. 392). 520. V. S. (1 Tex. Ap. 90), 904, 905. V. S. (10 Tex. Ap. 8), 933. INDEX TO OASES CITED. Ixxxv References are to sections. Williams v. S. (13 Tex. Ap. 395), 33, 583, 609. V. S. (83 Ala. 68), 365. V. S. (89 Ga, 483). 643. V. S. (32 Tex. Ap. 497), 558. , a V. (Busbee, 197), 993. , S. V. (4 Ind. 334), 1003. , S. V. (4 Ind. 393), 680, 691. , S. V. (4 Ire. 400), 663. 668. , S. V. (13 Ire. 172), 680, 690. , S. V. (7 Jones, N. C, 446), 58, 530. , S. V. (30 La. An. 1163), 696. , S. V. (33 La. An. 335), 904, 905. , S. V. (54 Mo. 170), 583. , a V. (7 Rob., La., 253), 961. , a V. (41 Tex. 98), 111, 353, 354. , a V. (38 La. An. 371), 558. , a V. (136 Mo. 393), 247. , U. a V. (4 Bis. 302), 460, 467. , U. S. V. (76 Fed. R. 333), 680. -^, U. a V. (5 Cranch, C. C. 63), 997, 999. 97), "Williamson. Reg. v. (1 Cox, C. C. 21, 520, 530. , a V. (19 Mo. 384). 643, 650. , a V. (43 Tex. 500), 583. Willis, P. V. (54 N. Y. Supp. 53), 347. , P. V. (158 N. Y. 393), 680. V. a (105 Ga. 633), 373. , a V. (4 Eng. 196), 43, 58, 735. , a V. (37 Mo. 193), 998. , a V. (78 Me. 70), 679. Wills V. P. (3 Parker, C. 0. 473), 916. V. a (69 Ind. 386). 643. , a V. (70 Minn. 403), 460. Wilson's Case (7 Q. B. 984), 330. Wilson V. Com. (13 B. Monr. 3), 777, 794. V. Com. (14 Bush, 159), 643. V. Com. (15 Norris, Pa., 56), 285, 313 v. Com. (10 a & R. 373), 680, 690. , Com. V. (11 Cush. 413), 643, 655. , P. V. (64 111. 195), 817. , Reg. V. (1 Cox, C. C. 355), 333. , Reg. V. (3 Moody. 53). 916,.918. , Rex V. (8 T. R. 357), 443, 444. , Rex V. (4 Went PI. 363), 365. V. a (16 Ark. 601), 1043. V. a (33 Ark. 557), 363. V. a (85 Ark. 414), 643. 651. V. a (3 Heisk. 378), 935. V. a (5 Pike, 518), 335, 583, 605. V. a (39 Tex. 340), 530. V. a (1 Wis. 184), 337 , S. V. (80 Conn. 500), 111, 583, 613. , a V. (50 Ind. 487), 1043, 1044 , a V. (3 Mill 135), 430, 430. , a V. (3 Mo. 135), 443, 446, 857. , a V. (43 N. H. 415), 777, 838, 831. , U. a V. (Bald. 78, 7 Pet. 150), 55, 58, 885, 1045. Wilts, Rex V. (Trem. P. C. 181), 939. Windell, a v. (60 Ind. 300), 895. Wmkler, P. v. (9 Cal. 334), 66, 583, 593. Winn V. a (55 Ark. 360), 443. Winnet. a v. (17 Kan. 398), 530. Winright, a v. (13 Mo. 410). 735. Winship, Rex v. (Cald. 73, 5 Bur. 3677), 333. Winslow, P. V. (39 Mioh. 505), 420. V. S. (36 Neb. 308), 79. , U. a V. (3 Saw. 337), 643, 653. Winsor v. Reg. (Law R. 1 Q. B. 289), 1043. Winter, Rex v. (13 East, 258), 1013, 1015. Winterbottom, Reg. v. (1 Den. C. C. 41, 3 Car. & K. 37, 1 Cox, C. C. 164), 460, 473. Wise V. a (41 Tex. 139), 403. , a V. (3 Lea, 38), 871. , a V. (66 N. C. 130), 180. Wiseman, Rex v. (Fort. 91), 963. Wishon, a V. (15 Mo. 503), 642. Withers, Reg. v. (4 Cox, C. C. 17), 871. , Rex V. (1 Moody, 294), 206, 558. Wolcott, Com. V. (10 Cush. 61), 849. Wolf V. S. (53 Ind. 30), 180. Womack v. a (7 Coldw. 508), 520, 544. Wood, Com. V. (4 Gray, 11), 84, 642, 655. , Com. V. (11 Gray, 85), 138. 142. , Rex V. (1 Moody, 278), 694, 695. V. a (50 Ala. 144), 308, 558. V. a (46 Ga. 333), 254 V. a (48 Ga. 193). 944. V. a (37 Tex. Ap. 538), 66. V. a (18 Vroom, 461), 385. , a V. (53 N. H. 484), 530, 538. , a V. (110 Ind. 22), 871. , a V. (49 Kan. 711), 70. Woodard, a v. (128 N. C. 710), 1034 y. a (33 Tex. Crim. R. 554), 79. Woodburne, Rex v. (16 How. St. Tr. 53), 743. Woodbury, S. v. (35 N. H. 330), 680, 683, 684 Woodford v. P. (63 N. Y. 1(17, 5 Thomp. & C. 539), 58, 180, 188, 189. Woodly, a V. (3 Jones, 376). 575. Woods, Com. V. (9 Gray, 181), 643, 655. , Com. V. (10 Gray, 477), 460. 467. , Com. V. (11 Met. 59), 680, 689. Woodsides v. S. (3 How., Miss., 655), 56. Woodson, Com. v. (9 Leigh, 669), 742. Woodward, Rex v. (1 Moody, 333), 180. , a V. (31 Mo. 365), 673. 677. , a V. (35 Vt. 616), 642. Woodworth, Ex parte (29 Ohio L. J. 815). 318. Woody V. a (83 Ga. 595), 43, 80, 643, 649. , a V. (3 Jones, N. C, 335), 935. Ixxxvi INDEX TO CASES CITED. Eeferences are to sections. Woolf, Eex V. (1 Chit. 401), 285, 391. Woolley, Reg. v. (4 Cox, C. 0. 251), 403, 411. . Reg. V. (4 Cox, C. C. 255), 403, 411. Wooster v. S. (55 Ala. 217), 777, 783. Wordell, Rex v. (Trem. P. C. 133), 460, 475. Workman, S. v. (35 W. Va. 367), 262. Worland v. S. (83 Ind. 49), 317. Worley, Reg. v. (3-Cox, C. C. 535), 871. T. a (11 Humph. 173), 742, 745. Wormack v. S. (6 Lea, 146), 254. Wormer v. Smith (2 lud. 285), 93. Wormouth v. Cramer (3 Wend. 394), 93. 619. Worrall, U. S. v. (2 Dall. 384, Whart. St. Tr. 189), 111. 247. Worrell, Rex v. (Trem. P. C. 106), 275. V. S. (12 Ala. 732), 643. Wortley. Reg. v. (3 Den. C. C. 333, 5 Cox, C. C. 382), 403. Woulfe, S. V. (58 Ind. 17), 63, 643, 650. Wren v. Com. (25 Grat. 989), 118. Wright, Com. v. (12 Allen, 187), 86, 663. 664. , Com. V. (13 Allen, 190), 777, 830. . Com. V. (1 Cush. 46), 4, 619. 632. , Com. V. (166 Mass. 174), 871. , In re (34 U. S. 136), 403. V. P. (61 111. 382), 403, 411. , P. V. (9 Wend. 193), 460. V. Reg. (3 Cox, C. C. 91), 1086. V. Reg. (14 Q. B. 148), 1068. , Reg. V. (3 Cox, C. C. 336), 285. , Rex V. (1 A. & E. 434), 1013, 1015. , S. V. (53 Ind. 307), 305. , S. V. (6 Jones, N. C, 25), 777, 794. , S. V. (9 Wash. 96), 460. V. Ter. (5 Okla. 78), 530. Wroe V. S. (8 Md. 416), 1013. Wunsoh, Com. v. (139 Mass. 477), 111, 138, 142. Wyman v. Com. (14 Bush, 466), 391. , Com. V. (8 Met. 247), 408. Wynne v. S. (5 Coldw. 319), 254 T. Yancy v. S. (63 Ala. 141), 633, 635. Yarborough, S. v. (77 N. C. 534), 55a Yarrell. S. v. (12 Ire. 130), 1013, 1023. Yates V. P. (6 Johns. 337), 1086, 1088. , Reg. V. (Car. Si, M. 133), 871. , Reg. V. (6 Cox, C. C. 441), 285, 300. , Reg. T. (13 Cox, C. C. 333), 619. , Rex V. (1 Moody, 170), 420, 437. , S. V. (31 W. Va. 761), 558. Yeadon, Reg. v. (Leigh & C. 81, 9 Cox, C. C. 91), 206, 214. Yong's Case (4 Co. 40a), 520. Yonoski v. S. (79 Ind. 393), 663, 668. Young, Com. v. (7 B. Mon. 1), 961. V. S. (39 Ala. 357), 1068. V. S. (58 Ala. 379), 520, 543. V. S. (10 Lea, 165), 243. , S. V. (36 Iowa, 133), 977, 979. — r-, S. V. (18 N. a 543), 172, 173, 174, 175. , S. V. (46 N. H. 366), 460. , S. V. (8 Vroom, 184), 385, 391. , S. V. (31 Ind. Ap. 546). 993. Younger, S. v. (1 Dev. 357), 391. Yount V. S. (64 Ind. 443), 460, 464 Zachary, S. v. (Busbee, 433), 680, 691. Zeibart, S. v. (40 Iowa, 169), 520. Zeitler, S. v. (63 Ind. 441), 643, 652. Zenobio v. Axtell (6 T. R 163), 619. Zimmerman, S. v. (3 Ind. 565), 777, 830. , S. V. (53 Ind. 360), 365. Zink V. S. (34 Neb. 37), 403. Zorger v. P. (35 IlL 193), 680, 690. Zug V. Com. (20 Smith, Pa., 138), 1012, 1026. Zule, S. V. (5 Halst. 848), 5a Zulueta, Eex v. (1 Car. & K 215), 961. DIRECTIONS AND FORMS. BOOK I. PRELIMINARIES. CHAPTER I. m GENERAL OP PRECEDENTS AND OTHER FORMS. § 1. As of three parts. — A form of indictment may be con- templated as consisting of three parts; namely, what is com- mon to all indictments, what pertains to all for the specific offense, and what is special to the individual instance. And something like this may be said of the subsequent pleadings and other forms. Now, — § 2. Books of forms. — A book of forms properly contains the first two parts. Such a book, in any department of the law, is helpful ; and, in the criminal law, it is indispensable to the prac- titioner. Our criminal procedure runs so much in ruts that it is inconvenient, and offensive to the courts, for the pleader to depart from what is common, even though he invents a form legally sufficient. "Pleaders," said "Wagner, J., in re- buke of what had been done in disregard of this rule, " should be more careful and pay some attention to the prescribed forms which have grown up and become familiar to the profession." ' It is little short of an insult to a judge to compel him, without any necessity, to pass upon the sufficiency of a form got up for the occasion in disregard of established practice. But these observations do not apply to the averments of those facts which are special to the particular instance. They ought to individ- ualize the transaction complained of;^ and, as transactions differ, the pleader cannot ordinarily, with true propriety, set 1 state V. Reakey, 63 Mo. 40, 41. 2 Crim. Pro., I, §§ 566-584, 611, 619, 620. 1 §§ 3, 4.] PEELIMINAEIES. [bOOK I. out the facts special to his case in words which another pleader had employed in describing a different transaction. A book of forms, therefore, should contain the first two parts, and just and only enough of the third to illustrate to the practitioner the methods of its construction. How far otherwise our books of forms in the criminal law have commonly been made, the reader familiar with them does not need to be told. The de- partures from this method, and their heaps of useless lumber, are patent on the face of most of them. Hence — § 3, This book. — It is proposed, in the present work, simply to give so much and so many of the forms as are common to all cases, and to all of each class ; with the directions and illus- trative instances which will enable the pleader intelligently to fill in, for each emergency, the facts special to the individual instance. And, to supply him with all practicable help, so that he can look up for himself any question in its minuter details, references will be added to such other forms and precedents as our books contain. The difference, therefore, between those parts of this volume which consist of forms, and the books of forms and precedents in the criminal law heretofore in com- mon use, is the same as between an exhaustive treatise on a legal subject, sustained by full citations of the authorities, and one or more volumes consisting of mere reports of cases and opinions of eminent lawyers. § 4. Authority of precedents. — A precedent is a form which has been used, and has thus received a sort of judicial sanction. And as judicial usage is one of the evidences of the law,^ prece- dents are looked upon as possessing more or less authority. What is done daily in our courts, and not objected to, is pre- sumably right. But not unfrequently a fatal omission or ill averment in an indictment passes for years, under the eye of able courts and counsel, unnoticed.^ Such a course of things 1 Stat. Crimes, § 104 had compiled, was adjudged bad. 2 Crim. Pro., II, § 587. An illustra- These cases, I will say from remem- tion of this may be seen in Com. v. brance, were argued in succession, Wright, 1 Cush. 46, and Com. v. Tar- and as though together, under a box, 1 Cush. 66, where a form for a mutual understanding between the long series of years in common use several counsel for the defendants, in Massachusetts, and specially rec- It was while I was a young lawyer ommended by a famous prosecuting in practice, but I took a leading part officer in a book of forms which he as to the point now alluded to. In CH. I.] PEEOEDENTS AND FOEMS. [§§ 5, 6. does not make the precedent good against an objection clearly well taken in principle. Again, almost all onr forms contain more or less words inserted from what is termed " abundant caution," where their- necessity is not even seriously presumed. It would be absurd, therefore, to argue that, because a partic- ular phrase is found in all the indictments for a given offense it is consequently indispensable.^ But, with these qualifica- tions, such of the precedents in our books as are taken from actual and long-continued usage are high evidence of what should be in allegation. Still, — § 5. Our form-books. — In matter of fact, not all the forms in our books of " precedents of indictments " and the like are of this high order. They are of various grades ; some of them are simply such as have been drawn by the author of the book or by some eminent pleader, having been never subjected to criticism in the tribunals. These, therefore, while suggest- ive, have little or no weight in authority. Moreover, — § 6. Forms sustained by the courts. — In actual practice, when an indictment or other pleading has been neatly drawn, — when it is in arrangement perfect, and in matter clear and full, — in short, when it is without fault, not often is it ques- tioned ; so that, on this class of allegations, our courts seldom each case, on the motion in arrest of deem necessary to preserve I judgment in the lower court, the searched, spending a week's time, judges of that court expressed the the unpublished records of the unqualified opinion that long usage highest judicial court during the in Massachusetts had changed for entire colonial period, and down this state the common law on the somewhat below; and showed that, subject. And in the higher court in every case involving the point, the attorney for the commonwealth the form had been the same for declared that to yield to the views which we contended. The change urged for the defendants would be had come later; and, while never ob- equivalent to opening the door of jeoted to, had never been adjudged the state prison to one-third of its good. Thus the case was won. And inmates. So far as research could never did I have the slightest doubt, disclose, the form controverted had or know of a doubt in the mind of been the uniform one, never departed any one else, that the decision was from and never objected to, during right. The prisoners in the state the whole period covered by our pub- prison did not hear of it, and so the lished reports. It even appeared in prophecy of the attorney for the cases in the reports where the in- commonwealth was not fulfilled, dictment was held to be good, this lAnd see observations of Lord particular question not having been Kenyon, C. J., in Rex v. Crossley, 7 raised. To meet this view, I brought T. R. 315, 318. forward what the reporter did not 3 § 7.] PEELIMINAEIES. [bOOK I. have occasion to pass. It is when an indictment, for example, is obscure, or there is otherwise real doubt of its sufficiency, that it comes into judicial question. If it is sustained, forth- with all the inconsiderate members of our profession who, in every profession, constitute the majority, look upon it, preserve it, and guard it about, as pure gold tried in the fire. They put their own good' sense to sleep; and, when they have occa- sion to draw a like pleading, follow the " precedent." The average compiler takes this one, sets it in the best of printer's black ink, and passes it down for the admiration of ages. Thus the form which was too certainly correct for dispute is rejected, and the ill-shapen and doubtful one is crowned to reign for- ever. "This indictment," a learned judge once said, "was carelessly drawn, and should not be followed as a precedent; " while yet it was adjudged to answer the legal requirement.^ In another case the court observed: " This indictment is drawn in a careless manner, without regard to that precision and pro- fessional accuracy which should always be used in the prepara- tion of such instruments. Indeed, it is a source of painful regret to notice the general want of skill so often manifest be- fore us, in criminal cases, in the drawing of indictments. This, no doubt, often happens from the haste with which such mat- ters are prepared on the circuits, and from the want of books and other conveniences necessary for the calm and deliberate performance of such duties." ^ Yet, should we trace carefully the history of our " honored precedents," we should find many of them to be made of this sort of stuff; their glory consisting of their grotesqueness and their hoary snows. Nor should we> therefore, reject the old forms of this sort, but we should scrupulously avoid the adopting of like new ones. § 7, Improving the forms. — In every other department, the law improves practically, the same as theoretically, with the decisions which render it more precise, just and scientific. Not so in this. It matters not how often the courts decide, and how well every lawyer knows, that such allegations as the de- fendant's having committed the wrong " instigated by the devil," " not having the fear of God before his eyes," " with force and arms," and other like nonsense which originated in super- 1 Bliss, J., in S. v. Murphy, 47 Mo. 2 Ryland, J., in & v. Edwards, Ift 274, 376. And see to the like effect, Mo. 674, 677. Gay V. S., 3 Tex. Ap. 137. CH. I.] PEECEDENTS AND FORMS. [§ 8. stition and stupidity, are of no legal effect; pleaders, down to the present moment, even in states wherein legislation has en- deavored to simplify the averments, persist in inserting them.^ And, not speaking of books for local use in particular states, the writer is not aware of any general one of forms for the in- dictment, wherein this absurd trash does not more or less abound; though it is less in some small volumes than in the larger. Is there any just reason that we should all shut our eyes as though we were fools, when dealing with matter of this sort ? Again, the old forms are largely made up of awk- wardly constructed sentences, containing thrice the number of words necessary to convey the idea. It might not be safe for one having no knowledge of the criminal law to undertake to reduce these expressions to proper shape. He might use the knife where he should not, and fear to prune where truly the operation was safe. But the adjudications are now sufficiently full to enable any one who has mastered the subject to do this work, if not in absolute perfection, with reasonably satisfactory results. Can any man assign a reason why it should not be done ? Hence, — § 8. How in this volume. — While the present author will ask neither courts nor counsel to rely on his skill, or to accept anything as by his authority, he will do, on the authority of the adjudged law, what in the way of improvement seems practically desirable. He will give, for each offense, an ap- proved precedent, not with absolutely all the lumber of the darker periods of our law, but as pruned by modern hands. He will show what in the precedent is certainly unnecessary under the decisions of the tribunals. Having thus obtained a skeleton with the real bones and no false ones, he will proceed to show, as far as each step in the showing can be made certainly safe, how about the muscles and the superfluous fat. In this way, introducing also appropriate suggestions and references to a,u- thorities, we shall pursue our course to the end. And the result will be, that the pleadings prescribed by the common law will appear much less imperfect, while yet not all are without fault, than our " codifiers " and " reformers " commonly find it con- venient to assume. Nor yet shall we overlook what legislation has done in the way of real or imaginary improvement. 1 See pos^,§§ 43^9- 5 CHAPTEE II. SUGGESTIONS AS TO THE DRAWING OF THE INDICTMENT OR INFORMATION. § 9. Introduction. 10-24. Brevity and how promoted. 25-27. Directness and distinctness of allegation. 38-86. Practical methods for drawing indictment. § 9. How chapter divided. — We shall consider: I. Practi- cally of brevity and how it is promoted ; 11. Directness and distinctness of allegation; III. Practical methods for drawing the indictment. I. Peacticallt of Beetitt and How IT IS Peomoted. § 10. How in reason. — The purpose of the indictment being to inform the defendant of what is to be produced against him, and guide the court at the trial, — it not being a lecture, a romance, or a poem, — it is, in reason, best when in the fewest and aptest words, with no superfluous matter. The rule of reason, therefore, is, that it should be in just so many and such terms as will simply accomplish this object, and no other or more. But, — § 11. How in practice. — "While there is nothing in the law forbidding the indictnlent to be so, and while even the princi- ples of the law require this, the courts are to a great extent neglectful of their duty to restrain departures from what is thus obviously just. In Sir James Fitzjames Stephen's late admirable " History of the Criminal Law of England," we are told how it is there. Those who draw the indictment, being, or having been, paid for their work in proportion to its length or number of counts,^ they have trained themselves to make it very long. Nor have they deemed that much information should be conveyed by it to the defendant. " I have heard," he says, "of a very eminent special pleader who, when he had drawn a specially long indictment, used to ' shuffle his counts,' 1 1 Stephen, Hist. Crim. Law, 287, note, 6 CH. II.] HOW DEAW INDICTMENT. [§ 12. SO that his opponent might find it, humanly speaking, impos- sible to understand what the indictment did and did not con- tain." ' Again: "Indictments for fraudulent misdemeanors sometimes consist of more than a hundred counts, dififering from each other almost imperceptibly by minute shades of meaning and expression. No one ever reads them except the clerk who compares the draft with the engrossed copy. . . . The judge never looks at the indictment unless his attention is directed to some particular point. . . . No undefended prisoner would get the least information from it." ^ The writer of this is a judge of the High Court of Justice, Queen's Bench Division. And he is one of those who habitually try criminal causes, and sit en iano for their review. Said another learned judge: " In my opinion, there cannot be a much greater griev- ance or oppression than these endless, voluminous, unintelligi- ble and unwieldy indictments. An indictment which fills fifty-seven close folio pages is an abuse to be put down. . . . Most of the persons who are accused of offenses are in a line of life which does not enable them' even to get a copy of such a charge from the clerk of assize, who will not part with it without his fees; and, when the party accused has obtained a copy, the greatest stretch of mind of the most trained persons can hardly, even for days, . . . find out what it is that is really the matter of criminal charge." ' § 12. A death-bed repentance. — The late Joseph Chitty, the elder, famous on both sides of the Atlantic as a special pleader, compiler of precedents and other law books, and bar- rister, said in the last edition of his last work: "A scientific pleader " — he is speaking particularly of civil causes, but his observations apply equally to criminal — " would not incumber the record with unnecessary statement or complicated counts or pleas. . . . The late Mr. Justice Dam pier rarely suf- fered more than one count to be introduced into a declaration; but then he took care first well to ascertain the facts, and he ■already knew the law. Precedents should merely assist, and ever govern." He goes on to say how absolutely contrary to this rule the course of things has commonly been.* The whole 1 Id. 290, note. v. Reg., 1 Cox, C. C. 413, 538, 11 CI. & 2Id. 290, 391. F. 155. 3 Lord Denman, C. J., in O'Connell *2 Chit. Gen. Prac. (3d ed.) 44 7 § 13.] PKELIMINAEIES. [bOOK I. passage, every word of which is just, has the true ring of a death-bed repentance. He had published collections of prece- dents, the chief ones whereof constitute the second and third volumes of " Chitty on Pleading," and the second, third and fourth ' volumes of " Chitty on Criminal Law," incumbered by the common verbosity and multiplicity of counts, and they had been widely circulated and used on both sides of the Atlantic. Did he not put upon the market the wares which purchasers demanded ? But in atonement for his sins, if such they are to be deemed, he has left behind him advice which we shall do well to heed. He goes on to say: "As Dr. Johnson apologized for writing a long letter 'because he had not time to dictate a short one, that is, to consider and compress ; ' so the circum- stance of a declaration or other pleading being very lengthy, in general indicates that it was framed hastily, or that the pleader had not sufiBcient linowledge of the law, or strength of mind, to enable and embolden him to compress, or still more dis- reputably that he crowded repetition or useless variations with the sordid and unworthy desire of increasing his own fee."^ "Will the writer of the present volume, and his publishers, fail to find a market for it, with a due return for his labor of authorship and their expenditures, because written with three times the toil which two volumes would entail, it enables the practitioner, both to save himself work, and make the indict- ment what the true spirit of our law and the behests of justice require ? § 13. With us — the practice is much as it is in England; but it varies with our states. In some of them, the lumber just described is piled high enough to shame even the worst English pleader. In others, the indictment is commonly sim- ple, in one count unless special reasons properly require more, and not unreasonably long. And where verbosity is tolerated it is not eulogized.' In praise of the better course, Tarbell, J., once observed in the Mississippi court: "The indictment in iChittyonCrimmalLaw,asknown ^ciiit. Gen. Prac, ut sup. througli our American reprints, is in 'See, for example, observations of three volumes; but the English work Pearson, J., in S. v. Boon, 4 Jones is in four, the fourth volume not (N. C.;, 463, 465. having been reproduced for Ameri- can use. 8 CH. II.] HOW DEA.W INDICTMENT. [§ 14. this case pursues the precise language of the statute ; it pre- sents the issue fairly; and is commendable for discarding tech- nicalities, which, having long since ceased to serve any useful purpose, cannot be otherwise than mischievous, although hon- ored monuments in the progress of the jurisprudence of the world." 1 § 14. Reform of abuses — That the abuses above described need to be reformed no honest man will question; for not a word in their support can be found in all our books. If there are men to profit by them, still there are none to praise them. The courts can reform them if they choose. The draftsmen of the indictments, both in England and this country, are officers of the courts, compellable to obey, as to their acts connected with judicial proceedings, the judicial commands. Moreover, and if this were not so, the trial court has the power to quash an indictment drawn in a way to perplex or otherwise injuri- ously burden the defendant; compelling the prosecutor, if he would succeed, to prepare and lay before the grand jury a proper indictment. Or the judge can quash a part of the counts, or order separate trials on the several counts or clusters of them, or both. If he is not moved to do this, he can do it ex officio.'' Sir James Fitzjames Stephen sets down the evil prac- tice, suffered by the court of which he is a member, among the reasons why parliament should enact a criminal code. He is silent as to the duty of the judges. One who saw less than he does of the good effects to come from codification, and more of what might result from practical improvements in the ad- ministration of the laws which we already have, would be apt to ask whether really a code will, better than the common law, ad minister itself without proper judicial supervision. Why should not the work of reform begin, where the neglect to supervise did, on the bench, with those whose duty it has always been to guide the course of justice, and especially to protect from oppression persons accused of crime ? A code could scarcely give fuller powers than the common law does, and it is difficult to see why the administration of the one may not as well lapse into neglect as of the other. 1 Riley v. S., 43 Miss. 397, 431. Crim. Pro., I, §S 425, 447, 449, 454 455, 2 All will be found explained in 458,758,759,764,766, §§ 15-18.] PEELIMINAEIES. [bOOK I. § 15. Exceptions as to brevity — (Avoiding duplicity). — There are circumstances in which the briefest forms possible would not be the best, and then they should not be practically employed. For example, every charge should be made dis- tinct; and, if two offenses are to be averred against a defendant, both should not be huddled into one count. As to this, the rule of la w ^ is the rule also of reason. Yet the just course may require more words than would the unjust. Again, — § 16. Ill form, vrhich court will accept. — If the decisions have sustained a short form which really gives the prisoner no sufficient information of what is to be proved against him, a just prosecuting officer will either expand further the allega- tions in the indictment, or voluntarily tender to him a note or bill of the particulars. And if, as in a few instances it has happened, the courts violate constitutional guaranties by sus- taining indictments really inadequate, such a prosecuting of- ficer will add what the constitution requires, though the judge should deem it superfluous; because he, too, is acting under an oath to support the constitution. Moreover, — § 17. Cases of legal doubt. — There are cases wherein it is doubtful whether the court will deem a particular averment to be necessary or not ; then it is generally, but not quite always, practically best to introduce it. Especially is this true in those states wherein the state has no appeal from the decision of an inferior judge on a question of law. Inevitably, in such a state, an indictment must be made to pass the scrutiny of the trial court, by whomsoever presided over, or justice will fail. And, in a larger view, "it is," in the words of Pollock, C. B., commonly " better to adhere to precedents than to make experi- ments with how little an indictable offense may be stated."^ But there are circumstances wherein a far-seeing prosecuting officer will, even against great danger of overthrow, avoid a cumbersome and ill-constructed precedent in common use, for the chance of establishing a better form for the future, as well as proceeding more justly or more effectively in the individual case, — a question the decision whereof must ordinarily turn on what is special to the particular instance. Finally, — § 18. Doubt on the proofs. — Where there is doubt, or room for it, as to what form the proof will assume at the trial, the 1 Crira. Pro., I, § 433 et seq. 2 Reg. v. Webb, 3 Cox, C. 0. 183, 186. 10 CH. II.»] HOW DEAW INDICTMENT. [§19- considerate pleader will so arrange his allegations as to fit them for any event. This may require more counts than one for what is really a single offense, or it may not, according to the cir- cumstances. No general rule can furnish a complete guide, but the pleader who has thoroughly qualified himself for his work will commonly find the course reasonably plain. "While a bungler, for example, will have a count for each manner in which the one offense may have been committed, the skilful pleader will call to mind that, — § 19. Offense committed in different ways. — If the law permits an ofifense to be committed in difi^erent ways, a count is not double, but is good, which charges all the ways, unless repugnant.^ And the pleader, by availing himself of this doc- trine, can ordinarily anticipate, in a single count, any and iPosi, § 21; Crim. Pro., I, §§434. 453; Stat. Crimes, § 344. Even so good a criminal-law lawyer as Sir James Fitzjames Stephen has, in his zeal to show the necessity of a crim- inal code, overlooked this principle. He says that the rule which forbids the indictment to be double has caused very great " prolixity, obscu- rity and expense." And he illus- trates thus: "A policeman tries to apprehend a burglar, who fires a pis- tol in his face and gives him a seri- ous wound in the mouth, knocking out a front tooth. This act is an offense under 24 & 35 Vict, ch. 100, § 18, and might, though in practice it would not, be made the subject of the following counts," which, he adds further on, " is an illustration of the principal cause of the enor- mous length and intricacy of indict- ments." The possible counts, and, as I understand him, the inevitable ones so far as the uncertainties of the proof require variations in the charge, are: "1, wounding with in- tent to maim; 3, wounding with in- tent to disfigure; 3, wounding with intent to disable; 4, wounding with intent to do some grievous bodily harm other than those above speci- fied ; 5, wounding with intent to re- sist lawful apprehension; 6. wound- ing with intent to prevent lawful apprehension; 7, wounding with in- tent to resist lawful detainer; 8, wounding with intent to prevent lawful detainer; 9-16, inclusive, causing grievous bodily harm with each of the eight intents before stated; 17-24, inclusive, shooting at the policeman with each of the eight intents before mentioned." 1 Ste- phen, Hist. Crim. Law Eng. 389, 300. Now, if we look at tiie statute re- ferred to, we shall find that a single count, not of great length and not intricate, will comprehend all that is thus set down for the twenty-four. So much of the eighteenth section as this writer means to indicate makes it a felony to "unLiwfully and maliciously, by any means what- soever, wound or cause any grievous bodily harm to any person, or shoot at any person . . . with intent ... to maim, disfigure or disable any person, or to do some other grievous bodily harm to any pei-son, or with intent to resist or prevent the lawful apprehension or detainer of any person." The single count, covering all the above matter, may, 11 §20.] PEELIMINAEIES. [book every one of the many uncertain forms which by possibility the proofs may assume. Thus, — § 20. In homicide. — " Take the instance," said a learned judge, "of a murder at sea; a man is struck down, lies some time on the deck insensible, and in that condition is thrown overboard. The evidence proves the certainty of a homicide by the blow, or by the drowning, but leaves it uncertain by which." Must there be more counts than one ? The judge, calling to mind a common practice, observes that it " would be a fit case for several counts, charging a death by a blow, and a death by drowning, and perhaps a third alleging a death by the joint result of both causes combined."^ But plainly such a complication would be needless, and in some degree perplexing as to the proofs at the trial, and the form of the verdict of guilty, and the sentence. With equal legal effect and better practical results, the charge might be in one count of a death by both causes,^ and the jury would be justified in a verdict of guilty if they believed from the evidence that it proceeded from either or from both. And — without the aid of modern statutes simphfying the indictment, be in terms like the following: The jurors of our lady the queen upon their oath present, that A., of, etc., on, etc., at, etc., having and holding in his hand a pistol loaded with gunpowder and one leaden bul- let, did then and there, with intent then and there to resist and prevent one X., who was a policeman and had lawful authority then and there to apprehend and detain him, the said A., from lawfully apprehending and detaining him, and with intent to maim, disfigure and disable the said X., and to do him the grievous bodily harm of knocking out one and more of his teeth and other grievous bodily harm, did unlaw- fully and maliciously shoot off and discharge said loaded pistol at and upon said X, thereby and by means of said leaden bullet so shot off and discharged giving unlawfully and maliciously to said X one wound in his face, and knocking out one of his front teeth, and inflicting on and causing him grievous bodily harm; against the peace of our said lady the queen [post, § 66, note], and con- trary to the statute in such case made and provided. There is nothing omitted from this form which could have been thrust into the entire twenty-four counts suggested, nor is there any- thing possible for them all to ac- complish which this does not, and it is plain and distinct. It may lack something in rhetorical grace, but the accused person can discern what it means. It charges, as in reason every count should, but one offense; it is not double. Crim. Law, I, § 785; Crim. Pro., I, § 436; Stat. Crimes, § 344 1 Shaw, C. J., in Com. v. Webster, 5 Gush. 296, 331. 2 Joy V. a, 14 Ind. 139. 13 CH. II.] HOW DKAW INDICTMENT. [§§ 21-23. §21. In general. — This method — namely, charging the offense, whatever it is, in one count, as committed in all the ways known to the law and not inevitably inconsistent with one another, within the probable range of the proofs, and directing the jury that they may find a verdict of guilty on being made satisfied of the truth of so much of the allegation as constitutes an offense — is abundantly sustained by the authorities ; ^ while it is practically superior, above all com- parison, to the lumbersome indictment of many counts. Let it be borne in mind, that what is thus to be set out is simply one transaction, which, and only which, is to be given in evi- dence to the jury. The charge, therefore, is homogeneous. The prisoner, the counsel, the court, the jury, all have before them the one thing and no more. On the one side, the en- deavor is to establish so much of what is alleged as will con- stitute an offense ; on the other side, to prevent this, or, failing, to reduce the offense to its smallest proportions. This is a leading method of the common law, which every trial judge has the power to compel the prosecutor to pursue, or abandon his case. Let us not cast it off till a better is proposed. And, further, — § 22. Keeping indictment to facts. — Where, as in most of our states, the prosecuting officer attends the grand jury, hears the evidence, advises with them, and then draws whatever in- dictment they determine to find,^ there is ordinarily little oc- casion for a wide range of averment to meet possible surprises in the form of the proofs. And, in fairness, an indictment ought not to extend over ground in no way disclosed to the grand jury; though, in exact law,^ the objection that there was before them no proof of a particular allegation cannot be made available at the trial. § 23. Brief statutory forms, — In some of our states stat- utes have provided brief forms, declaring them sufficient, while still the pleader is at liberty to follow the common-law prece- 1 Ante, % 19; Crim. Pro., I, §S 434- Com. v. Fox, 7 Gray, 585; Eeg. v. 439, 484; II, §3 106, 143, 171, 537, 656, O'Brian, 3 Car. & K. 115, 1 Den. 713, 815, 934; Eeg. v. Williamson, 1 C. C. 9. Cox, C. C. 97; Com. v. Brown, 14 Gray, 2 Crim. Pro., I, §§ 861, 863. 419; Com. v. Macioon, 101 Mass. 1. 'Stat. Crimes, § 1048; Crim. Pro., I, And see Hudson v. S., 1 Blackf. 317; g§ 864, 873, 886. 13 §§ 24-27.] PEEJLIMINAEIES. [bOOK I. dents if he chooses. Some of these statutory forms are prac- tically unfit; ' and some have been, and others will be, declared unconstitutional.^ Still other of these forms are excellent, and, with true propriety, the pleader may substitute them for those of the common law. §24. Summary. — The foregoing views, while suggestive, are not intended to exhaust the topic. We shall consider it, from time to time, in respect of the allegations for particular offenses. In brief, commonly, where one crinie only is meant to be charged, there should be but one count ; yet to this there are exceptions, each depending on its own special reasons. Where, as is sometimes permissible, not always, more offenses than one are meant, there must be a count for each offense, and there may be more. And, practically, the fewer super- fluous words an indictment contains, the better in nearly all cases will it subserve justice. II. DiEEOTNESS AND DISTINCTNESS OF ALLEGATION. § 25. In general. — What the law requires under this head is explained in other volumes of this series. But the suggestion here is, that, in practice, the pleader will do well to reject vari- ous permissible, indirect forms, and make his allegations blunt and distinct. For example, — § 26. " For what whereas heretofore " — may be adequate in recital, but it is not good for every averment;' direct language suffices in all, therefore a considerate pleader will rarely employ any other. Again, — § 27. Participle. — Though the participial form of the allega- tion is different, and is commonly good, even on the main charge,* there may be circumstances in which it will not be sufficiently direct. Therefore it is prudent to be cautious in its use, and avoid it where there is doubt. The pleader who re- members that he is accusing one, not playing the gentleman toward him, will have no practical difficulty under this head. I Ante, % 16. lin v.^S., 45 Ind. 338; Brinster v. S., 2Criin. Pro., I, gg 103, 104; Stat. 13 Tex. Ap. 612. Crimes, §§ 981, 1036, 1037; Williams sCrim. Pro., I, §§ 554; 1 Chit Crim. V. a, 13 Tex. Ap. 395, 397; McLaugh- Law, 331. 4 Crim. Pro., I, § 556. 14 CH. II.] HOW DEAW INDICTMENT. [§§ 28-32. III. Peaotioal Methods foe Deawing the Indictment. § 28. What for this sub-title and how divided. — The in- troductory and closing parts of the indictment, which, in prac- tice, the pleader will ordinarily have before him in a printed blank, are explained in the chapter after the next. We are here to consider only the body of it; as to, first, the indictment on the common law ; secondly, the indictment on a statute ; and, thirdly, what is common to both. § 29. The indictment on the common law: Following form. — If the indictment is purely at the common law, the judicious course, as to those parts of it which may al- ways be the same for the same offense, is to follow the estab- lished common-law form, trying no experiments.^ In some offenses, not all, a careful study will be required as to the methods of alleging the — § 30. Parts not in the general form. — The young pleader, not yet practically familiar with his work, should, after look- ing up the law of a, case, set down in brief the several heads to which attention must be directed ; then, with them before him, duly cover whatever of fact they require. After thus drawing the indictment, let him re-examine it with reference both to those heads and to what on a fresh reading ^e finds to be the law of the books. § 31. Secondly. Th^ indictment on a statute: Following common-law forms. — The pleader should bear in mind that, when a statute simply creates an • offense by its common-law name, the common-law form of indictment is to be followed,^ except in concluding against the form of the statute.' If, besides this, the statute adds an ingredient to the offense, the indictment adds it; being otherwise, except in its conclusion, the same as at the common law.^ And there are some nice questions as to when a case comes within the latter distinction, and when it does not.' § 32. Purely statutory. — If the statute both creates and defines an offense which was not such at the common law, the 1 Ante, §§ 3, 17. ■« Crim. Pro., I, § 610; Stat. Crimes, 2Crim. Pro., I, § 610; Stat. Crimes, § 416. §§ 416, 471. ' For illustrations, see Stat. Crimes. ' 3 As to which, see Grim. Pro., I, g§ 413-415, 418, 431, 433, 471-476, 513- §§ 599, 60a 515. 15 §§ 33-35.] PBELIMINAEIES. [bOOK I. method is different.^ Practically the pleader's course is as follows: Interpret statute. — The indictment is not, as of course, to be drawn on the mere verbal statute, but on it as the court will interpret it.'^ Ordinarily the interpretation will be simply by its words; but sometimes words will be added to make it broader or narrower than its uninterpreted terms.' The pleader, therefore, should with his pencil insert in his copy of the stat- ute any words which he thinks the court will incorporate into it. If he is doubtful how the interpretation will be, he should draw his indictment with reference to the several possible mean- ings. For this purpose, he will sometimes need to frame it in more counts than one. The indictment must cover the inter- preted statute.* Eow, — § 33. Drawing indictment. — With the facts of his particu- lar case in his mind, he should so write them down as to weave into them the terms of the interpreted statute. In most of the states he should appropriately introduce the word "felo- niously," though not in the statute, if the offense is felony.' He should duly aver time and place.® And be should make the specifications of the act sufficiently minute, and indicative of the species in distinction from the genus, with all other things of the sort, to individualize the transaction.' And he should obey all the other rules of pleading which relate to the indictment. § 34. Comparing work with law. — In a labor of this sort, one cannot be too careful. When, therefore, he has done it, let him read the interpreted statute clause by clause ; and, at the end of each clause, and sometimes at each word, read over the whole indictment with reference to the particular clause or word. § 35. Thirdly. What is common to both: Practical hints. — The following practical hints may be serv- iceable : 1. Never draw an indictment until you are certain of having mastered both the law and facts of your case. 1 Crim. Pro., I, § 611. *M.; Crim. Pro., I, § 523; Stat. 2 Id., I, § 623 et seq. Crimes, § 796. 3 Stat. Crimes, g§ 79-81, 101,120, 121, » Crim. Pro., I, §§ 533-637. 145, 226 et seq., 243; Core n James, « Crim. Pro., I, §g 360-414. Law R. 7 Q. B. 135. 'Crim. Pro., I, §§ 566-584; Stat. Crimes, §g 426, 440. 18 CH. II.J HOW DEAW INDICTMENT, [§ 36. 2 Never draw one on the common law without a common- law form before you; or, on a statute, without the interpreted statute before you. 3. Introduce no allegation, and ordinarily no word, which is certainly needless. 4. Omit nothing, unless to gain some important object, con- cerning the necessity of which a question may be raised to em- barrass the trial. 5. If the indictment is on a statute, always, unless in the clearest possible case and for some good reason, employ the exact words of the Interpreted statute, and do not experiment with other words which you may deem to be sufficient as sub- stitutes. 6. To this end keep your eye constantly, while you are writ- ing, on the interpreted statute or the common-law form. Y. So guard every expansion as not to incumber the record with needless matter alleged in a way to render proof of it necessary. 8. Consider how the proofs of every allegation will be; and, to the extent possible and just, so shape the averment as to simplify and make easy the proofs. 9. Consider, at each step, what expansions may be necessary to bring the charge within constitutional and common-law re- quirements. § 36. Test questions. — When the indictment is done, lay before you the following questions, and put them severally, answering each only as the result of a fresh examination: 1. Is the commencement right? the conclusion? 2. Allegations of time ? of place ? 3. l^ame of defendant ? of person injured ? of owner ? 4. Descriptions of things ? value ? 5. Statutory words ? exact ? too many ? too few ? Allege more than statutory words ? 6. Is everything which is essential to the punishment in- serted ? Set down each fact which the law makes so, and see that it is by direct and distinct words averred. Be sure to omit no one fact. Where any such fact, however minute, is absent, the indictment is bad, both under the common-law rules, and equally under our written constitutions, even though a 2 17 § 36.] PEELIMINAEIES. [bOOK I. statute declares that it shall be good.^ [The allegations, how- ever, should be the ultimate facts constituting an offense, and not mere matters of evidence.] 7. Are any negative averments necessary, and what? Is this indictment adequate as to them ? 8. How as to such words as "wilfully," "maliciously," " knowingly," " feloniously," and the like ? 9. Does any' one count charge more than a single offense ? 10. Are the conjunctions " or " and "and " rightly used ? 11. Is all correct with respect to the rule that the indictment must fully charge a prima facie offense, but it need not antici- pate defenses ? 12. Is the rule that the species of things must be alleged, and the genus will not suffice, satisfied ? 13. Is the offense otherwise sufficiently particularized ? 14. If there are written instruments, are the allegations in- troducing them right ? Are they set out in due form ? 15. If three are oral words, are they properly averred ? 16. Are the defendants rightly joined ? the counts ? Is no count repugnant? 17. When the proofs appear, will there be no variance ? 1 See. as to this, Crim. Pra, 1, 77-88, 427, 444, 445, 464, 945, 981, 1036, 1037, 95-113, 137, 835, 509, 519, 538, 538-543, 1089, 1044a; [Riggsu State, 104 Ind. 579, 580; II, §§ 48, 177, 565, 573, 575, 361, 363; Com. v. Hayden, 150 Mass. 580, 583, 583; Stat. Crimes, §§ 166, 167, 333, 333, 334.] 18 CHAPTEE III. SUGGESTIONS AS TO PREPARATIONS FOR THE DEFENSE. § 37. Preparation essential. — A wrongful conviction for crime is the very heaviest of calamities. And no lawyer would enter upon the defense of an indicted person of high rank with- out the most careful preparation. But most indicted persons are from the lower walks, and ignorant. Their ignorance ren- ders preparation more essential for them than for the intelli- gent. Yet, because of their poverty, this the most essential part of their case is almost of course neglected. Their defense, therefore, though made by counsel, becomes Inadequate ; and not unfrequently they are convicted, when, if they had simply trusted to the judge and jury without counsel, they would have been acquitted. § 38. As to the indictment.— It is essential to look carefully into the indictment, and see whether or not it is adequate. The suggestions as to drawing the indictment, made in the last chapter for the benefit of prosecuting officers, will be equally available to the defendant's counsel. If it is outrageously lum- bersome and wordy, he will consider whether or not to moye the court to quash it, even assuming it not to be inadequate.* Not in all circumstances, but in some, whereof he will judge by the lights of the special facts, will this be his first best step. Then, by the old practice, if the indictment was found to be ill, the course was, in most instances, to go to trial upon it and in case of conviction move in arrest of judgment.^ But now, in most of our states, there are statutes, differing in terms, yet in one way or another purporting to require defendants to object to the indictment, if at all, at an earlier stage of the proceed- ings. Such a statute can properly serve as a shield to protect what is defective in form, or in terms not duly specific ; but whether, under our written constitutions, it can go further is a question not well illumined by adjudication.' In reason, it ^Ante, § 14. there referred to; Stat. Crimes, 2 1 Chit. Crim. Law, 304, 661, 663. § 1116. 3 Crim. Pro., I, § 1387 and the places 19 §§ 39, 40.] PKBLIMINAEIES. [bOOK I. cannot. To permit one to be hung as for murder on the alle- gation that he spoke saucy words to a late living person, now deceased, would be equivalent to hanging him without any charge, and without any trial. To add simply the further averment that he gave the deceased a blow, and then have him hung, would be only the same thing. And if we carry on this reasoning through its remaining steps, we shall arrive at the conclusion that, under our constitutions, there can be no pun- ishment as for crime, however one arrested waives his rights, unless the indictment or information sets down every ingre- dient which the law has specified as an elemeiit in the crime.' Whether, in spite of the statute, this doctrine can be made available under a motion in arrest of judgment, or whether a writ of habeas corpus or of error will be the proper method, can be determined only on a considerr^.tion of all the statutes. The principle is, that legislation may define the remedy, but it cannot take away all remedy.^ § 39. As to the facts. — A careful looking after the facts is always important. And when the accused person is impris- oned, and especially when he is also penniless, this may be- come a matter of extreme difficulty. But it is not within the sphere of a work of the present sort to point out the course in the numberless varying circumstances possible to arise. Yet, in all cases, the practitioner is under the highest obligations to look carefully after — § 40. The law. — Criminal law learning, especially in our commercial communities, is at the time of this writing at its very lowest ebb. This fact places upon the practitioner for the defense a duty as to the law more burdensome than is com- mon in civil causes. It gives him also a special advantage, if he is one of the few who have the wisdom to see and seize it. Almost as of course, though with many exceptions, the prose- cuting officer knows little or nothing of the criminal law. And it is the same with the judge. In this condition of things, an able lawyer who will study and learn the criminal law has it in his power to become ordinarily master of the situation in cases of defense. One, to occupy this position, must not be content with simply posting himself up for the several occasions, but he ^Ante, § 36, question 6, and the 2 Stat. Crimes, §§ 85a, 176-178. places there referred to. 20 OH. III.J PEEPAEATIONS FOB DEFENSE. [§ 41. must familiarize himself with the entire law of crimes. Then, in each case, he can go before the court prepared to take ad- vantage of the blunders of the prosecuting officer and to instruct the judge. As men are most confident of the depth of their knowledge when it is the most shallow, he will be obliged to use special adroitness in the manner of his teachings, and par- ticularly not to appear to teach. The reasons of the criminal law, in all its parts, must have become parcel of his under- standing; and everything he propounds or argues should, if possible, be stated on a formula of those reasons. In this way his mere enunciations will in most instances carry conviction, and the judicial judgment will be quietly borne along to the just conclusions. " But," says one, " the just conclusions are precisely what I must avoid if I would save my client." "When this is so, the end may sometimes be secured by abstaining from any interruption of the prosecuting officer and the court while shaping the law according to their own ideas, or some- times by referring to expositions of legal doctrine by an in- competent or careless author or judge, or even by following up such. reference in an argument on the wrong side. Is this method right ? It is not right, and it would deserve severe punishment for a practitioner to falsify or to mislead the court. Nor yet, if he could avoid detection for the moment, would it be in the end compatible with his true interests. But it is not his privilege to decide the law of the case, or pass upon the accuracy of what an author or judge has laid down in a book to which the court permits reference; nor yet is it his duty to help the officials, appointed by the prosecuting public, to con- vict the client whom he is sworn faithfully to defend and pro- tect. In conclusion, — § 4:1. Differing cases. — Since the cases will differ, what further is to be suggested on the subject of this chapter will be set down under the titles of the several offenses in a subsequent division of the present volume. 21 BOOK II. COMMON TO ALL OFFENSES. CHAPTER IV. FAMILIAR ALLEGATIONS WHICH" ARE TO BE OMITTED BECAUSE NEEDLESS. § 42. Elsewhere and here. — In other parts of this series, various common allegations of the indictment have been pointed out as needless ; but, for the convenience of the practitioner, the more familiar ones will be here inserted together. § 43. Force and arms. — By the ancient common law, the words " with force and arms," vi et armis, to which were com- monly added videlicet, cum iaculis, cultelUs, arcuhus, et sagittis, were necessary in certain classes of indictments. But a stat- ute of Henry YIII.,' which is common law in this country, dis- pensed with them. At first, the courts disagreed as to whether it extended to vi et armis, or only to the particularization which followed. The wider interpretation prevailed; and, since nearly a century before the American Revolution, there is reported no English case, and there has never been an Ameri- can one, wherein the indictment was held ill for the lack of any of these words.^ Besides, there are in most of our states statutes which expressly or by construction render them un- necessary. Still, in practice, our pleaders cling to the expres- sion " with force and arms " as for dear life. Even in states where short forms are provided by legislation, many of the pleaders can no more give them np than their very eyes. They use them even in cases where the ancient common law did not require them.' The present author, endeavoring to stem the prejudice, will omit them from this collection. 137 Hen. 8, ch. 8. By its terms it 2 Crim. Pro., I, §§503, 648, note, extended only to the " inquisition or 3 For example, persons are indicted indictment." As to the declaration for receiving stolen goods " with in a civil suit, see Sawe v. King, 1 force and arms," Com. v. Cohen, 130 Saund. 81 ; Gould, PI. 187-189. Mass. 198; for obtaining money by 33 §§ M-46.] COMMON TO ALL OFFENSES. [book II. § 44. Fear of God — Instigated by devil. — Words which were never necessary, yet were common in the old forms, and are still not banished from our reports of cases and books of precedents, are, that the defendant committed the offense " not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil."' Let us try, in this country, to get on without this remnant of a faded-out super- stition. § 45. Not regarding law. — Another allegation, plainly un- necessary and better practically not to be employed, is, that the defendant committed the criminal act " little regarding the laws of this realm or the pains and penalties in the same contained." ^ § 46. Bad disposition. — Many of the forms aver, in varying words, that the defendant was of a bad disposition ; as, " being an evil-disposed person," ^ " being an evil-minded and cruelly false pretenses "with force and arms," People v. Cooke, 6 Parker, C. C. 31; for betting money, Drew v. S., 5 Eng. 83, and selling liquor, " with force and arms," Woody v. S., 33 Ga. 595; for having unlawfully in pos- session forged paper " with force aind arms," Cantor v. P., 5 Parker, C. C. 217; for marrying, while having a husband or wife living, another per- son, "with force and arms," Hayes v. P., 5 Parker, C. C. 335; for unlaw- fully keeping for sale intoxicating liquor, S. v. Tracey, 13 E, I. 316, or keeping a disorderly house. Smith i>. Com., 6 B. Monr. 31, or bawdy-house, Thompson v. S., 1 Tex. Ap. 56, or let- ting a house for bawdry, Smith v. S., 6 Gill, 425, or exposing the person, S. V. Roper, 6 Dev. & Bat. 308, or un- lawfully establishing a lottery, "with force and arms," Holoman v. S., 3 Tex. Ap. 610; for committing open and gross lewdness "with force and arms," S. v. Osborne, 69 Mo. 143; and a clergyman is indicted for celebrat- ing the marriage of a minor, with- out consent of parents, "with force and arms," S. v. Willis, 4 Eng. 196. 13 Chit. Grim. Law, 319, 321, and multitudes of other places; S. v. Chandler, 2 Harring. (Del) 553; S. v. Jeffreys, 3 Murph. 480; Crim. Pro., I, § 501. Mr. Justice Stephen, in his "History of the Criminal Law of England," London, 1883, speaking (vol. I, p. 386) of the provision in 14 & 15 Vict., ch. 100, § 24,,that "no in- dictment for any offense shall be held insufficient for want of the aver- ment of any matter unnecessary to be proved," says: "This did away with the statements that the crime was committed by a person ' not hav- ing the fear of God before his eyes,' and, 'at the special instigation of the devil.' " It is impossible that this learned writer really believed these words ever to have been essential The oversight must be attributed to his zeal for codification, to promote which his, in the main, excellent history was written. And see ante, § 19, note; [S. v. Howard, 92 N. C. 773.] 2 3 Chit. Crim. Law, 321. 3 Id. 116, 119; Hamilton v. Reg., 2 Cox, C. C. 11; S. V. Boon, 4 Jones (N. C), 463. 34 CH. IV.] NEEDLESS ALLEGATIONS. [§§ 47-49. disposed person," ^ "being a person of wicked, dishonest and evil mind and disposition," ^ " being a person of unfeeling and inhuman disposition," ' " being a person of envious, evil, mali- cious and wicked mind." * It is surely not necessary to say that all such expressions are lumber which is better omitted. What if a juror, with mind in a fog similar to the pleader's, and believing the defendant's disposition to be good, while yet he committed the offense, should deem the indictment not proved, and refuse assent to a verdict of guilty ? § 47. In peace. — Some of thefdrras aver that the person as- saulted or killed was "in the peace of God and the king"' or "the State."* Tet these expressions are worse than useless.' § 48. Other unnecessary — expressions are — Damage. — "To the great damage" of the person injured; — Example. — "To the evil example of all others;"' — Displeasure of God. — " To the great displeasure of Almighty God." 9 § 49. Still others. — The foregoing are specimens of perni- cious verbosity in forms too much in use. Other instances are pointed out in " Criminal Procedure " and " Statutory Crimes." The author, in the following pages, will endeavor to do his part toward weeding out the entire tangle of this rubbish. If pleaders will hereafter help him, the records of our courts will, at least, .appear distinct and clean. 1 Cowley V. P., 21 Hun, 415, 417. 5 Reg. v. Sawyer, 2 Car. & K 101; 22 Chit. Crim. Law, 233; Brown v. O'Neill v. Reg., 6 Cox, C. C. 495, 496. S., 2 Tex. Ap. 115; Morton v. S., 3 Tex. « Moore v. S., 2 Ohio St. 500. Ap. 510. 7 Grim. Pro., I, § 503; II, §§ 57, 504; 3 Reg. V. Chandler, Dears. 453, 454 [S. v. Sonnier, 38 La. Ann. 963.] * Morton v. S., 8 Tex. Ap. 510; Eex 8 As, for illustration, in Campbell V. Carlile, 1 Cox, G. C. 239. v. Com., 9 Smith (Pa.), 266. 9 Grim. Pro., I, §§ 500, 647; 11, § 57. 25 CHAPTEE y. THE INTRODUCTORY AND CLOSING PARTS OF THE INDICTMENT OR INFORMATION AND THE INDORSEMENTS THEREON. § 50-53. Introduction, 53-56. Caption. 57-64 Commencement. 65-69. Concluding part. 70-73. Indorsement § 60. In general — (Differences in states). — The law of this subject is explained in "Criminal Procedure." While the principles relating to it are uniform, the practice differs con- siderably in our states.^ Now, — §51. Printed blanks. — Printing promotes accuracy; and, withiu limits which vary with circumstances, it saves labor. It can be everywhere had. Therefore no judicious prosecuting oificer will attempt to get on without blanks whereon are printed the commencement, the concluding part, and the in- dorsements of the indictment or information, being the same in all ofifenses. These forms this oificer will settle once for all, according to the law and the practice of his particular state. In a compact community, where many indictments are to be drawn, he will have also fuller forms for the common offenses; such as larceny, burglary, arson, assault and battery, and others practically found desirable. §52. How chapter divided. — "We shall consider: I. The caption; II. The commencement; III. The concluding part; IV. The indorsements. I. The Caption. § 63. In limited jurisdiction. — Where the court is of special or limited jurisdiction, so that its authority to entertain the indictment must appear in the record,'' the caption is ordinarily 1 As to the caption and commence- the concluding part, Id., 5;§ 647-653a; ment, Crim. Pro., I, §§ 653-668; as to as to indorsements, Id., §§ 690-704. 'i Crim. Pro., I, §§ 657, 663, 1850. 26 CH. v.] INTEODUOTORY, CLOSING, INDOESEMENTS. [§§ 54-56. the part of it to which this matter is allotted, and it may be as follows: State of New Yoek.i City amd County op New York — ss. Be it remembered, that at a court of general sessions of the peace holden at, etc., in and for the city and county of New York, on the first Monday of June, in the year of our Lord one thousand eight hundred and sixty-five, before John T. Hoffman, Esquire, recorder of the said city of New York, justice of the said court assigned to keep the peace of the said city and county of New York, and to inquire by the oaths of good and lawful men of the said county of all crimes ana misdemeanors committed or triable in the said county, to hear, determine, and punish according to law all crimes and misdemeanors in the said city and county done and committed. By the oath of John T. McKesson, Foreman [here add the several names of the other grand jurors],'^ it was [is^J tlien and there presented as follows, that is to say.* § 54. In general jurisdiction. — Where the court is of su- perior and general jurisdiction, it is not uncommon for the caption simply to say : Knox — ss. At the supreme judicial court begun and holden at Eockland, within and for the county of Knox on the second Tuesday of March, in the year of our Lord one thousand eight hundred and eighty-one, the jurors, eto.5 § 55. In the United States courts, — the form may, for ex- ample, be — In the circuit court of the United States of America, holden in and for the Eastern district of Pennsylirania, of April sessions, in the year of our Lord one thousand eight hundred and thirty, the jurors, etc." § 56. In general. — The foregoing forms are in actual use; yet their insertion here is only suggestive to the practitioner, who will frame this matter with due regard to the require- ments and usages in his own tribunals.'' 1 Common and proper, but not nee- Howell, St. Tr. 339, 333; Rex v. essary. Crim. Pro., I, § 383. Fearnley, 1 T. E. 316; Holloway v. 2 But the names are generally held Eeg., 2 Den. C. C. 387. to be unnecessary. Crim. Pro., I, ^ S. v. Jackson, 73 Me. 91 ; S. v. Hur- §§ 665, 666. ley, 71 Me. 354; S. v. Conley, 39 Me. 3 Ordinarily "is." As to the dis- 78; S. w Bartlett, 55 Me. 300; Turner tinction, see Crim. Pro., I, §§ 657, 658 v. Com., 5 Norris (Pa.), 54; Crim. Pro., and note, 1349. I, § 665, note. And see Broome v. iKeefe v. P., 40 N. Y. 348. And Reg., 13 Q. B. 834; Crim. Pro., I, see, for forms, 3 Hale, P. C. 165; 6 § 658; [George v. P., 167 111. 447; S. Went. PL 357, 373; 4 Chit. Crim. v. Mo wry, 31 R. L 376.] Law, 189-195, 258; Archb. Crim. PI. « U. S. v. Wilson, Bald. 78; U. S. v. & Ev. (19th ed.) 40; Rex v. Brooks, Dawson, Hemp. 643, 644. Trem. P. C. 151; Rex v. Townley, 18 'And see Crim. Pro., I, §§ 656-659, 27 §§ 57, 58.] COMMON TO ALL OFFENSES, [book II. II. The Commencement. § 57. First. To the indiGtment: — May he short. — A commencement which is not required to supply defects in the caption ' may be brief. Thus, — § 58. In England. — The common form in England has been from early times, and is, — The jurors of our lady the queen [or lord the king] upon their oath pre- sent, that, etc. 2 With us — the like form is common, but not universal; namely, — The jurors of the State of [or of the Commonwealth of , or of the People of the State of , or of the United States of America] on their oath [or oath and affirmation] present, that, etc' Under statutes. — In a considerable number of our states statutes have directly or by implication provided the form. It is not the same in all these states, and to transcribe into these pages the various statutes would be useless.* [The following 663-667; Keithler v. S., 10 Sm. & M. 192, 196; Mitchell v. S., 8 Yerg. 514; S. V. Freeman, 21 Mo. 481, 483; Bene- dict V. a., 12 Wis. 313; Bass v. S., 17 Fla. 685; Dowling v. S., 5 Sm. & M. 664; Goodloe v. S., 60 Ala. 93; Car- penters S.,4How. (Miss.) 163; Wood- sides V. S., 2 How. (Miss.) 655; Mitch- ell V. S., 1 Tex. Ap. 725, 726; Mills v. a., 52 Ind. 187; Lovell v. S., 45 Ind. 550; S. V. Zule, 5 Halst. 348. 1 Crim. Pro., I, § 660. 2 Archb. Crim. PI. & Ev. (19th ed.), 26; 1 Stephen, Hist. Crim. Law, 276; 2 Chit. Crim. Law, 1 et seq.; Rex v. Sanquire, 3 How. St. Tr. 743; Rex v. Audley, 3 How. St. Tr. 401, 406; Reg. c Lister, 7 Cox, C. C. 343, 344; Reg. V. Ryland, Law R. 1 C. C. 99. The same in the colonies. Whelan v. Reg, 28 U. C. Q. B. 2, 7. 3 Crim. Pro., I, § 668; Jeffries v. Com., 13 Allen, 145; Com. v. Glover, 111 Mass. 395, 396; Com. v. Costley, 118 Mass. 1. Doubtless this short form, which practically is short enough, will bear further abridg- ment. Thus, where the word " pres- ent" was omitted, it was sustained. S. V. Freeman, 21 Mo. 481. And it appears to be sufficient to say, " The jurors for the State upon their oath present," etc. S. v. Scott, 2 Dev. & Bat. 35. Territory. — In a case now before me, where the indictment was in a court of a territory of the United States, the form was: "The grand jurors of the Territory of Kan- sas, impaneled and sworn to inquire within and for the county of Leav- enworth, upon their solemn oaths and affirmations do present." Terri- tory V. Reyburn, McCahon, 134. Per- haps it would be more nicely accu- rate to say, "The jurors of the United States, in and for the Terri- tory of Kansas, on their oath and affirmation present." [Any count subsequent should allege the pre- sentment to be " upon their oaths aforesaid," or the equivalent thereof. S. V. McAlister, 26 Me. 374; S. v. Wagner, 118 Mo. 626; S. v. Fraker, 148 Mo. 143.] ^For illustrations consult Coth- ran's R. S. of 111., p. 408, § 408; Ala. 28 OH. V.J INTEODITCTOEY, CLOSING, IND0ESEMENT8. [§58. form prescribed by the statute of Illinois may serve as an ex- ample : State of Illinois, j County. J ®^' Of the May Term of the Circuit Court, in the Year of our Lord, 19—, The grand jurors chosen, selected, and sworn in and for the county of , in the name and by the authority of the People of the State of Illi- nois, upon their oaths present] In general. — There are other variations, either of what is required or what is customary. But, as to all, the forms before given, and a simple reference to cases containing forms, will suffice.^ Code of 1876, § 4834; Reed's Ga. Grim. Law, 315; Garling v. S., 3 Texas Ap. 44; S. v. Mohr, 53 Iowa, 361; Com. v. Stephenson, 3 Met. (Ky.) 336; McCutcheon v. S., 69 IlL 601; Noles V. a, 34 Ala. 673, 688; Perkins V. S., 50 Ala. 154; Walker v. S., 35 Ark. 386; P. v. War, 30 CaL 117; S. v. Davis, 33 Minn. 433. 1 Alabama.— S. v. Bell, 5 Port. 365; Eeeves v. S., 30 Ala. 83, 35; Noles v. S., 34 Ala. 673, 688; Lowenthal v. S., 33 Ala. 589; McGuire v. S., 37 Ala. 161; Schuster v. S., 48 Ala. 199; An- derson u. S., 48 Ala. 665; Caldwell v. S., 49 Ala. 34; Diggs v. S., 49 Ala. 311; Perkins v. S., 50 Ala. 154; Sand- ers V. S., 55 Ala. 183, 184; Glenn v. S., 60 Ala. 104. And see Grim. Pro., I, § 665, note. Arkansas. — S. v. Willis, 4 Eng. 196; Dixon v. S., 39 Ark. 165, 167; S. V. Hinson, 31 Ark. 638; Martin v. S., 33 Ark. 134; Bradley v. S., 33 Ark, 704; Howard v. S., 34 Ark. 433, 435; Walker v. S., 35 Ark. 386; Bridges v. S., 37 Ark. 324; McClure v. S., 37 Ark. 436. And see Crim. Pro., I, § 665, note. California. — P. v. Saviers, 14 Gal. 39; P. V. Mills, 17 GaL 276; P. v. War, SO Gal. 117. Georgia.— Long v. S., 13 Ga. 393. Illinois. — Nixon v. P., 3 Scam. 367; Townsend v. P., 3 Scam. 336; Fairlee V. P., 11 IlL 1; McCutcheon v. P., 69 111. 601, 603. And see Grim. Pro., I, § 665, note. Indiana. — Dukes v. S., 11 Ind. 557; Mains v. S., 43 Ind. 337; Lovell v. S., 45 Ind. 550; Mills v. S., 53 Ind. 187; Snyder v. S., 59 Ind. 105; Edwards v. S., 63 Ind. 34; Mitchell v. S., 63 Ind. 376; S. V. Howard, 63 Ind. 503; Bat- terson v. S., 63 Ind. 531; S. v. Steph- ens, 63 Ind. 543; Shepherd v. S., 64 Ind. 43; Howard v. S., 64 Ind. 516; Manheim v. S.,66 Ind. 65; S.u Stew- art, 66 Ind. 555. And see Crim. Pro., I, § 665, note. Iowa.— S. V. Reid, 30 Iowa, 413, 417; S. V. Close, 35 Iowa, 570; S. v. Jordan, 39 Iowa, 387; S. v. Book, 41 Iowa, 550; S. V. Baumon, 53 Iowa, 68; S. v. Mohr, 53 Iowa, 361. Kansas. — Rice v. S., 3 Kan. 141, 156. Kentucky. — Com. v. Stephenson, 3 Met. (Ky.) 326. Maine.— S. v. Conley, 39 Me. 78; S. V. Stevens, 40 Me. 559; S. v. Bartlett, 55 Me. 300; S. v. Corson, 59 Me. 137; S. V. Smith, 65 Me. 257; S. v. Smith, 67 Me. 338; S. v. Goddard, 69 Me. 181; S. V. Hurley. 71 Me. 354; S. v. Jackson, 73 Me. 91. Massachusetts.— Cora.v. Cohen, 130 Mass. 198; Com. v. Howe, 133 Mass. 350, 351. And see Crim. Pro., I, § 665, note. 39 ^§ 59, 60.] COMMON TO ALL OFFENSES. [book II. § 59. Secondly. To the information: ' — ■ Variable. — Neither law nor usage has established any one unvarying form. But, — § 60. Common. — Where the attorney for the state proceeds as of right, it will accord with what is common in England and a part of our states to say, after properly entitling the cause : — Be it remembered, that George G. Wadley, Esquire, Attorney-General, etc. [or County Attorney, etc.], who prosecutes on behalf of the state, comes Minnesota. — S. v. Davis, 23 Minn. 433; S. V. Armington, 35 Minn. 39. Missouri. — S. v. England, 19 Mo. 386; S. V. Freeman, 31 Mo. 481; S. v. Eagan, 33 Mo. 459; S. v. Cutter, 65 Mo. 503; S. v. Osborne, 69 Mo. 143; S. V. Hatfield, 73 Mo. 518. And see Grim. Pro., I, § 665, note. Nevada.— S. v. Malim, 14 Nev. 388. New Jersey. — See Crim. Pro., I, § 665, note. New Mexico. — Territory v. Sevail- les, 1 New Mex. 119. New Ywk. — Woodford v. P., 5 Thomp. & C. 539; P. v. Bennett, 37 N. Y. 117; Keefe v. P., 40 N. Y. 348; P. V. Smith, 1 Parker C. C. 339; P. v. Thoms, 3 Parker C. C. 256; P. v. Sweetman, 3 Parker C. C. 358; Good- rich V. P., 3 Parker C. C. 632; Didieu V. P., 4 Parker, C. C. 593; Cantor v. P., 5 Parker, C. C. 217; Hayes v. P., 5 Parker, C. C. 335; Cohen v. P., 5 Parker, C. C. 330; Quinlan v. P., 6 Parker, C. C. 9; P. v. Cooke, 6 Parker, C. C. 31. And see Crim. Pro., I, § 665, note. North Carolina. — S. v. Smith, 3 Hawks, 378; S. v. Jasper, 4 Dev. 333; S. V. Cobb, 1 Dev. & Batt. 115; S. V. Davis, 3 Ire. 153; S. v. Huntly, 3 Ire. 418; S. v. Farmer, 4 Ire. 234; S. V. Tolever, 5 Ire. 453; S. v. Clark, 8 Ire. 336; S. W.Williams, 7 Jones (N. C), 446; S. V. Whitehurst, 70 N. C. 85; S. V. Walker, 87 N. C. 541. 0/ito.— Mackey v. S., 3 Ohio St. 363, Co6; Fonts v. S., 8 Ohio St. 98, 116; Bobbins v. S., 8 Ohio St. 131, 132; Clarke v. S., 8 Ohio St. 630; Davis v. S., 19 Ohio St. 270, 271; Egner v. S., 25 Ohio St. 464, 465. Pennsylvania. — The common form of commencement appears to be: " The grand inquest of the common- wealth of Pennsylvania, inquiring in and for the county of , upon their oaths and solemn affirmations respectfully do present." But there are slight variations. Com. v. Sharp- less, 2 S. & R. 91; Sherban v. Cora., 8 Watts, 212; Comfort v. Com., 5 Whart. 437; Com. v. Jackson, 1 Grant (Pa.), 363; Hackett v. Com., 3 Harris (Pa.), 95; Campbell v. Com., 3 Norris (Pa.), 187; Turner v. Com., 5 Norris (Pa.), 54; Brandt v. Cora., 13 Norris (Pa.), 290. Tennessee. — S. v. Saylor, 6 Lea, 586. Texas. — Garling v. S., 3 Texas Ap. 44; Conner w S., 6 Texas Ap. 455, 457; Ferguson v. S., 6 Texas Ap. 504. Fermonf.— See Crim. Pro., I, § 665, note. Virginia. — Johnson v. Com., 29 Grat. 796. West Virginia. — S. v. Baltimore, etc. R. Co., 15 W. Va. 362; S. v. Lusk, 16 W. Va. 767. Wisconsin. — See Crim.Pro.,I,g 665, note. United States. — The form varies somewhat with the practice in the particular state in which the district is located. And see U. S. v. Paul, 6 Pet. 141 ; tr. S. v. Mulvaney, 4 Parker, C. C. 164; U. S. V. Wilson, Bald. 78; U. S. V. Dawson, Hemp. 643, 644. 1 Crim. Pro., I, §§ 144-147, 712-715. 30 CH. V.J INTEODUCTOEY, CLOSING, INDOESEMENTS. [§§ 61-04. here in person into court, at this term thereof, and for the state gives the court to understand and be informed, that, etc.i In other states, — the form Avould vary, but it may be: — George G. Wadley, Esquii-e, etc., comes here into court, on, etc., and in the name and on behalf [and by the authority 2] of the state, gives this court to understand and be informed.' § 61. Thirdly. Before a magistrate: — Yaridble. — The form of the information, complaint, or affi- davit, on a proceeding commonly instituted by a private person or a police officer before an inferior magistrate,* differs in our states. § 63. In England. — Chitty's form for the commencement is : — Middlesex, to wit. The information and complaint of James Johnson, of, etc., taken and made on the oath of the said Johnson, before me, Rich- ard Robinson, Esquire, one of his majesty's justices of the peace in and for the said county, on, etc., who on his oath saith, that, etc. Or,- Middlesex, to wit. Be it remembered, that, on, etc., in, etc., James John- son, of, etc., in his proper person cometh before me, Richard Robinson, Es- quire, one of his majesty's justices of the peace in and for the said county, and upon his oath maketh complaint, that, etc.^ § 63. With us, — the commencement follows more or less closely these English forms, but varying with the local practice and the tastes of the particular pleader.' § 64. Fourthly. More counts them one: — How. — Where there are more counts than one, the com- mencement, unlike the caption which covers the entire indict- ment, should be repeated at each count. But since it is permissible to refer from one count to another,' this is com- monly done in an abbreviated form, thus, — And the jurors aforesaid upon their oath aforesaid do further present* lOrim. Pro., I, § 146; 3 Chit. Grim. Sneed v. P., 38 Mich. 348; Crim. Pro., Law, 6; Archb. Crim. PL & Ev. (19th I, § 146, note. ed.) 116; Rex v. Stratton, 31 Howell ^Crim. Pro., I, §§ 148-154, 330-339a, St. Tr. 1045, 1049; Rex v. Wilkes, 19 716-737. Howell St. Tr. 1383; Rex v. Sutton, 54 chit. Crim. Law, 1. 1 Saund. 369d; Com. v. Feely, 3 Va. « Kinsman v. S., 77 Ind. 133; S. v. Gas. 1; Com. v. Stockley, 10 Leigh, Thompson, 44 Iowa, 399; S. u. Woulfe, 678. 58 Ind. 17; Schmidt v. S., 78 Ind. 41; 2 Crim. Pro., I, § 668. Housh v. P., 75 111. 487. sp. V. McKinney, 10 Mich. 54; 7 Crim. Pro., I, §§ 439-431. Shafer v. S., 18 Ind. 444; S. v. Smith, 8 2 Chit. Crim. Law, 3; S. v. MoAl- 13 Kan. 374, 377; S. v. Cassady, 13 lister, 36 Me. 374. Kan. 550; Walker v. S., 33 Ind. 61; 31 §§ 65-67.] COMMON TO ALL OFFENSES. [bOOK II. Or,- And the attorney as aforesaid, who prosecutes as aforesaid, [in some states adding,^ in the name and by the authority aforesaid], further gives this court to understand and be informed.2 III. The Concluding Paet. § 65. Diversities in our states. — Under the differing writ- ten constitutions and statutes of our states, tiiere are consider- able diversities as to what the concluding part of an indictment must contain.' § 66. At common law, — the following, not considering now whether anything or what further is required in nuisance and treason,* is the form : — Against the peace [and dignity 5] of the State [or Commonwealth, or United States of America *]. On statute. — "Where the indictment is on a statute, the con- clusion is — Against the peace [etc., as above], and contrary to the form of the statute [or statutes''] in such case made and provided.' Constitutional forms. — If the constitution prescribes a form of conclusion, the pleader should carefully copy its words.' § 67. Every count. — Except where a statute permits other- wise, this conclusion must be attached to each several count.'" ICrim. Pro., I, §668. Whiting v. S., 14 Conn. 487; P. v. 2 2 Chit. Crim. Law, 6. Winkler, 9 CaL 234; Cross v. P., 47 3 As to the whole question, see 111.153; Coggins v. S., 7 Port. 263; S. Crim. Pro., I, §§ 647-653a. v. Click, 2 Ala. 36; [Frisbie v. U. S., And as the court judi- jury meant to follow the burning cially knows that straw mattresses are not essential elements in the of- and lucifer matches are "goods and f ense. chattels " and a house is a " build- 3 Com. V. Bradford, 136 Mass. 43. ing," there seems to be no necessity * For forms, see Com. v. Goldstein, for the allegation to contain these 114 Mass. 373; Reg. v. Child, Law R. quoted words, followed by "to wit." 1 C. C. 307; Com. v. Macomber, 3 Crira. Pro., I, g§ 514, 568, 570, 612, 616, Mass. 354; 6 Cox, C. C. Ap. 33, 105- 619; Stat. Crimes, §§ 436, 440. 107. 96 CH. XIII.] AESON AND OTHEE BITENrNGS. [§§ 188-190. to defraud an insurance company known by the name of, etc. ; against the peace, etc.' § 188. Person being in house. — Under a statute declaring it felony to " unlawfully and maliciously set fire to any dwell- ing-house, any person being therein," ^ the allegations may be, — That A., etc., on, etc., at, etc., did feloniously, unlawfully and maliciously set flre to his own dwelling-house there situate, his wife Y. being then in said dwelling-house [or the dwelling-house of one X. there situate, the said X., and Z. the wife of the said X., and another person whose name is to the jurors unknown, being there in said dwelling-housej; against the peace, etc.3 § 189. Statutory degrees. — Some forms under statutes di- viding arson into degrees ^ appear in the cases cited in the note.' §190. Accessories — Principals of second degree. — In a note, also, cases are referred to containing the allegations against the accessory.® But, for practical use, nothing more or better is required for charging the accessory whether before or after the fact, and the principal in the second degree, than the general forms given in another chapter.' As to them, the offenses now under consideration present no peculiarities. lEeg. V. Lyons, Bell, C. C. 38, 43, 8 at least, the better practice, wherever Cox, C. C. 84. its omission is not expressly sano- 2 24 & 25 Vict., c. 97, § 3. tioned by a statute or judicial de- 3 Archb. Crim. PL & Et. (10th ed.) cision. 817, (19th ed.) 562; Reg. v. Paice, 1 ^Crim. Law, II, §19; Crim. Pro., Car. & K 73; Reg. v. Fletcher, 2 Car. II, § 48a. & K 313; Levy w P., 80 N. Y. 327, 5 First degree. Woodford v. P., 63 338; Woodford v. P., 63 N. Y. 117, N. Y. 117, 119, 5 Thomp. & C. 539; 119, 5 Thomp. & C. 539; Didieuw P., Didieu v. P., 4 Parker, C. C. 593 (re- 4 Parker, C. C. 593 (finally adjudged versed, but not for any defect in the 22 N. Y. 178). In these New York indictment, 33 N. Y. 178); Levy v. forms, the burning is properly al- P., 80 N. Y. 337, 338. Second degree, leged to be in the night, for so the Peverelly v. P., 3 Parker, C. C. 59, 61 ; statute requires the fact to be. But S. v. Cohn, 9 Nev. 179, 180. Third the name of the person in the house degree. McDermott v. P., 5 Parker, is not in all of them given; why, I C. C. 103; McGarry r. P., 3 Lans. 237. have not inquired. It is in all the 6 Levy v. P., 80 N. Y. 337, 338; Mc- English forms. Possibly there may Lane v. S., 4 Ga. 335; S. v. Bicker, 39 be a difference of opinion as to the Ma 84; Hunter's Case, 1 Lewin, 3, 4; necessity of alleging the name. I P. v. Thompson, 37 Mich. 118. should recommend its insertion as, ^ Ante, ^% ll'i-122, 7 97 §§ 191, 192.] SPECIFIC OFFENSES. [book III. II. Attempts. § 191. Elsewhere — Here. — In addition to the general forms for charging the attempt, given in a previous chapter,^ it is deemed best to insert in this place some particular ones. Thus, — § 192. Burning own house to burn neighbor's.^ — Condens- ing some forms from Chitty, we have the following, believed to be good at the common law : — That A., etc., on, etc, at, etc. [unlawfully and maliciously 3] devising and intending to feloniously and maliciously burn and consume the house of one X there situated, did then and there, with the said intent so to burn and consume the said house of X, unlawfully and maliciously set Are to and burn his own house contiguous and near thereto; against the peace, etc.* 1 Ante, §§ 100-113. 2 Crim. Law, I, § 765; II, § 20. 3 When these or other similar ad- verbs are made to qualify the verbs " burn and consume," as in this form, I cannot see the necessity of insert- ing them here also, and I should think it reasonably safe to omit them. See post, § 194 *3 Chit. Crim. Law, 1129-1131a. Chitty's forms are much more volu- minous, but I cannot discover that this condensation omits anything which any legal person would deem essential For other forms, see Rex V. Wead, 4 Went. PL 59, 60; Rex v. Broome, 4 Went. PI. 21. And see 4 Went. PI. 58. One of Chitty's forms — 3 Chit. Crim. Law, 1129 — is the fol- lowing: — That A., etc., on, etc., at, etc., un- lawfully and maliciously devising and intending to set fire to and burn a certain house belonging to him the said A., there situate, [with force and arms, useless] unlawfully, wickedly and maliciously did set fire to a cer- tain part of the wooden floor of and belonging to the said house, which said wooden floor was then and there placed on the ground floor of the said house, which said house was then and there contiguous and near to certain dwelling-houses of and be- longing to divers of the liege subjects of our said lord the king, situate at, etc., aforesaid, with a wicked inten- tion, by means of such setting fire to the said part of the said wooden floor of and belonging to the said house of the said A., then and there unlaw- fully, wilfully and maliciously to burn the said house of the said A. [so far, it is plain, no offense at the com- mon law is set out, unless the mere fact of contiguity to other houses will supply the defect. Crim. Law, I, g§ 318, 514, 559, 577; II, §§ 12, 21]; to the great damage, danger, terror and affrightment of the liege sub- jects of our said lord the king near the house of the said A. then and there inhabiting and dwelling, in contempt of our said lord the king and his laws, to the evil example, etc., and against the peace, eta Assuming the body of this indict- ment to charge no offense, it is not quite plain how the conclusion can make up the deficiency. Evidently it is not good for an attempt; be- cause this requires a specific intent to burn the neighbor's house, and here the alleged intent is simply to burn his own. Crim. Law, I, g§ 729, 731. Still it is possibly good as for a public nuisance, but in the absence of adjudications directly sustaining it I should advise further allegations showing the publicity of the place. 98 OH. Xni.] AESON AND OTHEE BUENINGS. [§§ 193, 194, § 193. Special statutory felony. — The indictment on a stat- ute making it felony to " unlawfully and maliciously, by any overt act, attempt to set fire to any building, etc., under such circumstances that if the same were thereby set fire to the offender would be guilty of felony," ^ may allege, — That A., etc., on, etc., at, etc., did feloniously, unlawfully and maliciously attempt, by then and there, etc. [stating the overt act], to feloniously, un- lawfully and maliciously set fire to a certain building, to wit, etc., there situate and then belonging to one X [with intent thereby then and there to injure the said X^]; against the peace, etc.' § 194. Another statutory attempt. — Under a statute, sub- stantially in the terms of the unwritten law, providing a pun- ishment for " every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do an act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the exe- cution of the same," * the allegations may be, — That A., etc., on, etc., at, etc., did attempt feloniously,^ wilfully and ma- liciously to set fire to and burn * a certain house of one X., there situate, and in pursuance thereof did then and there place and set flre to combus- tible materials on certain boards under said house, with the intent feloni- ously and maliciously to then and there burn thereby the said house [but did then and there fail to pei'petrate the offense thus intended ' ] ; against the peace, etc.' For the law in this view, see Crim. given in the last section, this sort of Law, II, § 31. adverb stands in both places, being 1 34 & 25 Vict., c. 97, § 8. repeated. Now, in both places, the 2 This averment, which is in the offense consists, not in the attempt form before me, is necessary only to burn, but to feloniously and ma- where such intent to injure consti- liciously burn — to commit the fel- tutes, by statute, an element in the ony of malicious burning. Hence, substantive burning attempted. whether we should trust to a court's 3 Archb. Crim. PL & Ev. (19th ed.) overlooking an inaccuracy of expres- 567. sion, or not, true precision requires * Mass. R. S., ch. 133, § 13; Crim. these adverbs to stand where they Law, I, § 743; Crim. Pro., II, § 86. will qualify "set fire to and bum." 5 Omit this " feloniously " if the at- And the statute proceeded on in this tempt is only misdemeanor. section has no qualifying words to ^ In one of the forms now before the intent. That in the last section me, the collocation of these words is has; therefore the form there has different; namely, "did feloniously, these words at both places, wilfully and maliciously attempt to ' This allegation, or something like set fire to and burn." In the form it, appears to be common in Massa- 8 Com. V. Flynn, 3 Cush. 539; Com. 230; Uhl v. Com., 6 Grat 706; Mc- V. Harney, 10 Met. 433. For other Dade v. P., 39 Mich. 50. forms, see S. v. Johnson, 19 Iowa, 99 §§ 196-198.] SPECIFIC OFFENSES. [bOOK III. § 195. Solicitations. — On a statute like the one quoted in the last section, or at common law, the indictment for a solic- itation, which is a form of attempt,^ may aver, — That A., etc., on, etc., at, etc., did unlawfully and maliciously [or, falsely and wickedly 2] solicit and incite' one B. to feloniously, unlawfully and maliciously * set flre to [or burn, or set fire to and burn] a certain house of one X, situate, etc.* [with intent to injure said X^ ]; against the peace, etc' III. Peaotical Suggestions. § 196. Joining substantive oifense and attempt. — By the rules of the common law, the misdemeanor of an attempt to commit the felony of arson cannot be joined in an indictment for the felony. But generally, in our states, the obstacle is in one way or another removed by legislation;' and, where it does not interpose, the judicious prosecuting officer will, in all cases of possible doubt as to the completion of the offense, so shape his allegations that the conviction may be for the at- tempt should no more be proved. So, — §197. Ownership. — If it is uncertain who will be shown at the trial to have been the owner of the structure burned, counts should be joined laying the ownership in different per- sons.' But — § 198. Methods of oifending. — We have seen that the forms do not specify the manner of a substantive burning, yet they do that of an attempt. Still, for neither is it ordinarily neces- sary or judicious to allege different means in different counts; chusetts under the statute now in omit these words, see note to the last contemplation; but, in reason, such section. failure is not an essential part of the ' Crim. Pro., II, § 74 prima fade offense of attempt, ^ Add, " in the night time," where therefore it is probably not neces- such is an element in the offense so- sary. See ante, § 183, first note to licited. the form, and the places there re- ^It is not necessary, in point of ferred to. In New York, under a law, that the house should be lo- statute in like terms, this allegation cated in the county of the solicita- does not appear in the cases of at- tion. Crim. Pro., I, § 57. tempted arson now before me, ^ gee ante, § 193 and nota wherein the indictments were sus- ' P. v. Bush, supra; P. v. Thomp- tained. P. v. Bush, 4 Hill (N. Y.), 133; son, 37 Mich. 118; McDermott v. P.» McDermott v. P., 5 Parker, C. C. 102. 5 Parker, C. C. 103. And see 3 Chit. And see Crim. Pro., II, § 86; post, Crim. Law, 1139; post, § 258. §360. 8 Crim. Law, I, §§ 804-809; S. v. 1 Ante, §§ 105, 106. Sloanaker, 1 Houst. Crim. 63, 65. 2 P. V. Bush, 4 Hill (N. Y.), 133. Or 9 Compare with ante, § 160. 100 €H. XIII.J AESON AND OTHER BURNINGS, [§ 199. but, where there is no repugnance, it is better to lay in one count all the ways within the probable proofs, and then the charge will be sustained by showing enough to constitute an offense.^ § 199. The defendant — will avail himself of the mistakes of the prosecuting officer and the weakness of his proofs. And, as in most cases the evidence will be circumstantial, he will have the usual facilities for creating doubts^ which this species of evidence affords. 1 Ante, § 19 et seq. 2 Ante, § 163. 101 OHAPTEE XIV. ASSAULT AND BATTERY.l § 200. Introduction. 201-210. The indictment in general 211-226. Special forms and aggravations. 227-229. Practical suggestions. §200. How chapter divided.— We shall consider, I. The indictment in general; II. Special forms and aggravations; followed by, III. Practical suggestions. I. The Indictment nr Geneeal. § 201. Simple assaalt and battery at common law. — Chitty's form is, — That A., etc., on, etc. [with force and arms 2], at, etc., in and upon one X. [in the peace of God and our lord the king then and there being '], did make an assault [thus far an assault is alleged, what follows is a charge of a battery *], and him the said X. then and there did beat, bruise, wound and ill-treat [so that his life was greatly despaired of '], [and other wrongs to the said X then and there did"]; [to the great damage of the said X.^], and against the peace, etc.^ 1 For direct discussions of these of- * Chitty recommends the omission fenses, with the pleading, practice of these words " when only a slight and evidence, see Crim. Law, IL assault can be proved." 3Chit. Crim. §§ 22-62, 69a-72e; Crim. Pro., II, Law, 821, note. They are never neo- §§ 54-70a; Stat. Crimes, §§ 500-515. essary. Crim. Pro., II, § 55 and note. Incidental, Crim. Law, I, g§ 260, 413, Practically, if, in an extreme case, note, 422, 470, 548, 553, 736, 746, 788, the pleader wishes to state anything 792, 795, 843, 861, 862, 867; II, §§ 698- of the sort, it will be better to give 713; Crim. Pro., I, g§ 82, 411, 413, 437, the pertinent facts, and not the "de- 438, note, 452, 469, 481, note, 548, 617; spair " of unnamed third persons. II, §§ 6a, 25, 26, 77-85, 297, 303, 366, 6In reason, these indefinite words 512, 513, 554, 579, 646, 651-654, 658, cannot afford foundation for any 692, 859, 881-883, 955, 992, 993, 1000 ; proofs. And it la believed that the Stat. Crimes, §§ 216, 320, note, 496- courts will so treat them. Crim. 499,744. Pro., II, §57. Plainly, then, it is prac- 2 Not necessary. Ante, § 43. tically best to omit them. 3 Unnecessary. Ante, § 47, and 'Unnecessary. Ante, % i6; Crim. places there referred ta Pro., II, § 57. 338; P. V. Smith, 1 Parker, C. C. 339; [P. V. Bosworth, 64 Hun, 73; P. v. Haight, 54 Hun, 8.] North Carolina. — S.u Jim,3 Murph. 3; S. v. Dozier, 73 N. C. 117; S. v. Jor- dan, 75 N. C. 27; S. u Hughes, 86 N. C. 662; [S. v. Titus, 98 N. C. 705; S. V. Johnson, 119 N. C. 883.] Ohio. — Spencer v. S., 13 Ohio, 401; Hartshorn v. S., 23 Ohio St. 635; Hagar v. S., 35 Ohio St. 368; a v. Beal, 37 Ohio St. 108, 109. Pennsylvania. — Stewart v. Com., 4 a & R 194; Stoops v. Com., 7 a & 132 CH. XVIII.J BTJEGLAET AND OTHEK BKEAKINGS. [§ 256. in a particular way when committed in the night, and less heavily when committed in the day, the averment of time, at least by the better opinion, may be that they were done on a day named, with no mention of the hour; while, if in fact they transpired in the night, the defendant may be convicted, yet only the punishment for day-breaking can be imposed.^ Or the allegation may be, — That, etc. [as in the foregoing formula], on, etc., about the hour of three in the afternoon of said day [or, in the day-time of said day], etc.2 § 256. Principals of second degree and accessories. — The methods of joining principals of the second degree, and acces- sories both before and after the fact, which last include under the modern statutes receivers of goods feloniously stolen, are R 491; Hackett v. Com., 3 Harris (Pa.), 95; Hollister v. Com., 10 Smith (Pa.), 103; RoIIand v. Com., 1 Nor- ris (Pa.), 806. Rhode Island. — S. v. Colter, 6 R. L 195.' [South Carolina. — S. v. Dawkins, 33 S. C. 17.] [South Dakota. — S. v. Le Croy, 8 S. D. 369.] Tennessee. — Davis v. S., 3 Coldw. 77; Wynne v. S., 5 Coldw. 319; Pardue V. S.,,4 Baxter, 10; Adkinson v. S., 5 Baxter, 569; Wormack v. 8., 6 Lea, 146; [8. ■;;. 8helton, 90 Tenn. 589.] Texas. — B. v. Eobsrtson, 33 Tex. 159; 8. V. Williams, 41 Tex. 98; Shep- herd V. S., 43 Tex. 501 ; Johnson v. 8., 1 Tex. Ap. 146, 150; White v. S., 1 Tex. Ap. 311; Searcy v. S., 1 Tex. Ap. 440, 441; Martin v. 8., 1 Tex. Ap. 535, 537; Simms v. 8., 2 Tex Ap. 110; Conoly V. 8., 3 Tex. Ap. 413; Coleman V. 8., 3 Tex. Ap. 513; Burke v. 8., 5 Tex. Ap. 74, 76; Beeves v. 8., 7 Tex. Ap. 376; Brown v. 8., 7 Tex. Ap. 619, 630; Webster v. S., 9 Tex. Ap. 75; Mace V. 8., 9 Tex. Ap. 110, 111; Sum- mers V. 8., 9 Tex. Ap. 896; Hamilton V. 8., 11 Tex. Ap. 116; Cohea v. 8., 11 Tex. Ap. 633; Lawson v. 8., 13 Tex. Ap. 264; [Bigham V. 8., 31 Tex. Grim. R 244; Scroggins v. 8., 36 Tex. Crim. R. 117.] Vermont— B. v. Clark, 43 Vt. 639; S. V. Bishop. 51 Vt. 287. Virginia. — Vaughan v. Com., 17 Grat. 576; Walker v. Com., 28 Grat. 969; Johnson v. Com., 39 Grat. 796. [Washington. — S. v. Miller,3 Wash. 131.] West Virginia. — 8. v. McDonald, 9 W. Va. 456; 8. v. Betsall, 11 W. Va. 703, 705; [8. v. McClung, 35 W. Va. 280.] Wisconsin. — Powell v. S., 53 Wis. 317. United States.— U. S. v. Paul, 6 Pet. 141 (place within the jurisdic- tion of the United States); [U. S. v. Saunders, 77 Fed. R. 170.] iCrim. Pro., H, § 183a; Com. v. Reynolds, 133 Mass. 454, 456, 457; But- ler V. P., 4 Denio, 68; Summers v. S., 9 Tex. Ap. 396, 398. Apparently con- tra is Hall V. P., 43 Mich. 417. 2 Rex V. Marshall, 4 Went. PI. 53; Rex V. Mouncer, 3 Leach (4th ed.), 567; Rex v. Marshall, 1 Moody, 158; Rex V. Byford, Russ. & Ry. 531; S. v. Jim, 3 Murph. 3; S. u Colter, 6 R. L 195. 133 §§ 257-259.] sPECiFio offenses. [book hi. explained in an earlier chapter.^ Some references to cases con- taining forms in burglary and other like breakings may be convenient.' § 257. Degrees. — The division of burglary into degrees, in two or three of the states, creates in them some questions as to the indictment.' Eut they are simple, and the reader can refer to the cases cited for forms.* II. The Indictment foe the Attempt. § 258. By solicitation. — Filling up the outline of the in- dictment for a criminal solicitation already given,^ we have the following form for the misdemeanor of a solicitation to com- mit a felonious burglary, good at the common law, and equally so upon a statute if duly expanded to cover its terms, — That A., etc., on, etc., at, etc. [maliciously devising and intending to pro- cure and cause the commission of the felony hereinafter specified <>], did then and there solicit and incite one X. burglariously and feloniously in the night-time to break and enter the dwelling-house of Y., at, etc.,' and then feloniously to steal, take and carry away the goods and chattels therein found * [or, then and therein of his malice aforethought feloniously to kill and murder the said Y.; or, then and therein feloniously to ravish and carnally know the said Y. forcibly and against her will; or, if the pleader chooses, he may Insert all these and other felonious intents in the one count, connecting them by the conjunction and^; against the peace, etc. § 259. By unsuccessful act. — Filling up in this place also an outline already given,^" we have the following, good at the 1 Ante, §§ 113-118. we may deem it, is of strict rule 2 Against principal and accessory necessary. Crim. Pro., II, § 74; ante, before the fact. — Rex v. Dannolly, § 195. Russ. & Ry. 310; S. v. Carver, 49 Me. 'It is not essential that the place 588; Com. v. Glover, 111 Mass. 395; of the solicited burglary should be Hartshorn w S., 29 Ohio St. 635; Loyd in the county of the indictment. V. a, 43 Ga. 231; Cohea v. S., 11 Tex. Crim. Pro., I, §S 53, 57. Ap. 633. Against principal and re- 8 it is evident that no other allegar ceiver of the goods. — Com. v. Dar- tion of time than that it was in the ling, 139 Mass. 113. night is necessary to these aver- 'Crim. Pro., II, § 130 and cases ments, and probably none of place; there cited. because, in point of law, it is imma- *S. V. Tutt, 63 Mo. 595, 596; Butler terial when and where the solicited V. P., 4 Denio, 68. burglary was to be committed. 5 Ante, § 106. 9 Crim. Pro., I, § 439; II, §§ 74, 93. •i I do not understand that this mat- 1" Ante, § 111, ter in brackets, however appropriate 134 CH. XTIII.] BUKGLAET AND OTHEE BEEAKINQa. [§§ 260, 261. commoii law, and upon any statute the words of which it duly covers, — That A., etc., on, etc., about the hour of eleven in the night-time of the same day, at, etc., ■with the malicious [and felonious i] intent then and there burglariously and feloniously to break and enter the dwelling-house of one X. there situate, and feloniously to steal, take and carry away the goods and chattels therein found, did then and there burglariously and feloni- ously put his hands upon a closed window of said dwelling-house and en- deavor to raise the same, and with a false key and with some other imple- ment to the jurors unknown endeavor to open a closed outer door of said dwelling house; against the peace, etc.^ § 260. Same by taking impression of key, etc. — Under a statute in terms as given in another chapter,' following the unwritten law, the allegations may be, — That A., etc., on, etc. [no need to say here in the night], at, etc., unlaw- fully [and feloniously *] devising and intending burglariously and feloni- ously to break and enter in the night-time the storehouse of X there situ- ate, and feloniously to steal, take and carry away the goods and chattels therein found, did then and there, to facilitate such breaking and entering, unlawfully, [feloniously], and privately take an impression of the key which unlocked an outer door of said storehouse, and from said impression did then and there make and prepare a false key for the unlocking, breaking and entering of said storehouse; against the peace, etc.* § 261. Possessing implements. — Under a statute to punish as a felon one " who shall knowingly have in his possession any engine, machine, tool or implement adapted and designed for cutting through, forcing or breaking open any building, room, vault, safe or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same for the purpose aforesaid," the allegations may be, — That A., etc., on, etc., at, etc., did feloniously and knowingly have in his possession thirty false keys,' etc., adapted and designed for forcing and breaking open houses, stores, shops, rooms, safes, trunks and vaults, in order 1 Required only when the indict- ' GriflSn v. S., 36 Ga. 493. See ante, ment is on a statute making the at- § 194 and note. tempt a felony. « It is not necessary to say, as in 2 Compare with forms in Hackett the form before me, "certain imple- V. Com.,3 Harris (Pa.), 95; S.tt Jordan, ments, that is to say, thirty," etc.; 75 N. C.27; [White v. P., 179 IlL 356.] for the court will judicially know 3 Ante, § 194. that the things mentioned are imple- *Neoessary only where the attempt ments. Ante, § 187, note, and places is felony. there referred ta 185 § 261.J SPECIFIC OFFENSES. [bOOK III. feloniously to steal, take and carry away therefrom such money and other property capable of being stolen as might be found therein; he the said A. then and there feloniously, knowing the said implements and tools to be adapted and designed for the said purpose, intending to use and employ them therefor; against the peace, etc.i 1 Com. V. Tivnon, 8 Gray, 375. For house with intent to steal, Kerkin other forms, see Archb. Grim. PI. & v. Jenkins, 9 Gox, C. C. 311, 6 Cox, Ev. (19thed.)550;6Gox,G.C. Ap.66; C. G. Ap. 67. Armed with intent to Reg. V. Bailey, Dears. 344, 6 Cox, C. G. break into house. 6 Cox, C. 0. Ap. 241; Reg. V. Thompson, 11 Cox, G. C. 66, 68. 362. Being foaud in dwelling- For BURIALS, see Sepulture. BURNING BUILDINGS, see Arson, etc BY-LAWS, see ante, §§ 133-136, 171. CARNAL ABUSE, see Rape, etc. 136 OHAPTEE XIX. CAERYING WEAP0NS.1 § 262. Common-law'' indictment, — Slightly modifying and abridging the terms of an indictment adjudged good at the common law, we have the following: — That A., etc., on, etc., at, eta, did arm himself with pistols, guns, knives and other dangerous and unusual weapons, and thereupon while so armed did then and there, both in the night-time and in the day-time, go forth into the highways and other public places exhibiting himself to the people there, and then and there to and in the presence of the said people did pub- licly proclaim and declare it to be his purpose and intent, and it then and there was his purpose and intent, to beat, wound, kill and murder one X and other persons there being, whereby the public peace was then and there broken, and all persons then and there being were greatly terrified; against the peace, etc' § 263. Formula on statute. — The statutes creating this of- fense differ so much in their terms and meaning that it becomes specially diflRcult to construct a general formula for the indict- ment on them. The following may be of some service : — That A., etc. [ante, §§ 74^77], on, etc., at, etc. [ante, § 80], did go about the streets and other public places there [or otherwise as the particular statutory terms may require], carrying concealed upon his person [or openly carrying and exhibiting to the terror of the people, or otherwise following the statu- tory terms and meaning] two deadly weapons, to wit, a pistol loaded with powder and ball, and a bowie-knife; he the said A. not being then and there a traveler [or otherwise negativing the exceptions of the statute] ; against the peace, etc. [ante, §§ 66-69].* § 264. Concealed weapon. — Under a statute making it a punishable misdemeanor in " every person not being a traveler, 1 For the direct discussion of this ^S. v. Huntly, 3 Ire. 418. offense, including the pleading, prac- * For forms see Eex v. Dennis, tice and evidence, see Stat. Crimes, Trem. P. C. 330; Reg. v. Jarrald, Leigh §§ 781-801. Incidental, Id., § 338; & C. 301, 9 Cox, C. C. 307. Crim. Pro., I, § 588; S. v. Ball, 73 Miss. Alabama.— S. v. Click, 3 Ala. 36; 67; Redus v. State, 83 Ala. 53; Craw- Jones v. S., 63 Ala. 37. ford V. S., 94 Ga. 773; S. v. Workman, ^Irfcansas.— Wilson v. S., 33 Ark. 35 W. Va. 367; BeU v. S., 89 Ala. 61; 557; Carr v. S., 34 Ark. 448; Walker S. V. Nelson, 38 La. Ann. 943; Harris v. S., 85 Ark. 386. -w. S., 33 Tex. Ap. 677. Indiana.— S. v. Swose, 20 Ind. 106; 2 Stat. Crimes, §784 137 §§ 265-267.] SPECIFIC offenses. [book hi. who shall wear or carry any dirk, pistol, bowie-knife, dagger, sword in cane, or any other dangerous or deadly weapon, con- cealed," the allegations may be, — That A., etc., on, etc., at, etc., not being then and there a traveler, diii carry concealed about his person a fire-arm called a revolver, which then and there was a dangerous weapon; against the peace, etc.' § 265. Same on another statute. — Under a statute making it a punishable misdemeanor " if any person shall hereafter carry any concealed deadly weapons, other than an ordinary pocket-knife, except as provided in the next section," the in- dictment, when the matter of the next section is of a sort not required by the rules of pleading to be negatived therein,* may be, — That A., etc., on, etc., at, etc., did carry concealed [about his person '] a certain deadly weapon commonly called a slung-shot, and other deadly weapons to the jurors unknown, every one of said deadly weapons being other than an ordinary pocket-knife; against the peace, etc.* § 266. Carrying privately, to terror. — Upon a statute making it a punishable misdemeanor to " privately carry any dirk, large knife, pistol, or any dangerous weapon, to the fear or terror of any person," it is good in allegation to say, — That A., etc., on, etc., at, etc., unlawfully did privately carry, to the fear and terror of persons then and there being, a certain large knife, which then and there was a dangerous weapon; against the peace, etc.* § 267, Armed into assembly, not being officer. — Where it is a statutory misdemeanor for one to " go into any church or religious assembly," etc., and " have or carry about his person S. V. Judy, 60 Ind. 138; Ridenour v. 244; Rainey v. S., 8 Tex. Ap. 62; Pick- S., 65 Ind. 411; S. v. Boss, 74 Ind. 80. ett i'. S., 10 Tex. Ap. 290. Kentucky.— Com. v. McClanahan, i S. v. Swope, 20 Ind. 106. 2 Met. (Ky.) 8. 2 Crim Pro., I, §§ 636-639. Massachusetts. — Com. v. O'Connor, s These words are not in the form 7 Allen, 583; Com. v. Doherty, 103 before me; but, if the court should Mass. 443. interpret the statute as embracing North Carolina. — S. v. Newsom, 5 them in meaning, so that it would Ire. 250. not be an offense to carry the weapon Tennessee. — S. v. Wilburn, 7 Bax- apart from the person in a trunk or ter, 57, 63; Porter v. S., 7 Baxter, 106; under the seat of a vehicle in which S. V. Bentley, 6 Lea, 205. one was riding, the indictment would Texas.— Scott v. 8., 40 Tex. 503; probably be held ill without them. Smith V. S., 42 Tex. 464; Porter v. S., Crim. Pro., I, g§633-628; Stat. Crimes, 1 Tex. Ap. 477; Lewis v. S., 3 Tex. § 796. Ap. 26; Leather wood v. S., 6 Tex. Ap. * Com. u. McClanahan, 3 Met. (Ky.)& ' S. V. Bentley, 6 Lea, 305. 138 OH. XrX.] CAEETING WEAPONS. [§ 268. a pistol or other fire-arm, etc., unless an ofiBcer of the peace," the allegations may be, — That A., etc., on, etc., at, etc., unlawfully did go into a certain religious assembly of persons met for public religious worship, near, etc., and did then and there in said assembly have and carry on his person a certain pistol, he, the said A., not being then and there an oflScer of the peace; against the peace, eto.i § 268. Having dangerous weapon when arrested. — Under a statute making punishable for misdemeanor one who, " when arrested upon a warrant of a magistrate issued against him for an alleged offense against the laws of this state, etc., is armed with, or has on his person, slung-shot, metallic knuckles, billies, or other dangerous weapon," ^ it is believed to be sufficient in averment to say, — That A., etc., on, etc., at, etc., being duly and lawfully arrested by X, a constable of said town, on a valid and sufficient warrant duly issued by T., esquire, a justice of the peace in and for said county, having lawful juris- diction in the premises, for and on a charge of larceny alleged to have been theretofore committed by the said A. in said county,' then and there, while being so arrested, was armed with and did have on his person a certain dangerous weapon, to wit, a pistol loaded with gunpowder and a leaden bullet, and capped; against the peace, etc.* 1 Porter V. S., 1 Tex. Ap. 477. *Com. v. Doherty, 103 Mass. 443. 2 Mass. Gen. Stats., ch. 164, § 10. And see the form in Com. v. O'Con- ' On the question of the sufficiency nor, 7 Allen, 583, on another clause of this part of the form, see the elu- of the same statute. See Stat. Crimes, cidations of the chapter beginning § 796. ante, § 91. For CATTLE, see Animals. CEMETERIES, see Sepulture. CHALLENGE TO FIGHT, see DuELma 139 CHAPTER XX. CHAMPERTY AND MAINTENANCE.1 § 269. Practical disuse. — The importance of the title Cham- perty and Maintenance in the criminal law consists of the re- lation of these offenses to our civil jurisprudence. For the pure criminal wrong, as distinguished from the conspiracy to disturb the current of justice in the courts, there are no modern prosecutions either in England or the United States. Still, — § 270. Form for maintenance. — The books give us a form of the indictment for maintenance, differing in minor particu- lars, but nearly the same in substance in all of them, and the practitioner may possibly find a use for it. There may be room for the question whether its allegations are not in terms too general.'' It is, — That A., etc., on, etc., at, etc., did unjustly and unlawfully maintain and uphold a certain suit, which was then and there depending in the court of, etc. [naming the court], between X. as plaintiff and Y. as defendant, in a plea of, etc. [saying what, and perhaps particularizing the subject of the suit], to the hindrance and disturbance of the public justice of the state; against the peace, etc' 1 For the direct expositions of these '2 Chit. Crim. Law, 334; Rex v. offenses, with the pleading, practice Langrish, Trem. P. C. 176; Rex v. and evidence, see Crim. Law, II, Price, Trem. ;P. C. 177; 2 Stark. PI. §§ 121-140; Crim. Pro.,II,§§ 154-156. (2d ed.) 704; Train & H. Prec. 371; Incidental, Crim. Law, I, §§ 307, 541, 2 Morris, St. Cas. Ap. 1804; Davis, 943, note; Stat. Crimes, § 233. Prec. 164; Burn, Just., tit Mainte- 2 Crim. Pro., II, §§ 154-156, nance. 140 CHAPTEE XXI. CHEATS AT COMMON LAW.i § 271. Nature and importance, — The numerous modern statutes against obtaining money and goods by false pretenses have so far covered the indictable ground as almost to with- draw the attention of prosecutors from the common-law cheat. Yet, except in two or three states in which there are no com- mon-law offenses, the common law of cheat can often be invoked with effect to reach cases which, by accident, the tech- nical terras of the statutes have failed to include. The exposi- tions in " Criminal Law " will show that the law of this subject is reasonably plain ; though there are some nice questions upon which doubts and differences of judicial opinion may arise. §272. Formula for indictment. — The indictment may charge, — That A., etc. [ante, §§ 74-77], on, etc., at, etc. [ante, § 80], having in his possession a false token calculated and adapted to deceive, mislead, and cheat persons of ordinary caution and prudence, to vrit, -etc. [saying in what the false token consisted-, or, the pleader may otherwise so describe the transaction that the false token will appear], and then and there de- vising and intending thereby to cheat and defraud one 2. [or, whomsoever he could cheat and defraud], did then and there, etc. [saying what], all of which was, as the said A. then and there well knew, false [and, in proper circumstances, pointing out more minutely the falsity] ; by means whereof the said X, relying thereon and having faith and confidence in the truth thereof, did then and there, etc. [saying what X did, and otherwise explain- ing the fraud; or, instead of this, the indictment may, if the facts require, stop short so as to set out merely an attempt to cheat]; against the peace, etc. [awfe,§§ 66-69 •ij. 1 For the direct discussions of this ^ por forms see Trem. P. C. 85-110, offense, with the pleading, practice 238, 358, 368 (not all of the forms and evidence, see Crim. Law, II, here being, according to the later §§ 141-168; Crim. Pro., II, g§ 158- decisions, good); 4 Went. PI. 55, 73- 161. Incidental, Crim. Law, I, §§ 571, 79, 357-359; 6 id. 389-393; 3 Chit. 583-585; Stat. Crimes, g§ 260, 847. Crim. Law, 537, 539; 3 id. 698-700, And compare with Conspiracy; 1000-1004, 1017; Matthews, Crim. False Pketenses, etc. Law, 473; Archb. Crim. PL & Ev. 141 § 273.] SPECIFIC OFFENSES. [eOOK III. §273. Selling Iby false scales — (Common form). — The common English indictment for selling by false scales is, with its verbiage, — That A., etc., on, etc., and from thence until the taking this inquisition [the eontinuando is needless in setting out this offense, but if the pleader elects 1 to employ it, let him follow the slightly different words given ante, § 83], [at, etc., which is better than to lay the place as below], did use and exercise the trade and business of a shopkeeper, and during that time did deal in the buying and selling by weight of divers goods, wares and mer- chandises [to wit, at the parish aforesaid, in the county aforesaid. Not necessary if the place is laid as above]; and that the said A. [being a per- son of a wicked and depraved mind 2], and contriving and fraudulently in- tending to cheat and defraud the subjects of our said lord the king [whilst he the said A. used and exercised his said trade and business, to wit, on the said day of , and on divers other days and times between that day and the day of taking this inquisition, at the parish aforesaid, in the county aforesaid 3], did knowingly, unlawfully, wilfully and publicly keep in a certain shop there, wherein the said A. did so as aforesaid carry on his said trade and business, a certain false pair of scales for the weigh- ing of goods, wares and merchandises by him sold and disposed of in the way of his said trade and business; which said scales were then and there,* by artful and deceitful ways and means, so made and constructed as to cause the goods, wares and merchandises weighed therein and sold by the said A. as aforesaid to appear of much greater weight than the real and true weight thereof, to wit, by one-eighth part of such apparent weight; and that the said A. [on the day and year aforesaid, at the parish aforesaid, in (10th Lond. ed.) 296 ; [Beg. v. Verones, North Carolina. — S. v. Simpson, 3 1 Q. B. 360; Maxwell v. P., 158 111. Hawks, 620; S.t). Justice, 2 Dev. 199; 248; Jones v. S., 97 Ga. 430; Miller v. S. v. Burrows, 11 Ire. 477; S. v. Cor- S., 99 Ga. 207; S. v. MoManus, 89 N. C. bett, 1 Jones (N. C), 264; S. v. Boon, 555; Willisu. S., 105Ga.633; Warren 4 Jones (N. C), 463; S. v. Smith, 75 V. S., 94 Ala. 79;] Eex v. Snead, 2 N. C. 141. Show. 339; Eex v. Govers, Say. 206; Virginia. — Com. v. Speer, 3 Va. Reg. V. Macarty, 6 Mod. 301, 3 Ld. Cas. 65. Raym. 1179; Rex v. Wheatly, 2 Bur. United Siafes.— District of Colum- 1125, 1 W. Bl. 273; Rex v. Bower, bia. U. S. v. Watkins, 3 Granch, C. Cow p. 323; Rex v. Haynes, 4 M. & S. C. 441, 495. 214; Rex v. Lara, 2 Leach (4th ed.), ^Ante, % 81. 647, 6 T. E. 565; Reg. v. Marsh, 1 z Not necessary. Ante,%i6. Den. C. C. 505, 3 Cox, C. C. 570; Reg. " It is equally good in law while it V. Eagleton, Dears. 376, 515, 6 Cox, is briefer to say "then and there;" C. C. 559; Reg. v. Closs, Dears. & B. or, if this is deemed doubtful, "there 460, 7 Cox, C. C. 494. during the time aforesaid," as at ante, Massachusetts. — Com. v. Hearsey, § 84. 1 Mass. 137; Com. v. Warren, 6 Mass. * If "then and there " are not good 73, 74. ' in the place in brackets above, they New Yorh. — P. v. Baboock, 7 Johns, are not in this place. 201; P. V. Fish, 4 Parker, C. C. 206. 143 CH. XXI.J CHEATS AT COMMON LAW. [§ 274. the county aforesaid i ], he the said A. then and there well knowing the said scales to be false as aforesaid, did knowingly, wilfully and fraudu- lently sell and utter to one X [a subject of our said lord the king 2] certain goods in the way of the said trade of him the said A., to wit, a large quan- tity of sugar weighed in and by the said false scales as and for twenty pounds' weight of sugar, whereas in truth and in fact the weight of the said sugar so sold and falsely weighed as aforesaid was short and deficient of the said weight of twenty pounds, to wit, by one-eighth part of the said weight of twenty pounds [to wit. at the parish aforesaid, in the county aforesaid']; [to the great damage of the said X., to the evil example of all others^], and against the peace, etc.^ § 274. False dice. — Adhering less closely to the mere words of forms in the old books, and rejecting what is certainly rub- bish, we have, — That A., etc., on, etc., at, etc., unlawfully and maliciously devising and intending to cheat and defraud one X., did then and there procure and cause the said X. to play with him the said A., for money and other valuable things, with dice, at a certain unlawful game called, etc. [naming the game, though probably this is not strictly necessary]; and in and for the playing of the said unlawful game the said A. then and there fraudulently, craftily, and secretly procured and caused to be used false dice, knowing them to be false, and the said X. being as the said A. well knew then and there ignorant of the said falsity and believing the said dice to be true and just; whereby, and by means of other falsity whereof the said X. was likewise ignorant in the playing of said game, the said A. did then and there fraud- ulently, deceitfully and craftily cause himself to appear, and cause the said X to accept such appearance as and for truth, to win of the said X. the sum of ten dollars in money and current bank-bills; which said sum, in truth and in justice then and there belonging to the said X, he the said A. did then and there convert and appropriate to his own use, cozening and cheat- ing so as aforesaid the said X out of the same; against the peace, etc.^ iThis method of laying the time is follows one of the counts of an in. awkward, and probably ill for uncer- dictment in five counts, in Rex v. tainty; because the continuando ex- Hill, 6 Went. P. C. 389. And corn- tends the "aforesaid" time over pare with 6 Cox, C. C. Ap. 61, 63; Rex manydays. The other method should v. Wheatly, 3 Bur. 1135, 1 W. Bl. 273; be preferred, P. v. Fish, 4 Parker, C. C. 306. False 2 Useless. measure. — For buyingand selling by 8 This repetition of the place is not false measure, etc., see Rex v. Smith, needed. Trem. P. C. 268; Rex v. Wheatly, * Unnecessary. Ante,%i8. srtpra; 4 Went. PI. 358; 3 Chit. Crim. ^Matthews, Grim. Law,473; SChit. Law, 1004; Reg. v. Eagleton, Dears. €rim. Law, 1000. In Archbold there 376, 515; 6 Cox, C. C. 559; Rex v. Os- are slight, yet not material, changes born, 3 Bur. 1697. in the expression. Archb. Crim. PI. ^ Rex v. Arnope, Trem. P. C. 91 ; & Ev. (19th ed.) 533. It more nearly Rex v. Betsworth, Trem. P. C. 93. 143 §§ 275, 276.] SPECIFIC offenses. [book hi. § 275. False marks on goods.— A dealer who puts on an article a false trade-mark, or any other like false mark, and by means of it sells the article for one of superior manufacture and for an enhanced price, to the defrauding of the purchaser, commits a cheat indictable at the common law.' If, for ex- ample, to the copy of a picture of a famous artist the name of the artist is attached, and then it is thus fraudulently and knowingly sold as being the original painting, the allegations against the seller may be, — That heretofore, and before the commission of the offense hereinafter recited, one M., of, etc., was an artist in painting of gi'eat celebrity and wide fame, so that his original productions were worth large prices in the market; and that A., etc. [the defendant], on, etc., at, etc., being a dealer in pictures, and being possessed of a worthless copy of one of the valuable pictures of the said M., knowing it to be a copy and devising fraudulently to sell it for a price greatly beyond its true value, did then and there cause the name of the said M. to be painted thereon; and did then and there, knowing the said picture to be a copy and not an original, fraudulently, wilfully and falsely represent and pretend to one X, who was then and there desirous of purchasing an original painting of the said M., that the said copy was such original, and, in confirmation thereof, showed to the said X the said name of the said M. so as aforesaid fraudulently painted on said copy; whereupon the said X., relying on said name so fraudulently painted upon said copy, and on the said false representation and expla- nation thereof by said A., did then and there under the belief so fraudu- lently induced that said copy was said M.'s original painting, pay to the said A. therefor the sum of five hundred dollars in money and current bank- bills, whereof the said A. did then and there so as aforesaid cheat and de- fraud him; against the peace, etc.2 § 276. False writing. — A false writing may be such a false token that a fraud effected through it will be an indictable cheat at the common law ; ' though, in practice, the indictment will commonly be for forgery. The following is a sample of the allegations for cheat : — That A., etc., on, etc., at, etc., having in his hands and possession a ficti- And compare with Rex v. Sidney, 6 Chit. Grim. Law, 539; Rex v. Ed- Went. PI. 391. wards, Trem. P. C. 103; Rex v. 1 Reg. V. Gloss, Dears. & B. 460, 466, Farmer, Trem. P. C. 109; Rexu Poul- 467, 7 Cox, G. G. 494; Grim. Law, II, son, Trem. P. G. 103; Rex v. Worrell, §§ 147, 150. Trem. P. G. 106. 2 Reg. V. Gloss, supra. And see, ^ Grim. Law, II, §§ 148, 149. for other forms in analogous cases, 2 144 CH. XXT.] CHEATS AT COMMON LAW. [§ 277. tious bank-note, purporting to be issued by the bank of, etc., in the state of, etc., and to be signed by M. as president and countersigned by N. as cashier, in form, and appearance like the bank-bills which circulate as money in this state, for the sum of twenty dollars, payable to the bearer on demand, and there being no such bank and no such president and cash- ier, and the said fictitious bank-note being utterly worthless, all of which the said A. then and there well knew, did then and there, by color and means thereof, and by delivering it to one X., and pretending to him that it was a good and valid bank-note and worth twenty dollars, fraudulently and deceitfully obtained of said X six dollars in good and current bank- bills and money, and fifteen yards of cloth of the value of fourteen dollars; against the peace, etc.i § 277. In conclusion. — While these forms do not com- pletely cover the subject, they are sufficiently varied to enable the practitioner readily to draw whatever he may desire. 1 Com. V. Speer, 3 Va. Cas. 65; Rex V. Covers, Say. 206; 3 Chit. Crim. Law, 1001, 1004; 4 Went. PI. 73, 75, 77. If this were an indictment for forgery, it would be necessary to set out the fictitious bank-bill or other false writing by its tenor. Crim. Pro., II, g§ 401, 403. And so is the form for a cheat by a false letter in Reg. v. Saunders, Trem. P. C. 100. But prob- ably cheat rests on a difi'erent rea- son, as to this question, from forgery. At all events, the forms generally in cheat accord with the one pro- pounded in the text, though they are not numerous. And such, with some exceptions, is the approved method in the statutory cheat of obtaining money and goods by false pretenses. Crim. Pro., II § 178. Thus, in Rex V. Covers., supra, which was a case of common-law cheat, a motion in arrest of judgment was overruled, the allegations being, — " That A., etc. [on, etc., at, etc.], in- tending to cheat X, did deceitfully take upon himself the style and char- acter of a merchant, and did deceit- fully a£Brm to X that he was a mer- chant, and had received divers com- missions from Spain; and that, in order to induce X to believe that he was a merchant, and had received such commissions, and to induce X. to give him credit, the defendant did deceitfully produce to X several paper writings, which he falsely af- firmed to be letters from Spain, con- taining commissions for jewels, watches and other goods, to the amount of four thousand pounds; by means whereof he did get into his hands two watches, the property of X ; whereas in truth the defendant was not a merchant, and the paper writings containing such commis- sions were false and counterfeit." Still it is possible that the form of the indictment, which appears thus in the report, is not there given in full. And, assuming it to be com- plete, the case is not conclusive of the old law; for the present question was not raised, and only the indict- ability of the transaction was af- firmed by the covirt. And, on the whole, there is, as to some cases, fair ground to argue to a court, from the analogies of forgery, libel, and some others, that the tenor should in them be set out. 10 145 j SPECIFIC OFFENSES. [bOOK IU. For CHILD MURDER, see Concealment of Birth. CHILDREN, CARNAL ABUSE OF, see Rape, etc. CHURCH, see Distuebing Meetings. CITY ORDINANCES, see ante, §§ 133-136, 171. COHABITATION, see Adultery, etc.; Incest. COIN, see Counterfeiting, etc. COMMON BARRATOR, see Nuisance, COMMON SCOLD, see Nuisance. COMPOUNDING, see ante, §§ 123-137. CONCEALED WEAPONS, see Carrying Weapons. 146 OHAPTEE XXII. CONCEALMENT OF BIRTH, OR CHILD MURDER.1 § 278. Following the statute — Formula.— This offense being purely statutory, the indictment simply follows the terms of the interpreted ^ statute ; with a due setting out of the par- ticulars to individualize the transaction, and the introduction of the word " feloniously " where the offense is felony. Thus, — ■ That A., etc. [ante, §g 74r-77], on, etc., at, etc. [ante, § 80], being delivered of a child which was then and there born alive and a bastard, and the said child afterward then and there dying [or, if the statutory words are different, follow them], did afterward then and there maliciously [and feloniously] endeavor to secrete and conceal the dead body thereof, by, etc. [saying what she did 3], so that it could not be known whether the same was bom alive or not, etc. [or, employing such other words as are in the statute; or, on a statute worded differently from what is thus supposed, that A., etc., as above, being pregnant with a child which, if born alive, would be a bastard, was then and there willingly and of her own procurement delivered thereof in secret, and, the said child then and there being dead, she did then and there by, etc., conceal the death thereof, so that it is not known whether it was born dead, or alive and was murdered] ; against the peace, etc. [ante, §§ 66-69].* 1 For the direct elucidations of this ters, Car. & M. 164; Rex v. Coxhead, offense, with the pleading, practice 1 Car. & K. 633. and evidence, see Stat. Crimes, Arkansas. — Sullivan v. S., 36 Ark. §§763-780. Incidental, Crim. Pro., I, 64. §§ 465, S37. Missouri.— S. v. White, 76 Mo. 96. 2 Ante, §§ 33. 33. Pennsylvania. — Com. v. Clark, 3 3 Stat. Crimes, §778. Ashm. 105; Douglass v. Com., 8 * For forms see Archb. Crim. PL & Watts, 585. Ev. (10th Lond. ed.) 435; (19th ed.) Rhode Island.— S. v. Sprague, 4 773; 6 Cox, C. C. Ap. 118; Rex'u Wal- R. L 357. For CONCEALMENT OF CRIME, see ante, % 139. CONCEALMENT OF OFFENDER, see ante, §§ 118, 133. CONGREGATION, see Disturbing Meeting. 147 CHAPTER XXIIL CONSPIRACY.! §279. Introduction. 280-286. Indictment in general 287-313. For particular conspiracies. 313-315. Practical suggestions. § 279. How chapter divided.— We shall consider the forms for, I. The indictment in general; II. The indictment for par- ticular conspiracies, following which will be, III. Practical suggestions. 1. The Indictment in Geneeal. § 280. Preparation. — One who would draw an indictment for conspiracy should begin by familiarizing himself with the law of the ofPense, both in general and under the statutes and decisions of his own state. Not every indictment good in one state is so also in every other. Nor, in a work like the present,, made for use in all the states, is it possible to lay down such directions and forms as will supersede the necessity of the pleader's looking and seeing for himself. Some things to which his particular attention should be directed are — § 281. The county. — Since he has his choice to lay the venue either in the county of the original unlawful confedera- tion, or in that wherein any overt act pursuant thereto trans- pired,^ he should select a county with careful reference to the various considerations, prominent among which is the facility of proving the venue. Again, — § 282. Overt act. — He should see whether or not it is nec- essarj'^, under the statutes and adjudications of his state, to lay,^ what is not required by the common law, one or more overt 1 For the direct discussions of this 814, 974; II, §§ 86, 124, 452, 505; Crim. offense, with the pleading, practice Pro., I, §§ 61, 437, 464, 468, 516, 530, and evidence, see Crim. Law, II, 644, 1019, 1032, 1038, 1248; Stat. §§169-240;Crim. Pro., II, §§202-245. Crimes, §§ 260, 625, 629, 688, 803; Incidental, Crim. Law, I, §§ 432, 592, [Pettibone v. U. S., 148 U. S. 197.] 593, 597o, 633-639, 767, 768, 793, 801, 2 Crim. Pro., I, § 61; II, g§ 206, 236. 148 OH. XXIII.] CONSPIKACT. [§§ 283-285. acts, and whether such acts are essential to the constitution of the offense itself,^ and frame his allegations to satisfy the law in this respect. Moreover, — § 283. Nature of " unlawful." — Conspiracy being the cor- rupt agreeing together of two or more persons to do, by con- certed action, something unlawful, either as a means or an end,^ he should acquaint himself with the meaning of " unlaw- ful " as held in his own state. By the English common law, and the adjudications believed to be the more numerous with us, " unlawful " is not in this connection a synonym for crimi- nal, but it includes also what is forbidden on the civil side of our jurisprudence. Yet the tribunals in some of our states, rather by a series of blunders than by any enlightened exami- nations of the question, have assumed that " unlawful " means, in criminal conspiracy, indictable; so that, for example, an allegation of a conspiracy to cheat a person named of his money and goods, cheating being necessarily unlawful but not necessarily criminal, is not good, unless criminal methods are set out, — contrary to the English and better American doc- trine.' The pleader must be careful not to mistake how this question is regarded in his own state. § 284. Rule for indictment. — In conspiracy, the same as in any other misdemeanor,* the rule for the indictment is that, with reasonable particularity and individualization, it must aver facts which together constitute in matter of law prima' facie guilt;* and, if it is on a statute, it must pursue therein the substantial statutory terms.* Therefore the pleader is re- quired to know what constitutes guilt under the administra- tion of this branch of our jurisprudence in his own state. § 285. Formula. — Unless resulting from some statute, there are probably in the indictment for conspiracy no words so technical as not to admit of substitutes. In the beaten track, a good formula is, — That A., etc. [ante, §§ 74r-77], B., etc. \_ante, §§ 74-77], and, etc. [adding, in the same way, the names of any other persons whom it is desirable to in- iCrim. Law, II, §§ 192, 193; Crim. ], on, etc., at, etc. [ante, § 80],2 unlawfully and mali- ciously did conspire, combine, and confederate together ' to, etc. [say what. If the thing thus set down is such as the law deems "unlawful," within the meaning of the word in the definition of conspiracy,* the offense is fully charged, and the indictment may conclude here, unless a statute has re- quired an overt act. If such thing is not in this sense unlawful, then the pleader tnust proceed to allege unlawful means, thus], by, etc. [proceeding to set out the means whereby the thing was by the conspirators agreed to be accomplished.^ Here, by the common law, and under most, not all, of our statutes, the indictment may, if the pleader chooses, conclude. But he may elect to add overt acts,'' or the statute may require them. Then the allegations proceed:] And in pursuance of the said unlawful and malicious combination and conspiracy, the said A., B., etc., did afterward, on, etc., at, etc. [here setting out as many and such overt acts as the pleader deems ad- visable]; against the peace, etc. [ante, §§ 66-69].^ 1 The indictment sometimes pro- ceeds "together with sundry other persons whose names are to the jurors unlinown." For explanations, see Crim. Pro., II, §335; Grim. Law, II, §§ 187, 188. There are circumstances in which an allegation of this sort will serve some useful purpose, but generally it does not. 2 As to the place, see ante, § 381. 3 Crim. Pro., II, § 205. * Ante, % 283; [Woodu. S., 18 Vroom, 461; Com. v. Barnes, 133 Mass. 343; U. S. V. Keichert, 12 Saw. 643; Elsey V. a, 47 Ark. 572; P. v. Flack, 125 N. Y. 334] 5 It is not necessary to give time and place to this, because, in matter of law, it is not material when and where the object of the conspiracy was to be carried out. 6 Crim. Pro., II, §§ 205, 306. ' For forms see 3 Chit. Crim. Law, 29, 36; 3 id. 1145-1193; Archb. Crim. PI. & Ev. (10th ed.) 672, 678, (19th ed.) 1005, 1013; 4 Went. PI. 79-146; 6 id. 375-383, 387, 398, 439, 443; 1 Cox, C. C. Ap. 11, 13; 4 id. Ap. 13, 35, 38; 5 id. Ap. 8, 9; 6 id. Ap. 63-65, 79, 81, 157; 7 id. Ap. 15; 8 id. Ap. 14; Rex v. Turner, Trem. P. C. 83; Rexu Crispe, Trem. P. C. 83; Rex v. Freeman, Trem. P. C. 85; Rexn Gostwick, Trem. P. C. 187; Rex v. Dingley, Trem. P. G. 213; Rex V. Grey, Trem. P. C. 215, 9 How- ell, St. Tr. 127; Rex v. Knox, 7 How- ell, St. Tr. 763; Reg. v. Denew, 14 Howell, St. Tr. 895; Rex v. Fowke, 20 Howell, St. Tr. 1077, 1143, 1185; Rex V. Walker, 33 Howell, St. Tr. 1055, 1078; Rex u Redhead, 35 Howell, St. Tr. 1003; Rex v. Dunn, 36 Howell, St. Tr. 839; Rex v. Glennan, 26 Howell, St. Tr. 437; Rex v. Hedges, 28 How- ell, St. Tr. 1315; Eex v. Hanson, 31 Howell, St. Tr. 1; Reg. v. Wright, 2 Cox, C. C. 336; Reg. v. Bailey, 4 Cox, C. G. 390; Reg. v. Duffield, 5 Cox, C. C. 404; Reg. v. Whitehouse, 6 Cox, C. C. 38; Reg. v. Whitehouse, 6 Cox, C. C. 129; Reg. v. Hamp, 6 Cox, C. C. 167; Reg. V. Yates, 6 Cox, C. C. 441; Reg. V. Brown, 7 Cox, C. G. 443; Reg. v. Lewis, 11 Cox, C. C. 404; Reg. v. Gur- ney, 11 Cox, C. G. 414; Reg. v. Bunn, 13 Cox, G. G. 316; Reg. v. Banks, 13 Gox, G. C. 393, 5 Eng. R. 471; Reg. v. Hibbert, 13 Cox, C. C. 83, 13 Eng. R. 433; White v. Reg., 13 Gox, C. G. 318; Reg. V. Parnell, 14 Cox, C. G. 508; Rex V. Ferguson, 2 Stark. 489; Rex v. Rob- erts, 1 Gamp. 399; Rex v. PoUnian, 2 Camp. 339; Rex v. Serjeant, Ryan & Moody, N. P. 353; Rex v. Bykerdike, 1 Moody &R. 179; Rexu Richardson. 1 Moody & R 403; Rex v. Fowle, 4 Car. & P. 592; Rex v. Hamilton, 7 Car. & P. 448; Reg. i;. Murphy, 8 Gar. & P. 397; Reg. v. Vincent, 9 Gar. & P. 91; Reg. v. Vincent, 9 Gar. & P. 150 OH. XXIII.] CONSPIEACT. [§ 286. § 286. Common form, with overt acts — (To cheat). — The common method of laying this offense appears in the following familiar form from the English books : — That A., etc., B., etc., and C, etc. [being evil-disposed persons and wickedly- devising and intending to defraud and prejudice certain persons herein- 275; Reg. v. Shellard, 9 Car. & P. 377; Reg. V. Goldshede, 1 Car. & K. 657; Reg. V. Hall, 1 Fost. & F. 33; Reg. v. Esdaile, 1 I'ost. & F. 313, 8 Cox, C. C. 69; Reg. v. Kohn, 4 Fost. & F. 68; Reg. V. Howell, 4 Fost. & F. 160; Reg. v. Barry, 4 Fost. & F. 389; Rex v. Hevey, 1 Leach (4th ed.), 233; Rex v. Ecoles, 1 Leach (4th ed.), 374; Reg.u Steel, 3 Moody, 246, Car. & M. 337; Reg. V. Hears, 3 Den. C. C. 79, 4 Cox, O. C. 423; Reg. v. Rowlands, 2 Den. C. C. 364, 5 Cox, C. C. 436, 466, 17 Q. B. 671; Reg. v. Carlisle, Dears. 337; Reg. V. Bullock, Dears. 653; Reg. v. Hudson, Bell, 263, 8 Cox, C. C. 305; Rex V. Opie, 1 Saund. 300; Rex v. Tliorp, 5 Mod. 318, 231; Reg. v. Best, 6 Mod. 137, 185, 3 Ld. Raym. 1167; Rex V. Spragg, 3 Bur. 993; Rex v. Vipont, 2 Bur. 1163; Rex v. Rispal, 3 Bur. 1320: 'Rex v. Eccles, 3 Doug. 337; Rex V. Woolf, 1 Chit. 401 ; Wakefield's Case, 2 Lewin, 1, 7; Rex v. Holling- berry, 2 Ben. & H. Lead. Cas. (2ded.) 34, 6 D. & R. 345, 4 B. & C. 329; Rex V. De Berenger, 3 M. & S. 67; Rex v. Hunt, 3 B. & Aid. 566; Rex v. Biers, 1 A. & E. 327; Rex v. Seward, 1 A. & E. 706; Reg. v. Peck, 9 A. & E. 686; Reg. V. Parker, 3 Q. B. 292; Reg. v. O'Connor, 5 Q. B. 16; Reg. v. Ken- rick, 5 Q. B. 49; Reg. v. Blake, 6 Q. B. 126; Reg. v. King, 7 Q. B. 783, 795; Reg. V. Gompertz, 9 Q. B. 834, 3 Cox, C. C. 145; Reg. v. Button, 11 Q. B. 929, 3 Cox, C. C. 239; Reg. v. Thomp- son, 16 Q. B. 832, 5 Cox, C. C. 166; La- tham V. Reg., 5 B. & S. 635, 9 Cox, C. C. 516; Mulcahyu Reg., LawR. 3 H. L. 306, 307; Heymann v. Reg., Law R. 8 Q. B. 103; Reg. v. Warbur- ton, Law R. 1 C. C. 374; Reg. v. As- pinall, 1 Q. B. D. 730, 3 Q. B. D. 48, 13 Cox, C. C. 231. Alabama. — S. v. Cawood, 3 Stew. 860; S. V. Murphy, 6 Ala. 765; Miles V. 8., 58 Ala. 390. [Colorado. — Lipschitz v. P., 35 Colo. 361.] Connecticut. — S. v. Rowley, 12 Conn. 101 ; S. v. Bradley, 48 Conn. 535. Illinois.— Johnson v. P., 22 111. 314; Smith V. P., 35 111. 17; Cole v. P., 84 111. 316, 220; Evans v. P., 90 IlL 384; [West V. P., 137 111. 189.] Indiana. — Landringham v. S., 49 Ind. 186; 8. v. McKinstry, 50 Ind. 465; Scudder v. S., 63 Ind. 13; [Musgrave V. S., 133 Ind. 397.] Iowa. — S. V. Jones, 13 Iowa, 869; S. V. Potter, 38 Iowa, 554; S. v. Ste- vens, 30 Iowa, 391; S. v. Harris, 38 Iowa, 343; S. v. Savoye, 48 Iowa, 562; [State V. Grant, 86 Iowa, 216.] Kentucky. — Com. v. Blackburn, 1 Duv. 4. Maine. — S. v. Mayberry, 48 Me. 218; S. V. Clary, 64 Me. 369. Maryland. — S. v. Buchanan, 5 Har. & J. 317; Bloomer v. S., 48 Md. 521. Massachusetts. — Com. v. Ward, 1 Mass. 473; Com.u Judd, 3 Mass. 339; Com. V. Tibbetts, 3 Mass. 536; Com. V. Kingsbury, 5 Mass. 106; Com. v. Davis, 9 Mass. 415; Com. v. Hunt, 4 Met. Ill; Com. v. Harley, 7 Met. 506; Com. V. Eastman, 1 Cush. 189; Com. V. Kellogg, 7 Cush. 473; Com. v. Shedd, 7 Cush. 514; Com. v. O'Brien, 13 Cush. 84; Com. v. Prius, 9 Gray, 137; Com. u Wallace, 16 Gray, 331; Com. V. Walker, 108 Mass. 309; Com. V. Waterman, 133 Mass. 43; Com. v. Barnes, 133 Mass. 343; Com. v. Fuller, 133 Mass. 563. 151 § 286.] SPECIFIC OFFENSES. [book III. after mentioned'], on, etc. [with force and arms 2], at, etc., did amongst themselves conspire, combine, confederate and agree together falsely and fraudulently to cheat and defraud certain underwriters hereinafter men- tioned, of divers large sums of money [this allegation of the conspiracy is sufficient according to the rulings in England and a part of our states, while in other states more must be added, as already explained.' Proceed- ing, next, to the overt acts:] And [the jurors aforesaid upon their oath aforesaid do further present*], that the said A., B., and C, afterwards, to wit, on the [date of the policy], at, etc., aforesaid, in pursuance of and ac- cording to the said conspiracy, combination, confederacy, and agreement amongst themselves, had as aforesaid, did cause and procure a certain ship Michigan. — P. v. Richards, 1 Mich. 216; P. V. Clark, 10 Mich. 310; P. v. Arnold, 46 Mich. 268; [P. v. Summers, 115 Mich. 537; P. v. Butler, 111 Mich. 483.] Minnesota, — S. v. PuUe, 12 Minn. 164. [Mississippi. — Am. F. Ins. Co. v. S., 75 Miss. 24.] Nebraska, — Gandy v. S., 10 Neb. 248, 245. New Hampshire. — S. v. Straw, 42 N. H. 393; S. v. Parker, 43 N. H. 83; S. V. Hadley, 54 N. H. 334. New Jersey. — S. v. Rickey, 4 Halst. 393; S. V. Norton, 3 Zab. 33; Johnson V. S., 2 Dutcher, 313; S. v. Young, 8 Vroom, 184, 185: S. v. Hickling, 13 Vroom, 308; Noyes v. S., 13 Vroom, 418. New York. — P. v. Trequier, 1 Wheeler, Crim. Cas. 143; P. v. Mel- vin, 3 Wheeler, Crim. Cas. 363; P. v. Barrett, 1 Johns. 66; Lambert v. P., 7 Cow. 166; P. v. Mather, 4 Wend. 339, 333; P. v. Fisher, 14 Wend. 9; P. V. Chase, 16 Barb. 495. North Carolina. — S. v. Tom, 3 Dev. 569; S. V. Enloe, 4 Dev. & Bat. 373; S. V. Trammell, 3 Ire. 379; [S. v. Brady, 107 N. C. 823]. Pennsylvania. — Com. v. Franklin, 4 DalL 355; Respublica v. Ross, 3 Yeates, 1; Respublica v. Hevice, 3 Yeates, 114, 3 Wheeler, Crim. Cas. 505; Com. V. Eberle, 3 S. & R. 9; Collins V. Com., 3 S. & R. 220; Hartmann v. Com., 5 Barr, 60; Com. v, Putnam, 5 Casey (Pa.), 296; Williams v. Com., 10 Casey (Pa.), 178; Com. v. Bartilson, 4 Norris (Pa.), 483; Wilson v. Com., 15 Norris (Pa.). 56; Huntzinger v. Com., I Out. (Pa.) 336; Com. v. McHale, 1 Out. (Pa.) 397; Com. v. Delany, 1 Grant (Pa.), 334; Com. v. Boyer, 3 Wheeler, Crim. Cas. 140; Com. v, Foer- ing. Brightly, 315; Com. v. English, II Phila. 439; Com. v. Goldsmith, 13 Phila. 632. South Carolina. — S. v. Shooter, 8 Rich. 73; S. v. Cardoza, 11 S. C. 195. Texas. — Brown v. S., 2. Tex. Ap. 115; [FoUis v. S., 37 Tex. Crim. R 535.] Vermont— 8. v. Keach, 40 Vt. 113. Virginia. — Jones v. Com., 31 Grat. 836. [Washington. — S. ex ret v. Friers, 10 Wash. 348.] Wisconsin, — S. v. Crowley, 41 Wis. 271; Casper v. S., 47 Wis. 535. United States. — U. S. v. Spalding, 4 Cranch, C. C. 616; U. S. v. De Grieff, 16 Blatch. 20; U. S. v. Walsh, 5 Dill. 58; U. S. V. Crosby, 1 Hughes, 44S; U. S. V. Fehrenback, 3 Woods, 175; U. S. V. Dennee, 3 Woods, 47, 48; [U. S. V. Bannon et al., 156 U. S. 464; Dealy v. U. S., 153 U. S. 539; U. S. v. Benson, 17 C. C. A. 393; U. S. v. Debbs, 65 Fed. R 310; Stokes v. U. S., 157 U. S. 187; U. S. V. Mellen, 53 Fed. R 339: Ex parte Coy, 137 U. S. 731.] 1 Not necessary. Ante, §§ 45, 46, 48. 2 Unnecessary. Ante, § 43. 8 Ante, gg 383-384, and places there referred to. * Not necessary. Ante, §g 64, 115, note. 153 CH. XXIIl.] CONSPII{ACT. [§ 286. called the M., and certain goods in and on board the said ship, to be insured by certain underwriters, to wit, by X., Y., Z., and U., and the said under- writers then and there i severally executed a certain policy of insurance upon the said ship, and upon the said goods so laden on board the said ship as aforesaid, upon and for a voyage from the port of London to the island of Saint Vincent in the West Indies: And [the jurors aforesaid upon their oath aforesaid do further present 2], that the said A., B., and C, afterwards, and after the said ship sailed from the port of London aforesaid, upon the voyage aforesaid, to wit, on the fourth day of September, in the year afore- said, in further pursuance of and according to the said conspiracy, combi- nation, confederacy, and agreement among themselves, had as aforesaid, did remove and unlade from on board the said ship divers goods insured as aforesaid, of great value, to wit, of the value of four hundred pounds, be- fore the said ship had reached the port or place of destination aforesaid [to wit, at the parish aforesaid, in the county aforesaid 3] : And [the jurors aforesaid upon their oath aforesaid do further present *J, that in further pursuance of and according to the said conspiracy, combination, confed- eracy, and agreement amongst themselves, had as aforesaid, the said A., B. and C, afterwards, to wit, on the twentieth day of September, in the year aforesaid, on the high seas [to wit, at the parish aforesaid, in the county aforesaid ^J, did cut, bore and make [and did cause and procure to be cut, bored and made 'J divers holes in the bottom and sides of the said ship [or vessel '], with intent thereby to sink, cast away and destroy the said ship, and the goods in and upon the said ship so laden as aforesaid, and with intent and design thus and thereby wilfully and maliciously to preju- dice the said several persons who had so underwritten the said policy of 1 If two different times or places matter of law overt acts in other have been specified, "then and there" counties or abroad are relevant, and will be ill for the uncertainty as to proper to be introduced, the indict- which is meant. Grim. Pro., I, § 414 ment cannot be ill which sets them 2 Not necessary. See above. down as transpiring where the proof 'How lay place of overt act. — To will show that they did transpire. lay thus, under the videlicet, the Quite likely, if they are laid in the place of the overt act in the county county of the trial, the court, in the of the indictment when in truth it absence of surprise to the defendant, was elsewhere, seems to be a sort of will permit them to be proved as oo- copying of an old practice in civil curring elsewhere. But the better cases long since exploded. See for and orderly course, to put the rule explanations of it, Gould PI., c. 3, mildly, is to charge them according §g 159-161; Steph. PI. (4th ed.) 381 to the real fact. Grim. Pro., I, § 381. et seq. I can recall no decisions di- * Not necessary. See above, rectly to the question; but, if this sggethelast note but one. false allegation were necessary, we * There is no good reason for insert- should certainly have them in abun- ing these words, though they are not dance. The question, in legal reason, legally objectionable. Ante, § 189 is plain. To give the court jurisdic- and note, and the places there re- tion, the locality of the conspiracy ferred to. must be averred, and it must be the '' The word " ship " alone has been county of the indictment. But as in in the other places used, and it bet- 153 §§ 287, 288.] SPECIFIC offenses. [book hi. insurance upon the said ship, and upon the goods so therein and thereupon laden as aforesaid: [to the great damage of the said X., Y., Z., and U., ^ho had so underwritten the said poLcy as aforesaid i] ; and against the peace, etc.* II. The Indictment foe Paeticulae Conspieacies. § 287. To murder. — The forms for this in the books are more or less loaded with surplusage; but, rejecting what is obviously such, we have, — That A., etc., and B., etc., on, etc., at, etc., unlawfully, wickedly and ma- liciously did conspire, confederate and agree together feloniously, wilfully and of their malice aforethought to kill and murder one X. [or, a certain infant female child of tender age, to wit, of the age of two days, the name whereof is to the jurors unknown, or not named]; against the peace, etc.* § 288. To commit burglary — (With overt acts). — Still re- jecting from the old forms what is certainly surplusage, we have, — That A., etc., B., etc., and C, etc., on, etc., at, etc., unlawfully and wick- edly did conspire, combine, confederate and agree together [and with di- vers other persons whose names are to the jurors unknown^], unlawfully [to attempt and endeavor 5] to feloniously and burglariously break and enter [in the night-time 6] the dwelling-house of X. [there situate ''J, with intent the goods and chattels therein feloniously and burglariously to steal, ter be here. If " vessel " were not in delivered of a female child, there and this place a synonym for " ship," the then and still alive, the name whereof disjunctive " or " would make the is to the jurors unknown, and that, allegation bad. Crim. Pro., I, g§ 585, before the said child was born, and 590. while the said A. carried and was 1 Unnecessary. Ante, § 48. quick with the said child, on, etc., at, 2 Archb. Crim. PI. & Ev. (10th ed.) etc., she the said A., and B., etc., did 677, 678. Compare with post, §§ 390, unlawfully and wickedly conspire, 291; 6 Went. PI. 387; Com. v. Barnes, confederate and agree together the 132 Mass. 242; Com. v. Prius, 9 Gray, said child, if born alive, feloniously, 127; Com. v. Kellogg, 7 Cush. 473; wilfully and of their malice afore- Reg. V. Kohn, 4 Fost. & F. 68. thought to kill and murder; against 3 Rex V. Glennan, 26 How. St. Tr. the peace, etc." 437; Rex v. Dunn, 26 How. St. Tr. ^ See ante, § 285, note. 839; Reg. v. Banks, 12 Cox, C. C. 393, 5 These words are in the form in 5 Eng. R. 471; S. v. Tom, 3 Dev. 569; Chitty. The conspiring is itself an [S. V. Locklin, 81 Me. 251.] To mur- "attempt and endeavor; " so that, at der one yet unborn. — One of the least, the indictment will be neater counts in Reg. v. Banks, which was without them. treated as good, charged, rejecting •■ These words are not in Chitty. I surplusage, omitting allegations of cannot see how, without them, the overt acts not considered at the trial, indictment charges anything more and adding the averments of place than a conspiring to commit larceny, required by the common law, — " I deem these words not only need- " That pn, etc., at, etc.. A., etc., was less, but better omitted. Ante, % 353. 154 CH. XXm.] CONSPIEACY. [§ 289. take and carry away [if the pleader chooses, he proceeds to allege overt acts, thus]; and, in pursuance of said conspiracy, combination, confedera- tion and agreement, afterward, on the day and year aforesaid, about the hour of eight in the night-time of the same day, at, etc., aforesaid, the said dwelling-house of the said X. unlawfully did attempt feloniously and bur- glariously to break and enter, with intent the goods and chattels therein feloniously and burglariously to steal, take and carry away, by then and there endeavoring to break and force open the outer door of the said dwell- ing-house with an iron crow, and also by then and there endeavoring to open the outer door of the said dwelling-house with a pick-lock key; against the peace, eto.i § 289. To cheat by false token — (Dice). — An awkwardly- constructed form in Ohitty may be so modified as to charge, reasonably well, — That A., etc., B., etc., and C, etc., on, etc., at, etc., falsely, unlawfully and wickedly did conspire, combine, confederate and agree together to cheat and defraud, by such unlawful means as they should thereafter deem avail- able, and likewise by the means of false dice to be employed at play and in gaming, divers people whose names are to the jurors unknown, and also those persons who are hereinafter mentioned as having been cheated and defrauded, of large sums of money; and, in pursuance of the same con- spiracy, combination, confederacy and agreeing together, then and there in a certain room, parcel of the dwelling-house of one M. there, did fraudu- lently, unlawfully and deceitfully produce and deliver to divers people then and there assembled to play at dice, thirty false, deceitful and loaded dice, knowing them to be such, to be then and there used in play, and the same were then and there used and played with by divers people so assembled for the purpose aforesaid; by means whereof, divers people then and there so playing with the said dice as aforesaid, not knowing the same to be false, deceitful and loaded dice, did then and there lose large sums of money, and in particular one X. did then and there so lose twenty dollars, one Y. did then and there so lose fifteen dollars, and one Z. did then and there so lose fifty dollars, by playing respectively with certain other persons to the jurors unknown, with the said false, deceitful and loaded dice, and were then and there and thereby severally cheated and defrauded of said respective sums of money; against the peace, etc.^ 1 3 Chit. Crim. Law, 1190. For an- for a form for cheating by one of the other form see Brown v. S., 3 Tex. conspirators appearing to have little Ap. 115. Other felonies.— For con- skill in gaming, and thereby induc- spiring to commit other felonies, ing a looker-on to play with him. larceny, robbery and rape. S. v. Mc- Eeg. v. Bailey, 4 Cox, C. C. 390. Con- Kinstry, 50 Ind. 465; Landringham spiring to cheat by ialse tokens, Col- V. S., 49 Ind. 186; Soudder v. S., 63 lins u Com., 3 S. & R. 330. To defraud Ind. 18; S. v. Murphy, 6 Ala. 765. a bank by overdrawing and false Adultery. — For a conspiracy to com- entries, Com. v. Foering, Brightly, mit adultery. Miles u S., 58 Ala. 390. 315. 2 3 Chit. Crim. Law, 1160. And see 155 §§ 290, 291. J SPECIFIC OFFENSES. [bOOK III. § 290. By statutory false pretenses. — The pleader should have regard to the terms of the statutes against cheating by- false pretenses, and to the special facts of his case. While he will set out overt acts if the law of his state makes them es- sential elements in the offense,^ or if otherwise he deems their introduction into the indictment practically wise,^ the allega- tions for the conspiracy itself, alone adequate under the com- mon-law rules, may be, — That A., etc., and B., etc., on, etc., at, etc., maliciously and unjustly devis- ing to cheat and defraud one X., did then and there falsely and fraudulently conspire, combine, confederate and agree together to get and obtain know- ingly and designedly, by means of false pretenses ' [or, by some opinions this not being enough, by means of, etc., setting out briefly the particular false pretenses agreed to be employed *], one horse, of the value * of six hun- dred dollars, the property of him the said X,* with the intent then and there to cheat and defraud the said X. thereof \or, in any other like general way, it not being necessary to descend to the particularity required in the indictment for the actual statutory cheat, state any other facts which would constitute an indictable fraud under the statute]; against the peace, etcT § 291. Other conspiracy to cheat. — All cheating being " unlawful," — that is, contrary to the law as administered in the civil department, or in the criminal, or in both, — persons who mutually undertake to employ their combined powers to cheat another, while yet they have not considered of the means, commit thereby an indictable conspiracy. Such is, at least, the i^nfe,§383. 'Johnson v. P., 23 111. 314; S. v. 2 Id.; Crim. Pro., II, g§ 205, 206. Crowley, 41 Wis. 271; P. v. Clark, 10 3 In some of the precedents, the Mich. 310; Latham v. Reg., 5 B. & S. words ''against the form of the stat- 635, 9 Cox, 0. C. 516; Reg. v. Keniick, ute in that case made and provided " 5 Q. B. 49; Reg. v. Parker, 3 Q. B. 293; are added here. From most they are Rex v. Gill, 3 B. & Aid. 204 For omitted, and I see no reason to sup- others forms see Reg. v. Whitehouse, pose they are deemed essential. 6 Cox, C. C. 38; P. v. Barrett, 1 Johns. *As, see Com. v. Wallace, 16 Gray, 66; Com. v. Ward, 1 Mass. 473; Com. 231; Com. u Walker, 108 Mass. 309; v. Kingsbury, 5 Mass. 106; Reg. v. Com. V. Fuller, 133 Mass. 563. Barry, 4 Fost. & F. 389; P. v. Arnold, * Generally, in our states, the value 46 Mich. 368; Respublica r. Ross, 3 does not affect, as of law, the punish- Yeates, 1; Com. v. Delaney, 1 Grant ment to be inflicted for the conspir- (Pa.), 334; Williams v. Com., 10 Casey acy; and, where it does not, it need (Pa.), 178; 8 Chit. Crim. Law, 1180, not be alleged. See ante, § 174, note, 1186; 4 Went PI. 80, 89; 6 id. 378; 4 and the places there referred to. Cox, C. C. Ap. 13, 35; 6 id. Ap. 64, 65, "For the rule for describing the 157; [Thomas v. P., 113 UL 531.] things and their ownership, see Crim. Pro., II, §§ 310, 211. 156 CH. XXIII.] CONSPIKACT. [§ 291. English and better American doctrine.^ Hence, since in the nature of things an indictment cannot allege contemplated means where none have been contemplated, and every indict- ment is good which fully sets out an offense whether in few words or in many,^ it is adequate to allege, where no more of fact exists or is to be proved, — That A., etc., and B., etc., on, etc., at, etc., did unlawfully and maliciously conspire, combine, confederate and agree together to cheat and defraud one X. of his goods and chattels [or, etc., specifying in any other appropriate terms the object of the cheat according to the special facts. In those states in which the means are required to be set out, add, by, etc., proceed- ing to specify the means contemplated by the conspirators']; against the peace, etc.* 1 Ante, § 283 and the places there referred to. "When parties have once agreed to cheat a particular person of his moneys, although they may not then have fixed on any means for that purpose, the offense of conspiracy is completa" Bay ley, J., in Reg. v. Gill, 2 B. & Aid. 204, 205. " The offense does not consist in do- ing the acts by which the mischief is effected, for they may be perfectly indifferent, but in conspiring with a view to effect the intended mischief by any means." Lord Mansfield in Rex V. Ecoles, 1 Leach (4th ed.), 274, 276. 2 4nfe, §284. ^Ante, § 285. In this view, see the following cases and the forms therein: S. v. Parker, 43 N. H. 83; S. V. Straw, 42 N. H. 893; Com. u Fuller, 132 Mass. 568; Com, v. Prius, 9 Gray, 137; Com. v. Shedd, 7 Cush. 514; Com. V. Eastman, 1 Cush. 189; Com. v. Davis, 9 Mass. 415; S. v. Jones, 13 Iowa, 269; S. v. Mayberry, 48 Me. 218. It is believed that the courts which require this allegation are not agreed as to what it must contain. The pleader should be cautious on this point; for his duty requires him to produce averments, which, while the proofs support them as to the facts, will in law be upheld by the tribu nals of his own state. And see ante, §§ 280-284. < For forms, see, besides the above cases, ante, § 286; Reg.'y. Gompertz, 9 Q. B. 834, 2 Cox, C. C. 145; Sydserff V. Reg., 11 Q. B. 345; Reg. v. King, 7 Q. B. 782; Reg. v. Warburton, Law R. 1 C. C. 274; Reg. v. Peck, 9 A. & E. 686; Rex v. Woolf, 1 Chit. 401; Reg. V. Hudson, Bell, 263, 8 Cox, C. C. 305; Reg. v. Carlisle, Dears. 387, 6 Cox, C. C. 366; Reg. v. Bullock, Dears. 653; Reg. v. Steel, 2 Moody, 246, Car. & M. 337; Reg. v. Hall, 1 Fost. & F. 83; Reg. v. Esdaile, 1 Fost. & F. 213, 8 Cox, G. C. 69; Reg. v. Lewis, II Cox, C. C. 404; Rex v. Richardson, 1 Moody & R. 402; Reg. v. Brown, 7 Cox, C. C. 443; Reg. v. Gurney, 11 Cox, C. C. 414; Rex u Roberts, 1 Camp. 899; Rex v. Fowle, 4 Car. & P. 592: Heymann v. Reg., Law R. 8 Q. B. 102; Reg. v. Whitehouse, 6 Cox, C. a 129; 3 Chit. Crim. Law, 1184; 4 Cox, C. C. App. 38; 6 Id. Ap. 63, 64, 81; 8 Id. Ap. 14; P. v. Richards, 1 Mich. 216; S. v. Younger, 1 Dev. 357; Lambert v. P., 7 Cow. 166, 9 Cow. 578; Johnson v. P.,, 32 111. 314; Evans v. P., 90 111. 384; S. v. Young, 8 Vroom, 184, 185; S. v. Rowley, 13 Conn. 101; Com. v. Bartilson, 4 Norris (Pa.), 482; S. v. Buchanan, 5 Har. & J. 817; Bloomer v. S., 48 Md. 521. 157 §§ 292-294:.] SPECIFIC offenses. [book hi. §292. To assault — Eavish. — The object of this sort of conspiracy being bj all opinions unlawful, the indictment may simply aver, — That A., etc., and B., etc., on, etc., at, etc., did unlawfully and maliciously conspire, combine, confederate and agree together to assault, beat, bruise and wound one X.1 [or, to ravish and carnally know one Y., violently and against her will 2], [adding overt acts,' or not, as the pleader deems best]; against the peace, etc. §293. Setting out contemplated means — (Something of the law). — But when we attempt to pass forward to other cases, we are confronted by the perturbations which some of our American courts have created in the law of the offense and of the indictment, through the rulings already mentioned on the single question of the conspiracy to cheat individuals.'' If the courts in the states affected by this suggestion intend really to hold that no conspiracies can be punished by the criminal law except those wherein either the end or the means contemplated is "unlawful" in the sense of being indictable when accomplished without conspiracy, a large part of the law of conspiracy as it existed in England when we derived thence our common law is wiped out in those states, and we have no need of forms for use there for what does not there exist. But, beyond doubt, the English law of conspiracy does prevail in most of our states, and the following forms are meant for use onlj'- where it does. § 294. To debauch a female. — In some of our states forni- cation is by statute indictable, and so in some others is the defilement of a girl through seduction.^ In these states, there- fore, a conspiracy to commit either stands on the same ground as to both the offense and the indictment with one to commit a burglary, a rape, an assault, or any other crime.^ But in other states these derelictions are not crimes. Yet in all seduction is a civil wrong, which the law will redress whenever there is a 1 For other forms, see Com. v. Put- in either case, if they carried out nam, 5 Casey (Pa.), 396; Rex v, Gost- what they meant, they would be wick, Trem. P. C. 187. jointly guilty of the rape. 2 For form, see S. v. Murphy, 6 Ala. 3 Ante, §§ 285, 286. 765. It is not necessary to say which * Ante, §§ 283, 286, 291, and places of the defendants was to perform there referred to. the part of principal of the first de- ^Stat. Crimes, g§ 635-653, 691. gree, or whether both were; because, * Ante, §§ 287, 288, 292. 158 CH. XXIII.] CONSPIEACT. [§ 294. plaintiff — sucii, for example, as a master injured by the loss of services of the woman who was his servant,^ or a husband by the alienation of a seduced wife ^ — to bring the action rectus in curia. The woman herself cannot sue because she was a partaker in the wrong.' nor can the master* or the husband^ if he was partaker. The state, that is the plaintiff in criminal prosecutions, is always rectus in curia, for it can do no wrong.^ The result of all which is, that, even aside from considerations of public morals, which still should be taken into the account,' adultery and fornication are " unlawful," in the sense of being contrary to the law administered in the civil courts, however the rule may be in the criminal; so that on this ground alone a conspiracy to commit either is, even where no unlawful means have been agreed upon, indictable.* The indictment, therefore, need not contain averments of " unlawful " means. The form may be simply, — That A., etc., and B., etc., on, etc., at, etc., unlawfully and maliciously did conspire, combine, confederate and agree together [by false pretenses, false representations and other fraudulent naeans "] to cause and procure one X., an unmarried woman [or, the wife of one Y., or an unmarried girl under the age of twenty-one years, or an unmarried girl of the tender age of four- teen years] to have carnal intercourse with the said A. \or with Z., or with a man whose name is to the jurors unknown other than the said Y., or to become a common prostitute]; against the peace, etci" 1 Reddie v. Scoolt, Peake, 240; Fores " Crim. Pro., I, § 324&. V. Wilson, Peake, 55; Davidson v. ''Crim. Law, I, §g 500-506; Eex v. Goodall, 18 N. H. 423; Bennett v. All- Delaval, 3 Bur. 1434. cott, 3 T. R. 166; Satterthwaite v. »Ante,% 288; Stat. Crimes, § 625; Dewhurst, 4 Doug. 315; Martin v. Crim. Law, II, g 335; Smith v. P., 35 Payne, 9 Johns. 387; Bartley v. Richt- 111. 17, 33. myer, 4 Comst. 38; Blagge v. Ilsley, 'Xhese words are in the form in 137 Mass. 191. Reg. v. Hears and Smith v. P., infra, 2 "Van Vacter v. MoKillip, 7 Blackf. which was adjudged good. But they 578; Clouser v. Clapper, 59 Ind. 548; are plainly mere surplusage. For, if Bigaouette v. Paulet, 134 Mass. 123. they are meant to charge contem- .3 Paul V. Frazier, 3 Mass. 71; Hatn- plated unlawful means, and if such ilton V. Lomax, 26 Barb. 615; Jordan an allegation is necessary, they are V. Hovey, 72 Mo. 574; Buckles v. El- not suflSciently deiinite. This appears lers, 72 Ind. 220. in ante, § 290. * Richardson v. Fonts, 11 Ind. 466. i«Reg. v. Mears, 2 Den. C. C. 79, 4 5 Hodges V. Windham, Peake, 39; Cox, C. C. 433; Smith v. P., 35 111. 17; Fry V. Derstler, 2 Yeates, 378; Cook Rex v. Delaval, supra; Rex v. Grey, V. Wood, 30 Ga. 891; Bunnell v. Great- 9 Howell, St. Tr. 137, Trem. P. C. 315; head, 49 Barb. 106; Sherwood ■;;. Tit- Reg. v. Howell, 4 Fost. & F. 160; 5 man, 5 Smith (Pa.), 77. Cox, 0. C. Ap. 8; 6 id. Ap. 79. For a 159 §§ 295, 296.] SPECIFIC offenses. [book hi. §295. Against marriage. — Marriage is "lawful." But to violate the laws regulating it, or the legal rights of parents and guardians to forbid indiscreet marriages by persons of immature age or weakened intellect, or the rights of -the marrying or married parties themselves, is " unlawful." The indictment for a conspiracy against marriage, therefore, must aver unlawful means,' yet not necessarily means which would be indictable if carried into execution without conspiring. Thus, — § 296. To procure elopement and marriage. — The allega- tions may be, — That on, etc., at, etc., X was an unmarried minor girl of the tender age of fifteen years,^ and Y. was her father, and she was then living and abid- ing under his care, protection and guardianship, and rendering him her services, in his dwelling-house there [he having then and there the right to control her person and restrain her from entering into any marriage which he might deem to be contrary to her interests']; that A., etc. [one of the defendants], was then and there desirous of marrying the said X, and the said Y. [deeming the said proposed marriage prejudicial to her*] then and there forbade the same and all intercom'se between her and the said A. Whereupon the said A., B., etc., and C, etc., well knowing the premLses, did afterward, then and there, unlawfully and maliciously conspire, combine, confederate and agree together to seduce and assist the said X. clandestinely and against the will and without the knowledge of the said Y., her father, to leave and abandon his said dwelling-house, protection, control and serv- ice, and live and abide with the said A., and against the said Y. 's will and without his knowledge marry the said A. [to which, in most cases, the pleader will elect to add overt acts, though in matter of law they are un- necessary except in a few of our states]; against the peace, etc.* conspiracy to seduce a woman by the books contain none which seem means of a sham marriage, see S. v. to me quite suited to practical use. Savoye, 48 Iowa, 562. The supposed facts are similar to 1 And see Rex v. Fowler, 1 East, those in Com. v. Mifflin, 5 Watts & P. C. 461. S. 461, wherein the question was 2 A mistake of her age would not whether or not the transaction was befatalif the proof showed any other indictable, and the court adjudged age from which would result the it to be. The indictment, in two same legal consequences. Crim. Pro., counts, is preserved in Whart. Prec, I, g§ 488&-488e. Nos. 651, 653. The facts as averred 3 Some pleaders will choose to in- in the second count are the ones dis- sert a clause like this; though, as the cussed by the court. In Rex w Thorp, father's rights are of law, which need 5 Mod. 218, 321, is the form of an in- not be averred, it is not necessary. formation for a conspiracy to alien- * This clause is. like the other, not ate a minor son, away at school, necessary, yet such as some may from his father, and entice him into choose to insert. marrying a girl (of inferior rank and 5 I have drawn this form without fortune, if this is material) without much reference to precedents; for his consent. The information seems 160 CH. XXIII.] CONSPIEACT. [§§ 29Y, 298. § 297. To cause a marriage falsely to appear of record. — A public record imports verity, and it is of high interest to parties and the community. To cause, therefore, any such rec- 'ord to be entered up falsely is " unlawful," and especially is it when the record is made to declare falsely a marriage. There- fore an indictment for a conspiracy to commit this wrong need not set forth contemplated means. It may simply aver, — That A., etc., B., etc., and C, etc., on, etc., at, etc., did unlawfully and maliciously conspire, combine, confederate and agree together to cause it falsely to appear of record, etc. [specifying some record wherein matter of this sort is by law to be perpetuated], that on, etc., at, etc., one X and one Y. were, by M., a minister of the gospel [or justice of the peace], duly united in marriage [or, a less minute setting out of the record will doubtless suf- fice, especially where in fact it has not been made], whereas in truth neither the aforesaid nor any other marriage between the said X. and the said Y. ever transpired, and this the said A., B. and C. at the said time and place of their said conspiring well knew [adding averments of overt acts or not as the pleader may elect]; against the peace, eto.i § 298. To entice away wife. — There is in Tremaine an in- formation for a conspiracy to entice from a man his wife, not containing the ordinary element of a purpose for her to live in to have been deemed good, but the case did not proceed to judgment. In Rex V. Serjeant, Ryan & Moody, N. P. 352, is the form of an indict- ment for a conspiracy to entice a young man, who was a minor, into marrying a prostitute, without the knowledge or consent of his mother, his father being dead. In Respublica V. Hevice, 3 Wheeler, Crim. Cas. 505, 8 Yeates, 114, is the form of an in- dictment for a conspiracy to entice away a young girl under guardian- ship and procure her marriage when drunk. The indictment in the fa- mous Wakefield's Case, 3 Lewin, 1, 7, where it appears at large, was for a conspiracy to bring about a marriage by abducting the girl through false representations, under constraint of which she gave her consent. A form in Rex v. Cobb, 4 Went. PL 79, is for a conspiracy, among other things, " to induce the mother and other .re- lations " of a minor girl " to consent to her marrying" one of the con- spirators, by giving out and publish- ing that he " had Iain with her," and " had carnal knowledge " of her body, "and had gotten her with child." 1 1 have before me no precedent for this offense except the needlessly long and complicated indictment in Com. V. Waterman, 123 Mass. 43. The court was plainly right in sustaining it, and equally so in the following observation, by Colt, J. : "It is charged that the main purpose of the defend- ants in this case was to cause a mar- riage between certain parties falsely to appear of record. This, if success- ful, would directly tend to impair the value of a public record, neces- sary for the security of the marriage relation, and the protection of the important rights arising therefrom; and, if this were the only charge made, the prosecution might well be main- tained." pp. 57, 58. 11 161 §§ 299, 300.] SPECIFIC OFFENSES. [bOOK III. adultery. This if done by one would be "unlawful," though not indictable. Hence the indictment for the conspiracy need not aver contemplated means. Reducing to modern shape the form, supplying imperfections, and rejecting redundancies, we have, — That on, etc., at, etc., X. and Y. his wife were persons married to each other and cohabiting in concord and mutual love; whereupon A., eta, B., etc., and C, etc., did then and there unlawfully and maliciously conspire, combine, confederate and agree together, by falsehood, enticement, and other wrongful means and devices, to persuade and cause the said Y. to hate without cause the said X, and without cause to withdraw herself from cohabitation with him, and without his consent and without cause to live in separation from him in parts and places to him unknown [and, if the conspiracy was successful, it is well to set out her desertion as an overt act]; against the peace, etai § 399. To procure divorce. — It is lawful for a married per- son to procure a divorce, by honest means, without producing testimony which he knows to be false, or imposing on the court. But to do it otherwise is " unlawful," as a fraud on the law and on the tribunal, a disturbance of the public order, and a wrong to the divorced party, whether the thing done is indictable per- formed without conspiracy, or not.^ Hence a conspiracy to ob- tain a divorce by such unlawful means is indictable because of their unlawfulness, and the indictment must set them out. Thus,— That A., etc., B., etc., and C, etc., on, etc., at, etc., the said A. being the* and there the husband of X. his wife, did unlawfully and maliciously con- spire, combine, confederate and agree together to procure, and enable and cause the said A. to obtain, in form and in fraud of law, a judicial divorce dissolving his marriage with the said X. his wife, by the following false, unlawful and pernicious means, to wit [here setting out the means contem- plated]; against the peace, etc' § 300. Falsely to charge with crime — (Less than crime, etc.). — On various grounds it is " unlawful " to charge one iRex V. Dingley, Trem, P. C. 213. on a statute; and the indictment is I have omitted to say, as in the form S. v. Stevens, 30 Iowa, 391, was held before me, that the wife had a sepa- ill on the ground, explained in the rate estate, which the conspirators preceding parts of this chapter, and meant to and did " make a prey of." accepted in not many of our states, 2 And see further for the principle, that a conspiracy to be indictable Crim. Law, II, §§ 216, 217, 219-221. must be to do something which ' I have before me but two prece- would be a crime if performed with- dents for this sort of indictment, out conspiracy. Com. v. Nichols^ 134 neither of which is adapted to the Mass. 531, is partly of this sort present use. Cole v. P., 84 III 216, is 163 OH. XXIII.] OONSPIEACT. [§ 301. falsely with crime, but chiefly because it is both a wrong to the accused person and a disturbance of public justice. There- fore a conspiracy to do this is indictable by reason of the un- lawful end, and it is immaterial whether indictable means are contemplated or not.^ So the indictment for the conspiracy need not contain any setting out of means. It may aver, — That A., etc., B., etc., and C, etc., on, etc., at, etc., did unlawfully and maliciously conspire, combine, confederate and agree together falsely to charge and accuse one X. with having then lately before feloniously rav- ished and carnally known the said A. violently and against her will [or, feloniously and of his malice aforethought killed and murdered one M. ; or, etc., setting out, in the like brief way, such other contemplated accusa- tion of an offense as the proofs will disclose. This is enough. But if the purpose was to extort money, or other thing, in a compounding of the of- fense or otherwise, or if there was any other specially evil purpose, the pleader may choose to aver it; 2 and, in some cases, where less than a crime was agreed to be charged, this may be necessary]; against the peace, etc' §301. To injure one in his business. — The law protects every person in his lawful business; and to injure one therein 1 Crim. Law, II, g§ 217, 330. 2 The averment may be inserted in this place, but it is not always. In one case before me (Reg. v. Yates, 6 Cox, C. C. 441) the pleader says, — "Did conspire, combine, confed- erate and agree together to extort money from the said X., by falsely and without any reasonable and probable cause accusing the said X. of having defrauded her majesty's inland revenue." The form is not greatly dissimilar in Rex v. HoUingberry, 3 Ben. & H. Lead. Cas. (2d ed.) 34, 6 D. & R. 345. 3 Crim. Pro., II, § 340; Archb. Crim. PL & Ev. (10th Lond. ed.) 672, 673; 3 Chit Crim. Law, 1171, 1174; Rex v. Freeman, Trem. P. C. 85; Rex v. Spragg, 3 Bur. 993; S. v. Hiokling, 13 Vroom, 308; Com. v. Tibbetts, 3 Mass. 536. More specifically, some of the forms are, to accuse of larceny, S. v. Cawood, 3 Stew. 360; Rex v. Rispal, 3 Bur. 1330; Jones v. Com., 31 Grat. 836. To pervert legal process for the purpose of extorting a deed from one. S. V. Shooter, 8 Rich. 73. To lay an information against one for illegal insurance in the lottery and then to obtain money from him to compro- mise it. 8 Chit. Crim. Law, 1176. To charge a man with having stolen goods from one of the conspirators, and thereby obtaining a promissory note, etc. 3 Chit. Crim. Law, 1175. To accuse one of having committed an unnatural crime, etc., and thereby ob- taining money to conceal it. 3 Chit Crim. Law, 1184. To charge with rape with intent to extort money. 3 Chit. Crim.Law,1183; with adultery for the same purpose. Com. v. O'Brien, 13 Cush. 84; Com. v. Nichols, 134 Mass. 531. With poisoning horses. 4 Went. PL 98. With forging a will to de- fraud heirs. Rex v. Thompson, 4 Went PL 96. With being the father of a child born of another man's wife. Rex V. Turner, Trem. P. C. 83. With being the father of a bastard. 3 Chit. Crim. Law, 1179; Reg. v. Best 6 Mod. 137, 185, 3 Ld. Raym. 1167; Johnson V. S., 3 Dutcher, 813. Aud see Crim. Pro., II, g 241. 163 § 302. SPECIFIC OFFENSES. [bOOK III. is, either in itself or as viewed in connection with particular means, " unlawful." It is '' unlawful " simply to prevent a man from carrying on his business, — as, for example, from working at his trade, — so that an indictment for a conspiracy therefor is good without any setting out of raeans.^ But competition is permissible, it is beneficial to the public and not opposed to any policy of the law, while yet its consequences may be injurious to persons in the same employment. And the like is true of various other things which men properly do in the pursuit of their own interest. Therefore it may be lawful, or it may be unlawful, for one person to injure another in his business, the question depending on the means employed ; while, whatever the means, it is always unlawful to prevent a carrying on of the business. The distinction, therefore, appears to be, that, while the indictment for a consiparacy to prevent one's carrying on his business need make no mention of means, that for a con- spiracy to injure one therein must set out contemplated means, and they must be " unlawful," — a distinction, however, the ap- plication of which will not unfrequently require nice discrimi- nation. Bearing it in mind,— § 303. To injure actor by hissing. — The hissing of an actor is lawful or unlawful according as it expresses feelings which spontaneously arise, or is resorted to for injuring him in his calling. A conspiracy to do it for the latter purpose is, there- fore, indictable ; ^ and the allegations should set out such a com- bination of means and end as will make the criminality of the transaction appear. For example, — That on, etc., at, etc., X was a person who followed the profession and calling of actor and player at theaters and other places where people as- semble for amusement and instruction, by which profession and calling he obtained large gains; and that then and there, at a certain theater com- monly termed the M. theater, a play known as the Merchant of Venice was appointed and to the public announced to be acted and played, wherein the said X. was to perform the part of Shylock. Whereupon A., etc., B., etc., C, etc., and D., etc., did then and there, knowing the premises, unlaw- fully and maliciously conspire, combine, confederate and agree together to injure and ruin the said X. in his said profession and calling, and deprive him of his good name therein and of all future gains therefrom, by hissing iCrim. Pro., II, § 343; Rex v. Ec- "Crim. Law, II, §§ 316, 308, and cles, 3 Doug. 337, 1 Leach (4th ed.), note. 274 (where may be seen a form); [Crump V. Com., 84 Va. 927.] 164 CH. XXIII. J CONSPIEAOT. [§ 303. and otherwise expressing disapprobation of his performance, and by caus- ing and procuring others to join therein, when he should so appear in said play, without reference to what might be their own real and spontaneous judgment of his said performance, and by thereafter, at all times and places when and where the said X. should appear performing any part in his said profession and calling, doing the same in respect to his perform- ance therein, without reference to what should be their own spontaneous opinions, so as by all means to bring about the ruin of the said X. in his said profession and calling; against the peace, etc.i § 303. To seduce away workmen — (Under contract — Not). — To seduce a workman or any other servant under con- tract to leave his employer, or probably to seduce any other person to violate a contract, is, if the person seducing knows of the contract, and the one seduced yields and thereby in- jures the other partj^, such an " unlawful " act that a civil action for the injury is maintainable.^ And, where there is no contract, if the seduction of workmen or other servants is malicious and meant to injure the employer, it is in like man- ner actionable ; ' though, in the interest of competition in busi- ness, one man is at liberty to hire away the employees of another, to take effect when their contracts have expired, or so otherwise as not to violate any valid agreement.* Therefore a conspiracy to seduce from their employers workmen under contract, in breach of the contract, is of itself criminal, and no allegation of unlawful contemplated means is required in the indictment. It may aver, — That on, etc., at, etc., M. was a servant and workman in the employ of and rendering service and labor to X., under a contract theretofore on a valua- 1 The only precedent before me is v. West, 47 Ga. 311 ; Salter v. How- that in 6 Went. 443, for the nearly ard, 43 Ga. 601; Haskins v. Royster, identical offense of a conspiracy to 70 N. C. 601; Miburne v. Byrne, 1 ruin an actor by making a great Cranch, C. 0. 389; Haight v. Badge- noise at the performance and com- ley, 15 Barb. 499: Scidmore v. Smith, polling the manager to discharge 13 Johns. 322; Campbell v. Cooper, him from an engagement. It is too 34 N. H. 49; Hart v. Aid ridge, Cowp. long and verbose, and not precise 54; Keane v. Boycott, 2 H. Bl. 511; enough in its forms of allegation, for Blake v. Lanyon, 6 T. E. 321; Morgan insertion here. For a form for a v. Smith, 77 N. C. 37. conspiracy to seduce people to with- 3 Walker v. Cronin, 107 Mass. 555, draw their custom from a common where the several distinctions are brewer, see Rex v. Morgan, 4 Went, explained. And -see Evans v. Wal- Pl. 106-111. To ruin gun-makers in ton. Law R. 2 C. P. 615; Carew v. their trade, 6 Went. PI. 439. Rutherford, 106 Mass. 1, and other 2Bixby V. Dunlap, 56 N. H. 456; cases cited to this section. Lumley v. Gye, 3 Ellis & B. 216; Lee « Id. ; Sykes v. Dixon, 9 A. & E. 693; 165 § 304.J SPECIFIO OFFENSES. [book III. ble consideration made between them, not expired, of full force, and serv- ice and labor thereunder remaining due to the said X. from the said M.,i from which the said X would derive large benefits and gains; whereilpon A., etc., and B., etc., did, then and there, knowing the premises, and devising to prejudice and injure the said X, unlawfully and maliciously conspire, combine, confederate and agree, together to seduce and entice away the said M. from the said X. and his said employment and service in breach of the contract aforesaid [probably, in most cases, the pleader will elect to add overt acts] ; against the peace, etc.^ § 301. To seduce away workmen where no contract. — Fol- lowing up the views already presented,^ if the object of the conspiracy is to prevent the employer from doing business, it may be charged in the simple manner already pointed out;* and the seducing away of workmen who are not under con- tract, as well as of those who are, may be made to perform the part only of overt acts. Or, whether the purpose is such, or merely to injure in a less degree the employer in his business, the allegations may be, — That on, etc., at, etc., X was a manufacturer of tin ware, employing in hiS|Said business workmen to the number of one hundred and more, and deriving therefrom large gains; whereupon A., etc., B., etc., C, etc., D., etc.. Boston Glass Manuf. v. Binney, 4 Pick. 425; Bird v. Randall, 3 Bur. 1345; Nichol v. Martyn, 2 Esp. 732; Langham v. S., 55 Ala. 114; [Long- shore Printing and Publishing Co. V. Howell, 26 Oreg. 537.] 1 In an action on the contract, this would not be a suflBcient allegation of it. But even less would suflfice in an action by the master for seducing the servant from him. 2 Chit. PL 645 and note; Hambleton v. Veere, 2 Saund. 169; Walker v. Cornin, 107 Mass. 55.5 ; the gist of the action being the wrong and not the contract. The like distinction prevails in crim- inal pleading. Crim. Pro., I, §§ 554r- 558. I think this form of the allega- tion adequate. If the pleader, for caution, elects to set out the contract more fully, let him be equally care- ful to avoid a variance between the averment and proof of it, the danger whereof constitutes the objection to following the forms in assumpsit. In Reg. V. Duffield, 5 Cox, C. C. 404, 408, the part of a count correspond- ing to the form thus far in our text, and on which there was a conviction, is, — That on, etc., X "carried on trade and business as a manufacturer of japanned and tin wares at, etc., and that divers, to wit, fifty, persons, being artificers, had contracted with the said X. to serve him as workmen and artificers in his said trade and business for certain times and periods respectively agreed upon between them and the said X, and that the said persons so being such artificers as aforesaid have entered into the service of the said X as such manu- facturer as aforesaid." 2 Compare with the forms in Reg. V. Duffield, supra. » Ante, %% 301, 303. * Ante, § 801 and the places there referred ta 166 OH. XXIII.] OONSPIEACT. [§ 305. and sundry other persons whose names are to the jurors unknown, did then and there, having no guardianship over said workmen, and not de- vising to pron;iote in any lawful way any interests of their own, but of malice toward the said X, and planning, purposing and intending to injure him in his said business, and to ruin him therein, and to prevent him there- after carrying it on, unlawfully and maliciously conspire, combine, confed- erate and agree together to persuade, entice, induce and cause each and every one of the workmen so employed by the said X to leave him and his said employment at such time and times as would most injure and preju- dice him therein; and in like manner and to the like end seduce and keep away from entering into his employment in said business all other work- men; causing them and the before-mentioned workmen to idle away their time and waste their substance, to the detriment alike of themselves and of all other people of the state; i against the peace, etc.^ § 305. To compel workman — Employer to discharge him. To close against a workman every avenue to employment, un- less he will do what the law does not require of him, is to pre- vent his working, — a conspiracy to do which is indictable without any allegation of contemplated means.' Or the aver- ments may be, if so are the facts, — That A., etc., B., etc., C, etc., D., etc., and other persons to the number of one hundred and more whose names are to the jurors unknown, on, etc., at, etc., being members of an association not established by law called the M. Association, and X. being a journeyman tailor and not a member thereof, and the said association requiring of its members the payment of certain moneys and compliance with certain rules, did then and there unlawfully and maliciously conspire, combine, confederate, and agree together to com- pel all journeymen tailors and especially said X. to become members of said association, and to pay the moneys and conform to the rules aforesaid, and on his and their refusing the same to prevent him and them from there- after carrying on the said trade and business, and to compel T., who was then and there the employer of the said X., and all other employers of jour- neymen tailors, to turn oflE from their employ in the said trade and business the said X. and all other such journeymen tailors not members as afore- 1 This extended averment of the to tender higher wages than he had conspiracy will in no way interfere before offered, or take into his serv- with the allegations here of overt ice men whom he did not want, or acts, should the pleader elect to make turn off workmen whom he desired them. to retain; this circumstance would 2 Should the proof be, that the con- not create a variance. For a busi- spirators intended what is here al- ness man to transmute himself into leged only on condition that X re- a puppet, and be moved by the show- fused compliance with demands man, is to abandon business. And from persons having no authority to he who is compelled to do this is make them : as. for example, refused, forced out of business to his employees or to third persons, ' Ante, § 301. 167 § 3U6.] SPECIFIC OFFENSES. [bOOK III. said, unless he and they would and did join the said association, and pay the moneys and confoi-m to the rules aforesaid; i against the peace, etc.^ § 306. By workmen to raise their wages. — It is not only- lawful but commendable for workmen to seek by legitimate and honorable means to raise their wages, and to combine therefor; as, for example, by teaching one another improved methods of work so as to render their services more valuable, by opening the paths to other business for those of their num- ber w ho choose to enter them so as to diminish competition, by assisting one another to remove to places where larger wages are paid, and by other appropriate devices. So that a simple allegation against them of conspiring to raise their wages charges no offense.' But it is criminal to conspire to do un- lawful acts, and their purpose to accomplish the lawful end of raising their wages by such means does not take away the criminality; for the law does not, more than good morals, per- mit men to do a wrong in order to accomplish a good. The allegations should embody the facts to be proved; as, for ex- ample, — That on, etc., at, etc., A., etc., B., etc. [and so on, setting out the names of as many as it is deemed best to make defendants], and one hundred and more other men whose respective names are to the jurors unknown, were journeymen hatters, working for wages at their said trade in the employ- ment and service of X, who was then and there a manufacturer of hats; that the said X. had then and there large orders for hats which he had con- tracted with sundry persons to manufacture and deliver at short and lim- ited intervals for fixed and determined prices, all of which the said defend- ants then and there well knew. Whereupon the said A. and the said other defendants did then and there unlawfully, maliciously and secretly con- spire, combine, confederate and agree together to injure, oppress, impover- ish, and drive from his said business of manufacturing hats, the said X., 1 The indictment may go on, if the But the form here proposed is in pleader chooses, and specify the various respects stronger. And means to be used to compel employ- where the facts to be proved admit ers to discharge non-association of allegations yet stronger, it is cer- journej-men; as, for example, to re- tainly the prudent course to add quire all association journeymen to them. See further as to the law, withdraw at once and in a body from Crim. Law, II, § 333; S. v. Donaldson, their employment, and forbid others 3 Vroom, 151; [S. v. Dyer, 67 Vt. 690.] to take their places; and to threaten, ' i have stated this question as in etc., according to the facts. sound doctrine it appears to me. For - In Com. V. Hunt, 4 Met. Ill, is tlie more upon it, and the judicial utter- form of an indictment similar to this, ances, see Crim. Law, II, §§ 230-233. which was adjudged inadequate. 168 OH. XXIII.] CONSPIEACT. [§§ 307, 308. and to prejudice and disappoint the several persons to whom the said X. had promised as aforesaid to deliver manufactured hats, and to injure the community and its trade and commerce by creating disturbances in the manufacture and buying and selling of hats, to diminish the productive industry of the country by idleness, and to create danger that themselves and families vpould become paupers requiring public support, by suddenly and for no lawful purpose of otherwise supporting themselves withdraw- ing in a body from their said employment with the said X, by persuading, enticing and inducing all other workmen in his said employment thus to withdraw, by remaining near his place of business, idling away their time, and seducing and inducing all other journeymen hatters whom the said X. should seek to employ not to serve him, by refusing to go elsewhere in search of work, and by giving out that the said X. should take them back into his said service at a rate of wages greatly above what they had there- tofore received, or be crippled in his said business, ruined therein, and never more be permitted to carry it on; against the peace, etc.i § 307. By manufacturers to reduce wages. — Employers have the right to hire workmen at as low wages as they can ; with the same limit as in the case of workmen seeking an in- crease of pay, that they must not resort to UAlawful means. The form in the last section will indicate how the indictment should be.^ Not often will there be occasion to bring such an indictment; because, by reason of their larger property at stake, it is more obvious to themselves than to the workmen how a wrongful act of this sort does a greater injury to the perpetrators than to the intended victims. § 308. In general as to labor conspiracies. — The forego- ing are specimen forms of the indictment, good, it is believed, in most of our states, yet probably not in all. They are not servilely copied from the books ; because most of the prece- dents in the books are too voluminous and verbose, or loosely drawn ; or framed with reference to some statute local to Eng- land or to the particular state, or on a view of the law now exploded, or of doubtful capacity to resist objections which might be urged against them. But most of those in the books are referred to in the note, and they can be readily consulted and compared with the forms here proposed.' 1 See post, % 308, for references to their hours of labor, etc., see 3 Chit. other forms. Crim. Law, 1163, 1167; 4 Went. PI. 2 And see the form in 3 Chit. Crim. 103-105, 113-116, 120-134; 6 id. 375. To Law, 1169. prevent workmen from continuing 3 For various conspiracies among to work, Matthews, Crim. Law, 453. workmen to raise their wages, lessen Among workmen for employer tak- 169 §§ 309, 310.] SPECIFIC OFFENSKS. [bOOK III. § 309. To injure public. — The indictment for a conspiracy to the detriment of the public differs in little from that to in- flict a private wrong, except in designating, in some appropri- ate terms, the public instead of an individual as the injured party.' For example, — § 310. To enhance by false news the price of government securities. — The allegations, modified and adapted to our use from a famous English case, may be, — That on, etc., at, etc., there being open and public war between the peo- ple and government of the United States of America and the king of, etc., and the prices of the bonds and other securities issued by the United States aforesaid being thereby greatly depressed, and it being by the pur- chasers and sellers thereof believed that on the coming Of peace those prices would be greatly increased. A., etc., and B., etc., did then and there unlawfully and maliciously conspire, combine, confederate and agree to- gether to proclaim then and there and cause it to be believed that a great naval battle had lately been fought between the said two contending powers, wherein the forces and ships of the said king had been utterly de- feated, overthrown and destroyed, and the said king had been slain, and his successor and the advisor of the said crown had accepted proposed terms of peace, and peace was about to be proclaimed between the said two con- tending powers; whereas in truth and in fact no such battle had been fought, the said king had not been slain, and no terms of peace had been agreed to as aforesaid, and there was no prospect thereof, all of which the said A. and B. then and there well knew; with the intent of them the said A. and B. that persons might be then and there, before said false news could be contradicted, seduced and persuaded thereby to buy the bonds and se- curities which had been issued by the United States at enhanced prices, and with the intent of them to defraud all such purchasers of the same; against the peace, etc.* ing an apprentice or workman con- prentice, Eex v. Ferguson, 3 Stark, trary to their rules, 3 Chit. Crim. 489. To force workmen to leave em- Law, 1166; 4 Went PI. 100-102. Em- ployment, and employer to alter ployers conspiring against journey- mode of carrying on business, Reg. men, 3 Chit. Crim. Law, 1169. More v. Hibbert, 13 Cox, C. C. 82; Reg. v. forms against workmen conspiring, O'Connor, 5 Q. B. 16. Workmen con- by various means, to raise their spiring to procure the discharge of a wages, Reg. v. Rowlands, 2 Den. C. C. fellow-workman, P. v. Trequier, 1 364, 17Q. B. 671, 5Cox, C. C. 436, 466; Wheeler, Crim. Cas. 143. Members Reg. V. Duffleld, 5 Cox, C. C. 404; of a society not to work where non- Rex V. Vipont, 2 Bur. 1163; Rex v. members are employed. Com. v. Hanson, 31 How. St. Tr. 2; Rex v. Hunt, 4 Met. 111. To raise wages, Bykerdike, 1 Moody & R. 179. Among P. v. Melvin, 3 Wheeler, Crim. Cas. workmen to compel the employer to 262; P. v. Fisher, 14 Wend. 9. take back a discharged workman, i Crim. Pro., II, g 243. Reg. 11. Bunn, 13 Cox, C. C. 316. To 2 Rex v. De Berenger, 3 M. & S. 67. prevent the employer taking an ap- Form for conspiracy to raise the price 170 OH. XXIII.] CONSPIEAOT. [§§ 311, 312. §311. To adulterate manufacture. — The allegations may be, for example, — That A., etc., and B., etc., on, etc., at, etc., devising and intending to ac- quire to themselves unlawful gains by means of a public fraud, did then and there unlawfully and maliciously conspire, combine, confederate and agree together to mix and compound, in large quantities, genuine indigo of foreign growth and manufacture with starch, blue vitriol, nutgalls, alum, and a concoction of logwood [or, with certain worthless and deceptive ingre- dients to the jurors unknown; or, with blue vitriol, nutgalls, and other worthless and deceptive ingredients to the jurors unknown ij, in such pro- portions and in such manner as to create a product three times greater in quantity and weight than such genuine indigo therein, resembling in form, color and otherwise such genuine indigo of the best quality, with the in- tent to thrust the same into commerce, and to sell it, and cause it to be sold, bought, and used, as and for such genuine indigo of the best quality; against the peace, etc.^ § 312. Other conspiracies. — The differing ways of crim- inally conspiring are almost infinite. But the indictment is similar in all. No good, sufficient to compensate for the space occupied, would come from extending these forms into further instances. In the note,' references are given to places where of salt, 3 Chit. Grim. Law, 1164. To engross and monopolize an article of manufacture and commerce. Rex V. Crispe, Trem. P. C. 8.3. 1 Great caution should be taken at this part of the indictment to avoid a variance. I am not certain that it is necessary to set out the ingredients or to say they are unknown. I should think the words might be " with such valueless and deceptive ingredients other than genuine indigo as would impart to the mixture the appear- ance of genuine indigo of foreign growth and manufacture." If there is doubt, the case will be a proper one for a second or third count. 2 Com. V. Judd, 3 Mass. 339, com- pared with Davis, Prec. 105. Public by false pretenses.— For a form for cheating the public by false pre- tenses, adjudged ill for being too vague and uncertain, see the Irish case of White v. Reg., 13 Cox, C. C, 318. 3 To prevent the burial of a dead body in order that it may be dis- sected. 3 Chit. Grim. Law, 86. By parish officers and others as to main- tenance of paupers. 3 Chit. Crim. Law, 1157; 4 Went. PI. 112, 134; 6 id. 398; 1 Cox, C. C. Ap. 11. Among pris- oners, to break prison, etc., and es- cape. 3 Chit. Crim. Law, 1149, 1150; 4 Went. PI. 116-118. In the nature of embraoeiy. Rexw Opie, ISaund. 300. In connection with holding to bail 3 Chit. Crim. Law, 1169; Rex V. Sheers, 4 Went. PI. 94. To dissuade a man from giving evidence against one for putting oflE bad money. 3 Chit. Crim. Law, 1151. To withdraw from a criminal prosecution and not appear against the prisoner. Reg. v. Hamp, 6 Cox, C. C. 167. To destroy a warrant issued on a criminal charge. S. v. Enloe, 4 Dev. & Bat. 373. To defeat justice by false evi- dence and suppression of facts on preliminary inquiry before magis- trate. 5 Cox, C. C. Ap. 9. To cause, by false personation, sheriff's officer to arrest wrong man. 3 Chit. Crim. Law, 1148. To defraud the govern- 171 § 313.] SPECIFIC OFFENSES. [bOOK III. others can be found ; and occasionally the petitioner may desire to consult them. But no two cases are in all particulars identi- cal, therefore the pleader should draw each indictment with special reference to the individual facts. III. Peactical Suggestions. §313. Importance of understanding subject. — The law of criminal conspiracy is, when rightly understood and admin- istered, a beneficent corrective of wrongs which are not other- wise reached. It is less rigid in its workings than the law of most other offenses, and more under the judicial control. It should be well understood by prosecuting officers, that they may judge wisely when to invoke it and when to forbear, and prop- erly enlighten the courts when questions under it judicially arise. It is a great misfortune that in a few of our states no hint of this sort has been given and heeded. "We have some decisions, not many, to expunge which from the books, were it possible, would be worth a subsidy. And there are cited in our courts text-books the authors of which had no manner of com- prehension of this subject. If our prosecuting officers will ex- plore a for themselves, and call into action their best energies ment of revenue and otherwise. Rex country. Rex v. Walker, 23 Howell, V. Hedges. 28 Howell, St. Tr. 1315; St. Tr. 1055, 1078. To join the re- U. S. V. Walsh, 5 DilL 58; U. S. bellion. Com. u Blackburn, 1 Duv. 4. V. Fehrenback, 2 Woods, 175; U. S. To seduce artificers and carry away V. Crosby, 1 Hughes, 448; CJ. S. v. machines to foreign parts. 3 Chit. Dennee, 3 Woods, 47, 48; Reg. v. Crim. Law, 1161. By two, for one to Thompson, 16 Q. B. 832, 5 Cox, C. C. rob the other, to charge the hundred. 166. To bring in foreign goods with- 3 Chit. Crim. Law, 1156. By parish out payment of customs. Reg. v. officers, etc., to defraud sufferers by Blake, 6 Q. B. 126. To obtain money fire of money collected for their re- by procuring the appointment of a lief. 3 Chit. Crim. Law, 1188. To person to an office in the customs, disturb dissenting congregation. 3 Rex V. Pollman, 3 Camp. 329. To de- Chit. Crim. Law, 39. To enter upon feat the operation of the laws against land and expel the possessor. Wilson the sale of intoxicating liquor. S. v. v. Com., 15 Norris (Pa.), 56. To de- Potter, 28 Iowa, 554; S. v. Harris, 38 stroy or erase the indorsement on a Iowa, 243. Against the election laws, promissory note. S. v. Norton, 3 Zab. Com. V. McHale, 1 Out. (Pa.) 397, 400, 33. Against Warren Hastings. Rex 407. To elect a legislator through v. Fowke, 20 Howell, St. Tr. 1077, bribery. 7 Cox, C. C Ap. 15. To pro- 1143. To keep a witness from attend- cure false voting. Com. v. English, ing court. Rex v. Steventon, 2 East, 11 Phila. 439. To overturn the gov- 363. ernment and assist the enemies of the 173 GH. XXIII.J CONSPIEACT. [§ 314:. and amplest learning whenever questions under this title arise, erroneous diota, and to some extent erroneous decisions, may be corrected ; and the retrograde, where it appears, be stopped. § 314. Undue accumulations of wealth, and labor conspira- cies. — One of the most momentous questions, as viewed from the standpoint of political economy, ever presented to any country, is becoming prominent with us, in connection with that twin-evil, always and everywhere one and inseparable, enormous accumulations of wealth in single hands and labor strikes. These are the upper and nether millstones between which the middling interests are crushed and the poor are ground to powder. The power which rolls undue wealth into the embrace of scheming, longheaded speculators and gamblers in the securities and products of the people and government, consists of the upheavals of commerce, of trade, of manufact- ure, and of the agricultural industries, and of the throbs of public and private woe. It was little known with us until it became terrible in the turmoil and struggle of a great civil war, and was continued by the unrest produced largely by great labor strikes and the apprehensions of their coming. And the poor and the working people are kept from rising to the middle ranks by bestowing their surplus earnings on "Unions," and spending them in the idleness enforced by strikes. Yet thus they feed the streams of wealth which flow to those whom, more than any others, they are ostensibly meant to injure, — the holders of ill-acquired millions, the real and only recipients of whatever benefits they in truth bestow. The fact which mitigates this evil is their small success and many failures. J^early the entire population, in every country truly civilized, consists of people who at one occupation or another labor with their hands. To the few whose wealth exempts them it is immaterial whether they pay more or less for such products of labor as they use. The poor laborers constitute the bulk of consumers. And if one class obtains by forced means an increase of the rewards of labor, the burden is simply cast on another class, who, as the cost of living is enhanced, may well demand higher pay. When the equilibrium is again reached, no one is better off than before. JBut the cost of pro- duction has become so high that exports stop. Money goes abroatl, nothing else. Universal stagnation follows; men who 173 § 315.] SPECIFIC OFFENSES. [bOOK III. have the means of paying artisans and laborers will not hire them. With the domestic ruin, the tide of emigration turns and flows back to foreign lands, and this country ceases to be an asylum for the poor and a refuge for the oppressed. Now, — § 315. As to remedy. — One of the means resorted to for the correction of this evil consists of indictments against the con- spirators. "When such a prosecution can be so conducted as to enlighten the classes of people who engage in these conspira- cies, so that they will see how much harm they are doing to themselves, good may come from it. But ordinarily it cannot be so conducted. Where the immediate attempt of the con- spirators is to drive away or otherwise prejudice one of their own class who is too intelligent to join them in the evil com- bination, every power of the government should be put forth for his protection. And there may be other labor conspiracies within this principle. In nothing is the prosecuting oflBcer called upon for the exercise of higher wisdom than in dealing with questions of this sort. 174 CHAPTER XXIY. CONTEMPT OF COURT AND THE LIKE.1 § 316. Introduction. 317-331. The summary proceeding. 833, 338. Indictment for disobeying judicial orders. 334-339. Same for other contempts. §316. How chapter divided. — We shall consider, I. The summary proceeding ; II. The indictment for disobeying judi- cial orders; III. The indictment for other contempts. I. The Summary Peoceeding. § 317. In general. — This proceeding, while treated in most cases as criminal, is resorted to and conducted the same in civil causes and before civil courts as in criminal.^ Having various and diverse objects, in circumstances widely dissimilar, it as- sumes many aspects, admitting of or requiring a good deal of variety in its steps and forms; moreover, conforming to the general practice in the particular tribunal, and this differing in our states, and in some of the states being more or less gov- erned by direct statutory provisions, the varieties from locality become considerable. Therefore it is not deemed best, in these directions meant for use in all the states, to enter at large into this subject. But a reference to some cases in which forms appear,' and a few particular explanations, with forms, will be helpful. 'For the direct discussions of the Whitehead, 65 N. C. 637; In re Mur- subject of this title, see Crim. Law, phey, 39 Wis. 386; Phillips v. Welch, IL S§ 241-373. Collateral, Id., I, 13 Nev. 158. See Middlebrook v. S., §§ 240, 913, 1067; Crim. Pro., I,§ 869; 43 Conn. 257; Phillips v. Welch, 11 Stat. Crimes, § 137. And see titles Nev. 187; [S. v. Irwin, 30 W. Va. 404.] Libel and Slandee; Obstetjctions 'P. v. Nevins, 1 Hill (N. Y.), 154; P. OP Justice and Goveenment, etc. v. Wilson, 64 111. 195; Worland v. [West Jersey Traction Co. v. Camden, S., 83 Ind. 49, 50 ; Gandy v. S., 13 Neb. 58 N. J. L. 536.] 445; Eex v. Beardmore, 2 Bur. 793; 2 Crim. Law, II, §§ 241,269; Cart- Cartwright's Case, 114 Mass. 330 ;Neel Wright's Case, 114 Mass. 230, 238, 339; v. S., 4 Eng. 259. In re Rhodes, 65 N. C. 518; Morris v. 175 §§ 318, 319.] SPECIFIO OFFENSES. [bOOK III. §318. Not in presence of court — Attachment. — "Where the contempt is committed elsewhere than in the presence of the court, notice of the proceeding must in some way be given to the party; followed, of course, by the opportunity to be heard. This is commonly, but not necessarily in all cases, done by an attachment; preceded or not, according to the circum- stances of the case, by a rule to show cause why it should not issue.i A form of the attachment in the English books, easily modified to the practice of any particular state, is, — To tVie sheriff of, etc., greeting: We command you that you do not for- bear by reason of any liberty in your bailiwick, but that you attach A., B., C. and D., so that you may have them before us [that is, stating the court; this was the form for the king's bench] at W., on, etc., to answer to us for certain trespasses and contempts brought against them in our court before us, and have you then and there this writ. Witness, etc., at, etc. By the court.2 § 319. In presence of court. — It is not necessary to bring into court, by process, a party already there,' or adduce to a judge proof of what he sees. Therefore, for a contempt in the presence of the tribunal, it may verbally order the attaching officer to take the offender into custody ; and, without warrant of arrest, written accusation, or other formal steps, render its sentence against him for the contempt, such as to pay a fine or suffer punishment, and in the former case stand committed until the fine is paid.* Nor can the offender oust the court of its power thus to proceed by leaving the court-room before he is actually seized.^ 1 S. V. Sheriff, 1 Mill, 145, 153; Ex 3 Crim. Pro., I, § 179. parte Kilgore, 3 Tex. Ap. 247; S. v. * 4 BL Com. 386; Ex parte Pater, 5 Blaokwell, 10 S. C. 85; Geisse v. B. & S. 369; Holcomb v. Coonish, 8 Beall, 5 Wis. 324; P. v. Bower, 4 Conn. 375, 379; S. v. Matthews, 37 N.H. Paige, 405: In re Pollard, Law R. 3 450; Spilsbury v. Micklethwaite, 1 P. C. 106; Reg. v. Castro, Law R. 9 Taunt. 147; Watt w Ligertwood, Law Q. B. 319. R. 3 a L. Sc. 361; Phillips v. Welch, ^ 3 Gude, Crown Pract. 151; 4 Chit. 13 Nev. 158; Rex v. Leech, 9 Howell, Crim. Law. 363. See Robbins v. Gor- St. Tr. 351; [S. v. Gibson, 33 W. Va. ham, 35 N. Y. 588; P. u Pearson, 3 97 ;Eilenbeckerr. Plymouth Co. Dist Scam. 270; [Hawkins v. S., 135 Ind. Ct., 134 U. S. 31.] 570; Ludden v. S. (Neb.), 48 N. W. R. 5 Middlebrook v. S., 43 Conn. 257; 61 ; Ex parte Woodworth, 39 Ohio L. Watt v. Ligertwood, supra. See J. 315; Chapin v. P., 57 III. Ap. 577; In Crim. Pro., I, § 178; In re Pollard, re Terry, 138 U. S. 389; In re Savin, Law R 3 P. C. 106. 131 U. S. 367.] 176 CH. XXIV.j CONTEMPT OF COTJKT AND THE LIKE. [§§ 320-322. § 320. Commitment. — "Where the offender is ordered to be imprisoaed out of the presence of the court, there must be a warrant or commitment therefor in writing.^ § 321. For refusing to testify. — The following is an Eng- lish form of commitment of a witness by a magistrate for re- fusing to testify. It should be adjusted to the practice of the particular state, — not done here, because the practice in the several states differs : — To the Keeper of New Prison at, etc., or his Deputy:* Middlesex, to wit. Receive into your custody the body of A, herewith sent you, brought before me M., one of her majesty's justices of the peace in and for the said county, by X, upon whose information taken upon oath before me it appears that a certain felony hath been committed, touching which the said A. can give material evidence, and the said A. admitting on his examination that he knows the name and residence of the person sus- pected to have committed the said felony, but refusing to answer touching the same, or to disclose the name and residence of the said person, him the said A. therefore safely keep in your said custody until he shall submit to be examined touching the said felony,3 and for so doing this shall be your sufficient warrant. Given under my hand and seal this, etc. M. (l. s.).* II. The Indictment foe Disobeying Judicial Oedees.^ § 322. Practically unimportant.^- While this offense is probably cognizable by the common law of our states in gen- eral, we have no reports of indictments for it, except an occa- 1 3 Hawk. P. C, c. 16, § 13; Furlong shall be discharged by due course of V. Bray, 3 Saund. 183, 1 Mod. 373; law." Mayhew v. Locke, 7 Taunt. 63; Ex * 4 Chit. Crim. Law, 37. And for parte Maulsby, 13 Md. 635; Ex parte other like forms, see same page and Cohen, 6 Cal. 318. And see P. v. Pir- page 38. I cannot safely say how , fenbrink, 96 111. 68. See Wilson's much of this is surplusage. Evi- Oase, 7 Q. B. 984, 1000. dently less particularity would be 2 " In strictness it should be di- required in a commitment for a like rected to a constable, and to the offense by a superior court. And see jailer or keeper of the prison, requir- P. v. Turner, 1 Cal. 188; Ex parte ing the former to convey the pris- McKee, 18 Mo. 599; BurnhamuMor- oner into the custody of the jailer, rissey, 14 Gray, 326; In re Morton, 10 and the latter to receive and keep Mich. 208; Ex parte Rowe, 7 Cal. him; but, in the police districts of 175; De Witt v. Dennis, 30 How. Pr. London and Dublin metropolis re- 131 ; Ex parte Summers, 5 Ire. 149. spectively, it is usually directed to For a form of conviction of a witness the jailer only." 3 Gab. Crim. Law, before the grand jury for refusing to 177. answer questions, see P. v. Kelly, 24 'Chitty suggests the query whether N. Y. 74 it would not be better to add, " or * Crim. Law, I, § 340. 13 177 § 323.] SPECIFIC OFFENSES. [book III. sional statutory one.^ In like manner, in England, it appears to extend practically only to disobedience to orders of magis- trates in sessions or otherwise; though,inpointof law, it would appear not to be so limited.^ Hence, — § 323. Form of indictment. — It will serve all practical pur- poses simply to present one form of the indictment from the English books; namely, — That, at the general quarter sessions of the peace of our lady the queen, holden for the county of Middlesex, at the New Sessions House on Clerken- well Green, in and for the county aforesaid, by adjournment, to wit, on, etc., before M., N., O. and P., esquires, and others their fellows, justices, etc., it was ordered by the same justices and court there, that, etc. [proceeding to state the order of sessions in the past tense ^], [as by the said order, ref- erence being thereunto had, will more fully and at large appear *] ; of which said order the said A., one of the high constables in the order aforesaid ^Ante, § 159; Crim. Law, I, § 240: [Sherwin v. P., 100 N. Y. 351; Jordon V. Or. Ct. of Wapello Co., 69 Iowa, 197; Am. Const. Co. v. J. T. & V. W. K. Co., 52 Fed. R. 937; T., A. A. & N. M. R. Co. V. Penn. Co., 54 Fed. R. 746; In re Evans, 1 Ch. 252; U. S. v. Debbs, 64 Fed. R 724; P. ex rel. v. Rice, 144 N. Y. 249.] 2 In Reg. V. Ferrall, 2 Den. C. C. 51, 54, 56, Pollock, C. B., after distin- guishing " between a nonpayment of money and a refusal to do some act, such as being sworn in as a con- stable, or doing some other act of a public nature," intimates that, on principle, disobedience to an order simply to pay money should nof be held indictable. Still he says: "The authorities are clear upon the point, that an indictment will lie for a re- fusal to comply with an order of jus- tices for the payment of money ; and, although I individually should not be disposed to hold, for the first time, that such a refusal was indictable since a like refusal to comply with an order of a superior court is not so, yet I feel bound by the authorities to concur with the rest of the court in this view of the law." But is it true that, by the English common law, a like order from a superior court, attended by the like circum- stances, would not come under the same rule? I have read the English cases pretty thoroughly, yet I may have overlooked something; but I can recall no decision to the proposi- tion that disobedience to a judicial order from the higher courts is not indictable in circumstances wherein the like disobedience to a judicial order from a magistrate would ba Stephen, in his " Digest," puts the doctrine, it seems to me with ad- mirable precision ; thus, — " Every one commits a misdemeanor who dis- obeys any order, warrant or com- mand duly made, issued or given by any court, ofiScer, or person acting in any public capacity, and duly au- thorized in that behalf, unless [here comes the important qualification, explaining why this doctrine is not more widely acted upon] any other penalty or mode of proceeding is ex- pressly prescribed in respect of such disobedience." Steph. Dig. Crim. Law, 83. 3 See also, as to the setting out of the order, Rex v. Boys, Say. 143. * Doubtless not necessary. It is omitted from the 19th and I pre- sume other late editions of Archbold. 178 OH. XXIV.] CONTEMPT OF COTJET AND THE LIKE. [§§ 324, 326. named, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, had notice. Nevertheless, the said A., late of the parish aforesaid, in the county aforesaid, gentleman, then being one of the high constables in the order aforesaid mentioned, unlawfully and contemptuously, upon being served with the said order, did neglect and refuse to, etc. [here insert what the ordfer required of him], as by the said order he the said A. was required to do; nor hath he the said A. at any time since complied with the said order, although often requested so to do; [in contempt of our lady the queen and her laws, to the evil example of other persons in the like case offending, and i] against the peace, etc.2 III. The Indictment foe Othee Contempts.' § 324. Elsewhere — Here. — -Most of the offenses which are indictable contempts of court are known also by some other name; as, for example, assault and battery, when committed in the judicial presence; libel and oral slander, under circum- stances to be such contempt; and many of the offenses for which forms will be given under the title " Obstructions of Jus- tice and Government " are also * contempts of court. The pleader, therefore, should consult other titles analogous to this for forms which would be equally appropriate here. § 325. Formula. — This offense is committed in such a va- riety of ways and circumstances as to render it impossible to suggest any one set of allegations which will be adapted to 1 Unnecessary. Ante,% 48; Crim. Rex «. Eoyall, a Bur. 833. To make Pro., I, § 647. provision for the poor (against over- 2Archb. Crim. PI. & Ev. (10th ed.) seers). Rex v. Fearnley, 1 T. R. 316. 584, (19th ed.) 894. For other forms. To pay church-rate, Reg. v. Bidwell, see 3 Chit. Crim. Law, 883, 284, 387, 1 Den. O. C. 323, 3 Car. & K. 564, 3 391 ; 4 Went. PI. 329 ; Rex v. Winship, Cox, C. C. 398. To admit a person to Cald. 73, 5 Bur. 2677 ; Rex v. Robin- a benefit society. Rex v. Gilkes, 8 B. son, 3 Bur. 799; Kex v. Mytton, 4 & C. 439. To restore lands, Reg. v. Doug. 333; Rex i;. Moorhouse, 4 Doug. Sewell, 8 Q. B. 161; Reg. u Wilson, 388, Cald. 554; Rex v. Kingston, 8 1 Cox, C. C. 355. To produce a will East, 41 ; Rex v. Gilkes, 3 Car. & P. of a deceased person, S. v. Pace, 9 53; Reg. v. Thornton, 2 Cox, C. C. Rich. 355; [S. v. Eoote, 5 N. D. 487; 493. More particularly, order foi: Bloom v. P., 23 Colo. 416; Hall v, maintenance of bastard child, 3 Chit. Triggs, 3 Ch. 319.] Crim. Law, 381; 4 Went. PI. 337; 3 Crim. Law, II, §§ 364-267, 373. Reg. V. Brisby, 1 Den. C. C. 416, 418, [In Indiana, contempts cannot be 3 Car. & K. 963; Reg. v. Ferrall, 3 prosecuted by indictment. Sander- Den. C. C. 51, 4 Cox, C. C. 431. To son v. S., 151 Ind. 550.] pay costs of appeal, Reg. v. Orr, 12 * Crim. Law, I, g§ 465-469; II, § 365. U. C. Q. B. 57. To work on highway, 179 §§ 326, 327.] sPEOiFio offenses. [book hi. all cases. The following incomplete formula may be in some degree helpful, — That A., etc. [ante, §g 74r-77J, on, etc., at, etc. [ante, § 80], being personally- then and there in presence of the court of, etc., which was then and there open and in the transaction of business, did, etc. [say what], whereby [for example] the business of said court was interrupted and disturbed, and the Honorable X., judge of the said court, who was then and there presiding therein, was insulted and maliciously defamed [or set out any transaction in the absence of the court amounting to an indictable contempt]; against the peace, etc. [ante, § 66].i § 326. Words spoken to judge in open court. — Eeducing an old and voluminous form to modern proportions, we have,-^ That on, etc., at, etc., the court of common pleas there was open for and occupied in the transaction of the business thereof, and the Honorable X., one of the judges thereof, was therein judicially sitting and presiding; whereupon A., etc., wilfully, wickedly and maliciously presenting himself at the bar of said court, and not in the discharge of any duty, did then and there proclaim and declare, in the presence and hearing of the said Honor- able X., and of the jurors, witnesses, counselors at law, and a large con- course of people there assembled and attending on said court, and to the disturbance and scandal thereof and of the said Honorable X, the words following, to wit, "You," meaning the said Honorable X., "are a traitor to your country, and I will have you impeached and turned out of your judicial seat, and hung; " against the peace, etc.2 § 327. Threat made to induce relinquishment of verdict. One of Chitty's forms is against an attorney at law, who, ap- pearing in a cause for the plaintiff, and having a verdict ren- dered against him on the testimony of the defendant's son, ■wrote to the defendant's attorney threatening to prosecute the son for perjury unless he would relinquish ail benefit from the verdict. Altered for use with us, it is, — That at a court of, etc., holden on, etc., at, etc., there came on in due form of law for trial before a jury a certain cause within the jurisdiction 1 For forms see other titles, partic- Arkansas. — Wilson v. S., 5 Pike, ularly "Libel and Slander" and 513. "Obstructions of Justice and Gov- Massachusetts. — Com. v. Reynolds, ernment; " also 3 Chit. Crim. Law, 14 Gray, 87. 149, 235; Rex v. Barbone, Trem. P. C. Vermont— S. v. Carpenter, 20 Vt.9. 73; Rex v. Vavasour, Trem. P. C. Virginia. — Com. v. Feely, 2 Va. 79; Rex v. Forth, Trem. P. C. 80; Cas. 1. Rex V. Harrison, 3 Howell, St. Tr. 2 Rex v. Harrison, 3 How. St Tr. 1369; Rex v. Barnardiston, 9 Howell, 1369. For other forms see Archb. St. Tr. 1333; Rex v. Griffith, Vern. & Crim. PI. & Ev. (19th ed.) 899; Rexu S. 613. Griffith, Vern. & S. 613; Crim. Pro., U, § 807. 180 OH. XXIV. 1 CONTEMPT OF COUET AND THE LIKE. [§ 328. of said court, wherein one X was plaintiff, one Y. was defendant, and one M. appeared as attorney for the said Y. ; and one Z., a son of the said Y., testified therein on his oath duly administered as a witness for the said Y. his father; whereupon the said jury rendered, in due form of law, their verdict in favor of the said Y.i And afterward, on, etc., at, etc.. A., etc., who was the attorney of the said X at the trial of said cause, maliciously and unlawfully devising to obstruct the course of justice in said court and cause, and by wrongful means and unlawful threats to prevent the said verdict from being carried into execution, wrote to the said M., still being the attorney of the said Y. in said cause, a letter in the words following, to wit [setting out the letter by its tenor, with the innuendoes necessary to explain its meaning], with the intent thereby to extort and procure from the said Y., through the wish of him the said Y. to prevent, and for the purpose of preventing, the said threatened prosecution of the said Z., a re- linquishment of all benefit from the said verdict; against the peace, etc.^ § 328. To prevent witness appearing, — The adjudications are not suiBciently numerous to enable one to say, on authority, to exactly how small proportions the indictment for this offense may be reduced. The following is in substance a form held, on careful consideration, to be good; it is shorter than Chitty's, which it resembles,' yet pretty plainly it admits of further abridgment: — That heretofore, on, etc., N., a deputy sheriff of the county of O. [duly authorized and legally qualified to perform the duties of said office *], by virtue of a warrant directed to him, and issued in due course of law, by M., esquire, a justice of the peace within and for the county of O., did [at, etc. 5] summon and give notice to one X. to appear before the police court of the city of, etc., when and where the complaint hereinafter stated should come on for trial, to give evidence of what he the said X. knew relating to' the matter of a certain complaint of P., it being within the jurisdiction of said court, charging that A., etc. [the defendant], did theretofore, on, etc., at, etc., in said county, in and upon the body of one P. make an assault; ^ where- 1 Consult, as to the form thus far, competent to do this service, there the discussions in the chapter be- should be an averment bringing the ginning ante, g 91. particular officer within tlie author- 2 2 Ohit. Crim. Law, 149. ized class. 3 3 Chit. Crim. Law, 235. ^ This was not in the form before * There is no ground for deeming me, and the court held it not to be this allegation necessary. In point necessary. Possibly some pleader of law, it is immaterial whether the may choose to insert it. officer was " legally qualified," or was " A review of the principles stated merely an officer de facto. Crim. in the chapter beginning ante, § 91, Law, I, § 464. And the court judi- may assist the practitioner in deter- cially knows the powers of a deputy mining how this part of the indict- sherifl. If there were two classes of ment should be. If I were to express officers of the same name, and only my individual opinion, I should say those of the one class were legally that the following is sufficient in 181 § 328.] SPECIFIO OFFENSES. [book III. upon the said A., on, etc., at, etc.j did, well knowing the premises, and de- vising to obstruct the course of justice in the said police court, wilfully, unlawfully, designedly and unjustly, hinder and prevent the said X. from appearing [and the said X. did not appear i] before the said police court when and where the said A. was held for trial on the aforesaid complaint, in obedience to the aforesaid notice and summons, to give evidence of what he knew relating to the matter of the said complaint [by then 2 and there threatening to cause the said X. to be arrested and imprisoned if he ap- peared before said police court as he was then and there summoned, notified, and required by law to do; and that by the threatening of the said A. as aforesaid, the said X. was then and there hindered, dissuaded and prevented from appearing, and did not appear, before said police court, when and where the said A. was had for trial before said police court on said com- plaint, then and there to give evidence of what he the said X knew relat- ing to the matter of said complaint 'J; against the peace, etc.* law, and practically better than the elaborate setting out in the text: — That on, etc., at, etc., one X having been in due form of law summoned to appear before the police court of, etc., to give evidence of what he knew of the matter of a complaint then pending in said court, and within its jurisdiction, wherein P. complained that theretofore in said county, on a day named. A, etc., committed an assault on him the said P. [all of which is inducement, and so properly averred in this indirect and brief form. Then proceed] ; the said A. did then and there, well know- ing the premises, etc. [setting out the offense]. The information in Com. v. Feely, 2 Va. Cas. 1, which was adjudged good, contains but little more than is thus suggested. iThis is not necessary, because such fact is not essential to the con- stitution of the offense. Crim. Law, I, § 468. Still its insertion may be practically well if the matter within the next brackets is omitted. It is not at this place in the form before me. 2 If the matter between these brackets is important, it is rendered nugatory and the indictment bad by the use of " then " in this place to denote the time; provided that, as in the form before me, the pleader inserts different days where I have used the etc. It so becomes uncer- tain to which one of the days the " then " refers. Crim. Pro., I, § 414. This defect seems to have been ovei- looked by counsel. ' I cannot think that any of the matter in these brackets is essential, especially if that in the last preced- ing brackets is inserted; because a complete offense has already been set out, and with suflBcient minute- ness. In Com. V. Feely, supra, this part of the indictment is, — " That he the said John Feely did use means to prevent, and did then and there prevent, one Samuel Wright from attending as a witness to give evidence to prove the execu- tion of a deed of trust, which deed of trust was executed by the said John Feely to John Draper." *Com. V. Reynolds, 14 Gray, 87. For a form for endeavoring to pre- vent a witness from appearing and testifying before a grand jury, see S. V. Carpenter, 20 Vt. 9. Against witness,^ for not testifying before grand jury. Batre v. S., 18 Ala. 119. 182 OH. XXIV.] CONTEMPT OF COUET AND THE LIKE. [§ 329. §339. Practically, — in most cases of contempt of court, the proceeding will be the summary one explained in the first subtitle. Eut circumstances not unfrequently occur wherein the indictment is both the more judicious and the more effect- ual remedy. With the help afforded here and in other titles of this volume, the practitioner will readily devise all needed forms. For CONVEYANCES, FRAUDULENT, see Feattdulent Conveyances. CORRUPTION IN ELECTIONS, see Election Offenses. • COUNSELING, see ante, §§ 105, 106, 114-117, 119-12L COUNTERFEIT MONEY, see besides the next chapter, Fobgeet. 183 CHAPTER XXV. COUNTERFEITING AND THE LIKE AS TO COIN.i § 330. Elsewhere. — The substantial parts of the indictment for various oif enses against the coin are given in the chapter in " Criminal Procedure," reducing the necessity for multiplying forms in the present connection. § 331. Under common law — (Uttering). — All indictments in the United States courts are statutory ; and, for reasons ex- plained in other volumes of this series, the practitioner will seldom or never have occasion to draw an indictment for any offense against the coin under the common law of his state.^ In England, also, where doubtless some of the common law of these offenses remains, the judicial reports contain few or no modern cases upon it, and even the current books of practice furnish no common-law forms for the indictment. But Chitty has four forms, severally for the common-law misdetneanor of fraudulent uttering, one of which is, — That A., etc. [being an evil-disposed person '], on, etc., at, etc., did unlaw- fully and deceitfully, with intent to defraud one X., utter and expose [and cause and procure to be uttered and exposed *] to the said X. nine pieces of gold, for and as good and true guineas of the proper money of this realm [vrith us, gold coin of the proper money of the United States of America], notwithstanding none of the said nine pieces of gold, at the said time when they were so uttered and exposed [and caused and procured to be uttered and exposed 5], were good and true guineas of the proper money of this realm {with us, gold coins of the proper money of the United States of America], but each of them had been unlawfully filed and by such filing diminished and rendered defective in their weight, which before such filing J For the direct discussions of this « Grim. Law, I, §§ 178, 194, 198, 199, offense, including the pleading, prac- 479, 988 ; II, §§ 279, 281, 284-287 ; Grim, tice and evidence, see Grim. Law, II, Pro., II, §§ 248, 365. §§ 274-300; Grim. Pro., II, §§ 246-271. ^ Unnecessary. Ante, % 46. GoUateral, Grim. Law, I, §§ 178, 204, < A needless supplement of the 359, 413, 479, 686, 765, 769, 799, 988; clause next preceding. Ante, § 139 II, § 607; Grim. Pro., I, §§ 529, 636, and note, and the places there re- 1126, 1127; Stat Grimes, §g 214, 225, ferred to. 306-308, 319. And compare with the ' Useless, as see last nota title Forgery, etc. 184 CH. XXV.J [§§ 332, 333. they had, being before such filing good and true guineas [gold coins] of the proper money of this realm [the said United States]; he, the said A., at the time he so uttered and exposed [and caused and procured to be uttered and exposed i] the said nine pieces of gold as aforesaid, then and there well knowing that none of them were good and true guineas [gold coins of the said United States], but that each of them had been so as aforesaid filed, diminished and rendered defective in their weight; [to the evil example, etc.,''' and] against the peace, etc' § 332. On statute. — The indictment on a statute must fol- low the same rules as other statutory indictments. Yiewing together the state and United States enactments, they are so diverse that no one formula can profitably be given for all. Hence, classifying them, — § 333. Counterfeiting. — On a statute, state or national, in the terms of that of the United States,* the allegations may be, — That A., etc. [ante, §|i 74r-77], on, etc., at, etc. [ante, §§ 80, 89], did falsely and feloniously make, forge and counterfeit ^ ten f pieces of [false, forged and counterfeit '] coin, each in resemblance and similitude of a gold coin 1 Needless, as see above. 2 Needless. Ante, § 48. 3 3 Chit. Crim. Law, 116. These averments are uselessly verbose. The pleader, if he chooses, can reduce them to one-half their words with- out omitting anything. Chitty's other three common-law forms are for uttering a counterfeit half guinea, p. 116; for uttering a coun- terfeit sixpence, while another is found in the utterer's custody, p. 117; and for selling counterfeit Dutch guilders as good, p. 119. They are substantially like the one in the text. < R. S. of U. S., g 5457. * These are the words of the indict- ment in U. S. V. Gardner, 10 Pet 618. The words of the present English enactment are "falsely make or counterfeit any qoin resembling," etc. 24 & 35 Vict., c. 99, § 3. This expression is simple and sufficient. But the terms of our national legis- lation are needlessly prolix; thus, — "falsely makes, forges or counter- feits, or causes or procures to be falsely made, forged or counterfeited. or willingly aids or assists in falsely making, forging or coimterfeiting any coin or bars in resemblance,'' etc. R. S. of U. S., § 5457. All this means nothing more than the sim- pler English expression, and few pleaders will deem.it wise 'to cover the latter alternatives here quoted. Ante, § 139 and note, and the places there referred to. It might not prac- tically be as well to use the still simpler expression " did falsely and feloniously counterfeit; " because, in some circumstances, it might be con- tended for the defendant that, though he " falsely made " the coin, he did not "counterfeit" it; thus opening the door to a useless discus- sion which the writing of two words would avoid. 6 A variance between allegation and proof in the number of pieces will work no harm. Crim. Pro., II, § 353 (I, §§ 4885, 579); Arohb. Crim. PI. & Ev. (19th ed.) 804. ' The words in these brackets, or a part of them, are in the forms com- monly used. And though the ex- 185 § 334.] SPECIFIC OFFENSES. [book III. of the coinage of the United States of America i called a half -eagle ^ [or, of a foreign silver coin, to wit, a silver coin of Spain, called, etc., by law then 3 current in the said United States, or then in actual use and circulating as money within the said United States]; against the peace, etc. [ante, §§i66-69].4 § 334. Same on different statute. — The indictment on a statute differently expressed will vary with its terms. Under the simpler phrase " counterfeits any gold or silver coin current by law or usage within this state," ^ the allegations may be, — That A., etc., on, etc., at, etc., did fraudulently and feloniously •" counter- feit ten pieces of the gold coin of the United States of America [current by law and usage within this state '], one piece whereof is called an eagle. pression " counterfeited a counterfeit coin " seems inaccurate, it has been adjudged legally good. Crim. Pro., II, § 353. Still as the adjectives " false, forged, and counterfeit " are not found in this place in the stat- ute, I see no reason why they should be put into the indictment. 1 The words of the United States statute are, at this place, " in resem- blance or similitude of the gold or silver coins or bars which have been or hereafter may be coined or stamped at the mints and assay of- fices of the United States." If from the allegation in the text we omit the words " of the coinage," it will probably remain sufficient, but I should prefer to retain them. Vari- 6us other methods of covering this statutory expression have been de- vised. I have given what seems to me the best. 2 Or, " five-dollar piece," as the pleader prefers. In designating the coin, it is practically best to use the statutory name, though perhaps the indictment would not always be ill if a common name not in the stat- ute was employed instead. For the statutory names of our American coins, whether of gold, silver, copper or nickel, see R. S. of U. S., §§ 3511, 3513, 8515. A variance bet ween alle- gation and proof, in the name of the coin, is fatal. Crim. Pro., II, § 353, compared with Id., I, § 488. 3 In U. S. V. Gardner, supra, the expression is " which by law was then and still is made current in the United States of America." I see no propriety in thus alleging that the coin remains at the time of the in- dictment current with us. It need not so remain in point of law, or, were this material, the former con- dition of things is presumed to con- tinue; or, again, the court judicially knows how the law is on this sub- ject, the same as on every other. * For forms see Archb. Crim. PI. & Ev. (19th ed.) 804; 2 Chit. Crim. Law, 103-108; Rex v. J. C, Trem. P. C.237; Rex V. Harris, 1 Leach (4th ed.), 135; Rex V. Scott, 1 Leach (4th ed.), 401 (against principal and accessory be- fore the fact); Crim. Pro., II, §§ 349, 351. Arkansas.— Bell v. S., 5Eng. 536. Connecticut. — S. v. Stutson, Kirby, 53. Vermont— S. v. Griffin, 18 Vt. 198. United States.— v. S. v. Gardner, 10 Pet. 618. 6 Mass. Pub. Stats,, ch. 304, § 14. ^ To be used only in a state where the offense is felony. ' These words appropriately bring the case within the statutory terms. Yet where, as in this particular form. 186 CH. XXV.j COUNTEEFEITINGj ETC., AS TO COIN. [§ 335. two pieces whereof are called half-eagles, and seven pieces whereof are called quarter-eagles; against the peace, etc.i § 335. Impairing^ etc. — In varying statutory terms one is made punishable " who," to copy from the United States stat- ute, " fraudulently, by any art, way or means, defaces, muti- lates, impairs, diminishes, falsifies, scales or lightens the gold and silver coins which have been, or which may hereafter be, coined at the mints of the United States," etc.^ On a provision in these words the allegations may be, for example, — That A., etc., on, etc., at, etc., did feloniously and fraudulently lighten one piece of the gold coin of the coinage of ^ the United States of America called an eagle, by abstracting from the surface thereof [or inner parts thereof], [by means to the jurors unknown*], one-tenth 5 pai-t of the gold thereof, with intent to pass the said coin so lightened, and cause it to cir- culate, as and for a gold eagle of the standard weight; against the peace, etcs the court can see that the pieces are current by law, I do not deem it necessary to aver that they are. Ante, §§ 175, 182 and note, 187 and note, 314, 255. 1 Compare with forms in Davis, Prec. 131, and Train & a Preo. 339. In these forms, to copy from the former, the coin counterfeited is de- scribed as "a certain piece of silver coin, current within this common- wealth by the laws and usages thereof, called a dollar." In the text I have used greater particularity of description (Crim. Pro., I, § 568) as better in accord with ordinary good pleading. Still I do not intend to intimate any doubt of the sufficiency of the other method. 2 R. S. U. S., § 5459. ' See ante, § 333 and note. * Probably, as the terms of the stat- ute are "by any means," this clause in the indictment is not necessary. Ante, § 384, note. 5 A variance as to the quantity re- moved would work no injury. Crim, Pro., I, § 4886. « We have not sufficient decisions to enable one to say how, upon au- thority, the indictment should be. Yet I cannot doubt the sufficiency of the form in the text. Our federal statute is a sort of copying and im- proving of the English 5 Eliz., c. 11. § 3, and 18 Eliz., c. 1, § 1. By the for- mer, the "clipping, washing, round- ing, or filing, for wicked lucre or gain's sake, of," etc., was made trea- son, and by the latter any one was declared a traitor who "shall, for wicked lucre or gain's sake, by any art, ways, or means whatsoever, im- pair, diminish, falsify, scale, or lighten the proper moneys or coins of this realm," etc. On the former, Chitty's (3 Chit. Crim. Law, 110) form of the indictment is, — "That A., etc., on, etc., at, etc., thirty pieces of gold called guin- eas, and three hundred pieces of sil- ver called sixpences, of the proper moneys and coins of this realm, for wicked lucre and gain's sake falsely, feloniously and traitorously clipped and filed, so that by means of the clipping and filing aforesaid every one of the said pieces of gold was greatly diminished in the weight of which it ought by law to have been, and thereby became and was greatly lessened in value, to wit, to 187 §§ 336, 337.] SPECIFIC OFFENSES. [book III. §336. Gilding, coloring, etc.,— to make an inferior sub- stance pass for a gold or silver coin, are ofifenses less common with us, and no form for the indictment need here be given.^ This is a counterfeiting of the coin, and no separate statute against it seems to be required. § 337. Uttering, etc.^ — The offense against the coin oftenest prosecuted in our courts is the criminal uttering or passing of counterfeits. The pleader should carefully note the terms of the particular statute, and especially its meaning under inter- pretation, and so frame his allegations as duly to cover the latter.' We have seen what is the simple form in use under the not-complicated English enactment.* A form which will the amount of t-spo shillings each, and the said pieces of silver were also thereby then and there greatly diminished in the weight of which they ought by law to have been, and thereby became and were greatly lessened in value, to wit, to the amount of one penny each, and the same moneys so clipped and filed as aforesaid, the said A., on, etc., at, etc., aforesaid, falsely, feloniously and traitorously did expose and utter; against the peace, etc." The only form I have been able to find in our books on the American statute is the one originally pub- lished in Davis, Free. 138, — " That A-, etc., on, etc., at, etc., did unlawfully, fraudulently and [for gain's sake, unnecessary, these words not being in our statute] impair, di- minish, falsify, scale and lighten cer- tain pieces, to wit, ten pieces of gold coin called eagles, which had been coined at the mint of the United States [or, ten pieces of foreign gold coin, which were by the laws of the United States made current, and were in actual use and circulation as money within the United States], with intent to defraud some person to the jurors unknown; against the peace, etc." 1 do not propose to raise a ques- tion as to the sufiiciency of this form. The one in the text better accords with my ideas of the precision and individualization of things proper to be employed in criminal pleading. 'For English forms, see 2 Chit. Crim. Law, 105; Archb. Crira. PL & Ev. {19th ed.) 806; Reg. v. Turner, 3 Moody, 43. In this case, the majority of the judges held it to be sufiicient under 3 Will. 4, c. 34, to say, " three pieces of the queen's current silver coin called sixpences then and there feloniously did gild with materials capable of producing the color of gold, with intent to make the same resemble and pass for the queen's current gold coin called half-sover- eigns; against," etc. 2 For the meaning of the verbs to "utter," to "put off," to "pass," etc., see Stat. Crimes, §§ 306-309; Crira. Law, II, §§ 605-608; procedure, as to coin, Crim. Pro., II, g§ 357-263; as to forged paper, etc.. Id., II, g§ 425-435&, 443, 447, 453, 460. a^nie, §32. *Crim. Pro.. II, § 358. And see Archb. Crim. PI. . Parsons, swpro. I 8 Shooting pigeons.— See, for a presume " rooster " would be equally form for this, S. v, Bogardus, 4 Mo. well Ap. 315. For DEAD BODIES, see Sepultuee. DEFILEMENT OF WOMEN, see Conspiracy; Rape; Seduction and Abduction, etc. DISOBEYING ORDER, see ante, §§ 833, 333. DISORDERLY HOUSE, see Nuisance. DISSUADING WITNESS, see ante, § 338. 300 CHAPTER XXVII. DISTURBING MEETINGS.! §363. In general. — The offense of disturbing meetings with the allegations for it, under the common law and the various statutes, is of pretty wide range; the considerations relating to which are the special nature of the meeting, the sort of dis- turbance resorted to, and, where it is statutory, the terms of the particular statute. As to the indictment, what is special to this offense is that, — § 364. Alleging disturbance. — The particular disturbance must, in principle, and by the general practice, be set out, in- stead of the mere averment that the defendant disturbed the meeting; though there is much not well considered authority to the effect that the latter alone will sufBoe.^ But if, for ex- ample, it was by words spoken, they need not be given as in oral blasphemy,' some forms of contempt of court,* and other offenses the gist whereof consists of the special words; for, whether the disturbance was by words or acts, they need only be characterized in the way of general description.' §365, Formula for indictment. — The following formula, subject to be varied, when on a statute, to conform to the par- ticular statutory terms, indicates how the indictment may be : — That A., etc. [ante, §§ 74^77], on, etc., at,^ ^to. [ante, § 80. If the day of the week is material, as, for example, that it was Sunday, lay the time as in ante, § 85], did wilfully interrupt and disturb ' [or, follow the statutory expression 8J a congi-egation of people there lawfully and peaceably assera- 1 For the direct expositions of this Richardson v. S., 5 Tex. Ap. 470; Kid- oflEense, with the pleading, practice der i). S., 58 Ind. 68;S. u Stubblefleld, and evidence, see Crim. Law, I, § 543; 33 Mo. 563; Cockrehara v. &., 7 II, §§ 301-310a; Crim. Pro., II, §§ 384- Humph. 11 ; United States v. Brooks, 301. Incidental, Crim. Law, II, § 349, 4 Cranch, C. G. 437; S. v. Swink, 4 Crim. Pro., §§ 374, 441, 484; Stat. Dev. & Bat. 358; S. v. Jasper, 4 Dev. Crimes, § 311. 333; [Goulding v. S., 83 Ala. 48.] - 2 Crim. Pro., II, §§ 385, 387, 389, 390. « Crim. Pro., II, § 386a. ' Ante, §§ 343-344. 'The expression here varies greatly * Ante, S 323. in the precedents, and the pleader 5 Crim. Pro., ut sup.; S. v. Hinson, has a wide choice. 31 Ark. 638; Bush v. S., 5 Tex. Ap. 64; 8 Crim. Pro., II, § 396. 301 366.] SPECIFIC OFFENSES. [book III. bled for, etc. [setting out enough to stow that the meeting is one the dis- turbance of which is indictable. For various forms for this, see Crim. Pro., II, § 286], by then and there, etc. [saying what the disturbance was.' The pleader may here set down, in the one count, whatever he chooses to present to the jury, and the indictment will be sustained by proof of enough to constitute an offense ^J; against the peace, etc.^ § 366. Common-law form — (Disturbing religious wor- sliip). — The books do not contain any form for this offense at common law so neatly constructed, or become so venerable by age and use, as to render important its preservation in exact words. But, removing minor blemishes, we have such as, — That A., etc., on, etc. [being Sunday*], at, etc., did, in the parish church there [while the people of the said parish and others were therein assembled for divine service 5], and during the celebration thereof, unlawfully and unjustly take and remove the bench of one X. from its ancient and proper place, and also * did then and there unlawfully, unjustly and iJlnfe, §364. 2 Crim. Pro., II, §295; ante, §§ 19-31. 3 For forms see Archb. Crim. PI. & Ev. (19th ed.) 998; 3 Chit. Crim, Law, 21-34; 4 id. 3; Rex v. Wilson, 4 Went. PL 363; Rex v. Parry, Trem. P. C. 239; Rex v. Hube, 5 T. R. 543; [Will- iams V. S., 88 Ala. 68; S. v. Bool, 63 Ark. 513; Minter v. S., 104 Ga. 743; Hall V. a, 130 Ind. 153; S. v. Butcher, 79 Iowa, 110; S. v. Strowde, 99 Iowa, 16; S. V. Fugitt, 66 Mo. Ap. 635; S. v. Ellis, 71 Mo. Ap. 369; Kizza v. S., 38 Tex. Crim. R. 319; Von Buden v. S., 96 Wis. 671; S. v. Jacobs, 103 N. C. 397.] Alabama. — Smith v. S., 63 Ala, 55. Arkansas. — S. v. Horn, 19 Ark. 578; S. V. Hiason, 31 Ark. 638. Connecticut. — S. v. Gager, 36 Conn. 607, 38 Conn. 333. (?eorgria.— Hicks v. S., 60 Ga. 464. Indiana. — S. v. Zimmerman, 53 Ind. 360; Kidder v. S., 58 Ind, 68; Smith V. S., 71 Ind. 250; Cooper v. S., 75 Ind. 63. Massachusetts. — Com. v. Symonds, 2 Mass. 163; Com. v. Hoxey, 16 Mass. 385; Com. v. Bearse, 133 Mass. 543. Missouri. — S. v. Bankhead, 35 Mo. 558; S. V. Stubblefield, 33 Mo. 563; S. V. Schieneman, 64 Mo. 386. New York. — P. v. Degey, 3 Wheeler, Crim. Cas. 135; P. v. Crowley, 33 Hun, 413. North Carolina. — S. v. Jasper, 4 Dev. 333; S. v. Swink, 4 Dev. & Bat. 358; S. V. Fisher, 8 Ire. Ill; S. v. Bry- son, 83 N. C. 576. Pennsylvania. — Campbell v. Com., 9 Smith (Pa.), 366. Rhode Island. — S. v. Read, 13 R. L 135. Tennessee. — Cockreham v. S., 7 Humph. 11. Texas. — Lockett v. S., 40 Tex. 4; Bush V. S., 5 Tex. Ap. 64; Richardson V. S., 5 Tex. Ap. 470; Copping v. S., 7 Tex. Ap. 61. Virginia. — Com. v. Daniels, 3 Va. Cas. 403. United States. — District of Colum- bia. United States v. Brooks, 4 Cranch, C. C. 427. * In the form before me, but I pre- sume not necessary. 5 Not in the form before me. In the absence of this it appears only inferentially that there was a meet- ing; hardly, in reason, sufficient. "This is an instance of charging more than one act of disturbance as explained ante, § 365. 303 CH. XXVII.J ■ CRUELTY TO ANIMALS. [§§ 367, 368. irreverently disturb and tiinder one Y., then being curate of the said parish church, and in the execution of his office, and in the reading of divine serv- ice ' \or, as the expression has been altered In some American cases, in the Ebenezer Baptist Church there, during the celebration of divine service, unlavsrfuUy, unjustly and irreverently did disturb and hinder one Y., then being the minister officiating in the said church, and then being in the dis- charge therein of his sacred functions and in the performance of divine service] ; '■' against the peace, etc. § 367. Another. — -Or, under other facts, the allegations at common law may be, — That A., etc., on, etc. [being, etc., as at ante, § 85, or not, as the fact is and the pleader chooses], at, etc., did unlavrfuUy, maliciously and irrever- ently hinder and disturb a congregation of people lawfully assembled in a building called the M. mejting-house [or church; or in the dvyelling-house of one N.], for the purpose of, and then and there engaged in, public divine worship [and prayer to Almighty God] ; by then and there loudly talking and profanely cursing and swearing, and thereby and otherwise then and there making a great noise in and near the said meeting-house, and in the hearing of the people therein assembled and worshiping as aforesaid [or, by then and there making divers ridiculous and indecent actions and grim- aces, talking and laughing in a loud voice, and otherwise misbehaving himself during the performance of such divine service]; against the peace, etc' §368. Secular meeting at common law,* — The allegation will vary with the nature of the meeting, and the laws under which it is held. It may, for example, be, — That on, etc., at, etc., a meeting of the school committee of the town of, etc. [or otherwise stating what the meeting was, according to the law and fact], having been duly summoned and called, was lawfully held; and then and there, while the said meeting was duly engaged in the transaction of the business for which it was so summoned and called [or otherwise]. A., etc., B., etc., came into the presence thereof, and wilfully and unlawfully, by loud noises, profane swearing, indecent talking and actions, and ludi- crous grimaces, hindered, disturbed, obstructed and interrupted it in the transaction of its lawful business as aforesaid; against the peace, etc.^ 13 Chit. Crim. Law, 21; Bex v. and the conclusion that his conduct Parry, Trem. P. C. 239. was " to the great disturbance and 2 P. V. Degey, 2 Wheeler, Crim. Cas. insult of the orderly people there, 135; P. u Crowley, 23 Hun, 412. and on the said other days and times, •* U. S. V. Brooks, 4 Cranoh, C. C. then and there assembled," and sim- 427; S. V. Jasper, 4 Dev. 323; S. v. ilar averments in the other cases, are Swink, 4 Dev. & Bat. 358. The alle- needless. Ante, §§ 46, 48. gation, as in S. v. Jasper, that the de- * As to what meetings, see Crim. fendant was "a person regardless of Law, I, § 543. the duties and solemnities of the ^in Campbell v. Com., 9 Smith public worship of God, and of the (Pa.), 266, is the form of an indict- due observation of the Lord's day," ment held good, but In principle of 208 §§ 369, 370.] SPECIFIC offenses. [book hi. § 369. Under statutes — (English form). — Generally, for this offense, the indictment on a statute differs from that on the common law only in embracing the special statutory terms. And it is explained in " Criminal Procedure." ' Thus, in Eng- land, the Toleration Act, after providing for the registration of places wherein dissenters may lawfully worship, declares pun- ishable any one who "shall wilfully and maliciously or con- temptuously disquiet or disturb any meeting, assembly, or congregation of persons assembled for religious worship, per- mitted or authorized by this act, or any former act or acts of Parliament; or shall in any way disturb, molest, or misuse any preacher, teacher, or person ofiiciating at such meeting, assembly, or congregation ; or any person or persons there as- sembled." ^ And a form of indictment in common use, after setting out the registration of the place, — as, for example, " a certain house situate at, etc., therein to assemble and meet for religious worship," — proceeds, — That afterwards, on, etc. , a congregation of Protestants, dissenting from the Church of England, of which the said X. was then the teacher and preacher, were assembled for the public worship and service of Almighty God in the house aforesaid, so certified, registered and recorded as afore- said; and that A., etc., B., etc., and C, etc., then,' whilst the said congrega- tion were so assembled as aforesaid, and during divine service, at, etc., afore- said, unlawfully, willingly, and of purpose, maliciously and contemptuously did come into the said congregation, during divine service as aforesaid, and did then and there willingly and of purpose, maliciously and comtemptuously disquiet and disturb the said congregation by then and there talking, curs- ing and swearing with a loud voice, and also by talking with a loud voice to the said X., he, the said X., then and there being in the pulpit [the doors of the said meeting-house and place where the said congregation were so assembled as aforesaid not being then locked, barred, or bolted*] ; against the peace, etc.* § 370. Simpler form. — Under the less complicated statutory words " shall interrupt a congregation assembled for the pur- doubtful sufficiency, for disturbing a ' Assuming that only one day has meeting of school directors. In Com. been alleged, as see ante, § 328 and V. Hoxey, 16 Mass. 385, the indict- note. ment, which was held good, was for < An allegation like this could be disturbing a town meeting for the required only to cover an exception election of town ofScers. in the statute. 1 Crim. Pro., II, §§ 289-800. » Archb. Crim. PI. & Ev. (10th ed.) 2 52 Geo. 3, c. 155, § 12. 687, (19th ed.) 99a 204 OH. XXVII.] DISHTEBING MEETINGS. [§§ 371, 372. pose of worshiping the Deity," it has been adjudged good simply to say, — That A., etc., on, etc., at, etc., did [unlawfully, contemptuously and of purpose 1 ] Interrupt a congregation of Methodists, then and there assembled for the purpose of worshiping the Deity, by then and there talking and swearing with a loud voice; against the peace, etc.^ § 371. other like forms — may readily be drawn upon the statutes as required, it being deemed that further specimens would be superfluous.' § 373. Trading, etc., near camp-meeting.— We have a few statutes against interrupting camp-meetings by trading and other things not harmonious with their objects, in the vicinity of the places where they are held ; but the indictment for the offense is easily constructed, and no form for it need here be given.* ' Probably not necessary, not being Richardson v. S., 5 Tex. Ap. 470; Bush in the statute. v. S., 5 Tex. Ap. 64; and other cases 2 Cockreham v. S., 7 Humph. 11. cited ante, § 365. 3 And see the forms in Kidder v, *See forms in Com. v. Bearse, 133 a, 58 Ind. 68; S. v. Stubblefield, 33 Mass. 543; S. u Read, 13 R. L 135. Mo. 563; S. v. Hinson, 31 Ark. 638; For DOG, see ante, § 177. DOMESTIC ANIMALS, see Animals. DOUBLE OFFENSES, see ante, § 91 et seq. DOUBLE VOTING, see EtEOTiON Offenses. 205 CHAPTER XXVIII. DRUNKENNESS.1 § 373. Common-law nuisance. — A form of the indictment for the common-law nuisance of public drunkenness is given in " Statutory Crimes." ^ The dimensions of the offense are a little uncertain, and in a majority of our states any form of the indictment could be deemed only experimental. §374. Common drunkard. — Under a statute making it a misdemeanor to be a "common drunkard," the allegations may be, — That A., etc. [ante, §§ 74-77], on, etc., at, etc. [without the cnntinuando, as at ante, § 80, or with it, as at ante, § 83, at the election of the pleader ']. was a common drunkard [having been on divers days and times within the six months then last past, at, etc., aforesaid, drunk and intoxicated by the voluntary and excessive use of spirituous and intoxicating liquors;* or. having been, at, etc., aforesaid, on three several days and times within six months next preceding the said day, intoxicated under such circumstances as to amount to a violation of decency']; against the peace, etc. [ante, §§66-69].6 § 375. Drunk in public place. — To be drunk in a public place is a misdemeanor under some of our statutes ; as, in Indiana, where the words are " any person of sound mind found in any 1 For the direct expositions of this ' g. u. Kelly, 13 R L 535. None of offense, with the pleading, practice this matter in brackets is probably and evidence, see Stat. Crimes, §§ 967- necessary, unless the statute oon- 982. Incidental, Crim. Law, I, §§ 399, tains more than the words '■ common 1113-1117; Crim. Pro., I, § 869; Stat, drunkard." Stat. Crimes, §§977, 978. Crimes, §§ 796, 1064 et seq. These ref- If it is necessary, the form should erences do not include the many perhaps be more carefully consid- places in which drunkenness as an ered. I have slightly amended both excuse for crime is considered. of these forms as extracted from the ^ Stat. Crimes, § 974. And see form cases cited, but if I deemed them in S. v. Deberry, 5 Ire. 371. essential I should attempt still 'Stat. Crimes, § 979; S. v. Kelly, 13 further improvement. R. 1 535. And see the explanations " For forms, see the cases before in Crim. Pro., I, §§ 392, 897, 403 and cited to this section; Com. v. Whit- note, ney, 5 Gray, 85; Com. v. Foley, 99 4 Com. V. Boon, 2 Gray, 74^ Mass. 499; [S. v. White, 64 Vt. 373.] 206 CH. XXVIII.J DEtmKENNESS. [§ 376. public place in a state of intoxication." The allegation may be, — That A., etc., on, etc., at, etc., was found i in a public street, highway and sidewalk there, in a state of intoxication; against the peace, etc.^ § 376. Being drunk. — Under a statute making punishable any one who " is guilty of drunkenness by the voluntary use of intoxicating liquor,"^ it has been adjudged adequate simply to cover its terras by saying that, at the time and place speci- fied, the defendant was, " with force and arms,* guilty of the crime of drunkenness by the voluntary use of intoxicating liquor," — a form, said the court, " not to be commended." ' The better allegation is, — That A., etc., on, etc., at, etc., was, by the voluntary use of intoxicating liquor, drunk to the degree of drunkenness; Sigainst the peace, etc.* 1" Found" is necessary under a was committed in a "public place." statute in these terms. Stat. Crimes, Stat. Crimes, §903; amfe, § 846 and § 980. note. For a form under the Ver- 2S. V. Waggoner, 53 Ind. 481, 483; mont statute, see S. v. Deavitt, 47 S. V. Moriarty, 74 Ind. 103; Stat. Vt. 387; [Gallatin v. Tar water, 143 Crimes, § 975. The indictment being Mo. 40.] required to set out only prima facie ' Mass. Pub. Stats., ch. 307, § 36. guilt, and the prima facie presump- < Needless. Ante, § 43. tion being that the defendant was ^ Com. v. Miller, 8 Gray, 484; Com. sane, the allegations need not cover v. McNamara, 116 Mass. 340. the statutory words " of sound mind. " * For forms, see the cases last above Crim. Pro., II, § 669. Likewise a cited; also S. v. Bromley, 35 Conn, "public street, highway and side- 6; S. ^•. Smith, 3 Heisk. 465, 466; S. walk " being, as of law, a " public v. First, 83 Ind. 81. Drunkenness in place" (Stat. Crimes, § 398), the in- office (as to which see Stat. Crimes, dictment need not aver that such § 969). — Shanks v. S., 51 Miss. 464, place was public; nor would it suf- 467 (not good); Stat. Crimes, § 976, iice to say simply that the offense and see cases in Id., § 969. 307 CHAPTEK XXIX DUELING.i § 377. Elsewhere — Here. — Dueling being, when death fol- lows, murder, the consideration of it in this aspect belongs to the title " Homicide." We here contemplate it oiily as an attempt to kill, or breach of the peace; embracing challenges and the like.'' § 378. Challenging. — Though the challenge is in most cases in writing it is, under the common law, optional with the pleader to set it out by its words or not ; and it is the same of a verbal challenge.' The following is a familiar form for chal- lenging at common law: — That A., etc. [ante, §§ 74-77], [being a person of a turbulent and quarrel- some temper and disposition, and contri-ving and intending, not only to vex, injure and disquiet one X, and do the said X some grievous bodily harm, but also to provoke, instigate and excite the said X to break the peace and to fight a duel with and against him the said A.^], on, etc., at, etc. [ante, § 80], wickedly, wilfully and maliciously did write, send and de- liver [and cause and procure to be written, sent and delivered 5] unto him the said X a certain letter and paper writing, containing a challenge to fight a duel with and against him the said A., and which said letter and paper writing is as follows, that is to say, etc. [setting out the letter, with the innuendoes necessary to explain its meaning, as in libel; or, more sim- ply, wickedly, wilfully and maliciously did provoke, instigate, excite and challenge the said X. to fight a duel with and against him the said A.]; [to the great damage, scandal and disgrace of the said X, in contempt of, etc., and*"] against the peace, etc. [ante, §§ 66-89].' § 379. Same on statnte. — Under a statute making punish- able one " who shall give, accept, or knowingly carry a chal- 1 For the direct expositions of this 1 Hawks, 487; Com. v. Rowan, 3 offense, with the pleading, practice Dana, 395; Com. v. Hart, 6 J. J. Mar. and evidence, see Crim. Law, II, 119; Brown v. Com., 3 Va. Cas. 516. §§ 311-317; Crim. Pro., II, §§ 302^ < Not necessary. Ante, %% iS, i6. 311. Incidental, Crim. Law, I, §§ 10 "Unnecessary. Ante, § 139 and and note, 134, 540, 654; II, § 5; Crim. note. Pro., I, § 61. * Unnecessary. Ante, % 43. 2 Crim. Law, II, §§ 311, 313. ' Archb. Crim. PI. & Ev. (10th ed.) 3 Crim. Pro., II, §305; S.U Farrier, 604, (19th ed.) 910. There is no need 208 CII. XXIX.J. DUELING. [§§ 380, 381. lenge, in writing or otherwise, to fight in single combat with any deadly weapon, either in or out of the state, and be thereof convicted," the allegations may be, — That A., etc., on, etc., at, etc., did give unlawfully and verbally a chal- lenge to one X. to flght him the said A., in single combat, with a deadly weapon, to wit, a pistol; against the peace, etc.' §380. Provoking one to challenge.^ — There is no single set of words in which alone this offense can be charged. The allegations at common law may be, for example, — That A., etc., on, etc., at, etc., did wickedly and maliciously endeavor to stir up, provoke and excite one X to challenge the said A. to fight with him a duel; by then and there writing and sending to the said X. a letter of the tenor [or effect 3] following, that is to say, etc. [setting out the letter with the innuendoe.s necessary to explain its meaning; or, by uttering and declar- ing in the presence and hearing of the said X. the following words, — you are a scoundrel and a liar, and I shall take care to let the world know that you are so]; with intent to instigate, excite and provoke the said X to challenge him the said A. to fight a duel with and against him the said A. ; * against the peace, etc." § 381. Other forms. — The foregoing forms cover, in sub- stance, the derelictions within the present title. Should other to multiply counts. If the pleader New Jersey. — S. v. Gibbons, 1 is in doubt how the challenge was, Southard, 40. or how it should be alleged, he can North Carolina. — S. v. Farrier, 1 put all into one count, and at the Hawks, 487. trial rely on so much as he is able South Carolina. — Cunningham v. to prove, within the principles ex- S., 3 Speers, 346. plained ante, §§ 18-33. But he should Virginia. — Brown v. Com., 3 Va. say " did, etc., and, etc., and, etc.," or Cas. 516. by some other like words avoid the ' Ivey v. S., 13 Ala. 376. appearance of charging two or more ^ Crim. Law, II, § 313; Crim. Pro., offenses. To put the allegations in II, § 310. the way they stand in two or more ' Crim. Pro., I, §§ 559, 560. In the counts would render the one count form in Chitty the words are set out double. For other forms for chal- by their tenor. But this would seem lenging, at common law and on stat- not to be necessary. Ante, § 378; utes, see 3 Chit. Crim Law, 849-863; Crim. Pro., II, § 310. 4 Went. PI. 315, 317; 6 id. 383; Rex *This clause is a sort of repetition V. Devonshire, Trem. P. C. 188; Rex of what has gone before, and its ne- V. Philips, 6 East, 464 cessity is doubtful. I retain it be- Alabama. — Ivey v. S., 13 Ala. 376. cause it is in each of the three prece- Kentucky. — Com. v. Hart, 6 J. J. dents cited below. . Mar. 119; Com. t;. Rowan, 3 Dana, 395. 53 chit. Crim. Law, 861; Archb. Massaclmsetts.— Com. v. Boott, Crim. PI. & Ev. (10th ed.) 605, (19th Thaeher, Crim. Cas. 390; Com. v. ed.) 911; Rex v. Philipps, 6 East, 464. Hooper, Thaeher, Crim. Cas. 400. 14 209 § 381.] SPECIFIO OFFENSES. [book III. forms ^ be needed, they may be readily drawn in analogy to those here given. 1 The books furnish the following: For carrying a challenge, 3 Chit. Crim. Law, 855. Accepting chal- lenge, Com. V. Eowan, 3 Dana, 395. Aiding and abetting a duel. Com. v. Dudley, 6 Leigh, 613. Feloniously shooting at one in a duel. Beg. v. Douglas, Car. & M. 193. Sending a challenge about money lost in gam- ing, 3 Chit Crim. Law, 863, For EAVESDROPPING, see Nuisance. 210 CHAPTEE XXX. ELECTION 0FFENSES.1 § 383, 383. Introduction. 384-888. Illegal voting and attempts thereat. 889-391. Offenses by election officers. 892-894. Other obstructions and undue influencing. 395-398. Betting on elections. 399, 400. Practical suggestions. §383. Elsewhere. — Under the titles Bribery ,2 Liquor Sell- ing, Perjury, and some others, are forms of indictment for the several offenses as against elections. In this chapter, — § 383. How chapter divided. — We shall consider the in- dictment as to, I. Illegal voting and attempts thereat; II. Of- fenses by election oflBcers; III. Other obstructions and undue influencing; lY. Betting on elections; supplemented by, V. Practical suggestions. I. Illegal Yoting and Attempts thereat. § 384. Formula. — The indictment which, when on a statute, must be so shaped as to cover the statutory terms, may, if it does, or if on the common law, aver, — That on, etc., at, etc. [ante, % 80], there was an election [or meeting of the electors, or town meeting, etc.], duly and in due form of law had and held for the choice of, etc.,' and that A., etc. [ante, §§ 74-77], did then and there at said election [or meeting], etc. [setting out his offense]; against the peace, «tc. [ante, §§ 66-69].* 1 For the direct elucidations of & K 179; Eeg. v. Bowler, Car. & M. these offenses, with the pleading, 559; Reg. v. Vaile, 6 Cox, C. C. 470; practice and evidence, see Stat. Reg. v. Hague, 9 Cox, C. C. 413; Eeg. Crimes, §g 803-843, 931-949. CoUat- v. Turner, 13 Cox, C. C. 318, 4 Eng. «ral, Crim. Law, I, g§ 471, 686, 821; R 561; Reg. v. Hogg, 25 U. C. Q. B. 66. Crim. Pro., I, § 627; Stat. Crimes, ^Zabnma.— Nettles v. S., 49 Ala. .g§ 205, 853, 872. 85; Carter v. S., 55 Ala. 181. 2 4nte, §§ 348, 249. Connecticut. — S. v. Gorham, 11 3 Stat. Crimes, §§ 883-884; ante. Conn. 233. g§ 348-249. Florida.— Humphreys v. S., 17 Fla. * For forms see Reg. v. Bent, 1 Cox, 381, 883; Dennis v. S., 17 Fla. 889, 390. C. C. 856, 1 Den. C. C. 157, 160, 3 Car. Indiana.— Quinn v. S., 35 Ind. 485. • 211 § 385.] SPECIFIC OFFENSES. [book III. § 385. Double voting. — None of the variously-worded prece- dents in the books for double voting are constructed with much neatness or skill. The following, which does not liter- ally copy any particular one, embraces what of all is needful, good either on the common law^ or on a statute the terms whereof it duly covers : — That on, etc., at, etc., there was an election duly and in due form of law had and held for the choice of, etc. ; and, at said election. A., etc., who was then and there a voter entitled to cast one ballot bearing the several names of the respective persons whom he wished chosen to the said several of- fices, did nevertheless then and there surreptitiously and corruptly cast at one time two such ballots [or, having cast such ballot and retired, did then and there corruptly return to the place of voting and surreptitiously oast another such ballot], [or, going back further in the form, there being a place for voting called the M. precinct, and another called the N. pre^ cinct. A., etc., did then and there cast his vote in due form in the said M. precinct, and afterward did then and there corruptly and surreptitiously repair to and so cast another vote in the said N. precinct] ;2 against the peace, etc' Maine. — S. v. Boyington, 56 Me. 513; S. V. Symonds, 57 Me. 148. Massachusetts. — Com. v. Silsbee, 9 Mass. 417; Com. v. Shaw, 7 Met. 52; Com. V. Bradford, 9 Met. 268; Com. V. Desmond, 123 Mass. 13. Minnesota. — S. v. Welch, 31 Minn. 33; S. V. Davis, 23 Minn. 423. New Hampshire. — S. v. Marshall, 45 N. H. 281. New Jersey. — S.v. Moore, 3 Dutcher, 105. New York. — P. v. Standish, 6 Par- ker, C. C. Ill; Burns v. P., 5 Lans. 189; [P. V. Barber, 48 Hun, 198.] Oregon. — S. v. Bruce, 5 Oreg. 68. Rhode Island. — 8. v. Fitzpatrick, 4 R. L 269; S. v. Maoomber, 7 R. I. 349. [United States.— Bliiz v. U. S., 153 U. S. 308.] 1 As to the indictability of this of- fense at common law, see Crim. Law, I, § 471. In addition to the reason there given, the court, in Com. v. Silsbee, 9 Mass. 417, 418, observed: " There cannot be a doubt that the offense described in the indictment is a misdemeanor at the common law. It is a general principle that,, where a statute gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every officer to be elected. The person who gives more infringes and vio- lates the rights of the other voters, and for this offense the common law gives the indictment." liThe indictment in Com. v. Sils- hee, supra, concludes: "to the great destruction of the freedom of elec- tions, to the great prejxidice of the rights of the other qualified voters in said town of Salem, to the evil example of others, in like case to offend," etc. The court observes that this " is proper for the case." Still it is needless. Ante, § 48. ' Com. V. Silsbee, supra;Q. v. Welch, 21 Minn. 33; S. v. Davis, 32 Minn. 433; Com. V. Desmond, 133 Mass. 13; S. v. Gorham, 11 Conn. 333; S. v, Boying- ton, 56 Me. 513. 313 CH. XXX.] ELECTION OFFENSES. [§§ 386, 387. § 386. Toting when not qualified. — The form may be, — That on, etc., at, etc. [setting out the holding of the election and its pur- pose as at ante, §§ 884, 385 1] ; and that A., etc., at said election, did then and there, not being and knowing himself not to be then and there duly quali- fied to vote thereat by reason that, etc. [setting out the want of qualifica- tion; ^ as, that he had not attained the age of twenty-one years; or, that lie was not then an inhabitant, etc. ; ^ or, that he had made a bet then depend- ing on the result of said election], nevertheless wilfully and corruptly give in his vote for persons to serve in said offices, as though he were and as pretending to be qualified; against the peace, etc.* § 387. Falsely personating. — There is some English and Canadian authority apparently to the eflfect that it is not an offense at the common law falsely to personate a voter at a municipal election and vote on his right' But this is plainly a voting without being qualified. And there can be little doubt that it would be deemed indictable at common law in the greater number of our states.* It is a criminal misdemeanor or felony under various English and some American statutes.' The indictment will vary with the statutory terms, and with the differing rules which govern an election, and it is practi- cally more voluminous in England, whether necessarily so or not, than is required by the decisions of our courts. The fol- lowing is suggested, to be modified for the occasion as the pleader will know how: — That on, etc., at, etc. [setting out the holding of the election and its pur- pose as at ante, §§ 384, 385], one X. was then and there a legal voter, and his name was duly registered as such, and as such it then and there stood on the voting lists. Whereupon A., etc., not being, and knowing himself not to be, then and there a legal voter [feloniously], wickedly, maliciously, and stealthily did then and there present himself, at the place of voting as aforesaid, before one M. and one N., who were then and there inspectors of lAnd see Stat. Crimes, §§832, 833; Standish, 6 Parker, C. C. Ill; 8. v. ante, §§ 248, 249. Bruce, 5 Ore. 68; S. v. Moore, 3 2 As to the necessity of this, see Butcher, 105; Com. w Shaw, 7 Met. 52; Stat. Crimes, § 835, and the cases Com. v. Bradford, supra; Quinn v. S., infra. And seethe form ante, §249. 35 Ind. 485; S. v. Macomber, 7 R. I. ' In one case before me this allega- 349; and other cases cited ante, § 384. tion is, " that he had not, before the * Crim. Law, I, § 471 and note; Reg. said election on the day aforesaid, v. Bent, 1 Den. C. C. 157, 2 Car. & K. resided in the commonwealth one 179, 1 Cox, C. C. 356; Reg. v. Hogg, year, and within the said city six 25 U. C. Q. B. 66. months next preceding said day." " And see, on this question, Stat. Com. V. Bradford, 9 Met. 268; [S. v. Crimes, §§ 803, 818, 818a and the Patterson, 116 Ind. 49.] places referred to. * S. V. Marshall, 45 N. H. 281 ; P. v. ' Stat. Crimes, § 818a. 213 §§388, 389. j sPEoiFio offenses. [book hi. the said election, with authority to receive and reject the votes tendered to be cast, and [feloniously], wickedly, maliciously and falsely represent, state and affirm to them that he was the said X., who was authorized as aforesaid to vote, and thereupon [feloniously], etc., offered and tendered to the said M. and N. a vote in due form as though he was, and as being, the said X. [which said offered and tendered vote the said M. and N., as such inspectors as aforesaid, then and there received ']; against the peace, etcJ § 388. False answer. — Swearing falsely as to one's right to vote is under some of the statutes a species of perjury.' Other statutes make the answer not under oath indictable. Under the words "wilfully give any false answer to the' selectmen or moderator presiding at any election," the allegations may be, — That on, etc., at, etc., there was a town meeting of the inhabitants of the said town of, etc., for the election of, etc., presided over by the selectmen of the said town; whereupon A., etc., then and there presented himself be- fore the said selectmen, and, knowing himself not to possess the qualifica- tions of a voter, fraudulently and surreptitiously demanded to have his name inserted on the voters' list of the said town and to be permitted tlien and there at said election to vote; and, being then and there inquired of by the said selectmen for the purpose of ascertaining and passing upon his said asserted right to vote, whether he had paid any tax assessed upon him within the two years then next preceding in any town or district in this state, he, the said A., did then and there knowingly and wilfully give to the said question the false answer that he had theretofore paid a tax as- sessed upon him in the city of, etc., in the county of, etc., within two years next preceding the said election, to wit, the annual tax of the year, etc. ; whereas, in truth and in fact, the said A. had not paid any such tax so as- sessed on him within the said two years in said city of, etc., as he the said A. then and there well knew; against the peace, etc.* II. Offenses by Election Officees. § 389. Malfeasance in office — (Varying statutes). — The of- fenses within this sub-title consist of the different sorts of mal- feasance in office which may occur under great varieties of election regulations, in our states and under the government of the United States. The pleader, therefore, should lay be- fore him the particular statutes on which he is proceeding; and 1 This allegation introduces matter ing one to personate voter, Eeg. v. probably not necessary to the offense, Hague, 9 Cox, C. C. 412. but the pleader will choose to insert " Humphreys t'. S., 17 Fla. 371, 383; it when the fact is thus. Dennis v. S., 17 Fla. 389, 390; Burns 2 For forms see Reg. v. Turner, 13 v. P., 5 Lans. 189. Cox, C. C. 313, 4 Eng. R. 561; Eeg. * Com. v. Shaw, 7 Met. 53. Foran- V. Bent, supra; Reg. v. Hogg, supra; other form see Reg. v. Bowler, Car. Reg. V. Vaile, 6 Cox, C. C. 470; indue- & M. 559. 214 CH. XXX.] ELECTIOK- OFFENSES. [§§ 390-392. consult, in connection with this chapter and the corresponding one in " Statutory Crimes," the title " Malfeasance and Non- feasance in Office." As a specimen form, — § 390. Eefasal to receive vote. — Under the Indiana statute making punishable for misdemeanor "any inspector or judge of any election held within this state, who shall knowingly and wilfully, or corruptly, refuse or neglect to receive the vote of any legal voter, at any election"held within this state," we have the following, — That on, etc., at, etc. [setting out the holding of the election and for what as at ante, §§ 384, 385, 388], and A., etc. [the defendant], was then and there the inspector of said election, and X. was then and there one of the electors competent to vote thereat; whereupon the said X, then and there offering and endeavoring to vote at said election, tendered to the said A., who was then and there acting in the said oflflce of inspector as aforesaid, his ballot for said purpose in due form of law; but nevertheless the said A., well knowing these premised facts, did then and there knowingly, wilfully and corruptly neglect and refuse to receive the said vote of the said X ; against the peace, etc.i § 391. Other forms — may be found at the places cited in the note." III. Othee Obsteuotions and Undue Influencing. § 392. Attempting to prevent from voting. — Under a stat- ute to punish " any person who shall attempt or procure, by threats or intimidation, any other person to avoid voting at any town meeting," the allegations will vary with the facts. For example, they may be, — That A., etc., on, etc., at, etc., did make an assault on one X, and did then and there beat, bruise, kick, wound and ill-treat the said X [or, did 1 Bicknell, Crim. Pr. 466, 467; re- duty (form only in part given). Hall ferring, for the statute, to Laws Spec. v. P., 90 N. Y. 498. Against judges Sess. 1858, p. 40. I have slightly al- of election for neglect of duty, 8. v. tered and enlarged the words of this Randies, 7 Humph. 9. Against coni- form as it stands in Bicknell, to ren- missiouers of election for malfeas- der it more acceptable for general ance, TJ. S. v. Nicholson, 3 Woods, use in our states. For a form for a 215. For giving a false certificate of similar offense in a United States election, U. S. v. Clayton, 2 DiL 219, court, see U. S. v. Foster, 4 Hughes, 220. Against a constable for not at- 514 And see Stat. Crimes, § 838; [P. tending an election, 2 Chit. Crim. V. Burns. 75 Cal. 627; U. S. v. Badi- Law, 265. Irregular holding of elec- nelli, 37 Fed. R. 138; U. S. v. Kelsey, tion, Rex v. Atkins, Trem. P. C. 230, 42 Fed. R. 882.] 3 Mod. 3. 2 Show. 236; Wyman v. 2 Against inspector for neglect of Com. 14 Bush, 466, 469; [Bingeru P., 215 §§ 393-395.] SPECIFIC orFENSES. [book iir. threaten one X., who obtained his livelihood by working for the said A. as a journeyman boot-maker, to discharge him from said employment and give him no more work], in order and thereby attempting to procure, by threats and intimidation, the said X. to avoid voting at the annual town meeting, of said town of M., the said town meeting being then and there legally and duly held and in session [or, did threaten one X., who was then and there a person duly qualified to vote at the annual town meeting of the said town of M., which meeting was then and there being legally and duly held and in session, that he the said A. would on the first opportunity horse- whip the said X. in some private place, if he then and there voted at said town meeting, intending by said threat to procure the said X. not to vote at said town meeting] ; against the peace, etc.i § 393. Disturbing election. — The allegations may be, — That on, etc., at, etc. [setting out the holding of the election, etc., as at ante, gg 384, 385, 388], and A., etc., then and there came into the open meet- ing where the said election was being had and held, and did then and there, etc. [averring the act of disturbance in the manner shown ante, g 365 et seq.^; against the peace, etc.2 § 391. Conspiracy against election. — One form of obstruct- ing or corrupting an election is through conspiracy. The methods of averment do not differ from those already shown in the chapter on " Conspiracy," ' and it will be sufficient here simply to refer to places where forms under the present head appear.* IV. Bettino on Elections.* § 395. Formula.— The statutory terms creating this offense are so diverse that, as the indictment must cover the particular ones on which it is drawn, there can be for it no general form- 21 111. Ap. 367; .U. S. v. Brown, 58 494; Train & H. Preo. 185; [U. S. v. Fed. R. 558.] Belvin, 46 Fed. R. 381.] 1 S. V. Hardy, 47 N. H. 538. It seems ^ For a form see Com. v. Hoxey, 16 to me best, in general practice, to Mass. 385. And see the form in Rex introduce in some form the allega- v. Leech, 9 Howell, St. Tr. 351. Biots, tion that X. was a qualified voter; assaults, etc., at election. — See for I can well imagine that some forms in Rex v. Pilkington, Trem. courts will require this. Whatever P. C. 182; Com. v. Runnels, 10 Mass. is held in one state, the question will 518; P. v. White, 55 Barb. 606. be a fair one in another, whether it ^ Ante, § 279 et seq. is an offense under a statute in these ''7 Cox, C. C. Ap. 15; Rex v. Has- terms to procure a person to avoid lam, 1 Den. C. C. 73; U. S. v. Butler, voting who has no right to vote. For 1 Hughes, 457 ; U. S. v. Cruikshank, other forms under other like statutes, 1 Woods, 308; U. S. v. Goldman, 3 see S. V. Franks, 38 Tex. 640; U. S. Woods, 187, 189. In nature of con- V. Judges of Elections, 1 Hughes, 493, spiracy.— The following forms may 6 Stat. C;:imes, §§ 931-949. , 316 CH. XXX.] ELECTION OFFENSES. [§ 396. ula which will not leave- considerable to be filled in or adapted to fit the individual statute or instance. Still, assuming the offense not to be felony, and so not requiring to be charged as committed " feloniously," the outline may be, — That A., etc. [ante, §§ 74^77], on, etc., at, etc. [ante, § 80], did unlawfully [or, etc., using the statutory word] bet [or lay a wager, or otherwise as the statutory expression may be] with one X.i [ante, § 79], (in) the sum of fifty dollars ^ [or one suit of clothes of the value ' of forty dollars], that, at the general state"election in this state then next to be held,^ M. [who was then a candidate nominated for the office of governor of the state '] would be elected and chosen governor of the state [or did win from X. by betting, etc., or otherwise, following the statute] ; against the peace, etc. [ante, §§ 66-69].^ § 396. Lose or win — (Value). — On a statute in the words " Every person who shall, by . . . betting at or upon . . . the result of any election, either lose or win any article of value, shall be fined in any sum not less than the value of the be consulted: for a corrupt agreeing to receive the office of distributor of stamps, on condition of allowing the former possessor to have the profits for life, 3 Chit. Crim. Law, 682. Traf- ficking in appointments to public offices, 3 Cox, C. C. Ap. 33; Eeg. v. Charretie, 3 Cox, C. C. 499. Corrupt contract to procure appointment to office, Samo v. Reg., 2 Cox, C. C. 178. 1 The name should be averred. Stat. Crimes, § 944. 2 It is well to be cautious about this sort of averment. See ante, § 248 and note, 250, note. In Williams v. S., 12 Sm. & M. 58, 63, the learned judge observed: "It is relied upon that, while the indictment charges a bet of money to the amount of two hun- dred dollars, the evidence shows the bet upon the part of Williams to have been four United States treasury notes, each of the denomination of fifty dollars. . . . This point we deem to be well taken. In legal ac- ceptation, such notes are not money; and, even if the indictment had charged the bet to have been made with them as valuable things, their value must have been proved, to have warranted a conviction." Thacher, J. And see Stat. Crimes, §g 874, 875, 901, 920, 921. 'Necessary only when as of law affecting the punishment. Stat. Crimes, § 945. See also S. v. Bridges, 24 Mo. 353. * There are cases which hold it to be necessary to state the time of the election. Lewellen v. S., 18 Tex. 538. And doubtless this is the correct rule for some circumstances. But where, as in the form in the text, the time is fixed by general law, whereof the court takes judicial cognizance, no just reason can be given why it should be averred otherwise than as in the text. 5 As to the necessity of this allega- tion, see Stat. Crimes, §§ 942, 943. It appears in most of the precedents. "For forms see Stat. Crimes, §§ 938-940, 944; also,— Indiana.— Parsons v. S., 2 Ind. 499; Hizer v. S., 12 Ind. 330; Frazee v. S., 58 Ind. 8; S. v. Windell, 60 Ind. 300; Wagner v. S.. 63 Ind. 250; Caldwell V. S., 63 Ind. 283. Kentucky. — Com. v. Kennedy, 12 B. Monr. 531. Mississippi. — Miller v. S., 33 Miss. 356. 217 §§ 397-399.] sPEoirio offenses. [book hi. article so lost or won, nor exceeding twice the value thereof," ' the allegations may be, — That A., etc., on, etc., at, etc., unlawfully won and took from one X. twenty-five dollars,^ by then and there unlawfully betting and wagering the same with him upon the result of a certain election had and held on, etc., in this state, for governor thereof; against the peace, etc' § 397. Bet. — On a statute to punish one who "shall wager or bet any sum of money, or anything of value, upon any elec- tion under the constitution and laws of this state or of the United States," it is a good form to say, — That A., etc., on, etc., at, etc., did wager and bet one hundred dollars in money * [or one hat of the value of five dollars.^ or a valuable thing called a hat, or suit of clothes ^J with X., that he the said A. w^ould get and re- ceive, at the M. precinct, in T. county, one hundred votes for the oflBce of clerk of the county court of said county, for which ofiice he the said A. was then and there a candidate,' at an election then and there being held under the constitution and laws of this state; against the peace, etc' § 398. Another form for betting — may be, — That A,, etc., on, etc., at, etc., did lay a wager and bet of fifty dollars with one X, that a certain M., who was then and there a candidate nomi- nated for the public office of governor of this state, would, at an election to be held under the constitution and laws of this state, on, etc., be elected governor thereof; against the peace, etc' Y. Peactioal Suggestions. § 399. Duty of prosecuting officer. — There is no duty of a prosecuting officer more urgent, or demanding greater fidelity Missouri. — S. v. Eagan, 32Mo. 459; terms of the statute "anything of S.V. Bridges, 34 Mo. 353; S. w Smith, value." Ante, § 395, note; Stat 24 Mo. 856. Crimes, gg 938, 945. Perhaps the Pennsylvania. — Sherban v. Com., 8 court will take judicial cognizance of Watts, 213. what is palpable to the non-judicial Texas. — Lewellen v. S., 18 Tex. 538. understanding, that a hat is a " val- [West Virginia. — 8. v. Griggs, 34 uable thing." But, in the absence of W. Va. 78; S. v. Snyder, 34 W, Va. any decision to this eflect, I should 83.] deem it safer to put the averment in 1 For the statute, see Wagner v. S., some form into the indictment 63 Ind. 350. « Stat. Crimes, §§ 900, 901. 2 Ante, § 395, note. ' Deemed important in Kentucky, 8 Caldwell v. S., 63 Ind. 283. And and perhaps also in some other compare with Stat. Crimes, §§ 885, statea Ante, § 395 and note, and 938-941, 944, 945, 947; Hizer v. S., 13 places there referred ta Ind. 330. 8 Com. v. Kennedy, 15 B. Monr. 531. ^ As to this, see ante, § 895, note; And see, for a like form on a similar Stat Crimes, §§ 901, 989. statute. S. v. Smith, 24 Mo. 356, 357; 5 This allegation of value would S. v. Ragan, 23 Mo. 459. not be necessary but for the special ' Sherban v. Com., 8 Watts, 313. 318 CH. XXX.] ELECTION OFFENSES. [§ 400. in its performance, than the prompt, energetic and intelligent following up to conviction of every offense against the purity of the elections. This multiform wrong is the one great crime which, in a republic, should never be overlooked or forgiven. When laxity herein becomes possible in any large part of our country, hope for the permanency of free institutions dies. And he who herein murders hope deserves, in a just estimation of his offense, whatever the laws may say, the heaviest punishment possible for a government to inflict on the subject. In the frenzy of party strife, the temptation of a prosecuting officer, manipu- lated by the unprincipled great men of his own party, to over- look an offense committed in the interest of the party, when there is a public opinion declaring the success of the party necessary to the salvation of the country, and the offense indispensable to party success, is immense. He who resists the temptation and does his duty, finds, in his own breast, and he will ultimately find in the public regard, a reward which only a madman would throw away. § 400. Methods. — There is nothing in methods of prosecu- tion special to this offense. The prosecuting officer should bring learning, industry and integrity into all his work; and only these, with integrity most carefully erect, are required under the present head. 219 CHAPTEE XXXI. EMBEZZLEMENT.! § 401. Indictment peculiar and how. — Alike under the earlier statutes of embezzlement and under most of the mod- ern ones, as commonly interpreted, the indictment is required to be wrought and twisted into such special shape as to charge, in a single count and as one offense, two dissimilar offenses, the one statutory and the other at common law. The one of these offenses is embezzlement as defined by the statute, and the other is common-law larceny ; and the pleader must not omit from his allegations a particle of what belongs to either,^ — a rule, however, which by statute passed from time to time has been more or less relaxed.' Hence, — § 402. Elements of Indictment. — In the absence of a re- laxing statute, the indictment must charge, in addition to venue and time, that the defendant did feloniously steal, take and carry away, not so much money, but such and such enumerated coins, bank-bills, chairs, tables or other articles; stating also the ownership of them, and, as far as the rule in larceny re- quires, the value.* This is the larceny element, charged after the manner of the common law. The other is the statutory element; and the indictment, into which the larceny element is woven, covers the particular statute, like other indictments on statutes.^ Thus, — § 403. Formula. — Many of our American statutes are copied more or less closely from the English 7 & 8 Geo. 4, c. 29, § 47, now superseded in England by one in slightly different words.' 1 For the direct elucidations of the 2 jjex v. McGregor, Euss. & Ey. 83, law of this offense, with the plead- 2 Leach (4th ed.), 933, 8 B. & P. 106. ing, practice and evidence, see Crim. ' See, for the fuller explanations. Law, II, §g 318-383; Crim. Pro., II, Crim. Pro., II, §§815-320. §§ 314-848. Collateral, Crim. Law, I, < Crim. Pro., II, § 697 et seq. § 567; II, § 1137; Crim. Pro., I, g§ 61, « Crim. Pro., I, § 593 et seq. 397, 438, 449, 480, 645, 1010; Stat. 6 Crim. Law, II, §§ 333, 338. Crimes, §§ 371, 413. And see Id., §§ 417-434. See also Larceny. 330 CH. XKXI.J EMBEZZLEMENT. [§ 403. So much of the former as will suffice for the present illustration is, " If any clerk or servant . . . shall by virtue of such employment receive or take into his possession any chattel, money, or valuable security, for or in the name or on the ac- count of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money, or security was not received into the posses- sion of such master otherwise than by the actual possession of his clerk, servant," etc. Now, leaving out of view the provis- ions modifying the common-law requirements for the indict- ment, and bearing in mind that our statutes differ more or less from this and from one another, and the terms of the particular statute must be covered, we have, — That A., etc., on, etc., at, etc., being then and there the servant [or clerk, or agent, using the statutory term] of one X, did [now look at the statute and follow its words, as^ for example, if the indictment is on those above quoted] by virtue of his said employment receive and take into his posses- sion one gold coin [we are now on the larceny part] of the coinage of the United States of America called an eagle, of the value i of ten dollars 2 [or, etc., setting out any other thing or things of which by the statute embez- zlement may be committed, in precisely the same manner as in an indict- ment for the larceny thereof],' [of the property of the said X, his master *], for and in the name and on the account of the said X.^ [following here also iThe rule in larceny is that the particulars were to the jurors un- value of the stolen thing is required known. Crim. Pro., II, g§ 381, 703- to be alleged only when it is an ele- 705. And English and American ment influencing as of law the pun- statutes, regulating the procedure, ishment. Crim. Pro., II, § 713; Stat, have relaxed this requirement as to Crimes, § 427. Therefore it is the "money." same in embezzlement. ' The form, thus far, is a little less 2 R. S. U. S., § 3511. The reader ob- plethoric than the ordinary English serves that the terms of the above- indictment (Crim. Pro., II, § 333), but recited English statute are at this there is no just ground to question place " any chattel, money, or valu- its sufficiency. able security." But, before the stat- * The ownership of the thing em- utes relaxing the rules for the indict- bezzled must be alleged. Crim. Pro., ment were passed, it was held not to II, § 320. It is generally donS, not be sufficiently definite to employ here, but in the closing part. This therein the word of wide meaning hint may be serviceable in states " money " (Crim. Pro., II, §§ 320, 331), where such part is not employed, and because such method of allegation in forms of the offense for which it would not be adequate in larceny, is nowhere required, while yet some want of description, ^ Under the statute in the text and it is not certain how much, might be others in like terms it is not custom- excused by the allegation that the ary and seems not necessary to allege 221 § 403.] SPECIFIC OFFENSES. [book III. the statutory terms], and afterward i did then and there fraudulently [and feloniously 2] embezzle [or, e'tc, using the statutory word or expression '] the same; and so [returning now to the larceny part] the said A. did then and there, in manner and form aforesaid, the said gold coin [or, etc., stat- ing whatever else was specified above, but general terms will here, where they are qualified by " said," suflSce], the property of the said X, his master, from the said Z. feloniously steal, take and carry away; against the peace, etc. [ante, §§ 66-69].* from whom the embezzled things w ere recei V ed by the defendant. But under some of our American statutes it is necessary. Crim. Pro., II, § 323a. And then the allegation must be added to those in our formula. 1 This word "afterward" is in some, not all, of the forms before me. I do not deem it essential; but it renders more distinct the statement of the offense, for which reason I should prefer to use it. 2 This offense being felony, " felo- niously " should be employed in the indictment. But to insert it only^in the concluding part has been ad- judged sufficient. Crim. Pro., II, § 333. Still its insertion here also is proper; and, in states where the lar- ceny conclusion is not appended, this is the special place for it. 3 Crim. Pro., II, § 323. *For forms see Arch. Crim. PL & Ev. (19th ed.) 483, 500, 502, 503, 505, 609; 3 Chit. Crim. Law, 666, 701,961- 971, 993, 993; Eex v. Bourne, 4 Went. Pi 42, 6 Cox, C. C. Ap. 14, 109, 8 id. Ap. 30; Eeg. v. Harman, 2 Ld. Raym. 1104; Rex v. Johnson, 3 M. & S. 539; Rex V. Taylor, 3 B. & P. 596, Russ. & Ry. 63; Rex v. Higgins, 2 East, 5; Rex V. Whittingham, 3 Leach (4th ed.), 913; Rex v. Aslett, 2 Leach (4th ed.), 958, Russ. & Ry. 67, 1 N. R. 1; Rex V. Johnson, 2 Leach (4th ed.), 1103; Eex v. McGregor, Russ. & Ry. 23, 2 Leach (4th ed.), 932, 3 B. & P. 106; Rex v. Bakewell, Russ. & Ry. 35; Rex V. Crighton, Russ. & Ey. 62; Rex V. Mellish, Russ. & Ry. 80; Rex v. Hartley, Russ. & Ry. 139; Eex v. Beechey, Euss. & Ry. 319; Eex v. Bur- ton, 1 Moody, 237; Rex v. Nettleton, 1 Moody, 259 ; Rex v. Murray, 1 Moody, 276; Rex v. Hughes, 1 Moody, 370; Rex V. Jenson, 1 Moody, 434; Eeg. v. Adey, 1 Den. C. C. 571; Rex v. Haw- kins, 1 Den. C. C. 584; Reg. v. Wort- ley, 3 Den. C. C. 333, 5 Cox, C. C. 383; Eeg. V. Goodenough, Dears. 310; Eeg. V. Moab, Dears. 636, 7 Cox, C. C. 60; Eeg. V. Bayley, Dears. & B. 131 ; s. c. nom. Reg. v. Bailey, 7 Cox, C. C. 179; Eeg. V. Tite, Leigh & C. 39, 8 Cox, C. C. 458; Reg. v. Proud, Leigh & C. 97, 9 Cox, C. C. 32; Reg. v. Holman, Leigh & C. 177, 9 Cox, C. C. 301; Eeg. V. Fletcher, Leigh & C. 180, 9 Cox, C. C. 189; Reg. v. Massey, Leigh & C. 206, 9 Cox, C. C. 234; Reg. v. Glover, Leigh & C. 466, 9 Cox, C. C. 500; Reg. V. Balls, Law E 1 C. C. 328; Reg. v. Cooper, Law R. 2 C. C. 123, 125; Eeg. V. Foulkes, Law R. 2 C. C. 150; Reg. V. Tatlock, 2 Q. B. D. 157, 13 Cox, C. C. 328; Reg. v. Lovell, 3 Moody & R 336; Eex v. Becall, 1 Car. & P. 310; Eex V. White, 4 Car. & P. 46; Eeg. v. Purchase, Car. & M. 617; Eeg. v. La- nauze, 2 Cox, C. C. 862; Eeg. v. Gomm, 3 Cox, C. C. 64; Reg. v. Murphy, 4 Cox, C. C. 101, 104; Reg. v. Taffs, 4 Cox, C. C. 169; Reg. v. Woolley, 4 Cox, C. C. 251; Reg. v. Woolley, 4 Cox, C. C. 355; Reg. v. Tyrie, 11 Cox, C. C. 341; Eeg. V. Eudge. 13 Cox, C. C. 17; Eeg. V. Graham, 13 Cox, C. C. 57; Eeg. v. Cesser, 13 Cox, C. C. 187; Eeg. v. Ful- loger, 14 Cox, C. C. 870; Eex v. Gour- ley, Jebb, 83; Eeg. v. Hynes, 13 U. C. Q. B. 194; Eeg. v. Armstrong, 30 U. C. Q. B. 345. Alabama. — Lowenthal v. S., 32 Ala. 589; Doyle v. S.,49 Ala. 28; No- 333 OH. XXXI.J EMBEZZLEMENT. [§ 404. § 404. Allegation of thing embezzled. — As the thing em- bezzled does not, in the ordinary offense such as is supposed in the last section, pass through the hands of the injured person, and commonly he never had it in them, to require the pleader ble V. S., 59 Ala. 73; [Walker v. S., 117 Ala. 43.] Arkansas. — S. v. Hunnicut, 34 Ark. 563. California. — P. v. Cohen, 8 Cal. 43; P. V. Peterson, 9 CaL 313; P. v. Gar- cia, 35 CaL 531; P. v. Potter, 35 CaL 110; P. V. Carrillo, 54 Cal. 63; [P. v. Neyoe, 86 CaL 893.] Georgia.— BnWoch v. S., 10 Ga. 46; Snell V. S., 50 Ga. 319; [Jackson v. S., 76 Ga. 551; Robinson v. S., 83 Ga. 166; Cody V. &., 100 Ga. 105; Cooper v. S., 101 Ga. 783.] Illinois.— Wright v. P., 61 111. 383; Goodhue v. P., 94 IlL 37. Indiana. — S. v. Hebel, 73 Ind. 361 ; S. ttTumey, 81 Ind. 559; [S. v. White, 139 Ind. 153; Dean v. S., 147 Ind. 315.] Iowa. — S. V. Orwig, 34 Iowa, 103; S. V. Foster, 37 Iowa, 404; S. v. Stoller, 38 Iowa, 331 ; S. v. Brandt, 41 Iowa, 593, 595; S. v. Parsons, 54 Iowa, 405. Kansas.— S. v. Smith, 13 Kan. 374, 377; S. V. Graham, 13 Kan. 399; S. v. Crosby, 17 Kan. 396; [S. v. Sullivan, 43 Kan. 563; S. v. Coames, 47 Kan. 136; S. V. Hayes, 59 Kan. 61.] Kentucky. — Johnson v. Com., 5 Bush, 430. Louisiana. — S. v. Muston, 31 La. An. 443; S. v. Thompson, 33 La. An. 796. Maine.— S. v. Hinckley, 38 Me. 31 ; S. V. Goss, 69 Me. 33; S. v. Haskell, 33 Me. 137; [S. v. Carcan, 90 Me. 143; S. V. Stevenson, 91 Me. 107.] Massachusetts. — Com. v. Stearns, 3 Met. 343; Com. v. Wyman, 8 Met. 347; Com. v. Smart, 6 Gray, 15; Com. V. Shepard, 1 Allen, 575; Com. v. Concannon, 5 Allen, 503; Com. v. Tenney, &7 Mass. 50; Com. v. But- terick, 100Mass.l; Com.uHussey, 111 Mass. 433; Com. r. Smith, 116 Mass. 40; Com. v. Bennett, 118 Mass. 443; Com. V. Doherty, 137 Mass. 30; [Com. V. Mead, 160 Mass. 319; Com. v. Par- ker, 165 Mass. 336.] Michigan. — P. v. McKinney, 10 Mich. 54; P. v. Donald, 48 Mich. 491. Minnesota. — S. v. Munch, 33 Minn. 67, 68; S. v. New, 33 Minn. 76; S. v. Butler, 36 Minn. 90; S. v. Mims, 36 Minn. 183, 185; S. v. Mims, 36 Minn. 191; S. V. Ring, 39 Minn. 78, 80. Missouri.— S. v. Mohr, 68 Mo. 303; S. V. Heath, 70 Mo. 565, 567; [S. v. Stebbins, 133 Mo. 333.J [Mississippi. — Hemmingway v. S., 68 Miss. 371; S. v. Broughton, 71 Miss. 90; S. V. Gillis, 75 Miss. 331.] Montana. — U. S. v. McElroy, 3 Mon. Ter. 494, 497. {Nebraska.- Mills v. S., 53 Neb. 363; Zink v. S., 34 Neb. 37.] Nevada.— 8. v. Malim, 14 Nev. 388. New Jersey. — S. v. Stimpson, 4 Zab. 9. [New Mexico. — Ty. v. Heacock, 4 N. M. 354.J New York. — P. v. Allen, 5 Denio, 76; Coats v. P., 4 Parker, C. C. 663, 664; Bork v. P., 91 N. Y. 5. North Carolina. — S. v. Lanier, 89 N. C. 517; [S. V. Fair, 106 N. C. 760. J Ohio.— S. V. Newton, 36 Ohio, 365. Oregon.— 8. v. Dale, 8 Greg. 339. Pennsylvania. — Com. v. Wade, stated 1 DalL 337; Com. v. Newcomer, 13 Wright (Pa.), 478; Hutchison v. Com., 1 Norris (Pa.), 473; Com. v. Leisenring, 11 Phila. 389. Rhode Island. — S. v. Snell, 9 R. I. 113. Tennessee. — S. v. Cameron, 3 Heisk. 78, 81, 83; S. v. Henry, 1 Lea, 730. Texas. — Riley v. S., 33 Tex. 763; Wise V. S., 41 Tex. 139; S. v. Long- worth, 41 Tex. 163; S. v. Brooks, 43 333 § 404.] SPECIFIC OFFENSES. [BOOK III. to set it out as in the indictment for common-law larceny, es- pecially where it consists of parcels of coins and bank-bills whereof practically men take cognizance only in the sums which they aggregate, is almost a denial of justice.^ Therefore statutes to correct this wrong were long ago passed in England, and they have been adopted with us; and, in both countries since their original enactment, they have been modified and made more liberal. The practitioner should carefully note what are the provisions on this topic in his own state. They dififer in our states, but largely they are in substance the same as now in England ; namely, — " Where the offense shall relate to any money or any valuable security [the reader per- ceives that this does not change the rule as to ordinary chat- tels], it shall be sufficient to allege the embezzlement, etc., to be of money, without specifying any particular coin or valuable security; and such allegation, as far as regards the description of the property, shall be sustained if the offender shall be proved to have embezzled, etc., any amount, although the par- ticular species of coin or valuable security of which such amount was composed shall not be proved." ^ Under this pro- vision, a common form of the averment in England is, — " Certain money to a large amount, to wit, to the amount of ten pounds " ' [a circumlocution plainly useless. It is equally good in law, while more simple, to say, "ten pounds in money."*] With US, under our constitutions, which, in varying terms, yet in substance, provide that the accused shall be entitled to have the charge against him plainly and fully set out,' there may be doubt whether it is competent for legislation to make punish- able a man for one thing on the allegation of another, and whether the statute should not therefore be so interpreted* as Tex. 63; S. v. McLane, 43 Tex. 404; Cranch, C. C. 56; U. S. v. Clark, Henderson v. S., 1 Tex. Ap. 433, 434; Crabbe, 584; [U. S. v. Wight, 38 Griffin v. S., 4 Tex. Ap. 390; Keeler Fed. R. 106; In re Wright, 34 U. S. V. S., 4 Tex. Ap. 537 ; Gaddy v. S., 8 136; Moore v. U. S., 160 U. S. 308; U. S. Tex. Ap. 137; Reside v. S., 10 Tex. Ap. v. Thomas, 69 Fed. R. 588.] 675; [Maloolmson v. S., 35 Tex. Ap. »Crim. Pro., II, § 319. 367; S. V. Downing, 15 Wash. 413.] 2 34 & 25 Vict., c. 96, § 71. Wisconsin.— S. v. Campbell, 44 ' Archb. Grim. PI. & Ev. (19th ed.) Wis. 539. ■ 483. Wyoming. — McCann v. U. S., 3 * Ante, § 350 and nota Wy. ,Ter. 274, 275. » Crim. Pro., I, §§ 86-88, 95-111. United States.— XJ. S. v. Forrest, 3 «Stat. Crimes, §§ 89, 90. 224 CH. XXXI.] EMBEZZLEMENT. ' [§§ 405-407. to avoid this. To forestall the objection* it is proposed that the averment be, — Five hundred dollars in money and such valuable securities as under the statute in that case made and provided may be charged as money. § 405. Three offenses in one indictment. — The common-law rule in felony, that, however many counts an indictment may contain, it shall charge but one offense,^ has been found not to work well in embezzlement. Therefore, as to this offense, it has been variously modified in England and most of our states ; a sufficient explanation whereof is given in " Criminal Proced- ure." ' The practitioner should carefully note the statutes on this point in his own state. Now, — § 406. Further of forms. — With these hints, directions, and formulas, the pleader, laying bis own statutes before him, can, on any of them, draw an indictment which will be sure to be good. If he looks further for a precedent and follows it, he may fail. The welfare of the reader, therefore, would prob- ably be best promoted by closing the chapter here. But, as most would not be satisfied with it so, and as the wise can re- fuse to read further, let us proceed. § 407. Statute differently expressed. — Some of our Amer- ican statutes, while in substance copied from the English ones, are differently expressed, and in ways to require somewhat modified interpretations. . Thus, " An officer, agent, clerk, or servant of an incorporated company, or a clerk, agent, or serv- ant of a private person or partnership, except an apprentice or other person under the age of sixteen years, who embezzles or fraudulently converts to his own use, or takes or secretes with intent so to do, without consent of his employer or master, any property of another which has come to his possession or is under his care by virtue of his employment, shall be deemed guilty of simple larceny."* And this is accompanied by the provision that, where the thing embezzled, etc., is "bullion, money, notes, bank-notes, checks, drafts, bills of exchange, ob- ligations, or other securities for money, ... it shall be 1 The objection in a different form, 2 Crim. Pro., I, §§ 449-451, 457. or rather a different objection, has ' Id., II, §§ 332-334. been, and no doubt correctly, over- * Mass. Pub. Stats., oh. 203, § 40. ruled. Crim. Pro., II, § 332; Com. v. Compare with ante, § 403. Bennett, 118 Mass. 443. 15 225 § 407.] SPECIFIC OFFENSES. [book III. suJEcient to allege generally in the indictment an embezzle- ment, etc., of money to a certain amount," etc., substantially as in the English statute.' Upon this it will be a good form to say, — ■ That A., etc., on, etc., at, etc., being the clerk and agent 2 of one X, and not under the age of sixteen years 'and not an apprentice, did then and there, by virtue of his employment as such clerk and agent, have under his care, of the property of the said X. [or, of one Y.],* one sewing-machine of the value of thirty dollars,^ and five hundred dollars in money [or money to the amount of five hundred dollars'*], consisting of money, bank-notes and checks,' here alleged as money within the provisions of the statute in that case made and provided,' and did afterward,' then and there, without the consent of the said X., feloniously embezzle the same, and fraudulently and feloniously convert the same to his own use; i" and so" the said A. did then and there, in manner and form aforesaid, the said sewing-machine and the I Ante, § 404; Mass. Pub. Stats., oh. 303, § 44 ■■'Or, "clerk" alone will suffice, or " agent " alone, or " servant " alone. 'As I interpret the statute, this form of the negative completely covers the exception. It is not nec- essary to say "not an apprentice." Crim. Pro., I, § 641; Stat. Crimes, § 1043. But a different meaning seems to be implied in Com. v. Smith, 116 Mass. 40, though the point is not adjudged. * The pleader will follow his choice •whether or not to allege the owner- ship here; as, see ante, § 403 and note. And the terms of this statute seem to imply that such ownership may be in a third person as well as in the employer or master. 5 An article like this, not being within the statute permitting a more general allegation, must bo described as in the common-law indictment for larceny. Ante, §§ 401-404. 6 This form more exactly covers the statutory words, but I think the other means the same thing. Some might choose to say " amount and value," but it would be difficult to assign any good reason for this. 'See, as to this, ante, § 404. I should use here only such of the statutory terms as are applicable to the facts to be proved. 8 If the pleader is framing his in- dictment with reference to this par- ticular statute, there is a part of it, not given in the text, to which I wish to call his attention. It goes on, very singularly, to provide that, " on the trial, evidence may be given of any such embezzlement, etc., enm- mitted within six months next after the time stated in the indictment," etc. I shall not undertake to inter- pret this. Does it mean that, for the prosecuting officer to avail himself of this provision, he must lay the of- fense as committed before it trans- pired in fact ? 9 As to this " afterward," see ante, § 403 and note. 10 This latter .clause, " fraudulently," etc., is, of course, not necessary; yet I should prefer to insert it. 1' There are forms which add liere, in varying terms, that by this means the defendant became guilty of lar- ceny. Of which offense, the reader perceives, the statute says he is guilty, — a mere conclusion of law. No mere conclusion of law need be averred. Crim. Pro., I, g 515. 326 OH. XXXI.] EMBEZZLEMENT. [§§ 408, 409. said money, of the property of the said X. [or of the said Y.], [from the said X.i], feloniously steal, take and carry away; against the peace, etc.2 § 408. Same in statutory form. — On a statute substan- tially identical with the one copied into the last section, the following form, which legislation had declared to be sufficient, Avas sustained by the court : — That, before the finding of this indictment, A., etc., being the agent or clerk of X, the said X. not being an apprentice, or under the age of eighteen years, embezzled, or fraudulently converted to his own use, money to about the amount of eighteen hi^ndred dollars, and a bill of exchange to about the amount of eighteen hundred dollars, which came into his possession by virtue of his employment; against the peace, etc' § 409. By public officers. — Embezzlements by public offi- cers are punishable under statutes which differ in the respect- ive states, and are not always quite the same in terms with those against private embezzlements. No general form of the indictment for all is possible. A statute now before the writer makes it a penitentiary offense " if any officer of the govern- ment, who is by law a receiver or depositary of public money, or any clerk or other person employed about the office of such officer, shall fraudulently take or misapply or convert to his own use any part of such public money, or secrete the same with intent to take, misapply or convert to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it."* There is nothing here about the offense being larceny ; and as, if there were, it would still be contrary to just principle to compel the pleader to weave into the indictment on the statute the larceny allegations,* a fortiori they are not required on this statute. It has been adjudged good to say, — That on, etc., at, etc., A., etc., who was then and there an oflSoer of the government, to wit, a deputy sheriff in and for the said county of M., and 1 The statute of 7 & 8 Geo. 4, c. 29, contain the words " from the said § 47, on which the foregoing formula X." Crim. Pro., II, § 697. There- is drawn, provides that the person fore they need not be used in the embezzling the property "shall be present form. deemed to have feloniously stolen 2 And see the places cited ante, the same /rom Ms master." Hence § 403, note; and particularly, Com. the words "from the said X." were v. Bennett, 118 Mass. 443; Com. v. at this place used in the formula. Smith, 116 Mass. 40; Com. v. Stearns, Ante, % 408. But the terms of the 3 Met. 348; Johnson v. Com., 5 Bush, statute on which we are here pro- 480. ceeding are, "shall be deemed guilty ' Lowenthal v. S., 32 Ala. 589. of simple larceny." And the indict- * S. v. Brooks, 42 Tex. 63. ment for simple larceny does not ^ Crim. Pro., II, §§ 318-330. 237 § 409.] SPECIFIC OFFENSES. [book III. by virtue of his said office then and there by law a receiver of public money, to wit, a collector of taxes assessed in said county of M., and authorized to collect and receive the moneys due the government of the state, and then and there acting in said office, did then and there wickedly, wilfully, unlaw- fully, feloniously and fraudulently take and misapply, and convert to his own use, a part of the money intrusted to him as aforesaid, to wit, the sum of one thousand dollars, money collected by him as aforesaid for the state of , from the citizens of M. county, for the year [specifying it], and also large sums of said taxes for that year to the grand jurors unknown in amount, he the said A. then and there well knowing that he was not entitled to the same; against the peace, etc.' 'S. V. Brooks, supra. I have not deemed it necessary to consider what abridgments might be made of these allegations. In S. v. Smith, 13 Kan. 374, 277, which was an information against a county treasurer, the form is quite similar, and it was adjudged adequata "The information," said Kingman, C. J., delivering the opin- ion of the court, "charges specilic- ally to what fund each portion of the total charged belongs, but does not describe the kinds of moneys embez- zled." And counsel had urged that they should have been thus speciiic- ally described. The learned judge continues: " In transactions such as are now under consideration, run- ning through a long period of time, and involving large sums of money, received from a whole community, and being constantly changed by the necessities of the office, such a de- scription of the funds is impossible; and, if necessary to be averred, must be proven; and, therefore, is an ef- fectual bar to all prosecutions under the law." After speaking of the rule of the English courts under differ- ently-worded statutes, he proceeds: " We are not forced to discuss the authorities on this point, for the change in the law necessarily com- pels such construction of its provis- ions as will give it effect. And we do not think that the reason of those decisions, when applied to the agent of private persons who can at all times scrutinize the acts of those in their employ, apply to a public of- ficer. The public at large can exer- cise no constant supervision over his acts, nor can it, like a private indi- vidual, assume the direct custody of the funds at any moment. The proper authorities may require him to account, may examine the funds in his possession, but in the next hour all these funds may be changed, long before the act of embezzlement is done, or the intent is formed. To suppose that the legislature, when they added the large class of public officers to those who might be amen- able to the law for the offense of embezzlement, intended to require proof of the identity of the money embezzled, or a description of it, and from whom it was received, is to infer that they intended to enact a law the enforcement of which would be impossible. It will not do to per- mit an artificial rule of pleading, having a doubtful foundation in rea- son, to lead to such a disastrous re- sult. This exact point has been de- cided in Michigan in a very able opinion (P. v. McKinney, 10 Mich. 54), and we but follow that decision in holding that the information is not defective in not describing precisely the funds embezzled." pp. 295, 396. For other forms of the indictment for embezzlement by a public officer, under various statutes, see Bork v. P., 91 N. Y. 5; S. v. Hebel, 73 Ind. 361; P. V. McKinney, 10 Mich. 54; S. V. Graham, 13 Kan. 299; S. v. Parsons, 228 GH. XXXI.] EMBEZZLEMENT. [§§ 410-412. § 410. Not larceny. — The pleader, therefore, should carry i'n his mind the distinction between those embezzlements which the statute does not make larceny and those which it does, — a distinction not always present to the thoughts of counsel and judges as disclosed by the cases. There is no reason why, when the statute is silent as to larceny, the indictment should be drawn otherwise than after the ordinary rules for indictments on statutes.^ "With this distinction in the mind of the pleader, and the foregoing specimens of the indictment before him, — § 411. Other t'orms — may be readily constructed as needed. It would be little else than waste of space to swell this chap- ter with them. Yet references to some places where other particular forms appear will be useful.^ § 412. Solicitations — and other attempts at embezzlement are, of course, indictable under the general law of attempt. And we have seen what are the proper forms for the indict- ment.' It has been adjudged good for the solicitation to say, — That A., etc., on, etc., at, etc., "did falsely, wickedly and unlawfully so- licit and incite one X., a servant of Y., to take, embezzle and steal a quan- tity of twist, of the value of, etc., of the goods and chattels of his master Y. aforesaid; " against the peace, etc.^ 54 Iowa, 405; S. v. Brandt, 41 Iowa, benefit society, Reg. v. Taffs, 4 Cox, 593, 595; S. v. Goss, 69 Me. 23; S. v. C. C. 169; Reg. v. Woolley, 4 Cox, Ring, 39 Minn. 78, 80; Reg. v. Moah, 0. C. 351; Reg. v. Woolley, 4 Cox, Dears. 626, 7 Cox, C. C. 60; [S. v. Man- C. C. 255; Reg. v. Proud, Leigh & C. ley, 107 Mo. 364] 97, 9 Cox, C. C. 23; Reg. v. Tyrie, 11 1 For the rules, see Crim. Pro., I, Cox, C. C. 241. By a bank ofiScer, § 593 et seq.; [S. v. Fricker, 45 La. Com.i;.Shepard,l Allen, 575. Against An. 646.] trustee of savings bank, Reg. v. 2 For embezzlement by a common Fletcher, Leigh & C. 180, 9 Cox, C. C. carrier, S. v. Hinckley, 88 Me. 21. 189. Against servant, P. v. Garcia, Embezzlement of promissory notes 25 Cali 531. Guardian, S. v. Henry, delivered to the defendant to keep 1 Lea, 730. Trustee, Reg. v. FuUagar, and return, Com. v. Hussey, 111 Mass. 14 Cox, G. C. 370. Bailee of coin and 432. Against a bill broker for em- gold-dust, P. v. Peterson, 9 Cal. 313. bezzling a bill delivered to be dis- Warehouseman embezzling grain, counted, 3 Chit. Crim. Law, 967. S. v. Stoller, 38 Iowa, 321. Commis- Note intrusted for special purpose, sion merchant embezzling proceeds Reg. V. Hynes, 13 U. C. Q. B. 194. of sale, Wright v. P., 61 IlL 383; Reg. Bonds, Com. v. Tenney, 97 Mass. 50. v. Harman, 2 Ld. Raym. 1104. Bank-book, Com. v. Doherty, 137 Mass. » Ante, §§ 100-107, 110, 111. SO. Exchequer bills, 3 Chit. Crim. [to one X^], of the tenor following Iowa, 342; S. v. Barrett, 8 Iowa, 536; Gabe u S., 1 Eng. 519; S. v. Morton, S. V. Hayden, 15 N. H. 355; Reg. v. 8 Wis. 353; U. S. v. Noble, 5 Cranch, Lee, 3 Moody & R. 381; Mount v. G. C. 371; S. v. Randall, 3 Aikens, 89; Com., 1 Duv. 90; S. v. Ward, 6 N. H. MoMillen v. S., 5 Ohio, 368; Bevington 539; S. V. Carr, 5 N. H. 367; P. v. v. &., 3 Ohio St. 160; Tomlinson v. P., Lewis, 1 Wheeler, Grim. Gas. 181. 5 Parker, G. G. 313; P. v. Van Keuren, 1 Probably not necessary, as see 5 Parker, C. C. 66; Dennis v. P., 1 ante, § 460 and note. Parker, G. G. 469; P. v. Lewis, 1 2 For other forms, see 3 Ghit. Grim. Wheeler, Grim. Gas. 181; P. v. Davis, Law, 1050; Townsend v. P., 3 Scam. 31 Wend. 309; Gom. v. Hall, 97 Mass. 336; U. S. V. Williams, 4 Bis. 303; P. 570; Matthews w. S., 3 Yerg. 333; U. S. V. Peabody, 25 Wend. 473; Brown v. v. Fisler, 4 Bis. 59. Com., 8 Mass. 59; Gom. v. Atwood, 11 ^These words "as true" are neces- Mass. 93 ; P. v. Thomas, 3 Parker, C. G. sary even under some statutes which 356,357; S. v. Dourdon, 3 Dev. 443; do not contain them, being introduced Com. V. Woods, 10 Gray, 477; Gom. by interpretation. Grim. Pro., II, V. Houghton, 8 Mass. 107; Gom. v. § 464. Morse, 2 Mass. 138; S. v. Symonds, 30 * As to the necessity for this, see Me. 138; S. v. Bonney, 34 Me. 223; amie, § 460 and note. 363 §§ 469, 470. J SPECIFIC offenses. [book hi. [here setting it out i], with the intent to defraud the said X., the said Y. [the apparent drawer of the bill], the said Z. [the drawee or acceptor], and other persons whose names are to the jurors unknown: 2 against the peace, etc. 3 § 469. Bank-check. — A bank-check is so far in the nature of a bill of exchange that the indictment for forging or utter- ing it may assume the same form ; of course, designating it, riot as a " bill of exchange," but as a " bank-check." No sep- arate form, therefore, need be here given. The pleader should bear in mind the necessity of adhering to the statutory terras.'' § 470. Order, warrant, request, draft, etc' — These in- struments, authorizing or requiring the payment of money, the delivery of goods, or the like, so far resemble bills of exchange that ordinarily, as in the case of bank-checks, the indictment for the forgery or the uttering is in substantially the same form. But there is sometimes doubt as to the right name of an instrument of this class, rendering the indictment and proofs specially troublesome by reason of a threatened variance, where the purport clause is employed; for which and other reasons the pleader is recommended commonly to omit this clause en- tirely, not even designating the instrument by its name.' Still, though the name is omitted, the instrument must appear on its 1 If the forgery or uttering has no "And on the back [or across the relation to the acceptance, there is face] of said forged bill of exchange no need of setting out the latter; as, [or forged writing] [or, across which see the forms in 3 Chit. Crim. Law, bill of exchange] were and are the 1071; Rex v. Gilchrist, 3 Leach (4th words 'Accepted, George Johnson.'" ed.), 657; Rex v. Hart, 1 Moody, 486, ■^Ante, § 457. 7 Car & P. 653; and in perhaps most ^ For other forms, see the places re- of the precedents it is not set out. f erred to in the note before the last; Under some of the statutes, and gen- Archb. Crim. PI. & Ev. (10th ed.) 373, erally, it is no part of the bill. Stat. 373; 4 Went. PI. 38-31; Rex v. Read- Crimes, tj 338 and note; Rex v. Hor- ing, 3 Leach (4th ed.), 590; Rex v. well, 1 Moody, 405, 6 Car. & P. 148. Brewer, 6 Car. & P. 363. Yet in some cases the pleader will * For forms, see S. v. Kroeger, 47 choose to set it out. To let it simply Mo. 553; Cross v. P., 47 111. 153; Clem- follow in the copy the bill, as though ents v. P., 5 Parker, C. C. 337; S. v. a part of it, would seem to be ordi- Morton, 37 Vt. 310; Crofts v. P., 3 narily adequate ; or, if it is across the Scam. 442. face of the original, it may be written *Stat. Crimes, §§335-336; Crim. across the face of the copy. See Rex Law, II, §§545-547,560; Crim. Pro., V. Horwell, supra; Rex v. Szudurskie, II, §§ 349, 473, 474. 1 Moody, 439. Or, after the copy of " Ante, § 456. the bill proper, the allegation may proceed: — 264 CH. XXXVII.J FOEGEEY OF WEITINGS, ETO. [§ 471. face as set out, or be made in averment to appear, to the judi- cial understanding, to be within the statutory terras and of prima facie validity. "When extrinsic matter is for this reason required to be alleged, weave it into the other averments in the manner already directed.^ When not, the form may be, for the forgery, if so the terms of the statute are covered, — That A., etc., on, etc., at, etc., did falsely [and feloniously] make and forge \or, etc., employing the statutory expression] a writing on paper of the tenor following [here setting it out], with the intent to injure and de- fraud the said X., the said Y., and some person to the jurors unknown; against the peace, etc. If the pleader chooses to charge an uttering in a second count,^ which is the method in the greater number of the precedents, let him proceed,— And the jurors aforesaid on their oath aforesaid do further present,' that the said A did afterward, on the day and year aforesaid, at, etc., aforesaid, fraudulently [and feloniously] utter, publish, and put off as true \or, etc., employing the statutory words], [to one X.^], a certain other false, forged and counterfeit \or, etc., following the language of the statute] writing on paper, of the tenor following [here setting it out], he the said A. then and there well knowing the same to be false, forged and counterfeit, with in- tent to injure and defraud the said X., the said Y., the said Z., and other persons to the jurors unknown; against the peace, etc.^ § 471. Eeceipt, acquittance, etc. — Forforgingand uttering receipts, acquittances and other like writings, the indictment is readily drawn on such of the foregoing models as the pleader may select. Some places where precedents can be found are referred to in the note.* 1 Ante, § 459. Pike, 2 Moody, 70; Reg. v. Robson, 3 ''-Ante, § 463. Moody, 183, 9 Car. & P. 433; Reg. v. ^Ante, § 64. McConnell, 3 Moody, 398, 1 Car. & K. * As to which, see ante, § 460 and 371; Reg. v. Williams, 2 Den. C. C. 61, note. 64; Reg. v. Carter, 1 Cox, C. C. 170; * For other forms, for the forgery Rag. v. Lonsdale, 3 Cox, C. C. 333; and for the uttering, see Crim. Pro., Reg. v. Dixon, 3 Cox, C. C. 389; Rex II, § 473; Archb. Crim. PL & Ev. u Thomas, 7 Car. & P. 851; Langdale (10th ed.) 374; 3 Chit. Crim. Law, u P., 100 111. 363, 366; Com. u Quann, 1054, 1074; Rex v. Lovell, 1 Leach 8 Va. Cas. 89; S. v. Flye, 36 Me. 313, {4th ed.), 248; Rex v. Clinch, 1 Leach 314; S. v. Watson, 65 Mo. 115, 117; P. (4th ed.), 540; Rex v. Thomas, 3 v. Noakes, 5 Parker, C. C. 391; S. v. Leach (4th ed.), 877; Rex v. Rush- Lamb, 65 N. C. 419; Com. v. Kearns, worth, Russ. & Ry. 317 ; Rex v. Froud, 1 Va. Cas. 109 ; S.v. Baumon, 53 Iowa, Russ. & Ry. 389, 1 Brod. & B. 300; 68. Rex u. Bamlield, 1 Moody, 416: Rex <■ 3 Chit. Crim. Law, 1076, 1079; V. Donnelly, 1 Moody, 438; Reg. v. Archb. Crim. PL & Ev. (19th ed.) 365 §§ 472, 473.] SPECIFIC OFFENSES. [bOOK III. § 472. Indorsement — (Acceptance — Other indorsed mat- ter). — "Where the offense consists of forging something upon the back or other part of a genuine instrument, the indictment first recites such instrument, then charges the forgery of the added matter, and copies it. For example, — That A., etc., on, etc., at, etc., did, upon the back o£ a bill of exchange of the tenor following [here setting it out], falsely [and feloniously] malfe, forge and counterfeit [or, etc., employing the statutory expression] an in- dorsement thereof in the following words, " Mary M. McCarthy " [the name of the payee]; with the intent to injure and defraud the said, etc. [as at ante, gS 457, 470, etc.]; against the peace, etc. Or, for uttering, — That A., etc., on, etc., at, etc., having in his hands and possession a bill of exchange [or writing on paper] of the tenor following [here setting it out], on the bacJs of which bill of exchange [or writing] was and is a false, forged and counterfeit acceptance [or indorsement] in the following words [setting it out], did then and there, well knowing the said acceptance [or indorsement] to be false, forged and counterfeit, utter and publish the same [to Xi], as true, with intent to injure and defraud the said, etc. [as in the last form]; against the peace, etc.^ § 473. Erasing or detaching indorsement. — To erase or detach an indorsement which constitutes no part of the orig- inal instrument is not ordinarily deemed a forgery at the com- mon law, though it is an indictable misdemeanor.' For such 638; Eex u Ferrers, Trem. P. 0. 139; in explanation. And in various other Bex V. Lyon, 3 Leach (4th ed.), 597; cases explanatory allegations are Rex V. Hunter, 3 Leach (4th ed.) necessary, in order to show prima 634; Rex v. Thompson, 3 Leach (4th facie guilt, in this class of indict- ed.), 910; Reg. v. Pringle, 3 Moody, ments. 137, 9 Car. & P. 408; Reg. u'West, 1 ^Ante, § 460 and note, and other Den. C. C. 358, 3 Car. & K 496, 3 Cox, places. C. C. 437; Reg. v. Green, Jebb, 383; 2 For other forms, for the forgery S. V. Thornburg, 6 Ire. 79; S. v. Bibb, and for the uttering, see 8 Chit Grim. 68 Mo. 386; Henry u. S., 85 Ohio St. Law, 1046; Rex v. Burton, 4 Went 138; Pennsylvania V. Huffman, Addi- PI. 33; Reg. v. Roberts, 7 Cox, C. C. son, 140; Rice v. S., 1 Yerg. 433. In 433; Reg. v. Hawkes, 2 Moody, 60; this case of Rice v. S., it was held Rex v. Marshall, Russ. & Ry. 75; that the indictment for forging a re- Rex v. Chalmers, 1 Moody, 353: Reg. ceipt must aver an indebtedness, v. Winterbottom, 1 Den. C. C. 41, 3 But such, it is believed, is not the Car. & K 37, 1 Cox, C. C. 164; Rex general doctrine, either on principle v. Bontien, Russ. & Ry. 360; Reg. v. or on authority, in the absence of Ci'opper, 8 Moody, 18; Com. v. Cas- speoial statutory terms. And though ties, 9 Gray, 133; Poage v. S., 3 Ohio tliere are precedents with this aver- St. 329; S. v. Davis, 53 Iowa, 353: Com. ment. most do not have it Still the v. Spilman, 134 Mass. 337; S. v. Mar- language of a receipt may be so im- tin, 9 Humph; 55. perfect as to require this averment ^ Crim. Law, II, § 578. 366 CH. XXXVII.] FOKGEET OF WEITINGS, ETO. [§§ 474, 476. common-law misdemeanor, the following form, here some- what amended in immaterial parts, has been judicially sus- tained : — That A., etc., on, etc., at, etc., having in his possession a certain promis- sory note of the tenor following [here setting it out], on the back whereof was then and there indorsed the receipt of twenty dollars in part payment thereof, and the balance of said note and no more being then and there due and unpaid, did then and there wittingly, falsely and deceitfully alter the said promissory note, by then and there wittingly and deceitfully separat- ing said indorsement from said promissory note, with intent to defraud and deceive the said X. [the maker]; against the peace, etc.i § 474. Altering. — Though commonly it is practically best to charge an alteration as an original forgery,^ it is not always so. When, therefore, the pleader chooses, he first sets out the original writing, then states the alteration ; ' and sometimes, but not necessarily, adds a recital of the whole in its altered form. It is good to say, — That A., etc., on, etc., at, etc., having in possession a certain writing on paper [or a certain writing sealed, or a certain deed •*] of the tenor follow- ing [here set out the genuine original], did then and there fraudulently [and feloniously] alter * the same by removing the word "hundred " where it stands between the words " one " and " dollars," and substituting therefor the word " thousand," and by, etc. [proceeding to state all the other altera- tions; and, if the pleader chooses, or, if the tenor of the alteration has not been thus made absolutely certain, add], so that said writing thereby became and then and there was of the tenor following'' [here setting it out in its altered form], with the intent to injure and defraud, etc. [as in the foregoing forms]; against the peace, etc' § 475. Other forgeries.— The foregoing forms do not in terms cover every forgery and indictable uttering known to the law ; but they furnish the models after which the indict- 1 S. V. McLeran, 3 Aikens, 311. And and feloniously alter and change the see further of this case, Crim. Law, same to the tenor following." I, g 806. ' And see for precedents for the 2 Ante, § 458. forgery by altering, and for the 3 Crim. Pro., II, §§419,446. uttering, Crim. Pro., II, § 446; 3 * Ante, ^ mo. Chit. Crim. Law, 1047, 1051, 1054, 6 Crim. Pro., II,§g 436 and note, 446. 1079; Bex v. Weldon, 4 Went. PI. 6 Or, omitting all specifications of 23: Rex v. Graham, 4 Went. PL 35; the alterations, and going back in Eex v. Newman, Trem. P. C. 130; the form to the end of the setting Eex v. Post. Russ. & Ey. 101 ; Com. v. out of the genuine original, it is un- Mycall, 3 Mass. 136; Com. v. Hay- doubtedly good, though I never saw ward, 10 Mass. 34; Kahn v. S., 58 Ind. a precedent so, simply to say, — 168; S. v. Dourdon, 2 Dev. 443; Mount "Did then and there fraudulently v. Com., 1 Duv. 90; S. v. Bryant, 17 207 § m.] SPECIFIC OFFENSES. [book iir. ments for the rest may be constructed, and it would be of but slight service to the practitioner to extend the forms over the entire ground. The reader will see, in the note, helpful refer- ences to places where other forms may be found.' § 476. Stamps and seals Where the law has provided for stamps and seals to be used on particular occasions, the court judicially knows what are their devices, words and appearance; and any setting out of them by their tenor, were it possible, would be useless. Hence the indictment for counterfeiting them, or for uttering the counterfeits, is similar to that for the like offenses against the coin.^ It need only allege that the defendant, with the fraudulent intent, counterfeited, or, with knowledge, uttered the counterfeited stamp, seal, or whatever else the thing is, in resemblance of the one provided by law.' Or even less will suffice where the statutory limits of the of- N. H. 323; S. v. Martin, 9 Humph. 55; S. V. Davis, 53 Iowa, 253; Ream v. Com., 8 S. & R. 207; Harrington v. S., 54 Miss. 490; Com. v. Beamish, 81 Smith (Pa.), 389; Coleman v. Com., 25 Grat. 865; Respublioa v. Sweers, 1 Dall. 41, 42. 1 For forging and uttering entries in books of account, — Coleman v. Com., 25 Grat. 865; Com. v. Beamish, 31 Smith (Pa.), 389; Phelps v. P., 6 Hun, 428-432, 72 N. Y. 365, 7 Cox, C. C. Ap. 51. Public records,— Cole- man V. Com., supra; Rexu Newman, Trem. P. C. 130; Reg. v. Sharpe, 8 Car. & P. 436; Reg. v. Powner, 12 Cox, C. C. 235; Ream v. Cora., 3 S. & R 207; Harrington v. S., 54 Miss. 490; Brown v. P., 86 111. 339. Wills,— 3 Chit. Crim. Law, 1067, 10G9; 4 Went. PI. 35-41; Rex v. Murray, 19 Howell, St. Tr. 694 lustriiments under seal, — such as bonds, conveyances of lands, and the like, 3 Chit. Crim. Law, 1063, 10656, 1066; Rex v. Nun- docomar, 30 How. St. Tr. 933; Rex v. Dunnett, 3 Leach (4th ed.), 581; Rex V. Fauntleroy, 1 Moody, 52; Reg. v. Davis, 2 Moody, 177, 9 Car. & P. 437; S. V. McGardiner, 1 Ire. 37; S. v. Du- four, 63 Ind. 567; S. v. Fisher, 65 Mo. 437. Letter or warrant of attorney. 3 Chit. Crim. Law, 1065; 6 Went PI. 370; Rex v. Wordell, Trem. P. C. 132. Certificate of character, etc.,— 5 Cox, d C. Ap. 77; 10 Cox, C. C. Ap. 2; 3 Chit. Crim. Law, 1056: Reg. ■;;. To- shack, 1 Den. C. C. 493, 494, 4 Cox, C. C. 38; Reg. v. Mitchell, 2 Fost. & F. 44; S. V. Carr, 35 La. An. 407, 409; Com. V. Hinds, 101 Mass. 309. Trans- fer of stock,— 3 Chit. Crim. Law, 1053; Rex v. Gade, 3 Leach (4th ed.), 733. Order of magistrate — to dis- charge prisoner, Rex v. Harris, 1 Moody, 393. Next friend, — consent to be, of infant, Reg. v. Smythies, 4 Cox, C. C. 94. Forged letter, — pass- ing as true. Waterman v. P., 67 111. 91. County warrant,— S. v. Fenly, 18 Mo. 445, 448. Railway pass,— Reg. V. Bouit, 2 Car. & IC 604. "Prin- cipal and accessory. — Against wife as principal and husband as acces- sory before the fact. Rex v. Morris, 3 Leach (4th ed.), 1096, Russ. & Ry. 370. As second offense, — Vincent v. P., 5 Parker, C. C. 88, 15 Abb. Pr. 334; Can- tor V. P., 5 Parker, C. C. 217. ''Ante, g 332, etc. 3 Rex V. CoUicott, 2 Leach (4th ed.), 1048, Russ. & Ry. 312. 268 CH. XXXVII. j ^ rOEGEEY OF WETTINGS, ETC. [§§ 4:17, 478. fense are less broad. Thus, under the English statute making one a felon who "shall forge or counterfeit, or shall utter, knowing the same to be forged or counterfeited, the great seal of the United Kingdom,"' the two counts^ given in the Eng- lish books for the forging and the uttering are simply, — Forging. — That A., etc., on, etc., at, etc, the great seal of the United Kingdom falsely, deceitfully and feloniously did forge and counterfeit; against the peace, etc. Uttering (second count). — And the jurors aforesaid upon their oath afore- said do fui'ther present, that the said A., afterwards, to wit, on the day and year aforesaid, at, etc., aforesaid, falsely, deceitfully and feloniously did utter a certain other false, forged and counterfeited great seal as aforesaid, then and there well knowing the same to be false, forged and counter- feited; against the peace, etc.3 § 477. Lost, etc.— Where the forged writing is lost, de- stroyed, or in the hands of the defendant, there is no precise form of the allegation which alone will suffice, but it may be, for example, — - A certain writing on paper [or, etc.], which said writing is in the posses- sion of the said A. [or is lost, or is destroyed], by reason whereof the jurors are unable to set it out by its tenor, but it is and then and there was in substance as follows [stating its contents in a form to harmonize with the proofs at the trial, and as exactly and minutely as they will permit].* § 478. Implements of forgery. — The indictment for having in possession the implements of forgery follows the particular statute on which it is constructed, and otherwise conforms to that for thus having the tools for counterfeiting the coin. The statutory terms are so varying that perhaps no separate form here, in addition to the one already given,^ would be specially helpful.^ Yet one for taking a photographic " positive " of a foreign note, circulating in the foreign country as money, will be given. The English statute of 24 & 25 Yict., c. 98, § 19, 1 24* & 25 Vict., c. 98, § L 5 Ante, § 343. 2j4mie, §g 463, 470. «For having in possession plates 3 Archb. Crim. PI. & Ev. (19th ed.) for forging bank-bills, etc., see Rex v. 631. For forms for forging, and utter- Moses, 7 Car. & P. 433; Rex w. War ing forged stamps, see 3 Chit. Crim. shaner, 1 Moody, 466; Rex v. Han- Law, 1057-1063; Rex v. Richardson, 4 non, 3 Moody, 77, 9 Car. & P. 11. For Went. PI. 23; Rex v. Palmer, 1 Leach engraving on a plate parts of a for- (4th ed.). 352; Rex v. Collicott, supra, eign promissory note in the foreign * Crim. Pro., II, § 404 and notes; P. language, Reg. v. Faderman, 4 Cox, V. Badgley, 16 Wend. 53; Chidester v. C. C. 859. S., 35 Ohio St. 438; Wallace v. l'., 37 III 45. 369 § 4:79.] SPECIFIC OFrENSES. [book III. made it felony in one who should, " without lawful authority or excuse, etc., engrave or in any wise make upon any plate whatsoever, etc., any bill of exchange, promissory note, under- taking, or order for payment of money, etc., in whatsoever language the same may be expressed, etc., purporting to be the bill, note, undertaking, etc., of any foreign prince or state." And the following is one of the counts of an indictment which was sustained, — containing, no doubt, many needless words, but its abridgment here is not deemed desirable: — That in a certain foreign state, that is to say, the empire of Austria, for a long time previously to the commission of the felony and offense herein- after charged, and at the time when the said felony and offense was com- mitted, and since hitherto and up to the present time, divers undertakings for payment of money of the said foreign state, that is to say, the said em- pire of Austria, were made, issued, negotiated and circulated, and were lawfully current in the said foreign state, and that the said undertakings for payment of money were, and each of them respectively was, during all the time aforesaid, made, issued, negotiated and circulated, and were cur- rent as aforesaid, for payment of a certain amount of foreign money, that is to say, for payment of one piece of coin called a gulden of the currency of the said foreign state, to wit, the empire of Austria, the said piece of coin being lawfully current in the said foreign state, and being during all the time aforesaid of great value, to wit, each gulden being of the value of two shillings in English money, and each of the said undertakings for the payment of money being for the payment of one gulden. Whereupon A., etc., well knowing the premises, and whilst the said undertakings were so as aforesaid lawfully current in the said foreign state, on, etc., at, etc. wil- fully and feloniously, and without the authority of the said foreign state, and without lawful authority and without lawful excuse, did make upon a certain plate, to wit, a plate of glass, an undertaking for payment of money, to wit, for payment of one gulden, purporting to be one of the said under- takings for payment of money, of the foreign state aforesaid, to wit, the said empire of Austria, so made, issued, negotiated and circulated, and law- fully current in the said foreign state as aforesaid; against the peace, etc.' § 479. Attempts. — Titterings of forgeries,^ having them in possession with the intent to utter them,' and possessing and making the implements for forgery,* already considered, are at- tempts and acts in the nature of attempt. No separate forms are here required.' I Reg. V. Rinaldi, Leigh & C. 330, *Ante, § 478. 9 Cox, C. C. 391. And see Reg. v. ^See, for forms, S. v. Morton, 8 Faderman, supra. Wis. 353; S. v. Watson, 65 Mo. 115, ^Ante, §§ 460, 463, 466, and other 117; S. v. Welsh, 3 Hawks, 404; Jett places. V. Com., 18 Grat 933. ^Ante, % 467, 370 CH. XXXVII.] FOBGEEY OF WKITINGS, ETC. [§ 480. § 480. Practical suggestions. — This chapter opened with practical suggestions to the prosecuting officer, and they have been continued interspersed through the subsequent sections. Should the proposals for simplifying the indictment be adopted, possibly a few courts may give more than an attentive ear to objections interposed on behalf of defendants. At all events, whatever form the pleader employs, he should qualify himself to sustain it by arguments and authorities before the court. And there can be no question of the success, on the whole, of these reformatory efforts, if duly seconded by prosecuting offi- cers. It is the assurance of this which has induced the author not to incumber his pages with needlessly complicated and otherwise undesirable forms. Those who have occasiou for them can find them in the places referred to in the notes. For FORNICATION, see ante, § 147 et seq. FRAUDS, see Cheats at Common Law; False Pretenses; Foegery; Fraudulent Conveyances, etc. FRAUDULENT BANEaiUPTCY, see Bankruptcy, etc. 271 CHAPTER XXXYIII. FRAUDULENT CONVEYANCES, SALES AND C0NCEALMENTS.1 § 481. Under 13 Eliz., c. 5. — This English statute, famous iu civil jurisprudence and generally understood to be common law with us, after defining what civil effect shall be given to conveyances made to hinder or defeat creditors, proceeds, in section 3, to make it, among other things, an indictable misde- meanor in " all and every the parties to such feigned, etc., con- veyance, . . . and being privy and knowing of the same," to " wittingly and willingly put in ure, avow, maintain, and justify or defend the same " as being true " and upon good consideration." ^ These terms seem to imply that the party must perform some distinct act, or, at least, utter some words, subsequently to the transaction which is visited by the civil consequences defined in the preceding section, in order to incur the criminal liability. Indeed, they appear to make the crime consist in such act or words. But on this question, and on most others relating to the criminal part of this statute, we have no decisions. There is in Wentworth a form for the in- dictment, in substance, — That A., etc., B., etc., and C, etc., on, etc., at, etc., did wittingly and •willingly put in use,' maintain, and justify as true, a certain covinous and fraudulent grant and conveyance of goods and chattels, bearing date* the thirty-flrst day of May, in the year, etc., and made between the said A., by the name and description of, etc.,' of the one part, and the said B.. by the name and description of, etc., of the otlier part, to the end, purpose and 1 For matter relating to this title, * This is an objectionable form of see Crim. Law, I, g 573a. the averment; because, under it, the 2 Id., ut sup.; Cathcart v. Robinson, alleged time and the time in the 5 Pet. 264, 280; Gardner v. Cole, 21 written conveyance must exactly Iowa, 205; Robinson v. Holt, 39 N. H. correspond or the variance will be 557. fatal. It is better to say simply, ' '• Use " is the word in Wentworth, made on such a day, and then the perhaps by a misprint. But it is time laid will not be material. Crim. " ure " in the statute, and in the in- Pro., I, §§ 486, 488a. This form might diotment in Reg. v. Smith, infra. I be changed to read, " entered into in should employ the latter, but un- v»'riting on," etc. doubtedly either is good. ^Ante, § 94. 273 OH. XXXVm.] FEAUD0LENT CONVBYAJSTOES, ETC. [§■§ 482, 483. intent [to all of wliich the said A., B. and C. were then and there privy and knowing of the same 'J to delay, hinder and defraud one X., then being a creditor of the said A., of his just and lawful debt; against the peace, etc.^ § 482. Our similar statutes. — Some of our states have stat- utes similar in purpose; namely, making it punishable for a debtor fraudulently to put his property beyond the reach of creditors, or for another person to help him therein.' Their terms are not quite uniform ; but the gist of the offense is some form of secreting, so that it is held not to be within the New York statute for one to carry a watch in his pocket and refuse to surrender it to an attaching officer.* But the common method of secreting, aimed at by these statutes, is the convey- ing away or pledging of the property to defraud creditors. ISTow,— § 483. Indictment. — There must be an indebtedness, and the indictment must allege it. But the terms of the allegation may be general,' as in the precedent under the statute of Eliz- abeth.* Where the statutory words are " fraudulently mort- gage, pledge, sell, alienate or convey any of his real or personal estate amounting in value to the sum of one hundred dollars, . . . to prevent the attachment or seizure of the same upon mesne process or execution," ' it is believed to be good in aver- ment to say, — 1 This matter in brackets is not in Illinois. — Stow v. P., 25 111. 81 ; the precedent before me, but with- Mathes v. Dobschuetz, 73 111. 438. out it one of the clauses of the stat- Maine. — S. v. Chapman, 68 Me. 447. ute would seem not to be so dis- Massachusetts. — Stockwell v. Sillo- tinctly covered as it ought. 'way, 113 Mass. 384. 2 C Went. PI. 385. The only other Michigan.— P. v. Detroit Police precedent on this statute known to Justice, 41 Mich. 234 me is the indictment in nine counts New Hampshire. — S. v. Leslie, 16 in Peg. V. Smith, 6 Cox, C. C. 31. It N. H. 93; S. v. Robinson, 9 Fost. was held good. But it is needlessly (N. H.) 274; a v. Marsh, 36 N. H. 196; long. It differs from the form in the S. v. Hunkins, 43 N. H. 557. text chiefly by setting out the par- New York. — P. v. Morrison, 13 ticulars of the indebtedness of A. to Wend. 399; P. v. Underwood, 16 X., and describing more minutely Wend. 546; Blason v. Bruno, 33 Barb, the conveyance. Perhaps such aver- 530; Loomis v. P., 19 Hun, 601. ments are well by way of caution, ^ P. v. Morrison, 13 Wend. 399. but I doubt their necessity in strict * Loomis v. P., 19 Hun, 601; 9. v. law. Robinson, 9 Fost. (N. H.) 274. ' Concerning these statutes, their * Ante, § 481. interpretation, and the procedure ' S. v. Leslie, 16 N. H. 93. For the thereon, see, — similar New York statute see P. v. Underwood, 16 Wend. 546. 18 273 §§ 48'':, 485.] SPECIFIC OFFENSES. [bOOK III. That A., etc., on, etc., at, etc., being the owner of certain real estate there situate, consisting of a lot of land with a dwelling-house thereon, of the value of more than one hundred dollars, to wit, of the value of two thou- sand dollars, and being then and there indebted to X [in the sum of one thousand dollars '], did then and there fraudulently sell, alienate and convey the said real estate to T., with the intent thereby to prevent the attach- ment and seizure of the same on mesne process and on execution, for en- forcing the payment of said indebtedness; against the peace, eto.2 § 484. Selling, etc., property mortgaged, etc. — Different in purpose are statutes, prevailing in considerable numbers of our states, to punish the selling, removing, secreting, or the like, of real and personal property mortgaged or under a lien, or selling it without disclosing the facts. The terms of these provisions differ; they sufficiently appear, with various con- structions, in the cases cited in the note.' If, by the terms of the statute, the offense consists in selling the mortgaged prop- erty for the purpose of hindering, delaying or defrauding the mortgagee, a mortgagor does not commit it who, under the fairly induced belief that he has the consent of the mortgagee, makes the sale to pay the mortgage debt.* § 485. Indictment. — The indictment must cover the statu- tory language; as, for example, aver the mortgage or other lien to be " in writing," if so is the statute.* And it must cover the meaning of the statute; as, by alleging that the mortgage or other lien is subsisting, or remains unsatisfied.* Under a 1 1 should think this matter in Massachusetts. — Com. v. Brown, 15 brackets might be deemed necessary Gray, 189; Com. v. Wallace, 108 Mass. in a state where a levy could not be 13; Com. v. Williams, 127 Mass. 385; made on real property unless the Com. v. Harriman, 127 Mass. 387. judgment or execution amounted to Minnesota. — S. v. Ruhnke, 37 Minn, a specified sum. But in other circura- 309. stances I can see no occasion for it. Missouri. — S. v. Jones, 68 Mo. 197. Compare with the form ante, § 481. North Carolina. — S. v. Pickens, 79 2 For other forms, see S. v. Leslie, N. C. 653; S. v- Burns, 80 N. C. 376. supra; S. v. Robinson, supra; S. v. Texas.— S. v. Small, 31 Tex. 184; Hunkins, 43 N. H. 557 ; Loomis v. P. S. v. Devereaux, 41 Tex. 383; Robber- supra. son v. S., 3 Tex Ap. 503; Moye v. S., ^ Alabama.— J^ixon V. S., 55 Ala. 9 Tex. Ap. 88. 130; Glenn v. S., 60 Ala. 104; Atwell * Atwell v. S., 63 Ala. 61. And see V. S., 63 Ala. 61. Com. v. Harriman, 187 Mass. 287. Arkansas. — Cooper v. S., 37 Ark. * Moye v. 8., 9 Tex. Ap. 88. 413; Cooper v. S., 37 Ark. 431. 6 Satohell v. S., 1 Tex. Ap. 438; S. v. Iowa. — S. V. Julien, 48 Iowa, 445; Burns, 80 N. C. 376. See S. v. Gustaf- S. V. Gustafson, 50 Iowa, 194; S. v. son, 50 Iowa, 194 Stevenson, 52 Iowa, 701. 274 OH. XXXVIII.] TKAUDULENT CONVEYANCES, ETC. [§ 486. provisioa to punish one who, " with a fraudulent intent to place mortgaged personal property beyond the control of the mort- gagee, removes or conceals, etc., the same," ' the indictment may charge, — That A., etc., on, etc., at, etc., did mortgage to X., in due form of law, one horse, etc. [setting out the mortgaged property], and that afterward, on, etc. [the pleader will commonly elect to make this date subsequent to the other if the fact is so, though doubtless this is not necessary], at, etc., the said mortgage being in full force and the said X remaining the owner thereof, he the said A. did, to cheat and injure the said X., fraudulently remove and conceal the said mortgaged personal property, with the fraudu- lent intent to place the same beyond the control of the said X.; against the peace, etc.2 § 486. Conveying land without title. — A statute subject- ing to imprisonment one who " knowingly sells or conveys any land, or any interest therein, without having title to the same, either in law or equity, by descent, devise, written con- tract, or deed of conveyance, with intent to defraud," applies as well to lands lying without as within the state. The indict- ment may aver, — That A., etc., on, etc., at, etc., did, with intent to defraud X., knowingly Bell and convey to him, by deed, a certain tract of land, etc. [describing it], situate at, etc., he the said A. not then and there having, and knowing himself not then and there to have, title to the same in law, or equity, ^Mass. Gen. Stats., ch. 161, § 61. ment, to wit, a mortgage; against 2 Partly following the precedent the peace, etc." in Com. v. Wallace, 108 Mass. 13. And So is the indictment in Glenn v. S., see for other forms, Satchell v. S., 60 Ala. 104. And for other forms supra; Cooper v. S., 37 Ark. 413; see Nixon v. S., 55 Ala. 130; Atwell Cooper uS., 37 Ark. 431; S-uRuhnke, i;. S., 63 Ala. 61. The Iowa statute 37 Minn. 309; S. v. Dpvereaux, 41 differs from the others considered Tex. 883; S. v. Pickens, 79 N. C. 653. in this connection. It is: "If any For giving a deed without mention- mortgagor of personal property, ing incumbrance, Com. v. Brown, while his mortgage of it remains un- 15 Gray, 189; Com. u Williams, 137 satisfied, wilfully destroy, conceal, Mass. 385; 8.v. Jones, 68 Mo. 197. In sell, or in any manner dispose of the Alabama it satisfies the code to al- property covered by such mortgage, without the consent of the then " That, before the finding of this holder of such mortgage, he shall be indictment. A., etc., did remove, con- deemed guilty of larceny and pun- ceal, or sell a horse, the personal ished accordingly." Fora form under property, of, etc., for the purpose of it, see S. v. Gustafson, 50 Iowa, 194 hindering, delaying or defrauding And see S. v. Julien, 48 Iowa, 445. the said, etc., who had a claim to And consult the title Embezlement, said horse, under a written instru- ante, § 401 et seq. 275 § 487.] SPECIFIC OFFENSES. [bOOK III. by descent, devise, ■written contract, or deed of conveyance; against the peace, etc.i § 487. Twice selling land. — Under a statute to punish one who, "after once selling," etc., any land, "shall again know-, ingly and fraudulently sell, etc., the same tract or tracts of land, etc., to any other person or persons for a valuable con- sideration," the indictment may charge, — That A., etc., on, etc., at, etc., did bargain, sell and convey to M. three tracts of land, etc. [describing them]; whereupon he the said A. did after- ward, on, etc., at, etc., with the intent to cheat and defraud X, knowingly and fraudulently bargain, sell, and in form of law convey to the said X, for a valuable consideration, to wit, for two thousand dollars, paid by the said X. to the said A., the same tracts of land; against the peace, etc.^ iKerr v. S., 36 Ohio St. 614, 621. junction in these negative aver- '• Or," not " and," is the proper con- ments. Ante, § 124 and note. 2 People V. Gamett, 35 Cal. 470. For FR AUDTJLENT INSOLVENCy, see BAiraaiUPTOY and Insolvenot. FURIOUS DRIVING, see HOese-raoing, etc. GAME, see Fish and Game. 276 CHAPTEE XXXIX. GAMING.l § 488. Elsewhere. — In this volume, and in the other vol- umes of the series, the nuisance of keeping a gaming-house is treated of under a separate title from Gaming. Its treatment constitutes, in the present volume, a sub-title under " Nui- sance." § 4:89. Formiila for indictment. — The statutes are so di- verse as to render any formula for the indictment on them unavailing to the practitioner except in the way of general suggestion. Therefore only an incomplete outline will be at- tempted, so that the pleader's resort will be chiefly to the spe- cial forms further on. The allegations may be, — That A., etc. [anie,g§ 74-77], on, etc., at, etc. [ante, § 80], did unlawfully ^ play at a certain game of cards ' [or, etc., following the statutory terms] for money,* etc. [follow here also the statutory words], with X.* [or, did win, etc., or fraudulently win, etc., or lose, etc., following the statute; or, did bet, etc., on the hands and games, etc., following the statute; or, having under his control a certain building, etc., did unlawfully suffer and per- mit, etc., therein, etc., pursuing the statutory terms; or, etc., following what- ever other statutory provision is being proceeded upon, and expanding the allegation beyond the words when the rules of good pleading require^]; against the peace, etc. [ante, §§ 66-69].' 1 For the direct expositions of this ^ The name of the person played offense, with the pleading, practice with not universally held to be nec- andevidenoe, see Stat. Crimes, §S844r- essary. Stat. Crimes, § 894. 930. Incidental, Crim. Law, I, § 504; « Stat. Crimes, § 909. Crim. Pro., I, §§ 341, 374, 476, 639, note. Tor forms, see Archb. Crim. PI. 641, note; Stat Crimes, §S 55, 135, & Ev. (19th ed.) 989; 5 Cox, C. C. Ap. 231, 394, 298, 399, 936. And see the 47; 3 Chit. Crim. Law, 677-681; 4 title Gaming-house; in this volume Went. PI. 855; 6 id. 383, 391, 433; it is a sub-title under Nuisanck Fowler v. Alsop, Trem. P. C. 363; Rex 2 Here the offense is assumed to be, v. Clarke, Cowp. 35; Rex v. Darley, what it generally is, a misdemeanor. 4 East, 174; Reg. v. Bailey, 4 Cox, C. Stat. Crimes, § 880. If it is felony, C. 390; Reg. v. Moss, Dears. & B. 104, add "and feloniously." 7 Cox, C. C. 200; Morley v. Green- 3 As to naming the game, etc., see halgh, 3 B. & S. 374; [Fortenburg v. Stat. Crimes, § 897. S., 47 Ark. 188.] * Stat. Crimes, § 901. Alabama.— Covy v. S., 4 Port. 377 § 490.] SPECIFIC OFFENSES. [book in. §490. Playing for money. — A statute having made pun- ishable one who "shall play at any game or games at cards, etc., for money," and another statute having declared it to be sufficient for the indictment to charge the general name of the 186; Coggins v. S., 7 Port. 363; S. v. Whitworth. 8 Port 434; S. v. Atkyns, 1 Ala. 180; Clark v. S., 19 Ma. 553; Burdine v. S., 25 Ala. 60; Eodgers v. S., 26 Ala. 76; Harris v. S., 31 Ala. 363; Eslava u S., 44 Ala. 406, 408; Schuster v. S., 48 Ala. 199; Napier v. S., 50 Ala. 168; Eay v. S., 50 Ala. 172; Mclnnis v. S., 51 Ala. 23; Campbell V. S., 55 Ala. 89; Jacobson v. S., 55 Ala. 151; Mitchell v. S., 55 Ala. 160; Henderson v. S., 59 Ala. 89, 90; Sikes V. a, 67 Ala. 77. Arkansas. — Graham v. S., 1 Pike, 171, 173; Hany v. S., 4 Eng. 193; Drew V. S., 5 Eng. 82; Brown v. S., 5 Eng. 607; MoflFatt v.'S., 6 Eng. 169; Warren v. S., 18 Ark. 195, 198; Orr v. a, 18 Ark. 540; a v. Holland, 22 Ark. 343; a V. Anderson, 30 Ark. 131; Cohen v. S., 32 Ark. 336; a v. Jef- frey, 33 Ark. 136; a v. Hunn, 34 Ark. 331, 333; a v. Lindsay, 34 Ark. 373; Euper V. S., 35 Ark. 629; Brockway V. a, 36 Ark. 639. California, — P. v. Saviers, 14 CaL 29. Colorado. — Chase v. P., 3 CoL Ter. 509. Georgia. — Brown v. S., 40 Ga. 689. JHinois.— Gibbons v. P., 33 III. 442. Indiana. — Webster v. S., 8 Blackf. 400; Iseley v. S., 8 Blackf. 403; Mount V. a, 7 Ind. 654; a v. Hope, 15 Ind. 474; Hamilton v. S., 35 Ind. 426; a v. Thomas, 50 Ind. 293; Donniger v. a, 52 Ind. 326; Hanrahan v. S., 57 Ind. 527; a V. Ward, 57 Ind. 537; En- wright V. a, 58 Ind. 567 ; a v. New- ton, 59 Ind. 173; Ready v. 8.. 62 Ind. 1; Powell V. a, 62 Ind. 531; Howard V. a, 64 Ind. 516: Moore v. S., 65 Ind. 213; Manheim v. S., 66 Ind. 65; Padgett V. a, 68 Ind. 46; a v. Allen, 69 Ind. 124; a v. Pancake, 74 Ind. 15; Sumner v. S., 74 Ind. 52; Hamil- ton V. a, 75 Ind. 586. Iowa. — S. V. Nichols, 5 Iowa, 413; a V. Middleton, 11 Iowa, 246; S. v. Book, 41 Iowa, 550; S. v. Kaufman, 59 Iowa, 273. Kansas. — Rice v. 8., 3 Kan. 141, 156; a V. StUlwell, 16 Kan. 34 Kentucky. — Montee v. Com., 3 J. J. Mar. 133; Com. v. Perrigo, 3 Met. (Ky.) 5; Com. v. Monarch, 6 Bush, 298. Maryland. — Baker v. S.,2 Har. & J. 5; S. V. Price, 13 Gill & J. 260; Wheeler v. S., 42 Md. 563. Massachusetts. — Com. v. Bolkom, 3 Pick. 281; Com. v. Arnold, 4 Pick. 251; Com. v. Goding, 3 Met. 130; Com. V. Tilton, 8 Met 232; Com. v. Stowell, 9 Met 572; Com. v. Drew, 3 Cush. 379: Com. v. Pattee, 13 Cush. 501; Com. v. Colton. 8 Gray, 488; Com. V. Crawford, 9 Gray, 128; Com. V. Parker, 117 Mass. 113; Com. v. Gaming Implements, 119 Mass. 332, 336; Fitzgerald v. Com., 135 Mass. 366. Mississippi. — Johnston v. S., 7 Sm. & M. 58; Strawharn v. 8., 37 Miss. 432, 428. Missouri. — S. v. Ames, 1 Mo. 534; a V. Purdom, 3 Mo. 114; S. v. Mitch- ell, 6 Mo. 147; a v. Kyle, 10 Mo. 389; S. V. Ames, 10 Mo. 743; S. v. Kessler- ing, 12 Mo. 565; S. v. Nelson, 19 Mo. 393; a V. Fulton,- 19 Mo. 680; a v. Flack, 24 Mo. 378; S. v. Scaggs, 33 Mo. 92; S. V. Stogsdale, 67 Mo. 630. New Hampshire. — S. v. Leighton, 3 Fost (N. H.) 167; S. v. Stearns, 11 Fost (N. H.) 106; a v. Prescott, 33 N. H 213. New Mexico.— Ter. v. Copely, 1 N. M. 571. North Carolina.— S. v. Hix, 3 Dev. 116; a V. Ritchie, 3 Dev. & Bat 39; 278 CH. XXXIX.] GAMING, [§ 491. game without saying against whom the defendant played, it was adjudged adequate simply to aver, — That A., etc., on, etc., at, etc., did play at a game at cards for money; ' against the peace, etc.^ § 491. As to which — Another. — "Without the aid of the stat- ute simplifying the indictment, it is believed that a form which thus omits to state the nature of the game, with whom played, or in any other way to identify the particular instance, would be too meager; though the mere omission of the name of the person played with, where there was other adequate identify- ing matter, would not, before all courts, be fatal.' Under the statutory words " play at any game whatsoever, for any sum of money, or other property of any value," an indictment omitting the name of the person played with, but with other particularization, was sustained. Thus, — That A., etc., on, etc., at, etc., did unlawfully play < at a certain game S. V. Terry, 4 Dev. & Bat. 185; S. v. Langford, 3 Ire. 354. 07tio.— Davis v. &., 7 Ohio. 304; Davis V. S., 19 Ohio St. 370; Carper V. a, 37 Ohio St. 573; Davis v. S., 33 Ohio St. 34; Roberts v. S., 33 Ohio St. 171. Oregon. — S. v. Carr, 6 Oreg. 183; S. V. Gitt Lee, 6 Oreg. 435. Pennsylvania.-!— Com. v. Carson, 6 Phila. 881. Bhode Island. — S. v. Melville, 11 R. L 417. Tennessee. — Dean v. S., Mart. & Yerg. 137; Johnston v. S., Mart. & Yerg. 139; Anthony v. S., 4 Humph. 83; S. V. MoBride, 8 Humph. 66; John- son V. S., 4 Sneed, 614. Texas.— Bailey v. S., 3 Tex. 203; S. V. Ward, 9 Tex. 370; Royal v. *S.,9 Tex. 449; Barker v. S., 13 Tex. 373; S. V. Lopez, 18 Tex. 33; S. v. Blair, 41 Tex. 30, 31; S. v. Bullion, 42 Tex. 77; Reed v. S., 1 Tex. Ap. 1; Chiles v. 8., 1 Tex. A p. 37, 38; Sheppard v. S., 1 Tex. Ap. 304; Ben v. S., 9 Tex. Ap. 107, 108; Anderson v. S., 9 Tex. Ap. 177; Harris v. 8.. 9 Tex. A p. 308; O'Brien v. 8., 10 Tex. Ap. 544; Scrib- ner v. 8., 12 Tex. Ap. 173; Reeves v. 8., 13 Tex. Ap. 199; Wallace v: 8., 13 Tex. Ap. 479. Virginia. — Com. v. OfEener, 3 Va. Cas. 17; Roberts v. Com., 10 Leigh, 686; Day v. Com., 23 Grat. 915; Leath V. Com., 82 Grat. 873; Nuckolls v. Com., 33 Grat. 884. Wisconsin. — Gallagher v. S., 26 Wis. 433. Wyoming. — Fields v. Ter., 1 Wyom. Ter. 79. United States. — District of Colum- bia. U. S. V. Simms, 1 Cranoh, C. C. 353. 1 Money. — As to alleging the thing played for to be "money," see ante, §§ 348 and note, 350, notes, 395 and note; Stat. Crimes, §§ 874, 898, 899, 901. 2 Johnston v. 8., 7 Sm. & M. 58. And compare with form in Straw- hen V. S., 37 Miss. 433, 436; P. v. Sav- iers, 14 Cal. 39; [S. v. Taylor, 111 N. C. 680.] 3 Stat. Crimes, §§ 894-897, 932, 923, 925. * In the absence of any decision in the particular state, it will be safer to insert here "with X." Stat. Crimes, S§ 894, 933. 379 §§ 492-494.] SPECIFIC offenses. [book hi. called poker, for a large sum of money,' to ^vit, for the sum of two dolla,rs, by means of a certain gaming device, to wit, a pack of cards; against the peace, etc.''' §492. Playing for *^^ valuable thing." — Under a statute which "makes it a penal offense for any person to play for money or other valuable thing at any game with cards, dice, checks, or at billiards," if the things played for were checks practically but not legally redeemable,'the allegations may be, — That A., etc., on, etc., at, etc., did unlawfully play at a game of billiards [with, etc.^] for certain checks and promissory notes, payable and redeem- able, etc., the same being then and there valuable things, of the value of, etc. ; against the peace, etc.5 §493. In particular place — ("Public place" — *^ Store- house," etc.). — How the place should be described we saw elsewhere.^ The form may be, — That A., etc., on, etc., at, etc., did, etc. [setting out the ofifense as in the last three forms], in a certain highway there [or, in a certain storehouse there; or, in a certain outhouse there; or, in a storehouse there wherein then and there spirituous liquors were sold; or, in the public place and room in the city hall there wherein the mayor and aldermen habitually meet for the transaction of public business; or, etc., varying the allegation with the statute and the particular facts]; against the peace, etc' §494. Professional gambler — (Habitual gaming, etc.). — The statutes creating this offense ' are in varying terms. Under the provision that one who " shall, etc., or shall frequent any place where gambling is permitted, shall be deemed a profes- sional gambler," it is not necessary for the indictment to aver 1 See the note to the last section. bama, the code permits forms whicli 2 Roberts v. S., 32 Ohio St. 171. would be wholly inadequate under And for other forms on similar stat- the common-law rules. Thus, in this utes, see Rex v. Clarke, Cowp. 35; case of Burdine u. S., it was adjudged Roberts v. Com., 10 Leigh, 686; Royal good to say, — V. a, 9 Tex. 449; [S. v. Maupin, 71 "That A., etc., and B., etc., before Mo. Ap. 54; Turbeville v. S., 37 Tex. the. finding of this indictment, at, Grim. R. 145.] etc., played at a game with cards, or ' Stat. Crimes, 55§ 875, 900. dice, or at some device or substitute * See note to the last form. thereof, at a tavern, inn, storehouse 5 Gibbons v. P., 83 111. 442. for retailing spirituous liquors, or « Stat. Crimes, §§ 903-906. house or place where spirituous liq- ' For forms, see S. v. Ward, 9 Tex. uors were, at the time, retailed or 370; S. V. Lopez, 18 Tex. 33; Shep- given away, or at a public house, pard ■;;. S., 1 Tex. Ap. 304; Scribner highway, or at some other public V. S., 12 Tex. Ap. 173; Coggins v. S., place, or at an outhouse where people 7 Port. 363; S. ■;;. Atkyns, 1 Ala. 180; resorted; against the peace, etc." Burdine v. S., 35 Ala. 60. In Ala- sgtat. Crimes, g§ 853, 854, 879. 380 CH. XXXIX.] GAMING. [§§ 495, 496. the conclusion of law that the defendant became a professional gambler.^ It may charge, — That A., etc., on, etc. [as at ante, § 80, and, if the pleader chooses, with the continuando as at ante, % 83], at, etc., did [for the purpose of gaming with cards 2] unlawfully frequent a certain room occupied byX., in a build- ing called the M. House, in which room gambling was there [during all the time aforesaid, ante, § 84J permitted and carried on; against the peace, etc' § 495. Another — (Common gambler). — Under the provision that one " who shall be guilty of dealing faro, or banking for others to deal faro, or acting as lookout, game-keeper, or assist- ant for the game of faro, or any other banking game where money or property is dependent on the result, shall be taken and held to be a common gambler," it is good to allege, — That A., etc., on, etc., at, etc., did deal faro, a certain banking game where money and other property were then and there dependent on the result [whereby, and by force of the statute in such case made and provided, the said A. was then and there taken and held to be a common gambler ^J ; against the peace, etc.^ § 496. Fraudulent winning. — The elements of the indict- ment under the statute of Anne are stated elsewhere.* There are statutes in terms somewhat different ; as, for example, 8 & 9 Vict., c. 109, § 17, provides, among other things, that one who " shall, by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, . . . win from any other person, to himself or to any other or oth- ers, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretense, with intent to cheat or de- fraud such person of the same; and, being convicted thereof, shall be punished accordingly." There are precedents' for weaving into the indictment this false-pretense clause as the larceny clause is woven into the indictment for embezzlement.' 1 Crim. Pro., I, § 515; posf, § 496. form before me. That it is not neces- 2 These words are in the form be- sary, see ante, § 494, and note, fore me, but I doubt their necessity. ^ g. v. Melville, 11 R. I. 417. ' One would seem to be within the stat- * Stat. Crimes, § 885. And see fur- ute who should frequent the place as ther, for forms, ante, § 274; 6 Went. a mere looker-on. PL 391, 393; 3 Chit. Crim. Law, 678- 3 Howard v. S., 64 Ind. 516; S. v. 681; 5 Cox, C. C. Ap. 47. Thomas, 50 Ind. 393. For other forms, ' Archb. Crim. PI. & Ev. (19th ed. ) see Hamilton v. S., 35 Ind. 436; S. v. 989; Reg. v. Bailey, 4 Cox, C. C. 390. Allen, 69 Ind. 134. 8 Ante, §§ 401-403. * This matter in brackets is in the 381 §§ 497-499. SPECIFIC offenses. [book hi. Eut there is no just ground for requiring this, and forms with- out it have been sustained,^ and beyond reasonable question they are in principle good.^ The averments may be, — That A., etc., on, etc., at, etc., did, by fraud, unlawful device and ill prac tice in playing at and with cards, unlawfully win from one X., to a certain person whose name is to the jurors unknown, a certain sum of money [of the property of the said X.3], with intent to cheat him the said X of the same [to the great damage of the said X., to the evil example of all others in the like case offending *]; against the peace, etc.* § 497. Losing or winning. — Some of the statutes, excluding the element of fraud, make punishable, for example, one " who shall, by playing or betting at or upon any game or wager whatever, either lose or win any article of value." And it is good in averment to say, — That A., etc., on, etc., at, etc., did unlawfully win [or lose] of [or to] one X a certain hat of the value of three dollars, by then and there unlawfully betting and wagering the same against another hat upon a game of tenpins then and there had and played between the said A. and the said X. ; against the peace, etc." § 498. Same at one sitting, etc. — sufficiently explained else- where.'' § 499. Keeping gaming device. — There are statutes, in vari- ous terms, to punish this sort of offense. The indictment need only cover the words and meaning of the particular enactment; ' as, for example, under the phrase " shall be the keeper of any gaming apparatus for the purpose of winning or gaining any article of value," the allegations may be, — That A., etc., on, etc., at, etc., did unlawfully [and feloniously] keep a cer- tain gaming apparatus, commonly called a wheel of fortune, then and there to play for, win and gain money and other articles of value, by then and there playing a certain game commonly called a game of fortune; against the peace, etc' 1 Reg. V. Moss, Dears. & B. 104, 7 other forms, see the places already Cox, C. C. 200. referred to in this section. Massa- ^Ante, § 494; Crim. Pro., II, § 318, chusetts statute and form. Com. v. and the places there referred to. Parker, 117 Mass. 113; Fitzgerald v. 3 Some may deem these words in Com., 135 Mass. 266. brackets to be necessary. The indict- "Mount v. S., 7 Ind. 654; Webster ment in Eeg. v. Moss, supra, was ob- v. S., 8 Black f 400. jected to after verdict for not con- 'Stat. Crimes, § 887; and, for other taining them, but the court over- forms for this, see 4 Went. PI. 855, 6 ruled the objection. id. 383, 3 Chit. Crim. Law, 679, 680. i Not necessary. Ante, § 48. « Stat. Crimes, § 890. 6 Reg. V. Moss, supra. And for 9S. v. Thomas, 50 Ind. 293. For 283 OH. XXXIX.] GAMING. [§§ 500-503. § 600. Another. — Or the allegation, if so it covers the stat- utory words, may be, — That, etc. [as above], unlawfully did permit a certain gambling device called a pack of cards, being a gambling device adapted, used and designed for playing games of chance for money and other property, etc., against the peace, etc.' § 501 . Another. — Or, under the statutory expression " keep- ing any E O table, or any other kind of gaming table (billiard tables excepted) at which the game of faro, equality, or any other game of chance shall be played for money," the aver- ments, by implication negativing the exception of the statute, will suffice, — That A-, etc. [as above], unlawfully did keep a certain gaming table ■ called a faro table, at which gaming table so unlawfully kept the game of faro was then and there unlawfully played for money; against the peace, etc.2 § 503. Another. — Or, under a statute differently expressed, — That A., etc. [as above], unlawfully did keep and exhibit gaming tables called A B C or E O tables, faro bank, wheel of fortune, keno table, and tables of the like kind being under denominations to the jurors unknown, the games played on said tables being then and there played with cards; against the peace, etc' § 503. Permitting gaming. — This form of the offense rests on variously worded statutes ; * as, for example, making it a misdemeanor for one to "permit or suffer any person, in any house, shop, or other place under his control or care, to play at cards, faro, roulette, equality, or other game, for money or other other forms, see places referred to J. J. Mar. 133; S. v. Hope, 15 Ind. 474; post, § 502, note; [Kolshorn v. S., 97 S. v. Ames, 10 Mo. 743; S. v. Kessler- Ga. 343.] ing, 12 Mo. 565; S. v. Nelson, 19 Mo. IS. V. Scaggs, 38 Mo. 92. For other 893; S. v. Fulton, 19 Mo. 680; Davis forms, see places referred to post, v. S., 19 Ohio St. 270; Harris v. S., 9 § 502, note. Tex. Ap. 308; Davis v. S., 33 Ohio St. 2S. V. Price, 13 Gill & J. 360. For 24; Reeves v. S., 13 Tex. Ap. 199; other forms, see places referred to Gallagher v. S., 36 Wis. 423; S. v. post, § 502, note. Whitworth, 8 Port. 484; Com. v. Til- 3 Leath v. Com., 33 Grat. 873. And, ton, 8 Met. 333; [Waddell u Com,, 84 for other forms similar to these four, Ky. 276; Bibb v. S., 83 Ala. 84.] see BakeruS.,2 Har. & J.5; Sumner « Stat. Crimes, §§889-892, 895; [Klee- V. S., 74 Ind. 53; S. v. Stogsdale, 67 spies v. S., 106 Ind. 383; Ward v. P., Mo. 630; Ter. v. Copely, 1 N. M. 571; 23 111. Ap. 570; Foster v. S., 1 Wash. S. V. Newton, 59 Ind. 173; Fowler v. 411; P. v. Weithoflf, 100 Mich. 393; Alsop, Trem. P. C. 363; Com. v. Mon- Jones v. Ter., 5 Okla. 536.] arch, 6 Bush, 398 ; Montee v. Com., 3 383 §§ 504, 505.] SPECIFIC OFFENSES. [bOOK III. thing." Upon these statutory terms the indictment may al- lege,— That A., etc., on, etc., at, etc., did, in a certain house [or shop, or tent, etc.], there and then under his control and care, permit and suffer X., Y., Z., etc. [or, divers persons to the jurors unknown, or, X, Y., and divers other persons to the jurors unknown] to play [proceeding to state the facts of the particular case in the statutory language; as] at cards, dice, dominoes and other games for money, cigars, beer and other things ^ [or, under a statute diflCerently worded, X. to keep and exhibit a certain gaming bank, com- monly called a chuck-luck bank, for the purpose of gaming and obtaining bets thereon; - or, a certain gambling device, commonly called pico, adapted, devised and designed for playing a game of chance at which money and other property may be won and lost;' or, a certain gambling device com- monly called cards, adapted, devised and designed for the purpose of play- ing at games of chance for money and other property, and did then and there knowingly, wilfully and unlawfully suffer games of chance to be played at and upon said gambling device for money and other property, upon which said games money was then and there bet, won and lost *] ; against the peace, etc.* §504. Minors to play. — The indictment for permitting minors to play at games on one's premises or appliances will follow these forms, adding the averment of their minority.* § 505. Minors to congregate. — Under a provision to punish " any person, owning or having the care, management or con- trol of any billiard table or tables, bagatelle table or pigeon- hole table kept in any saloon, hotel or other public place, who IS. V. Kaufman, 59 Iowa, 273. And 55 Ala. 89; Covy v. S., 4 Port 186. for other forms see S. v. Book, 41 Massachusetts. — Under some Massar Iowa, 550; S. v. Middleton, 11 Iowa, chusetts statutes, differing more or 246. less from those on which the fore- ^Eeed v. S., 1 Tex. Ap. 1; S. u Bui- going forms are constructed, prece- lion, 42 Tex. 77; O'Brien u S., 10 Tex. dents may be found in the follow- Ap. 544; Wallace v. S., 12 Tex. Ap. ing cases: Com. v. Bolkom, 3 Pick. 479. 281 ; Com. v. Arnold, 4 Pick. 251 ; Com. ' Euper V. S., 85 Ark. 629; Brockway v. Coding, 3 Met. 130; Com v. Stowell, r. S., 36 Ark. 629. 9 Met. 572; Com v. Drew, 8 Cush. 279; ■* a V. Mitchell, 6 Mo. 147; S. v. Ful- Com. v. Pattee, 12 Cush. 501; Com. v. ton, 19 Mo. 680. Colton, 8 Gray, 488; Com. v. Craw- 5 For other forms, see Rice v. S., 3 ford, 9 Gray, 128. Kan. 141, 156; Brown v. S., 40 Ga. ^ And, for more speciflo directions, 689; U. S. V. Simms, 1 Cranch, C. C. see Stat. Crimes, §889. For forms, 252; Day v. Com., 23 Grat. 915; Davis see Powell v. S., 62 Ind. 531; Moore v. V. S., 7 Ohio, 204; Com. v. Perrigo, 3 S., 65 Ind. 313; Ready v. S., 62 Ind. 1; Met. (Ky.) 5; Mclnnis v. S., 51 Ala. S. v. Ward, 57 Ind. 537; Hanrahan v. 23; S. V. Pancake, 74 Ind. 15; Hamil- S., 57 Ind. 527; Donniger u. S., 62 Ind. ton V. S,, 75 Ind. 586; Campbell v. S., 326; Sikes v. S., 67 Ala. 77. 284 CH. XXXIX.] GAMING. [§ 506. shall suffer or permit minors to congregate at, in and about such place where such billiard table or tables, bagatelle table or pigeon-hole table may be kept," the allegations may be, — That A., etc., on, etc. [adding the continuando as at ante, § 83, or not, as the pleader chooses i], at, etc., having the care, management and control of certain billiard tables then and there kept in a public billiard hall, did then and there unlawfully suffer and permit X, Y., Z., etc., persons who then and there were severally minors under the age of twenty-one years, to then and there unlawfully congregate at, in and about said public billiard hall, wherein said billiard tables were so kept; against the peace, eto.^ § 506. Betting on games, etc' — Under a statute which, after forbidding people to " set up, keep or exhibit any gaming- table or gambling device, commonly called A B C, E O, roulette, rouge et noir or any faro-bank," etc., makes it a mis- demeanor for any person to bet " on any of the games " thus prohibited, the allegations may be, — That A., etc., on, etc., at, etc., did unlawfully bet [with X.*] one dollar in money, and other things then and there treated as moneys [or ten checks of the representative value of five dollars, or one hat of the value * of five dollars], upon a certain gambling device then and there exhibited, com- monly called a faro-bank [or, under a statute differently worded, upon a certain game of cards, etc.,' then and there being played between M. and N.8]; against the peace, etc.* ^Ante, §81. v. S., 8 Blackf. 403; S. v. Nichols, 5 21fanheim v. S., 66 Ind. 65; [Kiley Iowa, 413; S. v. Ames, 1 Mo. 534; S. v. u S., 120 Ind. 65.] Kyle, 10 Mo. 389; Johnston v. S., 3 And compare with ante, §§ 395- Mart. & Yerg. 129; Anthony v. 8., 4 398. For explanations, see, Stat. Humph. 83; S. v. McBride, 8 Humph. Crimes, g§ 918-936. 66 : Johnson v. S., 4 Sneed, 614; Bailey < Required in only a part of the v. S., 3 Tex. 303; Barker v. S., 13 Tex. states. Stat. Crimes, ^933. 273; Chiles v. 8., 1 Tex. Ap. 37, 38; s Ante, %% 348 and note, 395 and note. Ben u S., 9 Tex. Ap. 107, 108 ; Ander- 6 As to the necessity of alleging son v. S., 9 Tex. Ap. 177; Com. v. value, see ante, § 395 and note. Offener, 2 Va. Cas. 17. Alabama. — ' Stat. Crimes, § 936. The Alabama statutes permit forms 8 Not necessary in all oircum- which do not satisfy the common- stances, or in all the states, to name law rules. They may be seen in the players. Stat. Crimes, § 894. Eodgers ?;. S., 26 Ala. 76; Eslavaw. S., 9 For various forms under the dif- 44 Ala. 406, 408; Schuster v. S., 48 faring statutes, see Warren v. S., 18 Ala. 199; Napier v. S., 50 Ala. 168; Ark. 195; S. v. Holland, 33 Ark. 343; Ray v. S., 50 Ala. 173; Jacobson v. 8., Drew u S., 5 Eng. 83; Cohen u S., 33 55 Ala. 151; Mitchell u S., 55 Ala. 160; Ark. 326; S. v. Hunn, 34 Ark. 331, 333; Talbert v. 8., 87 Ala. 27; S. «;. Trot, 36 Orr V. 8., 18 Ark. 540; Moffatt v. S., 6 Mo. Ap. 39; Com. v. Swain, 160 Mass. Eng. 169; Hany v. 8., 4 Eng. 193; 354; Thompson v. S., 99 Ala. 173. Graham v. 8., 1 Pike, 171, 173; Iseley 285 § 507.] SPECIFIC OFFENSES. [book III. § 507. Other forms — *will be required in practice, but none which cannot readily be constructed from the foregoing models.^ ^Unlicensed. — For keeping a bowl- ing alley, without license, contrary to a city ordinance, S. u Stearns, 11 Fost. (N. H.) 106. Dealing the game. P. V. Saviers, 14 Cal. 29; Brown v. S., 40 Ga. 689. On Sunday.— Under the title Lord's Day. Assisting in cock- flgliting. — Morley v. Greenhalgh, 3 B. & S. 374 Assanlt — on account of money won at gaining, Eex v. Darley, 4 East, 174 Proceedings for forfeiture — of gaming implements, Com. V. Gaming Implements, 119 Mass. 382. For being present where gaming instruments were found, see Com. V. Smith, 166 Mass. 370. For GAMING-HOUSE, see Nuisance. GRAND LARCENY, see Larceny. GRAVEYARD, see Sepulture. HARBORING, see ante, §§ 114 118, 123. 286 CHAPTER XL. HAWKERS AND PEDDLERS.I § 508. Diversities and the consequence. — The statutes pro- hibiting unlicensed hawking and peddling, and the proceedings upon them, are in our various states so diverse as to render hopeless any attempt to aid the practitioner by general forms. All that can be profitably done under this head is embodied in the explanations in " Statutory Crimes." § 509. Forms — may be found at the places referred to in the note.* § 610. Practical method. — One having occasion to proceed on a statute of this sort will do best to lay it before him, and with it any forms which the reports of his own state contain, as cited in the note to the last section ; then let him carefully read the chapter entitled " Hawkers and Peddlers " in " Statu- tory Crimes." If thereupon he follows the directions given in an early chapter of this volume,' he will encounter no diflficul- ties. 1 For the direct expositions of the Arkansas. — S. v. MoGinnis, 37 Ark. offense of unlawful hawking and 363. peddling, with the pleading, prao- Indiana. — Alcott v. S., 8 Blaokf. 6. tice and evidence, see Stat. Crimes, Iowa. — S. v. Doe, 50 Iowa, 541. §g 1071-1088. Incidental, Id., § 210. Massachusetts.— Com. v. Ober, 13 2 Burn, Just, Hawkers and Fed- Cush. 493; Com. v. Bruckheimer, 14 dlers; Rex v. Little, 1 Bur. 609; Rex Gray, 39. V. Selway, 3 Chit. 523; [S. v. Mont- Smith Carolina.— B. v. Powell, 10 gomery, 93 Me. 433; S. v. Bevins, 70 Rich. 373. Vt. 574; U. S. v. Cook, 17 Wall. 168; Tennessee.— B. v. Moore, Meigs, 476; Hall V. S., 39 Pla. 637; South Bend v. S. v. Sprinkle, 7 Humph. 36. Martin, 142 Ind. 30; Emert v. Missouri, Wisconsin. — Morrill v. S., 38 Wis. 106 U. S. 396.] 438. ^Zabama.— Hirschf elder v. S., 18 s^wfe, §§ 9-86. Ala. 113; Sterne v. S., 30 Ala. 43; Sey- mour V. S., 51 Ala. 53, 287 CHAPTER XLI. HEALTH REGULATIONS.1 § 511. Elsewhere. — Most of what might properly be placed under this head is considered under other titles ; as, " Noxious and Adulterated Food," "Nuisance," and the like. § 512. Board of health order. — We have the form of an indictment for disobeying the order of a board of health to remove a nuisance detrimental to the public health. But it need not be transferred to these pages; for it will seldom be wanted, and it can be readily consulted in its original plaee.^ § 513. Breach of quarantine. — An English precedent, which the American practitioner can readily adapt to the particular facts and law of his case, is, — That on, etc., an order was made by the king in council whereby it was ordered that, if any pilot or other person should go on board of any ship or vessel obliged to perform quarantine, such pilot or other person should per- form quarantine in like manner as any person coming in such ship or vessel should be obliged to perform the same; that the said order was published, etc., and has ever since been in force; that, after such making and publish- ing of said order. A., etc., on, etc., at, etc., well knowing the premises [but having no regard to the laws and statutes of this realm ^J. [with force and arms *] went on board a certain ship called the Stephen, which was then obliged to perform quarantine, in order to conduct the same into the port of Bristol, and did not perform quarantine in like manner as any per- son coming in the said ship was obliged to perform the same, but did [with force and arms], on, etc., at, etc., unlawfully quit the said ship by going on board a certain other vessel, in a certain place within his majesty's domin- ions before the aforesaid ship Stephen had fully performed and been dis- charged from such quarantine; he the said A. not being in any manner or in any case, or by any license, directed or permitted by any order made by his majesty in council so to do; against the peace, etc' § 514. Not vaccinating.^- There are statutes in England, and generally in our states, making it penal for parents and others having the care of children to neglect or refuse to have them vaccinated. We appear to have no American precedents 1 Crim. Law, I, §§ 489-494 * Unnecessary. Ante, % 43. 2 Reed v. P., 1 Parker, C. C. 481. ^2 Chit. Crim. Law, 551; Eex v. 3 Not necessary. Ante, § 45. Harris, 4 T. R 203, 3 Leach (4th ed.), 288 CH. XLI.J HEALTH SEGULATIONS. [§ 514. for the indictment or complaint. By construction of the Eng- lish enactments, a person who has been once convicted and has paid his fine is not liable to a second prosecution in respect of the same child. The allegations, under complicated provisions which it is not necessary here to recite, may be, — That A., etc., on, fete, at, etc., being then and there the father of a child called X., born after, etc., to wit, on, etc., unlawfully did not, within three calendar months after the birth of the said child, take or i cause to be taken the said child, the same not having been previously vaccinated by some duly qualified medical practitioner, to one of the medical oflScers duly appointed in that behalf in M. aforesaid, for the purpose of being vacci- nated, according to the provisions of the statute in such case made and or- dained, although one O., the late registrar of births in said M., did, on the registration of the birth of tEe said child, to wit, on, etc., give due notice in writing to the said A., in manner and form directed by the said statute; against the peace, etc.* 649. As to the Mississippi statute, tion is negative. .4n hands, the said female bastard child in a certain linen cloth of the value of twopence, feloniously, wilfully and of her malice aforethought did put, place, fold and wrap up, by means of which said putting, placing, folding and wrapping up of the said female 395 § 520.] SPECiriC OFFENSES. [book III. A. did then and there feloniously and of his deliberately premeditated (or, etc., as above) malice aforethought inflict on and create in said X cer- tain mortal injuries and a mortal sickness a further description whereof is to the jurors unknown •] ; of which said mortal wound [or mortal contusion, bruise, fracture and wound, or mortal pressure, choking and strangling, or mortal injuries and sickness to the jurors unknown] the said X. then and there [instantly 2] died [or thence continually languished until, on, etc., he there died ^j. And so the said A. did, in manner and form aforesaid, feloni- ously and of his deliberately premeditated [or, etc., as above] malice aforethought, kill and murder the said X; against the peace, etc. [ante, §§ 66-69J.4 bastard child, in the said linen cloth, by her the said A. as aforesaid, the said female bastard child was then and there choked, suffocated and smothered; of which," etc. iCom. V. Webster, 5 Cush. 295; S. V. Wilhams, Jones (N. C), 446; Ed- monds V. S., 34 Ark. 720. 2 Common, but plainly not neces- sary, and it would seem to be better omitted. Crim. Pro., II, § 533. It is not in all the precedents; for exam- ple, not in Com. v. Webster, supra. 2 Or, what is more common, but less neat and brief, " of which mor- tal wound, etc., the said X.," etc., as in the form in Crim. Pro., II, § 532 or 541. * For precedents see Crim. Pro., II, §§ 502, 541, 564; 3 Chit. Crim. Law, 750-784; 4 Went. PL 45-50; 2 Cox, C. C. Ap. 4; 3 id. Ap. 57, 75; Rex v. Green, Trem. P. C. 6, 7 How. St. Tr. 159; Bex v. Thurston, Trem. P. C. 7; Eex V. Biggleston, Trem. P. C. 10; Rex V. Knowles, Trem. P. C. 11; Rex V. Morley, Trem. P. C. 280; Eex v. Doughty, Trem. P. C. 285; Rex v. Sanquire, 3 How. St. Tr. 743; Rex V. Weston, 2 How. St. Tr. 911; Rex V. Atkms, 7 How. St. Tr. 231; Rex v. Coningsmark, 9 How. St. Tr. 1, 3; Rex V. Harrison, 12 How. St. Tr. 834; Rex V. Mohun, 12 How.- St. Tr. 950, 956; Rex V. Knowles, 12 How. St. Tr. 1167; Rex V. Cowper, 13 How. St. Tr. 1106; Eex V. Kidd, 14 How. St. Tr. 123, 130; Rex v. Reason, 16 How. St. Tr. 1; Rex V. Oneby, 17 How. St. Tr. 30: Rex V. Goodere, 17 How. St. Tr. 1003; Rex V. White, 17 How. St. Tr. 1079; Rex V. Annesley, 17 How. St. Tr. 1094; Rex V. Chetwynd, 18 How. St. Tr. 290; Rex v. Jackson, 18 How. St. Tr. 1070, 1074; Rex v. Blandy, 18 How. St. Tr. 1118: Rexu. Jeflferys, 18 How. St. Tr. 1193; Rex v. Barbot, 18 How. St. Tr. 1230; Rex v. Stevenson, 19 How. St. Tr. 846; Rex v. Ferrers, 19 How. St. Tr. 886, 891; Rex v. Byron, 19 How. St. Tr. 1177, 1180; Rex v. Kinch, 28 How. St. Tr. 619; Reg. v. Saunders, 2 Plow. 473; Parker's Case, 2 Dy. 186a; Yong's Case, 4 Co. 40a; Rex V. Heydon, 4 Co. 41a; Vaux's Case, 4 Co. 44a; Long's Case, 5 Co. 120a; Mackalley's Case, 9 Co. 616; Rex V. Clark, 1 Brod. & B. 473; Reg. V. Ingham, 5 B. & S. 257; Reg. c. Eichards, 2 Q. B. D. 311, 13 Cox, C. C. 611; Rex v. Taylor, 1 Leach (4th ed.), 360; Eex v. Coombes, 1 Leach (4th ed.), 388; Rex v. Eadbourne, 1 Leach (4th ed.), 457; Eexu. Gordon, 1 Leach (4th ed.), 515; Eex v. Hindmarsh, 2 Leach (4th ed.), 569; Eex v. Depardo, Euss. & Ey. 134; Eex v. Dyson, Euss. & Ry. 523; Rex v. Tye, Russ. & Ry. 345; Rex v. Dale, 1 Moody, 5; Rex v. Mosley, 1 Moody, 98, 1 Lewin, 189; Reg. V. Michael, 2 Moody, 120, 9 Car. & P. 356; Reg. v. Sandys, 2 Moody, 237, Car. & M. 345; Reg. v. O'Brian, 1 Den. C. C. 9, 2 Car. & K. 115, 1 Cox, C. C. 126; Reg. v. Warman, 1 Den. C. C. 183, 2 Car. & K. 195; Reg. v. Stokes, 1 Den. C. C. 307, 2 Car. & K. 536, 2 Cox, C. C. 498; Reg. v. Waters, 296 CH. XLII.] HOMICIDE SUBSTANTIVE. [§ 521. § 521. Other like forms. — This series of forms wiHiiot only satisfy the wants of the pleader in the great majority of his 1 Den. C. C. 356, 3 Car. & K. 864, 3 Cox, C. C. 800; Eeg. v. Manning, 1 Den. C. C. 467, 480; Reg. v. Bird, 3 Den. C. C. 94, 224, 5 Cox, C. C. 1; Rex u Ridley, 3 Camp. 650; Rexu Webb, 1 Moody & R. 405; Reg. v. Spilling, 2 Moody & R. 107; Rex v. Huggina, 8 Car. & P. 414; Rex v. Long, 4 Car. For forms, see O'Neill v. Reg., 6 Cox, C. 0. 495, 496; Whelan v. Reg., supra; P. v. Murphy, 89 Cal. 52; P. v. Alviso, 55 Cal. 230; Sneed v. P., 38 Mich. 248; Necomb v. S., 37 Miss. 383. 314 CH. XLII.] HOMICIDE SUBSTANTIVE. [§§ 543-646. § 543. other short forms. — The form thus given, contain- ing nothing to identify or individualize the transaction except the name of the person killed, runs very close to what is inad- missible either in natural justice or under our constitutions, — too close to be commendable. Hence, some of our states that have adopted short forms have not gone so far. And in some, states, where the English words have been enacted, pleaders have in practice been considerate, and introduced identifying matter not in terms required. Thus, — That A., etc., on, etc., at, etc., in and upon the body of one X feloniously, wilfully and of his malice aforethought did make an assault, and liim the said X. then and there feloniously, wilfully and of his malice aforethought did kill and murder; against the peace, etc.i Or, under a different statute, — That before the finding of this indictment. A., etc., unlawfully and with malice aforethought killed X. by shooting hira with a pistol [or, etc., men- tioning, in the like short way, whatever other method of killing was re- sorted to]; against the peace, etc.^ § 544. Other like forms, — good in the particular states, are given in the reports.' § 545. Less radical modifications — than the foregoing, not allowable under the common-law rules, are open to the pleader, should he prefer them, under the statutes of a small number of our states. They have few, if any, practical advantages over the common-law forms. It is needless to pursue the ques- tion further here; * except as to — §546. Murder of first degree. — In another connection* it is explained how, by considerable numbers of our courts, not 1 Brandt v. Com., 13 Norris (Pa.), v. S., 24 Ala. 672, 688; Ezell v. S., 54 290; Turner v. Com., 5 Norris (Pa.), Ala. 165, 166; Young v. 8., 58 Ala. 54; Campbell v. Com., 3 Norris (Pa.), 379; [Dennis v. S., 103 Ind. 142; S. v. 187. I have omitted from this form, McGuffin, 36 Kan. 315.] as it stands in the reports, some of ^ Kansas, S. v. Bowen, 16 Kan. 475, the hoary redundancies. It is mar- 476; Tennessee, Womack v. S., 7 velous how, even in spite of legisla- Coldw. 508, 510; Texas, Dwyer v. 8., tion, pleaders will stick to what is 12 Tex. Ap. 535, 539. senseless; such matter is vastly * Crim. Pro., II, § 539. For forms, harder to get rid of in actual prac- etc., see White v. Com., 9 Bush, 178; tice "than the sensible and useful. In Haney v. 8., 34 Ark. 263; Dixon v. 8. V. Smith, 67 Me. 328, this form, S., 29 Ark. 165, 167; S. v. Moran, 7 which was deemed good, had only Iowa, 236. the " force and arms " superfluity. * Crim. Pro., II, §§ 561-589. 2 Beasley v. 8., 50 Ala. 149; Noles 315 § 546.] SPECIFIC OFFEXSES. [book III. all of them, various statutes have been interpreted as admit- ting a conviction of murder in the first degree on an indict- ment which sets out the elements of murder in the second degree only, and how such a statute so interpreted violates guaranties in the constitutions of all our states. There is not in the pages of our many thousand law books, another so start- ling illustration of the effects of the excellent rule of stare de- cisis when, after a judicial blunder, the courts shut their eyes and refuse to look however importuned, and follow it blind.' 1 The correct forms for the indict- ment are given in the last sub-title. Looking now only at the ordinary case: while there was no distinction between murder and manslaughter, the killing was alleged to have been done by the defendant "feloniously; " when this felony was divided into the two degrees of murder and man- slaughter, murder was by the com- mon-la.v rules of the indictment re- quired to be charged by incorporate ing into the allegations its distin- guishing element, namely, as done "feloniously and of malice afore- thought; " and, when murder — that is, " felonious killing of malice afore- thought " — was divided into the two degrees called murder in the first degree and murder in the second degree, the first distinguished by the malice aforethought being therein "deliberately premeditated," the in- dictment for this degree was by the same rules required to charge that the defendant did it "feloniously and of his deliberately premedi- tated malice aforethought." So much is a repetition of what has gone before, but it wiU make the rest of this note plain to the reader. Now, according both to natural rea- son and to the common law, while murder is distinguished from man- slaughter by being done of " malice aforethought," no indictment can charge murder except by these words or their equivalent. Equally certain is it that, while murder of the first degree is distinguished from murder of the second degree by being done of " deliberately pre- meditated " malice aforethought, no indictment without the words "de- liberately premeditated" or their equivalent cliarges murder in the first degree. Suppose we take up here and echo and re-echo the lan- guage with which certain of the de- cisions abound, that "the two de- grees of murder are one crime," still, without the words " deliberately pre- meditated" the aggravated degree of the " one crime " is not charged. Where the government seeks to hang the prisoner because he com- mitted, not the " one crime," but the particular branch of it which is in the first degree, how can it do this without alleging the fact which con- stitutes the "one crime " of this de- greef The court will not permit the hanging unless the verdict declares the crime to be in this degree. But every lawyer knows that, alike in law and reason, a verdict cannot be broader than the allegations. And no lawyer will deny that a verdict which is broader violates, in a crim- mal case, guaranties written in aU our constitutions. " True," say some of the judges, "but it has been de- cided that you can convict one of murder in the first degree on an in- dictment silent as to the matter dis- tinguishing this degree; hence it logically follows tha,t an indictment wherein no one of the elements of 316 OH. XLII.J HOMICIDE - - SUBSTANTIVE. [§ 54ti. It would be useless to repeat here what is said in the other place. In practice, even in states where the judicial blunder prevails, prosecuting officers often — it is believed oftener than otherwise — ^ frame the indictment for murder in the first de- this degree is visible, does neverthe- less in some occult way aver all those elements; if the eyes of the flesh do not discern them, still the eyes of the law do; else the former adjudications vt-ould have been im- possible. For certainly nothing transpired which could not; and, in the law, what was, is, and thus it must remain. Stare decisis!" But I need not proceed further with this; it is all — or, rather, enough of it to create disgust where we ought to be able to entertain respect — explained in " Criminal Procediu-e." Referring to the explanations there, let us now imagine an exactly parallel case. One brings suit to recover two items of book account of two dollars each. At the trial, he proves an indebted- ness of sixteen dollars, and has judg- ment for the sixteen: the attention of the court not having been directed distinctly to the fact that only four dollars were claimed. By and by another like suit is brought, and judgment for sixteen dollars is ren- dered on the authority of this case. Still other adjudications of the same kind inconsiderately follow; until, at length, the court is boldly con- fronted withthe doctrine th&t proofs cannot authorize a judgment in ex- cess of the allegations, and that to permit such a thing is equivalent to suffering parties to enter up judg- ments without any allegations. And the court is pressed with this objec- tion till it speaks. But it will not entertain the idea that there has been a blunder, and that blunders do not become by repetition law. No! Stare decisis! After it has been decided and affirmed and reaffirmed, by learned tribunals announcing the law, that the sun rises at midnight, it does rise at midnight! Law is law, and the Universe rolls by law! So the coui-t, with the drop of pity in its eye for the ignorant, reasons the question out. "This plaintiff," says the learned judge, " claims in his declaration to have sold to the defendant a hat for two dollars, and a cap for two dollars, for which he seeks to recover pay. It is not questioned that at the trial he duly proved so much of the case. But he was permitted, against the objection of the defendant, to prove also the sale of a coat for twelve dol- lars, and to have judgment for six- teen dollars. And it is said that the declaration is silent as to the coat and the twelve dollars. But the ques- tion is res adjudieata. In our opinion, two dollars, four dollars, and twelve dollars are all one money. And six- teen dollars are one money with the rest. But, not to enlarge so far, four dollars are admitted to be due; and a long coui'se of decision, not to be disturbed, has settled the question that, where a plaintiff demands two dollars and two dollars, he may have judgment for sixteen dollars. Hence, on a claim of two dollars and two dollars, judgment may be for four dollars or for sixteen according as the proofs are at the trial. From which premises, as the judgment cannot exceed the allegations, it log- ically follows that two dollars and two dollars include sixteen dollars; while still it is just as true that the sum of two and two is four as that it is sixteen. In fact, four and sixteen dollars are one money, and the plaint- iff is to have either, according to the proofs that may be offered at thetriaL 317 § 546.] SPECIFIC OFFENSES. [book 111. gree properly, as indicated in our last sub-title. Only the writing of some half-dozen additional Avords is required for this, and then all is plain to the defendant, to the jury, and to the trial judge. It is likewise an excellent forestalling of Indeed, except that the distinction both does and does not appear at the ■verdict, it does not arise during the progress of the cause, or until the de- fendant takes out his pocket-book to pay the judgment. Stare decisis! This objection has nothing In it. Judgment for sixteen dollars." An- other learned tribunal varies the rea- soning; thus, "Two and two are four. So much Is conceded. It is likewise plain that we have here a four, a two, too, another two, too, and the two re- peated two times. The result is six twos, amounting to twelve, and an added four, making in all sixteen. Consequently the plaintifif may, at the hearing, prove four or sixteen as he is able, and have judgment ac- cordingly. The two sums are one money, and are equally well charged in the declaration.'' On another oc- casion, a learned judge pronounces the unanimous opinion of the court as follows: "This great question, whether the sum of two and two is uniformly four, or is both four and sixteen with authority of the plaint- ifiE to elect at the rendering of the verdict which on the, particular oc- casion he will have it, has been most ably argued before us. We have been urged to use our reason upon it, but we sit here for no such purpose. The judicial function is to administer, not reason, but law. Our guide is Stare decisis; which, as the counsel for the plaintiff has learnedly pointed out, signifies ' Stand still, reason.' On behalf of the defendant it has been inade to appear that there are decis- iong on his side of the question. True, but an exact count shows the others to be the more numerous. Here we are reminded that the defendant asks us to count. He says, 'Put up two fingers, then two more, and the result of counting them will be four every time, never sixteen. But, Stare decisis. We must first count the de- cisions, to ascertain wliether we are permitted to «ount the fingers. So, counting the decisions, we find our- selves forbidden, sitting here as judges, whatever we might do off the bench, to count the fingers. The weight, indeed the great weight, of authority compels us to stop count- ing, and to hold, as most confidently and unanimously we do, that the sum of two and two is both four and six- teen, and the plaintiff may have it the way he chooses when the verdict is given in. The further question re- mains, whether it is not also twenty; but we are happily not compelled to decide it in this case. When that question does arise, we shall meet it fairly and dispassionately, and render judgment agreeably to the analogies of this branch of our law. We shall here simply intimate as to it. that, since four dollars and sixteen dollars are one money, differing only in de- grees, — the sixteen being in the first degree and the four in the second degree, — and since, as by an immense weight of authority it is held, the four dollars include the sixteen dol- lars, so that when you charge a man with four dollars you charge him also by force of the logic of the law with sixteen, we do not as at present advised see any ground to doubt that their sum, which is twenty dollars, may be one money also; included, the same as the sixteen, by the logic of the law in the four. At all events, whenever the question arises, we, sit- ting here as supreme judges, and ad- 318 OH. XLII.J HOMICIDE SUBSTANTITE. [§ 547. troubles which might arise at the verdict. And altogether it is easier, while it is simpler, in this matter as in many others, to do right than to do wrong. .Another consideration, of per- haps some consequence, is, that no prosecuting officer can be absolutely sure of the prolongation of the sleep of his court. The case, he should remember, is of the exceptional class to which the rule of stare decisis does not apply ; because the ap- plicant for the overruling of the doctrine is the defendant who waives all claim under it,i and there is no individual whom such overruling can harm ; while the only party to oppose is the state, that, having no interest to perpetuate what is wrong, but every interest to have the wrong corrected, must be con- clusively presumed both to consent and to join in the prayer for reversal ; ^ and because this is of the sort of decisions which, originating in blunder, and overturning fundamental law and national and constitutional right, no number of repetitions can render permanent.' III. Peactical Suggestions. § 547. Useless technicalities — (Following beaten path). — The reader perceives that the indictment for felonious homi- cide, when drawn strictly after the common-law rules, with all the allegations which a cautious pleader will introduce in order to prevent troublesome questions at the trial, contains more useless technicalities than the common-law indictment for most other offenses. Yet there is nothino: about it difficult or loudly calling for reform. The extremely short form, giving the defendant no real Information and furnishing no sort of guide for the trial, authorized by statute in England and a few of our states,* is a heavy lurch in the other direction. On the whole, therefore, there is no very urgent reason why the ministering law, not reason, shall tions for murder in the first degree, count the cases, not our fingers. Noi But — stare decisis! If Stare decisis shall we suffer reason to beguile us has the feelings of an animal we from the path of duty. Stare decisis!" ought to get up a society for its pro- I could carry out this illustrative tection from cruelty, case to a very great length, and i Crim. Pro., I, § 117 et seq. every supposed absurdity would be ^ Crim. Law, I, g§ 93-97. matched by a real one, substantially ^ Bishop, First Book, §§ 455-458. identical with it, in opinions of * Ante, % 542. courts on this question of the allega- 319 § 548.] SPECIFIC OFFENSES. [bOOK III. pleader should not, in this offense as in others, travel the beaten highway, where he can know of a certainty that every step is on solid ground, and wherein the utmost fairness to the prisoner is secured. The prosecuting officer, who wishes to ob- tain just verdicts of conviction, will do best to appear before the jury as being, and to be, fair and open in all his steps, and in his allegations in the indictment reasonably full yet not op- pressively diffuse. He should neither seek nor seem to banish from himself the thought, which will certainly be in the con- sulting-room of the jury, that the question at issue is of the life or ignominious death of a fellow-being, of like feelings and as- pirations with ourselves. § 548. Preparation. — Cases of this class make a special call on the counsel both for the prosecution and for the de- fense to prepare carefully the case in advance of the trial. Questions of expert evidence, circumstantial evidence, the competency of jurors, and some others, all requiring the most exact and cautious consideration, are particularly liable to present themselves in these capital cases. And counsel should never enter upon the trial until he has become thoroughly master of all such questions as by any possibility may arise. 320 CHAPTEE XLIII. HOMICIDE, ATTEMPTS BY ASSAULT AND OTHERWISE TO COMMIT.i § 549. Elsewhere. — The forms of the indictment for at- tempts, which necessarily include the attempt wrongfully to take human life, are considered in a general way in another chapter.^ And in the chapter on " Assault and Battery " we saw hQw compound as well as simple assaults and assaults and batteries, the compound ones including those which are com- mitted with intent to kill, are to be charged.' So that — § 550. For this chapter — it remains only to present a few explanations, practical suggestions, and forms, and to cite places where other forms may be found. § 551. Sufficient, but not ordinarily best — (Alleging act). — Undoubtedly, under the common law, or any statute, the terms whereof would be duly covered, it would be ade- quate, in analogy to the common method of charging the attempt to cheat by false pretenses,* to aver that, at a speci- fied-time and place, the defendant did, etc., proceeding to set out his act, as for an accomplished murder or manslaughter, in the words of any of the forms in the last chapter; but, instead of continuing to the fatal result, saying, " with intent," etc. Yet, in this attempt upon life, one need not, to be punishable, go so far as to perform all the acts necessary, to complete the substantive felony if they should prove fatal ; he is required only to -take a step toward the fatal result, of sufiBcient magni- tude and reaching sufficiently near it for the law's notice.' And it would be idle to allege acts neither performed in fact nor in law essential to the attempt charged. For which and 1 For the direct explanations of this Stat. Crimes, § 325; also, many other offense, with the pleading, practice places, and evidence, see Crim. Law, II, ^ Ante, §§ 100-113. §§ 739-743; Crim. Pro., II, §§ 643-(563. » And see particularly ante, §§ 206, And see the title Attempt in both 313, 318. Crim. Law and Crim. Pro. Inci- ^Ante,%4Si. dental, Crim. Law, I, §g 418, 441, 736, » Crim. Law, I, g§ 728, 768a. 750, 751, 756, 758, 768a, 803; II, § 730; 21 321 §§ 552-554.] SPECIFIC offenses. [book hi. other reasons, there is ordinarily a simpler way, and practically better; while yet doubtless, in special circumstances, this should be preferred. § 552. Alleging intent. — The part of the indictment re- quiring more than ordinary care is the allegation of the defend- ant's intent. Such intent must have been in fact, and in some appropriate terms it must be charged to have been, to take life; not merely to do what, if death followed, would consti- tute common-law murder or manslaughter.^ Now, a man con- templating the taking of another's life does not first lay before his mind the law's classifications of homicide, and then resolve to commit manslaughter, or common-law murder, or murder in the first degree, or murder in the second degree; but he simply determines to kill the hated person, or to kill him by means which he has devised, and elude the law altogether. Our statutes, the terms whereof must be duly covered by any indictment upon them, have such expressions as " with intent to kill," " with intent to commit manslaughter," " with intent to commit murder," " with intent to commit murder in the first degree," and the like. JSTow, — § 553. Meaning of statutory terms as to intent. — In gen- eral, the verb " to kill," in such a connection, requires only the intent to do what would constitute, if done, either murder or manslaughter. And if the two words " kill and murder " are in the indictment, proof of an intent to commit manslaughter will satisfy the former, and of an intent to commit murder the latter; and there may be a conviction of one or both, or a conviction of the one and an acquittal of the other, upon the same count.^ But in some connections in a statute, the words " intent to kill " may be interpreted, and they have been so in Mississippi, to signify the intent to commit murder.' Where- upon, — § 554. What intent in fact is within statute. — If one, meaning to deprive another of life, adopt measures which, should they succeed, would render the killing murder, he be- 1 Id., §§ 729, 730, 736; 11, § 741. ' Morman v. S., 34 Miss. 54; Bradley 2 a V. Butman, 43 N. H. 490; Hall v. S., 10 Sm. & M. 618; Morgan v. S., -v. S., 9 Fla. 303; S. v. Reed, 40 Vt 13 Sm. & M. 342; Anthony v. S., 13 €03. And see S. v. Calligan, 17 N. H. Sm. & M. 363. 253. 333 OH. XLIII.J HOMICIDE ATTEMPT. [§§555,556. comes, on his measures failing, guilty of what the statutes term an " attempt to commit murder ; " or, if the consum- mated ofifense would have been manslaughter, guilty of an "at- tempt to commit manslaughter; " and so of all the rest. When thus he has resolved to kill, the grade of his attempt will be what the killing would have been had he succeeded.' And — § 555. Form of alleging intent. — The common and prudent method of alleging this intent, not inquiring whether any other is permissible, is after its legal effect in distinction from its outward form ; ^ as, " with intent to kill the said X.," ' or, "with intent to murder the said X.,"* or, "with intent to kill and murder the said X.," * or, " with intent feloniously and of his malice aforethought to kill and murder the said X.," * or, " with intent feloniously and of his malice aforethought to commit murder in the first degree." ' § 556. Joining intents. — Where the statutes have indicated as within their penalties several distinguishable intents, like those just explained, and the pleader is uncertain which one of them will be proved at the trial, he may in general, within principles already stated,' join in allegation, in a single count, any number of intents, connecting them by the conjunction "and," and have a verdict for the highest or a lower one, or a general verdict, as the jury may deem the fact to have been. And this is so even under a statute in such words as " to kill or do other bodily injury," where an intent short of taking life is introduced.' But where different statutes have created dif- 1 Crim. Law, II, §§ 740-743. 'S. v. Saylor, 6 Lea, 586. 2 Crim. Pro., I, §§ 333-334. « Ante, §§ 18-31, 354, 457, 460, 535. 3S. V. Greenhalgh, 34 Mo. 373; S. v. 9 Ante, § 553; Beckwith v. P., 26 Chandler, 24 Mo. 371. III. 500 ; Baccigalupo v. Com., 33 Grat. 364. Texas. — Freeman v. S., 11 Tex. Ap. 93; Compton v. S., 13 Tex. Ap. 371, 273; MoGrew v. S., 13 Tex. Ap. 340, 342; [Simon v. S., 31 Tex. Crim. R. 196; Waggoner v. S., 35 Tex. Grim. E. 199.] Virginia. — Hutchins v. Com., 3 Va. Cas. 331, 332. [West Virginia. — S. v. Penning- tcm, 41 W. Va. 599.] [Washington. — S. v. MoGilvery, 30 Wash. 340.] [Wisconsin. — 8. v. Evans, 88 Wis. 355.] » Ante, §§ 161, 163. For INCITING TO CRIME, see ante, §§ 105-107, 114-117, 119-121. INDECENCY, sfee Ndisanoe. 830 CHAPTEE XLVI. INNKEEPER REFUSING GUEST.i § 567. Indictment. — The requirements of the indictment for this infrequent common-law offense are not with any great minuteness settled by authority. But the following form, which perhaps admits of some condensation, appears to be ade- quate : — That A., etc., on, etc., at, etc., was a [duly licensed 2 ] innkeeper, and did then and there keep a common inn, with rooms, beds, victuals and other accommodations for all travelers, and attached to and parcel of the said inn were stables supplied with foddei', grain and other necessary things for all horses of travelers; whereupon one X., being then and there a traveler, and having with him for the purposes of his traveling a horse, did then and there at the said inn apply to the said A. to be received therein as a guest, and for food and lodging for himself and food and stabling for his said horse, for a reasonable time and during the then approaching night, being then and there ready and willing to pay for the same, and offering and tendering to the said A. proper and reasonable pay therefor; but then and there the said A., having sufficient unoccupied room and other means in his said inn and stables, unlawfully, unreasonably and without justifying excuse refused to receive the said X as a guest in said inn, and would not and did not provide the said X. with food, lodging, stabling, or vpith any other needed accommodation for himself and horse; against the peace, etc' 1 For the law of this offense, see English form before me, which was Grim. Law, I, § 533. treated as good. 2 Perhaps, under the laws of some 3 For precedents, see Rex v. Ivens, of the states, an averment of license 7 Car. & P. 213; Whart. Prec. No. 913. may be important. It is not in the 1 am not aware that the books con- tain any other precedents. For INSOLVENCY, see ante, § 330 et seq. INSTIGATION, see ante,%% 105-107, 114^117. 119-121. INTOXICATING LIQUORS, see Liqtjob Selunq, etc. INTOXICATION, see Drunkenness. 331 CHAPTER XLVIL KIDNAPING AND FALSE IMPRISONMENT.! § 568. How in this chapter. — These offenses being nearly related, with no distinct partition between them, and in a gen- eral way kidnaping being a sort of aggravated false imprison- ment, so that an indictment for the heavier includes, or may be so drawn as to include, the lighter,^ it would be inconven- ient, with no compensating adva,ntages, to separate them in this chapter. §569. Formula for indictment. — The indictment, which, as in all other offenses, must be varied with the statutory terms, if any, to be covered, may allege, — That A., etc. [ante, §§ 74-77], on, etc., at, eta [ante, § 80], did make an assault on one X, and him the said X did then and there beat and bruise, and, without any authority or ' lawful excuse, detain, restrain and falsely imprison * [proceeding to allege aggravations according to the fact, as] for the space of ten hours thence next following ' [or, and did then and there thrust the said X. into a certain loathsome dungeon and prison, and thence continually did keep and detain him in great suffering imprisoned therein 1 For the direct expositions of From this point the indictment pro- these offenses, with the pleading, ceeds with the aggravations special practice and evidence, see Crim. to the case. Crim. Pro., II, § 691. Law, II, §§ 746-756 ; Crim. Pro., II, There is no defined limit to the sorts §§365-368, 688-695. Incidental, Crim. of aggravation admissible, and they Law, I, §§ 306, 553, 686, 868; II, §§ 36, may extend in gravity into the most 56; Crim. Pro., I, § 488, note, 1338; reprehensible forms of kidnaping. Stat. Crimes, §§ 205, 309, 333, 336, But it is neither legally necessary, 619. nor of much practical advantage, to 2 Crim. Law, II, §§ 746, 750; Crim. allege aggravations which do not as Pro., II, §§ 688, 691. of law enhance the punishment. s"Or," the right conjunction in Those which do enhance it must be negative averments. Ante, § 514, charged or the higher punishment note, and places there cited. cannot be inflicted. Ante, § 303. < Thus far, in fewer words than in ^ Crim. Pro., II, § 365. Add here, most of the precedents, yet with the if so are the facts, " and until the omission of nothing which any said X would and did deliver and pleader would deem important, a pay to the said A. one hundred simple false imprisonment, inolud- doUars [or, etc., according to the ing a battery and an assault, is be- fact] which he the said A. then and lieved to be adequately charged, there demanded of the said X" 333 OH. XLTII.] KIDNAPING AND FALSE IMPEISONMENT. [§§ 5Y0, 571. for the space of one hundred days and until, etc.], with the intent that the said X. should be unlawfully and against his will carried and conveyed away out of and beyond the limits of the state to some place to the jurors unknown, to be in such foreign place held in slavery [or, and did then and there kidnap and transport him the said X., unlawfully and against his will, out of and beyond the county aforesaid, and out of and beyond the state, etc., or, etc., alleging any other special fact] ; against the peace, etc. [ante, §§ 65-69].i § 570. Statute and forms. — On a statute making punishable one " who, without lawful authority, shall forcibly and secretly confine or imprison any other person within this state against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize and confine or shall inveigle or kidnap any other person with intent to cause such person to be secretly confined or imprisoned in this state against his will, or to be sold as a slave, etc., the allegations may be, — That A., etc., on, etc., at, etc., did make an assault upon one X. [or, upon one X the minor child of one Y.], and him the said X did then and there beat, bruise,? and, against the will of him the said X. [and of the said Y. his father], and without lawful authority therefor, forcibly confine and im- prison there [or, forcibly bind with ropes and cords and thereby forcibly confine and imprison there] for the continuous space of three hours and more [or, and did then and there forcibly seize, confine and kidnap the said X with intent to cause him to be secretly and against his will (and against the will of the said Y. his father) confined and imprisoned in this state]; against the peace, etc.^ § 571. Importing kidnaped person. — A statute of the United States makes one a felon who " shall knowingly and 1 For precedents, see Crim. Pro., II, New Hampshire. — S. v. EoUins, 8 §§ 365, 366, 690; 3 Chit. Crim. Law, N. H. 550. 835-841 ; 6 Went. PL 393; 6 Cox, C. C. New Vorh.— P. v. Merrill, 3 Parker, Ap. 35; Rex v. Allen, Trem. P. C. 0. C. 590. 316; Rex v. Bayly, Trem. P. C. 316; Oregon.— S. v. Moy Looke, 7 Oreg. Cornwall v. Reg., 33 U. C. Q. B. 106; 54. [S. V. Sutton, 116 Ind. 537; Davis v. Taras.— Click v. S., 3 Tex. 383. S., 73 Wis. 54.] United States.— V. S. v. Henning, Florida.— Barber v. S., 18 Fla. 675; 4 Cranch, C. C. 645; U. S. v. Aucarola, Ross V. S., 15 Fla. 55, 58. 17 Blatchf. 433, 424. Illinois.— Moody w. P., 30 III 315. 2 while probably the allegation Iwdmwa.— S.v.McRoberts, 4 Blackf. neither of assault nor of battery is 178. legally necessary, both are practi- Jowa. — U. S. u. Lapoint, Morris, 146. cally best, as explained Crim. Pro., Massaohusetts.— Com. v. Turner, 3 II, §§ 365, 366, 690-693. Met. 19; Com. u Blodgett, 13 Met. 56. 3 For precedents, followed in part Missouri. — Kirk v. S., 6 Mo. 469. in the above, see Com. v. Blodgett, 13 Met. 56; Com. v. Turner, 3 Met. 19. 333 § 572.] SPECIFIC OFFENSES. [bOOK III. wilfully bring into the United States, or the territories thereof, any person inveigled or forcibly kidnaped in any other country, with intent to hold such person so inveigled or kidnaped in confinement or to any involuntary service," or "shall know- ingly and wilfully sell, or cause to be sold, into any condition of involuntary servitude, any other person, for any term what- ever," or " shall knowingly and wilfully hold to involuntary service any person so sold and bought." ' And a count on the clause against importing was held to be good which alleged, — That A., etc., on, etc., at, etc., did unlawfully, feloniously, knowingly and wilfully bring into the United States, to wit, into the city and county of New York, in the state of New York, one X., a person who had theretofore been inveigled in the kingdom of Italy, with intent to hold said X in con- finement, and to an involuntary service of begging and playing on musical instruments; against the peace, eto.2 § 572. Holding, etc. — Under another clause of this statute it was deemed good to aver, — That A., etc., on, etc., at, etc., unlawfully,' feloniously, knowingly and wil- fully held to an involuntary service of begging and of playing on musical instruments, one X, a person who had theretofore been unlawfully and knowingly sold by certain persons to the jurors unknown, into a condition of involuntary servitude, for a term of four years and six months, and had been theretofore by the said A. bought for the service and servitude afore- said, and for the term aforesaid, of the persons aforesaid; against the peace, etc' ' 1 Act of June 33, 1874 (ch. 464), § 1. ' The fourth count in U. S. v. Auoa^ 2TJ. S. V. Aucarola, 17 Blatch. 433, tola, 17 Blatch. 433, as above. 434 834 CHAPTER XLYIIL LABOR 0FFENSES.1 § 573. In this chapter — will be grouped the principal ones of the few offenses we have against labor. §674. Conspiracies against labor — are considered under the title Conspiracy.^ § 675. Slavery. — There were offenses connected with slav- ery, now passed away with the institution itself.' § 576. Enticing or hiring away one under contract. — "We have statutes in various terms making it punishable for a per- son to hire or otherwise entice away another's servant or la- borer under contract, while the agreed term is unexpired.* On a point not made quite clear by the cases, it is reasonably plain that, if the offense may be completed by a mere entice- ment, it is committed the same where the servant is an infant as where he is an adult; because the contract of service is not void but voidable, and a third person cannot avoid it. But if the minor disafBrms it before the enticer has proceeded far enough to be fully within the inhibition, there can be no offense afterward.^ §677. Indictment. — The indictment must cover the terms of the particular statute; and, as they differ in our states, it will not be the same in all. Under the branch of the Georgia provision which make it an offense " if any person, by himself or agent, shall be guilty of employing the servant of another, during the term for which he, she or they may be employed, 1 See Grim. Law, I, §§ 453-455, 508. Tex. 387. Assisting slave to escape, 2 4nfe, §§298, 801-308. Queen v. S., 5 Har. & J. 332; Ken- 3 Perhaps it may occasionally be tucky v. Ohio, 34 How. (U. S.) 66, 67. convenient to refer to the old prece- Selling slave in the night-time, S. v. dents for analogous offenses; as. for Eobbins, 9 Ire. 356. concealing, harboring and enticing < Compare with anfe, § 303. away slaves, S. v. Duncan, 9 Port. SBishop.Con., §§373, 375, 376;Lang- 260; S. V. Cadle, 19 Ark. 613; S. v. ham u S., 55 Ala. 114; Murrell v. S., Woodly, 3 Jones, 376; Gain v. S., 18 44 Ala. 367. 335 §§ 578-580.] SPECIFIC offenses. [book hi. knowing that such servant was so employed, and that his term of service was not expired," the allegations may be, — That A., etc., on, etc., at, etc., did unlawfully employ [and take into his own service i] one X., who was then and there the servant of one Y., the same being during the term for which he the said X was by the said Y. employed as such servant, the said A. then and there well knowing that the said X. was such servant so employed as aforesaid by the said Y., and that his term of service was not expired; against the peace, etc.2 § 578. Intimidating labor. — Under a statute to punish one who " shall, by intimidation or force, prevent or seek to pre- vent any other person or persons from entering or continuing in the employment of any corporation, company, or individual," the allegations may be, — That on, etc., at, etc., M. was a corporation s having mills at, etc., afore- said, and X. was a person employed by said corporation as a spinner in said mills; whereupon A., etc., then and there unlawfully, by intimidation and by force, did seek to prevent and did prevent the said X. from continuing in the employment of the said corporation; against the peace, etc.* § 579. Hours of labor — for minors, women, etc., are some- times regulated by statutes; but we shall not here enter into particular expositions of them.* § 580. Mutiny and revolt on shipboard — are offenses occa- sionally coming into notice.^ It will be sufficient here to refer to places where precedents for the indictment may be found.' 1 Not in the form before me, yet I not having served an apprenticeship, should deem the insertion of these 6 Went. PI. 395. Refusing to receive words more certainly to cover in full apprentice, Rex v. Pyne, Trem. P. C the statutory meaning (which every 264. Apprentice enlisting without indictment must do, ante, § 32), not consent of master. Rex v. Jones, 1 expressing an opinion whether or Leach (4th ed.), 174 not they are indispensable, ^ Ante, § 79 and note. 2 See, for precedents, Bryan v, S., * For a precedent, partly followed 44 Ga. 328 (which in a measure is fol- in the above, see Com. v. Dyer, 128 lowed in the above form); Murrell v. Mass. 70; [Fischer v. S., 101 Wis. 23.] S., 44 Ala. 367; S. v. Daniel, 89 N. C. » Constitutional, Com. v. Hamilton 553; Roseberry v. S., 50 Ala. 160. In- Mfg. Co., 120 Mass. 388. Form, etc., dentured servant. — As to harbor- Com. v. Osborn Mills, 130 Mass. 33. ing an indentured servant, or ena- ^ For decisions relating thereto, see bling him to escape, see S. v. Hooper, Crim. Law, I,. § 564, note. 1 Houst. Crim. 17; S. v. Owens, 1 'United States v. Peterson, 1 Houst. Crim. 72. Old tor ms.— Under Woodb. & M. 305; Reg. v. McGregor, various former English provisions 1 Car. & K. 429; Reg. v. Smith, 3 Cox, ' not in force with us, — for enticing C. C. 443; Reg. v. Jones, 11 Cox, C. C. artificers out of the kingdom, Rex v. 393. Disobeying' commands — of of- Cox, Trem P. C. 252; 2 Chit. Crim. iicer of ship. United States v. Mc- Law, 542, 544. For exercising a trade, Ardle, 2 Saw. 367. 336 CHAPTER XLIX. LARCENY, SIMPLE AND COMPOUND.i § 681. In general of form of indictment. — The indictment for larceny, except under statutes wiiich have changed the es- sential ingredients of the offense,^ is, in the absence of any statutory aggravation,-T- that is, for simple larceny, — uniform in its allegations of the wrong.' If a statute has provided a hpavier punishment for it when committed under special cir- cumstances of time, place, or the like, the indictment should be merely enlarged by a proper averment of thg particular ag- gravating matter, drawn on the statutory terms.^ In the de- scription of the property stolen, the averments will vary with the facts of the individual case. Therefore, in the expositions of this chapter, we shall not have occasion to incumber the pages with numerous repetitions of those parts of forms which are the same in all. § 582. Formula for indictment. — The allegations may be, — That A., etc. [ante, §§ 74-77], on, etc. [add, if the punishment is heavier ■when the larceny is in the night, the averment in ante, § 87, but doubtless the hour need not be stated unless the statute makes it an element in the aggravated offense 5], [with force and arms*], at, etc. [ante, § 80], one silver spoon ' of the value of three dollars, two, etc. [setting down all the iFor the direct expositions of this 315-319, 335, 089, 1001; Stat. Crimes, offense, with the pleading, practice §§ 7, 137, 140, 305, 209, 311, note, 313, and evidence, see Crim. Law, II, 333,333-234,346,347,348,335-344,454. §§757-904; Crim. Pro., II, §§696-780; And see Embezzlement; Eobbeey. Stat. Crimes, §§ 409-429. Incidental, 2 gtat. Crimes, §§ 414, 418. Crim. Law, I, §§ 1 37-143, 307, 234, 383, 3 Crim. Pro., II, § 697. 360, 363, 263, 397, 330, 343, 349, 411, 436, * Id., II, § 773; Stat. Crimes, §§ 415, 440, 566, 567, 578, 579, 583, 583, 585, 416. 654, 676, 679, 680, 741, 743-745, 757, 'Crim. Pro., I, §399; II, §§ 131-133. 767,793,795,796,799,801,811,935, « Not necessary. Ante, % 43. 937, 943, 974, 1053, 1055, 1061-1064, 'Order of averments.— I am fol- 1066; II, §§ 319, 320, 337-339, 365, 368, lowing the old order of the aver- 1084, 1156; Crim. Pro., I, §§ 59, 60, 341, ments, which the pleader can change 397, 449, 480-483, 4886, 488e, 530, 541, if he chooses. It is specially suited 553, 573, 575. 580, 583, 590, 616, 630, to the present use. The translations 639, note, 1010, 1056-1060, 1113, 1124; of our old common-law indictments II, §§ 74, 87-93, 143-145, 152, 185, 330, from Latin to Enghsh (Crim. Pro., I, 33 337 § 582.] SPECIFIC OFFENSES. [book iir. stolen articles in like manner, and giving the separate value of each'], of the property of ^ X. [ante, §§ 78, 79], [then and there being founds], in and from the dwelling-house of the said X.* [or, from the person of the said X ; 5 or, etc., setting out, according to the fact, and iu the statutory terms, any other aggravating matter vrhich of law enhances the punishment], feloniously did steal, take and carry away; ^ against the peace, etc, [ante, §§ 65-69].' §g 340, 341; 4 Bl. Com. 323) were lit- eral to the extent even of preserving the Latin idiom. Hence many of the old forms have come to us con- structed in ways not to be approved by any critic of English sentences. Some of them I have slightly varied in what was not material, to render them more nearly good English. Yet in this I am not without judicial precedent. I could find precedents for treating this indictment in the same way. But the old form is so convenient that many pleaders will feel justified in objecting to any change. 1 An indictment stating simply the aggregate value of enumerated arti- cles is not bad in law ; but so many and so grave difficulties are liable to arise upon it at the trial and ver- dict that the judicious pleader will not ordinarily allege the value in this way. Crim. Pro., II, § 714. As to when the allegation of value may be omitted, see Id.,§ 713 ; Stat. Crimes, §427. 2 Instead of. these "words, of the property of," the old and common precedents have, " of the goods and chattels of." At the common law, there could be no larceny of any- thing except goods and chattels; therefore the expression was always accurate and appropriate. But our statutes have made various other things the subjects of larceny. And the word " property " covers in mean- ing the whole, and it is held to be good for all. This part of the indict- ment is generally printed in the pleader's blanks (ante, § 51), and con- Ycnience requires it to be in language which will suffice for all cases. Crim. Pro., II, §g 697, 699, 718, 736. ' Nearly universal in the prece- dents. It is eliminated from the late English ones, Archb. Crim. PI. & Ev. (19th ed.) 344; 6 Cox, C. C. Ap. 1; Reg. V. Evans, 7 Cox, C. C. 151; and from various others, S. v. Fenn, 41 Conn. 590; Musquez v. S., 41 Tex. 226; S. V. Hoppe, 39 Iowa, 468; S. v. Taunt, 16 Minn. 109. It was long ago adjudged unnecessary. Crim. Pro., II, § 697. In just meaning, it seems to point to the idea of the thing being lost; for which and for other rea- sons, as well as because it occupies needless space, it is better omitted. 4Crim. Pro., II, §§777, 778. 5 Id., §780. * Hale says, " The indictment runs vi et armis felonice furatus fuit, cepit, et asportavit, in case of dead chattels; cepit et abduxit, in case of a horse; cepit et effugavii, in case of sheep, cows, etc. ; wherein the words felonice, furatus fuit, cepit, are es- sential to the crime." 1 Hale, P. C. 504 With us, and in England in the modern cases, tliis distinction is occa- sionally noted; but there can be no doubt that the form in the text is for every sort of larceny legally suf- ficient. Crim. Pro., II, § 698. If we assume that, in Com. v. Adams, 7 Gray, 43, the court was right in hold- ing tlie indictment ill for omitting the word '"away," the expression being "steal, take, and carry," so that " carry away," or "lead away," or "drive away," is essentirJ, still " carry away " includes in meaning the other two. One of the defini- tions of " carry," according to Web- 338 OH. XLIX.] LAECENY SIMPLE AND COMPOUND. [§ 583. §583. Simple — Compound. — The reader perceives that the allegations for a simple and for a compound larceny are ster, is, "to cause to go;" as, in the expression, " The king of Assyria did carry away Israel to Assyria." In like manner one may be said to " carry away " a horse or a sheep, when he no more bears the animal on his shoulders or In his arms than did the Assyrian king thus bear "Israel." Indeed, another of the meanings is, "to remove, lead, or drive;" as in " He carried attaj/ all his cattle." As this part of the form is commonly printed in our blanks, 1 should not recommend undergoing the inconvenience of changing it for special cases. ' For precedents, see 3 Chit. Grim. Law, 959-988, 1098, 1118; 4 Went. PI. 41-44; 6 id. 1, 2; 4 Cox, C. C. Ap. 18; 6 id. Ap. 1-13, 16-18; Reg. v. Calling- wood, 3 Ld. Raym. 1116; Rex v. John- son, 3 M. & S. 539; Rex v. Somerton, 7 B. & C. 463; Campbell v. Reg., 11 Q. B. 799,800; Rex v. Hickman, 1 Leach <4th ed), 318; Rex v. Pope, 1 Leach (4th ed.), 336; Rex v. Gooddard, 3 Leach (4th ed.), 545; Rex v. Graham, 2 Leach (4th ed.), 547; Rexu Burnel, 3 Leach (4th ed.), 588; Rex v. Camp- bell, 3 Leach ■(4th ed.), 564; Rex v. Owen, 3 Leach (4th ed.), 573; Rex v. Etherington, 3 Leaoh (4th ed.), 671; Rex V. Palmer, 3 Leach (4th ed.), 680; Hex V. Pooley, 3 Leach (4th ed.), 900, 3 B. & P. 315; Rex v. Clarke, 3 Leach ■(4th ed.), 1036; s. o. worn. Rex v. Clark, Russ. & Ry. 181 ; Rex v. Walsh, 2 Leach (4th ed.), 1054; Rex v. Craven, Russ. & Ry. 14; Rex v. Pearson, 1 Moody, 313, 314; Reg. u Heath, 3 Moody, 33 ; Reg. v. Jones, 1 Den. C. C. 101, 3 Car. & K. 165; Reg. v. Hollo- way, 1 Den. C. C. 370; Reg. v. Martin, 1 Den. C. C. 398, 399. 3 Car. & K. 950, 3 Cox, C. C. 447; Reg. v. Radley, 1 Den. C. C. 450, 3 Car. & K. 974, 3 Cox, €. C. 460; Reg. v. Matthews, 1 Den. C. C. 596; Reg. v. Craddock, 3 Den. C. C. 31, 4 Cox, C. C. 409; Reg. v. Clark, Dears. 198, 3 Car. & K 367, 6 Cox, C. C. 210; Reg. v. West, Dears. & B. 109, 110, note, 7 Cox, C. C. 183; Reg. V. Gorbutt, Dears. & B. 166, 7 Cox, C. C. 331; Reg. v. Johnson, Dears. & B. 340, 7 Cox, C. C. 379; Reg. V. Jennings, Dears. & B. 447, 7 Cox, C. C. 397; Reg. v. Hilton, Bell, C. C. 30, 8 Cox, C. C. 87; Reg. v. Chris- topher, Bell, C. C. 37, 8 Cox, C. C. 91; Reg. V. Rice, Bell, C. C. 87, 8 Cox, C. C. 119; Reg. v. Betts, Bell, C. C. 90, 8 Cox, C. C. 140; Reg. v. Huntley, Bell, C. C. 338, 8 Cox, C. C. 360; Reg. v. Hughes, Bell, C. C. 242, 8 Cox, C. C. 378; Reg. v. Loose, Bell, C. C. 359, 8 Cox, C. C. 303'; Reg. v. Pierce. Bell, C. C. 335, 8 Cox, C. C. 344; Reg. v. Holman, Leigh & C. 177 ; Reg. v. Fal- lon, Leigh & C. 317, 9 Cox, C. C. 242; Reg. V. Thomas. Leigh & C. 313, 9 Cox, C. C. 370 (treasure-trove); Reg. v. Col- lins, Leigh & C. 471, 9 Cox, C. C. 497; Reg. V. Johnson, Leigh & C. 489, 10 Cox, C. C. 13; Reg. v. Lowrie, Law R. I C. C. 61, 10 Cox, C. C. 388; Reg. v. Gregory, Law R. 1 C. C. 77, 10 Cox, C. C. 459; Reg. v. Bailey, Law R. 1 C. C. 347, 13 Cox, C. C. 139; Reg. v. Tat- lock, 3 Q. B. D. 157, 13 Cox, C. C. 338; Rex V. Hurrell, Ryan & Moody, N. P. 296; Reg. v. Trevenner, 3 Moody & R. 471 ; Reg. v. Hinley, 2 Moody & R. 534; Rex v. John, 7 Car. & P. 334; Reg. V. Welham, 1 Cox, C. C. 193; Camp- bell V. Reg., 1 Cox, C. C. 269; Reg. v. Evans, 7 Cox, C. C. 151; Reg. v. Toole, II Cox, C. C. 75 (treasure-trove); Reg. V. Halford, 11 Cox, C. C. 88; Reg. v. Kenwood, 11 Cox, C. C. 536; Reg. w. Roe, 11 Cox, C. C. 554; Reg. v. Hen- derson, 11 Cox, C. C. 593; Reg. v. But- terworth, 12 Cox, C. C. 133, 3 Eng. R 195; Reg. v. Bird, 12 Cox, C. C. 257; 4 Eng. R. 533; Reg. v. Matthews, 13 Cox, C. C. 489, 6 Eng. R. 329; Reg. v. Hancock, 14 Cox, C. C. 119; Reg. v. 39 § 583.] SPECIFIC OFFENSES. [book III. the same ; except that, in setting out the latter, the pleader in- troduces into the form for the former, in a manner to cover the Tonkinson, 14 Cox, C. C. 603; Reg. v. Barran, Jebb, 245; [Bryant v. S., 116 Ala. 445.] Alabama. — S. v. Seay, 3 Stew. 133; S. V. Greenwood, 5 Port. 474; Will- iams V. S., 15 Ala. 259; Murray v. S., 18 Ala. 737; Foster v. S., 39 Ala. 339; Alsey V. S., 39 Ala. 664; Sallie v. S., 39 Ala. 691; Moore v. S., 40 Ala. 49; Maynard v. S., 46 Ala. 85; Parmer v. a, 41 Ala. 416; Sheppard v. S., 43 Ala. 531 ; Williams v. S., 44 Ala. 396 ; Ward V. S., 48 Ala. 161; Du Bois v. S,, 50 Ala. 139; Smith v. S., 55 Ala. 59; Hunt V. S., 55 Ala. 138; Stollenwerk v. S., 55 Ala. 143; Grant v. S., 55 Ala. 201; Bonner v. S., 55 Ala. 343; Rountree v. S., 58 Ala. 381 ; Johnson v. S., 59 Ala. 37, 38; Harris v. 8., 60 Ala. 50; Adams V. S., 60 Ala. 53; Peacher v. S., 61 Ala. 33; McDowelU-. S.,61 Ala. 173; Lyon V. S., 61 Ala. 334; Roberts v. S., 61 Ala. 401; Pinckard v. S., 63 Ala. 167; Duvall V. S., 63 Ala. 13; Smitherman V. 8., 63 Ala. 34. Arkansas. — Wilson v. S., 5 Pike, 513; Barton v. S., 29 Ark. 68; John- son V. S., 33 Ark. 181; S. v. Jourdan, 33 Ark. 303; S. v. Parker, 34 Ark. 158; S. V. McMinn, 34 Ark. 160; Boy kin v. S., 34 Ark. 443. California. — P. v. Winkler, 9 CaL 334; P. V. Green, 15 Cal. 513; P. v. Connor, 17 CaL 354; P. v. Brown, 37 Cal. 500; P. v. Qui vise, 56 CaL 396; [P. V. Burns, 121 CaL 539; P. v. Staples, 91 CaL 23.] Connecticut. — S. v. Holmes, 38 Conn. 330; S. v. Wilson, 30 Conn. 500; S. V. TuUer, 34 Conn. 380; S. v. Fenn, 41 Conn. 590. Oeorgia.— McCoy v. S., 15 Ga. 305; Davis V. S., 33 Ga. 98; Black v. S., 36 Ga. 447; Davis v. S., 40 Ga. 339; Frain V. S., 40 Ga. 539, 531; Jenkins v. S., 50 Ga. 258; Carter v. S., 53 Ga. 326; In- man v. S., 54 Ga. 319; Alderman v. 8., 57 Ga. 367, 368; Miller v. S., 58 Ga. 200; Smith v. S., 60 Ga. 430. Idaho. — P. V. Freeman, 1 Idaho Ter. (N. 8.) 333. Illinois.— 'i/lyeiB v. P., 36 IlL 173; [McDaniels v. P., 118 nL.301.] Indiana. — S. v. Murphy, 8 Blackf. 498; Hall v. S., 8 Ind. 439; Daily v. 8., 10 Ind. 536; Ulmer v. S., 14 Ind. 53; Holland v. S., 33 Ind. 343; Walker V. S., 33 Ind. 61; Hoskins v. S.,87 Ind. 470; King v. S., 44 Ind. 385; Beard v. 8., 54 Ind. 413; Hart v. S., 55 Ind. 599; S. V. Miller, 58 Ind. 899; Jones v. S., 59 Ind. 239; Good v. S., 61 Ind. 69 j Umphrey v. 8., 63 Ind. 223; Gregg v. S., 64 Ind. 233; Johnson v. S., 68 Ind. 43; S. V. Allisbach,69 Ind. 50; Stout V. 8., 78 Ind. 493; 8. v. Doe, 79 Ind. 9; [Edson V. 8., 148 Ind. 383.] Iowa. — 8. V. Hoppe, 39 Iowa, 468; 8. V. Gleason, 56 Iowa, 303; S. v. Mc- Intire, 59 Iowa, 367; S. v. Pierson, 59 Iowa, 371. Kansas. — Wessells v. Territory, McCahon, 100; S. v. Ingram, 16 Kan. 14. Kentucky. — Elliott v. Com., 13 Bush, 176; McBride v. Com., 13 Bush, 387; Jones v. Com., 13 Bush, 356; Miller v. Com., 78 Ky. 15. Louisiana. — S. v. Lartigue, 29 La. An. 643; 8. v. Thomas, 30 La. An. 600. Maine.— 8. v. McAllister, 26 Me. 874; S. 'v. Savage, 33 Ma 583; 8. v. Carver. 49 Me. 588; S. v. Bartlett, 55 Me. 200; 8. v. Stevens, 63 Me. 284; 8. V. Leavitt, 66 Me. 440. Maryland.— Peter v. 8., 4 Har, & McH. 8; 8. v. Cassell, 3 Har. & G. 407; S. V. Dowell, 3 Gill & J. 310; S. V. Evans, 7 Gill & J. 290; Wedge v. 8., 12 Md. 333. Massachusetts. — Com. v. Smith, 1 Mass. 245; Com. v. James, 1 Pick. 375; Com. v. Curtis, 11 Pick. 134; 340 OH. XLIX.] LA.EOENT SIMPLE AND COMPOUND. [§ 583. terms of the statute-, averments of the special facts which render it compound. So much, therefore, of the foregoing formula as charges a simple larceny, requiring only to be thus augmented Com. V. Merrifleld, 4 Met. 468; Hope V. Cora., 9 Met. 134; Com. v. Simpson, 9 Met. 138; Com. v. Williams, 9 Met. 273; Com. v. McDonald, 5 Cush. 365; Com. V. Adams, 7 Gray, 48; Com. v. Beaman, 8 Gray, 497; Com. v. Sher- man, 105 Mass. 169; Com. v. Fortune, 105 Mass. 593; Com. v. Glover, 111 Mass. 395; Com. v. Smith, 111 Mass. 439; Com. v. Randall, 119 Mass. 107; Com. V. Gallagher, 136 Mass. 54. Michigan. — Merwin v. P., 86 Mich. 298; Brown v. P., 39 Mich. 233. Minnesota. — S. v. Taunt, 16 Minn. 109; S. V. Loomis, 37 Minn. 531; [S.u Friend, 47 Minn. 449; S. v. Henn, 89 Minn. 464-476.] Missouri.— Steerman v. S., 10 Mo. 503; Wein v. S., 14 Mo. 135; S. v. Matthews, 20 Mo. 55; S. v. Edwards, 36 Mo. 394; S. v. Casteel, 53 Mo. 134; S. V. Williams, 54 Mo. 170; S. v. Arter, 65 Mo. 653; S. ■;;. English, 67 Mo. 136, 137; S. V. Sohatz, 71 Mo. 503; S. v. Craft, 73 Mo. 456; 8. v. Welch, 73 Mo. 284; S. V. Hughes, 76 Mo. 333; [S. v. Sharp, 106 Mo. 106; S. v. Thompson, 137 Mo. 630.] [Nebraslea. — Chezem u S., 56 Neb. 496.] Nevada. — S. r. Berryman, 8 Nev. 263, 368. New Hampshire. — S. v. Nelson, 8 N. H. 163; Arlen v. S., 18 N. H. 568; S. V. Cotton, 4 Fost. (N. H.) 143; S. v. Goodrich, 46 N. H. 186; S. v. Snyder, 50 N. H 150. New York. — P. v. Maxwell, 1 Wheeler, Crim. Cas. 163; P. v. Butler, 3 Cow. 347; Phelps v. P., 73 N. T. 334, 336, 6 Hun, 401, 403, 403; P. v. Phelps, 49 How. Pr. 437; Gibson v. P., 5 Hun, 543; P. V. Jackson, 8 Barb. 637; P. v. Caesar, 1 Parker, C. C. 645; Shay v. P., 4 Parker, C. C. 353, 355; [P. v. Dumar, 43 Hun, 80; P. v. Laurence, 137 N. T. 517.] North Carolina.— S. v. Jernigan, 3 Murph. 13; S. v. Arrington, 3 Murph. 571; S. V. Allen, 8 Hawks, 614; S. v. Clark, 8 Ire. 236; S. v. McLeod, 5 Jones (N. C), 818; S. v. Brown, 8 Jones (N. C), 443; S. ■;;. Simons, 70 N. C. 336; S. V. Gaston, 73 N. C. 93; S. v. Krider, 78 N. C. 481; S. v. Liles, 88 N. C. 496; S. V. McCoy, 89 N. C. 466; [S. v. Nipper, 95 N. C. 653.] OMo.— Stanley v. S., 34 Ohio St. 166. Oregon. — S. v. Lee Ping Bow, 10 Oreg. 37. Pennsylvania. — Fulmer v. Com., 1 Out. (Pa.) 503. South Carolina. — S. v. Thomas, 3 McCord, 537; S. v. Major, 14 Rich. 76; S. V. Hamblin, 4 S. C. 1. Tennessee. — Hampton v. S., 8 Humph. 69; Bolton v. S.. 5 Coldw. 650; Wedge v. S., 7 Lea, 687. Teajas.— Goodson v. S., 33 Tex. 131; S. V. Stephens, 33 Tex. 155; Prim v. S., 83 Tex. 157; S. v. Mansfield, 83 Tex. 139; Potter v. S., 39 Tex. 388; Mus- quez V. S., 41 Tex. 226; S. v. Earp, 41 Tex. 487; S. v. Williamson, 43 Tex. 500, 503: Wenz v. S., 1 Tex. Ap. 36; Quitzow V. S., 1 Tex. Ap. 47, 49; Lavarre v. S., 1 Tex. Ap. 685, 686; Harris v. S., 2 Tex. Ap. 103, 104; Ware V. S., 2 Tex. Ap. 547; Addison v. S., 3 Tex. Ap. 40, 42; Snow v. S., 6 Tex. Ap. 384; Conner v. S., 6 Tex. Ap. 455, 459; West V. S., 6 Tex. Ap. 485, 486; Lan- caster V. S., 9 Tex. Ap. 393; Roth v. S., 10 Tex. Ap. 27; MoAdams v. S., 10 Tex. Ap. 317; Dreyeru S., 11 Tex. Ap. 503; Cummins v. S., 12 Tex. Ap. 131, 133; Williams v. S., 12 Tex. Ap. 395, 897. Vermont— S. v. S. L., 3 Tyler, 249; S. V. White, 2 Tyler, 352; S. v. Jenkins, 341 §§ 564-587.] SPECIFIC OFFENSES. [book III. to charge also a compouud larceny, is, when reduced to its smallest proportions, — That A., etc., on, etc., at, etc., one, etc. [setting out the things stolen, and their respective values v^hen essential to the punishment], of the property of X., feloniously did steal, take and carry away, against the peace, etc. § 584. By servant, etc. — Under such statutory words as "if any clerk or servant shall steal, etc., of his master," etc., the allegations may be,: — That A., etc., on, etc., at, etc., being i the servant [or clerk] of X, one, etc. [as in the last form], of the property of the said X., his master, did then and there feloniously steal, take and carry away; against the peace, etc.2 § 585. In night. — The allegations may be, — That A., etc., on, etc. [as in burglary, ante, g§ 253, 354 And see ante, § 87. The rest as in ante, § 583].3 § 586. With breaking and entering, — Where the aggrava- tion consists of breaking and entering a building, wherein the larceny is committed, the analogies of burglary will show how the indictment should be.* § 587. With putting in fear.— The words of 3 Will. & M., ch. 9, § 1, creating some capital felonies, are, among others, " shall feloniously take away any goods or chattels, being in 2 Tyler, 377; S. v. Gilbert, 13 Vt. 647; S. V. Newton, 43 Vt. 537. Virginia. — Halkem v. Com., 3 Va. Cas. 4; Blevins' Case, 5 Grat. 703; Speers v. Com., 17 Grat. 570; Adams V. Com., 23 Grat. 949 ; Johnson v. Com., 24 Grat. 555; Johnson v. Com., 39 Grat. 796; Robinson v. Com., 32 Grat. 866. [Washington. — S. v. Barkuloo, 18 Wash. 141.] West Virginia. — Fredrick v. S., 3 W. Va. 695; S. v. Vest, 31 W. Va. 796, 797. Wisconsin. — Ford v. S., 3 Pin. 449; McEntee v. S., 24 Wis. 43. United States. — U. S. v. Davis, 5 Mason, 356; U. S. v. Moulton, 5 Mason, 537. 1 It would accord with some of the precedents, and it would make the allegation apparently more precise, to add here "and while he was." But, alike in reason and authority, it is not necessary. Rex v. Somerton, 7 B. & C. 463. 2 For other forms and precedents, see Crim. Pro., II, § 775; 6 Cox, C. C. Ap. 18; Rexu Somerton, gttpra; Reg. V. Heath, 3 Moody, 33; Reg. v. Hollo- way, 1 Den. C. C. 370; Reg. v. West, Dears. & B. 109, 110, note, 7 Cox, C. C. 183; Reg. V. Gorbutt, Dears. & B. 166, 7 Cox, C. C. 331; Reg. v. Jen- nings, Dears. & B. 447, 7 Cox, C. C. 397; Reg. v. Hinley, 2 Moody & R. 534. 3 For precedents, see 3 Chit Crim. Law, 972, 979; Com. v. Glover, 111 Mass. 395; S. v. Carver, 49 Ma 588; Johnson v. Com., 29 Grat. 796; S. v. Bartlett, 55 Me. 200. ^For the form, see ante, §§ 354, 255; Crim. Pro., II, § 777; 3 Chit. Crim. Law, 985, 986; Johnson v. Com., 29 Grat. 796; Com. v. Glover, 111 Mass. 395; S. v. Bartlett, 55 Me. 300; S. V. Carver, 49 Me. 588. 343 OH. XLIX.J LAHCENY SIMPLE AND COMPOUND. [§ 588. any dwelling-house, the owner or any other person being therein and put in fear ; " and Chitty has, under this clause, the fol- lowing: — That A., etc., on, etc. [with force and arms ^ J, at, etc., one silver teapot of the value of, etc., of the goods and chattels of one X., in the dwelling- house of her the said X. there situate then and there found and being, felo- niously did steal, take and carry away; and her the said X., then and there being in the said dwelling-house, did then and there put in bodily fear of her life; against the peace, etc.^ §588. From particular place.' — The statutes enhancing the punishment of larcenies when committed in particular places, which they specify, are in varying terms, and the pleader should be careful to follow those of the one on which he is proceeding. The form, to be varied with the differing statutes, may be, — That A., etc., on, etc., at, etc., did, in the dwelling-house [or shop, or store, or, etc., employing the term in the statute when sufficiently definite*] of X, one, etc. [setting out the articles stolen, and, when necessary, their respect- ive values 5], of the property * of the said X. [or of Y.], then being in said dwelling-house [or, shop, etc.],' feloniously steal, take and carry away; against the peace, etc.* 1 Needless. Ante, % 43. 2 3 Chit. Crim. Law, 986; Grim'. Pro., II, § 778. For a form adjudged not good, see Rex v. Etherington, 3 Leach (4th ed.), 671. 3 Crim. Pro., II, § 778; Crim. Law, II, §§ 900-903; Stat. Crimes, §§ 333, 334. * Such words as " dwelling-house," " shop " and " store " are sufficiently specific; and, if .one of them is in the statute, the pleader has only to trans- fer it to the indictment. Query, as to "building." Com. v. Smith, 111 Mass. 439; Rex v. Hickman, 1 Leach (4th ed.), 318; Crim. Pro., II, § 779. If " public place " were the statutory term, it would not suffice in the in- dictment, but the particular public place must be stated. Stat. Crimes, §§ 903-906; ante, § 493. s^nie, §§583, 583. " Ante, § 583 and note. ^I'hen being, etc.^This clause would seem, on first impression, not to be necessary, except to cover special statutory terms; because the averment that the defendant stole the goods in the dwelling-house car- ries with it the idea that they were in it. And see ante, § 583 and note. On the other hand, as statutes of this sort are interpreted to extend only to goods under the protection of the place and otherwise within their spirit (Stat. Crimes, g§ 333. 334; Crim. Law, II, § 903), there would appear to be ground for requiring even more of allegation than is contained in this clause. The form, as given in the text, accords with the majority of the precedents, -which certainly do not demand more, and it might not be quite safe with less. 8 See, for forms and precedents for larceny from dwelling-house, — ante, § 587; 3 Chit. Crim. Law, 985-987; 6 Cox, C. C. Ap. 16; Rex v. Pope, 1 Leach (4th ed.), 386; Rexu Campbell, 3 Leach (4th ed.), 564; Campbell v. Reg., 1 Cox, C. C. 369, 11 Q. B. 799, 800; Com. V. Curtis, 11 Pick. 134; Com. v. 343 §§ 589-592.] SPECIFIC offenses. [book hi. § 589. From the person.' — The indictment must cover the special statutory terms ; but, assuming that it does, it may be the same as for simple larceny,^ enlarged by the words, in any appropriate connection, "from the person of the said X." Thus,— That A., etc. [as at ante, § 583, down to and including " property of X"J, from the person of the said X.,' feloniously did steal, etc.* § 590. Description of things stolen: — Special care — is required in this part of the indictment. For not only must it be legally sufficient, but in prudence it should be such as not needlessly to embarrass the proofs at the trial. For example, the color of an article or an animal is often un- certain, or it varies with the lights in which it is seen, or the witness is color blind. Its averment is never necessary, and consequently is never prudent. And the same observation ap- plies to various other descriptive matter which incautious pleaders are in the habit of introducing into their allegations to create trouble at the trial. For however unnecessary such matter may be, it must be proved precisely as laid or the case will miscarry by reason of the variance.' §591. Elsewhere — Here. — In " Criminal Procedure " we saw what are the legal requirements.^ The purpose here will be to present some forms which, while good in law, are prac- ticably convenient. If not complete, they will furnish analo- gies to which others may conform. § 593. For common-law larcenies. — For the larceny of articles which are the subjects of this offense at the common law, the descriptions of them may be such as — One horse [or colt, or mare, or gelding], of the value of, etc [or two Williams, 9 Met. 273; In man v. S., 54 iCrim. Law, II, §§ 895-899; Crim. Ga. 319; Smith v. S., 60 Ga. 430; Pro., II, § 780. Sallie V. S., 39 Ala. 691 ; Moore v. S., 40 2 Ante, § 583. Ala. 49. From storehouse, — Davis s Crim. Pro., II, § 780. V. S., 33 Ga. 98; Jenkins v. S., 50 Ga. *For forms and precedents, see 3 S38. From shop, etc.,— 3 Chit. Crim. Chit. Crim. Law, 988; 6 Cox, C. C. Law, ,986. From lodging-room,— Ap. 18; Rex v. Craddock, 3 Den. C. C. Rex V. Goddard, 2 Leach (4th ed.), 81; Reg. v. Fallon, Leigh & C. 317, 9 545; Rex v. Burnel, 2 Leach (4th ed.), Cox, C. C. 342; Du Bois v. S.. 50 Ala. 588; Rex v. Palmer, 3 Leach (4th ed.) 139. 680. From building,— Com. v. Smith, sjCrim. Pro., I, §§ 485, 486, 488; Stat. Ill Mass. 429. From clinrch,— 3 Crimes, g 443. Chit. Crim. Law, 987. From wrecked « Crim. Pro., II, §§ 700-713, 731-735. sliip, — 3 Chit. Crim. Law, 1098. 344 CH. XLIX.J LAEOENr — SIMPLE AND COMPOUND. [§ 592. horses each i of the value of, etc., or, two horses the one of the value of, etc., and the other of the value of, etc. ; or, one horse of the value of, etc., one horse of the value of, etc., and one other horse of the value of, etc.].^ Three cows each of the value of, etc. ; ^ one ox of the value of, etc. [or two oxen each of the value of, etc.]; < six sheep each of the value of, etc. ; * one carcass of mutton [or one sheep killed and dressed for food] of the value of, etc. ; " seven hogs, two thereof each of the value of, etc., two others thereof each of the value of, etc., and one thereof of the value of, etc. ; ' one barrel of pork [or twenty-flve pounds of pork] of the value of, etc. Twenty pounds of wool [in a case where the defendant caught live sheep and pulled the wool from them], each pound thereof of the value of, etc.; ' one thousand gallons of water [taken from a water-supply company], each hundred gallons thereof of the value of, etc. ; ' ten thousand cubic feet of illuminating gas [where the defendant surreptitiously attached a pipe to the supply pipe of a gas company], each cubic foot thereof of the value of, etc. ; 1' six quarts of milk [as well where it is taken by milking another's cow as in other cases], each quart thereof of the value of, etcH 1 Ante, % 583 and note. 2Crim. Pro., II, §§ 700, 713-715; Stat. Crimes, §§ 313, 347, note, 348, 436, 440, 443. For precedents, see May- nard v. S., 46 Ala. 85; Myers v. P., 26 IIL 173; S. v. Major, 14 Rich. 76; Halkem v. Com., 3 Va. Cas. 4; Snow V. S., 6 Tex. Ap. 384; 3 Chit. Crim. Law, 980. ' Crim. Pro. and Stat. Crimes as above; S. v. Hamblin, 4 S. C. 1; Stol- lenwerk v. S., 55 Ala. 143; P. v. Wink- ler, 9 Cal. 334. * 8. V. Leavitt, 66 Me. 440; Musquez V. S., 41 Tex. 336. »8 Chit. Crim. Law, 980; Reg. r. Barran, Jebb, 245; Reg. v. Martin, 1 Den. C. C. 398, 399, 3 Car. & K. 950, 3 Cox, C. C. 447. "The single word "sheep," "ox," "cow,"' etc., 'means the live animal. Crim. Pro., IX, § 708. 'Beard v. S., 54 Ind. 413; Boy kin V. S., 34 Ark. 448; McDowell v. S., 61 Ala. 173; Bonner v. S., 55 Ala. 343; Hunt V. S., 55 Ala. 138; S. v. Mat- thews, 20 Mo. 55. ' Rex V. Martin, 1 Leach (4th ed.), 171. 9 In Ferens v. O'Brien, 15 Cox, C. C. 333, the averment was " feloniously did steal, take and carry away two buckets of water of the value of one penny," etc. The defendant had drawn the water, without permis- sion, from the tap of a water-supply company. There was a conviction without objection to the form of the allegation. But, with us, a charge of stealing two " bottles " of liquid is held not to be sustained by proof that the defendant filled his own bottles from the cask of the in- jured person. Crim. Pro., II, § 710. And plainly, in both these cases, the fluid was stolen before it became a " bucket " or " bottle " thereof. Yet as a gallon is a measure independent of the particular vessel holding it, there was a certain number of gal- lons as well before the theft as after- ward. 10 Reg. V. White, Dears. 303, 6 Cox, C. C. 313; Com. v. Shaw, 4 Allen, 308; Reg. V. Firth, Law R. 1 C. C. 173. 11 Of course, the allegation in other terms may be equally good. A prece- dent in Chit. Crim. Law, 983, is, — That A., etc., on, etc., at, etc., "un- lawfully did enter a certain stable there situate, belonging to one X, and then and there' unlawfully and injuriously did milk a certain cow, of and belonging to the said X., being in the stable of him the said X. ; and that he the said A. by such milk- 345 §§ 593-595.] SPECIFIC offenses. [book hi.. Twelve pounds of beef, each pound thereof of the value of, etc. ; fourteen' pounds of lamb,i killed and dressed for food, each pound thereof of the value of, etc. ; one turkey, killed and dressed for food, of the value of, etc. ; 2 three eggs of hens,^ each egg of the value of, etc.* § 593. Other forms — may readily be constructed by con- sidering ttiese and the expositions in " Criminal Procedure " and " Statutory Crimes." ^ § 594. Statutory larcenies. — Where a thing is newly made the subject of larceny by a statute, it should be described after the analogies from the rules for common-law larceny, following also the statutory terms, as in other indictments on statutes.* Hence, — § 595, Practical methods. — As the statutes of our states vary, and even those of the same state change from time to time, it is not safe simply to follow a printed form, whether- found in a book of precedents or in an adjudged case. The pleader, before he draws the indictment, should lay before him the particular statute on which he is to proceed, with the judi-^ cial interpretations of it which the courts have made, or he deems they will make.' And he should bear in mind that he must cover its interpreted terms, according to the ordinary" rules for indictments on statutes,' and at the same time satisfy^ the common-law rules for describing the things stolen. Thus, — ing did then and there draw and the word " meat " is too indefinite., extract three quarts of milk, of the Crim. Pro., II, § 700. value of three pence, from and out ^Coin. — How to describe coin, cur- of the said cow; and the said three rent and unourrent, ante, g§ 403, and quarts of milk, so drawn and ex- note, 404, 407, 423, note; Crim. Pro.^ tracted as aforesaid, of the goods II, g§ 703-705; 3 Chit. Crim. Law, and chattels of the said X., he the 960, 987; 6 Cox, C. C. Ap. 7, 187: said A. then and there unlawfully Sallie v. S„ 39 Ala. 691 ; S. v. Bartlett, and feloniously did steal, take and 55 Me. 200; Daily v. S., 10 Ind. 586;. carry away," etc. S. v. Evans, 7 Gill & J. 290; Lavarre- 1 Perhaps "fourteen pounds of u S., 1 Tex. Ap. 685, 686. Books — lamb " would be held to indicate the Printed sheets. — One hundred cop- killed and dressed article, not the ies of the printed sheets of a certain living creature. But the fuller form publication called, etc., is good, but in the text is certainly safe. not supported by proof of the lar- ^ Compare with Crim. Pro., II, ceny of them after they are bound.. § 706. Com. V. Merrificld, 4 Met. 468. 3 "Of hens," necessary. Id., § 707. sCrim. Pro., II, § 730 et seq.; Stat. 4 " Meat." — All these things, and Crimes, § 416. many more, are "meat;" therefore ' An/e, g§ 33-34. sCrim. Pro., I, §§608-642. 346 CH. XLIX.] LAECENY — SIMPLE AND COMPOUND. [§§596-598. §596. Ore from mine. — Under a statute making it larceny to "steal . . . the ore of any metal . . . from any mine," ^ the ore should be described according to the rules of the common law; that is, if we follow the ordinary precedents, by saying so many pounds of ore. Then looking into the stat- ute, we find the added words "of any metal; " and these must be covered. Probably the word " metal " alone would be deemed too general in allegation, consequently the species of it should be stated.^ And, lastly, we have the statutory ex- pression " from any mine." This also must be taken into the averments; and it will not be adequate simply to say, after the ordinary common-law precedents, " then and there being found." ' The form may be, — That A., etc., on, etc., at, etc., did feloniously steal, take and carry away, from the mine of copper of X., twenty pounds of copper ore, of the value of, etc., of the property of the said X. ; against the peace, etc.^ § 597. Lead fixed to dwelling-house. — Under the statutory words " steal, rip, cut, or break with intent to steal, any lead, etc., being fixed to any dwelling-house," etc.,' the averments are governed by the same principles ; thus, — - That A., etc., on, etc., at, etc., sixty pounds of lead, of the value of, etc., of the property of X, then and there being fixed to the dwelling-house of the said X., feloniously did rip, steal, take and carry away; against the peace, etc.'* § 598. Things growing on land — are in most of our states made the subject of larceny, but in varying terms. Under a provision to punish "any person who shall unlawfully go upon the tands of another, and any person who shall unlawfully pull off, or pull off and carry away, any corn growing on the stalk, or any fruit on the tree, bush, or plant, pumpkin or melon on the vine, or other annual product attached to the realty, or 1 34 & 25 Vict., c. 96, § 38 (re-enact- 5 4 Geo. 2, c. 33. ing in substance 2 & 3 Vict., c. 58, * 3 Chit. Crim. Law, 973. And see, § 10). for other forms. Rex v. Hickman, 1 2 Crim. Pro., I, § 619. Leach (4th ed.), 318; 6 Cox, C. C. Ap. 3 Reg. V. Treyenner, 2 Moody & R. 8-10. For the larceny of lead fixed to 476. a wharf, under the similar statute of ^ For forms, see Reg. v. Trevenner, 7 & 8 Geo. 4, c. 29, § 44, the allegations supra. And, under the modified En- are substantially the same. Reg; ■;;, glish procedure, Archb. Crim. PI. & Rice, Bell, C. C. 87, S Cox, C. C. 119. Ev. (19th ed.) 897; 6 Cox, C. C. Ap. 10, 11. 347 §§ 599-601.J SPECIFIC OFFENSES. [bOOK III. growing in the soil, of the value of ten cents or upwards, the property of another," — creating, the reader perceives, a mis- demeanor similar to but not larceny, — it will be good in alle- gation to say, — That A., etc., on, etc., at, etc., unlawfully went upon the land there of one X,i and upon said land then unlawfully pulled off and carried away there- from one half bushel of corn in the ear there growing on the stalk, of the value of, etc., of the property of said X.; against the peace, etc' § 599. Another. — Under a statute making it " petit larceny '' for one to " steal, take, and carry away any roots, plants, grain, corn, flax, hemp or any cultivated grass or fruit, in which he has no right or interest, standing, lying or being on the laud of another," it will be good in allegation to say, — That A., etc., on, etc., at, etc., did unlawfully [and feloniously 3] steal, take and carry away from the land of one X there,* one bushel of corn then standing and being on said land [of the value of, etc^j, of the property of the said X, he the said A. not then and there having in said corn any right or interest; against the peace, etc.* § 600. Growing or outstanding crop. — The provisions in the last two sections may be deemed within the general class of legislation, prevailing in various states, for the protection of a growing or outstanding crop. The statutes are diverse, and the indictment must cover the particular one on which it is drawn.' § 601. Writings. — The method of charging a writing, made by statute a subject of larceny, appears in the foregoing and 1 In the form before me, the pleader and; as to which, see ante, § 598 and proceeds here to describe the land. note. But in principle this cannot be neces- ° On a statute simply in the words sary. Ante, §§ 443 and note, 444 and quoted in this section, this allega- note; Dorrell v. S., 80 Ind. 566. tion, though in the form before me, 2 S. V. AUisbach, 69 Ind. 50. And is not necessary. Ante, g§ 174, 403, see post, §§ 599, 600. This offense is 430, 583, and the notes thereto, likewise a species of trespass on land; * S. v. Schatz, 71 Mo. 503. And see also, of malicious mischief. See those post, % 600. titles. ' Consult S. v. Pender, 83 N. C. 651 ; 3 The word '' feloniously " is not in Holly v. S., 54 Ala. 238; Harris i'. S., the form before me. At common 60 Ala.. 50; S. u Sears, 71 N. C. 295. law, petit larceny is a felony, and it There are forms in Preacher v. S., 61 should be laid as committed feloni- Ala. 23; Lyon v. S., 61 Ala. 324; ously. But it is misdemeanor in some Pinckard u S.,63 Ala. 167; Smither- of the states; when, of course, the man v. S., 63 Ala. 24; Johnson v. S., word "feloniously" is not required. 68 Ind. 43; S. v. Liles, 78 N. C. 496; Crim. Law, I, §g 679, 935. S. v. Walker, 87 N. C. 541. And see * The form before me describes the the title Trespass to Land. 348 CH, XLIX.j LAECENT SIMPLE AND OOMPOUND. [§ 602. in "Criminal Procedure."^ In the statutory words or their equivalents,^ and in so many of them as to include all qualify- ing matter,' it is designated simply as any ordinary chattel is, in the common-law indictment.* Thus, — § 602. Bank-note. — On the single term " bank-note " in a statute, accompanied by nothing to require enlargement or limitation, it is adequate and practically best, where the proofs will be sufficiently definite, to say,^- One bank-note [or bank-bill] for the payment and of the value of, etc., of the property of, etc. [or, five bank-notes, each for the payment and of the value of, etc., of the property of, etc.].^ 1 Ante, § 594 et seq. ; Crim. Pro., II, §§ 714, 731, 732. 2 Crim. Pro., I, §§ 613, 618, 619. Thus, if the term in the statute is " bank- note," the word of larger meaning, " note," will not suffice in allegation. Eex V. Craven, Russ. & Ry. 14 'I Ante, § 596; Crim. Pro., II, § 734; Kearney v. S., 48 Md. 16. . S., 50 Ala. 130; Hafter ti. S., 51 pecially as thereby an embarrass- Ala. 37; Lawson v. S., 55 Ala. 118. ing question of duplicity would be 1 1 presume this allegation of the avoided, residence of the principal is needless. ' S. v. Smith, 64 Me. 423. Ante, §§ 78. 79. ■* Albrecht v. S., 8 Tex. Ap. 216. 2 The matter in these brackets is For like precedents under the Vir- not in the form before me, nor does ginia statute, see Helfrick v. Com., this or the other part of the aver- 29 Grat. 844; Glass v. Com., 83 Grat. ment that the rum was sent to the 837. purchaser seem essential. But is not ^ Needless, unless perhaps under this matter in brackets necessary if special facts. Ante, § 139 and nota 386 CH. LI.] MQUOE KEEPING AND SELLING, [§ 660. said license [say what, as], certain screens, blinds, shutters, partitions and other obstructions, which interfered with a view of the business conducted upon said premises; against the peace, etc.i § 660. Practical suggestions. — The legislation considered in this chapter is so rapidly changing that the pleader should be cautious about relying implicitly upon forms once good, whether found in reported cases or in book of forms. Let him consider carefully the present condition of the statutory law in his state, then lay before him the statutes and printed forms, and he will encounter no difficulties. For the defense, when the law is duly mastered, there will remain nothing which will not be obvious to the competent practitioner. 'For precedents, see Coia v. Costello, 133 Mass. 192; Com. v. Auberton, 183 Mass. 404. For LIQUOR NUrSANCE, see NuiSANca LIVING IN ADULTERY OR FORNICATION, see Adultery, etc. 387 CHAPTER LII. LORD'S DAY.l § 661. How the indictment. — Whatever be the common law of Sabbath-breaking, seldom will there be occasion to draw an indictment upon it ; for, in the ordinary case, the proceeding on the statute will be plainer and more effective. Still, — § 662. Common-law nuisance. — There may be circum- stances in which the indictment for the common-law nuisance of Sabbath-breaking should be chosen. The practical ' diffi- culty is that the law of this offense is not with exactness de- fined.2 But it is believed that the following will suffice in allegation : — That A., etc., on, etc., being the day of the week set apart by law and custom for the cessation of ordinary labor and merchandising, and for re- pose, and for religious worship, called Sunday, or the Sabbath, or the Lord's day, and thence continually on every Sunday down to and including the last Sunday before the finding of this indictment,' at, etc., was a common Sabbath-breaker and profaner of the Sabbath, and did then and there, and on all of said days there [ante, % 84], to the disturbance of the public repose and public order, and in annoyance of all well-disposed people, open and keep open, beside and within view from a certain highway there, whereon were people continually and lawfully passing, and within view of many dwelling-houses wherein people were abiding, a certain shop and store, and publicly carry on the business of merchandising and buying and selling goods and chattels in and around the same, and continually bring and con- vey away merchandise to and from the same; to the common nuisance of all the people, and against the peace, etc.^ 1 For the direct expositiohs of the strictly necessary. Ante, § 81. Still, offense of Sabbath-breaking, or vio- in various circumstances, the pleader lating the Lord's day, see Crim. Law, will doubtless choose to employ it. II, §§ 950-970; Crim. Pro., II, §§ 813- * The following precedent is from 818. Incidental, Crim. Law,I„§ 499; 2 Chit. Crim. Law, 20,— II, § 1280; Crim. Pro., I, §§ 207, 399, "That A., etc., on, etc., and con- 636, 641, 1001; Stat. Crimes, §§143, tinually afterwards until the day of 198, 313, 237, 245, 852, 1070o. the taking of this inquisition, at, etc., 2 Crim. Law, II, §§965, 967; Crim. was and yet is a common Sabbath- Pro., II, § 813. breaker and profaner of the Lord's 3 1 do not doubt that this offense day, commonly called Sunday; and may be committed on a single Sun- thatthe said A.,on the said,eto., being day, and so the continuando is not the Lord's day and on divers other 388 OH. LII.j LOEd's DAT. [§ 663. § 663. Formula for indictment on statute. — The statutes are so diverse that no formula for the indictment upon them can be more than a partial outline and be accurate. Therefore only the following will be attempted: — That A.,etc. [ante, §§ 74-77J, on, etc., being Sunday [or, the Lord's day, etc., employing the statutory word, and, where the statute limits the offense to days and times being the Lord's days those days, at, etc., aforesaid, in the during the time aforesaid, at, etc., in a certain place there called Clare- market, did keep a common public and open shop, and in the same shop did then and on the said other days and times being the Lord's days, there openly and publicly sell, and expose to sale, flesh meat, to divers persons to the jurors aforesaid as yet unknown; to the evil example of all others, to the common nuisance of all the liege subjects of our said lord the king, and against the peace, etc." Chitty explains: "See the prece- dent in Cro. C. C. (7th ed.) 529, omit^ ted in the eighth. As to the offense, according to Rex v. Brotherton, 1 Stra. 703, 2 Sess. Cas. 334; Drury v. Defontaine, 1 Taunt. 131, 134, it is not an offense at common law to sell goods on a Sunday, but publicly keeping an open sliop seems to be in- dictable. . See 4 Bl. Com. 63; 1 East, P. C. 5. It is said in 1 Hawk. P. 0. (7th ed.) c. 6, § 6, that the selling meat on Sunday is no offense at the common law ; yet that, if the offender keep open shop, the usual method is to indict at the sessions for the nui- sance." This compiler, in another place (3 Chit. Crim. Law, 673), has the following, also upon the common law: — " That A., etc., being a common Sab- bath-breaker and profaner of the Lord's day, on, etc., and on divers other days respectively, being the Lord's day, and between that day and the taking of this inquisition, during the time of divine service on each of the said respective days, to wit, at the hour of twelve on each of dwelling-house of him the said A. there situate, being a common tip- pling house, did openly sell and utter, and caused to be sold and uttered, ale and beer, and other liquors, to divers idle and ill-disposed persons, whose names to the jurors aforesaid are as yet unknown; and that the said A., on the said, etc., and on divers other days during the time of divine serv- ice on each respective day, at, etc., in his said dwelling-house, did unlaw- fully and wilfully permit and suffer divers idle, etc., to remain and con- tinue drinking and tippling; to the common nuisance of his majesty's liege subjects [an allegation which, Chitty intimates, is not necessary]; to the evil example, etc., in contempt, etc., and against the peace," etc. Returning to the form proposed in the text, perhaps some pleaders will choose to add an averment of sales to persons named or unknown. Still I can discover no principle requiring this. And see ante, §§ 655; 656, and particularly the places there re- ferred to; showing that such minute- ness, in this class of offenses, is not necessary. It will be seen that I have taken more pains than did the draughtsmen of the precedents from Chitty to set out the particulars which make the defendant's acts a public nuisance, not meaning to ex- press any opinion upon the suffl- ciency of those precedents. Since a private sale on Sunday is not a com- mon-law offense, the indictment must allege more; and the authori- ties are not distinct as to how much more. 389 § 664.J SPECIFIC OFFENSES. [book III. a part of the day, add the allegation here, as see ante, §g 85, 86, 653 1], at, etc., did, etc. [say what]; against the peace, etc. [ante, g§ 65-69J.2 § 664. Keeping open shop. — Under a statute to punish one "who, "on the Loi'd's day, keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, ex- 1 A statute, after creating various California. — P. v. Maguire, 26 Cal. offenses against the Lord's day, con- cluded, in a separate section: "The Lord's day shall include the time from midnight to midnight." Mass. Gen. Stats., ch. 84. § 13. And a form of the allegation before me is, that on, etc., " that day being the Lord's day, and between the midnight pre- ceding and the midnight succeeding the said day." Com. v. Wright, 13 Allen, 187. Pretty plainly, in prin- ciple, the simple averment that the time -was the Lord's day, vcithout the words " between the midnight," etc., would have suflSced. And, in Com. V. Lynch, 8 Gray, 384; Com. v. Samp, son, 97 Mass. 407, and various other cases wherein the proceeding was sustained, no more was alleged. An earlier statute in this state declared that the Lord's day should " extend from the midnight preceding to the sunsetting of that day." And it was held that these words need not be covered by averment. "The stat- ute," said Parsons, C. J., " has defined the time which is intended to be considered as the Lord's day. It is, therefore, regular to allege the fact on the Lord's day generally." Com. V. Messenger, 4 Mass. 463, 465. For a doctrine local to Georgia, see Wer- ner V. 8., 51 Ga. 436; Crim. Pro., I, §399. 2 For precedents, see Eeg. v. Cle- worth, 4 B. & S. 936: Reg. v. How- arth, 33 U. C. Q. B. 537. Arkansas. — S. v. Anderson, 30 Ark. 131 ; S. V. Jeffrey, 33 Ark. 136 ; Bridges u S., 37 Ark. 324; [Scales v. S., 47 Ark. 476.] 635, 639. Oeorgia. — Werner v. S., 51 Ga. 436. Idaho.— F. V. Griffin, 1 Idaho Ter. (N. S.) 476. Indiana.— Foltz v. S., 33 Ind. 315; Eitelu S., 83 Ind. 201; McCarthy v. S., 56 Ind. 203; Wilkinson v. S., 59 Ind. 416; Edgerton v. S., 67 Ind. 588; Carver v. S., 69 Ind. 61; Mueller v. S., 76 Ind. 310; Yonoski v. S., 79 Ind. 393; [S. V. Sauerbaugh, 133 Ind. 308.] Massachusetts.— Com. v. Messen- ger, 4 Mass. 463; Com. v. Knox, 6 Mass. 76; Com. v. Maxwell, 3 Pick. 139; Com. v. Collins, 3 Cush. 556; Com. V. Lynch, 8 Gray, 384; Com. v. Colton, 8 Gray, 488; Com. v. Wright, 12 Allen, 187; Cora. v. Sampson, 97 Mass. 407; Com. v. Crowther, 117 Mass. 116. Michigan, — Lynch v. P., 16 Mich. 472. Mississippi. — Kline v. S., 44 Miss. 317, 319. Missouri. — S. v. Crabtree, 27 Mo. 232; S. V. Carpenter, 63 Mo. 594. New York. — P. v. Hoym, 20 How. Pr. 76. North Carolina. — S. v. Williams, 4 Ire. 400: S. v. Howard, 67 N. C. 24. Pennsylvania.— Johnston v. Com., 10 Harris (Pa.). 103; Com. v. Nesbit, 10 Casey (Pa.), 398. South Carolina. — S. v. Meyer, 1 Speers, 305; S. v. Helgen, 1 Speers, 310. [Tennessee.— Parker v. S., 16 Lea, 476.] Virginia.— Thon v. Com., 31 Grat. 887. West Virginia.— S. v. Baltimore & Ohio R. Co., 15 W. Va. 363. 890 CH. LII.j LOED S DAT. [§ 665. cept works of necessity and charity," ' the allegations for keep- ing open shop must extend beyond these mere statutory words, and state some unlawful purpose therein ; for such purpose the statute, by interpretation,^ requires as an element in the offense.' The averments may be, — That A., etc., on, etc., beiag the Lord's day,* at, etc., did keep open his shop there for the purpose of doing business therein [or exposi ng for sale and selling 5 goods, wares and merchandise in his said shop], the same then and there not being works of necessity or" of charity; against the peace, eto.7 § 665. Selling.— Upon a statute to punish one wha " shall, on Sunday, . . . retail any goods, wares or merchandises, ... . or sell or retail any spirits or wine," the averments may be, — iMass. Pub. Stats., ch. 98, § 2; Gen. Stats., ch. 84, § 1. ^ Ante, % 32. 3 Com. V. Collins, 3 Cush. 556. * Ante, § 663 and note. 5 This does not make the indict- ment double. Crim. Pro., II, § 815. * The conjunction in these negative averments should, prima facie, be " and " or " or " according as it is the one or the other in the statute. It is familiar doctrine that, if it is " or " in the statute, it must be "or " in the allegation. Ante, § 642, note, and places referred to; Stat. Crimes, § 1043. So here, if the statute is to be interpreted literally, the work, to be excepted, must be both " of neces- sity and charity; " and the negative, to cover the exact idea, must be that it was not "of necessity and charity." Still to declare that it was neither covers also the same idea and more. The precedents before me have " or " in this place. Shall we substitute for it "and?" I should say yes, be- cause thus the averment will be abso- lutely accurate, were it not that the courts will perhaps interpret the "and " of the statute to signify "or." And there is strong reason to believe that they will. Stat. Crimes, § 243; Crim. Law, II, g 959. Should they so interpret it, "and" in this allegation would be fatal. So it is prudent to adhere to "or." 7 For precedents see Com. v. Wright, 12 Allen, 187; Com. v. Lynch, 8 Gray, 384. Under the words " it shall not be lawful for any owner or occupier of any grocery store or retail shop, within the limits of Charleston Neck, etc., to keep open the said stores, shops or places, or to trade, traffic or barter therein, with negroes or per- sons of color, at any time on the Sab- bath day," it is good in allegation to say that the defendant, being the owner and occupier of such shop, " did keep open the same on the Sab bath day, and did trade; traffic and barter therein, with negroes and per- sons of color." S. V. Meyer, 1 Speers, 305; S. V. Helgen, 1 Speers, 310. Where the thing forbidden is " keep- ing open any ale or porter house, grocer}' or tippling-shop; and selling or retailing any fermented or dis- tilled liquor, on," etc., it will be ade- quate in allegation to say that the defendant " did then and there, on, etc., at, etc., unlawfully keep open a grocery, by then and there permitting persons to enter said grocery, and then and there to drink intoxicating liquors." S. v. Crabtree, 27 Mo. 232; [Com. V. Uextra, 143 Mass. 28.] 391 § 666.] SPECIFIC OFFENSES. [bOOK III. That A., etc., on, etc., being Sunday [ante, §§ 653, 663], at, etc., unlawfully did sell by retail i to one X one yard of cloth [or, one pint of whiskey];' against the peace, etc' § 666. Unlawfully entertaining. — Where one who, " keep- ing a house, shop, cellar or place of public entertainment and refreshment, entertains therein on the Lord's day any persons not being travelers, strangers or lodgers, or suffers such per- sons on said day to abide or remain therein, or in the yards, orchards or fields appertaining to the same, drinking, or spend- ing their time idly or at play, or in doing any secular busi- ness," * is declared by statute punishable, the pleader may ' proceed on one of the alternative clauses, or conjunctively on two or more of them, as he deems best.' The form may be, for example, — That A., etc., on, etc., being the Lord's day [ante, § 668], at, etc., was the keeper of a certain house [or shop, or cellar, or place] of public entertain- ment and refreshment,^ and did then and there unlawfully [passing over one of the alternative clauses in the statute] suffer one X. and one Y. [or twenty persons whose respective names are to the jurors unknown], not being then and there travelers, strangers or lodgers therein, to abide and remain therein, drinking and spending their time idly [and, there being now a complete offense charged, the pleader can, if he chooses, go back and take in clauses which he has passed over; as], and did then and there and therein entertain said X. and Y. [or said unknown persons]; against the peace, eta' 1 As to the effect of the word "re- tainly it can be either and likewise tail," see Stat. Crimes, §§ 1013, 1016, a place of public entertainment and 1045, note. refreshment, so that there is no re- 2 Probably, in a few of the states, pugnance, the incongruous averment the courts will require the allegation does not render the indictment de- of price to be added. Ante, g 648, murrable. But query whether the note; Stat. Crimes, § 1040. proofs must not show the place to ' For precedents, see Bridges v. S., have been alL See, for illustration, 37 Ark. 234; Kline v. 8., 44 Miss. 817, Crim. Pro., I, §§ 484, 588; II, §§ 489, 319; Reg. v. Howarth, 33 TJ. C. Q. B. 440. I think few who examine these 637; [Day v. S., 21 Tex. Ap. 313.] cited sections and the cases they * Mass. Stat. 1864, oh. 79, § 1. refer to will disregard this query, 5 Crim. Pro., I, § 436; Stat. Crimes, since in no view is anything gained § 244 by the incongruous allegation. 6 In a form before me the allega- ''Following substantially the prece- tion here is, " was the keeper of a cer- dent in Com. v. Crowther, supra. tain house, shop and place of public For a form, not good, on a statute entertainment and refreshment." differently worded, see Com. v. Max- Com. V. Crowther, 117 Mass. 116. If well, 2 Pick. 139. For keeping open a place can be both a house and a a saloon on Sunday, Lynch v. P., 16 shop, as probably it can, while cer- Mich. 473. The case of Com. v. Max- 393 CH. LII.] LOED's DAT. [§§ 667, 668. § 667. Traveling — is, or may be, within statutes forbidding ordinary labor.^ But it has been sometimes prohibited in more direct terms ; as, " no traveler, drover, wagoner, teamster or any of their servants shall travel on the Lord's day or any part thereof, except from necessity or charity." And on these words it is a condensed yet ample form to say, — That A., etc., on, etc., being the Lord's day [ante, § 663], at M., etc., did, being then and there a traveler, unlawfully and not from necessity or charity, travel with a horse and wagon 2 in and through the said town of M., along the highway there; against the peace, etc' §668. Work — ("Common labor"). — A statute provides that, "if any person of the age of fourteen years and upwards shall be found, on the first day of the week commonly called Sunday, rioting, hunting, fishing, quarreling, at common labor or engaged in their usual avocations, works of charity and necessity only excepted, such person shall be fined, etc. ; but nothing herein contained shall be construed to aflfect such as conscientiously observe the seventh day of the week as the Sabbath, travelers, families removing, keepers of toll-bridges and toll-gates, and ferrymen, acting as such." By consulting rules stated elsewhere,* the reader will see that the indictment on this statute need not take notice of the part following the words " but nothing," yet it must negative the exceptions in the preceding clause. It may aver, — That on, etc., being the first day of the week commonly called Sunday lante; § 463], at, etc., A., etc., being then and there over the age of fourteen years,^ was found unlawfully at common labor and engaged in his usual avocation, in that he did then and there unlawfully sell and deliver to one X two cigars, and receive from him in payment therefor the sum of ten cents * [or, to wit, selling and delivering to one X two quarts of beer, and well admirably illustrates the prin- be found an awkward form for the ■ciple (Grim. Pro., I, §§ 77-88) that an averments. indictment must set out every fact ^ i think it well to aver the mode of which in law is essential to the pun- travel, because it identifies the trans- ishment to be inflicted. The statute action. Still, in the absence of more provided that, for its violation, the conclusive authority than a preoe- defendant should pay a fine of so dent or two, one would hardly feel much "for each person so entertained safe in declaring it to be strictly or suffered." And the court quashed necessary. the indictment because it did not ' Com. v. Knox, 6 Mass. 76. state the number of persons. * Crim. Pro., I, g§ 636-641. iCrim. Law, II, g§ 956, 960; Com. ecrim. Pro., II, § 818. V. Messenger, 4 Mass. 462, where may ^ Ante, § 648, note, 665, note. 398 §§ 669-671. J SPECIFIC OFFENSES. [book ni. receiving from him twenty-five cents in payment therefor], the same not being a v^ork of necessity ori charity; against the peace, etc.2 § 669. Another. — On the statute recited ante, § 664, the alle- gations may be, — That A., etc., on, etc., being the Lord's day \ante, § 663], at, etc., did do and perform the labor, business and work of [say what; as, for example] pitch- ing into a cart certain sea-manure of kelp and hauling it up a beach there, the same not being a work of necessity or charity; against the peace, etc.' §670. Bowling alley — (Gaining). — Under a statute mak- ing punishable " the keeper for the time being of any billiard room or table, or of any bowling alley, who shall suffer any persons to play at the same after six o'clock in the afternoon of Saturday, or after ten o'clock in the afternoon of any other day," it is good to aver, — That A., etc., on, etc., being Saturday [ante, % 663], at, etc., was the keeper for the time being of a certain bowling alley [there situate *], and did then and there suffer and permit certain persons whose names are to the jurors [or complainant] unknown, to play at and in the said bowling alley after the hour of six o'clock in the afternoon of sr-id day; against the peace, etc' § 671. Other forms, — when required in practice, may easily be drawn in analogy to the foregoing.* 1 As to whether this should be "or " ' Com. v. Col ton, 8 Gray, 488. Per- or " and," see ante, § 664, note. haps some will say that Saturday is 2 For precedents, see Carver v. S., 69 not Sunday, and so this precedent Ind. 61; Eitel v. S., 33 Ind. 201; Yo- does not belong hera But the in- noski V. S., 79 Ind. 393, and various hibition was intended as a sort of Indiana cases cited ante, § 663. Upon preparation for the Sabbath. Cards. the Missouri statute, S. v. Carpenter, For playing at cards on Sunday, S. v. 63 Mo. 594 For a form in North Anderson, 30 Ark. 131; S. v. Jeffrey, Carolina, held ill because the offense 33 Ark. 136. was not indictable, see S. v. Williams, ' Tippling-honse. — For keeping a 4 Ire. 400. Against a railroad corpo- tippling-house on Sunday, "Werner v. ration for laboring on Sunday, S. v. S., 51 Ga. 426. Theatre, — getting up Baltimore & Ohio R. Co., 15 W. Va. a, on Sunday, P. v. Maguire, 26 Cal. 363; [Cleary v. S., 56 Ark. 124.] 635, 639. Play,— exhibiting, on Sun- 3 Com. V. Sampson, 97 Mass. 407. dd,y, P. v. Hoym, 20 How. Pr. 76. < Unnecessary. Ante, §g 179, note, Gun. — Being found, on the Sabbath, 253, note; Com. v. Crowther, 117 oflf one's premises with a shot-gun, S. Mass. 116. V. Howard, 67 N. C. 24 394 CHAPTER LIII. L0TTERIES.1 § 672. Formula for indictment. — The subject of this chap- ter, more distinctly than that of the last, presents such vary- ing statutes, creating differing offenses, as to render impossible any formula for the indictment, except what will be a mere apology for citing the cases containing precedents in the order of the states; thus, — That A., etc. [ante, §§ 74-77], on, etc., at, etc. [ante, § 80, or, if the offense should be an exceptional one of the continuing sort, aver as at ante, §§ 83, 84], did, etc. [say what, following the ordinary rules for indictments on statutes 2]; against the peace, etc.3 § 673. Setting up or promoting lottery. — The statutes cre- ating this offense differ in their terms. And the rule for the indictment is to cover the terms proceeded on, and descend so far into the particulars of the transaction as to individualize 1 For the direct elucidations of the Pick. 41; Com. u Eaton, 15 Pick. 273; offenses of setting up a lottery, sell- ing the tickets, and the like, with the pleading, practice and evidence, see Stat. Crimes, §§ 950-966. Inci- dental, Crim. Law, I, g 493; Grim. Pro., I, §§ 341, 569; Stat. Crimes, §§ 305, 307, 856. 2 Crim. Pro., I, §g 593-643. s For precedents, see Eex v. Seale, 8 East, 568; Reg. v. Crawshaw, Bell, C. C. 303, 8 Cox, C. C. 375; Taylor v. Smetten, 11 Q. B. D. 207. Alabama. — Marks v. S., 45 Ala. 38, 41. Connecticut. — S. v. Sykes, 38 Conn. 225. Keniuehy. — Com. v. Bierman, 13 Bush, 345; Com. v. Bull, 13 Bush, 656; Miller v. Com., 13 Bush, 731. Maryland. — S. v. Soribner, 2 Gill & J. 246, 347; S. v. Barker, 2 Gill & J. 346, 348. Massachusetts. — Com. v. Clapp, 5 Com. V. Dana, 2 Met. 329; Com. v. Horton, 2 Gray, 69; Com. v. Harris, 13 Allen, 534; Com. v. Thaoher, 97 Mass. 583. Missouri — S. v. Kennon, 21 Mo. 262; S. V. Woodward, 31 Mo. 365; S. V. Mc Williams, 7 Mo. Ap. 99. New Hampshire. — S. v. Follet, 6 N. H. 53. New York.— 'P. v. Sturdevant, 23 Wend. 418; Pickett v. P., 8 Hun, 83, 84; Read v. P.. 86 N. Y. 381, 383; P. V. Noelke, 94 N. Y. 137. Oregon. — S. v. Dougherty, 4 Oreg. 300. Pennsylvania. — Com. v. Sylvester, Brightly, 331 ; Com. v. Manderfleld, 8 Phila. 457. Texas.— Holoman v. S., 2 Tex. Ap. 610. Virginia. — Phalen v. Com., 1 Rob. (Va.) 713; Payne v. Com., 31 Grat 855. 395 § 674.J SPECIFIC OFFENSES. [bOOK III. it.* Hence, under the simple words " shall establish a lottery, or dispose of any estate, real or personal, by lottery," it is good, and probably in some respects needlessly minute, to say, — That A., etc., on, etc., at, etc., did, under the pretense of vending an ar- ticle of personal property called candy, establish a lottery for the unlawful disposing and distributing of personal property, to wit, money, rings and other articles of jewelry, by chance, by then and there exposing to sale divers candy-boxes at fifty cents each, which boxes the said A. then and there represented to contain candy and prizes, and among various lots of said boxes an unspecified one of each lot to contain ten dollars, and others of said boxes to contain five dollars each [by which lottery the said A. did then and there dispose of, to one X, ten dollars, the same being personal property', and to divers other persons certain personal property consisting of money, i-ings and other articles to the jurors (or attorney, etc.) unknown and of value unknown 2] ; against the peace, etc' § 674. Another. — Under the larger statutory expression, which the indictment must cover, " that no unauthorized per- son shall open, set on foot, carry on, promote, or draw, publicly or privately, any lottery, game, or device of chance, for the purpose of exposing, setting to sale, or disposing of any houses, lands, tenements, or real estate, or any money, goods, or things in action," it is adequate to allege, — That A., etc., on, etc., at, etc., did, without any authority of law, [pub- licly *] set on foot \pr, carry on, or set on foot and carry on] a certain lot- iStat. Crimes, §964; P. v. Taylor, rendering it ilL Taking this for a 3 Denio, 91; Crim. Pro., I, §§ 568, 611- guide, I see no reason why the in- 620. dictment on the statute and under 2 The matter within these brackets the facts in the text might not be, — is in the form before me. But the " That A., etc., on, etc., at, eta, did analogies in the criminal pleading unlawfully establish a certain lot- indicate that it is unnecessary. tery, for the sale and disposal, by 'Holoman v. S., 2 Tex. Ap. 610. chance and lot, of various articles For other precedents, see Miller v. of personal property, consisting of Com., 13 Bush, 731; S. v. Dougherty, candy, money, bank-bills, rings and 4 Oreg. 300; Marks uS., 45 Ala. 88, 41. other jewelry, and other things of And see post, §§ 674, 675. Under the value to the jxirors unknown ; against Virginia statute, it is good simply to the peace, etc." charge that A. " unlawfully did set * Publicly and privately," in this up and promote, and was concerned statute, is a clause of a sort not re- in managing and drawing, a certain quired to be incorporated into the lottery for the division of money allegations. Ante, §g 175, 183 and and other things of value by chance note, 187 and note, 314, 355, 334 and and lot." Payne v. Com., 31 Grat. note, 335 and note; Crim. Pro., I, 855. It would seem not possible to § 614. Still some pleaders might reduce the indictment to much, if choose to insert the proper one of any, smaller proportions, without these words for caution. 396 OH. LIII.J LOTTEEIES. [§§ 675-677. tery for the purpose of exposing money to be by the lot and chance of cer- tain drawings disposed of and distributed to and among persons who should become purchasers of tickets therein, a more particular description of which lottery [and of the mode of carrying it on] is to the jurors unknown; against the peace, etc.i § 675. Keeping lottery. — Under the words, "l^'o person or persons whatsoever shall publicly or privately keep any office or place to exercise, keep open, show, or expose to be played, drawn, or thrown at or in, either by dice, lots, cards, balls, or by numbers or figures, or by any other way, contrivance, or device whatsoever, any game or lottery called a little goe, or any other lottery whatsoever not authorized by parlia- ment," ^ a form of allegation which has been treated as good is,^ That A,, etc., on, etc„ at, etc., unlawfully did keep in a tent a lottery to be drawn by lots and by coupons by a certain contrivance, to wit, the dis- tributing of a quantity of parcels of tea with coupons in certain of such parcels, being a lottery not authorized by parliament, to wit, a lottery for clocks and other articles: against the peace, etc' § 676. Permitting lottery. — Under a statute to punish one " who shall set up or promote any lottery, not authorized by law, for money, or shall dispose of any property of value, real or personal, by way of lotter}'," or " shall in any house, shop, or building owned or occupied by him, or under his control, knowingly permit the setting up, managing or drawing of any such lottery," * it has been adjudged adequate to aver, — That A., etc., on, etc., at, etc., did knowingly and unlawfully permit, in a house and building then and there actually used and occupied by him, the setting up of a lottery in which certain articles of personal property and of value were disposed of by the way of lottery; against the peace, etc.^ § 677. Selling tickets. — The precedents for the indictment are more numerous on this branch of the offense than on any other. But they greatly differ, particularly in their setting out of the tickets. In reason, the description of them need 1 P. 17. Taylor, 3 Denio, 91. law for money." But the court gave 2 43 Geo. 3, ch. 119, g 2. the statutory words the wider in- 8 Taylor v. Smetten, 11 Q. B. D. 207. terpretation. Other objections were * Mass. R S., ch. 132, § 1. made, but overruled. Plainly not 5 Com. V. Horton, 2 Gray, 69. One much could be taken from this form of the objections urged against this and leave it good. For a similar form indictment was that, by the terms of sustained under the Virginia statute, the statute, its inhibition extended see Payne v. Com., 31 Grat. 855. only to lotteries " not authorized by 397 § 677.] SPECIFIC OFFENSES. [book III. correspond only to that of writings stolen,^ and the averments, of the sale may follow those for the unlicensed vending of in- toxicating liquors.^ The tenor of the ticket is not of the essence of the offense, like the tenor of the writing in forgery and libel, tl:erefore it need not be averred. Tet the terms of the statute should be covered, and from the whole setting out the particular ticket should appear to be within them as judicially interpreted.' While many of the precedents charge more, there is not much judicial authority indicating that more is required.* Thus, under the statutory words, " sell or offer for sale . . . any lottery ticket or tickets, or part or parts of any lottery ticket or tickets," averments substantially as follows Avere on demurrer adjudged good : — That A., etc., on. etc., at, etc., did unlawfully offer for sale, and did unlaw- fully sell, to one X., one half of a lottery ticket in a lottery not authorized by the laws of this commonwealth,* called [for example] the Connecticut lottery for the erection of a bridge at Enfield Falls; against the peace, etc.^ i4nfe.§§ 601-605. 2 4nie,§§648,649. ^ Ante, §32. * Stat. Crimes, g 963. But see S. v. Scribner, 3 Gill & J. 246. 5 An averment that the particular lottery was not authorized by law is unnecessary in a state where no lot- teries are authorized. Stat. Crimes, g964; P. V. Sturdevant, 23 Wend. 418. Yet, in some circumstances, I should perhaps choose to retain this allegation, or to insert "unlawful" before " lottery," as aiding the mean- ing that the particular lottery is not of some possible lawful sort. But — can there be a lawful lottery where all lotteries are by statute declared unlawful ? >> Com. V. Eaton, 15 Pick. 373. So, in S. V. FoUett, 6 N. H. 53, it was ad- judged good to aver, — " That A., etc., on, etc., at, etc., un- lawfully did sell to one X. a part of a ticket, that is to say, one quar- ter part of a ticket, at and for the price of fifty cents [as to price, see ante, % 648, note], in a certain lottery not authorized, etc.; against the peace, etc." In this case the court said: "It is insisted that the indictment is insuffi- cient because the ticket, a part of which was sold, is not described, nor the lottery to which it belonged stated. ... If there were no tickets in any lottery which were within the prohibition of the statute, the crime is here alleged with suffi- cient certainty. For in that case it is wholly immaterial what kind of a ticket was sold, and to what lottery it belonged. When the sale of all tickets is prohibited, it must be mere surplusage to describe in the indict- ment either the ticket or the lottery. But if there were any tickets, in any lottery, which might be lawfully sold in the state, the indictment is defectiva In that case it ought to be alleged what the tickets were, or at least to what lottery they be- longed, that it might be seen whether the sale was lawful or not." Again, under the statutory words "sell, etc., any lottery ticket or tick- ets, or any share or part of any lot- tery ticket or tickets in any lottery, or device in the nature of a lottery," the averments were, in S. v. Kennon, 398 CH. LIII.J LOTTEEIES. [§§ 678, 679. § 678. Having for sale. — TJpon the statutory words "shall have iu his possession, with intent to sell or to offer for sale, etc., a ticket in any such [that is, not authorized by law, etc., the statute quoted ante, § 676] lottery," etc.,^ the allegations may be, — That A., etc., on, etc., at, etc., did unlawfully have in his possession, with intent to offer for sale and to sell, five hundred certain lottery tickets, and five hundred shares, to wit, halves and quarter lottery tickets and shares of tickets, in a certain lottery for money [or, for the disposition of, etc. 2] not authorized by law, called, etc. ; against the peace, etc' §679. Advertising tickets. — There is, in the present state of the authorities, some room for doubt as to what allegations are necessary.* One of the cases seems to imply that, on the statutory words "advertise for sale any lottery ticket or tickets, or part or parts of any lottery ticket or tickets," it is sufficient to charge, — That A., etc., on, etc., at, etc., did advertise in a certain newspaper by him published, called the, etc. [giving the name], lottery tickets and parts of lottery tickets for sale, in lotteries not authorized by the laws of this state; against the peace, etc.* 21 Mo. 263, and see S. v. Woodward, conspiracy to sell) ; Com. v. Mander- 21 Mo. 265, adjudged good,— field, 8 Phila. 457; P. v. Sturdevant, " That A., etc., on, etc., at, etc., un- 23 Wend. 418; Pickett v. P., 8 Hun, 83, lawfully did sell divers, to wit, ten 84; Read v. P., 86 N. Y. 381, 383; P. v. tickets in a certain device in the nat- Noelke, 94 N. Y. 187 ; [S. v. Kaub, 90 ure of a lottery, called a raffle, to Mo. Ap. 196; Ford v. S., 85 Md. 465.] certain persons to the jurors un- iMass. R. S., oh. 132, § 2. known, for the price and sum of 2 Crim. Pro., I, § 569. three dollars for each of said tickets, ' Com. u Dana, 2 Met. 339. And which rafile was then and there see Stat. Crimes, § 963. For other created for the purpose of disposing precedents, Com. v. Harris, 13 Allen, of a farm of land, a piano, and di- 534; Com. v. Thacher, 97 Mass. 583. vers other property the description * Stat. Crimes, § 962a. whereof is to the jurors unknown; 5 Com. v. Clapp, 5 Pick. 41. And against the peace, etc." compare with Stat. Crimes, ut sup. For other precedents see Payne v. Publishing, in this state, an account Com., 31 Grat. 855; Com, v. Phalen, of a lottery to be drawn in another, 1 Eob. (Va.) 713; Com. v. Bull, 13 Charles v. P., 1 Comst. 180; [S. v. Bush, 656; Com. v. Bierman, 13 Bush, Willis, 78 Me. 70; U. S. v. Bailey, 47 345; S. V. Sykes, 28 Conn. 225; S. v. Fed. R. 117; U. S. v. Conrad, 59 Fed. Mo Williams, 7 Mo. Ap. 99; Com. v. R. 458; U. S. v. McDonald, 65 Fed. R. Sylvester, Brightly, 331 (including 486; U.S. uFulkerson,74Fed.R. 631.] For MAIL, see Post-ofpich Offenses. MAIM, see Mayhem. MAINTENANCE, see Champeett and Maintenance. 399 CHAPTEE LIY. MALFEASANCE AND NON-FEASANCE IN OFFICE.! § 680. Formula for indictment. — The indictment for this offense varies with the particular nature of the offending, as well as with the special facts. The allegations common to all the cases may be, — That A., etc. [ante, §§ 74-77], on, etc., at, etc. [ante, § 80], then beilig the sherifiE of the said county of, etc. [or, one of the constables of said town of, etc., or, etc., stating the particular office, and following therein the terms of the statute creating it, as being, at least, practically best], did, etc. [set- ting out the facts which constitute the crime]; against the peace, etc. [ante, §§ 65-69].2 1 For the direct expositions of these offenses, with the pleading, practice and evidence, see Crim. Law, II, §§ 971-982; Crim. Pro., II, §§ 819-836. Incidental, Crim. Law, I, §§ 318, 240, 299, 3l6, 331, 459-464, 468a, 707; II, §§ 356, 393, 894-400, 631, 644, 653, 655; Crim. Pro., I, §§ 555, 637; Stat. Crimes, §§ 356, 805, 806, 839, 969, 976. And see Bribery; Escape (under title Prison Breach, etc.); Extortion; Eefxtsing Office. 2 For forms and precedents, see 11 Cox, C. C. Ap. 1; 3 Chit. Crim. Law, 153, 286-266, 379, 383-286; 3 id. 666, 669, 697, 698, 701-713; 4 Went PL 125-148, 345, 347, 364, 418, 424; 6 id. 455; Trem. P. C. 230-236, 347, 349, 361; Eex v. Bembridge, 33 How. St Tr. 1, 15, 3 Doug. 337; Rex v. Davison, 31 How. St Tr. 99; Rex v. Jones, 31 How. St Tr. 351 ; Rex v. Wetherill, Cald. 483; Eex v. Commings, 5 Mod. 179; Rex v. Sainsbury, 4 T. R. 451; Rex V. Dobson, 7 East 218; Rex u Cope, 6 A & E. 236, 7 Car. & P. 730; Rex V. Meredith, Euss. & Ey. 46; Eeg. V. Dale, Dears, 37, 6 Cox, C. C. 93; Rex V. Whitcomb, 1 Car. & P. 134; Rex V. Pinney, 5 Car. & P. 354; Rex V. Kennett, 5 Car. & P. 382; Rex v. Antrobus, 6 Car. & P. 784; Douglas V. Reg., 3 Cox, C. C. 168. Alabama. — Diggs v. S., 49 Ala. 31 U Sanders v. S., 55 Ala. 183, 184; Mc- CuUough V. S., 63 Ala. 75. Arkansas. — Mahar v. S., 28 Ark, 207, 208; McClure v. S., 37 Ark. 436; Griffin v. S., 37 Ark. 437, 489. [Colorado. — Adams u P., 35 Cola 533.] Florida.— Snowden v. S., 17 Fla. 386. Georgia. — Hawkins v. S., 54 Ga. 653. JWmois.— Zorger v. P., 35 111. 193. Indiana. — Lathrop v. S., 6 Blackf. 503; S. V. Moses, 7 Blackf. 344; a v. Shields, 8 Blackf. 151; S. v. Hunter, 8 Blackf. 21*; S. v. Odell, 8 Blackf. 396; S. V. Williams, 4 Ind. 393; S. v. Record, 56 Ind. 107; Baker «. S., 57 Ind. 355. Jowa.— S. V. Conlee, 25 Iowa, 237; S. V. Stiles, 40 Iowa, 148. Kentucky.— Com. v. Williams, 79 Ky. 43. 400 CH. LI V.J MALFEASANCE, ETC., IN OFFICE. [§ 681. § 681. Common English form — (Neglect of constable). — The following, believed to contain a large proportion of need- less allegation, is from the current books of English practice : — That on, etc., at the parish of N., in the county of M., A., etc., then being one of the constables of the said parish, brought one X. before Y., esquire, then and yet being one of the justices of our said lady the queen, assigned to keep the peace for our said lady the queen in and for the county afore- said, and also to hear and determine divers felonies, trespasses and other misdeeds committed in the said county; and the said X. then and there was charged before the said Y. by one Z., spinster, upon the oath of the said Z., that he the said X. had then lately before violently and against her will feloniously ravished and carnally known her the said Z. ; and the said X. was then and there examined before the said Y., the justice aforesaid, touching the said offense so to him charged as aforesaid; upon which the said Y., the justice aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the said third day of August in the year aforesaid, directed to the keeper of Newgate or his deputy, commanding him the said keeper or his deputy that he should receive into his custody the said X., brought before him and charged upon the oath of the said Z. with the premises above specified; and the said jus- tice, by the said warrant, did command the said keeper of Newgate, or his deputy, to safely keep him the said X. there until he by due course of law Maine. — S. v. Leach, 60 Me. D8, 59. Maryland.— Hiss v. S., 24 Md. 556, 560. Massaehtisetts. — Com. v. Woods, 11 Met. 59. Minnesota. — S. v. Wedge, 34 Minn. 150, 153. Michigan. — P. v. Tryon, 4 Mich. 665; Wattles v. P., 13 Mich. 446. Missouri.— S. v. Brewer, 8 Mo. 373; S. V. Hein, 50 Mo. 863; S. v. O'Gorman, 68 Mo. 179. [Montana. — S. v. Bloor, SO Mon. 574.] New Hampshire. — S. v. Smith, 20 N. H. 399; S. v. Hoit, 8 Fost. (N. H.) 355; S. V. Woodbury, 85 N. H. 330. New Tork.— 'P. v. Walbridge, 6 Cow. 512; P. V. Castleton, 44 How. Pr. 338; P. v. Bogart, 3 Abb. Pr. 193; P. V. Bogart, 3 Parker, C. C. 143, 145; P. V. "Weston, 4 Parker, C. C. 336, Sheldon, 555, 556; [P. v. Willis, 158 N. Y. 393.J North Carolina. — S. v. Glasgow, Conference, 38; S. v. Lenoir Justices, 4 Hawks, 194; S. v. Leigh, 3 Dev. & Bat. 127; S. v. Williams, 13 Ire. 173; S. V. Zachary, Busbee, 488; S. v. Sneed, 84 N. C. 816; [S. v. Dickson, 134 N. C. 871.] Pennsylvania. — Connor v. Com., 3 Binn. 38; Wilson v. Com., 10 S. & R. 373; Com. v. Rupp, 9 Watts, 114; Com. u Reiter, 38 Smith (Pa.), 161; [Com. V. Hurd, 177 Pa. St. 481.] South Carolina. — S. v. Hall, 5 S. C. 120, 121; [S. V. Assmann, 46 S. C. 554; S. V. Green, 52 S. C. 520.] Tennessee. — S. v. Buxton, 3 Swan (Tenn.), 57; S. v. Jones, 2 Lea, 716. Texas.— Sea.TCj v. S., 4 Tex. 450; S. V. Mathis, 30 Tex. 506; S. v. Bald- win, 38 Tex. 155; Gordon v. S., 3 Tex. Ap. 154; Gray v. S., 7 Tex. Ap. 10. [United States. — U. S. v. Williams, 76 Fed. R. 233.] Vermont— S. v. Northfleld, 13 Vt. 565. Virginia. — Com. v. Mann, 1 Va. Cas. 308; Old v. Com., 18 Grat. 915. 36 401 § 682.] SPECIFIC OFFENSES. [book in. should be discharged; which said warrant afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, was delivered to the said A., then being one of the constables of the said parish as aforesaid, and then and there having the said X. in his custody for the cause aforesaid; and the said A, was then and there commanded by the said Y., the justice aforesaid, to convey the said X., without delay, to the said jail of Newgate, and to deliver him the said X. to the keeper of the said jail, or his deputy, together with the warrant aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A., late of the parish aforesaid, in the county aforesaid, baker, so being one of the constables of the said parish as aforesaid, and being so commanded by the said Y. the said justice, as aforesaid, then and there unlawfully and contemptuously did neglect and refuse to convey the said X. to the said jail of Newgate, as he the said A, by virtue of his office aforesaid by law should and ought to have done; to the great hindrance of justice, to the evil example of all others in the like case offending, and against the peace, etc.i § 682. As to which — Condensed, etc. — Looking at our own practice, there can be no need of setting out the functions of the justice of the peace, for they are regulated by statutes which are judicially known. And for reasons stated else- where,^ it is believed that the court of an examining magis- trate is not to be deemed of inferior jurisdiction within the rule requiring the jurisdictional facts to appear in allegation. Still, as this proposition might be controverted, the careful pleader will be likely, in the absence of express adjudication, to allege them in order to avoid a troublesome question at the trial and afterward. But surely it cannot be necessary to aver any command by the magistrate to the officer, other than is contained in the written mittimus. Casting away, therefore, from the foregoing precedent its palpable surplusage, retain- ing the substance of the jurisdictional allegation, and adapting all to American use, we have the following, which the pleader in some of the states may still be required to vary a little to suit the practice in his own state: — That on, etc., at, etc, A., etc., being then one of the constables of the said town of N. in the county of M., and Y., esquire, being tlien one of the jus- tices of the peace of said county, one X. was by the said A. brought before the said Y., charged by one Z. upon her oath that then lately before, in said county, the said X. had violently and against her will feloniously ravished and carnally known her; whereupon the said Y., acting as said justice of the peace, and having considered of the premises, made in due form of law 1 Archb. Crim. PI. & Ev. (10th ed.) 2 Crim. Pro., I, §§ 236-239. 583, (19th ed.) 892. 403 CH. LIV.J MALFEASANCE, ETC., IN OFFICE. [§§ 683, 684. a warrant under his hand and seal commanding, etc. [reciting its substance after the manner of the foregoing precedent], and then and there delivered the same to the said A.; but the said A. did then and there unlawfully and contemptuously neglect and refuse to convey the said X. to the jail, etc. [following the warrant], as he the said A. ought by command of said war- rant to have done; against the peace, etc. §683. Disobeying statutory command. — Under this head we have one of the most frequent illustrations of the doctrine,^ that where a statute enjoins or forbids a thing of a public nat- ure, but provides no penalty, disobedience, is, therefore, a com- mon-law misdemeanor. So that, in the words of a learned judge, " public officers are liable to indictment for any gross neglect of official duty, when no penalty otherwise recoverable is prescribed by law." ^ Hence, — § 684. Selectmen not appointing — (Liquor selling). — If a statute directs " that the selectmen of every town and place, in the month of April in each year, shall appoint one or more suitable persons, not exceeding three, agents for such town or place for the purchase of spirituous and intoxicating liquors, and for the sale thereof within such town or place, to be used in the arts, or for medicinal, mechanical and chemical pur- poses, and for no other use or purpose whatever," and they make no appointment, they are indictable. Allegations held good are, omitting something of what is certainly not mate- rial, — That at an annual meeting of the legal voters of the town of N. in the county of M., which, after due notification, was duly and legally holden in said N., on, etc., for the choice of state and county officers, and of all neces- iCrim. Law, I, §§ 237-239; Stat, refusal is a contempt of the law. . , . Crimes, g 138. And, as to that, there is no difference 2 Bell, J., in S. v. Woodbury, 35 N. when a thing is enjoined and when H. 330, 333. Thus, the English stat- it is prohibited by a statute; for ute of 43 Eliz., c. 2, §§ 3, 4, provided when it is prohibited the party shall that churchwardens and overseers of not only have his action for the in- the poor should, at times specified, jury done, but the offender shall be "make and yield up to two justices punished at the king's suit for the of the peace a true and perfect ac- contempt of his law. It is true, two count of all sums of money by them justices of peace have power to com- reoeived," in default whereof the mit the overseers refusing to ac- justices might commit them until count, which is a proper means to they obeyed. But nothing was said come at the right; but it does not of any further penalty. Thereupon satisfy the king for the contempt." it was held that they were also in- Rex v. Commings, 5 Mod. 179, 180. dictable; for, said the court, "their 403 . § 68i.J SPECIFIC OFFENSES. [book ni. sary town ofiBcers of said town and for other purposes, A., etc., B., etc., and C. etc., were in due form of law elected selectmen of said town for the year then commencing, and were then and there duly qualified and sworn to do and perform all the duties of selectmen of the said town for the then ensuing year, and did then and there enter upon and commence the duties of said office, and ever since continually have acted and still act as select- men of said town ; i whereupon it became and was their duty, as such select- men, in the month of April last past, to appoint one or more suitable persons, not exceeding three, agents for said town for the purchase of spirituous and intoxicating liquors, and for the sale thereof within said town, to be used in the arts, and for medicinal, mechanical and chemical purposes, and wine for the commemoration of the Lord's Supper, and for no other use or pur- pose whatever; 2 nevertheless, the said A., B. and C, at N. aforesaid, well 1 As to whether selectmen, to com- mit this offense, must hold their office de Jure, or whether their being select- men de facto will suffice, see Crim. Law, I, § 464 If the latter, plainly the indictment for this offense need not set out their election, or their being sworn into office ; but it will be adequate to allege " that A., etc., B., etc., and C, etc., on, etc., at, etc., being then and there the selectmen of the town of N.," proceeding with the rest of the indictment. And, ac- cording to my understanding, this might well be held to suffice even if the selectmen cannot be holden un- less they are such dejure. The rea- son is that proof of their acting in tfie office, before, after and at the time of the imputed neglect, is prima facie evidence that they were offi- cers de jure. Crim. Pro., I, § 1130. And only a prima facie case is re- quired to be alleged. Id., §§ 326, 513; a defect in the title being, if avail- able, for the defendant to set up. Now, if this reasoning fails to satisfy the inquirer, his objection will be that the presumption of office arises from the presumption of innocence, hence it cannot be evoked where the direct object is to prove guilt. Id., § 1130. And see the question eluci- dated 1 Bishop, Mar. & Div., §S 434- 449. If, in this case, the selectmen, on being called upon to appoint the agent, had thrown up their office and ceased to act therein, I concede that their having acted therein would not be sufficient evidence of their title to constitute prima facie guilt in re- fusing longer to act. But where the refusal is simply to do a particular thing, while they cling to the office and perform its other functions, the doctrine which would require further evidence of title does not, I submit, apply. Their claiming title, at the very time of refusing to do the par- ticular thing, and claiming it subse- quently, should be deemed prima facie evidence of title, even to charge them with crime. Still I do not put forward this reasoning as absolutely conclusive. There are analogies in the law of evidence having, at least^ a sort of seeming of being against it; as, for example, if, while a man is living with a woman as his wife, he has carnal knowledge of another woman, the fact of marriage, not the mere living together, must under the common-law rules be proved on the indictment for adultery. Stat. Crimes, g 687, and places there re- ferred to. See ante, § 681 ; post, % 685 ; Crim. Pro., II, !;g 823, 833. 2 This allegation of duty, being mat- ter of law, is, of course, not neces- sary. But it gives distinctness to the other averments, for which reason many pleaders will choose to retain, it. And see post, § 734 and note. 404 CH. LIT.] MALFEASANCE, ETC., IN OFFICE. [§§ 685, 686. knowing their duty in this behalf, but in nowise regarding it, did unlaw- fully, knowingly and wilfully neglect and refuse, during all the month of April last past, to appoint any suitable person or i persons agent or agents for said town of N. for the purpose aforesaid, and thence continually until the day of the finding of this indictment have so as aforesaid neglected and refused and still do so as aforesaid neglect and refuse; against the peace, etc.^ §685. Justice of peace not making returns. — A statute made it the dutj'' of every justice of the peace "to file aa ab- stract of all the misdemeanors tried before him with the clerk of his couuty oa or before the first day of the succeeding term of the circuit court, giving the style of the case, the nature of the offense, how he obtained jurisdiction of the case, whether the defendant was acquitted or convicted, and if convicted the amount of the fine or punishment imposed;" and provided a punishment for disobedience. Thereupon an indictment, much briefer than the somewhat abridged one of the last section, was sustained ; thus,— That A., etc., on, etc., at, etc., being then and there a justice of the peace of N. township, in said county, did, on and before said day, the same being the day fixed by law for the commencement of the circuit court for said county for the present term thereof [well knowing his duty in this behalf ^], wilfully and corruptly fail, and since hitlierto has wilfully and corruptly failed, to file with the county clerk of said county an abstract of all mis- demeanors tried before him the said A., as said justice of the peace, since the last term of the said court, giving the style of the case, the nature of the olfense, how he obtained jurisdiction thereof, whether the offender was acquitted or convicted, and if convicted the amount of the fine or punish- ment imposed [and so the said A., a justice of the peace as aforesaid, is guilty of non-feasance in oflBce, in manner and form aforesaid *] ; against the peace, etc.* § 686. Otlier forms. — Enough has already been given to in- dicate with precision the manner of setting out this class of 1 Ante, § 642, note. not in the form before me. But there 2 S. V. Woodbury, 35 N. H. 230. The being ground for saying that official pleader will be quite likely to con- wrong-doing must, to be indictable, elude as against the form of the stat- be with actual knowledge of the law ute. And since this conclusion can (Crim. Law, II, § 977, and places there be rejected as surplusage (Crim. Pro., referred t0), it may be safer to insert I, § 601), no harm will ensue there- this averment. from. But this indictment, though * Not necessary under the common- drawn upon the statute, is, in fact, law rules. Crim. Pro., II, §§ 548, 550. at common law. See the places cited ^MgCiyre ^_ s,^ 37 Ark. 426. For ante, § 683. another form under a like statute, "The matter in these brackets is see S. v. Baldwin, 39 Tex. 155. 405 §§ 687-690.] SPECIFIC OFFENSES. [book III. ofifenses. The common law covers many varieties of the wrong, and the statutes are numerous. But the pleader would derive only slight help from a multiplication of forms. The following enumeration of heads will be helpful in respect of the refer- ences to precedents in the books : — § 687. Not accounting, not paying, etc. — For various fail- ures to account for money received in oiHce, or to pay it over, and for misappropriations of funds, and the like, see the note.' § 688. Bail, — offenses relating to.^ § 689. Jurisdiction, — acting out of.' § 690. Refusing and neglecting, — various acts of.* ^Anie, §§ 409, 685. Overseer of poor applying earnings of the workhouse to his own use, 3 Chit. Crim. Law, 701. Same, making false accounts . and swearing to them. Id. 701, 704. Sur- veyor of highways using on own premises materials obtained for re- pairing them. Id. 666. Officer not paying over money received, Rex v. Martin, Trem. P. C. 249. Account- ant in disbursing office making out a false account, Rex v. Bembridge, 3 Doug. 337, 22 How. St. Tr. 1, 15. Jus- tice of peace not repoi-ting a fine he had collected, S. v. Moses, 7 Blackf. 244. Superintendent of highways failing to make return of fine re- ceived, S. V. Shields, 8 Blackf. 151. Clerk of court not paying over moneys, S. v. Record, 56 Ind. 107. Attorney refusing to pay over money collected by him, P. v. Tryon, 4 Mich. 665. County clerk failing to make report, S. v. Jones, 2 Lea, 716. Misconduct in the auditing of cer- tain accounts, P. v. Castleton, 44 How. Pr. 238. Justice of the peace refusing to deliver property alleged to be stolen to its owner after release of supposed thief, Hiss v. S., 24 Md. 556, 560. Clerk of magistrate's court neglecting to pay over moneys offi- cially received, Reg. v. Dale, Dears. 37, 6 Cox, C. C. 93. Constable with- holding school fund, Mahar v. S., 28 Ark. 207, 208. Other frauds on gov- ernment. Rex V. Davison, 31 How. St. Tr. 99; Rex v. Jones, 31 How. St. Tr. 251. 2 Bailing officer taking insufficient sureties, 2 Chit. Crim. Law, 244; 4 Went. PI. 418. State's attorney cor- ruptly approving a bail bond, and ordering prisoner's discharge, hav- ing no authority so to do, S. i: Wedge, 24 Minn. 150, 152. Justice of the peace corruptly bailing, with- out authority, one committed by an- other magistrate, P. v. Bogart, 3 Parker, C. C. 143, 145, 3 Abb. Pr. 193. Same, causing one to be imprisoned for want of bail, in a matter not within his cognizance, 2 Chit. Crim. Law, 238. ^Ante, § 688, note. Weigher of vessels exercising his office beyond the limits of his jurisdiction. Com. v. Woods, 11 IMet. 59. Justice of peace ordering a woman to be publicly whipped as a disorderly person, with- out any view, information, or proof against her, 2 Chit Crim. Law, 236. * Not issuing precept, 2 Chit. Crim. Law, 257; 4 Went PI. 347. Constable refusing assistance to another con- stable in securing offender as ver- bally ordered by magistrate, 2 Chit Crim. Law, 153. Refusing to con- vey to prison one committed by mag- istrate, 2 Chit Crim. Law, 260. Neg- lecting to execute wan-ants, Conner V. Com., 3 Binn. 38; P. v. Weston, 406 CH. LIV.J MALFEASANCE, ETC., IN OFFICE. [§§ 691, 692. § 691. Misdoings — of various sorts.^ § 692. In conclusion^ — though the forms of this offending are numerous, the pleader will find adequate help in the ex- Sheldon, 555, 556, 4 Parker, C. C. 336. Sheriff refusing to execute criminal, Eex V. Antrobus, 6 Car. & P. 784. Jailer refusing to receive a prisoner committed by a magistrate, Rex v. Cope, 6 A. & E. 336, 7 Car. & P. 730. Neglect to repair jail, S. v. Lenoir Justices, 4 Hawks, 194; 3 Chit. Crim. Law, 669. Justice of the peace re- fusing to issue warrant of arrest, S. V. Leigh, 3 Dev. & Bat. 137. Neglects to suppress riot. Rex v. Pinney, 5 Car. & P. 354; Rex v. Kennett, 5 Car. & P. 383. Supervisors of highways, neglects, etc., of, Zorger v. P., 35 111. 193; 3 Chit. Crim. Law, 385. Direct- ors of turnpike company failing to jnake a public statement. Baker v. 8., 57 Ind. 855. Overseers of poor neglecting to provide for pauper, etc., S. V. Hoit, 3Fost. (N. H.) 355; Rex v. Meredith, Russ. & Ry. 46; 3 Chit. Ci-im. Law, 379; S. v. Williams, 13 Ire. 173. Coroner refusing to take inquisition, 3 Chit. Crim. Law, 355. Refusing to return inquisition ac- cording to the evidence, Id. Con- stable neglecting to return present- ments, 3 id. 361. Same, not appoint- ing watch, etc., 3 Chit. Crim. Law, 361. Omitting otherwise to perform duty as constable. Old v. Com., 18 Grat. 915. Justice of the peace re- fusing copy of his proceedings, Wil- son ?). Com., 10 S. & R. 373. Not estreating forfeited recognizances. Rex V. Lee, Trem. P. C. 347. Refus- ing to administer oath to challenged voter. Wattles v. P., 13 Mich. 466. Assessor neglecting to swear one to his inventory of taxable property, Searcy v. S., 4 Tex. 450. Same, not calling on a person for a list of his taxable property. iS. v. Hunter, 8 Blackf. 313. Neglect of town to as- sess school tax, S. V. Northfield, 13 Vt. 565. Road, supervisors neglect- ing to open. Com. v. Reiter, 38 Smith (Pa.), 161. Neglecting to put up mile- posts, S. V. Mathis, 30 Tex. 506. 1 Clerk making false record, 3 Chit. Crim. Law, 713. Justice of peace illegally discharging one committed by another magistrate, 3 Chit. Crim. Law, 339, 341. License, unlawfully granting or refusing, 3 Chit. Crim. Law, 349, 353; 4 Went. PI. 364; 6 id. 455; Rex v. Sainsbury, 4 T. R. 451. Fraudulently issuing a land-war- rant, S. V. Glasgow, Conference, 38. Prosecuting attorney accepting bribe, Diggs v. S., 49 Ala. 311. And see title Bhibert. Counselor be- traying client's cause and taking fees from the other side, and com- municating to the other side the se- crets of the cause, Rex v. Walker, Trem. P. C. 361. Officer unlawfully receiving presents, 3 Chit. Crim. Law, 697. Returning inquisition of mur- der when in fact none was found. Rex V. Deeds, Trem. P. C. 333. Wrong- fully proclaiming martial law, etc., 11 Cox, C. C. Ap. 1. Sheriff wrong- fully bidding in property at sale, S. V. Williams, 4 Ind. 393. Attorney buying promissory note contrary to statute, P. V. Walbridge, 6 Cow. 513. Register of deeds making fabe cer- tificate that certain lands are unin- cumbered, S. V. Leach, 60 Me. 58, 59. Collector unlawfully demanding money under color of oiBce, Rex v. Dobson, 7 East, 318. See Extortion. Maltreatment of convict, Sanders v. S., 55 Ala. 183, 184. Same of pauper, Rex V. Wetherill, Cald. 433. Officer in land office unlawfully purchasing public lands. Gray v. S., 7 Tex. Ap. 10. Coroner persuading jury to re- turn untrue verdict. Rex v. Cross, Trem. P. C. 236. Other malpractice 407 § 692.] SPECIFIC OFFENSES. [book III. positions of this chapter, even though he should not consult the places referred to in the notes. of coroner, Rex v. Whitcomb, 1 Car. S., 17 Fla. 386. Grand juror disclos- & P. 124. Register engaging as proc- tor, 3 Chit. Crim. Law, 698. Justice of peace getting drunk, Com. u Mann, 1 Va. Caa 308. See Drunken- ness; also Stat. Crimes, § 976. Va- rious malpractices by justice of the peace, S. v. Hein, 50 Mo. 362; S. v. Zachary, Busbee, 433; Snowden v. ing the evidence, S. v. Brewer, 8 Mo. 373. Overseers of poor misconduct- ing, 8. V. Smith, 30 N. H. 399. School directors and commissioners the same, S. v. Stiles, 40 Iowa, 148; Lath- rop V. S., 6 Blackf. 503. County com- missioners, the same, Com. v. Rupp, 9 Watts, 114. 408 CHAPTER LV. MALICIOUS INJURIES TO THE PERSON.l § 693. Elsewhere. — The title of the present chapter does not appear in the other volumes of this series. But the subject is treated of in various connections under the other titles, ref- erences to which, including two forms in the present volume, are given in the note. § 694. Inflicting grievous bodily harm — is a form of the offense the indictment for which has already, in this volume, been given in outline.^ Some further precedents may be found at the places referred to in the note.' § 695. Malicious shooting. — Some cases under this title, in a part of which there are precedents, are referred to in the note.* § 696. Cutting — Stabbing — Wounding. — As to the indict- ment for, see note.' iSee Criin. Law, I, §§ 340, 758, 865, ed.), 493; Reg. v. Cox, 3 Cox, C. C. 58; «67; II, §§ 53, 72a, 72e, 991, 1004: Crim. Bland v. Com., 10 Bush, 622; Barns v. Pro., I, §§ 468, 613, 629, note; II,§ 65; Com., 8 Met. (Ky.) 13; P. v. Dunkel, Stat. Crimes, §§ 135, 216, 314,315, 818, 39 Mich. 255; Allen v. S., 4 Baxter, 323-334; ante, §§ 19, note, 314. And 21; Hoback v. Com., 28 Grat. 932; S. see Assault and Battery; Kidnap- v. Newspm, 13 W. Va. 859; Rex v. ING AND False Imprisonment; May- Arnold, supra. HEM AND Statutory Maims. sg Cox, C. C. Ap. 38; Rex v. 2 Ante, g§ 1 9, note, 814. Amarro, Russ. & Ry. 386 : Rex v. Will- 86 Cox, 0. C. Ap. 37, 88; Reg. v. iams, 1 Moody, 887; Rex v. Fraser, 1 Oliver, Bell, C. C. 387, 8 Cox, C. C. Moody, 419; Erie's Case, 8 Lewin, 133; 384; Reg. v. Martin, 8 Q. B. D. 54, 14 Reg. v. Miller, 14 Cox, C. C. 356; S. v. Cox, C. C. 633; Rex v. Arnold, 16 Williams, 30 La. An. 1163; Boyd v. How. St. Tr. 695; Rex v. Wood, 1 S., 4 Baxter, 319; Starks v. S., 7 Bax- Moody, 278. ter, 64; Jones v. Com., 31 Grat. 830; * Coal-Heavers' Case, 1 Leach (4th Rex v. Wood, supra; Rex v. Briggs, ed.), 64; Rex v, Davis, 1 Leach (4th 1 Moody, 318, 1 Lewin, 61. 409 CHAPTER LVI. MALICIOUS MISCHIEF.i § 697. Introduction. 698-70a In general 701-707. At common law. 708-717. To animals under statutes. 718-721. To other personal property under statute* 723-730. To the realty under statutes. 731, 733. Practical suggestions. § 697. How chapter divided. — "We shall consider the forms for malicious mischief, I. In general; II. At the common law; III. To animals under statutes ; IV. To other personal prop- erty under statutes ; Y. To the realty under statutes ; conclud- ing with, VI. Practical suggestions. I. In General. § 698. Wide and uncertain limits. — The offense of mali- cious mischief, even at the common law, and especially as enlarged by multitudes of statutes, is of wide range yet of in- distinct outline and limits. There are many indictable wrongs of which one hesitates to say whether they are to be termed malicious mischief or to stand with the unnamed. Of these the author has placed, perhaps too many, perhaps not enough, in the present chapter. § 699. Formula for indictment. — The indictment is analo- gous to that for larceny. Yet it varies more with the special facts ; and, being commonly on a statute, it must cover the particular statutory terms. Its averments, to be enlarged and varied as the individual case requires, may be, — That A., etc., [ante, §§ 74r-77], on, etc., at, etc. [ante, § 80], did mali- iFor the direct expositions of this 570, 577, 594, 595, 792; Crim. Pro., I, ofifense, -with the pleading, practice g§ 434, 436, note, 486, 540, 541, 570; and evidence, see Crim. Law, II, Stat. Crimes, g§ 156, note, 233, 246. gS 983-1000; Crim. Pro., II, §§ 8^7- Compare with Fokcible Trespass; 850; Stat. Crimes, gg 430-449. Inci- Larceny; Trespass to Lands. dental, Crim. Law, I, §§ 298, 429, 568- 410 OH. LVI.] MALICIOUS MISCHIEF, [§ 699. ciously' [and feloniously 2], with intent to injure one X,' burn and destroy five hundred bushels of corn in the ear, of the property of the said X. * [of the value of, etc.^], [or, etc., setting out, in like manner, any other injury, ac- cording to the fact, and, if the indictment is on a statute, following herein and covering in all other respects the statutory terms] ; against the peace, etc. [ante, §§ 65-69].6 1 " Maliciously " and connected words. — This word " maliciously," or, at least, its equivalent, is proba- bly necessary in all indictments for thecommon-lawofifense. And,plainly enough, under various statutes which do not contain it, interpretation so far supplies it as to render its intro- duction into the indictment impera- tive. Consult, among other places, Crim. Pro., I, §§ 531-525; II, § 843; Stat. Crimes, §.s5 433, 435, 436. Hence the safer course is to insert it in all cases where the pleader does not see distinctly and affirmatively that it is inappropriate and useless. In most of the px-ecedents, various other words of similar meaning are con- nected with this one. " Wilfully," sometimes employed, adds nothing to it. Ante, %5i2, note. Some might choose to connect with it such words as "corruptly, unlawfully, mischiev- ously; " but, if " maliciously" is used, and the mischief is, as it should be, distinctly set out, no just reason ap- pears for requiring more, touching corruption, unlawfulness and mis- chief. Of course, where the indict- ment is on a statute, prudence re- quires the insertion of all the statu- tory words, whatever they are. 2 To be employed where the offense is felony. But generally, with us, it is misdemeanor. There are a few statutory exceptions. Stat. Crimes, §439. 3 This clause is not always, and perhaps not in general, necessary. But it is introduced for the purpose of certainly covering the idea, that the malice must be directed specific- ally against the owner of the prop- erty, and general malice will not sufiice. Crim. Law, § 595; II, §§ 996, 997; Stat. Crimes, §§ 432a-487. And see Reg. v. Pembliton, Law R. 2 C. C. 119, 12 Cox, C. C. 607. * The allegation of ownership is, in general, yet not universally under the statutes, indispensable. Crim. Pro., II, § 843; Davis v. Com., 6 Casey (Pa.), 431. 5 Generally unnecessary. But if the value influences as of law the punishment, it must be averred. Stat. Crimes, §§ 444, 445; post, § 702, note. •■For forms and precedents, see 3 Chit. Crim. Law, 33; 3 id. 665, 1086- 1089, 1098, 1132, 1133; 4 Went. PI. 54, 78; 6 id. 372, 373; 6 Cox, C. C. Ap. 19-33, 68-71; Archb. Crim. PL & Ev. (19th ed.) 571-573, 575-578, 580-591, 598-596, 598-603; Rex v. Hill, 30 How. St. Tr. 1318; Rex v. Codling, 28 How. St. Tr. 178; Rex v. Shepherd, 1 Leach (4th ed.), 589: Rex v. Easterby, 3 Leach (4th ed.), 947, Russ. & Ry. 37; Rex V. Chappie, Russ. & Ry. 77; Rex V. Chalkley, Russ. & Ry. 258; Rex v. Tracy, Russ. & Ry. 453; Rex v. Whit- ney, 1 Moody, 3; Reg. v. Wallace, 3 Moody, 200; Reg. v. Phillips, 3 Moody, 353; Reg. v. Whiteman, Dears. 353, 6 Cox, C. C. 370; Reg. v. Gray, Leigh & C. 365, 9 Cox, C. C. 417; Reg. v. Child, Law R. 1 C. C. 307; Reg. v. Pembliton, Law R. 2 C. C. 119, 12 Cox, C. C. 607; Rex v. Richards, 1 Moody & R. 177; Reg. v. Howell, 9 Car. & P. 437; Reg. u Kohn, 4 Fost. & F. 68; Reg. V. Clegg, 3 Cox, C. C. 295; Reg. V. Foster, 6 Cox, C. C. 35. Alabama. — Burgess v. S., 44 Ala. 190; Caldwell v. S., 49 Ala. 34; Walker V. S., 49 Ala. 329; Owens v. S., 53 Ala. 400; Bass v. S., 63 Ala. 108; Ash worth 411 § 700.] SPECIFIC OFFENSES. [book III. § 700. Further of forms. — The pleader who lays before him the statutes of his own state, this formula, and such precedents as the reports of his state contain, will encounter few or no practical difficulties. Still what follows in this chapter will be convenient and helpful. V. S., 63 Ala. 120; Brazleton v. S., 66 Ala. 96. Arkansas. — Lemon v. S., 19 Ark. 171: S. V. Hoover, 31 Ark. 676. California. — P. v. Cabannes, 20 Cal. 525. Delaware. — S. v. Hamilton, 1 Houst. Crim. 281. Florida.— MoGahagin v. S., 17 Fla. 665. Georgia. — Castleberry v. S., 62 Ga. 442. Illinois. — Swartzbaugh v. P., 85 IlL 457. Indiana. — S. v. Merrill, 3 Blackf. 346; S. V. Slocum, 8 Blackf. 315; S. v. Black well, 3 Ind. 529; S. v. Pottmeyer, 30 Ind. 287; Stratton v. S., 45 Ind. 468; S. V. Sparks, 60 Ind. 298; Lossen v. S., 62 Ind. 437; S. v. Walters, 64 Ind. 326; White V. S., 69 Ind. 273; Brown v. S., 76 Ind. 85; Kinsman v. S., 77 Ind. 132. Iowa. — S. V. Brant, 14 Iowa, 180. Kentucky. — Ellis v. Com., 78 Kj. 130. Mainc^S. v. Harriman, 75 Me. 562. Maryland.— Black v. S., 2 Md. 376, 378. Massachusetts. — Com. v. Soule, 2 Met. 31; Com. v. Walden, 3 Cush. 558; Com. V. Bean, 11 Cush. 414; Com. v. Lindsay, 11 Cush. 415, note; Com. v. Dougherty, 6 Gray, 349; Com. v. Brooks, 9 Gray, 399; Com. v. Sowle, 9 Gray, 304; Com. v. Cox, 7 Allen, 577; Com. V. McLaughlin, 105 Mass. 460; Com. V. Falvey, 108 Mass. 304; Com. V. Williams, 110 Mass. 401. Michigan.— McKinney v. P., 32 Mich. 384. Minnesota.— V. S. v. Gideon, 1 Minn. 292, 295. Missouri. — S. v. Hambleton, 32 Mo. 453; S. V. Kempf, 11 Mo. Ap. 88; [S. v. Stanley, 3 Mo. Ap. 963.] [Mississippi. — FindLerhurkv. S., 75 Miss. 30.] New Hampshire. — S. v. McDuffle, 34 N. H. 523. New Jersey. — S. v. Burroughs, 3 Halst. 426; S. v. Beckman, 3 Butcher, 134; S. V. Malloy, 5 Vroom, 410. New York. — Kilpatrick v. P., 5 Denio, 377; P. v. Carpenger, 5 Parker, C. C. 338; P. V. Moody, 5 Parker, C. C. 568. North Carolina. — S. v. Simpson, 3 Hawks, 460; S. v. Langford, 3 Hawks, 381; S. V. Scott, 2 Dev. & Bat. 35; S. V. Jackson, 12 Ira 339; S. v. Staton, 66 N. C. 640; S. v. Allen, 69 N. C. 33; S. V. Painter, 70 N. C. 70; S. v. Simp- son, 73 N. C. 269; S. v. Tomlinson, 77 N. C. 538; S. v. Hill, 79 N. C. 656; S. V. Parker, 81 N. C. 548; S. v. McMinn, 81 N. C. 585; S. v. Roberts, 81 N. C. 605; S. V. Bryan, 89 N. C. 531; [S. v. Combs, 120 N. C. 607.] Ohio.— Oviatt v. S., 19 Ohio St. 573; Brown i: S., 36 Ohio St. 176. Pennsylvania. — Davis v. Com., 6 Casey (Pa.), 421. Tennessee.— Taylor v. S., 6 Humph. 285. Texas.— S. v. Brocker, 33 Tex. 611; Benson v. S., 1 Tex. Ap. 6 ; Collier v. S., 4 Tex. Ap. 13; Tiirraan v. 8., 4 Tex. Ap. 586; Brewer v. S., 5 Tex. Ap. 348; Jenkins v. S., 7 Tex. Ap. 146, 149; Eeid V. S., 8 Tex. Ap. 430; Aohterberg V. S., 8 Tex. Ap. 463; Rountree v. S., 10 Tex. Ap. 110. Vermont— S. v. Briggs, 1 Aikens, 336; S. V. Jones. 33 Vt. 443; & v. Avery, 44 Vt. 639. Virginia.— Earhart v Com., 9 413 CH. LVI.] MATIOIOUS MISCHIEF. [§§ YOl-705. II. At the Commok Law. § 701. In general. — English legislation, defining and making heavier this offense, was so early and full that, the indictment being ordinarily or always upon some statute, no precedents for it under the common law, approved by ancient usage, have come down to us venerable with years. It is believed that the allegations in our formula satisfy all its requirements. But some forms from American cases will be given, not with abso- lute exactness as they stand in the reports, but with slight omissions of such verbiage as no one claims to be of any legal effect. Thus, — § 702. Killing cattle to injrue owner — (Short form). — It has been adjudged good at the common law simply to aver, — That A., etc., on, etc., at, etc., did unlawfully, wantonly, maliciously and mischievously kill one steer [of the value of five dollars i] of the goods and chattels of one X; against the peace, etc.^ § 703. Burning goods — (Short).— A like approved form under the common law is, — That A., etc., on, etc., at, etc., unlawfully, wickedly, maliciously and mis- chievously did set fire to, burn and consume one hundred barrels of tar, of the goods and chattels of one X ; against the peace, etc.' § 704. More voluminous. — In other of our few precedents under the common law the allegations have been more volu- minous, though we have no decisions to the point that such ex- pansion is necessary. Thus, — § 705. Maliciously injuring cattle. — It is good, yet how much less will suffice the reader must judge, to say, — That A., etc., on, etc., at, etc., did maliciously, mischievously and wick- edly put, place and confine, in a certain inclosed yard of him the said A., two gelding colts and one mare colt,* the property of one X., of the value of, etc. ; 5 and then and there, upon and about a certain bar-way leading from the said inclosed yard toward and into the inclosed meadow of the Leigh, 671 ; Campbell v. Com., 2 Rob. § 940. Therefore the value need not (Va.) 791 ; Ratcliffe v. Com., 5 Grat. be alleged (ante, § 699, note), unless 657. by statute the punishment has been United States. — U. S. v. Nelson, 5 made in some way to depend upon it Saw. 68. in matter of law. Grim. Pro., I, g§ 77- lyalue.— This offense being mis- 88, 567; Caldwell v. S., 49 Ala. 34. demeanor at the common law, the ^ S. v. Scott, 2 Dev. & Bat. 35. common-law punishment is fine or '^8. v. Simpson, 2 Hawks, 460. imprisonment, or both, at the disore- * Ante, §g 590, 592. tion of the court. Crim. Law, I, 5 Ante, § 702 and note. 418 §§ 706, 707.] SPECIFIC OFFENSES. [bOOK III. said X, maliciously, mischievously and wickedly placed and fixed a certain sharp-pointed instrument called a grass scythe, connected with the snath, so that the edge of the said scythe was inward toward the said inclosed yard of the said A.; and the said A. then and there, being moved by his most wicked, malicious and mischievous disposition, maliciously, mischiev- ously and wickedly, with great force and violence, with intent to maim and destroy the said colts, did drive and compel them over the bars of the said bar-way and the said grass scythe, so fixed as aforesaid, whereby and by means of the unlawful, wilful, malicious and mischievous acts of the said A. as aforesaid, the said gelding and mare colts were then and there cut and lacerated, maimed and destroyed; against the peace, etc.i § 708. Harness. — Another of the elaborately drawn indict- ments, adjudged good, alleges in one of several counts, — That A., etc., on, etc., at, etc., unlawfully, wilfully and maliciously in- tending to injure one X, and disturb the peace of the people of the state, and from a spirit of wantonness and black and diabolical revenge, which he the said A. then and there held against the said X, without just cause^ did then and there maliciously and mischievously, and in a secret and clandestine manner, with some sharp instrument to the jurors unknown^ which he the said A. in his right hand then and there held, cut, sever, hack and otherwise disfigure the reins and tugs and other useful appendages of a certain harness ' of the value of, etc., the property, goods and chattels of the said X., the said A. then and there well knowing the said X to be the owner thereof; thereby, then and there, with the wicked and mali- cious intent aforesaid, damaging, injuring and partly destroying said har- ness and the tugs and reins and other useful appendages aforesaid belong- ing to the same, and rendering the same nearly useless; against the peace, etc.* §707. other wrong added. — The following, wherein an- other element of criminal wrong co-operates with the mali- cious-mischief element,^ was adjudged good at the common law, — here slightly varied to render it more certainly ade- quate : — That A., etc., and B,, etc., on, etc., at, etc., did, at and against the dwell- ing-house of one X., an aged widow woman who was then in said dwelling- 1 S. V. Briggs, 1 Aikens, 226. ant did the mischief " without any 2 The words " to the jurors un- hope or expectation of gain or ad- known " are not in the count I am vantage;" and another, apparently here following, but they are in some intended to bring the case within a of the others. If in other particu- statute, that the harness was then lars this allegation is not needlessly and there " the product and work of minute, these words would seem to art, and then and there situate on be essential. Ante, §§ 143, 520, 528. private ground." Otherwise the fur- 3 Ante, §S 590, 593. ther counts consist only of repeti- * P. V. Moody, 5 Parker, C. C. 568. tions of what is in the text. One of the other counts has the ad- * Grim. Pro., II, § 844 ditional allegation that the defend- 414 CH. LVI.] MALICIOUS MISCHIEF. [§§ 708-710. house, wickedly, mischievously, maliciously and without any legal author- ity therefor, Are and discharge loaded guns, to the terror and dismay of the said X., and did then and there shoot and kill a dog belonging to saidv dwelling-house [the said dog being the property of the said X.]; against the peace, etc.i III. To Animals Undee Statutes. § 708. Aver what. — The indictment, following our formula ^ and the statute on which it is drawn, describes the animal as directed in " Statutory Crimes," ' and particularizes the mis- chief inflicted. Some help may be derived from the chapter on " Cruelty to Animals." * Thus,— § 709. Killing — (Old form).— On the English "Black Act,"^ creating a felony under the words "unlawfully and maliciously kill, maim or wound any cattle," an old precedent for the indictment is, with its surplusage, — That A., etc. [being an ill-designing and disorderly person, and of a wicked and malicious mind**], [after the first day of June, in the year of our Lord one thousand seven hundred and twenty-three, to wit 'J, on, etc. [with force and arms 8], at, etc., one [black 9] gelding [of the price of four- teen pounds 1"], of the goods and chattels of one X [in a certain field belong, ing to him the said X. then and there being nj, feloniously, unlawfully, wil- fully,i2 and maliciously then dnd there did kill and destroy; [to the great damage of him the said Xi']; against the peace, etc.i* § 710. Killing, again. — The precedent just given has the words " kill and destroy," but " destroy " is needless in alle- gation where the statute has only " kill." " If the statutory words are "wilfully and maliciously kill,- maim or wound any cattle of another," and the offense is misdemeanor, it is plainly IS. V. Langford, 3 Hawks, 381. June, in the year of our Lord one The matter in brackets is added by thousand seven hundred and twenty- me, but it was expressly adjudged three," etc. But such matter need not to be necessary. Another of my never be alleged. Crim. Pro., I, § 683. additions is, that X was then in the 8 Unnecessary. Ante, § 48; Taylor dwelling-house. The word in the v. S., 6 Humph. 385. original is "house." I substitute ^Ngedless.and better omitted,onfe, dwelling-house simply because it is §§ 590, 593; Stat. Crimes, § 443. more nicely accurate. I do not ques- '" Better say " value " than price, tion the sufficiency of " house." As to when necessary, see ante, 2 Ante, § 699. §§ 699, 703, and notes. s Stat. Crimes, §§ 436, 440. i^ Plainly enough not necessary. ^Ante, §§ 345-361. And compare with ^'then and there 6 Stat. Crimes, § 431. being found," ante, § 582 and note. 6 Unnecessary. Ante, § 46. '^ Ante, § 699, note. " Introduced to cover the words in i' Not necessary. Ante, § 48. the statute: "If any person or per- "3 Chit. Crim. Law, 1086. sons, from and after the first day of i^ Ante, % 853; Stat. Crimes, § 446,j 415 71-3171.J SPECIFIC OFFENSES. [book III. adequate in averment, though a form before the writer has some surplusage, here rejected, to say, — That A., etc., on, etc., at, etc., did unlawfully, wilfully i and maliciously kill a certain horse of one X. [of the value of, etc.];^ against the peace, etc' § 711. Another. — -Under the statutory words "wilfully or maliciously kill or destroy, or wound, the beast of another," the indictment for killing may allege, — • That A., etc., on, etc., at, etc., did [wilfully *] and maliciously kill a cow, of the value of five dollars, the property of 2.; against the peace, etc.* § 712. Cilling under special circumstances. — Under astat- ute making it a misdemeanor for one to " kill any horse, mule, cattle, hog, sheep or neat cattle, the property of another, in any inclosure not surrounded by a lawful fence," the averments may be, — That A., etc., on, etc., at, etc., unlawfully [and wilfully "J did kill [injure, and destroy '], of the property of X., one cow and one heifer ^ then and there being in an inclosure not surrounded by a lawful and sufiBcient fence; against the peace, eto.^ § 713. Killing by poison, etc. — There may be ground for the opinion, on a question probably not adjudged, that the 1 1 should retain this word " wil- fully," whether deeming it essential or not, for the reason stated, ante, § 542, note. 2 As to alleging the value, see ante, §§ 699, 703. 3 a V. Hambleton, 23 Mo. 453. And see the places cited to the next sec- tion. *The words of this statute being " wilfully or maliciously," there is no such reason for retaining " wilfully " in averment as in the last form. Since it adds nothing in meaning to " maliciously," the neater way is to omit it, though the question is of little consequence. 5 Taylor v. S., 6 Humph. 285. For other forms, see Rex v. King, 6 Went. PI. 372; Collier v. S., 4 Tex. Ap. 13; Com. V. Walden, 3 Cush. 558; U. S. v. Gideon, 1 Minn. 293, 295; Swartz- baugh V. P., 85111. 457; Com. v. Sowle, 9 Gray, 304; S. v. Harriman, 75 Me. 563. s This word " wilfully," not being in the statute, is plainly not required in allegation. I should retain "un- lawfully," though it also is not in the statute, and quite likely not strictly necessary. But as the stat- ute would be construed to refer only to the unlawful killing, an indict- ment with the word " unlawfully " is at least more artistic than without it. Some would prefer "maliciously," — the technical term in malicious mis- chief. 'In the form before ma These words not being in the statute, there is no propriety in introducing them into the allegation. "Injure," if in the statute, would require expansion in the indictment; "destroy" would not. Stat. Crimes, §§ 446, 447; post, §715. * Charging an injury to two ani- mals does not make the indictment double. Stat. Crimes, § 4476. 9S. V. Painter, 70 N. C. 70. For other like forms, see S. v. Simpson, 73 N. C. 269; S. v. McDuffle, 84 N. H. 528; S.V. Allen, 69 N. C. 2a 416 CH. LVI.J MALICIO0S MISCHIEF. [§ 714. word "kill," in this sort. of indictment, signifies the outright killing by ordinary means; and that if, for example, the ani- mal's life is taken by poison, the manner of killing should be stated. Thus, the word in the Black Act is " kill," ^ and it is silent as to "poison; " yet such precedents as we have upon it, in cases of poisoning, specify the poisoning. In the absence of adjudication, it will be the safer course with us to follow this method. Thus, where the offense is felony, as under the Black Act, — That A., etc., on, etc., at, etc., did feloniously, unlawfully and mali- ciously kill, with and by means of poison, three pigs of the swine, cattle and property of X., of the value of, etc., against the peace, etc.2 § 714. Administering poison. — Under a statute to punish one " who shall wilfully and maliciously kill, maim or disfig- ure any horses, cattle, or other beasts of another person, or shall wilfully and maliciously administer poison to any such beasts," the indictment for the poisoning may charge, — That A., etc., on, etc., at, etc., did wilfully and maliciously administer to a certain horse, of the value of, etc., of the propei-ty of one X. [a large quan- tity, to wit'], fifty grains of a certain poison called strychnine; against the peace, etc.* 1 Ante, § 709. 2 Rex V. Chappie, Euss. & Ry. 77. I have omitted the surplusage {ante, §§ 709, 710), except the allegation of value, which may be surplusage or not. Chitty's precedent sets out the poisoning with greater minuteness. 3 Chit. Crim. Law, 1088. One of his counts, omitting its obvious surplus- age, is, — "That A., etc., on, etc., at, etc., one mare of the value of, etc., of the goods and chattels of one X, feloniously, unlawfully, wilfully and maliciously did kill and destroy, by having be- fore then, on, etc., there wilfully, maliciously and unlawfully put and infused into, and mixed with, certain water in a trough there used for the purpose of watering horses, at which trough the mare was usually wa- tered, a certain quantity of deadly poison, to wit, white arsenic, of which said water wherein the said poison had been so put, infused and mixed as aforesaid, the said mare of the said X afterwards, to wit, on the day and year first aforesaid, did there drink, and by reason and in consequence thereof did become at the said time and place of the drinking thereof poisoned, and of said poisoning did afterward, on the same day, there die; against the peace, etc." 3 In the form before me. Such words are often found in the prece- dents, particularly the older ones; introduced, one may imagine, to avoid a supposed necessity of prov- ing the exact quantity specified. But, in a case like this, the quantity, in whatever form of words laid, is not of the essence of the allegation, and it need not be proved to have beeti the same as charged. Crim. Pro., I, §,^ 488&, 488c. Where it is of the essence of the offense, and must be exactly proved, this consequence can- not be averted by the " to wit." 4 Com. V. Brooks, 9.Gray, 239. " Per- 27 417 §§ Y15, 716.] SPECIFIC OFFENSES. [bOOK III. §715. Injuring. — The word " injure," in a statute, is, in reason, quite unlike the word "kill." Though there are differ- ent ways of killing, there is but one result, death. But there are all sorts of results called injuries, probably not every one of which is to be interpreted as within the statute ; the conse- quence of which is, that the word " injure " alone is not ade- quate in allegation.' Many of the statutes also make the ex- tent of the punishment depend on that of the injury, and some of the others render a certain standard of injury essential to the offense itself; requiring, therefore, the same to be, in some proper form, alleged. If, by the statutory terms, it is a mis- demeanor for one to " wilfully and maliciously injure any [of certain enumerated] animal or animals, the property of an- other or others, to the amount of thirty-five dollars or upward," the allegations may be, — That A., etc., on, etc., at, etc., did wilfully and maliciously injure a cer- tain horse [or, mare, etc.], the property of one X., to the amount in value of seventy-five dollars, by then and there cutting from the neck of said horse his entire mane, as close to the skin as the same could be out and sheared, etc. [proceeding to state, in this way, all the various items of injury; or, by then and there injecting into the sides of said mare, near the shoulders, by means of a certain syringe which he the said A. then and there had and held, a large quantity of a poisonous substance the name whereof is to the jurors unknown]; against the peace, etc.2 § 716. Another. — Under the provision that one "who shall maliciously or mischievously injure, or cause to be injured, any property of another, or any public property, shall be deemed guilty of a malicious trespass, and be fined not exceeding two- fold the value of the damage done, to which may be added imprisonment not exceeding twelve months," it is good to aver, — That A-, etc., on, etc., at, etc., did maliciously and mischievously injure a certain dog, the property of one X., doing then and there and thereby damage to the said property to the value of twelve dollars, by then and there maliciously and mischievously shooting and discharging certain dan- gerous and deadly materials out of a gun which he the said A. then and sonal property." — Where the stat- See for a precedent. Com. v. Mc- ute has the words '• personal prop- Laughlin, 105 Mass. 460. erty,'' instead of such words as i Stat. Crimes, § 447. "horse," "cattle," etc., the indict- 2 Brown u S., 26 Ohio St. 176; Ovi- ment may be in the same form. And att v. S., 19 Ohio St. 573. And for see for a precedent, Com. v. Falvey, other forms see post, § 716 and places 108 Mass. SOI Attempt to poison.— referred to in the note. 418 CH. LVI.J MALICIOTTS MISCHIEF. [§§ 717-719. there had and held, at and against the said dog, and killing the said dog; against the peace, eto.i § 717. Maiming — Wounding. — Neither " maim " nor " wound " is quite so precise a word as " kill," but each is rea- sonably exact and single in meaning.^ Therefore the precedents almost uniformly, and beyond doubt correctly, have only the single word " maim," or the word " wound," or the two con- nected by " and," without specification of particulars.' Thus, — That A., etc., on, etc., at, etc., did [feloniously *J wilfully and maliciously [or, etc.,* following the statutory words] maim [or wound, or maim and wound] a certain horse [or ox, or cow, or ten certain pigs, or, etc. ] of one X., of the value of, etc. [or, otherwise varying the allegations to cover the terms of bhe statute] ; against the peace, etc.* IV. To Other Personal Property under Statutes. §718. Injuring. — It is the same in malicious mischief to ordinary chattels as to animals; "injure," in the statute, must be expanded to the particulars in the indictment.' For ex- ample, — That A., etc., on, etc., at, etc., did wilfully and maliciously [following the statutory terms] injure a certain omnibus, the personal property of X [of the value of, etc. ''], by then and there wilfully and maliciously driving the pole of a horse-railroad oar at, against and through a panel thereof, thei'eby breaking in pieces the said panel, and otherwise doing damage to the said omnibus; against the peace, etc.^ § 719. "Damaging."^ — The verb "damage," used in some of the English statutes, is so nearly the same in meaning as J Kinsman v. S., 77 Ind. 132. For * To be used only if the offense is other forms and precedents, see Stat, felony. Crimes, t? 447; S. r. Merrill, 3 Blackf. 5 3 Chit. Crim. Law, 1087, 1087a; 546; S. V. Roberts, 81 N. C. 605; S. v. Rex v. Chalkley, Russ. & Ry. 258; Parker, 81 N. C. 548; S. v. Hill, 79 Rex v. Shepherd, 1 Leach (4th ed.), N. C. 656; S. v. Stanton, 66 N. C. 640; 539; Rex v. Whitney, 1 Moody, 3; McGahagin v. S., 17 Fla. 665; Cald- Lemon v. S., 19 Ark. 171; Swartz- well V. S., 49 Ala. 84; Burgess v. S., 44 baugh v. P., 85 111. 457; S. v. Beek- Ala. 190, 192; Bass v. S., 63 Ala. 108; man, 8 Dutcher, 124; S. v. Brocker, Ashworth v. S., 63 Ala. 120. Some 32 Tex. 611; Turman u S., 4 Tex. Ap. of these cases proceed on the idea 586; Reid v. S., 8 Tex. Ap. 430; Aoh- that the word "injure" is sufficient terberg v. S., 8 Tex. Ap. 463; Roun- alone in allegation, and the particu- tree v. S., 10 Tex. Ap. 110. lars of the injury need not be stated. " Ante, § 715. 2 For the signification of " maim,'' ' Ante, g§ 699, 702, and the notes, see Stat. Crimes, §§ 316, 448; of 8 Com. v. Cox, 7 Allen, 577. And ■" wound," Id., § 814. see the form in McKinney v. P., 83 3 And see ante, § 352. Mich. 284; post, § 730, note. 419 §§ 720, T21.] SPECIFIC OFFENSES. [bOOK III. " injure," as to render it plain that the indictment should be constructed in the same way, simply substituting the one stat- utory word for the other.i § 720. Destroying.— " Destroy," like "kill," indicates a single, definite result ; and the means of destruction, like those of taking the life, need not be set out. And it is the same though, in the statute and in the indictment, " injure " is con- nected with " destroy." ^ Thus, under a statute to punish one who shall " wilfully and maliciously destroy or injure the per- sonal property of another person," etc., though the indictment may use the word " destroy " alone, it may equally well ' allege, — That A., etc., on, etc., at, etc., did wilfully and maliciously destroy and injure * two lobster cars, etc. [setting out all the articles], the property of one X. ; against the peace, etc.* § 721. Destroying vessel, etc. — The offenses of destroying a vessel, conspiring to destroy it, and the like, under the legis- lation of congress, are considered in another connection.* Only seldom is a lawyer called upon to prosecute or defend one for these offenses, and then adequate time is given to look up the forms. So that no more is required here than references to places where precedents may be found.' 1 For precedents, see Rex v. Tracy, of the personal property of X. [then Euss. & Ey. 452 (as to which, if the and there being found, needless, ante, whole form appears in the report, § 583 and note], feloniously, wilfully query); Reg. v. Clegg, 3 Cox, O. O. and maliciously did injure and de- 295; Eeg. v. Foster, 6 Cox, C. C. 35. stroy, by then and there cutting the Damaging with intent to destroy, — lines and martingales of said harness, 6 Cox, C. C. Ap. 21, 33; Reg. v. Gray, and taking the rings from said mar- Leigh & C. 365, 9 Cox, C. C. 417. tingales: against the peace, etc." ^Ante, §§ 708-715; Stat. Crimes, scom. v. Soule, 3 Met. 21; Com. v. § 446. Dougherty, 6 Gray, 349. For destroy- 3 Stat. Crimes, § 344. ing a steam-engine, 6 Cox, C. C. Ap. < Still, plainly enough, the word 21. Destroying threshing-machine, " injure," standing thus without par- 6 Cox, C. C. Ap. 23. A note given ticularization, is mere surplusage; so for rent, 4 Went. PL 79. Things for that, if the proof shows an injury, art museum, 6 Cox, C. O, Ap. 70. but not a destroying, there cannot Cutting cotton warp on looms, S. v. be a conviction. On this idea we Hamilton, 1 Houst Crim. 381. Burn- have, in McKlinney v. P., 32 Mich, ing stack of hay. Black v. S., 3 Md. 284, the following, which is good both 376, 378. Forcibly entering dwelling- for the injuring and for the destroy- house with intent to cut serge from ing: — looms, 3 Chit. Crim. Law, 1133. "That A., etc., on, etc., at, etc., a ^Crim. Law, I, § 570, note, certain harness of the value of, etc., ' Destroying and casting away to 430 OH. LVI.] MALICIOUS MISCHIEF. [§§ 722-Y24r. Y. To THE Kealtt undee Statutes. § 722. How in this sub-title. — The foregoing expositions of the allegations under such statutory words as " kill," " de- stroy," " injure " and " damage " will sa far serve the pleader under this sub-title as to enable us to proceed in a different order. § 723. Fences. — For the protection of fences, statutes have made various sorts of mischief to them punishable. Under the words " break, pull down or injure the fence or fences of an- other, without the consent of the owner, or person in possession thereof," it is not quite artistic but it is practically good to aver, — That A., etc., on, etc., at, etc., did unlawfully break, pull, cut down and injure a certain fence, then and there the property of X., in possession of Y., without the consent of her the said X.; against the peace, etc.i § 724. Landmark — (Bounds). — Under a statute to punish one who " shall mischievously remove any monument erected for the purpose of designating the corner or any other point in the boundary of any tract of land, or," etc., the allegations may be, — That A., etc., on, etc., at, etc., did maliciously and mischievously remove away from its true and accustomed place a certain stone monument there, and theretofore erected on and for the purpose of designating the southwest corner of a certain tract of land, of the property of X, there lying and being defraud underwriters, etc., 3 Chit, tion might be, " without the consent Crim. Law, 1098; Rex v. Easterby, 2 either of the said X. or of the said Leach (4th ed.), 947, Euss. & Ry. 37; Y." And, in a state where theques- Eex V. Codling, 28 How. St. Tr. 178; tion has not been adjudged, this will Reg. V. Wallace, 3 Moody, 200, Car. & be the safer method. For another M. 200. Conspiracy to do the same, form, see Jenkins v. S., 7 Tex. Ap. Reg. V. Kohn, 4 Fost. & F. 68. Wil- 146, 149. A form held good in S. v. fully burning and destroying a ship Hoover, 81 Ark. 676, is, — having merchandise on board, 3 Chit. "That A., etc., on, etc., at, etc., did Crim. Law, 1098. Plundering a wilfully and unlawfully pull down wreck, Eex v. Harry, 4 Went. PL 54; the fence of certain inclo.sed grounds Rex V. Francis, 6 Went. PI. 373. belonging to one X., without the con- 1 Brewer v. S., 5 Tex. Ap. 248. If, sent of the said X, ; against the peace, in a case of this sort, the court should, etc." as not unreasonably it might, so inter- Other cases containing similar pret the statute as to render the con- precedents are Campbell v. Com., 3 sent of y., equally with that of X, Rob. (Va.) 791; Ratcliflfe v. Com., 5 available in defense, this form would Grat. 657; S. v. McMinn, 81 N. C. 585; be ill for not negativing Y.'s consent. Brazleton v. S., 66 Ala. 96. On such an interpretation the nega- 421 §§ 725, Y26.] SPECIFIC offenses. [book hi. [to wit, the south half of the southeast quarter of section twenty-nine, in township seventeen of range ten east, in Henry county, Indiana i]; against the peace, etc.2 §725. Timber and trees — (Allegation of place). — In a case before a single judge an indictment alleging that, at a town in a county specified, A. cut and carried away hoop-poles " standing and growing upon certain lands of X. there situate," was quashed as not setting out the place with sufficient precis- ion. The judge observed that X. may have owned '' several pieces of land in the town," and the allegation should have been so definite as to enable him to know what piece was meant, and so " come to the trial prepared " to make any ap- propriate defense as to it.' This decision, if it were followed, would overturn a great part of what is established, both in criminal and civil pleading. As indicated in a note to the last section, the indictment for a forcible entry need only describe the place as " a certain messuage and lands then and there [that is, in the county] in the peaceable and quiet possession of one X. ; " * and, what is exactly to the point, an indictment for the larceny of things growing upon land is good if it simply states the place to be " land of one X. there," namely, in the county of the indictment.' So, in the civil suit for cutting trees on the plaintiff's land, it is an approved form to say, " then grow- ing and being in and upon certain lands there [that is, at the place of the venue] situate." ' And there is not, in all the law, a single analogy in harmony with the case now in contempla- tion. Therefore let us reject this case, and frame our allega- tions, in disregard of it, upon the established precedents and undoubted analogies. Thus, — § 726. Form of allegation. — Under the statutory words, " Every person who shall cut, box, bore, or otherwise injure 1 This matter in brackets is copied moving a corner-stone from the in exact words from the form before boundary line, S. v. Burroughs, 3 me. The analogies from forcible Halst. 426. Cutting down and re- entry {ante, § 443 and note), larceny moving a tree marked as a bound, from the realty (ante, §§ 596-600), and S. v. Malloy, 5 Vroora, 410. various other offenses, indicate that ' P. v. Carpenger, 5 Parker, C. C. 238. it is not necessary, unless there is to * Ante, § 443. be a proceeding for the restoration * Ante, §§ 598, 599. of the landmark. And see post, § 725. ^3 Chit. PL 868. 2 Stvatton V. S., 45 Ind. 468. For re- 433 CH. LVl.] MALICIOtrS MISCHIEF. [§ 727. any tree or sapling, on the land of any other person or persons, or, etc., without a license so to do from the owner or owners thereof, or, etc., shall be fined in treble the value of such tree or sapling," it will be a good form to say, — That A., etc., on, etc., at, etc., did. on and from the land of one X there, cut down and take away a certain tree of the value of, etc., without any license therefor from the said X. ; against the peace, etc.i § 727. Injuring a building. — A statute mailing it punish- able to "maliciously injure, deface or destroy any building, or fixture attached thereto," is adequately covered by, — That A., etc., on, etc., at, etc., did wilfully and maliciously injure and deface a certain church building commonly called a church, of the value of, etc. [the property of X., Y. and Z., as elders of the church of God ^], by breaking in the windows of said church building, and splitting and breaking the doors of the same; against the peace, etc.^ 1 In drawing this form, I had be- fore me the precedent in 8. v. Black- well, 3 Ind. 589, but the departures from its language are considerable. For other forms, see P. v. Carpenger, 5 Parker, C. C. 338 (the case critiosed in the last section); White v. S., 69 Ind. 373; Reg. v. Whiteman, Dears. 533, 6 Cox, C, C. 370 ; 6 Cox, C. C. Ap. 30. For cutting timber on public lands. United States v. Nelson, 5 Saw. 68. Setting fire to woods, Earhart v. Com., 9 Leigh, 671. Under the provision of the Black Act (Stat. Crimes, § 431) which makes it felony for one to " cut down or otherwise destroy any trees planted in any avenue or grow- ing in any garden, orchard or plan- tation, for ornament, shelter or profit," Chitty, in 3 Chit. Crim. Law, 1133, has following precedent: — " That A., etc., on, etc., at, etc., un- lawfully, maliciously and feloniously did cut down and destroy two [elm, needless, and better omitted, ante, §§ 590-593] trees in a certain avenue to the dwelling-house of one X., there planted and then growing for ornament there, he the said X. then being the owner of the said trees [to the great damage, etc., needless, ante. § 48]; against the peace, etc." [omit- ting the force and arms allegation, needless, ante, § 48]. 2 No allegation of ownership is re- quired in a case of this sort. Ante, § 183 and note; Crim. Pro., II, §§ 36, 777. 3S. V. Brant, 14 Iowa, 180. An- other form under a similar statute may be, — " That A., etc., on, etc., at, etc., did unlawfully, maliciously and mis- chievously injure a certain house there, the property of one X., by then and there unlawfully, mali- ciously and mischievously tearing off the roof of said hovise, to the damage of the said X in the sum of, etc. ; against the peace, etc." S. v. Sparks, 60 Ind. 398. For another form for injuring a building. Com. v. Williams, 110 Mass. 401. Breaking glass and destroying windows. Com. v. Bean, 11 Cush. 414; Kilpatrick v. P., 5 Denio, 277, 6 Cox, C. C. Ap. 71, Defacing jail, S. V. Bryan, 89 N. C. 531. Demolish- ing house, Reg. v. Phillips, 2 Moody, 353; Rex v. Richards, 1 Moody & R. 177; Reg. v. Howell, 9 Car. & P. 437. 433 §§ 728-732.] sPEciFio offenses. [book hi. § 728. Saw-mill. — Where a statute makes punishable one who " shall wilfully and maliciously break down, injure or re- move any dam, reservoir, gate, flume, or any of the wheels, miH gear, or machinery of any water-mill or steamboat," the indictment may aver, — That A., etc., on, etc., at, etc., did wilfully and maliciously remove and carry away one saw-mill saw, of the value of, etc., the property of one X., which saw was then and there a part of the machinery of a certain water sawmill, the property of the said X., there situate; against the peace, eto.i § 729. Destroying aqueduct pipe. — Under the words "cut, injure or destroy any leaden or other pipe used as an aqueduct, for the conveyance of water," the indictment may charge, — That A-, etc., on, etc., at, etc., wilfully and maliciously did cut, injure and destroy a certain leaden pipe, used as an aqueduct for the conveyance of water, the property of one X. [then and there being found 2]; against the peace, etc' § 730. Other forms — may readily be drawn in analogy to the foregoing. It would afford the pleader little help to con- tinue these illustrations ; but some references to places where other forms may be found will be convenient.* YI. Peactioal Stjggestions. § 731. Analogies. — The analogies of this offense to various others, for which the forms of the indictment are well estab- lished, will be suggestive to the pleader. In like manner, both parties may from such analogies derive help as to the evidence. They need not be here particularized, for they are obvious. § 732. The statutes — are very numerous and so'mewhat diverse in their terms. This fact should lead to caution in the use of precedents and in relying on points adjudged. The practitioner, on either side, ought carefully to examine the ' S. V. Avery, 44 Vt. 629. pond,— 6 Cox, C. C. Ap. 70. Pnblic 2 In the form before me, but evi- statue, — 6 Cox, C. C. Ap. 71. Fish- dently not necessary. Ante, § 583 pond, — 3 Chit. Crim. Law, 1133. and nota Banks of canal,— 6 Cox, C. C. Ap. s S. V. Jones, 33 Vt. 443. 22. Ditch,— Castleberry v. S., 63 Ga. ], on purpose, and of his malice afore- thought, and by Ij'ing in wait, unlawfully and feloniously did make an as- sault; ' and the said A., with a certain iron bill [of the value of onepennyS] which he the said A. in his right hand then and there had and held,' the nose of the said X., on purpose, and of his malice aforethought, and by lying in wait, then and there unlawfully and feloniously did slit, with intention the said X., in so doing in manner aforesaid, to -maim and disfigure [the entire statute, as respects the slitting of the nose, is now covered. If there were abettors, at or before the fact, proceed as directed ante, §§ 113-117, 539. Or, regarding the terms in the latter part of this statute, proceed:] 1 Ante, § 33. 2 For forms and precedents, see 8 Chit. Grim. Law, 787; Rex v. Ring- rose, Trem. P. C. 33; Rex v. Wood- burne, 16 How. St. Tr. 53; Rex v. Gar- roll, 1 Leach (4th ed.), 55; Rex v. Briggs, 1 Moody, 318, 1 Lewin, 61. Alabama.— 8. v. Absence, 4 Port. 397; S. V. Briley, 8 Port. 473. Massachusetts. — Gom. v. McGrath, 115 Mass. 150; Com. v. Blaney, 133 Mass. 571. Missouri.— S. v. Thompson, 30 Mo. 470. New York. — Burke v. P., 4 Hun, 481; Godfrey v. P., 5 Hun, 369, 63 N. Y. 207; Tully v. P., 67 N. Y. 15. North Carolina.— S. v. Ormond, 1 Dev. & Bat. 119. Oregon.— S. v. Vowels, 4 Greg. 324. Pelmsylvania. — Republica w.Lang- cake, 1 Yeates, 415; Republica v. Eeiker, 3 Yeates, 283. Tennessee. — Haslip v. S.. 4 Hayw. 273; Chick u S., 7 Humph. 161; Wor- ley V. 8., 11 Humph. 173. Virginia. — Gom. v. Somerville, 1 Va. Gas. 164; Com. v. Woodson, 9 Leigh, 669. [Washington. — S. v. Connahan, 10 Wash. 268.] West Virginia. — S. v. Stewart, 7 W. Va. 731. Wisconsin. — Moore v. S., 3 Pin. 373; S. V. Bloedow, 45 Wis. 279. 3 Grim. Law, II, § 1003. < There is no reason for supposing any part of this matter in brackets to be essential. The statute defines the intent, which alone is required, and it is averred further on. 5 Neeilless. Ante, § 43. •J Needless. Ante, § 47. "^ As to the averment of assault, see ante, % 1ii2, note. 8 Not necessary. Grim. Pro., II, § 505. 9 Evidently the manner of holding the weapon need not be averred. Ante, § 520, note; Grim. Pro., II, § 856. 431 §^ Til, 7i5.] SPECIFIC OFFENSES. [bOOK III. and that B., eta, at the time when the aforesaid felony by the said A. in manner and form aforesaid was done and committed, to wit, on the said, etc., at, etc. [with force and arms '], on purpose, and of his malice afore- thought, and by lying in wait, unlawfully and feloniously was present, knowing of and privy to the said felony, aiding and abetting the said A. in the felony aforesaid, in manner and form aforesaid done and committed. [And so the jurors, etc., do say, that the said A. and B., on the said, etc., at, etc., aforesaid, with force and arms, on purpose, and of their malice afore- thought, and by lying in wait, the felony aforesaid, in form aforesaid, un- lawfully and feloniously did do and commit, and each of them did do and commit 2]; against the peace, etc' § 744. On similar statute. — By a statute in New York, one is liable to imprisonment "who, from premeditated design, evinced by lying in wait for the purpose, or in any other man- ner, or with intention to kill or commit any felony, shall, 1. Cut out or disable the tongue ; or, 2. Put out an eye ; or, 3. Slit the lip, or slit or destroy the nose ; or, 4. Cut ofE or dis- able any limb or member of another, on purpose." * This pro- vision, though similar to the Coventry Act, differs from it so far as to require a separate consideration. The words " evinced by lying in wait for the purpose, or in any other manner," are of a sort not required to be covered by the allegations.' It is good to say, — • That A-, etc., on, etc., at, etc., feloniously and from premeditated design and on purpose made an assault upon one X., and the thumb [or, the ear, or, etc.] of the said X did then and there feloniously and from premedi- tated design, with the teeth of him the said A. [or, with a certain knife which he the said A. then and there had and held, or, etc., naming^ in like manner any other instrument], on purpose, lacerate and disable [or, cut off, or, etc., specifying what, and adhering to the statutory terms]; against the peace, etc.* § 745. Simpler — (Other forms). — Some of the statutes are in terms somewhat simpler than these, admitting of allega- tions less complicated. On them the pleader will require no i Unnecessary. Ante, % 43. cutting and disabling the eye, Eex - The matter in these brackets w Eingrose, Trem. P. C. 33. seems to have been copied from the * 3 R S. 664, marg. p. § 27, 2 Edm. forms in murder, without the same Stat. 688. or any other reason for it. There can ^Anie, § 674 and note, and places be no doubt that it is unnecessary, there referred to. Crim. Pro., II, §§ 548-550, 856. ^Tully v. P., 67 N. Y. 15; Godfrey 3 3 Chit. Crim. Law, 787. For a t). P., 5 Hun, 369, 63 N. Y. 207. The precedent in similar terms, see Rex v. precedents in these cases were before Carroll, 1 Leach (4th ed.), 55. Eye. — me while drawing this form. The The like, under the same statute, for explanations of various omissions 433 CH. LVIII.] MAYHEM AND STATUTOET MAIMS. [§§ 746-748. other help than is furnished by the foregoing sections and the chapter in " Criminal Procedure." ' § 746. Attempts. — For attempts at mayhem the allegations may follow the directions given already.* As, — § 747. Wounding with intent. — Under a statute making punishable one who "shall unlawfully and maliciously stab, cut or wound any person, with intent ... to maim . . . such person," ' there need be no averment in terms of assault and battery, though in prudence the pleader may choose to insert it,* nor need the means by which the wound was in- flicted be set out;' but it will be adequate to aver, — That A., etc., on, etc., at, etc., did [feloniously] unlawfully and maU- ciously stab, cut and wound one X., upon the head of him the said X, with Intent then and there to maim him; against the peace, etc.^ § 748. Assault with intent. — The allegations may be, — That A., etc., on, etc., at, etc., did [feloniously] and maliciously [or, etc., following the statute] make an assault on one X [add here with what weapon, if by the statute the weapon is an element in the oflEense] and him, etc. [alleging a battery if required to cover the statute], with the intent then and there, by, etc. [say what],^ to maim and disfigure him the said X ; against the peace, etc.* appear in the foregoing notes in this 2 Ante, §§ 100-113. And see CrLm, chapter. ' Pro., II, § 90. 1 For some particular forms, see — ^ 9 Geo. 4, c. 81, § 18. disabling the arm, S. v. Briley, 8 Port. * Ante, § 742 and note. 473, Biting off nose. Com. v. Blaney, ' Eex v. Briggs, 1 Moody, 318, 1 133 Mass. 571. Biting off ear, S. v. Lewin, 61. Absence, 4 Port. 397; S. v. Ormond, *Eex v. Briggs, supra, 1 Dev. & Bat. 119. Putting out eye, 'Doubtlessnot required in all cases. Eespublioa v. Reiker, 3 Yeates, 383; 8 Com. v. McGrath, 115 Mass. 150; Chick V. S., 7 Humph. 161. Castra- S. v. Stewart, 7 W. Va. 731; Moore v. tion, Worley v. S., 11 Humph. 173. S., 3 Pin. 373; Haslip v. S., 4 Hayw. 373; 8. V. Thompson, 30 Mo. 470. For MEAT, UNWHOLESOME, see Noxious and Adultebated Food. MEDICAL MALPRACTICE, see Homicide; Neglects. MILK, see Noxious and Adultebated Food. MILLER, see Tolls. MISCEGENATION, see ante, % 739. MISCHIEF, see Malicious MiscmsF. MISCONDUCT IN OFFICE, see Malfeasance and Non-feasanob. MISPRISION, see ante, §§ 138-130. MURDER, see Homicide. MUTINY, see ante, % 580. NAVIGABLE RIVERS, see Wat. 28i 433 CHAPTER LIX. NEGLE0TS.1 § 749. This title. — The subject of neglect does not properly constitute a separate title in the criminal law. Nor does it, in any of the preceding volumes of this series, occupy, as here, a place by itself ; but it is treated of under the other heads, in its several appropriate places. All indictments for criminal neglect have a certain uniformity of construction ; for which reason, and for practical convenience both to the writer and reader, this separate title is here given. §750. How the Indictment — Formula. — The indictment must be in terms to show, or vQuAer prima facie obvious, a legal duty of the defendant and his ability to perform it, the common method being either to aver such duty and ability in words, or to set out facts whence ^ima facie they appear; ^ it must point out the particular neglect of such duty ; and, if the neglect is of a sort indictable only after having resulted in certain specific evil consequences, or is more heavily punishable then, it must allege the consequences; and it must contain all identifying matter required by the ordinary rules for indictments. Thus, — That A., etc. [ante, §§ 74r-77], on, etc., at, etc. [ante, % 80J, was the father of one X [ante, §§ 78, 79], who was then and there a helpless child of the tender age of one year and six months, unable to provide or care for himself, and under the care, protection and control of the said A. his fathor, the said A. having then and there all necessary means and ability therefor ' [or, etc., iFor various expositions of this sub- 2 in the case, for example, of a ject see Grim. Law, I, §§ 216-221, 241, neglect to discharge official duties, 256,257,367,269,305,307,313-321,334, the allegation that the defendant 419^21, 483, 468a, 513, 517-531, 819, held the office would be a sufficient 824, 883, 884, 888, 891a; II, §g 16, 39, 33, prima fade showing both of the duty 464, 579, 580, 630, 643, 656b, 659-683a, and ability (Grim. Pro., II, § 833); but, 664-669, 685, 686, 696, 840, 879, 978, in cases of a different sort, more of 1045, 1065, 1100, 1104, 1370, 1381 ; Grim, allegation is required. And see ante. Pro., I, §§ 53, 398, 648, 555, 591, 637, 648, § 684, note. 649; II, §§538, 538a, 558, 833-832, 1043- 'Crim. Pro., II, §§ 538, 638a, 568, 1049; Stat. Grimes. §§ 343, 596a, 664, 833; Reg. v. Ghandler, Dears. 463, 6 877, 1033; ante, §§ 318, 526, 539-531, Gox, C. G. 519; Reg. v. Ryland, Law 684, 685. R. 1 G. G. 99, 10 Gox, G. C. 569. 434 CH. LIX.] NEGLECTS. [§ Y51. setting out any other facts to show, or otherwise averring, a legal duty and the ability to perform it]; whereupon the said A. did then and there un- lawfully [and feloniously, if the offense is felony; or, feloniously and of his malice aforethought, if it is murder; or, etc., according to the require- ments of the particular case] neglect, etc. [or, abandon, etc., setting out the special facts in terms appropriate to the class to which they belong]; against the peace, etc. [ante, §g 65-69].' § 751. Neglecting dependent person. — One of the common neglects is that of a person who, being under the duty and having the means, omits to provide for a dependent person, thereby inflicting on him an injury. A form for the allega- tions, where death has been the consequence, was given under the title " Homicide." ^ But where the injury is less, the neg- lect is still an offense at common law, as well as under various statutes. Rejecting from the preoedetits obvious surplusage, and not copying them quite literally, we have the following form, good at the common law and under any statute the terms whereof it duly covers : — That A., etc., on, etc., and thence continually until the day of the finding of this indictment [ante, § 83],* at, etc., having the means and ability to discharge all his hereinafter recited duties, had in his care and dwelling iFor forms and precedents, see Ferry, 13 Allen, 589; Com. v. Osborn ante, §§ 218, 536, 539-531, 684, 685; Archb. Grim. PI. & Ev. (19th ed.) 784, 750; 8 Chit. Crim. Law, 830; 4 Went. PI. 368; 6 Cox, C. C. Ap. 40; 7 id. Ap. 30, 32; 10 id. Ap. 45; Eex v. Fenton, Trem. P. C. 367; Rex v. Friend, Russ. & Ry. 20; Reg. v. Chand- ler, supra; Reg. v. Porter, Leigh & C. 394, 9 Cox, C. C. 449; Reg. v. Baker, Law R. 3 Q. B. 631; Reg. v. Ryland, Law R. 1 C. C. 99, 100, 10 Cox, C. C. 569; Reg. v. White, Law E. 1 C. C. 311, 12 Cox, C. C. 83; Rex v. Ridley, 3 Camp. 650; Rex v. Smith, 2 Car. & P. 449; Reg. v. Dunnett, 1 Car. & K. 435; Reg. V. Smison, 1 Cox, C. C. 138; Reg. V. S., 5 Cox, C. C. 279; Reg. v. Parden- ton, 6 Cox, C. C. 347; Reg. v. Smith, 14 Cox, C. C. 898; Reg. v. Nasmith, 43 U. C. Q. B. 342. ^Zaftama.— Molett v. S., 88 Ala. 408; Cheek v. S., 38 Ala. 237. Massachusetts. — Com. v. Dedham, 16 Mass. 141; Com. v. East Boston Mills, 130 Mass. 83. Michigan. — P. v. Dunkel, 39 Mich. 255, 356, note. Missouri.— 8. v. Smith, 66 Mo. 92. New Hampshire. — S. v. Gilmore, 4 Fost. (N. H.) 461; S. v. Fitts, 44 N. a 631. New York. — Cowley v. P., 31 Hun, 415, 417, 83 N. Y. 464. South Carolina. — S. v. Penny, 19 S. C. 218. 2^nfe, §530. 3 Time. — The continuing form of the allegation of time is adapted to this class of cases and is common in them. Still, except under a peculiar doctrine prevailing in Massachusetts, the wrong may, in general, be laid with equal effect as committed on a single day, and the proofs may equally well go backward and for- ward to cover the time before and after. Crim. Pro., I, g§ 397, 403; Cow- ley V. P., 83 N. Y. 464 435 § T52.] SPECIFIC OFFENSES. [bOOK III. in his house as a servant and part of his household one X., a girl of the tender age of ten years, and unable to take care of and provide for herself, to whom the said A. during all the aforesaid time there stood in the place of father and for whom he was under the duty to provide as for a minor child 1 [or, was the father of one X., a girl of the tender age of ten years, unable to take care of herself, or to furnish herself with the necessaries of life, and for whom he as such father was during all said tjme under the duty to provide; or, had in his household one X, an adult male person de- ficient in understanding and unable to take care of himself, whom the said A. had for a good and valuable consideration undertaken to take care of and supply all his wants], and thereupon did there during all said time [ante, § 84] withhold from and neglect and refuse to give and administer to the said X sufScient and -wholesome meat, drink, food and clothing for the due sustenance of the said X and the protection of the said X from the cold [or, etc., setting out the neglect according to the special facts], whereby the said X became greatly enfeebled and debilitated in body and impaired in health, and on the day of the finding of this indictment, and for a long time before, was and is, by reason thereof, in a sick and feeble condition of body, and permanently injured in health and physical consti- tution [or, etc., stating the special facts of the case]; against the peace, etc' § 752. Same under statute. — Where a statute makes pun- ishable one who, "having the care or custody of any child, shall wilfully cause or permit the life of such child to be en- dangered, or the health of such child to be injured, or who shall wilfully cause or permit such child to be placed in such a situation that its life may be endangered, or its health shall be likely to be injured," the indictment may charge, for ex- ample, — That A,, etc., on, eta [adding the eontinuando, as in the last section, or not, at the election of the pleader], at, etc., having the care and custody of iln this case and various others the special case; as, that the hus- there would perhaps be no need of band delegated the duty to her, and specially alleging ability, the under- supplied the means, and she under- taking implying it, and if the party took to perform it, or otherwise as becomes disabled he should relin- the inculpating fact was. For forms quish his trust. Ciowley v. P., supra, and precedents, see 3 Chit. Grim, where, among other things, Folger, Law, 830; 6 Cox, C. C. Ap. 40; 7 id. C. J., observed: "There is a differ- Ap. 30, 32; Eex v. Ridley, 2 Camp» ence between a natural duty, or a 650; Rex v. Smith, 3 Car. & P. 449; duty imposed by^operation of law, Reg, v. Chandler, Dears. 453, 6 Cox, and a duty assumed voluntarily and C. C. 519; Rex v. Friend, Russ. & Ry. that may be put off voluntarily." 20; Reg. v. Ryland, Law R. 1 CO. p. 473. 99, 100, 10 Cox, C. C. 569; Reg. v. S., 2 If the neglect was by a wife, who 5 Cox, C. C. 279; Reg. v. Nasmith, 43 is made the defendant, while the CT. C. Q. B. 242; Cowley u. P., 21 Hun, legal duty was on the husband, the 415, 417, 83 N. Y. 464 allegations should be shaped to cover 436 OH. LIX.] KEGLE0T8. [§§ 753, 754 one >X., who was then and there a child of the tender age of five years,i did then and there wilfully permit the health of the said child to be injured and its life endangered, by then and there wilfully, and well knowing the needs of said child, neglecting to provide for and give and administer to said child, proper, wholesome, and sufficient food, meat, drink, warmth, clothing, bed covering and means of cleanliness [or, proper and needed medical attendance, medicines and nursing, the said child then and there being, and the said A. then and there well knowing it to be, diseased, sick and ailing in body and greatly in need of the same; against the peace, etft.2 § 753. Abandoning child — (On statute). — Under a statute making it a misdemeanor for anyone to " unlawfully abandon or expose any child, being under the age of two years, whereby the life of such child shall be endangered," the averments may be, — That A., etc., on, etc., at, etc., did unlawfully and wilfully abandon and expose one X, a male child under the age of two years, whereby the life of the said child was endangered [by then and there laying and leaving the said child, on a cold night, insufficiently clothed, in a certain highway there] ; against the peace, etc' § 754. Neglecting lunatic — (On statute). — Under a statute making punishable any one who shall, "having the care or charge, or concerned or taking part in the custody, care or treatment of any lunatic, etc., in any way abuse, ill-treat or wilfully neglect such lunatic," it seems to be accepted as ade- quate, though it is hardly specific enough on the general prin- ciples of criminal pleading,* to aver, — That A., etc., on, etc., at, etc., having the care and charge and being con- cerned in the custody and treatment of one X, who was then and there a lunatic, did then and there unlawfully and wilfully neglect, abuse and ill. treat the said lunatic X; against the peace, etc.* 1 The terms of this statute are fully quotation, it does not allege the covered without any common-law name of the child, or contain the averment of the inability of the child matter which I have here inserted to take care of itself. So that such in brackets. The safer course for averment, which does not appear in the pleader is to retain all this mat- the precedent before me, seems not ter, though doubtless not all courts to be necessary. And see S. v. Davis, will hold it to be necessary. See 70 Mo. 467. Grim. Pro., I, g§ 634, 635. 2 Cowley V. P., 21 Hun, 415, 417, 83 * Ante, § 753, note. N. Y. 464 6 Reg. v. Porter, Leigh & C. 394, 9 »Eeg. V. White, Law R. 1 C. C. Cox, C. C. 449; Eeg. v. Smith, 14 811, 13 Cox, C. C. 83. If the indict- Cox, C. C. 398. And see Eeg. v. ment in this case is fully given in Eundle, Dears. 483, 6 Cox, C. C. 549; the reports, as it would seem to be in S. v. Davis, 70 Mo. 467. Cox, though there are no marks of 437 §§ T55-T58.] SPECIFIC OFFENSES. [bOOK III. § 755. Against town for not maintaining grammar school. A statute made it the duty of every town of two hundred families or householders to be provided with a grammar school- master, of good morals, well instructed in the Latin, Greek and English languages. And another section directed that no one should be employed as such schoolmaster unless he was educated at some college, and had certain credentials, etc., — a sort of provision which the rules of pleading upon statutes do not require to be covered by allegations.^ Thereupon it was adjudged good to aver, — That the town of A., etc.. on, etc., and thence continually until, etc. [ante, § 83], at, etc., did and still does contain two hundred families and upwards; and, during all of said time [ante, % 84], did and still does there neglect to procure and support a grammar schoolmaster, of good morals, well in- structed in the Latin, Greek and English languages, to instruct the chil- dren and youth in said languages [which is in subversion of that diffusion of knowledge, and in hindrance of that promotion of education, which the principles of a free government require and which the constitution of the commonwealth enjoins 2]; against the peace, etc.^ § 756. Neglects resulting in death. — The forms for these are sufficiently explained under the title "Homicide."* §757. Other neglects. — The forms for other neglects are easily drawn in analogy to the foregoing.* §758. Other titles. — The practitioner should not overlook the other titles wherein forms for various neglects under them appear. 1 Crim. Pro., I, §§ 633, 639. family, S. v. Fitts, 44 N. H. 631. 2 There is no reason to suppose Against firemen and engineers of that the matter in these brackets, engines for neglects, 10 Cox, C. C. though in the form before me, is Ap. 45; Eeg. v. Pardenton, 6 Cox, essential. It is not in the old books C. C. 347. Endangering lives of rail- of precedents, and it is within what road employees, P. v. Dunkel, 89 is explained ante, §§ 44-49. Mich. 255, 356, note. Crossing bar 3 Com. V. Dedham, 16 Mass. 141. without pilot, S. v. Penny, 19 S. C. ^Ante, §§ 539-531. For loss of 318. Master of vessel leaving sea- life through neglect of corporations, men behind in foreign land, Reg. v. common carriers, proprietors of Smison, 1 Cox, C. C. 188: Eeg. v. steamboats, railroads, etc., Com. v. Dunnett, 1 Car. & K. 435. Signs at East Boston Ferry, 13 Allen, 589; road crossings, not erecting, S. v. S. V. Gilmore, 4 Fost. (N. H.) 461. Manchester, 3 Baxter, 416; a v. Lou- 5 Non-repair of sea beach, Reg. v. don, 3 Head, 364; Louisville, etc. Baker, Law R. 3 Q. B. 631. Not Turnpike v. S., 8 Heisk. 129. Not repairing jail, 4 Went. PI. 363. Not putting up notice of hours in a day's coming to church, Rex v. Fenton, work, Com. v. Osborn Mill, 130 Mass. Trem. P. C. 367. Against selectmen 88. Negligently compounding med- of a town for neglecting to raise and icine, S. v. Smith, 66 Mo. 93. apply money for the relief of soldier's 438 OHAPTEK LX. NEUTRALITY LAWS, OFFENSES AGAINST.l § 759. In general. — Acts of parliament and of congress have created, in England and the United States, various offenses against the neutrality of the enacting power, chiefly applicable in times of Avar between friendly nations. Our own occupy a chapter in the Kevised Statutes of the United States,^ and there are provisions of later dates. § 760. As to precedents.— The English and American stat- utes are similar. And the books contain some precedents of the indictment on them. Such forms are seldom called for, and, when they are needed, it is a simple matter to examine them in their original sources. Therefore the author deems that he shall best serve the reader by merely referring to the places where they may be found, and devoting the space thus saved to what will be oftener required-in practice.^ 1 Crim. Law, I, § 482. And see Id., & F. 25; Reg. v. Rumble, 4 Fost. & F. §§ 481-485. 175; Reg. v. Corbett, 4 Fost. & F. 555. 2 R. S. U. S., §§ 5281-5291. Illegal privateering, Henfleld's Case, 'Attempting to make, unlicensed, Whait. St. Tr. 49, 66. Issuing com- enlistments for the service of a for- mission, etc., U. S. v. Reyburn, 6 Pet. eign power, 9 Cox, C. C. Ap. 58. 353. Fitting out vessel for foreign Equipping vessel to be employed by service, U. S. v. Quincy, 6 Pet. 445. one foreign state against another, 4 Setting on foot, and preparing means id. Ap. 27. Enlisting men to serve as for, an expedition against a friendly sailors in war vessels against foreign power, U. S. v. Lumsden, 1 Bond, 5. friendly powers, Reg. v. Jones, 4 Fost. For NIGHT-WALKERS, see Vagrancy, etc NOISES, see Nuisance. NON-FEASANCE, see Malfeasance, etc. 439 CHAPTER LXI. NOXIOUS AKD ADULTERATED FOODi AND THE LIKK § 761. Elsewhere — Here, — The public nuisance of render- ing food and drink noxious, the same as of making the air impure or offensive, belongs to the next chapter. Still some- thing of what may be deemed quasi nuisance falls appropriately within the present title. § 76a. Nature of oifense and indictment. — This wrong, like various others, instead of being punishable by reason of distinct principles of its own, derives its criminal quality from the dif- fering principles which govern other and less mixed crimes, operating in the several classes of these cases in differing de- grees. Thus, it is a species of cheat, or attempt to cheat; and some sorts of it are almost purely such, while other sorts have but little of this ingredient. Again, it is a species of assault and battery, the battery being inflicted by the deleterious food taken into the stomach, or it is an attempt to commit such battery; and some sorts of it are almost purely such, while others have less of this quality. Once more, it is a species of common nuisance; and some sorts of it are almost purely such, while others have little of this kind of offending. And the result is, that the indictments, if skilfully and properly drawn, will vary with the cases; in some, it will be much like the non- technical indictment for assault and battery;^ in others, be similar to that for the common-law cheat;' and, in others, re- semble the forms for nuisance, to be considered in the next chapter. Hence,' — § 763. Formula. — There can be no helpful formula for the indictment, adapted to all cases, except in outline. The allega- tions should vary with the sort of case, as well as with the spe- iFor expositions of offenses con- at Common Law; Conspieact; Nui- nected with, see Crim. Law, I, S^g 484, sance. 491, 558; Grim. Pro., I, § 524, note; ^Ante, §§ 207-209, 214, 218, 225. II, §§ 868, 878; Stat. Crimes, §g 988b, ^Ante, §§ 272-275. note, 1124^1127. And consult Cheats 440 OH. LXI.] NOXIOUS AND ADULTERATED FOOD. [§ 764 cial facts; and, if the proceeding is on a statute, with the stat- utory words. They may be, for example, — That A., etc. {ante, §§ 74r-77], on, etc., at, etc. [ante, § 80], did unlawfully and maliciously mix and mingle together flour, water and sundry deleteri- ous and poisonous substances to the jurors unknown,! and bake the com- pound into loaves intended to resemble and resembling good and whole- some bread, and did then and there unlawfully and maliciously expose the same for sale and sell the same as and for good and wholesome bread fit and good for human food, and in particular did then and there unlawfully and maliciously sell one loaf thereof to one X. as and for such bread; whereas, in truth and in fact, the said loaves then and there were not good and wholesome bread, and were not fit to be eaten by man, but were a poisonous and deleterious compound [or, setting out any other wrong within the title of this chapter according to its particular nature and spe- cial facts]; all of which the said A. then and there well knew; against the peace, etc. [ante, §§ 65-69].2 § 764. Selling noxious bread — (Common form). — A form adjudged in an English case good at the common law, and by Chitty transferred into his book of precedents, is, with slight omissions of what no one would deem material, — That A., etc., on, etc., and thence continually during the period of six months next following [ante, §§ 81-84], at, etc., was employed and intrusted to make and deliver, for the use of the X. asylum there, at which asylum weire children provisioned and fed to the number of one thousand and 1 Compare with jposi, § 764 and note. Indiana. — Schmidt v. S., 78 Ind. 2 This formula, if accepted as a 41, 43. g^ide, will not cast upon the pleader Iowa. — S. v. Close, 35 Iowa, 570. anyheavy burden of allegation. Still Massachusetts. — Cora. v. Boynton, the reader will see, as we proceed, 13 Cush. 499; Com. v. Flannel ly, 15 that in some respects it is a little Gray, 195; Com. u. O'Donnell, 1 Allen, more minute than the course of de- 593; Com. v. McCarron, 3 Allen, 157; cision would seem to require. But Com. v. Farren, 9 Allen, 489; Com. v. it is hardly desirable in these cases, Nichols, 10 Allen, 199; Com. v. Ray- and perhaps not safe, to omit every- mond, 97 Mass. 567; Com. v. Smith, thing permitted by any court. For 103 Mass. 444; Com. v. Chase, 135 forms and precedents, see 3 Chit. Mass. 303; Com. v. Luscomb, 130 Crim. Law, 556-560; 4 Cox, C. C. Ap. Mass. 43; Com. v. Evans, 133 Mass. 11. 14; Rex v. Dixon, 3 M. & S. 11; Reg. New Hampshire. — S. v. Buckman, V. Stevenson, 3 Fost. & F. 106; Webb 8 N. tt 303. V. Knight, 3 Q. B. D. 530; Francis v. New York. — Goodrich v. P., 3 Maas, 3 Q. B. D. 341; Sandys v. Small, Parker, C. C. 633, 19 N. Y. 574 3 Q. B. D. 449. North Carolina.— S. v. Smith, 3 Oonneetiout. — S. v. Stanton, 37 Hawks, 378. Conn. 431. Tennessee.— liQYi v, S., 4 Baxter, Georgia.— Bowning v. S., 66 Ga. 289. 160. 441 § 765.] SPECIFIC OFFENSES. [bOOK III. more, certain loaves of good household bread, for the use and supply of the said children at and for a certain price to be to him the said A. paid for the same; and that he the said A., being so employed and intrusted [but being an evil-disposed person and not regarding the laws, etc., with force and arms, eto.ij, did, at the times and place aforesaid, unlawfully, falsely, fraudulently and deceitfully [and for his own lucre ^J, in the course of the said employ, and in breach of his trust and duty,^ deliver [and cause to be delivered*] unto Y. and Z., being respectively officers and servants belonging to the said asylum, divers, to wit, two hundred and ninety-seven loaves of bread, as and for loaves of good household bread, for the use and supply of the said asylum and the children belonging to the same; whereas in truth and in fact the said loaves of bread were not good household bread, but on the contrary contained divers noxious and unwholesome ma- terials not fit or proper for the food of man,* and the said A.* well knew that the said loaves of bread were not good household bread, but that the same did contain such noxious materials; against the peace, etc.^ § 765. Flesh meat for food.^ Comparing the precedents, we may accept the following as a good form for the common-law offense of exposing for sale or selling unfit flesh of animals for food: — That A., etc., on, etc., at, etc., at a public market there for the buying and selling of flesh meat for human food, did unlawfully and deceitfully expose publicly for sale a quantity of flesh* meat as and for sound and wholesome flesh meat fit for human food; whereas in truth and in fact it was not so, and this the said A then and there well knew ' [or, on, etc., at, etc., did 1 Unnecessary. Ante, §§ 43, 45, 46. wise; and Bayley, J., said, "that it 2 There is no reason to suppose that was peculiarly within the def end- the matter in these brackets is essen- ant's knowledge what materials he tiaL Ante, § 631 and note. In like used, and it was a rule in pleading manner, the allegation that the de- that a party may allege generally f endant was to be paid for the bread what is within the knowledge of the is probably immaterial; but it seems other party." Rex v. Dixon, infra, appropriate enough, as introducing at p. 14. To the like effect is Good- the element of cheat. Ante, § 763. rich v. P., 19 N. Y. 574 3 Some would deem it prudent to « Perhaps, for the reason suggested repeat here the allegations of time in a previous note, some will choose and place, and so avoid a question, to repeat the time and place here, whatever they might think the strict ' Rex v. Dixon, 3 M. & S. 11, 3 Chit law to be. Grim. Law, 559. And see the forms * The principle stated Grim. Pro., I, in the next three preceding pages of g 333, shows this clause to be imma- Chitty. teriaL And see ante, § 631, and places ^ As to the reason for using this ad- there cited. jective, see ante, § 593, note, " meat." 5 It was objected that the noxious ' Reg. v. Stevenson, 3 Fost. & F. materials ought to have been speci- 106. There being here no allegation fied. But the court thought other- of a sale, the charge may be deemed 443 CH. LXI.] NOXIOUS AND ADULTEEATED FOOD. [§ 766. knowingly, deceitfully and maliciously expose to sale and sell to divers persons to the jurors unknown {or to one X.) divers quantities, to wit, five hundred pounds of beef, to be used and eaten as food for man, as and for good and wholesome beef and fit for the food of man; whereas in truth and in fact the said beef was not good and wholesome beef and was not fit for the food of man, but was unwholesome and diseased, and unfit to be eaten by man, and this the said A. then and there well knew i]; against the peace, etc.^ ^ § 766. Poisoning well. — It is good at common law to al- lege,— That A., etc., on, etc., at, etc., did maliciously put into the well there of one 2., near to the dwelling-house of the, said X, from which well, as the said A. then and there knew, the said X. and his wife and family were in the daily and constant habit of drawing water and drinking and using the same, sundry carcasses of dead rats [with the intent thereby to poison and render unwholesome the water of the said well, and to injure the said X. and his said wife and family']; by reason whereof the waters of the said well became [the said A. then and there, and while putting the said car- casses into the said well, knowing they would become *] greatly corrupted, unwholesome and poisonous, and the said X. and his said wife and family were greatly injured by the drinking and using thereof; against the peace, etc.5 within the principle of attempt. And, in attempt, the defendant must contemplate the particular evil re- sult. Crim. Law, I, § 739. Hence, he must be aware of the deleterious quality, — an element which the cases seem generally to require even in the substantive form of this offense. See, for example, Com. ■;;. Boynton, 13 Cush. 499. Compare with Seibright V. S., 3 W. Va. 591; Burnby d. Bollett, 16 M. & W. 644 1 Goodrich v. P., 3 Parker, C. C. 632, 19 N. Y. .574. 2 Probably the courts would not quite agree as to how much this in- dictment could be cut down and leave it good. In S. v. Smith, 3 Hawks, 378, the allegations, contain- ing little but surplusage, were held good at the common law, — " That A., etc., on, etc., at, etc., did unlawfully, falsely, maliciously, mis- chievously and deceitfully sell and dispose of, to one X and others, cer- tain unwholesome and poisonous beef, and did then and there receive pay for the same; to the great injury of the said X. and his family, to the great nuisance of the good citizens of the state, and against the peace, etc." Diseased cow. — For a form for selling a diseased cow in a public market, see 4 Cox, C. C. Ap. 14. 3 The matter in these brackets is not in the form before me. It is in- serted here for the convenience of any pleader who may deem it essen- tial. And see the next note. * Not in the form before me; which, without the matter in either of these brackets, was adjudged good. Plainly these allegations strengthen the in- dictment, but probably most will deem it suflicient without them. Yet, for caution, if nothing more, their insertion may in some circum- stances be wise. 5S. V. Buckman, 8 N. H. SOa 443 §§ Y67-769.] SPECIFIC offenses. [book hi. § 767, Various forms under statutes: — Jlnwliolesome provisions. — Under the words "knowingly sell any kind of diseased, corrupted or unwholesome provisions, whether for meat or drink, without making the same fully known to the buyer," ^ the allegations may be, — That A., etc., on, etc., at, etc., did knowingly sell to one X. a certain piece of diseased, corrupted and unwholesome provisions, to wit, one hind leg of veal, then and there knowing the same to be diseased, corrupted and un- wholesome,2 and without making the said condition of the said veal fully known to the said X. ; against the peace, etc.' § 768. Having unwholesome meat for sale. — Under a pro- vision to punish one who " kills for the purpose of sale any sick, diseased or injured animal, or who sells or has in his possession vvith intent to sell the meat of any such sick or diseased or in- jured animal," — must it be averred, to cover the interpreted latter clause, that the defendant knew the unfit condition of the meat ? * The majority of the court adjudged it necessary to allege that the intended sale was to be " for food." And so the following would seem to suffice, — That A., etc., on, etc., at, etc., did unlawfully have in his possession, with the intent then and there to sell the same to be used and consumed for human food, the meat of certain sick, diseased and injured hogs^ [knowing the same so to be"]; against the peace, etc.'' § 769. Calf too young. — Upon the words " kills or causes to be killed, for the purpose of sale, any calf less than four weeks 1 Mass. R. S., ch. 131, § 1. hogs are judicially known to be ani- 2 This extending of the allegations mals, this circumlocution is useless, beyond the mere words of the statute Ante, § 346 and note. was held to be necessary. Compare * Not in the form before ma withposi, §§768, 769; but the reader Whether necessary or not will de- will observe that the terms of the pend on how the statute is inter- statutes diflfer. preted. Ante, § 767 and note. I pre- sCpm. V. Boynton, 13 Cush. 499. sume that, on this point, the just The word " confectionery " would not view, reconciling the cases and fol- be sufficiently definite in allegation, lowing the true reason of the law, And see, for form, Com. v. Chase, 125 does not require this allegation where Mass. 303. neither the word " knowingly " nor *Ante, § 767 and nota its equivalent is in the statute, but 6 In the form before me the expres- otherwise where it is. sion here is, " the meat of certain sick, ' Schmidt v. S., 78 Ind. 41, 42. Com- diseased and injured animals, to wit, pare with Com. v. Raymond, 97 Mass. the meat of certain hogs." But as 567; post, § 769. 444 CH. LXI.] KOXIOTJS AND ADULTERATED FOOD. [§ TTO. old," knowledge not being an affirmative element in the of- fense,^ it will be good to aver, — That A., etc., on, etc., at, etc., did unlawfully kill a certain calf less than four weeks old, with the Intent then and there to sell the meat thereof [for human food 2]; against the peace, eto.^ § 770. Adulterated milk. — In some of the states, statutes, in terms not entirely identical, make it a crime to sell or keep for sale adulterated milk.'' The Massachusetts provisions, which have varied more or less from time to time, are, in part, as ap- pearing in the " Public Statutes," that one shall be punishable who, " by himself or by his servant or agent, or as the servant or agent of any other person, sells, exchanges or delivers, or has in his custody or possession with intent to sell or exchange, or exposes or offers for sale or exchange, adulterated milk, or milk to which water or any foreign substance has been added." And, further on, that, "in all prosecutions under this chapter, if the milk is shown upon analysis to contain more than eighty- seven per cent, of watery fluid, or to contain less than thirteen per cent, of milk solids, it shall be deemed for the purposes of this chapter to be adulterated." ^ If, in the former of these provisions, the last " or " is interpreted in the sense of " to wit," so that the last clause is explanatory of the meaning of " adul- terated milk," * and if the latter provision is construed as de- claring adulterated all milk below its standard of richness, whether a foreign substance has been added to it or not,- the description of the milk in the indictment need, on principle, be only that it is " adulterated," without anything as to the manner or elements of its adulteration.' In this vicAV the aver- ments may be simply, — That A., etc., on, etc., at, etc., unlawfully sold to one X one quart of adulterated milk [or, had in his custody and possession one hundred gal- lons of adulterated milk, with intent to sell the same; or exposed and of- fered for sale one hundred quarts of adulterated milkj; against the peace, etc. ^Ante, § 651, note, and places there * Mass. Pub. Stats., ch. 57, g§ 5, 9. referred to; post, § 770. « Com. v. Farren, 9 Allen, 489, 491. 2 Not in the form before me. Ante, ' Com. v. Luscomb, 130 Mass. 43, 44; § 768. Com. V. Evans, 132 Mass. 11. 'Com. V. Raymond, 97 Mass. 567. ^Ante, § 663, note. against the peace, eto.i YII. DiSOEDEELT HoUSE.^ § 793. Elsewhere. — A bawdy-house being a species of dis- orderly house, what is said under the sub-title " Bawdy-house " ' should be consulted as a part of this sub-title. It is so also, in a degree or fully, of the sub-titles " Evil Shows and Exhibi- tions," " Gaming-house," " Liquor and Tippling Shops," and " Noxious and Offensive Trades and Business." § 794. Formula for indictment. — No formula, differing from what is given under the sub-title " Bawdy-house," is re- quired here.* 1 This is, in substance, yet not en- tirely in exact words, one of two counts, both of which were held good, in Com. v. Mohn, 2 Smith (Pa.), S-iB. The other count alleged, — " That the said A., on, etc. [as be- fore], at, etc. [being an evil-disposed person, unnecessary, ante, § 46], [and designing, contriving and intending the morals as well of youth as of divers other citizens of this com- monwealth to debauch and corrupt, probably mere surplusage], openly and publicly with a loud voice, in the public highways, wicked, scan- dalous and infamous words did utter in the hearing of the citizens of the commonwealth" [concluding as in other cases]. It seems to me that there is more room to doubt the suflBciency of this form in general American practice than the one in the text. The of- fense here charged is, not the con- tinual brawl of the common scold, where the impossible setting out of the words is not required, but the uttering of scandalous and infamous words in the highways. Compare with an Ante, 631. §§ 636, 631. 11 Not in the form before ma See 'Not necessary. Ante, § 631, note, anfe, § 798 and note, and places there referred ta ^^ Reg. v. Saunders, 1 Q. B. D. 15, 13 Cox, G C. 116. 463 §§ 800-802.] SPECIFIC OFFENSES. [bOOK III. § 800. Public cruelty to animal.^ — Allegations, here slightly modified in the mere expression, have been held good for the common-law nuisance, — That A., etc., on, etc., at, etc., near unto and within full view from cer- tain highways there, whereon people in great numbers were constantly passing and going, and within full view from great numbers of inhabited dwelling-houses, and within the actual view and sight of great numbers of people, did unlawfully, wantonly and cruelly, with clubs and stones, beat, strike and grievously wound and kill a certain cow [the property of one X.2J, [of the value of, etc.'], thereby disturbing the public peace, and terri- fying and otherwise annoying all persons who were then and there either seeing or hearing the same; to the common nuisance of all the people, against the peace, etc.* § 801. Other forms — may be drawn in analogy to the fore- going;^ and still others appear in the next sub-title, which is but a continuance of this. IX. ExposuEE OF Person.* § 802. Form, and how. — Yarious precedents for the indict- ment are given in "Criminal Procedure."' It will be there seen that the authorities are not quite uniform as to how much of averment is indispensable under the common law. But the following form, it is believed, will satisfy all views, and be good also on any statute the terms of which it duly covers: — That A., etc., on, etc., at, etc., did, in a certain highway there, whereon great numbers of people were then standing and passing [or, on the roof of a certain building there, within full view from the windows of large num- bers of inhabited houses and of other buildings wherein were people con- gregated; or, in a cei-tain public omnibus there, in the presence and in sight of great numbers of passengers therein; or, etc., particularizing, in 1 Grim. Law, I, § 597; Stat. Crimes, out license, contrary to a statute, § 1100. Reg. V. Rosenthal, Law R 1 Q. B. 93. ^ In the form before me, but evi- Setting off fireworks in a public dently not necessary. Stat. Crimes, street, 3 Chit. Grim. Law, 628. Over- §1130. And see the precedents ajiie, seers of poor putting poor persons § 346 et seq. into an improper neighborhood and 3 Not necessary, because the value so creating a nuisance, 3 Chit Grim, is immaterial. Ante, § 346, note. Law, 658. * V. S. V. Jackson, 4 Cranch, C. C. ^ For the direct expositions of the 483. Baiting buU. — For publicly law and procedure, see Crim. Law, L baiting a bull, 3 Chit. Crim. Law, §§ 1135-1134; Grim. Pro. II, §§ 351- 627; 4 Went. PI. 313. As to the 356. Incidental, Crim. Law, I, §§ 244, meaning of "baiting,"' Stat. Grimes, 500; Stat. Grimes, §717. §1109. 7Crim. Pro., II, §§351-356. 5 For exhibiting stage plays with- 464 CH. LXII.J MUISANCB. [§§ 803, 804. like manner, any other place which is so far public that the offense may in law be committed in it], lasciviously and scandalously, with intent to cor- rupt the minds and manners of all lookers-on, expose, naked and uncovered, his private member and other of those parts of his body which decency requires to be clothed [or, the body and person of him the said A.], to divers and sundry women and other persons then and there witnessing the exhibition; to the common nuisance of all the people [ante, § 775], against the peace, etc.' § 803. Under statute, — Some of our statutes are duly cov- ered by briefer forms. Thus, under a provision to punish any one " guilty of an open and notorious act of public indecency, grossly scandalous," it is sufficient to aver, — That A., etc., on, etc., at, etc., was guilty of [or, did commit] an open and notorious act of public indecency, grossly scandalous, by then and there, in the presence of a man and woman, exhibiting and exposing to view his private parts; to the common nuisaniie of all the people [ante, § 775], against the peace, eto.2 §804. Another. — If one is by a statute made punishable " who shall, in any public place, make any uncovered and in- decent exposure of his or their person," the words " public place" will not alone suffice in, allegation of the special local- ity, being too indefinite.' The averments may be, — That A., etc., on, etc., at, etc., did, in the blacksmith shop of one X, a place open to the public, and into and out of which people were constantly 1 For precedents, see Archb. Crim. Pennsylvania. — Com. v. Spratt, 14 PL & Ev. (19th ed.) 987; 2 Chit. Crim. Phila. 365. Law, 41; Reg. v. Albert, 5 Q. B. 37; Tennessee. — Britain v. S., 3 Humph, Reg. V. Webb, 1 Den. C. C. 338, 3 Car. 203. & K. 983, 3 Cox, C. C. 183; Reg. v. Texas.— 8. v. Griffin, 43 Tex. 538. Holmes, Dears. 207, 3 Car. & K. 360, ^g. t,. Gardner, 28 Mo. 90. I have 6 Cox, C. C. 216; Reg. v. Elliot, Leigh here preserved the exact substance & C. 103; Reg. v. Thallman, Leigh & of a form which was held good. But C. 326, 9 Cox, C. C. 888; Reg. v. Bun- on a similar statute in another state, yan, 1 Cox, C. C. 74; Reg. v. Watson, where the question has not been ad- 2 Cox, C. C. 376; Reg. v. Orchard, 3 judged, I should recommend the Cox, C. C. 348; Reg. v. Farrell, 9 Cox, pleader to enlarge the allegations by C. C. 446; Reg. u Harris, 11 Cox, C. C. some setting out of the place whereby 659; Reg. v. Reed, 12 Cox, C. C. 1. publicity will appear, or of facts giv- Arkansas. — S. v. Hazle, 30 Ark. 156. ing the transaction notoriety, if so Indiana. — Andery v. S., 56 Ind. the allegations will conform to the 338; Lorimer v. S., 76 Ind. 495. truth. Still, if the statute is inter- Massachusetts. — Com. v. Haynes, 2 preted to require only a private ex- Gray, 73; Com. v. Wardell, 128 Mass. hibition to one man and one woman, 52. this form must be held sufficient, un- Missouri. — S. v. Gardner, 38 Mo. 90. less the averment of their names is North Carolina. — S. v. Roper, 1 deemed essential. Dev. & Bat. 208. 3 Stat. Crimes, §§ 903-907. 30 465 § 805.] SPECIFIC OFFENSES. [bOOK III. going and passing, make an uncovered and indecent exposure of his person, by then and there openly, indecently and lasciviously exhibiting the same nude and uncovered to all of divers and sundry persons then assembled there; to the common nuisance of all the people, against the peace, etc.' X. Gaming-house.' § 805. Form, and how. — A common gaming-house is a spe- cies of disorderly house, so that the allegations under the other sub-titles indicate how they should be under this. Precisely how little of averment will suffice is matter on which judicial opinions seem not quite to harmonize,' but no one doubts that many of the precedents contain a large proportion of surplus- age. It is believed that all will accept the following form as good, whether on the common law, or on any statute the terms whereof it duly covers : — That A., etc., on, etc [adding the eontinuando or not as the pleader chooses, ante, §§ 81-84], at, etc., did unlawfully keep and maintain a com- mon gaming-house, open to the public night and day,* and therein did then and there entice, congregate and cause to come together great numbers of disorderly and idle persons and youth, playing therein at unlawful games for money and other valuable things, and betting and wasting their sub- stance thereon, and otherwise misbehaving themselves, and leading and luring one another and all other persons to evil ways; to the common nuisance of all the people [ante, §§ 775, 777]; against the peace, etc.* iLorimer v. S., 76 Ind. 495. The P. O. 241; Rex v. Eogier, 1 B. & C. text embodies the substance of this 373; Rex v. Taylor, 3 B. & C. 503. precedent, but departs considerably Arkansas. — S. «. Mathis, 3 Pike, 84 from it in words, — perhaps for the Colorado. — Chase v. P., 3 CoL Ter. better, perhaps not. For a form ad- 509. judged good under the Texas stat- Oeorgia. — Dohme v. S., 68 Ga. 339. ute, see S. v. Griffin, 48 Tex. 538. Idaho. — P. v. Goldman, 1 Idaho 2 For the direct expositions of this Ter. 714 ofifense, with the pleading, evidence Indiana. — McAlpin v. S., 3 Ind. andpractice,seeCrim. Law,I,§§1135- 567; Crawford v. S., 33 Ind. 304: Carr 1137; Crim. Pro., II, §§ 487-494 In- v. S., 50 Ind. 178; Padgett v. S., 68 cidental, Stat. Crimes, §§ 847, 853, Ind. 46. 878, 890-892, 895. And compare with Iowa.— S. v. Cure, 7 Iowa, 470; a the title Gaming. v. Middleton, 11 Iowa, 246. ' Crim. Pro., II, §§ 275, 276, 48a Maine.— S. v. Haines, 30 Me. 65. *Ante, § 783, note. ilfan/Zand.— Wheeler v. S., 42 Md. 5 For other forms and precedents, 563. see Crim. Pro., II, §488; Archb. Crim. Massachusetts. — Com. v. Tilton, 8 PL & Ev. (10th ei.) 637, (19th ed.) 962; Met. 332; Con^ v. Stahl, 7 Allen, 304 8 Chit. Crim. Law, 673-678; 4 Went. Missouri— S. v. Palmer, 4 Mo. 453. PL156;6id.384;Rexi;. Milner,Trem. New Hampshire.— hoid v. S., 16 466 CH. LXII.J NUISANCE. [§§ 806-810. § 806. Abridged and varied. — Under adjudications in some of our states, and codes of procedure in others, these averments may be safely abridged. And everywhere, if the special facts are different, variations to cover them should be made. Thus, — § 807. Bowling-alley. — Following a form which was ad- judged good, and omitting only what all concede to be sur- plusage, we have, at the common law, — That, A., etc., on, etc., at, etc., unlawfully and injuriously did keep and maintain a certain common and disorderly room called a bowling-alley [open to the public night and day i], and did then and there unlawfully and injuriously cause, procure and suffer divers persons, to the jurors unknown, to frequent and come together at said bowling-alley for the purpose of bowling, and then and there to play therein at bowls in the day-time and also in the night-time; to the common nuisance of all the people [ante, § 775], against the peace, etc.^ § 808. On statute. — "Where a statute makes punishable one who " shall keep any gaming-house or place, and shall suffer any person to play at cards, dice, billiards, or at any bowling- alley, or any game whatever therein for money, hire, gain or reward," the averments may be, for example, — That A., etc., on, etc. [adding the eontinuando or not, as the pleader chooses, ante, §§ 81-84], at, etc., did keep a certain gaming place, and did then and there suffer and permit many idle, disorderly and dissolute per- sons to play therein at games of cards and other games for money, for other hire, for gain, and for reward; to the common nuisance of all the people, against the peace, etc' § 809. Other statutes. — The statutes are various, and the particular one must be co vered. But the pleader will need no further help.* XI. Injurious oe Offensive Aie.' § 810. Oifense and indictment. — To render the air injurious to the health or offensive to the senses is not a sort of nuisance N. H. 335; S. v. Leighton, 3 Fost. 'Not in the form before ma See (N. H.) 167; S. v. Noyes, 10 Fost. anie, § 783 and note. (N. H.) 379; S. v. Presoott. 33 N. H. ^S. v. Haines, 30 Me. 65. Andcom- 313. pare with the form in Lord v. S., 16 North Carolina. — S. v. Langford, 3 N. H. 335. Ire. 354. 3 S. v. Prescott, 33 N. H. 313. United States. — District of Colum- ^ See, for example, forms in Com. bia. U. S. V. Holly, 3 Cranoh, C. C. v. Tilton, 8 Met. 383; McAlpin v. &, 656, 658; U. S. v. Milburn, 4 Cranch, 3 Ind. 567; Padgett v. S., 68 Ind. 46; C. C. 719; U. S. V. Dixon, 4 Cranch, S. v. Noyes, 10 Fost. (N. H.) 379. C. C. 107. ^ For matter relating more or less 467 § 811.J SPECIFIC OFFENSES. [bOOK III. strictly separable from the rest ; but, if one does this, and creates annoying noises, and otherwise disturbs or corrupts the public, all in a single transaction, he evidently commits only one indict- able wrong.' The indictment should aver enough of the special locality to show it to be a place where the offense can in law be committed, say what the defendant did there; and, unless the consequence is obvious to the judicial understanding, state the effect on the air, or how otherwise it endangered or annoyed the public. Thus, — That A., etc., on, etc., at, etc., near unto great numbers of dwelling-houses and divers highways, where great numbers of people were constantly abid- ing and passing, did, etc. [say what], whereby then and thence continually until the day of the finding of this indictment the air there and for a great distance around became and was noxious, injurious and offensive to all persons surrounded by it; to the common nuisance of all the people [ante, §§ 775, 777], against the peace, etc.2 § 811. Necessary house. — The allegations may be, — That A., etc., on, etc., at, etc., near unto [or, within fifty feet of] a certain public and common highway there, whereon people were constantly passing and going, and near unto divers inhabited dwelling-houses there, did unlaw- fully erect and maintain a certain building called a necessary house [or, . did continue, etc., theretofore erected, etc.], for the use of many and divers persons for necessary purposes, and thence continually until the day of the finding of this indictment did continue the same, and did there dui-ing all the aforesaid time keep the same and suffer it to remain in a filthy condition; whereby the air in the said public highway and in the said dwelling-houses and for a great distance round and about the said necessary house became, by reason of offensive and noxious odors emitted therefrom, greatly corrupted, offensive to the senses, and deleterious to the health, and so continued to^ directly to this offense, see, among Kentucky. — Barring v. Com., 2 other places, Crim. Law, I, §§ 489- Duv. 95. 493, 531, 1138, 1141, 1143; II, § 1373; Maine.— 8. v. Payson, 37 Ma 861. Crim. Pro., II, § 877a. Massachusetts. — Com. v. Sweeney, 1 Ante, g§ 776, 780. 131 Mass. 579. 2 For forms and precedents, see 3 New York. — Munson v. P., 5 Par- Chit. Crim. Law, 623, 639, 643, 647, ker, C. C. 16. 651-656 ; 4 Went. PL 313-219, 334, 335, Pennsylvania.— Com. v. Van Sickle, 353; 6 Cox, C. C. App. 76, 77; E,ex v. Brightly, 69. Vantandillo, 4 M. & S. 78; Rex v. South Carolina. — S. r. Purse, 4 Mc- Burnett, 4 M. & S. 373; Rex v. Pedly, Cord, 473; S. v. Rankin, 3 S. C. 438. 1 A. & E. 832; Rex v. Henson, Tennessee. — Cornell u S., 7 Baxter, Dears. 24 530. Iowa. — S. V. Raster, 35 Iowa, 331; Virginia. — Stephen v. Com., 2 S. V. Close, 35 Iowa, 570. Leigh, 759. 468 OH. LXII.J H-mSANCB. [§§ 812-814. be and was during all the time aforesaid; to the common nuisance of all the people, and against the peace, etc.i § 812. Piggery. — It is good to allege, — That A., on, etc., at, etc., near to a common highway there, whereon peo- ple were continually passing, and near to the dwelling-houses of divers people, did set up and erect, and thence continually to the day of the find- ing of this indictment did continue, a certain pen and inclosure wherein during all said time he did keep large numbers of hogs and oflfal, and filth and slops and other noxious and offensive things for said hogs to feed upon and eat; by reason whereof noxious, vile, offensive and deleterious odors were created and sent forth from said pen and inclosure, rendering the air near to and for a long distance from the same offensive and injurious to all persons there inhabiting, passing and being; to the common nuisance of all the people, against the peace, etc.^ § 813. Other filth. — On the same principles as the last two forms are constructed the allegations for making the air foul bj' collecting any other filth.' §814. Small-pox. — The indictment for endangering the public health by taking into the streets a person having the small-pox may aver, — That on, etc., at, etc., one X was infected, ill and sick with a certain con- tagious and dangerous disease and infection called the small-pox, liable to be communicated through the air and otherwise to other persons; where- upon A., etc., well knowing these premises, did then and there unlawfully take and carry the said X. into, in and along a certain highway there whereon were multitudes of people constantly going and passing, and near .to dwelling-houses in large numbers wherein were multitudes of people abiding, and among multitudes of people, to the great and manifest danger of infecting, making sick and destroying the lives of all of said persons, and spreading the aforesaid infection and disease through the entire com- munity; to the common nuisance of all the people, against the peace, etc.* 1 1 have enlarged this form a little 131 Mass. 579; 4 Went. PI. 215-219. beyond the precedents in some par- By putting night-soil in the street, 3 ticulars, and slightly varied it in Chit. Grim. Law, 622. Killing cattle others, to free it from what is too and leaving their skins and carcasses obviously surplusage, and render it to corrupt the air, 3 Chit. Crim. Law, more certainly adequate. See, for 629, 647. Keeping pack of hounds precedents, 3 Chit. Crim. Law, 651; 4 and placing carrion near the high- Went. PI. 223; Rex ■;;. Pedly, 1 A. & way, 3 Chit. Crim. Law, 643; 4 Went. E. 822; S. v. Purse, 4 McCord, 473. PI. 213. Deleterious smoke and 2 For precedents, see S. v. Payson, vapors, 6 Cox, C. C. App. 76. 37 Me. 361 ; S. v. Kaster, 35 Iowa, 331 ; * The precedents overflow with 3 Chit. Crim. Law, 647; Com. v. Van obviously useless words while omit- Sickle, Brightly, 69. ting something of what is perhaps ' For example, see forms in Cornell essential. So the above form departs v. S., 7 Baxter, 520; Com. ■!;. Sweeney, considerably from them. See, for 469 §§ 815-817.] SPECIFIC OFFENSES. [bOOK III.. §815. Glandered horse. — Similar to the foregoing is the indictment for taking into the public ways a horse affected with the glanders or other disease communicable to man. No sepa- rate form for it is required.^ § 816. Stagnant water. — By a statute, "corrupting or ren- dering unwholesome or impure the waters of any river, stream or pond " was declared to be a nuisance. Thereon an indict- ment substantially in the following terms was held to be good, and it is believed to satisfy also the common law: — That A., etc., on. etc., at, etc., being possessed of a certain mill-dam, mill- pond and mill, with their appurtenances, situate near and adjacent to a common highway and the dwelling-houses of divers persons, did then and thence continually until the day of the finding of this indictment [ante, §§ 81-84] there unlawfully and injuriously cause and permit the waters of said mill-pond to overflow the adjacent lands, as well the lands of other persons as his own; by means whereof the water of said mill-pond was rendered impure, corrupted and unwholesome, and the lands overflowed as aforesaid were rendered and kept marshy and filled with noxious weeds and putrid vegetation, and corrupted, impure and unwholesome water, whereby the air in and along said common highway, and in and around said dwelling-houses, and over and for a long distance around said mill- pond, became and was corrupted, infected, offensive and unwholesome; to the common nuisance of all the people, against the peace, eto.2 XII. LiQUOE AND Tippling Shops.' §817, At common law. — A tippling-shop is indictable at the common law only when and because it is a disorderly house.* And so the forms under the sub-titles " Bawdy-house," " Disor- derly House " and " Gaming-house " are serviceable under this sub-title, ^o good would come from setting down here sepa- precedents, 2 Chit Crim. Law, 553; 4 759; Munson v. P., 5 Parker, C. C. 16; Went. PI. 353; Rex t). Vantandillo, 4 Barring v. Com., 3 Duv. 95. Dam- M. & S. 73; Rex v. Burnett, 4 M. & S. ming stream, and so making the air 273. Against an apothecary for keep- unwholesome, S. v. Rankin, 3 S. C. ing a common inoculating house near 438. the church in a town, 3 Chit. Crim. ^ por the direct expositions of this Law, 658. Against a surgeon for offense, with the pleading, evidence causing children to be brought and practice, see Crim. Law, I, through public streets, infected with §§1113-1118; Stat. Crimes, g§ 1064- contagious disorder, 3 Chit. Crim. 1070. Incidental, Crim. Law, I, §§ 318, Law, 555. 504, 505; Stat. Crimes, g§ 313, 984, 1 For precedents, see 6 Cox, C. C. 997, 1027. Ap. 77; Reg. v. Henson, Dears. 24. * Crim. Law, I, § 1113; Stat Crimes, 2 S. V. Close, 35 Iowa, 570. For like §§ 984, 1064. forms, see Stephen v. Com., 2 Leigh, 470 CH. LXII.J NUISANCE. [§§ 818-820. rate forms, which, in substance, would be mere repetitions of matter from the other sub-titles.^ Still, — § 818. As repetitions of offense. — Under the principle that it is an indictable nuisance at the common law to keep a place for the common commission and repetition of petty offenses,^ if a statute has made the several unlicensed sales of liquor penal or punishable, it is believed to be an indictable common- law nuisance to keep a house or shop for such common selling. The author has before him no form for the allegations, but suggests the following : — That A., etc., on, etc. fas at ante, § 80, or, adding the continuando as at ante, §§ 81-84, if the pleader chooses], at, etc., did unlawfully keep and maintain a common disorderly house \pr shop, etc.], open to the public night and day [ante, § 783], wherein to commonly sell, and did commonly sell therein, intoxicating liquors to all persons willing to purchase the same, he the said A. not having any authority or license therefor [or, etc., negativing the license as directed ante, § 643 and note, 649], and did then {or during all the time aforesaid] and there cause to come together and remain in said house \or shop] night and day great numbers of disorderly persons, buying of the said A. intoxicating liquors, drinking the same there, and carrying the same away, in common violation of the laws; to the com- mon nuisance of all the people, against the peace, etc. §819. Statute declaring nuisance — (Lotteries). — There is a third principle, which, as judicially observed, " has pre- vailed and been acted on without qualification, that, when the legislature declares an act to be a public nuisance, the person doing the act is indictable." ' Therefore, after a statute was made pronouncing lotteries " common and public nuisances," * allegations adjudged good were, in substance, — That A., etc., on, etc., and thence continually until the day of the find- ing of this indictment {ante, §§ 81-84], at, etc., did unlawfully set up, con- duct and maintain a certain lottery not authorized by law, wherein were prizes awarded to the subscribers thereto for whom certain numbers were drawn ; to the common nuisance of aU the people [ante, § 775], against the peace, etc.' § 820. Common statute and form thereon. — The statutes creating the offense of liquor nuisance are in differing terms.* 1 And see the form, and note to it. Bell, C. C. 303, 316, 8 Cox, C. C. 375. in 3 Chit. Crim. Law, 671. Also, the Refers to Rex v. Gregory, 5 B. & Ad. precedent in Cable v. S., 8 Blackf. 555. 531. < 10 & 11 Will. 3, c. 17, § 1. 2 Crim. Law, I, §J5 1119-1131. ^Reg. v. Crawshaw, supra. 3 Erie, C. J., in Reg. v. Crawshaw, « Stat. Crimes, §§ 1064-1070. 471 § 820.] SPECIFIC OFFENSES. [book III. A representative one is, that " all buildings, places, or tene- ments resorted to for prostitution, lewdness or illegal gaming, or used for the illegal keep or sale of intoxicating liquor, shall be deemed common nuisances," punishable in a way pointed out.i The allegations on this may be, — That A., etc., on, etc., and thence continually until the day of the find- ing of this indictment [ante, §§ 81-84], at, etc., did unlawfully keep and maintain a certain building 2 [or place, or tenement'] there during all said time ^ used for the illegal keeping and illegal sale of intoxicating liquor; to the common nuisance of all the people [ante, § 775]; against the peace, etc.* 1 Mass. Pub. Stats., ch. 101, g(^ 6, 7. 2 The expression here, in the forms in Com. v. Kelly, 13 Gray, 175, and various other cases, is "a certain common nuisance, to wit, a build- ing." This circumlocution is palpa- bly needless. The statute declares the building to be a nuisance; hence, in matter of law, it is such. But no matter of law need be alleged. Ante, § 734 and note and places there re- ferred to. 3 1 see no great objection to saying here, if the pleader chooses, " build- ing, place and tenement; " for a building is a place, and so is a tene- ment, and probably a tenement is a building. But if the proofs should disclose simply a stand in the outer air, could there be a conviction on this form of the allegation. Ante, § 666, note. * The repetition of time and place here has been adjudged unnecessary. S. V. Hopkins, 5 R. L 53; Com. v. Langley, 14 Gray, 31. I often, in these forms, make this repetition wliere I do not deem it absolutely essential, as a suggestion to the pleader for avoiding a possible ques- tion at the trial or afterward. * Com. V. Kelly, supra, and other cases cited under "Massachusetts" in this note. For precedents under the various statutes, see — Connecticut. — S. v. Thomas, 47 Conn. 546. Georgia. — Warner v. S., 51 Ga. 426- Indiana. — Cable v. S., 8 Blackf. 531; S. V. Zimmerman, 2 Ind. 565; Huber v. S., 25 Ind. 175; Farrell v. S., 88 Ind. 136, 137; Leary v. S., 39 Ind. 544; Joseph v. S., 43 Ind. 370; McLaughlin v. S., 45 Ind. 338; Davis V. a., 53 Ind. 488; Collins v. S., 58 Ind. 5; Douglass v. S., 73 Ind. 385. Iowa. — S. V. Schilling, 14 Iowa, 455; S. V. Baughman, 30 Iowa, 497; S. v. Freeman, 27 Iowa, 333; S. v. Harris, 27 Iowa, 429; S. v. Stapp, 89 Iowa, 551; S. V. Allen, 32 Iowa, 248; S. v. Jordan, 39 Iowa, 387; S. v. Reining- haus, 43 Iowa, 149; [S. v. Dickson, 104 Iowa. 741.] Kansas. — S. v. Teissedre, 30 Kan. 476, 480; S. v. Nickerson, 30 Kan. 545, 547; [S. V. Waters, 57 Kan. 703.] Kentucky. — Morrison v. Com.. 7 Dana, 218; Overshiner v. Com., 2 B. Monr. 344. Maine.— S. v. Collins, 48 Me. 217; S. V. Ruby, 68 Ma 543. Massachusetts. — Com. v. Kimball, 7 Gray, 338; Com. v. Hoye, 9 Gray, 292; Com. v. Buxton, 10 Gray, 9; Com. V. Skelley, 10 Gray, 464; Com. V. Kelly, 12 Gray, 175; Cora. v. Quin, 12 Gray, 178; Com. v. Barnes, 13 Gray, 36; Com. v. Howe, 13 Gray, 36; Com. V. Langley, 14 Gray, 31 ; Com. v. Hill, 14 Gray, 24; Com. v. Taylor, 14 Gray, 26; Com. v. Donovan, 16 Gray, 18: Com. V. Welsh, 1 Allen, 1 ; Com. v. Gallagher, 1 Allen, 593; Com. v. Wal. 472 CH. LXII.] NUISANCE. [§§ 821-823. § 821. Adding other elements. — The statute just quoted is very suggestive of the propriety of adding, in the allegations, other elements of nuisance to this one, if so are the facts.* Thus,— That A., etc., on, etc., and thence continually until the day of the finding of this indictment, at, etc., did unlawfully keep and maintain a certain building [see last form] 2 used as a house of ill-fame resorted to for prostitu- tion and lewdness, and for illegal gaming, and used for tlie illegal sale and illegal keeping of intoxicating liquor; ^ to the common nuisance of all the people, against the peace, etc.* §822. Another. — Under the Iowa provisions it has been adjudged good simply tp allege, — That A., etc., on, etc., at, etc., " did keep a certain house in which he then and there kept for sale and sold intoxicating liquors " [adding the proper conclusion]. 5 XIII. Making Self a Nuisance. § 823. Elsewhere. — Nearly all that would be appropriate here is given in other connections; as, under the title "Drunk- enness," the nuisance of being a common drunkard;^ under " Adultery," etc., open lewdness and connected offenses.' Fur- ther on, the title " Yagrancy," etc., will include various personal ton, 11 Allen, 238; Com. v. Greenen, 'The form in Com. v. Donovan, 16 11 Allen, 241; Com. v. Blake, 12 Gray, 18, proceeds here: "Whereby, Allen, 188; Com. v. Wright, 12 Allen, and by force of the statute in such 190; Com. v. Smith, 102 Mass. 144; case made and provided, the said Com. u Bennett, 108 Mass. 27; Com. ■«. building, place and tenement, then Martin, 108 Mass. 39, note; Com. v. and there kept and maintained by Dunn, 111 Mass. 425, 426; Com. v. the said A., and then and there used Shea, 115 Mass. 102; Com. v. Camp- andresorted to as aforesaid, was then bell, 116 Mass. 32; Com. v. Mclvor, and there a common nuisance." 117 Mass. 118; Com. v. Costello, 118 Needless. Ante, g 830, note. Mass. 454; Com. v. Ballon, 124 Mass. *Com. v. Donovan, supra; Com. v. 36; Com. u Kahlmeyer, 124Mass.323; Langley, 14 Gray, 31; Com. v. Hill, Com. V. Fraher, 136 Mass. 56; Com. v. 14 Gray, 34; Com. v. Taylor, 14 Gray, Eonan, 136 Mass. 59; Com. v. Roberts, 36; Com. v. Kimball, 7 Gray, 338; S. 133 Mass. 367. v. Tracey, 13 R. I. 216. Missouri.— 'Neaies v. S., 10 Mo. 498. ^S. v. Jordan, 39 Iowa, 387. And Rhode Island. — S. v. Hopkins, 5 compare with the somewhat fuller R. L 53; Plastridge v. S., 6 R. L 76; allegations in S. v. Freeman, 27 lov a, S. V. Tracey, 12 R. I. 316. 333; S. v. Allen, 33 Iowa, 348; S. v. Vermont. — ^S. v. Paige, 50 Vt. 445; Baughman, 20 Iowa, 497. S. V. Haley, 52 Vt. 476. . " Ante, §§ 373-376. 1 Ante, g§ 776 and note, 780. ' Ante, §§ 156-15a - Not necessary to repeat time and place liere. Ante, § 830 and note. 473 §§ 824r-827.] SPECIFIC OFFENSES. [book iir. nuisances. And " Barratry," " Common Scold," "Eavesdrop- ping " and " Exposure of Person " constitute separate sub-titles in tiiis chapter. § 824, Prostitute. — Not at common law,^ but under some statutes, it is punishable criminally to be a common prosti- tute.2 § 825. Railer and brawler. — Under a statute making it puuishable to be a " common railer and brawler," it was ad- judged adequate to allege, in general terms, — That A., etc., on, etc. [adding the continuando or not, as the pleader chooses, ante, §§ 81-84], at, etc., was a common railer and brawler [in evil example to others in like case to offend']; to the common nuisance, etc. [ante, § 775], against the peace, etc.* § 826. Brawl and tumult. — A statute forbidding any per- son to " make any brawls or tumults in any street, lane, alley or public place " appears to be sufficiently covered by the alle- gations, — That A., etc., on, etc., at, etc., did make a great noise, brawl and tumult In a certain public street there [concluding as above].* XIV. Noxious AST) Offenses Trades and Business." § 827. Connected with other sub-titles. — The nuisance under this sub-title consists of corrupting the air, creating an- noying noises, or presenting to the sight what should not be publicly exhibited, or all combined; so that, neither in its nat- ure nor in the allegations, is there much reason, apart from the custom of the books, for giving it a separate consideration. • Crim. Law, I, § 1085. quoted in the last section. And the 2 For a form for the allegation, see form in the text adds the words " a Delano v. 8., 66 Ind. 348. And for a great noise " to the statutory expres- similar offense, Com. v. Norton, 13 sion. It is, at least, safe for the Allen, 550. As to the offense, con- pleader to expand the allegations suit Stat. Crimes, g§ 641, 646, 653. here beyond the words in the stat- 3 In the form before me, but not ute. necessary. Ante, § 48. * For the direct elucidations of * Stratton v. Com., 10 Met. 217. As this offense, with the pleading, evi- to the sufiBcienoy of this general form dence and practice, see Crim. Law, I, of allegation, see Crim. Pro., I, §§ 493, g§ 1138-1144; Crim. Pro., II, §§ 875- 494; II, § 200. 877. Incidental, Crim. Law. I, §§ 490, 5 a V. Perkins, 43 N. H. 464. The 491, 531; Stat Crimes, g§20, 156, note, question under this statute seems not 208, note, quite the same as that under the one 474 CH. LXII.] NUISANCE. [§§ 828, 829. § 828. Form in general. — The allegations may be, — That A., etc., on, etc. [adding the eontinuando or not, as the pleader chooses], at, etc. [adding so much in particularization of the locality as will show it to be public, to the extent of rendering the commission of the offense there legally possible], did unlawfully, etc. [setting out the defend- ant's acts, and their effect in creating the particular nuisance]; to the com- mon nuisance of all the people [ante, § 775], against the peace, etc. [ante, § 777].i § 829. Common form — (Tripe boiling, etc.). — A form from the current English books, by slight variations adapted to our use, is, — That A., etc., on, etc. [as in the last form], at, etc., near unto divers com- mon highways, and near unto the dwelling-houses of divers people, there situate and being, unlawfully and injuriously did make, erect and set up [and did cause and procure to be made, erected and set up ^J [or, did, after the erecting, making and setting up by persons to the jurors unknown, unlawfully and injuriously continue 3] a certain furnace and boiler, for the purpose of boiling tripe and other entrails and ofifal of beasts; and did there, during all the time aforesaid [or, if the eontinuando is not used, and perhaps if it is, ante, § 84, did then and there] unlawfully and injuriously boil, in the said boiler, divers large quantities of tripe and other entrails and offal of beasts; by reason of which said premises, divers noisome, offen- sive and unwholesome smokes, smells and stenches, during the time afore- iFor forms and precedents, see Archb. Crim. PI. & Ev. (19th ed.) 955; 3 Chit. Crim. Law, 639, 647-657, 663, 664, 731; 6 Went. PI. 417; 6 Cox, 0. C. Ap. 76, 77; Rex v. Brooks, Trem. P. C. 195; Rex v. Cole, Trem. P. C. 198; Rex V. White, 1 Burr. 333; Rex v. Dewsnap, 16 East, 194; Reg. v. Mut- ters, Leigh & C. 491, 10 Cox, C. C. 6. Indiana.— Ellis v. S., 7 Blackf. 534; Moses V. S., 58 Ind. 185. Maine.— S. v. Hart, 34 Me. 36. Maryland. — Clayton v. S., 60 Md. 273. Massachusetts. — Com. v. Brown, 13 Met. 365; Com. v. Rumford Chemical Works, 16 Gray, 231. New Hampshire. — S. v. Wilson, 43 N. H. 415. New Jersey. — S. v. Society for Use- ful Manufactures, 18 Vroom, 504, 505. New York. — P. v. Cunningham, 1 Denio, 534; Taylor v. P., 6 Parker, C. C. 347, Wisconsin. — Taylor v. S., 35 Wis. 398. 2 Not necessary. Ante, § 139 and note, and places there I'eferred to, 630, 631, 630. ' In the form before me, matter the equivalent of this in brackets is in- troduced into a separate count. I can discover no possible advantage in two counts. Certainly both the erection and the continuance of a nuisance may be charged in one. Crim. Pro., II, § 866. And proof of either will justify a conviction. Nor, as a continuance constitutes a com- plete offense, can any allusion to the erection, or by whom, be necessary where it only is to be proved. If, then, the pleader doubts how the evidence will be, he may simply say, in his one count, — "Did unlawfully erect, maintain and continue to use, etc." [or, in any other appropriate words to this ef- fect]. 475 §§ 830-832.] SPECIFIC offenses. [book hi. said, were thence emitted and issued, so that the air then and there was and yet is greatly filled and impregnated with the said smokes, smells and stenches, and was and is rendered and become corrupted, offensive and un- comfortable and unwholesome ; to the common nuisance of all the people [ante, § 775J; against the peace, etc.i § 830. On statute. — Variations, where the indictment is on a statute, may be permitted or required, so as to cover the statutory terms. Thus on a provision tp punish one who " shall erect, maintain or keep a slaughter-house, or use any building heretofore erected, for the purposes of a slaughter-house, within the limits of any village of not less than one hundred inhab- itants, or within one-eighth of one mile from any dwelling- house or building used as a place of business," the averments may be, — That A., etc., on, etc., at, etc., did unlawfully use for the purpose of a slaughter-house a certain building theretofore erected, and then and there being, within one-eighth of one mile from certain and sundry dwelling- houses then used and occupied as such: and in said building did then and there slaughter [great numbers of beef-cattle, hogs, sheep and other ani- mals 2] ; to the, etc. [concluding as in other cases].' § 831. Other forms — may be readily constructed, in anal- ogy to the foregoing, to cover the facts of particular cases, or special statutory terms.* XV. Offensive and Hurtful Noises.' §832. Howling dogs. — Adapting to our use an English common-law form, we have, — That A., etc., on, etc. [adding, if the pleader chooses, the eontinuando, 1 Archb. Crim. PL & Ev. (10th ed.) Steam-engine.— Rex v. Dewsnap, 633, 684, (19th ed.) 955. 16 East, 194. 2 Not in the form before me, but Boiling, — various sorts of offen- probably most pleaders would choose sive. 3 Chit. Crim. Law, 649, 652; 6 to add something of this sort. Went PI. 417; Eex v. White, 1 Bur. 3 Taylor v. S., 35 Wis. 898, consider- 833; Com. v. Brown, 13 Met. 365. ably changed in the expression. Quarry stone — near highway and ^ Slaughter-house. — 3 Chit. Crim. dwelling-houses. Reg. v. Mutters, Law, 647, 648, 721; Taylor v. P., 6 Leigh & C. 491, 10 Cox,- C. C. 6. Parker, C. C. 347; S. v. Wilson, 43 (xiass-house. — Rex u Brooks, Trem. N. H. 415; Moses v. S., 58 Ind. 185. P. C. 195. Soap manufactory. — 3 Chit. Crim. Brazier. — 3 Chit. Crim. Law, 664. Law, 655; Rext). Cole, Trem. P. C. 198. Copperuiith's shop. — 3 Chit Crim. Bone factory. — Clayton v. S., 60 Law, 663. Md. 273. Making hartshorn.— 8 Chit Crim. Distillery. — P. v. Cunningham, 1 Law, 653. Denio, 524. ^Crim. Law, I, g§ 531, 587, 1078, 476 CH. LXII.j NUISANCE. [§§ 833-835. ante, g§ 81-84], at, etc., adjoining and near unto divers common highways there, whereon were many people constantly being and passing, and near unto many dwelling-houses inhabited and occupied by multitudes of people, did unlawfully keep and cause to remain night and day great numbers of dogs and bitches accustomed, as he the said A. there during all said time well knew.i to make great and offensive bowlings and other disturbing noises; and there, during all said time, in the night as well as in the day, and during the natural and proper hours for rest and sleep, did cause and permit the said dogs and bitches to make and keep up, and they did make and keep up, to the disturbance of all people there and for a long distance around being and dwelling, constant and continued bowlings, loud yells, moans and other offensive and disturbing noises; to the common nuisance of all the people, against the peace, etc.^ § 833. Defendant's own noises. — Or the allegations at the common law may be, — That A., etc., on, etc., at, etc., did, in and near a certain common high- way there, and near to divers dwelling-houses wherein were people abid- ing, utter, to the disturbance of multitudes of persons, loud exclamations and outcries, and thereby did then and there draw together great numbers of people; to the common nuisance of all the people, against the peace, eto.3 XVI. Unwholesome Food and Watee.* §834. Distinguished. — What we are considering here is the nuisance. In should not be confounded with the offense treated of in a preceding chapter.^ §835. Forms — for this offense are easily constructed on the foregoing models.* This chapter is already so long that its further extension is not deemed advisable. 1115, 1136, 1138; II, § 1273; Crim. Pro., S. v. Langford, 8 Hawks, 381; ante, II, §§ 380, 8746. § 707; [Com. v. Linn, 158 Pa. St. 33.] 1 Not in the form before me, and ^Crim. Law, I, § 491, 558; Crim. perhaps not necessary, yet safer. Pro., I, § 534, note; II, §§ 868, 878. Ante, § 789. » Ante, § 761 ei seq. 2 3 Chit. Crim. Law, 643, 647. * Rendering water unfit to drink, 3 Com. u Harris, 101 Mass. 39; Com. 6 Cox, C. C. Ap. 76. Corrupting the V. Oaks, 113 Mass. 8; Com. v. Smith, waters of a river by conveying refuse 6 Cush. 80; S. v. Baldwin, 1 Dev. & gas into it, Rex«. Medley, 6 Car. & P. Bat. 195. And compare 3 Chit. Crim. 393. Law, 11366; S. v. Riggs, 32 Vt. 331; For OATH, UNLAWFUL, see post, % 853. OBSCENE LIBEL, see Libel and Slandeb. 477 CHAPTER LXIII. OBSTRUCTING JUSTICE AND GOVEENMENT.l §§ 836, 837. Introduction. 838-843. Injuring, resisting, etc., oflScial person. 844r-84:7. Refusing to assist officer. 848, 849. Usurping or assuming oflBce. 850,851. Embracery. 852-854. Other obstructions. § 836. Elsewhere. — A large part of what would be appro- priate here is placed under more specific titles ; as, " Briberyj" " Champerty and Maintenance," " Concealment of Birth," " Contempt of Court," " Dueling," "Election Offenses," " P'orci- ble Entry," "Fraudulent Conveyance," "Marriage," "'Neu- trality Laws," " Pension Laws," " Post-office Offenses," " Prison Breach," etc., « Refusing Office," « Sedition," " Tax and other Revenue Laws," " Treason." §837. Here and how divided.— We shall in this chapter consider, L Injuring, resisting, or hindering official person; II. Refusing to assist officer ; III. Usurping or assuming office ; lY. Embracery; Y. Other obstructions. I. Injuring, Resisting oe Hindering Official Person. §838. Formula for indictment. — How, in general, the allegations within this sub-title should be, is explained else- where.^ With due particularization, a prima facie offense should be made to appear; and, if the indictment is on a stat- ute, its terms should be covered. Hence the form will consid- erably vary with the case. The order of the allegations is im- material. In substance, and in a general way, they may be, — iFor the direct expositions of this I, §§ 340, 587, 688, 695, 697, 868; II, offense, with the pleading, evidence §§ 39, 48-51, 223-224, 344-248, 253, and practice, see Crim. Law, I, 253, 255, 365-267, 699; Crim. Pro., I, §§ 450-480 (extending over a wider §§ 160-163, 185, 198, 195, 198, 202-205, field than this chapter); II, §§ 384- 647; Stat. Crimes, §§ 216, 233. 889, 1099-1013; Crim. Pro., II, g§ 344- 2 Crim. Pro., II, g§ 881-890. 847, 879-898. Incidental, Crim. Law, 478 CH. LXIII.] OBSTETJCTING JUSTICE, ETC. [§ 839. That on, etc., at, etc. [ante, § 80], X., being then and there a justice of the peace in and for said county [or, one of the constables of said town, or, etc., mentioning any other office in the like brief way i], was, etc. [saying, with due particularity, what official act he was performing, an averment not in every sort of case formally required 2]; whereupon A., etc. [ante, gg 74-77], well knowing the premises [an allegation, also, not always neces- sary'], did, etc. [setting out, with proper partioularization, the wrongful act] ; against the peace, etc. [ante, g§ 65-69].* § 839. Assault and battery, — An assault and battery on an officer, or a simple assault on him, is an aggravated assault or assault and battery within explanations in a previous chapter.' The indictment must cover the statute, and it need not ordi- 1 Crlm. Pro., II, § 884 2 Id., §§ 885, 886. 3 Id., §887. * For forms and precedents, see Archb. Crim. PI. & Bv.(19th ed.)743, 746-748; 3 Chit. Crim. Law, 99, 126, 137, 137, 144r-148, 155, 157, 301-315; 3 id. 833, 916; 4 "Went. PL 63, 310, 311, 314, 875-405, 428, 437; 6 Cox, C. C. Ap. 29-40; Eex v. Lovelace, Trem. P. O. 273; Rex v. Brady, 1 B. & P. 187, 3 Leach (4th ed.), 803; Rex v. Osmer, 5 East, 304; Eex v. Gordon, 1 Leach <4th ed.), 515; Rex v. White, Russ. & Ry. 99; Rex v. Ford, Russ. & Ry. 339; Rex V. Hood, 1 Moody, 381; Eex v. Shadbolt, 5 Car. & P. 504. Alabama. — Heath v. S., 36 Ala. 273; Murphy v. 8., 55 Ala. 253; Jones v. 8., 60 Ala. 99; [Trammel v. 8., Ill Ala, 77; P. V. Hunt, 120 Cat 381.] Arkansas. — Oliver v. S., 17 Ark. 508. Connecticut. — S. v. Moore, 39 Conn. 244 Indiana.— S. v. Tuell, 6 Blackf. 344 Iowa. — S. V. Freeman, 8 Iowa, 438. Maine.— 8. v. Roberts, 36 Me. 263; S. V. Dearborn, 54 Me. 442. Massachusetts. — Com. v. Kennard, 8 Pick. 133; Com. v. Hastings, 9 Met. 359; Com. v. Kirby, 3 Cush. 577, 579; Com. V. Tobin, 108 Mass. 436; Com, v. Ducey, 136 Mass. 369. Missouri. — S. v. Henderson, 15 Mo. New Hampshire. — S. v. Copp, 15 N. H. 213; S. v. Fifield, 18 N. H. 34; S. V. Eichardson, 38 N, H. 308; S. v. Webster, 89 N. H. 96; S. v. Beasom, 40 N. H. 367; S, v. Flagg, 50 N. H. 321 ; S. V. Eoberts, 53 N. H. 493. New York.— F. v. Hoi comb, 3 Par- ker, C. C. 656. [North Carolina. — S. v. Dunne, 109 N. C. 839; S. v. Pickett, 118 N. C. 133.] Pennsylvania. — Finn v. Com., 6 Barr, 460. Rhode Island. — S. v. Maloney, 12 R. L 351. South Carolina. — S. v. Hailey, 2 Strob. 73. Tennessee. — S. v. Maynard, 3 Bax- ter, 348. Texas.— 8. v. Bradley, 34 Tex. 95; S. V. Coflfey, 41 Tex. 46; Horan v. S., 7 Tex. Ap. 183, 184 Vermont— S. v. Lovett, 3 Vt. 110; S. V. Miller, 13 Vt. 437; S. v. Hooker, 17 Vt. 658; S. v. Burt, 35 Vt. 373; S. v. Carpenter, 54 Vt. 551, 552. [Washington.— 8. v. Brown, 6 Wash. 609.] Wisconsin. — Eountree v. U. S., 1 Pin. 59; S. v. Welch, 37 Wis. 196. United States.— U. S. v. Bachelder, 3 Gallis. 15; U. S. v. Fears, 3 Woods, 510; U. S. V. Goure, 4 Cranch, C. C. 488; [U. S. V. Wardell, 49 Fed. R. 914; Johnston v. U. S., 30 C. C. A. 613.] ^Ante,%^ 311-336. 479 § 8-tO.] SPECIFIC OFFENSES. [bOOK III. narily do more ; as, for example, if by its terms the offense can be committed only when the oiBcer is in the discharge of his duty, the fact that he was so must be alleged, otherwise it need not be. And the other statutory terms must be heeded in the allegations. For example, — That A., etc., on, etc., at, etc., did make an assault on X., who was then and there one of the constables of the said town of N., while he the said X was in the lawful exercise and discharge of the duties of his said office [or, possibly some opinions will require it to be averred what X. was doing, and so distinctly as to make his authority appear], knowing the said X. then and there to be such constable so in the lawful exercise and discharge of his office and duties; and him the said X., being such officer and so as aforesaid employed, did then and there beat, bruise, wound and ill-treat; against the peace, etc.' § 840. Resisting and obstructing officer. — What is said in the last section applies equally to the subject of this. More- over, as to this, the precedents in the books differ, the decisions upon the requirements under the common-law rules are not harmonious, and the statutes simplifying those rules differ in our respective states. The indictment is commonly or always upon a statute; and, if the statutory terms are covered in a reasonable particularization of the facts of the individual in- stance, the strictest requirements of the common law would would seem, in principle, to be satisfied. For example, — That A., etc., on, etc., at N. in the county of M., while X, a deputy sheriff of said county, was at said N. lawfully and by virtue of his said office pro- ceeding under an execution in due form to levy on and seize two horses the property of the said A., did unlawfully collect together a body of serv- ants and men, to the number of twelve and more, and by the superior iVery many of the forms and cution of his office, 2 Chit. Crim. precedents referred to in the last Law, 99. Officers of customs and section are of this sort; as, for ex- excise, 2 Chit. Crim. Law, 137, 138; ample, Com. v. Hastings, 9 Met. 259; 4 Went. PL 310, 387, 392, 394; 6 Cox, Com. V. Kennard, 8 Pick. 133; Com. C. C. Ap. 30; Rex v. Brady, 1 B. & P. u Ducey, 126 Mass. 269; Com. v. 187, 3 Leach (4th ed.), 803. To pre- Kirby, 3 Cush. 577, 579; Com. v. vent arrest or detention, 2 Chit Tobin, 108 Mass. 436; S. v. Roberts, Crim. Law. 146; 6 Cox, C. C. Ap. 32- 26 Me. 263; S. v. Dearborn, 54 Me. 34; Rex v. Shadbolt, 5 Car. & P. 504; 443; P. u Holcomb, 3 Parker, C. C. Rex v. Hood, 1 Moody, 281; Rex v. 656; S. V. Bradley, 34 Tex. 95; S. u Ford, Russ. & Ry. 339; RexuOsmer, Coffey, 41 Tex. 46; S. v. Hooker, 17 5 East, 304. Assault and rescuing Vt. 658; Rountree v. U. S., 1 Pin. 59; goods, 2 Chit. Crim. Law, 201, 203; 4 6 Cox, C. C. Ap. 39-31, 36; 3 Chit. Went. PI. 314 [Assault upon assist- Crim. Law. 127, 146; 3 id. 832. As- ants, S. v. Emery, 65 Vt. 464; Blake saulting privy councillor in the exe- v. U. S., 18 C. C. A. 117.] 480 CH. LXIII.J OBSTEUCTING JUSTICE, ETC. [§§841,842. force thereof did drive and compel to go away the said X., and did remove out of the said county the said horses; against the peace, etc.i § 841. Another, with statute. — Under the statutory words " forcibly resist, prevent or impede any officers of the customs, etc., in the execution of their office," the substance of allega- tions adjudged good is, — That A., etc., on, etc., at, etc., did forcibly and unlav^fuUy resist, prevent and impede X., who was then and there an oflScer and inspector of the cus- toms, with authority to seize all goods imported into the district of, etc., contrary to law, in the execution of his said office, in this, that, whereas the said X. was then and there lawfully holding in his possession awaiting trial, having theretofore by virtue of his said office lawfully seized, a certain trunk containing nineteen dozen cotton hose, of the value, etc., as having been imported into the said district contrary to law, he the said A. Jid then and there forcibly and unlawfully take and wrest from the said X, and carry away from his custody and out of his possession, the said trunk and thasaid merchandise therein contained; against the peace, etc.3 § 842. Briefer. — In Tennessee it has been adjudged good to aver, — That A., etc., on, etc., at, etc., knowingly and wilfully resisted one X, a 1 It was said in one case that "the indictment must show what the pro- cess was, that it was legal, and in the hands of a proper officer, and the mode of obstruction." Wardlaw, J., in S. V. Hailey, 8 Strob. 73, 76. And in another case a learned judge ob- served that " an indictment for ob- structing the execution of a search- warrant must show the warrant to be legal, and it must therefore show that the warrant appeared upon its face to be founded on a sufficient af- fidavit. " Blackford, J., in S. v. Tuell, 6 Blackf. 344, 345. Again, it seems to have been deemed necessary so to describe the process resisted that its lawfulness will appear. S. v. Flagg, 50 N. K 331. This brings us back in some measure to questions considered in an early chapter of the present vol- ume. Ante, %% 91-97. Undoubtedly the fact that the officer was proceed- ing in due form of law should in some way appear in averment. But established principles wUl permit the pleader, at his election, either to say he was, or to set out facts from which the court can see as of law that he was. Crim. Pro., II, §§ 884- 886, 888, 890, 905, 910a, 911. There is no one analogy in the law of crim- inal pleading from which the setting out at large of the process would be required, though it is often done. For various forms, see S. v. Moore, 39 Conn. 324; U. S. v. Goure, 4 Cranch, C. 0. 488; Horan V. S., 7 Tex. Ap. 183, 184; S. V. Lovett, 3 Vt. 110; S. v. Miller, 13 Vt. 437; S. v. Carpenter, 54 Vt. 551, 553; S. v. Welch, 37 Wis. 196; S. V. Beasom, 40 N. H. 367; S. v. Hen- derson, 15 Ma 486; S. v. Copp, 15 N. H. 313; S. v. Fifield, 18 N. H. 34; S. V. Freeman, 8 Iowa, 428; Finn v. Com., 6 Barr, 460; Rex v. Lovelace, Trem. P. C. 373; Rex v. White, Russ. & By. 99. Those who wish to exam- ine the English books of precedents will find the references ante, § 838, sufficiently available. 2U. S. V. Bachelder, 2 Gallis. 15. 31 481 §§ 843-845.] sPEOiFio offenses. [book hi. deputy sheriflf, in attempting to serve and in serving a legal process, to wit, a civil warrant, on the said A, ; against the peace, etc.i § 843. As to which — Another. — Doubtless not all of our courts will accept this form as sufficient. One sustained in Arkansas may come nearer satisfying objectors; namely, — That A., etc., on, etc., at, etc., did knowingly and wilfully resist X, who was then, and there a constable of N. township in said county, in the at- tempt to execute a certain execution issued byO., esquire, an acting justice of the peace within and for the township and county aforesaid, in favor of Y. against Z. ; against the peace, etc.^ II. Eefusing to Assist Officee.' § 844. In general. — How in general the indictment should be we saw in another connection.* The precedents differ con- siderably, and perhaps the decisions are not quite uniform, as to the degree of minuteness necessary in setting out the au- thority of the officer.' § 845. To detain prisoner.— Following, in spirit and in substance, an English form which was sustained, and adhering to the legal reasons which govern this sort of allegation,* we may deem it adequate, where the offense is at the common law, to aver,— That on, etc., at, etc., X., a constable of the said town, etc., had the law- ful custody of one T. whom he the said X. had theretofore then and there duly arrested on a charge of felony, and after the said arrest the said Y. then and there made an assault on the said X, attempting thereby, and employing other means, to escape from said lawful custody; whereupon the said X. then and there called upon and commanded A., etc. [the de- fendant], having reasonable necessity for so doing, to assist him the said X. in repelling the said assault, and in detaining the said Y., and preventing his escape; but the said A., welljinowing the premises, did then and there unlawfully and wilfully neglect and refuse to obey the said call and com- mand, and to assist the said X. in repelling said assault and preventing said escape; against the peace, etc.' IS. V. Maynard, 3 Baxter, 348. 1 C. C. 20, 10 Cox, C. C. 170, with S. A similar form is good in Alabama, v. Shaw, 3 Ira 20. Heath v. S., 36 Ala. 273. « Ante, § 840 and nota 2 Oliver v. S., 17 Ark. 508. A form ' Reg. v. Sherlock, Law R. 1 C. C. not very dissimilar was sustained in 20, 10Cox,C. C.170. If the pleader, on S. V. Burt, 25 Vt. 373. comparing this form with such cases 3 Crim. Law, I, §§ 464, 469; Grim, as S. v. Shaw, 3 Ire. 20, deems it weak Pro., I, § 185; II, § 896. on the point of the officer's author- * Crim. Pro., II, § 896. ity, he can strengthen it as the par- ' Compare Reg. w Sherlock, Law R. tioular facts may suggest. And see, 483 CH. LXIII.] OBSTEtrCTING JUSTICE, ETC. [§§ 846-848. § 846. To arrest one. — Where the offense consists of a re- fusal to assist an ofHcer in making an original arrest, there may be reasons to indicate a fuller setting out of his authority. If so, still the indictment need not be so minute as to contain a copy of the judicial process on which he was proceeding. General description will suffice.* § 847. To suppress riot.^ — Stripping an English precedent of a part of its useless verbiage, and in a measure adapting it to American use, we have,^ That on, etc., at, etc., divers disorderly persons to the number of twenty and more, to the jurors unknown, did unlawfully, riotously and routously assemble to disturb the public peace, and, being so assembled, did then and there for a long space of time, in breach of the public peace, continually commit divers riotous, routous and turbulent outrages and offenses, to the terror of many and all persons then and there inhabiting, passing and being; whereupon one X., a constable of said town, did then and there in the discharge of his said office undertake and endeavor to prevent and restrain said assembled persons from further committing said outrages and offenses, and to suppress said riot, but the said assembled persons did thereon then and there forcibly resist him therein and in discharging the duties of his said office; upon which the said X. did then and there offi- cially and in his own proper person call upon and require A., etc. [the defendant], then and there to aid and assist him the said X. therein, in preserving the peace, and in arresting ^he said assembled persons offend ing; yet he the said A., well knowing the said official character of the said X., and well knowing the other aforesaid premises, did then and there un- lawfully and wilfully neglect and refuse so to do; against the peace, etc.' III. UsuEPiNG OE Assuming Office.* § 848. Coroner. — Abridging and slightly modifying a ver- bose precedent from one of the older books, yet omitting nothing which any person would be likely to deem material, we have, at the common law, — That on, etc., at, etc., one M. was slain and his dead body lay there un- buried [or, set out any other facts rendering a coroner's inquest proper], and notice thereof was then and there duly given to X., one of the coroners in and for said county, that he might do in the premises what his office of as to this, the allegations in 2 Chit. ^ As to the duty of officers and oth-, Crim. Law, 151. ers herein, see Crim. Pro., I, §§ 166, 1 Consult and compare the two 183, 185, 186. forms in Comfort v. Com., 5 Whart. ' Reg. v. Brown, Car. & M. 314. 437; and S. v. Nail, 19 Ark. 563. It * Crim. Law, I, § 468 and note, 587; does not seem necessary to incumber Crim. Pro,, II, § 898. the text with them. 483 § 849.] SPEOIFIO OFFENSES. [bOOK III. coroner required; i -whereupon A., etc. [the defendant], not being and know- ing himself not to be a coroner in and for said county, and having and know- ing Iiimself to have no authority of law to act in the premises [but being a person illiterate and entirely unfit, etc.^J, did then and there maliciously, corruptly, and with intent to prevent the lawful taking of any coroner's inquisition upon view of the said dead body, iisurp the office of coroner in and for said county, and take upon himself to execute those things which to the office of such coroner in the premises aforesaid belonged. And thereupon he the said A. did then and there, suddenly after the aforesaid death of the said M., subtly, unduly and unlawfully cause and procure six- teen several persons upon the view of the said dead body then and there to take their several oaths, as the custom is, before the said A., etc. [pro- ceeding to set out briefly what was done], whereby the said dead body was removed and buried; so that neither the said X nor any other coroner in and for said county could or can inquire in due manner upon the view of the said dead body within said county according to law, nor was any in- quisition ever had as to how or by what means the said M. came to his death; against the peace, etc' § 849. Sheriff — (On statute). — On a statute making pun- ishable one who " shall falsely assume or pretend to be a justice of the peace, sheriff, deputy sheriff, coroner or constable, and shall take upon himself to act as such, etc., the averments may be, — That A., etc., on, etc., at, etc., did falsely and unlawfully assume and pretend to be the sheriff of said county of M.,* and did then and there take 1 1 retain this averment of notice body without notice to the coroner, to the true coroner because in the see 2 Chit. Grim. Law, 256. tJsurp- form before ma But its necessity is, ing office of justice of peace, Rex r. at least, doubtful, Wakeman, Trem. P. C. 179. 2 In the form before me; but cer- * In the form before me, the words tainly mere surplusage, for illiteracy here are "did falsely assume and would not have debarred him from pretend to be a sheriff; " and the acting had he been coroner. proof was, that the defendant pre- 8 Rex V. Voysey, Trem. P. C. 338. tended to be a sheriff from another Probably some of these latter allega- state. The court interpreted the tions are unnecessary, but the au- statute to require the pretense to be, thorities are too few to enable one to that he was a sheriff of this state, draw with absolute certainty the which, therefore, should be alleged ; partition line between the needful and so arrested judgment. If this and the needless. Compare with the was aU the statute meant, I should forms in Reg. v. Buchanan, 8 Q. B. say the form before the court would 883, for acting as attorney without suffice; because the meaning of the being enrolled and qualifled in man- allegation is not that the defendant ner required by statute; and Way- said he was a sheriff of another state, man v. Com., 14 Bush, 466, 469, for but of this state. Crim. Pro.,I,§383; usurping the office of judge of elec- ante, § 644 and nota I interpret the tions. For a form of indictment statute, and herein I am sustained by against a township for burying a the reasoning of the court, as requir- 484 CH. LXIII.J OBSTEUOTING JCSTICE, ETC. [§ 850. upon himself to act as such sheriff [by then and there removing and carry- ing away from the custody and possession of one X., under the pretense of serving a writ of attachment upon his goods and chattels, a one-horse har- ness of him the said X], against the peace, etc.i IV. Embeaceet.^ § 850. Form J and Low. — The limits of this offense are not so well defined by authority as to render profitable to attempt to reduce the indictment to the fewest words. The following, from one of the older books, is slightly modified for use in our courts : — That on, etc., at, etc., a certain issue in a plea of trespass on the case hav- ing been joined between X. as plaintiff and Y. as defendant, in the court of, etc., was therein pending, and a certain jury of the said county was im- paneled and returned to try the same; whereupon A., etc., well knowing the premises, and being a common embracer of jurors, and devising and wickedly and unlawfully intendirfg to hinder the due and lawful trial of the said issue by the jurors aforesaid impaneled and returned to try the said issue, did then and there, unlawfully, wickedly and unjustly, on behalf of the said Y., defendant, solicit and persuade Z., who then and there was, and whom the said A. then and there well knew to be, one of the jurors of the said jury impaneled and returned for the trial of the said issue, to ap- pear and attend at the trial aforesaid upon the jury aforesaid in favor of the said Y.; and then and there did say and utter to the said Z., one of the jurors aforesaid, divers words and discourses by way of commendation, on behalf of the said Y., the defendant, and then and there did say and utter to the said Z. divers words and discourses by way of dispraise of the said X., the plaintiff; and the said A. then and there unlawfully and corruptly did move and desire the said Z. to solicit and persuade the other jurors, im- paneled and returned to try the said issue, to give a verdict for the said Y., the defendant in the said causa [And the jurors of the said jury, sworn for the trial of the said issue, by reason of the speaking of the said words and discourses by way of commendation on the behalf of the said Y., the ing the pretense to be such as im- which some judges, not all, would be plies the authority to act in the likely to deem necessary as partic- locality in question, and to this view ularizing the transaction. Other I have shaped the allegation to con- precedents. — For a form for acting form, and it necessarily satisfies the under a false process from court con- requirement of the court. ti'ary to a statute, Reg. v. Evans, Dears. 1 Com. V. Wolcott, 10 Cush. 61. The &B. 236, 7 Cox, C. C. 393. Delivering a indictment had two counts, one with paper falsely purporting to be a copy matter similar to this in brackets, of a certain process, Reg. v. Castle, the other without it. There can be Dears. & B. 363, 7 Cox, C. C. 375. no occasion for more than one count. ^Crim. Law, I, § 468; II, §§ 384r- I should prefer, at least for caution, 389; Crim. Pro., II, §§ 344-847. to retain this matter. It is of a sort 485 §§ 851, 852.] SPEOIFIO OFFENSES. [bOOK III. defendant, did give their verdict for the said Y., the defendant i] ; against the peace, etc.2 § 851. Conspiracy in nature of embracery. — Another old precedent is, in substance, — That at a court of, etc., on, etc., at, etc., a certain issue in a plea of tres- pass on the case, between X., plaintiff, and A., defendant, was tried by a jury of the country; and before said trial the said A., etc., B., etc., and C, etc., did, on, etc., at, etc., conspire, combine and confederate together, by rewards and other ways and means, unlawfully to procure a verdict to be given for the defendant; and, to bring about the same, to cause and enable the said B. and C, for divers sums of money paid them by the said A., to be sworn and serve as jurors for the trial of the said issue,' and give and procure to be rendered a verdict for the defendant. In pursuance of which unlawful agreement and confederation, the said B. and C. afterward, on the day and year first above mentioned, there, by unlawful ways and means, did procure themselves to be sworn as jurors in the trial of the said issue, and, together with the other jurors sworn to try the same, did give their verdict for the defendant; against the peace, etc.* V. Othee Obsteuctions. § 852. Dissuading witness. — For the common-law offense of enticing or persuading a witness not to appear at the trial,* the allegations will vary with the special facts. They may, for example, be, — That, on, eta, at, etc., A., etc., having theretofore in due form of law en- tered into a recognizance before O., esquire, a justice of the peace in and for the said county of M., to appear and answer at the then next term of the court of, etc., holden in and for said county, to a complaint charging him with having theretofore in said county, etc. [stating briefly the sub- stance of the accusation], and X having in like manner entered into a recognizance before the said O., esquire, to appear at the said court as a witness in the said cause,^ the said A., well knowing the premises, and contriving and intending to impede and obstruct the due course of justice therein, unlawfully and corruptly did entice, solicit and endeavor to per- 1 There is no just ground for deem- cuTnstantibus " not so far incorpo- ing this matter in brackets indis- rated into our legal language as to pensable, while yet the pleader may ' have become English, rendering the choose to retain it if true in his par- allegation ilL Crim. Pra, I, §§ 343, ticular case. 345, 847. 2 Rex V. Brooks, Trem. P. C. 175. Alabama. — Kyle v. S., 10 Ala. 236; 858; HoUoway v. Reg., supra. And Ramsey v. S., 43 Ala. 404. compare with Shaw's Case, 1 Lewin, Arkansas. — Hughes v. S., 1 Eng. 280. See also Crim. Pro., II, § 945. 131. «Crim. Law, I, §§ 316, 821; II, Georgria.— Perry v. S., 63 Ga. 402. §§ 1099, 1100. Indiana. — Gunyon v. S., 68 Ind. 79. * As to how it should be, see Crim. Kentucky. — Tully t;. Com., 11 Bush, Pro., II, § 941 and note. 154, 156; Tully v. Com., 13 Bush, 143, 148. 513 CH. LXX.] PRISON BEEACH, EESCUE AND ESCAPE. [§§ 896, 897. the constables of the town of, etc.], had then and there in his lawful and official custody one X., etc. [proceeding as at ante, §§ 890, 891]; whereupon the said A. [well knowing the premises, and well knowing that the said X. was not then and there entitled to be discharged from and out of the said custody of the said A.i], did then and there [feloniously 2] voluntarily and contemptuously permit and suffer the said X. to escape from and out of the aforesaid custody of him the said A., and go at large whithersoever he the said X. would [or, in the case of a mere attempt, did, with the intent that the said X. should escape from and out of the aforesaid custody and go at large, then and there voluntarily and contemptuously unlock the door of a certain cell wherein the said X. was then confined, and the other doors of said prison {or, etc., stating any other sufficient overt act) ; or, in a case of negligent escape, did then and there unlawfully and negligently permit the said X. to escape and go at large out of and from the aforesaid custody of him the said A.]; against the peace, etc' § 896. Another. — A form for negligent escape, held in one of our states to be good at the common law, is, in substance, omitting some obvious surplusage, — 'that at [a term and court named], one X, charged with the murder of one Y., was duly committed to the care and custody of A., etc., who was then and still is the keeper of the common jail of and in said county, to be in said common jail imprisoned until further proceedings had in pursuance of law; and afterward, while the said X. was and remained in the said care and custody in the said common jail, the said A. did there, as the keeper of said common jail, on, etc., unlawfully, negligently and contemptuously permit and suffer him the said X. to escape therefrom and go at large whithersoever he would; against the peace, etc.* §897. On statute. — A statute having made it punishable " if any officer or his under officer or deputy, having the law- ful custody of any prisoner, for any cause whatever shall vol- untarily suffer or permit, or connive at, the escape of such prisoner from his custody, or permit him to go at large," aver- ments adjudged good were in substance, — II introduce this matter for the Glover, Trem. P. C. 244; Rex v. Man- convenience of any pleader who love, Trem. P. C. 246; Eex v. Bootie, may deem it important. It is not 2 Bur. 864. generally in these precedents; nor, Alabama. — Kavanaugh v. S., 41 in principle, does it seem essential to Ala. 399. a, prima facie case. The reasons in Arkansas. — Bass v. S., 29 Ark. 142; ante, § 893, are different. Martin v. S., 32 Ark. 124; Griffin v. 2 To be employed where the offense S., 37 Ark. 437, 439. is felony. Indiana. — S. v. Sparks, 78 Ind. 166. ' For precedents and other forms, North Carolina. — S. v. Baldwin, see Archb. Grim. PL & Ev. (10th ed.) 80 N. C. 890. 550, 551, (19th ed.) 853, 854; 2 Chit. *S. v. Baldwin, 80 N. C. 390. Grim. Law, 171-182, 297; Eex v. SS 513 § 898.] SPECIFIC OFFENSES. [book hi. That A., etc., on, etc., at, etc., being the sheriff of said county, and having the lawful custody of one X., who had been convicted by the circuit court in and for said county at [a specified term thereof] of the crime of, etc., and adjudged to pay a fine of ten dollars with costs of prosecution, which said fine and costs remained on said first-mentioned day unpaid, did unlawfully on said first-mentioned day there voluntarily permit the said X. to escape and go at large from and out of the said custody of the said A. ; against the peace, etc.' § 898. other forms — may occasionallybe required,* but none which the foregoing will not furnish analogies for drawing.' 1 Griffin v. S., 37 Ark. 437, 439. 'See, for conveying a person es- caped from the custody of the ser- geant-at-arms. into parts beyond the sea, Eex v. Lock, Trem. P. C. 248. Returning or being at large after transportation, Reg. v. Home, 4 Cox, C. C. 263; Rex v. Watson, Russ. & Ry. 468; Rex v. Fitzpatrick, Russ. & Ry. 512. 'Prisoner at large.— The steps by which a prisoner who has escaped, or is otherwise at large, is to be re- stored to confinement, are explained in Crim. Pro., I, §§ 1382-1386. And see, for forms, Haggerty v. P., 6 Lans. 333. Though, in 53 N. Y. 476, this case was overruled on grounds which seem special to New York, I do not understand that the forms are, there- fore, to be deemed ill in localities where the proceeding itself is al- lowed. 614 CHAPTER LXXL PEIZE-FiaHTING.l § 899. Assault — Aifray — Kiot, etc. — A prize-fight may- be an assault and battery, and as such it is perhaps oftenest prosecuted.^ Or it may be an affray,' or a riot, or unlawful assembly.* Its consideration in these aspects is for the other titles, not this. § 900. Statute and indictment. — A statute and form of in- dictment upon it are given in another connection.* § 901. Present, etc. — Under a provision to punish one " who shall be present at such [by previous appointment and arrangement] fight, as an aid, second or surgeon, or who shall advise, encourage or promote such fight," the allegations may be, — That A., etc., on, etc., at, etc., was present as an aid and second at, and did advise, encourage and promote, a fight in which one X. did then and there, by previous appointment and arrangement, meet and engage with one Y. ; against the peace, etc' § 902. Leaving state, etc. — Under a statute to punish an in- habitant of this state who, " by previous appointment or en- gagement made therein, leaves the state and engages in a fight with another person without the limits thereof," it is good to aver, — That A-, etc., on, etc., at, etc., did, being an inhabitant of this state, by previous appointment and engagement made therein, unlawfully leave this state and engage in a fight with one X, at N., in the state of M.; against the peace, etc' 1 Crim. Law, I, §§ 360, note, 535, 633: precedents, see Com. v. Welsh, 7 II, § 85; Crim. Pre, II, §g 34, 61; ante, Gray, 334; Com. v. Mitchell, 7 Gray, § 333. 334; Com. v. O'Baldwin, 103 Mass. ^ Ante, % 222; neg-uCoaey, 8 Q.B. 310; Com. v. Barrett, 108 Mass. 303. D. 534, 15 Cox, C. C. 46. « Com. v. Mitchell, 7 Gray, 334 ' Places referred to ante, % 333. ' Com. v. Barrett, 108 Mass. 303. I . '], unlawfully, corruptly, wickedly and maliciously'' did solicit, suborn, instigate and endeavor to persuade one Z. [ante, § 79] to be and 1 For the direct expositions of this solicitation this expression will re- offense, with the pleading, evidence quire to be modified. and practice, see Crim. Law, II, ^ Unnecessary. Ante, § 44 §§ 1197-1199; Crim. Pro., II, §§ 1019- « Compare with ante, § 875 and 1033. Incidental, Crim. Law, I, note. No such specific intent as is §§ 468, 974, 975; II, §g 1055, 1056; alleged in these brackets is necessary Crim. Pro., II, gl 75, 938, 939. to constitute in law the crime, hence 2 Crim. Law, II, S5S 1056, 1197; Crim. its setting out is simply superfluous. Pro., II, g§ 1019, 1031. 7 Where the offense is felony, add 3 Needless, as at ante, § 875. here " feloniously." *0n an indictment for the mere 550 OH. LXXXIV.] SUBOENATIOir OF PEKJUBT. [§ 968. appear as a witness at the trial of the said issue, for and on behalf of the said Y. the defendant in the said issue, and upon the said trial falsely to swear and give in evidence, to and before the jurors which should be sworn to try the issue aforesaid, certain matters material and relevant to the said issue, and to the matters therein and thereby put in issue, in substance and to the effect following, that is to say, that the said Y. (meaning the defend- ant in the issue aforesaid) did, on a certain day then past, to wit, on the tenth day of April, in the year aforesaid, beat, wound and bruise the said X. (meaning the plaintiff in the issue aforesaid), and did knock him the said X down, and with a large stick did then and there beat, wound, and bruise, and greatly disfigure the said X. whilst he was so down. [Thus far, we have a full setting out of the attempt by solicitation ; if the consummated subornation of perjury is to be charged, the allegations proceed:] And [the jurors first aforesaid upon their oath aforesaid do further present.i] that afterward, to wit, at the sittings at, etc. [say when and where], the Honorable O., one of the justices of said court, presiding, the issue aforesaid came on to be and was tried by a jury of the country in that behalf duly sworn and taken between the parties aforesaid; upon which said trial there, on the day last aforesaid, the said Z., in consequence and by the means, en- couragement and effect of the said wicked and corrupt subornation and procurement of the said A., did appear as a witness for and on behalf of the said Y. the defendant in the plea above mentioned, and was duly sworn, and took his [corporal 2] oath [upon the Holy Gospel of God '] before the said Honorable O., that the evidence which he the said Z. should give to the court and jury there, touching the matter then in question between the said parties, should be the truth, the whole truth, and nothing but the truth, the said Honorable O., at the administering of said oath, having competent and sufficient authority therefor; and that, upon the trial of said issue, on the said last-mentioned day, it there became and was a material question whether the said Y. so as aforesaid assaulted and beat the said X. ; whereupon the said Z. did there during said trial, on last-mentioned day, upon his oath aforesaid, falsely, corruptly and wilfully, before the said judge and jury, depose and swear (amongst other things) in substance and to the effect fol- lowing, that is to say: that [here set out Z.'s evidence, in effect as above stated]; whereas, in truth and in fact, the said X. did not, etc. [negativing the truth as at ante, ^% 871, 873 and note]; and whereas, in truth and in fact, the said A., at the time he so solicited, suborned, instigated and en- deavored to persuade the said Z. falsely and corruptly to swear as aforesaid, well knew that, etc. [giving here also the proper denials]. [And so the jurors aforesaid upon their oath aforesaid do say, that the said A., on, etc., at, etc., aforesaid, did unlawfully, corruptly, wickedly and maliciously suborn and procure the said Z. to commit wilful and corrupt perjury in and by his oath aforesaid, before the said jurors so sworn and taken between the said parties as aforesaid, and before the said Honorable O., justice as 1 Needless, as at ante, § 875. 3 Both unnecessary, and objection- 2 This word is unnecessary, yet its able as requiring proof of the form insertion is not practically harmful, of the oath. Id. ; anfe, § 873, note. Grim. Pro., 11, §§ 913, 913. 551 § 969.] SPECIFIC OFFENSES. [bOOK III. aforesaid, the said Honorable O. then and there having sufficient and com- petent power and authority to administer the said oath to the said Z. ; to the great displeasure of Almighty God, to the evil and pernicious example of all others in the like case offending,! and] against the peace, etc. [ante, §§65-69]. 2 § 969. As to which. — The author, in transcribing this form, slightly abridged, and likewise strengthened it. Still further condensation is practicable, but the necessity therefor is not urgent enough to justify a prolongation of the chapter. 1 None of the matter in these brack- Hiokley, Trem. P. C. 171 ; Rex v. Hil- ets is necessary, as see ante, % 873 and ton, Trem. P. C. 174; Rex v. Braddon, notes. 9 How. St. Tr. 1137. 2 Archb. Crim. PL & Ev. (10th ed.) ■ [Kansas.— S. v. Geer, 48 Kan. 753.] 575-577, (19th ed.) 885. For other Jfassac7iMse«s.— Com. tt Smith, 11 forms and precedents, both for the Allen, 243; [Com. v. Devine, 155 Mass. solicitation and for the accomplished 334.] offense, see 3 Chit. Crim. Law, 475- Texas. — "Watson v. 8., 5 Tex. Ap. 484; 4 "Went. PL 334, 350; Rex v. 11, 31. Hawkins, Trem. P. O. 167; Rex v. United States. — U. S. v. Dennee, 3 Margerum, Trem. P. C. 168; Rex v. Woods, 39; [Baboockw U. a, 34 Fed. Tasborough, Trem. P. C. 169; Rex v. R. 873.] For SUBSEQUENT OFFENSE, see ante, §§ 91-97. SUICIDE, see Selp-mubdeb. SUNDAY, see Lord's Dat. SWEARING, see Blasphemy and Peopaneness; Pektdbt. 553 CHAPTER LXXXV. TAX AND OTHER REVENUE LAWS.1 § 970. Elsewhere. — Under the titles " Unlicensed Business " and some others, more or less may be found of what would be equally appropriate here. §971. Diversities — How this chapter. — The statutes cre- ating offenses against the revenue and taxation are so diverse and so numerous that full explanations, with forms, would consume much of our space to little profit. This chapter will undertake only what can be set down briefly. § 972. Smuggling — is the clandestine conveying of dutiable goods into or out of the country, in intentional evasion of the laws for the collection of revenue thereon.'^ For various expo- sitions of this oBfense, and forms of the indictment therefor, the reader is referred to places cited in the note.' § 973. Internal revenue on liqiuors — (Distilling — Not paying tax, etc.). — As to illicit distilling, withholding the tax on distilling, and the like ; * working in a distillery on which there is no sign ; * not making the proper entries in books ; * ICrim. Law, I, §§ 351, 352, 486-488, concealing, 4 "Went. PL 401, 447; 6 821, 824; II, §§ 225, 349; Grim. Pro., id. 8. And see U. S. v. Moller, 16 II, §§ 245, 407; Stat. Crimes, §§ 99, Blatoh. 65; U. S. v. Cargo of Sugar, 120, 156, 195, 255, 856, 957, 991, 109& 3 Saw. 46. Compare with the title Unlicensed *U. S. v. Simmons, 96 U. S. 860; Business. U. S. v. Chaffee, 2 Bond, 110; U. S. v. 2 See and compare Attorney-Gen- Spirits, 4 Ben. 471; U. S. v. Fox, 1 eral v. Eadloflf, 10 Exch. 84; Rex v. Lowell, 199; U. S. v. Reed, 1 Lowell, Watts, 1 B. & Ad. 166; Holman v. 233; U. S. v. Boyden, 1 Lowell, 266; Johnson, Cowp. 341; Waymell U U. S.'y. Frerichs, 16Blatch. 547; U. S. Reed, 5 T. R 599; U. S. v. Claflin, 13 v. Staton, 2 Flip. 319; U. S. v. Seven- Blatoh. 178; U. S. v. Thomas, 2 Abb. teen Empty Barrels, 3 DiL 285; [Kol- (U. S.) 114. lock V. U. S., 9 Ap. D. C. 420; Dunbar 3 Id.; Archb. Crim. PL &. Ev. (19th v. V. S., 156 U. S. 185; Pounds v. U. S., ed.) 924r-927 ; U. S. v. Nolton, 5 Blatch. 171 U. S. 35.] 427; U. S. V. Cases of Books, 2 Bond, s u. S. v. Flynn, 15 Blatch. 302. 271; U. S. V. Thomas, 4 Ben. 870; "U. S. v. Malone, 8 Ben. 574; U.S. U. S. V. Bettilini, 1 Woods, 654; Reg. u Miller, 14 Blatcli. 93; Fein v. U. S., V. Aumond. 2 U. C. Q. B. 166 ; 4 Went 1 Wy. Ter. 246. PL 434. Having in possession and 653 §§ 974, 975.J SPECIFIC OFFENSES. [book III. removing spirits from a warehouse,^ and various other like of- fenses,^ see the cases cited in the notes. § 974. Evading tax. — Various methods of evading taxation are sometimes made indictable; as, not delivering to assessors a list of polls or of one's taxable property,' rendering a false list,* refusing to swear to the tax-list,' and obstructing the tax col- lector.* They are severally explained, with forms for the in- dictment, in the cases referred to in the notes. § 975. Others. — Also, in a note,' there are references to vari- ous other precedents which may occasionally be serviceable. It would not be profitable to spread out at large what will seldom be called for by the reader. 1 U. S. V. Harris, 2 Bond, 311; U. & V. Smith, 2 Bond, 323. ^ Reg. V. Brunskill, 8 U. C. Q. B. 546; U.S. V. Imsand, 1 Woods, 581; U. S. V. Pipes of Distilled Spirits, 5 Saw. 421; U. S. V. Anthony, 14 Blatch. 92; Tj. S. v. One Case, etc., 6 Ben. 493; U. S. V. One Hundred Barrels of Spirits, 2 Abb. (TJ. S.) 305, 306. 3 Rex V. Benwell, 6 T. R. 75; Mock V. S., 11 Tex. Ap. 56, 57; S. v. Up- church, 72 N. C. 146; S. v. Welch, 28 Mo. 600; Berry v. S., 10 Tex. Ap. 315; Lose V. S., 72 Ind. 285. ositiona 2 Crim. Pro., II, § 874a. of the statutes, consult Taylor v. S., 3 Thomas v. S., supra. 59 Ala. 19; In re Conroy, 54 How. Pr. * Ante, % 175. 483; P. v. Catholic Protectory, 61 5 For forms and precedents, see How. Pr. 445; Toney v. S., 60 Ala. 97; Crim. Pro., II, § 874a; Thomas v. S., j&a; parte Birchfield, 53 Ala. 377; Jn supra; Com. v. Norton, 13 Allen, 550; re Way, 41 Mich. 399; and the subse- S. V. Dowers, 45 N. H. 543. Feeding' quent oases cited to this section. armed proTvlers,— see Vaughn v. S., i" Brown v. S., 3 Lea, 158. For other 3 Coldw. 103. forms, see S. v. Custer, 65 N. C. 339; 6 0'Maliai;. Wentworth, 65 Me. 139. Walton v. S., 13 Tex. Ap. 117; Boulo 7 Crim. Law, I, § 515; Reg. v. Mid- v. S., 49 Ala. 33. dlesex Justices, 3 Q. B. D. 516; Monck V. Hilton, 3 Ex. D. 368. For VOTING, see Election Offenses. WAGES, see Conspiracy; Labok Offenses. 574 CHAPTER XCIIL WAY.i § 1011-1013. Introduction and general formula. 1014-1030. Ordinary and turnpike streets and roads. 1031, 1033. Railways. 1033. Public bridges. 1034, 1035. Public squares and pleasure-grounds. 1036-1038. Eivers and other ways by water. 1039. Harbors and public ponds. § 1011. Scope and order of chapter. — It is within the scope of this chapter to consider so much as belongs to this volume of the offenses against, I. The ordinary and turnpike streets and roads; II. The railways; III. The public bridges; TV. The public squares and pleasure-grounds; V. The rivers and other ways by water ; VI. The harbors and public ponds. But, before proceeding with this, let us, according to the common course of this volume, bring under contemplation a — § 1012. General formula for the indictment. — Such for- mula can be accurate only in outline, to be varied with the differing statutes and special facts ; as, — That A., etc. [ante, §§ 74-77], on, etc. [ante, % 80, and in many circum- stances adding the continuando as at ante, §§ 81-84], at, etc. [ante, % 80], did unlawfully obstruct, etc. [setting out the obstruction ; ^ or, neglect to keep in repair, etc., particularizing the condition of the way and its needs '] a certain public highway there duly established * [or, navigable river and public water-way for vessels (the pleader will ordinarily add its name); or, public common and pleasure-ground duly established; or, etc., according to the fact], whereon the people were at all times entitled to be, travel and pass, so that, etc. [according to the special fact]; to the common nuisance of all the people,' against the peace, etc. [ante, §§ 65-69].6 1 For the direct expositions of the II, § 837; Stat. Crimes, §§ 30, 156, 164, law of this subject, with' the plead- note, 206, 284, 398, 801-303, 878, 906, ing, evidence and practice, see Grim. 937, 938, 973. Law, II, §§ 1364-1387; Grim. Pro., II, 2 Grim. Pro., II, § 1053. §g 1042-1057. Incidental, Grim. Law, s Id., g 1047. I, §§ 108, 173-175, 337, 236, 341, 244, * Id., §§ 1045, 1051. 245, 265, 341, 419-431, 531, 793, 839, s^nte, §775. 1061,1081; II, §§ 667, 669, 690; Grim. ^For forms and precedents, see Pro., I, §§ 53, 63, 441, 469, 470, 486, 488e; Archb. Grim. PI. & Ev. (19th ed.) 966, 575 § 1013.J SPECIFIC OFFENSES. [book III. § 1013. As to whicTi. — While this formula will be suggest- ive, and it has served as ground for collecting the references to the precedents in the order of the states, the pleader's chief re- liance should be on the forms to follow. And — 968, 970, 980, 983, 984; 3 Chit. Crim. Law, 577-589, 594-641; 4 Went PL 157-199, 223-224, 345; 6 id. 401, 405- 418, 427; 2 Cox, C. C. Ap. 3; 6 id. Ap. 23, 74, 75, 115; Rex v. H. P., Trem. P. C. 196; Rex v. Baxter, Trem. P. C. 196; Rex v. Fanshaw, Trem. P. C. 199; Rex V. Harvey, Trem. P. C. 197; Rex V. Essex, Trem. P. C. 205; Rex v. Stains, Trem. P. C. 207; Rex v. Nor- wich, Trem. P. C. 208; Reg. v. Saint- hill, 3 Ld. Raym. 1174: Cumberland V. Rex, 3 B. & P. 354; Rex v. Stough- ton, 3 Saund. 157; Rex v. Harrow, 4 Bur. 3090; Rex v. Stead, 8 T. R. 148; Rex V. West Riding of Yorkshire, 2 East, 342; Rex v. Liverpool, 3 East, 86; Rex v. Russell, 6 East, 427; Rex V. Salop, 13 East, 95; Rex v. Kent, 13 East, 220; Rex v. Winter, 13 East, 258; Rex v. Kent, 3 M. & S. 513; Rex V. Kerrison, 3 M. & S. 526; Rex v. St. Giles, 5 M. & S. 260; Rex v. Devon, 4 B. & C. 670; Rex v. Russell, 6 B. & C. 566; Rex v. Wright, 1 A. & E. 434; Rex V. Ward, 4 A & E. 384, 408, note; Rex V. Tindall, 6 A. & E. 143; Reg. v. Barton, 11 A. & E. 343; Reg. v. Der- byshire, 2 Q. B. 745; Reg. v. Midville, 4 Q. B. 240; Reg. v. New Sarum, 7 Q. B. 941; Reg. v. Great North of :^ng- land Railway. 9 Q. B. 315, 2 Cox, C. C. 70; Reg. v. Ely, 15 Q. B. 827, 4 Cox, C. C. 281; Reg. v. Turweston, 16 Q. B. 109, 4 Cox, C. C. 349; Reg. v. Denton, 18 Q. B. 761, Dears. 3; Reg. v. Betts, 16 Q. B. 1023; Reg. v. Wavert'on, 17 Q. B. 562, 2 Den. C. C. 340, 5 Cox, C. C. 400; Reg. v. Sturge, 3 Ellis & B. 734; Reg. V. Russell, 3 Ellis & B. 943; Reg. V. Ramsden, Ellis, B. & E. 949; Reg. V. Longton Gas Co., 3 Ellis & E. 651; Reg. V. Train, 3 B. & S. 640; Reg. v. Stephens, 7 B. & S. 710; Reg. v. Clark, Law R. 1 C. C. 54, 10 Cox, C. C. 338; Reg. V. Hadfield, Law R. 1 C. C. 253, 11 Cox, C. C. 574; Reg. v. Hardy, Law R. 1 C. C. 278, 11 Cox, C. C. 656; Reg. V. Gate Fulford, Dears. & B. 74, 7 Cox, C. C. 230; Reg. v. Bradford, Bell, 268, 8 Cox, C. C. 309; Reg. v. FuUford, Leigh & C. 403, 9 Cox, C. C. 453; Reg. V. Holroyd, 3 Moody & R 339; Rex v. Upton-on-Severn, 6 Car. & P. 133; Reg. V. Botfield, Car. & M. 151; Reg. V. Maybury, 4 Fost. & F. 90; Reg. v. Dobson, 1 Cox, C. C. 251; Reg. v. United Kingdom Elec, Tel., 9 Cox, C. C. 137; Reg. v. Burrell, 10 Cox, C. C. 463; Reg. v. Monaghan, 11 Cox, C. C. 608; Reg. v. Spence, 11 U. C. Q. B. 31; Reg. v. Great Western Railway, 31 U. C. Q. B. 555; Reg. v. Ottawa, etc. Road, 42 U. C. Q. B. 478. Alabama. — S. v. Bell, 5 Port 365; Freeman v. S., 6 Port, 373; Prim v. S., 36 Ala. 344; Blann v. S., 39 Ala. 353; Nowlin V. S., 49 Ala. 41 ; Malone v. S., 51 Ala. 55, 56. Arkansas. — S. v. Holman, 39 Ark. 58. Connecticut. — S. v. Brown, 16 Conn. 54. Indiana. — Butler v. S., 17 Ind. 450; S. V. Mathis, 21 Ind. 277; Neader- houser v. S., 28 Ind. 257, 259; Allison u S., 42 Ind. 354; S. v. Day, 53 Ind. 483; S. V. Baker, 58 Ind. 417; S. v. Mainey, 65 Ind. 404; Mauck v. S., 66 Ind. 177; S. v. Stewart, 66 Ind. 555. Iowa. — S. V. Davenport, eta R Co.. 47 Iowa, 507. Maine. — S. v. Stnrdivant, 21 Me. 9; S. V. Portland, etc. R Co.. 58 Ma 46; S. V. Grand Trunk Ry. Co., 59 Ma 189. Maryland.— Wroe v. S., 8 Md. 416. Massachusetts. — Com. v. Spring- field, 7 Mass. 9; Com. v. Gowen, 7 Mass. 378; Com. v. Hall, 15 Mass. 240; Com. V. North Brookfleld, 8 Pick. 463; 576 OH. XCIII.J WAY. [§ lou. Abatement — {Continuando — Description of place). — If there is a probability that a judgrnent of abatement may be asked, the thing to be abated should be alleged as continuing; and,' beyond this, if an officer is to be required, by a writ or order from the court, to remove an obstruction or perform any other act of the sort, the indictment must so specify the place and thing that he can identify them,— particulars not by the bet- ter opinion essential in other circumstances.^ I. The Oedinaet and Turnpike Streets and Eoads. § 1014. Obstructing common highway. — For the obstruc- tion of an ordinary street, a common English form for the in- dictment is, — Com. V. Newburyport Bridge, 9 Pick. 143; Com. v. Fisk, 8 Met. 338; Com. v. Allen, 11 Met. 403; Com. v. Belding, IS Met. 10; Com. v. King, 13 Met. 115; Com. V. Alger, 7 Cush. 53; Com. v. Central Bridge, 13 Cush. 343; Com. v. Hicks, 7 Allen, 578; Com. v. New- buryport, 103 Mass. 139; Com. v. Bakeman, 105 Mass. 53; Com. v. Kil- lian, 109 Mass. 845; Com. ■;;. G-louces- ter, 110 Mass. 491; Com. v. Goodnow, 117 Mass. 114. Michigan. — P. v. Carpenter, 1 Mich. 373. Mississippi. — McCarty v. S., 37 Miss. 411, 419. Missouri. — S. v. Fleetwood, 16 Mo. 448; S. V. Tuley, 30 Mo. 433; S. v. Levens, 33 Mo. 469; S. v. Eisley, 73 Mo. 609; S. v. MoCray, 74 Mo. 303. Montana. — Territory v. Ashby, 3 Mon. Ter. 89, 90. New Hampshire. — S. v. Lord, 16 N. H. 357; S. v. Hall, 3 Fost. (N. H.) 384; a V. Canterbury, 8 Fost. (N. H.) 195; S. V. Wentworth, 37 N. H. 196; S. V. Northumberland, 46 N. H 156; S. V. Beckman, 57 N. H. 174. New Jersey. — S. v. Turnpike, 1 Har- rison, 333. New York. — Waterford, etc. Turn- pike V. P., 9 Barb. 161 ; P. v. Branch- port, etc. Plankroad, 5 Parker, C. C. 604; P. V. New York Central, etc. E. Co., 74 N. Y. 303. North Carolina. — S. v. Pool, 8 Dev. 303; S. V. Halifax, 4 Dev. 345, 346; S. V. Cobb, 1 Dev. & Bat. 115; S. v. King, 3 Ire. 411; S. v. Patton, 4 Ire. 16; S. V. Yarrell, 13 Ire. 130; S. v. Hinson, 83 N. C. 597; S. v. McDowell, 84 N. C. 798. Ohio.— Matthews v. S., 35 Ohio St. 536. Pennsylvania. — Respublica v. Ar- nold, 8 Yeates, 417; Werfel v. Com., 5 Binn. 65; Com. v. Eckert, 3 Browne (Pa.), 849; Com. v. Church, 1 Barr, 105; Com. v. Bowman, 3 Barr, 303 Com. V. Reed, 10 Casey (Pa.), 375 Phillips V. .Com., 8 Wright (Pa.), 197 Zug V. Com.. 80 Smith (Pa.), 138 Com. V. Wentworth, Brightly, 318. Rhode Island. — S. v. Peckham, 9 E. I. 1. Tennessee. — S. v. Murfreesboro, 11 Humph. 817: S. v. McElroy, 8 Heisk. 69; S. V. Bellville, 7 Baxter, 548. Texas.— Me-alj v. S., 3 Tex. Ap. 383. Vermont. — S. v. Wilkinson, 8 Vt. 480; S. V. Day, 3 Vt. 138; S. v. Whit- tingham, 7 Vt. 390; S. v. Newfane, 13 Vt. 433; S. V. Bosworth, 18 Vt. 403; S. V. Vermont Central R. Co., 37 Vt. 1 Crim. Pl-o., II, §§ i 37 6, 870, 871; ante, % 443 and note. 577 § 1015.] SPBCIFIO OFFENSES. [bOOK III. That A., etc., on, etc., and thence continually until the day of the finding of this indictment ' [with force and arms 2], at, etc., in a certain street there called M. street, heing the queen's common highway, used for all the liege subjects of our lady the queen, with their horses', coaches, carts and car- riages, to go, return, pass, repass, ride and labor, at their free will and pleas- ure,3 unlawfully and injuriously* did, etc. [setting out the obstruction; as, put and place three empty drays, and did there during all said time and every day thereof unlawfully and injuriously permit and suffer the said empty drays respectively to be and remain in and upon the queen's com- mon highway aforesaid for the space of several hours, to wit, for the space of five hours, on each of the said days 5]; whereby the queen's common highway aforesaid was during all said time and on each day thereof there obstructed and straitened, so that the liege subjects of our lady the queen could not go, return, pass, repass, ride and labor, with their horses, coaches, carts, and other carriages, in, through and along the queen's common high- way aforesaid, as they ought and were wont and accustomed to do; to the, etc. [the proper conclusion* is given ante, §§ 775, 777].' § 1015. Another. — It is not possible to construct a form which the judicious pleader will not more or less modify with the changing facts, as well as, if on a statute, adapt to the statutory terms. Ordinarily, with us, it will be judicious to allege, — That A., etc., on, etc.,^ at, etc., in and upon a certain public highway there duly established, called M. street [or, leading from N. to O.'], did un- 103; S. V. Vermont Central R. Co., 28 *I should practically retain "un- Vt. 583; S. V. Jericho, 40 Vt. 181. lawfully," though it is not necessary. West Virginia. — Parkinson v. S., 3 unless to cover the terms of a statute, W. Va. 589. Crim. Pro., I, § 503; II, § 543. For the Wisconsin. — Stoughtonw S., 5Wis. superfluous "injuriously" it would 291. be difficult to discover any sort of 1 1 have adapted the form of the reason. continuando to the suggestions a Jiie, * Not all of this is necessary. §§ 82-84. * In the form before me there is a 2 Needless. Ante, § 43. , good deal of surplusage here. ' Whatever be the propriety of this ' Arohb. Crim. PL & Rv. (10th ed.) long setting out of the uses of the 640, (19th ed.) 966; [Giardina v. highway where, as in England, there Greenville, 70 Miss. 896.] are differing uses established by pre- * The reader will perceive that, scription, it is needless with us. The though the continuando is not at this uses of our highways are, in general, its usual place, it is given further on. ascertainable as of law, and they are But in many cases it is better here, uniform. Therefore it suffices, and and in some others it is best omitted, it is deemed better, simply to say, ' Something more identifying in " in a certain duly established high- description than an allegation which way and public street there, called would be sustained by proof of any M. street," omitting the other matter highway in the county is, by a part in the text. Crim. Pro., II, §§ 1045- of our courts, required. Crim. Pro., 1051. II, § 1051; S. V. Stewart, 66 Ind. 555. 678 CH. XCIII.] WAT, [§ 1016. lawfully put and place, etc. [as in the last section; or, did unlawfully erect, put and place a certain stall for the exposing to sale and selling of fruit and confectionery; i or, build and erect across said highway a certain fence; ^ or, dig and cut a certain deep ditch along and across said highway; ^ or, cause and pei-mit divers wagons, carts and carriages to the number of fifty and more and many horses to stand and remain;* or, dig up and re- move from said highway great quantities, to wit, one thousand cords and more, of stone and earth; 5 or, etc., setting out the injury or obstruction ac- cording to the fact], whereby said common highway was then and there rendered dangerous and impossible to be traveled [or, etc., stating the par- ticular effect], and did then and Jthenoe continually until the day of the finding of this indictment, and still does, there unlawfully continue the same; to the common nuisance of all the people \anie, §S 775, 777], against the peace, etc." § 1016. Turnpike roads — have the same protection as ordi- nary public roads, and follow the same rules, except as their Therefore in a state where the ques- tion has not been adjudged, the pru- dent course is to follow one of the forms in the text, or devise some equivalent. 1 Com. V. Wentworth, Brightly, 318. '•^S. V. Risley, 73 Mo. 609; Com. v. Gowen, 7 Mass. 378; S. u Stewart, 66 Ind. 555; Rex v. Stead, 8 T. R. 143; Reg. V. Spence, 11 U. C. Q. B. 31; 8 Chit. Crim. Law, 607, 610, 611, 618. 3 S. V. Day, 53 Ind. 483 ; Com. v. Bald- ing, 13 Met. 10; 3 Chit. Crim. Law, 611. 4 Rex V. Russell, 6 East, 437; 3 Chit. Crim. Law, 635, 636. 6 Reg. V. Train, 3 B. & S. 640. * For forms and precedents, see a large part of the places referred to ante, % 1013. For some particular ob- structions, see, in addition to the places already cited to this section, — Digging, removing dirt, etc. — in and from street. 3 Chit. Crim. Law, 615, 630; Rex v. Winter, 13 East, 258. Building, — permanent or tempo- rary, obstruction partial or full. 3 Chit. Crim. Law, 612, 615, 617; 4 Went. PI. 191; Reg. v. FuUford, Leigh & C. 403, 9 Cox, C. C. 453; Com. v. Goodnow, 117 Mass. 114; S. v. Ver- mont Central R. Co., 37 Vt 103; Rex V. Wright, 1 A. & E. 434. Gate, — obstructing travel by erect- ing a. 3 Chit. Crim. Law, 618; 4 Went. PI. 197, 198; 6 id. 401, 403, 405. Timber, dirt, etc.— Putting, in street. 3 Chit. Crim. Law, 632, 625; Rex V. Harvey, Trem. P. C. 197; Com. V. King, 13 Met. 115. Flooding, — by damming streams and other like means. Respublica V. Arnold, 3 Yeates, 417; S. v. Lord, 16 N. H. 357; Prim v. S., 36 Ala. 244; Reg. V. Maybury, 4 Fost. & F. 90. Running horse, — so as to inter- rupt travel. S. v. Fleetwood, 16 Mo. 448. Altering course. — Freeman v. S., 6 Port. 372. Over railroad, — carrying street, by bridge, improperly. P. v. New York Central, etc. R. Co., 74 N. Y. 302. Engines and cars,— railroad ob- structing highway by. S. v. Grand Trunk Ry. Co., 59 Me. 189. Contrary to charter, — acts of riiil- way company, obstructing common road by. Reg. v. Great North of England Ry. Co., 9 Q. B. 315, 2 Cox, C. C. 70. Footway, — obstructing. Reg. v. Longton Gas Co., 2 Ellis & E. 651; Reg. V. Betts, 16 Q. B. 1033. 579 § 1017.] SPECIFIO OFFENSES. [book III. charters otherwise provide; ' so that no separate forms of the indictment for obstructing them are here required.^ § IJ17. Non-repair. — The allegations for non-repair are com- monly in the precedents more expanded than is strictly neces- sary, nor are the authorities entirely distinct as to what they must contain. In " Criminal Procedure " ' this is duly explained ; and it will suffice for this place to set down what is believed to satisfy all opinions, mainly following a much-employed English precedent; thus, — That A., etc. [in most cases a municipal corporation, ante, §§ 76, 79], on, etc., and thence continually until the day of the finding of this indictment, at, etc., was and still is under the legal duty to keep in due and proper repair * a certain common highway called M. street [or, etc., as at ante, § 1015], there during all said time duly established and being [for, and used by, all the people, witji their horses, coaches, carts and other carriages to go, return, pass, repass, ride and labor at their free will and pleasure*]; and that a certain part of the said common highway [called N. Lane, situate, Ij'ing and being in the town of O. in said county, extending from a certain field there, called . unto a certain bridge called bridge, contain- ing in length forty yards, and in breadth eight yards"], was, during all said 1 Grim. Law, 11, § 1370. 2 Gate. — For unlawfully shutting a gate, S. v. Day, 3 Vt. 138; S. v. Bos- worth, 13 Vt. 402. 3 Grim. Pro., II, §§ 1043-1048. ^ There may be circumstances in which the averment of this duty is required, but it is not commonly. Grim. Pro., II, § 1044. Perhaps, where it is essential, some will choose to say also how the duty arose. Eex v. Stoughton, 2 Saund. (Wms. ed.) 157 and notes; 3 Ghit. Grim. Law, 587. 5 The matter in these brackets is common in our own precedents as well as in the English. Still it is be- lieved not to be necessary in a state where only one sort of highway is known to the law. Grim. Pro., II, g 1045. 6 This minute description of the locality of the defect does not accord with the precedents for other of- fenses, where no writ or order to an officer commanding him to do some- thing at the place is to be asked for {ante, § 1013) ; and though there are probably authorities which hold it to be necessary, they are believed not to be well founded. Grim. Pro., II, §§ 1045-1047. Still, if the pleader doubts, or if there is reason to fear tHat his court will hold to the con- trary or even doubt, safety lies in the insertion of the allegation. De- fects at various places — (Addi- tional counts).— In Archbold it is said: "If there be other parts of the highway out of repair, within the same parish [in a case where the par- ish is the party indicted], insert other counts specifying them." Archb. Grim. PI. & Ev. (19th ed.) 970. To this no authorities are cited. In rea- son, the direction cannot be sound; but, on the other hand, the different places .should be specified, one after the other, in the same count. A second count is, in essence, a second indictment. Grim. Pro., I, §§ 421, 422. It is never good to insert the part of an offense in one count and the rest in another. But what is deemed a complete offense is charged in each 580 CH. XCIII.] WAT. [§§ 1018, 1019. time, and still is, there very ruinous, miry, deep, broken and in great decay, for want of due reparation and amendment of the same; so that the people could not there during all said time go, return, pass, repass, ride and labor with their horses, coaches, carts and other carriages in, through and along the said common highway as they ought and were wont and accustomed to do, without great danger of their lives, and the loss of their goods; ' to the common nuisance of all the people [ante, §§ 775, 777, 1015], against the peace, etc.2 § 1018. Not making road.— Similar to the foregoing is the indictment for neglecting to open and work a highway which by competent authority has been laid out.' § 1019. Neglects by road officers — are a species of official misconduct, within explanations already made.* Also the in- dictment may partake, more or less according to the circum- stances, of that for non-repair just given.' count. Now, if a highway is in the entire length of what is within the jurisdiction of the court defective, no one maintains that there are as many separate offenses of non-repair as there are feet or rods of such de- fective way. Then, if there are de- fective places, with intervals of good road between, is it otherwise? To hohi that then there is a separate offense for each defective place is equally absurd with the other. It seems to me, therefore, that the pleader ought to be safe, and before most courts will be, if he charges all the defects in one count; and that the peril lies in the opposite course. 1 The allegation here is needlessly verbose; but whatever we deem of its necessity, I should practically pre- serve something of it. 2 Archb. Crim. PI. & Ev. (10th ed.) 643, (19th ed.) 970. For other forms and precedents, see 3 Chit. Crim. Law, 577-589; 4 Went. PL 157-179, 184; 6 id. 406-416; 6 Cox, C. C. Ap. 74, 75; Eex v. Stoughton, supra; Rex V. Harrow, 4 Bur. 2090; Rex v. St. Giles, 5 M. & S. 260; Rex v. Liverpool, 3 East, 86; Rex v. West Riding, 7 East, 588; Reg. v. Barton, 11 A. & E. 348; Reg. v. Midville, 4 Q. B. 240; Reg. V. Turweston, 16 Q. B. 109, 4 Cox, C. C. 349; Reg. v. Waverton, 17 Q. B. 503, 3 Den. C. C. 340, 5 Cox, C. C. 400; Reg. V. Denton, 18 Q. B. 761, Dears. 3; Reg. V. Gate Fulford, Dears. & B. 74, 7 Cox, C. C. 230; Reg. v. Ramsden, Ellis, B. & E. 949; Rex v. Upton-on-Severn, 6 Car. & P. 133. Alabama. — Nowlin v. 8., 49 Ala. 41. Massachusetts. — Com. v. Spring- field, 7 Mass. 9; Com. v. North Brook- field, 8 Pick. 403. New Hampshire. — S. v. Northum- berland, 46 N. H. 156. New Jersey. — S. v. Turnpike, 1 Har- rison, 323. New York. — Waterford, etc. Turn- pike V. P., 9 Barb. 161; P. v. Branch- port, etc. Plankroad, 5 Parker, C. C. 604. North Carolina. — S. v. Pool, 3 Dev. 302; S. V. Patton, 4 Ire. 16; S. v. Mc- Dowell, 84 N. C. 798. Pennsylvania.— Phillips v. Com., 8 Wright (Pa.), 197. Tennessee. — S. v. Murfreesboro', 11 Humph. 317; S. v. Bellville, 7 Baxter, 548. West Virginia. — Parkinson v. S., 3 W. Va. 589. 3 For precedents, see S. v. Newfane, 13 Vt. 422; S. v. Jericho, 40 Vt. 131. *Ante, %e80etseq. 5 For precedents, see 3 Chit. Crim. 581 §§ 1020, 1021.J SPECIFIC OFFENSES. [bOOK III. § 1020. Travelers meeting. — For a violation of the statu- tory regulation, that, "whenever any persons shall meet each other on any road, traveling with carriages, etc., each person shall seasonably drive his carriage, etc., to the right of the middle of the traveled part of such road, so that the respect- ive carriages, etc., may pass each other without interference," the averments may be, — That on, etc., at, etc.. A., etc., and one X, traveling with their respective wagons, met each other on a certain public road, whereupon the said A. unlawfully did not then and there at said meeting seasonably drive his said wagon to the right of the middle of the traveled part of said road, so that the said respective wagons could pass each other without interference; by reason of which neglect the wagon of the said A. did then and there at said meeting interfere with that of the said X, and break that of the said X into pieces; against the peace, etc.1 II. The Railways. §1021. Obstruction on track. — Doubtless the putting of an obstruction on the track of a railway, the same as of any other road, is indictable at the common law.^ But the prob- able consequences are so much more serious that we have stat- utes specially against it; as, for example, making it a felony to " wilfully and maliciously place any obstruction on the track of any railroad, or, etc., whereby the life of any person may be endangered." On this the indictment may charge, — That A., etc., on, etc., at, etc., did wilfully, maliciously and feloniously place upon the track of the Z. Railroad two pieces of wood called railroad sleepers, and one piece of wood called a post [or, two iron rails, two large stones, and two large pieces of wood, or, etc., according to the fact], to the obstruction of said railroad track, whereby the lives of many and sundry persons traveling on said railroad, whose names are to the jurors unknown, were then and there endangered; against the peace, etc' Law, 587, 588; 4 Went. PL 178, 345; worth, 37 N. U. 106; S. v. Beckman, S. V. Tuley, 20 Mo. 433; S. v. Levens, 57 N. H. 174. There are some differ- 33 Mo. 469; S. v. Halifax, 4 Dev. 345, ences in the terms of the several stat- 346; S. V. McElroy, 3 Heisk. 69. utes to punish this offense, and the 1 Substantially following the form, pleader should carefully cover those which was adjudged good, in Com. on which he is proceeding. The V. Allen, 11 Met. 403. It was held English provision is, "Whosoever not to be necessary to describe more shall unlawfully and maliciously particularly the street and place of put, place, cast or throw upon or meeting. across any railway any wood, stone 2 Crim. Law, II, §§ 1369, 1370. or other matter or thing, or, etc., 3 For precedents, see S. v. Went- with intent ... to obstruct, 583 OH. XCIII.] WAT. [§§ 1022-1024. § 1032. Other offenses. — There are some other offenses within this sub-title, bat no further forms are here necessary.^ III. The Public Beidgbs. § 1023. Non-repair^ etc. — Bridges are, in general, parts of the highways;^ and the indictment for the non-repair, not building, obstructing and the like is substantially as explained under the first sub-title. No separate forms are needed.' IV. The Public Squares and Pleasuee-Geounds. § 1024. Erecting a building. — An indictment adjudged good charged, in substance, but in more words than necessary, — That A., etc., on, etc., at, etc., did unlawfully and injuriously, in and upon a certain public square, being a common highway there, called the public upset, overthrow, injure or destroy any engine, tender, carriage or truck using such railway, shall be guilty of felony." 24 & 25 Vict., c. 97, § 35. And a precedent for the indictment is,— "That A., etc., on, etc., at, etc., feloniously, unlawfully and mali- ciously did put and place a piece of wood upon a certain railway called X. [in the parish of N. in the county of M., not necessary where the lo- cality is stated at the beginning of the form], with intent thereby then and there to obstruct, upset, over- throw and injure a certain engine and certain carriages using the said railway; against the peace, etc." ' See, for this form, with the statute, Archb. Grim. PI. & Ev. (19th ed.) 592, 593. In this instance, as in others where precedents are copied from this booli, I have restored the allega tion of place, rendered by late Eng- lish statutes unnecessary. For other English forms, see Reg. v. Holroyd, 3 Moody & R. 339; Reg. v. Bradford, Bell, 268, 8 Cox, C. C. 309; Reg. v. Hadfield, Law R. 1 C. C. 253, fuUer in 11 Cox, C. C. 574; Reg. v. Hardy, Law R. 1 C. C. 278, 11 Cox,C. C. 656; Reg. V. Monaghan, 11 Cox, C. C. 608. Throwing stones, etc., Reg. v. Clark, Law R. 1 C. C. 54, 10 Cox, C. C. 338; 2 Cox, C. C. Ap. 3. Indiana. — Allison v. S., 42 Ind. 354. Massachusetts. — Com. v. Hicks, 7 Allen, 573 (horse-railroad car); Com. V. Bakeman, 105 Mass. 53; Com. v. Killian, 109 Mass. 345. Mississippi. — McCarty v. S., 37 Miss. 411, 419. North Carolina. — S. v. Hinson, 82 N. C. 597 (forishooting with pistol at railroad cars). 1 For a form of indictment against a railroad corporation for putting down rails in an unauthorized man- ner, see S. V. Portland, etc. R. Co., 58 Me. 46. Unreasonably neglecting to ring a bell or blow a steam-whistle while the train is crossing a public road, S. v. Vermont Central R. Co., 28 Vt. 583. 2Crim. Law, II, § 1269; Stat. Crimes, § 301. ' Not repairing. — For forms and precedents, spe 3 Chit. Crim.Law,594, 595, 597, 599, 600; 4 Went. PI. 178, 187, 188; 6 id. 427; Rex v. Fanshaw, Trem. P. C. 199; Rex v. Essex, Trem. P. C. 205; Rex v. Stams, Trenp. P. C. 207; Rex V. Norwich, Trem. P. C. 208; 583 §§ 1025, 1026.] SPECIFIC OFFENSES. [bOOK III. square [situate, etc.i], put, place and set up [and cause to be put, placed and set up ''] one large wooden building [forty feet and upwards in length and thirty feet and upwards in breadth sj; and the said building [so as aforesaid put, placed and set up in and upon the aforesaid public square and common highway *] he the said A. did thence continually until the day of the finding of this indictment [ante, t;§ 81-84], [with force and arms *], there unlawfully and injuriously uphold, maintain and continue, and still doth uphold, maintain and continue; whereby the said public square being a common highway was, during all said time, and still is, greatly obstructed, narrowed and straitened, so that the people could not and cannot go, re- turn, pass and repass, as they ought and were accustomed to do, in, upon and through said public square being a common highway; to the common nuisance of all the people [ante, §§ 775, 777], against the peace, etc.* § 1025. Other injuries — may be charged in like manner, but no separate forms need here be given.'' V. The Eivees and othek Like "Wats bt "Water. § 1026. Obstructing navigable river. — The allegations, fol- lowing in substance the approved precedents, may be, — ■ That on, etc., and thence continually until the day of the finding of this indictment, at, etc., the part of the river X. lying and being within said county was and is a public navigable river and common highway for all the people,^ whereon to navigate, sail, row, pass, repass and labor, at their Reg. V. Stainthill, 2 Ld. Eaym. 1174; 1014, 1015, 1017. Or, at least, it would Cumberland v. Rex, 3 B. & P. 354; suffice to say situate in the village of Rex V. Garrison, 3 M. & S. 526; Rex N. And see Crim. Pro., II, § 1053. V. West Riding of Yorkshire, 2 East, 2 Needless, and better omitted. P. C. 343; Rex v. Salop, 13 East, 95; Ante, gg 139 and note, 839 and note. Rex V. Kent, 18 East, 230; Reg. v. 3 Needless. Crim. Pro., II, § 1053. Derbyshire, 2 Q. B. 745; Reg. v. New ^Evidently the words in these Sarum, 7Q.B. 941. Alabama. — Blann brackets add nothing to the allega- ta. S.. 39 Ala. 353. Indiana. — Butler tion. V. S., 17 Ind. 450. Massachusetts.— * Unnecessary. Ante, § 43. Com. V. Central Bridge, 13 Cush. 242; « S. v. Wilkinson, 3 Vt. 480. Com. V. Newburyport, 103 Mass. 129. ' For laying dirt in a square North Carolina. — S. v. King, 3 Ire. whereby a coach was overturned, 3 411; S. V. Yarrell, 12 Ire. 130. Chit. Crim. Law, 622. For building Not building — or building im- a fence on a public common, Com. v. properly. 3 Chit. Crim. Law, 596; Fisk, 8 Met. 238. For destroying a Res V. Devon, 4 B. & C. 670; Com. v. tree growing on public grounds. Com. Newburyport Bridge, 9 Pick. 143; S. v. Eckert, 2 Browne (Pa.), 349. V. Canterberry, 8 Fost. (N. H.) 195; S. * The English precedents say here, V. Whittingham, 7 Vt, 390. " from the time whereof the memory Pulling down— Injaringr. — 6 Cox, of man is not to the contrary, hath C. C. Ap. 115. been an ancient river and the queen's iThis part of the allegation was ancient and common highway for certainly needless. See ante, %% 1012, all the liege subjects of our lady the 584 OH. xcm.] WAT. [§§ 1027, 1028. ■will and pleasure, with their ships, barges, lighters, boats, wherries and other vessels, without any impediment or obstruction whatsoever; where- upon A., etc., on, etc., aforesaid, at a certain place in said river there called N.,1 did [describe here the obstruction], and did continue the same there dur- ing all the time aforesaid and still does continue the same there; by means whereof the navigation and free passage of, in, through, along and upon the said river and common highway there, during all said time, were and still are greatly straitened, obstructed and confined [so that the people nav- igating, sailing, rowing, passing, repassing and laboring with their ships, barges, lighters, boats, wherries and other vessels, in, through, along and upon the said river and common highway there during the time aforesaid could not, nor yet can, go, navigate, sail, row, pass, repass and labor with their ships, barges* lighters, boats, wherries and other vessels, upon and about their lawful and necessary affairs and occasions, in, through, along and upon the said river and common highway there, in so free and unin- terrupted a manner as of right they ought, and before have been used and accustomed to do 2]; to the common nuisance of all the people [ante, §§ 775, 777], against the peace, etc.' § 1027, Obstructing creek. — A statute made it an indict- able misdemeanor to " fell timber in, or otherwise obstruct the channel of, Hogan's creek in the county of Caswell ; " and it was good to allege, — That A., etc., on, etc., at, etc., in the county of Caswell, unlawfully and maliciously did fell timber in the channel of Hogan's creek there, and did then and there, by such felling of timber, obstruct the channel of said creek; against the peace, etc.^ § 1028. Other watercourses. — The obstruction or diversion of other watercourses is sometimes ground for indictment, but no further forms are here required.* queen and her predecessors." It is Ward, 4 A. & E. 384, 408, note; Reg. not prescription which makes our v. Stephens, 7 B. & S. 710; Reg. v. navigable rivers highways, hence Dobson, 1 Cox, C. C. 351. there can be no propriety in our fol- Alabama. — S. v. Bell, 5 Port. 365. lowing this form. Indiana. — Neaderhouser v. 8., 28 1 As to stating the special locality. Ind. 357, 359. see ante, g§ 1013, 1015 and note, 1017 Massachusetts. — Com. v. Glouces- and note. ter, 110 Mass. 491. 2 The matter in these brackets is Pennsylvania. — Werfel v. Com., 5 taken from Archbold's form, and is Binn. 65; Com. «. Church, 1 Barr, 105; common. I can discover no reason Zug v. Com., 20 Smith (Pa.), 138. for deeming it necessary. Certainly \United States. — U. S. v. Burns, 54 it may be greatly abridged. Fed. R. 351.] 3 For forms and precedents, see *S. v. Cobb, 1 Dev. & Bat. 115, Archb. Crim. PI. & Ev. (10th ed.) 641, omitting from the form as it stands (19th ed.) 968; 3 Chit. Crimu Law, 633- in the book of reports some obvious 641; Rex v. Baxter, Trem. P. C. 196; surplusage. Rex V. Russell, 6 B. & C. 566; Rex v. ^¥ov diverting watercourse, 3 Chit. 585 § 1029.] SPECIFIC OFFENSES. [bOOK III. YI. The Haeboes and Public Ponds. § 1029. In general. — The indictment for neglects and in- juries to these public ways and waters follows so closely the forms already given in this chapter, that it would be little less than waste of space to add to thera by averments special to the present sub-title. In the note,' some precedents are re- ferred to; but the pleader, by following the analogies of the preceding forms, can readily construct whatever else he may have occasion for. The principles and outlines thus appearing, the special adaptations will be easy. Crim. Law, 649; 4 Went. PL 233-234; so that vessels cannot enter, 3 Chit. 6 Cox, C. C. Ap. 75. Not cleansing, Crim. Law, 604 Erecting wall, 4 3 Chit. Crim. Law, 603. Stopping, 3 Went. PL 190; Eeg. v. EusselLS Ellis Chit. Cripi. Law, 638; Stoughton v. & B. 943. Obstrncting harbor by S., 5 Wis. 391. Cutting gap in bank, wharf, S. v. Sturdivant, 21 Me. 9. 3 Chit. Crim. Law, 621. Canals, as Other obstructions, Eex v. Tindall, & to, 6 Cox, C. C. Ap. 23; Com. v. Reed, A. E. 143; Com. v. Alger, 7 Cush. 53; 10 Casey (Pa.), 275. Com. v. Gloucester, 110 Mass. 491. 1 Suffering obstructions to harbor. For WHITES AND BLACKS INTERMARRYING, see ante, § 739. WOMEN, see Rape and Caenal Abuse; Seduction and Abducticn. WORKMEN, see Conspiracy; Laboe Offenses. WORSHIP, see Distuebinq Meetings. 686 BOOK IV. BEFORE AND AFTER. CHAPTER XCIV. STEPS BY THE DEPENDANT BEFORE VERDICT. § 1030. Introduction. 1031, 1033. Motion to quash. 1033-1035. Plea to jurisdiction. 1036-1039. Pleas in abatement. 1040, 104i; Demurrers. 1043-1047. Pleas in bar. 1048-1050. General issue. 1051, 1053. Nolo contendere. 1053-1060. Pleadings subsequent to the pleas. 1061-1068. Setting up insanity. 1064. Change of venue. 1065. Application for continuance. § 1030. What for chapter and how divided. — We shall in this chapter consider, in the following order, I. The motion to quash the indictment; II. The plea to the jurisdiction; III. Pleas in abatement; lY. Demurrers; V. Pleas in bar; VI. The general issue; VII. The plea of nolo contendere; VIII. Pleadings subsequent to the pleas; IX. Setting up in- sanity in defense ; X. The change of venue ; XI. The applica- tion for a continuance. I. The Motion to Quash the Indictment.^ § 1031. Form of motion. — It being within the judicial dis- cretion of the court to quash an indictment without motion, or to refuse on motion,^ there can be and is no one form for the 1 Direct exposition^ Crim. Pro., I, 883, 1371; II, § 872; Stat. Crimes, §§758-774. Incidental, Crim. Law, I, §363. §§ 1014, 1037; Crim. Pro., I, §§ 114, 2 Crim. Pro., I, §§ 758, 759, 761. 264A;, 364Z, 369, 435, 443, 455, 713, 715, 587 §§ 1032, 1033.] BEFORE AND AFTEE. [bOOK IV. motion indispensable. It may follow the usages of the par- ticular tribunal as to other motions; thus, after entitling the cause, — And now comes the said A. [the defendant] and moves to quash the said indictment, and each count thereof, for that, etc. [particularizing the rea- sons].! § 1032. Form of entry. — If the court quashes the indict- ment, its order upon the record simply states the fact in brief; as, in one case, where the quashing was as to one of several defendants, it was in substance, — After hearing [the respective counsel], it is orderd that the indictment in this cause be, and the same is hereby, quashed as to the defendant C.2 II. The Plea to the Jurisdiction.' §1033. Commonly needless — (Distinctions). — There is a very narrow margin in criminal cases, and in civil a wider one, of jurisdictional objections which, pertaining to what is sup- posed to be the mere convenience of the parties, they may waive. But, aside from this sort of exception, a court with- out jurisdiction in a cause can take no step in it valid inlaw; and, as well without plea as with, it will be dismissed or quashed whenever, in any stage of it, the fact appears on the face of the record, or is in any other permissible way brought to the judicial notice.* Even, it is said that, as late as after the general issue is pleaded, the court will receive affidavits of facts to sustain a motion to quash the indictment on this ground.* Therefore, whatever defendants may do at their election, seldom will they be under the necessity of pleading a want of jurisdiction in order to procure, for this cause, a dismissal of the proceedings.* 1 For forms, see Com. v. Legassy, 96, 123, 228, 236-239, 314a-316, 375, 113 Mass. 10; P. v. Moody, 5 Parker, 664, 724, 772, 893, 1350; II, §5^ 910a, C. C. 568, 571; Pierce v. S., 12 Tex. 914; Stat. Crimes, §§ 84, note, 926, 210; S. V. Rutherford, 13 Tex. 24; 112, 141, 142. 164, 180, 197, 198, 804, Davis' Case, Chase, Dec. 1, 84, 85; 810. Concerning the plea to the juris- U. 8. V. Pond, 2 Curt. C. C. 265, 266. diction, Crim. Pro., I, §§ 736, 746, 794. 2 Coats V. P., 4 Parker, C. C. 662, 667. * Crim. Lavr, I, § 1028; Crim. Pro., For another form, see P. v. Moody, 5 I, g§ 50, 96, 123, 316, 772, 893. Parker, C. C. 568, 571. «Eeg. v. Heane, 4 B. & S. 947. 3 For various questions of jurisdio- ' Archb. Crim. PI. & Ev. (19th ed.) tion, see Crim. Law, I, ^§ 99-203, 1028, 134 1029; II, § 1022; Crim. Pro., I, §§ 50, 588 CH. XCIV.J DEFENDANT BEFOEB VEEDIOT. [§§ 1034, 1035. § 1034. Form. — The common form of the plea, to which the prosecuting officer may reply or demur, as the case requires, is, after entitling it, — And the said A. [the defendant], in his own proper person, conies here into court, and, having heard the said indictment read, says that the court here ought not to take cognizance of the felony [or, misdemeanor, or, etc., giving any other proper designation] in the said indictment specified; be- cause, protesting that he is not guilty of the same, nevertheless the said A. says, that, etc. [setting out the matter showing the want of jurisdiction, and, in cases where there is a jurisdiction in another tribunal, specifying iti]; and this the said A, is ready to' verify. Wherefore he prays judgment if the court here will or ought to take cognizance of the indictment afore- said, and that he may be dismissed and discharged therefrom.* § 1035. Entry of withdrawal of juror and not guilty to plead to jurisdiction. — The withdrawal of pleas to admit of iRex V. Johnson, 6 East, 583, 597; Mostyn v. Fabrigas, Cowp. 161, 172; Heilmanr. Martin, 3 Ark. 158; Fields V. Walker, 23 Ala. 155; Rea v. Hay- den, 8 Mass. 34; Lawrence v. Smith, 5 Mass. 863; Jones v. Winchester, 6 N. H. 497. I have stated the doc- trine in the text as I understand it, though there is room for question as to what is its exact form. In Rex v. Johnson, supra, which is the only criminal case among those cited in this note, the court seems to have deemed the doctrine universal ; and, no competent jurisdiction appearing in the plea, it was pronounced ill as amounting to an argumentative gen- eral issue. Chitty, treating of civil pleading, says this rule applies to actions in the " superior courts;" but, in those in an " inferior court,'' " it was sufficient to allege that the cause of action accrued out of its jurisdic- tion, without showing the jurisdic- tion to which the plaintiflE should have resorted." 1 Chit. PI. 445. As to another point in Rex v. Johnson, the books show that, in criminal cases, pleas to the jurisdiction have always been common, quite irrespect- ive of the question whether the same matter might have been taken advantage of or not on "not guilty," on the motion to qnash, or on any of the other steps open to defendants. 2 For precedents, involving a con- siderable variety of circumstances, see Arohb. Crim. PI. & Ev. (19th ed.) 134; 4 Chit. Crim. Law, 505-516; 4 Went. PL 63; Rexu Williams, Trem. P. C. 48, 53; Rex v. Devonshire, Trem. P. C. 188; Rex v. D., Trem. P. C. 371; Rex V. Holies, Trem. P. C. 294, 298, 800; Rex v. Fitzharris, 8 How. St. Tr. 243, 351, 363; Rex v. Kinloch, Foster, 16, 18, 19; Rexw. Johnson, 6 East, 583. Massachusetts. — Com. v. Johnson, 8 Mass. 87. Michigan. — Washburn v. P., 10 Mich. 373. Mississippi. — Sam v. S., 31 Miss. 480. New York. — P. v. Fish, 4 Parker, C. C. 206; P. V. Gardiner, 6 Parker, C. C. 143. [North Carolina. — S. v. Woodard, 138 N. C. 710.J Pennsylvania. — Clark v. Com., 5 Casey (Pa.), 139, 130. United States. — IT. S. v. Carter, 4 Cranoh, C. C. 782; U. S. v. Morris, 1 Curt. C. C. 33; U. S. u Rogers, 4 How. (U. S.) 567, Hemp. 450; U. S. v. Penn, 4 Hughes, 491, 492. 589 §§ 1036, 1037.] BEFOEE AND AFTEE. [bOOK IY. other steps is explained in " Criminal Procedure." ^ In an Eng- lish case is the following entry, given here in exact words : — Upon the motion of Charles Hamilton Gordon, esquire, and Jodrell, esquire, being assigned as counsel for the defendants in this cause, and by their consent, and also at the desire and request and by the consent of the defendants now at the bar here, and also by tbe consent of Mr. Attorney- General on behalf of the king, it is ordered by the court here, that Richard Foy, the last of the jurors sworn and impaneled in this cause, be with- drawn out of the panel, and that the rest of the jurors in this cause be discharged; no evidence whatsoever having been given to the said jury in this cause either on the part of the king or of the defendants. And it is farther ordered by the court here, that the said defendants have leave to withdraw their pleas of not guilty by them formerly pleaded to the indict- ment in this cause, and have leave to plead to the jurisdiction of this court; and that the said defendants have time till to-morrow to put in such plea; and that they deliver copies of such plea to Mr. Sharpe, solicitor for the king in this cause, by eight of the clock this evening. And thereupon the said defendants do now here at the bar withdraw their said pleas of not guilty, in order to put in such plea to the jurisdiction of this court as aforesaid.8 III. Pleas in Abatement.' § 1036. How — these pleas should be constructed we saw in another place.* One of them, now in consequence of modern legislation less used than formerly, is for — § 1037. Misnomer.^ — The form, after the entitling of the cause, is, — And B. [giving the true name], who is indicted by the name of A., in his own proper person comes into court here, and, having heard the said in- dictment read, says that his name is and from his nativity hitherto has been B., by which name he has always been called and known; 6 without this, that he the said B. now is, or at any time hitherto has been, called or iQrim. Pro., I, §§ 124, 747, 798, 801. « A common English form is here. For a form of the motion, see S. v. " that he was baptized by the name Hale, 44 Iowa, 96. of James, to wit, at the parish afore- 2 Rex V. Kinloch, Foster, 16, 17. said, in the county aforesaid, and by » Crim. Pro., I, §§ 730, 738-740, 745, the Christian name of James hath 746, 749, 754r-757, 783, 789-793, 883- also since his baptism hitherto been 885, 1048. called or known." Archb. Crim. PI. 4 Id., §§ 745, 793; Dolan v. P., 64 & Ev. (13th ed.) 113. "While either N. Y. 485, 493; II S. v. Hammond, 3 method is legally good, that in the Woods, 197, 201. [Should be verified text will commonly be the more as at common law. S. u. Allen, 91 Me. available with us. Crim. Pro., I, 258.J § 686. 6 For the doctrine of the name and addition, see Crim. Pro., I, §§ 669-6896. 590 OH. XOIV.J DEFENDANT BEFOEE VEEDICT. [§ 1038. known by the name of A., as by said indictment is supposed, and this he the said B. is ready to verify. Wherefore he prays judgment of the said indictment, and that the same may be quashed, i § 1038. Grand jury .2 — The plea in abatement that the grand jury was not legally competent, or that the indictment was not duly returned into court,' or, if admissible, was founded on ille- gal evidence,* will, except as to its formal parts, greatly vary with the special facts. And any attempt to set down words for unforeseen facts would be worse than useless. Even the formal parts are not quite uniform in the precedents, but there is noth- ing better for them than a substantial copying of the plea for misnomer just given. So that the averments may be, — And the said A. in his own proper person comes into court here, and, having heard the said indictment ^ read, says that, etc. [setting out the de- fect according to tlie special facts and with a view to the law, which dif- fers somewhat in our states; as], that X, one of the jurors of the grand jury by whom the said indictment was found and returned into court here, was not, when said grand jury was impaneled, or afterward, or when it found said indictment, or when it returned the same into court here, a freeholder or a housekeeper in said county of M.,6 and this the said A. is ready to verify. Wherefore he prays judgment of the said indictment, and that the same may be quashed.' , 1 For precedents, see Archb. Crim. PI. & Ev. (13th ed.) 113; 4 Chit. Crim. Law, 520, 521; Rex v. Knowles, Trem. P. 0. 11, 12; Rex v. Layer, 16 How. St. Tr. 93, 114. Alabama. — Lawrence v. S., 59 Ala. 61. New York. — Barnesciotta v. P., 10 Hun. 137. 07uo.— Lasure v. S., 19 Ohio St. 43. Tannessee. — Lewis v. S., 1 Head, 329. 2 Crim. Pro., I, §§ 883-885. aid., § 869a; Long v. S., 56 Ind. 133. *Crim. Pro., I, §§873-874; S. v. Parrish, 8 Humph. 80; French v. P., 3 Parker, C. C. 114, 117. 5 In a part of the precedents, the expression is " supposed indictment. " I should think this adjective desir- able where the defect is of a sort rendering the indictment void. But where, as in most of the cases, it is only voidable, there would appear to be no particular propriety in its use. Doubtless, in point of law, the plea is equally good either way. 6S. V. Hawkins, 5 Eng. 71; Barney V. S., 12 Sm. & M. 68, 71. ' For precedents, see Rex v. Leech, 9 How. St. Tr. 351, 355; Reg. v. Duffy, 1 Cox, C. C. 383; Reg. v. Duily, 4Cox, C. C. 173. Alabama. — S. v. Middleton, 5 Port. 484, 485, 486; Oliver v. S., 66 Ala. 8. Arkansas. — S. v. Hawkins, 5 Eng. 71. Connecticut. — S. v. Hamlin, 47 Conn. 95. [Florida.— Tervin v. S., 37 Fla. 396.] [Qeorgia.— Lennard v. S., 104 Ga. 506; Cooper v. S., 106 Ga. 119.] Indiana. — Hardin v. S., 23 Ind. 847; Kambieskey v. S., 26 Ind. 335; Long V. S., 56 Ind. 133; Meiers v. S., 56 Ind. 336, 339; Sater v. S., 56 Ind. 378; [Hank v. S., 148 Ind. 238.] Maine.— S. v. Ward, 64 Me. 545, 546; S. V. Flemming, 66 Me. 143; S. v. Heselton, 67 Me. 598. 591 §§ 1039-1041.J BEFOEE AND AFTER. [book IV. § 1039. Other pleas in abatement,^ if required, can be readily framed after the model of the foregoing. Not often will there be occasion for others.^ lY. Demueeees.* § 1010. Here and elsewhere. — Only demurrers to the in- dictment are for this place; those to pleas and the like are for the eighth sub-title. § 104:1. Form. — There are verbal differences in the prece- dents ; but it well accords with usage to say, after entitling the cause, — And the said A. [the defendant] in his own proper person comes into court here, and, having" heard the said indictment read, says that the said indictment and the matters therein are, as therein alleged and set forth, not sufiBcient in law to compel him the said A. to answer thereto [if the de- murrer is special, add here, for that, etc., stating the specific objections in- detailj, and this he the said A. is ready to verify. Wherefore he prays judgment, and that by the court here he may be dismissed and discharged of the said indictment.' Massachusetts. — Com. v. Bannon, 97 Mass. 214; Com. v. Moran, 130 Mass. 381. Michigaru — Findley v. P., 1 Mich. 334 Mississippi. — Barney v. S., 13 Sm. & M. 68, 71; Baker v. S., 28 Miss. 248. NebrasTca. — Barton v. S., 13 Neb. 260. New Mexico. — Carter v. Ter., 1 N. M. 817. New York. — P. v. Moneghan, 1 Parker, C. C. 570; French v. P., 8 Parker, C. C. 114, 117; P. v. Cyphers, 5 Parker, C. C. 666, 670; Stokes v. P., 53 N. Y. 164; Dolan v. P., 64 N. Y. 485. United States. — U. S. v. Hammond, 2 Woods, 197, 201. 1 Wrong addition, or none.— In not many of our states, if in any, is this a ground of abatement. Ante, §74. For forms of the plea, see 4 Chit. Crim. Law, 520, 522, 534; 3 Stark. Crim. PI. (2d ed.) 784, 785; Rex v. Grainger, 8 Bur. 1617. [The entry on plea in abatement adjudged bad is that defendant answer over. S. v. Allen, 91 Me. 358.] Another indictment pending.— This is not commonly ground for abatement. Crim. Law, I, § 1014. Still, for forms of the plea, see Rex V. Nosworthy, Trem. P. C. 75; Reg. V. Mitchel, 8 Cox, C. C. 98, 106; Austin V. S., 12 Mo. 393. ^Crim. Pro., I, §§ 775-786. Inciden- tal, Crim. Law, I, § 1037; Crim. Pro., I, §§ 424, 442, 730, 730a, 741, 746, 798, 1286. ' For precedents, see Archb. Cfim. PI. & Ev. (19th ed.) 188; 4 Chit. Crim. Law, 517-519; 6 Went. PL 408; Rex V. Johnson, Trem. P. C. 119, 133; Rex V. A. B., Trem. P. C. 369, 270. Alabama. — Perkins v. S., 50 Ala. 154: Cheatham v. S., 59 Ala. 40. Iowa. — S. V. Baumon, 53 Iowa, 68. Nevada.— S. v. Harris, 13 Nev. 414, 417. New York.— P. v. Gilkinson, 4 Par- ker, C. C. 36, 38; P. v. Fish, 4 Parker, C. C. 306, Sheldon, 537, 538. Ohio.— & V. Barker, 38 Ohio St. 583. 593 OH. XCIV.J DEFENDANT BEFORE VEEDICT. [§§ 1042, 1043. V. Pleas in Bae.' §1042. Former conviction or acquittal .2 — The only es- sential diiferenoe between the pleas of autrefois convict and autrefois acquit is, that the one has the word " convicted " where the other has " acquitted ; " though, among some of the precedents, other slight differences, of no legal consequence, may be discovered. Considering that this is a favored plea, wherein the lowest sort of certainty will suffice,' it is remark- able as having been constructed to embrace much more of minute allegation than, at first impression, any just view of the principles involved would seem to require.* Still, as the common-law forms are not quite without support in reason, and as briefer methods are widely provided for by legislation, it will not be advisable to attempt here any amendment in what of the old appears to be established. So that — § 1043. Common-law plea. — The plea, after being entitled, may proceed, — And the said A. in his own proper person comes into court here, and, having heard the said indictment read, says that the said commonwealth [or state, or people, or United States] ought not further to prosecute the same against him; because he says that heretofore at a court of, etc. [en- larging the allegations here until they cover the entire matter of the cap- tion of the former indictment], it was [not "is," but employing here and throughout the past tense where the record ^ has the present *] by the oath [or oath and affirmation] of the jurors of the said commonwealth \pr, state, or, etc., as before] ' presented, that the said A., by the name and descrip- tion of, etc. [giving the name and addition precisely as they stand in the indictment being copied], on, etc., at, etc. [proceeding with verbal accuracy to the very end of such indictment], to which last-mentioned indictment the said A. pleaded not guilty and the said commonwealth \(yr, etc.] joined issue on said plea; and a jury, thereupon duly summoned, impaneled and sworn to try said issue, upon their oath did say that the said A. was guilty \w not guilty] of the felony \or treason, or misdemeanor, or oifense] in the said laS(t-mentioned indictment laid to his charge \or, if the plea was guilty, this finding of the jury will be omitted], whereupon it was by the said last- mentioned court considered that, etc. [setting out the sentence ^ of convic- 1 Grim. Pro., I, §§ 743, 745-756, 805- » Grim. Pro., 1, § 1349. 848; II, § 1049; Stat. Grimes, § 264 « Gompare with ante, § 94 2 Grim. Pro., I, §§ 808-817. t Ante, § 57, and see gS 5^-64. These ' Id., §§ 745, 808. several allegations should conform * See the elucidations in the chap- to the record, so they will not al- ter, ante, g§ 91-97; where, however, ways stand precisely as in the text, some justification of the established 8 Or, as to how much, see Grim, methods in these pleas is attempted. Pro., I, § 815. 38 593 § 1043.] BEFOEE AND AFTEE. [book 17. tion, or of acquittal and discharge],' as by the record thereof more fully and at large appears [which judgment still remains in full force and effect, and not in the least reversed or made void^J. And the said A. avers that he and the A. [or B.] who was the defendant in the indictment recited in this plea and convicted [or acquitted] as aforesaid are one and the same person, and not divers and different persons; and that the offense in the said last-mentioned indictment set out and the one. charged in the indict- ment to which this plea is pleaded are one and the same offense, and not divers and different offenses [adding, also, in such special circumstances as may seem to require, other averments of identity, according to the partic- ular facts]. All of which the said A. is ready to verify; ' wherefore he prays judgment, and that by the court hei-e he may be dismissed and discharged from the premises in the present indictment specified and contained. [Here the plea ends. But opinions differ as so whether or not the plea of not guilty should be added.* If it is added, the form proceeds:] And as to the felony and larceny 5 [or felony, or misdemeanor, or offense] of which the said A. stands here indicted, he says that he is not guilty thereof, and of this he puts himself upon the country.^ •We may find in the books pas- sages indicating that the record, from the indictment down to this place, should be fully set out. But the I'eason [ante, % 93-95] which re- quires the indictment to appear fully in exact words does not apply to the remaining part of the record. Nor do the precedents in general set out such record thus fully. I am quite sure there ought not to be any dif- ference of opinion as to the suffi- ciency of these allegations in the text. Many precedents accepted as good have less. See, for example, Beg. V. Austin, 2 Cox, C. C. 59. 'The matter in these brackets is not in all the precedents; it is not essential to a prima facie case, there- fore it is unnecessary. If the plea were in abatement, and so requiring a possible answer to be anticipated and overthrown, it would be differ- ent. » In Reg. V. Austin, 2 Cox, 0. C. 59, 60, Pratt, B. said: "You should have concluded with a verification, for your plea introduces new matter. But the court will give you permis- sion to amend, as it is only an in- formality." < Grim. Pro., I, §§ 811, 813. 5 Reg. V. Green, Dears. & B. 113, 114; Reg. v. Austin, 3 Cox, C. C. 59, 60. ^ I have not found any one prece- dent which in every respect an- swered the requirements of my text. So this form is in some degree con- structed on a comparison of prece- dents. And see, for forms and precedents, at common law and under statutes, not only for this plea, but also for the proceedings and pleas where there has been a jeop- ardy in a cause which did not pro- gress to a conviction or acquittal, bi\t which was still supposed to entitle the defendant to his discharge from the second or same indictment, Archb. Crim. PI. & Ev. (10th ed.) 89, 91; 4 Chit. Crim. Law, 528-589. 567; Rex V. Essex, Trem. P. C. 205, 306; Rex v. Clark, 1 Brod. & B. 473; Rex v. Em- den, 9 East, 437; Rex v. Taylor, 3 B. & C. 503; Reg. v. Charlesworth, 1 B. &. S. 460, 463, 9 Cox, C. 0. 40; Winsor V. Reg., Law R 1 Q. B. 289; Rex v. Vandercomb, 2 Leach (4th ed.), 708; Rex V. Dunn, 1 Moody, 424; Reg. v. Bird, 3 Den. C. C. 94, 334; Reg. v. Green, Dears. & B. 113, 7 Cox, G. C. 186; Rex t). Sheen, 2 Car. & P. 634, 635; Reg. v. Walker, 3 Moody & R. 446; Reg. v. Davison, SFost. & F. 350; 594 OH. XCIV.] DEFENDANT BEFORE TEEDICT, [§ 1044. § 1044. Former jeopardy without conviction or acquittal .1 Minute directions for the various steps under tiiis head are given in " Criminal Procedure." And the references in the notes to the last section include those to the forms under this. But these forms are not, in general, particularly well con- structed, while yet a revision of them for this place seems not to be called for. The plea in the nature of a former acquittal may be framed from that, in the last section, by simply vary- ing it to conform to the different facts.^ The other forms, de- manded by the varying exigencies of cases, will be obvious. Reg. V. Austin, S Cox, C. C. 59; Eeg. V. Mitohel. 3 Cox, C. C. 93; Reg. v. Bird, 5 Cox, C. C. 11: Reg. v. Connell, 6 Cox, C. C. 178; Reg. v. Davison, 8 Cox, C. C. 360; Reg. v. Elrington, 9 Cox, C. C. 86; Reg. v. Westley, 11 Cox, C. C. 139, 140; Reg. v. Tanoook, 13 Cox. C. C. 217; Rex v. Foy, Vern. & a 540. Alabama. — S. v. Standifer, 5 Port. 533; MoCauley v. S., S6 Ala. 135; Bar- rett V. S., 35 Ala. 406, 408; Lyman v. S., 45 Ala. 72, 74; Lyman v. S., 47 Ala. 686; White v. S., 49 Ala. 344 Arkansas. — Rector z;. S.,1 Eng. 187; Atkins V. S., 16 Ark. 568; Wilson v. S., 16 Ark. 601; S. v. McMinn, 34 Ark. 160, 161. Connecticut — S. v. Allen, 46 Conn. 531. [Florida.— Cason v. S., 37 Fla. 331,] Indiana. — S. v. Wilson, 50 Ind. 487 ; S. V. Morgan, 63 Ind. 35, 37; Bryant V. S., 73 Ind. 400. Massachusetts. — Com. v. Cunning- ham, 13 Mass. 345; Com. v. Curtis, 11 Pick. 134; Com. v. Roby^ 12 Pick. 496; Com. V. Peters, 13 Met. 387; Com. v. Harris. 8 Gray. 470; Com. v. Bake- man, 105 Mass. 53; Com. v. Farrell, 105 Mass. 189; Com. v. Bosworth, 113 Mass. 300; Com. v. Bressant, 136 Mass- 346. [Nebraska.— Bush v. S., 55 Neb. 195 ; Davis V. S., 51 Neb. 301.] New York. — Grant v. P., 4 Parker, C. C. 537, 539; P. v. Van Keuren, 5 Parker, C. C. 66; P. v. Cramer, 5 Parker, C. C. 171; Gardiner v. P., 6 Parker, C. C. 155; Canter u P., 1 Abb. Ap. 305, 306. Pennsylvania. — Com. v. Clue, 3 Rawle, 498; McCreary v. Com., 5 Casey (Pa.), 333. Tennessee. — Hite v. S., 9 Yerg. 357, 359; McGinnis v. S., 9 Humph. 43; Mikels V. S., 3 Heisk. 331. rea;as. — Pritohford v. S., 3 Tex. Ap. 69. Vermont. — S. v. Damon, 3 Tyler, 387. Virginia. — Com. v. Meyers, 1 Va. Cas. 188, 3 Wheeler, Crim. Cas. 545; Robinson v. Com., 33 Grat. 866. [West Virginia. — 8. v. Cross, 44 w! Va. 815.] 1 Crim. Pro., I, §§ 818-831. 2 In Robinson v. Com., 33 Grat. 866, the following, which does not fulfill the common-law requirements as generally accepted, was treated as good : — " And the said A. comes and says that no further proceedings in the premises should be had or taken against her on the said indictment, because she says that on, etc., in the hustings or corporation court of the city of M., she the said defendant was put upon her trial upon an in- dictment for the identical charge contained in this a second indict- ment for the same offense, and a jury between the commonwealth 595 §§ 1045, 1046.] BEFORE AND AFTER. [book IV. § 104:5. Pardon.' — The plea of pardon, not often called for in practice, may be drawn from the directions in " Criminal Procedure;" or the pleader may consult the precedents re- ferred to in the note.^ § 1046. Others. — There are other pleas in bar familiar to the English practice.' But it is doubtful whether in this and the said defendant, upon the said defendant, upon the said indictment. indictment, on, etc., was in due form of law drawn, selected and impan- eled, charged and sworn to well and truly try the said issue. And the said jury, without the consent of the said A., have been discharged and sepa- rated without having rendered any verdict therein, and without disa- greeing or other special cause, there being no material necessity for the discharge of the said jury; and the said A. says that she has been once in jeopardy upon and for the said charge and offense for which she now stands charged and indicted in the present indictment, to which she is now called on to plead, and cannot by the law of the land be again tried therefor; and this she is ready to verify. [If the pleader ventures to follow this form he will add here:] Wherefore she prays judgment, and that by the court here she may be discharged and dismissed from the premises in the present indictment contained." In Grant v. P., 4 Parker, C. C. 537, 539, a former discharge of the jury unauthorized, on the same indict ■ment (see Crim. Pro., I, §S 831-826), was without objection set up by plea as follows: — " And the said A. comes and says that no further proceedings in the premises ought to be had or taken against him on the said indictment, because he says that on, etc., in the court of sessions in the said county, the said defendant was put upon his trial upon said indictment, and a jury between the people and the said was in due form of law drawn, im- paneled, charged, and sworn to well and truly try the said issue. And the said jury, without the consent of the said defendant, have been dis- charged and separated without hav- ing rendered any verdict therein, and without disagreeing or other special cause, but by mere irregular- ity; and the said defendant says that he has been once in jeopardy upon the said indictment, and can- not by the law of the land be again tried thereon." And see for forms similar to these two, a V. Wilson, 50 Ind. 487; Mc- Creary v. Com., 5 Casey (Pa.), 333; Com. V. Farrell, 105 Mass. 189; Ly- man V. S., 47 Ala. 686; White v. S., "49 Ala. 344; Lyman v. S., 45 Ala. 72, 74; Barrett v. S., 35 Ala. 406; Mc- Cauley v. S., 26 Ala. 135: Reg. v. Davison, 8 Cox, C. C. 360; Conway v. Reg., 1 Cox, C. C. 210. 1 Crim. Pro., I, §§ 882-848. 2 For the plea of the executive par- don, 4 Chit. Crim. Law, 452; Rex v. Hanibden, Trem. P. C. 307, 311; Rex V. Danby, 11 How. St. Tr. 599, 764; BuUd. Tilt, 1 B. & P. 198 (not good); Michael v. S., 40 Ala. 361 (amnesty and pardon). Statutory pardon, Reg. V. Arundell, Trem. P. C. 271, 372; 4 Chit. Crim. Law, 452. Judgment in cases of pardon. Id. 453, 454. Forms- of executive pardon, U. S. v. Wilson, 7 Pet. 150, 153; S. v. Foley, 15 Nev. 64 ^ Way. — Among the more familiar are special pleas to the indictment for non-repair of public ways, cast- ing the duty on another party, and 596 OH. XOIT.] DEFENDANT BEFOEE VEEDICT. [§ 1046. country there are any defenses besides the foregoing not per- missible under the general issue. And in reason, on a ques- tion not much discussed in the books, the rule familiar in civil causes, that what amounts to the general issue is not pleadable specially,' should be applied equally to criminal.'' the like. But it is explained else where that probably none of these pleas are necessary with us. Crim. Pro., II, § 1049. See, for precedents, 4 Chit. Crim. Law, 541-567; 4 Went. PI. 161-191; 6 id. 394, 410, 414; Rex V. Kent, 3 M. & a 513; Rex v. East- rington, 5 A. & E. 765; Reg. v. Bar- noldswick, 4 Q. B. 499; Reg. v. Ely. 15 Q. B. 827, 4 Cox, C. C. 281, 383; Reg. V. Ashby Folville, 10 Cox, C. C 369, iSteph. PI. 418,419. 2 Instances wherein, other than as stated in a previous note, special pleas in bar have been employed are, — Legislative anthorization ofnni- sance. — Persons indicted for a pub- lic nuisance defended by a special plea, adjudged good, as follows: — " And the said A. [to avoid repeti- tion I shall omit the other names and assume that A. was indicted alone] in his own proper person comes into court here, and, having heard the said indictment read, says that the said commonwealth ought not further to prosecute the said indict- ment against him; because he says that the pond and reservoir com- plained of in said indictment are a part of the internal improvements of this commonwealth, called the, etc. [canal], and are and were con- structed by said commonwealth in order that the same be and remain a public highway, for the passage at all times of all persons with horses, boats and merchandise, on the said [canal] ; that the said dams and dam- ming the southern end of the M. swamp, in the said indictment men- tioned, were created, constructed and erected by the authority and in pursuance of lawp of this common- wealth, by the ofHoers, engineers and agents thereof, lawfully created, ap- pointed and employed therefor, for the purpose of securing and furnish- ing sufficient water for the supply of the said [canal]; that the said A. is in the possession of the said pond, reservoir and dam by authority and in pursuance of the act of assembly, entitled, etc., as director of said com- pany, and not otherwise; and by the terms, conditions and provisions of said act of incorporation he is re- quired and commanded to keep up said dam and damming pond and reservoir for the purposes of said canal as aforesaid, in order that the said canal shall form, be and remain a public highway, for the passage at all times of all persons with horses, boats and merchandise, and for the protection of the interest and prop- erty of the said commonwealth re- tained and reserved therein by the said commonwealth iinder the terms and conditions of said act of incor- poration; and further, that he has no right or power, under the laws of said commonwealth, to renew the same, but only to keep the same in repair. And this the said A. is ready to verify; wherefore he prays judg- ment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment specified." Com. w Reed, 10 Casey (Pa.), 375, 376. Now, it is perceived that the mat- ter of this plea is simply an argu- mentative denial that the defendants are or ever were guilty; hence, in principle, not only was it unneces- 597 §§ 1U47-1049.] BEFOEE AUD AFTER. [book IV. § 1047. As to which. — If, in any case not contemplated in the foregoing sections, a special plea in bar is deemed to be the proper method of defense, counsel can readily conctruct it on the models already given. YI. The General Issue.' § 1048. Elsewhere. — The form of the plea of not guilty is explained in "Criminal Procedure."^ § 1049. By attorney. — When it is pleaded by attorney, as in exceptional cases of misdemeanor it may be,' the form is,— r And tlie said A. comes into court here by X. his attorney,* and, having heard the said indictment read, says that he is not guilty of a misdemeanor sary, but it should have been rejected by the court. Crim. Pro., I, § 799. It is otherwise with the plea of the — Statute of limitations. — As this plea does not deny the original guilt charged, defendants are permitted to plead it; though they need not, for they may avail themselves of the defense under the general issue. Crim. Pro. as above; Stat. Crimes, § 264. The allegations, by one who chooses this method of defense, should conform to the statutory terms and special facts; as, for ex- ample, they were in one case, P. v. Roe, 5 Parker, C. C. 331,— " And the said A. in his own proper person comes into court here, and, having heard the said indictment read, by leave of the court also first had and obtained, says that the said people of the said state ought not further to prosecute the said indict- ment against him the said A.,because he say? the said indictment was found and filed on the, etc [stating the date], and that the said indict- ment was not found or filed in the proper or in any court within three years after the commission of the of- fense in the said indictment speci- fied, althougli during the whole time since the commission of the said of- fense he has been and now is an in- habitant of and usually resident within the United Statea And this he the said A. is ready to verify; wherefore he prays judgment, and that by the court here be may be dis- missed and discharged from the said premises in the said indictment above specified." Refusingr office. — There are Eng- lish precedents for pleading spe- cially in bar an excuse for refusing office. Rex. v. King, Trem. P. C. 217, 218; Rex v. Caslin, Trem. P. C. 219, 220. But they are old, and modern usage is believed not to accord with them. Some further illustrations of what has been, in various circumstances, attempted or permitted may be seen in the following: Rex v. Lovelace, Trem. P. C. 273, 375; Rex v. A. B., Trem. P. C. 369; Reg. v. Newman, Dears. 85, 1 Ellis & B. 558, 3 Car. & K 85; S. V. Chapin, 17 Ark. 561; Hardin v. S., 13 Tex. Ap. 186; U. S. v. Kindred, 4 Hughes, 493, 495. Whether in any or all these cases the special plea was properly admissible we need not further inquire. The prin- ciple governing the question already appears. 1 Crim. Pro., I, §§ 794a-801. 2 Id., § 795. 'Crim. Pro., I, §§ 268, 733. * The written plea in person differs from this only in omitting the words "by X his attorney." 598 CH. XOIV.J DEFENDANT BEFOBE VERDICT. [§§ 1050, 1051. [or offense] therein charged against him, and hereof he puts himself upon the country.i § 1050. Oral — Entered by court. — The oral plea of not guilty is less formal.^ So undoubtedly no one exclusive form is required for the plea which in special circumstances the court orders to be entered of record under the authority of a statute.' Still as this is a proceeding unknown to the common law, the statutory formalities must be fully complied with;* but, in mere form of words, there-will be nothing not obvious. YII. The Plea of Nolo Contendeee.' § 1051. How the form. — The extended form of this plea is not much shown by precedents. It is granted only at the dis- cretion of the court on special application ; judgment under it is, for all purposes, a conviction;* and it differs in its effect from the plea of guilty, simply in that it cannot as a confession be brought in evidence against the defendant in another proceed- ing, 'Yet because it is an implied confession as to the particu- lar case,'' evidently it does not open with a protestation of in- nocence, nor could the court accept it in such form ; since to convict without proof one protesting his innocence would be a prostitution of public justice however he might consent. Still the author has seen nothing conclusive directly to this point in any book of authority.* "We are simply informed that, when the court accepts this plea, " an entry is made to this effect, 1 Essentially following 4 Chit. Crim. learned judge casually observed: Law, 499; Archb. Crim. PL & Ev. " The plea of noto confendere, pleaded (19th ed.) 150. For other precedents, with a protestation that the party see 4 Chit. Crim. Law, 540, 541; 4 was not guilty, would clearly not Went PI. 44; Eex i'. Pilkington, conclude the party in his defense Trem. P. C. 182, 184 against the civil action." p. 208. 2 Archb. Crim. PI. & Ev. 149, 150; But our books of reports are full of Crim. Pro., I, §§ 7336, 796. observations which might be tor- 8 Crim. Pro., I, § 733a. tured into all sorts of meanings an- *Stat. Crimes, § 119. tagonistic to sound doctrine. Noth- 5 Crim. Pro., I, t?§ 803-804 ing is more familiar than that the «U. S. V. Hart well, 8 Clif. 331, 383; evidence they afford of the law is and cases infra. very slight. In this very case, the ' Reg. V. Templeman, 1 Salk. 55 ; plea before the court did not contain Com. V. Horton, 9 Pick. 306; Com. v. the protestation of innocence, and Tilton, 8 Met. 232, 233. there was no intimation that it was * In Com. V. Horton, supra, a defective. 599 §§ 1052-1054.] BEFOEE AND AFTER, [bOOK IV. that the defendant non vult contendere cum domina regina et posuit se in gratiam curice." ' Hence — ■ § 1053. Form. — "We may deem something like the follow- ing the proper form for the extended plea: — And the said A. in his own proper person comes into court here, and, having heard the said indictment read, says, by permission of the court heire, that he will not contend with the said commonwealth [or, state, or, etc.], and hereof he puts himself upon the clemency of the court.* VIII. Fleadings Subsequent to Pleas. § 1053, Demurrer to plea — The form may be, — And X [the prosecuting officer, add his title, which differs in our states], who prosecutes for the said commonwealth [or state, or, etc.'] in this be- half, as to the said plea of the said A. by him above pleaded, says that the same and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude the said commonwealth [or state, or, etc.] from prosecuting the said indict- ment against him the said A., and the said commonwealth [dr. etc.] is not bound by law to answer the same; and this the said X., who prosecutes as aforesaid, is ready to verify. Wherefore, for want of a sufficient plea in this behalf, he the said X. for the said commonwealth [or, etc.] prays judgment, and [where the case justifies] that the said A. may be convicted of the premises therein specified [or, in other cases, that the said indictment may be adjudged good, and the said A. may further answer thereto].* § 1054. Joinder in demurrer to indictment, — The form may be, — And X. [adding his official title], who prosecutes for the said common- wealth [or state, or, etc.] in this behalf, says that the said indictment and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law to compel the said A. to answer to the same; and this' the said X who prosecutes as aforesaid is ready to verify and prove the same as the court here shall direct and award. Where- fore, inasmuch as the said A. has not answered to the said indictment, or 1 1 Chit. Crim. Law, 431 ; Reg. v. * For forms, see Arohb. Crim. PI. & Templeman, supra; Eex U.Williams, Ev. (19th ed.) 188, 139; 4 Chit. Crim. Comb. 18, 19. Law, 507, 515, 535, 539, 532, 571, 573; 2 The form under consideration in Eex v. Devonshire, Trem. P. C. 188, Com, V. Horton, supra, was, as ap- 189; Rex v. Essex, Trem. P. C. 205, pearing in the record: "And now 307; Rex u. Read, Trem. P. C. 559, 568; the said A. is set to the bar, and has Rex v. Layer, 16 How. St Tr. 93, 115; this indictment read to him; he says Rex v. Kinloch, Foster, 16, 19; Rex v. he will not contend with the com- Vandercomb, 2 Leach (4th ed.), 708, monwealth, with which the attorney 715; French v. P., 3 Parker, C. C. 114, for the commonwealth is content. 120; Gardiner v. P., 6 Parker, C. C. It is therefore considered," etc. 155, 159. ' See ante, § 58, 600 CH. XOIV.] DEFENDANT BEFORE VEEDICT. [§§ 1055-1057. hitherto in any manner denied the same, the said X for the said common- wealth [or, etc.] prays judgment, and that the said A. may be convicted of the premises in the said indictment speoified.i § 1055. Joinder in demurrer to plea. — The form may be, — And the said A. says that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude the said commonwealth [or state, or, etc.] from prosecuting the said indictmeiit against him the said A. ; and the said A. is ready to verify and prove the same as the said court here shall direct and award. Wherefore, inasmuch as the said X. for the said commonwealth [or, etc.] hath not answered the said plea, or hitherto in any manner denied the same, the said A. prays judgment, and that [the said indictment may be quashed,^ and] by the court here he may be dismissed and discharged from the premises in the said indictment specified.' § 1056. Replication to plea to jurisdiction. — The form may be, — And hereupon X [the prosecuting officer, adding the title of his office], who prosecutes for the said commonwealth [or state, or, 6tc.] in this be- half, says, that notwithstanding anything by the said A. above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid; because he says that, etc. [setting out the matter re- lied on, and, if it is new matter, ante, § 1043, note, adding the verification; if not, the conclusion to the country; thus], and this he or the said X. for the said commonwealth [or, etc.] is ready to verify [or, prays may be in- quired of by the country]. Wherefore he prays judgment, and that the said A. may answer to the said indictment.^ § 1057. Replication to plea in abatement — (Misnomer). — To the plea of misnomer the replication may be, and under the facts of most of the cases is, — And hereupon X., etc. [as in the last form], says that the said indict- ment, by reason of anything by the said B. [the name which the defendant 1 All the precedents that I have ob- Chit. Crim. Law, 517a, 518; 6 Went, served conclude with this form of PL 409; Rex v. Johnson, Trem. P. C. prayer. And w^ere, as formerly in 119, 133; P. v. Weston, 4 Parker, C. all cases, and still in misdemeanors C. 326. and to a considerable extent in f elo- ^ The matter in these brackets to nies, the defendant is not entitled as be omitted where the plea was in bar. of right to answer over (Crim. Pro., ' For precedents, see Archb. Crim. I, §§ 783-786), it is unquestionably PI. & Ev. (19th ed.) 139; Archb. New correct. But where the defendant Crim. Pro. 117; 4 Chit. Crim. Law, may as of right answer over, the 515,536,530,571; Rex v. Devonsliire, prayer in principle should be "that Trem. P. C. 188, 189; Rex v. Vander- the said indictment may be ad- comb, 2 Leach (4th ed.), 708; French judged good, and the said A. may v. P., 3 Parker, C. C. 114, 121; Gardi- further answer thereto." For forms, ner v. P., 6 Parker, C. C. 155, 160. see Archb. Crim. PI. & Ev. (19th ed.) * For precedents, see Archb. Crim, 138; Archb. New Crim. Pro. 116; 4 PI. & Ev. (10th ed.) 81, (19th ed.) 135; 601 §§ l05S, 1059.] EEFOEE AND AFTER. [bOOK IV. claims in his plea] in his said plea above alleged, ought not to be quashed ; because he says that the said B., long before and at the time of the pi'efer- ring of the said indictment, was and still is known as well by the name of A. [the name which the indictment gives him] as by the name of B. [to wit, at the parish aforesaid, in the county aforesaid ']; and this he prays may be inquired of by the country.^ § 1058. Same — (Incompetency of grand juror). — In one case, a replication in the following form was not objected to: — And hereupon X. [adding the ofBcial title of the prosecuting officer], who prosecutes for the commonwealth in this behalf, says, that notwithstanding anything by the said A. in pleading alleged, this court ought not to be pre- cluded from taking cognizance of the indictment aforesaid; because he says that the grand jurors from the towns of N. and O., to wit, Y. and Z., as to whom specific objection is taken in said defendant's plea, were duly and legally drawn, summoned, notified and returned as grand jurors, and presented themselves on the first day of the term of this court at the April term thereof in the present year, and were then duly sworn and impaneled, and that the said grand jury was in all respects a legal grand jury; and this the said X. is ready to verify. Wherefore he prays judgment, and that the said A. may answer to this said indictment.' § 1059, Replication to plea in bar. — The formal parts, the filling up whereof will considerably varj' with differing facts, may be, — And hereupon X [the prosecuting oiBcer, adding his ofBcial title], who prosecutes for the said commonwealth [or state, or, etc.] in this behalf, says, that by reason of anything alleged in the said plea of the said A. above pleaded in bar, the said commonwealth [or, etc.] ought not to be precluded from prosecuting the said indictment against the said A. ; because he says, that, etc. [here setting out the matter special to the case], and this the said X for said commonwealth [or, etc.] is ready to verify [or, prays may be inquired of by the country *]. Wherefore he prays judgment, and that the said A. may be convicted of the premises in the said indictment speci- fied.* 4 Chit. Crim. Law, 514; Sam v. S., 31 For another form, see S. v. Hawkins, Mo. 480. 5 Eng. 71. 1 The matter in these brackets is * Explained ante, § 1056. in the form before me, but I can dis- * As to the form of the prayer, see cover no principle requiring it. The the note to ante, § 1054. For prece- place at which the name was borne dents, see Archb. Crim. PL & Ev. by the defendant is not, like that at (10th ed.) 86, (19th ed.) 140; 4 Chit, which he committed the offense, an Crim. Law, 549, 556, 559, 562, 569; 4 element in the jurisdiction. Went. PL 174; 6 id. 413, 416; Reg. v. ■2 Archb. Crim. PL & Ev. (10th ed.) Ashby v. Folville, 10 Cox, C. C. 209, 82. And compare with 4 Chit. Crim. 290. To plea of former convictioi!, Law, 526; Rex v. Knowles, Trem. P. acquittal, or jeopardy. — The repli- C. 11, 13. cations to this class of pleas are var- 3 Com. V. Moran, 130 Mass. 281, 283. ied. It will suffice simply to refer 602 OH. XCIV.J DEFENDANT BEFORE VEEDIOT. [§§ 1060-1063, § 1060, Still later pleadiags. — The pleadings are occasion- ally continued further; but the foregoing, supplemented in proper cases by the familiar " And the, etc., does the like," or- dinarily suffice to develop the issue. The forms already given in this chapter will serve as models for such further ones as may be required.^ IX. Setting up Insanity in Defense.^ § 1061. Elsewhere. — The steps, where the insanity of a prisoner is suggested, are sufficiently stated in " Criminal Pro- cedure." § 1062. Oath to jury. — The oath to a jury impaneled to try whether the prisoner is so insane as to be incapable of making his defense, is, — You shall diligently inquire and true presentment make \pr, a true ver- dict return] for and on behalf of the commonwealth \or state, etc.], whether A., the prisoner at the bar, who now stands indicted for murder [or rape, or, etc., according to the fact] be of sound mind and understanding or not, and a true verdict give according to the best of your understanding, so help you God.* § 1063. Record. — There should be a record of the fact of the inquiry and finding. And, as such fact will vary in its particulars with the cases, so will the record of it.^ to places where precedents may be law of this defense, with the pro- found. Archb. Crim. PI. & Ev. (10th cedure, see Crim. Law, I, §§ 374r-396; ed.) 90, 93, {19th ed.) 144, 147; Archb. Crim. Pro., II, §§ 664-687&. Inci- New Crim. Pro. 112; 4 Chit. Crim. dental, Crim. Law, I, §g 261, 406, 407, Law, 538; Reg. v. Davison, 3 Fost. & 651; II, 1121, 1123, 1124; Crim. Pro., F. 350, 8 Cox, C. C. 860; Conway v. I, §§ 533, 935, 950c, 1141; Stat. Crimes, Reg., 1 Cox, C. C. 310; Reg. v. Bird, § 131. 5 Cox, C. C. 11; Reg. v. Connell, 6 ^Eex v. Frith, 23 How. St. Tr. 307, Cox, C. C. 178; Rocco v. S., 87 Miss. 311; P. v. Kleim, 1 Edm. Sel Cas. 13, 357; Grant v. P., 4 Parker, C. C. 527, 15; Com. v. Hathaway, 13 Mass. 299. 539; P. V. Cramer, 5 Parker, C. C. 171. The oath in the case last cited had 'See, for demurrer to replication, the words "according to your evi- 4 Chit. Crim. Law, 536. Joinder in dence and knowledge." I see no demurrer to replication, 4 Chit, reason to suppose that any one form Crim. Law, 537; Rex v. Knowles, of words is indispensable. And com- Trem. P. 0. 11, 14 Rejoinder, 4 Chit, pare with Rex v. Pritchard, 7 Car. & Crim. Law, 453; Rex v. Edwards, P. 303. Trem. P. C. 193, 194. Sur-rejoinder, ^ For a form, see Archb. PL & Et. Eei~w Amery, Trem. P. C. last page. (19th ed.) 153. ' For the direct expositions of the 603 §§ 1061, 1065.] BEFOEE AND ATTEE. X. The Change of Yenue.' [book IV. § 1064. Differences — Forms. — The practice on this subject is statutory, and it differs greatly in our respective states. Therefore it will be judicious here simply to refer to places where forms may be found.' XI. The Application foe Contintjanoe.' § 1065. How the forms. — While the forms for this proceed- ing are, in the main, substantially the same in our different states, they are simple, and are attended with no difficulties not explained in the other volumes of this series. It will, there- fore, suffice simply to refer to places where they may be found.* 1 For the direct exposition of this ' For the direct expositions of this proceeding, see Crim. Pro., I, §§ 68-76. Incidental, Crim. Law, I, § 995; Crim. Pro., I, §§ 50, 106, 1023a, 1355; Stat. Crimes, g§ 112, 144, 198, 306, 587, 588, 599. 2 4 Chit. Crim. Law, 298. Alabama. — Taylor v. S., 48 Ala. 180, 182. And see Childs v. S., 55 Ala. 25; Goodloe v. S., 60 Ala. 93. California. — P. v. Mahoney, 18 Cal. 180. Florida.— Irvin v. S., 19 Fla. 873, 873. Illinois. — Barrows v. P., 11 111. 131 ; Eafferty v. P., 66 111. 118, 119. Indiana. — Gordon v. S., 59 Ind. 75. Iowa. — S. V. Clarke, 46 Iowa, 155; S. V. Canada, 48 Iowa, 448. Missouri. — S. v. Wetherford, 25 Mo. 439. North Carolina. — State v. Hill, 72 N. C. 345. Texas. — Harrison v. S., 3 Tex. Ap. 558, 560. And see Webb v. S., 9 Tex. Ap. 490, 504. proceeding, see Crim. Pro., I, gg 951- 951c. Incidental, Id., §§ 369,- 730, 870a, 1033a. ■< 4 Chit. Crim. Law, 293-296; Eex V. Heatb, 18 How. St. Tr. 1. And see Reg. V. Burke, 10 Cox, C. C. 519, 520. J7Zmots.— Moody v. P., 20 111.315; Richardson v. P., 31 111. 170; Steele u P., 45 IlL 152; Wilhelm v. P., 73 111. 468. Indiana. — Gross v. S., 2 Ind. 135; Binns v. S., 38 Ind. 377. Iowa. — S. V. Painter, 40 Iowa, 298. Michigan. — P. v. Vanderpool, 1 Mich. (N. P.) 73; S. v. Maguirej 69 Mo. 197, 198. New York.— 7. v. Baker, 3 Abb. Pr. 43, 43. Texas.— Bruton v. S., 21 Tex. 337; Shanks v. S., 35 Tex. Supp. 336; Dink- ens V. S., 42 Tex. 350; Austin u S.,43 Tex. 345, 346; Perkins v. S., 1 Tex. Ap. 114; Murry v. S., 1 Tex. Ap. 174 604 OHAPTEE XOY. THE RECORD.! § 1066. Elsewhere — Here. — In various other places in the volumes of this series, the manner whereby the materials out of which the record is constructed, consisting of the files of the court, the minutes of its orders and doings, and other docket entries, is stated. We are here to consider, in distinc- tion from these, the form of the final act of the court; namely, the record. § 1067. Diiferences. — On this subject, there are differences in the practice and forms in our several states.^ Therefore the reader will find it particularly convenient to have before him, in the order of the states, some — § 1068. References to records. — Not in every instance, in the places cited in the note, is the record complete. What the books furnish is here given.' § 1069. Concerning form. — The differences thus spoken of render impossible any form of the record acceptable in all the 1 For the direct expositions of the Reg. v. Hathaway, 14 How. St. Tr. record, see Grim. Pro., I, g§ 1340-1360. 690; Sanchar's Case, 9 Co. 114o; Rex Incidental, Crim. Law, I, § 468; II, v. Dowlin, 5 T. R. 311; Campbell v. §§531, 570, 596, 768, 785 ; Crim. Pro., I, Reg., 11 Q. B. 799, 800, 1 Cox, C. C. 269, §§ 4, 5, 125, 340-842, 364, 723-725, 815, 2 Cox, C. C. 463; Wright v. Reg., 14 816, 835, 836. 840, 858, 869a, 885, 888, Q. B. 148; Gregory v. Reg., 15 Q. B. 1133, 1282, 1285, 1368,1398-1400; II, 957 ; Rex U.Baldwin, 2 Leach (4th ed.), § 911; Stat. Crimes, §S 29, 37. 928, note, Russ. & Ry. 341, 3 Camp. iiCrim. Pro., I, g§ 1341, 1360. 265; Holloway v. Reg., 3 Den. C. C. 34 Chit. Crim. Law, 377-414, 433- 287; Mansell v. Reg., Dears. & B. 375, 442; 4 Went. PI. 41-44, 148-153, 322; 377; Reg. v. Newton, 3 Car. & K. 85, 6 id. 1; Rex v. Boucher, Trem. P. C. 92; Keen v. Reg., 2 Cox, C. C. 341; 150, 151; Rex v. Saxon, Trem. P. C. Ryalls v. Reg., 3 Cox, C. C. 36, 254; 157; Rex v. Pilldngton, Trem. P. C. Martin v. Reg., 3 Cox, C. O. 318; 182; Rex v. Fanshaw, Trem. P. C. O'Neill v. Reg., 6 Cox, C. C. 495, 496; 199; Rex v. Stone, Trem. P. C. 288; Latliamv. Reg., 9 Cox, C. C. 516,517; Rex V. Holies, Trem. P. C. 394; Bur- Reg. v. Fox, 10 Cox, C. C. 502; Reg. v. gess V. Coney, Trem. P. C. 315, 316; Flannigan, 33 U. C. Q. B. 593. Rex t'. Lancaster, 1 How. St. Tr. 39 (re- Alabama. — S. v. Greenwood, 5 versing a judgment of treason); Rex Port. 474; Vasser v. S., 32 Ala. 586; V. Mohun, 12 How. St. Tr. 950, 956; Young v. S., 39 Ala. 357; Moore v. S., 605 § 1070.] BEFOEE AND AFTEE. [book IV. states. So no endeavor will be made to supply such a form; but, instead of this, it is proposed to present here a familiar English precedent,' to enlarge it at a few places by adapting it to altered facts, and to explain all as we proceed. And though it should not be blindly copied, it " might," as observed by a learned judge, " aid clerks in making up such records, if they were disposed to read it and avail themselves of it." ^ The result would be, not an absolute uniformity in our states, but an improvement among all in what will remain in a measure diverse. §1070. Form.— It is,— Waewickshire, I [Caption.] — Be it remembered, tliat, at the general to wit. i session of the lord the king of oyer and terminer holden at Warwick in and for the said county of Warwick, on, etc., before Sir Michael Foster, knight, one of the justices of the said lord the king as- signed to hold pleas before the king himself, Sir Edward Clive, knight, one of the justices of the said lord the king, of his court of common bench, and others their fellows, justices of the said lord the king, assigned by letters- patent of the said lord the king, under his great seal of Great Britain, made to them the aforesaid justices and others and any two or more of them (whereof one of them the said Sir Michael Foster and Sir Edward CUve, 40 Ala. 49; Pomeroy v. S., 40 Ala. 63; Grund v. S., 40 Ala. 709; Hatch v. S., 40 Ala. 718; Perry v. S., 43 Ala. 21; Brazier v. S., 44 Ala. 387, 390. Arkansas. — Cole v. S., 5 Eng. 318; Sandford v. S., 6 Eng. 328. Florida.— Dixon v. S., 13 Fla. 631. Illinois. — Jumpertz v. P., 31 IlL 375; Schirmer u P., 33 111. 376. Louisiana. — S. v. Price, 6 La. An. 691. Massachusetts. — Com. v. Roby, 13 Pick. 496; Turns v. Com., 6 Met. 334; Green v. Com., 12 Allen, 155; Jen- nings V. Com., 105 Mass. 586; Com. v. Galligan, 113 Mass. 203, 304; Crimm V. Com., 119 Mass. 336, 338. Mississippi. — MoQuillen v. S., 8 Sm. & M. 587; Weeks v. S., 31 Miss. 490. Missouri— McKay v. S., 13 Mo. 493; Torney v. S., 18 Mo. 455; S. v. Allen, 64 Mo. 67, 69. And see S. v. Freeman, 31 Mo. 481, 483. New Jersey. — S. v. Gustin, 8 South- ard, 744, 749; S. v. Price, 6 Halst. 303; Berrian v. 8., 3 Zab. 9. New YorTc. — Lambert v. P., 7 Cow. 166; Morris v. P., 1 Parker, C. C. 441; Peverellyu P., 3 Parker, C. C. 59, 61; Stephens v. P., 4 Parker, O. C. 396; P. V. Cramer, 5 Parker, C. C. 171; P. V. Riley, 5 Parker, C. C. 401 ; Gardiner V. P., 6 Parker, C. C. 155, 186; P. v. Hackley, 24 N. Y. 74; Weed v. P., 31 N. Y. 465; Keefe v. P., 40 N. Y. 348. North Carolina. — S. v. Kimbrough, 3 Dev. 431; S. v. Moody, 69 N. C. 539; S. V. Driver, 78 N. C. 433. Pennsylvania. — Com. v. Stoever, 1 S. & R. 480; Com. v. Nesbit, 10 Casey (Pa.), 398; Scully v. Com., 11 Casey (Pa.), 511. See Crim. Pro., I, § 1341. Vermont.— S. v. C. D., N. Chip. 384, 386; Brackett v. S., 3 Tyler, 153, 155. Virginia. — Price v. Com., 31 Grat. 846. Uiiited States. — U. S. v. Plumer, 3 Cliff. 1. 1 4 BI. Com., Appendix. 2 James v. S., 45 Miss. 573, 581, 3 Morris St. Cas. 1741, 1751, Peyton, C. J. 606 OH. XOV.] THE EECOED. [§ 1070. the said lord the king would have to be one) to inquire (by the oath of good and lawful men of the county aforesaid, by whom the truth of the matter might be the better known, and by other ways, methods and means, whereby they could or might the better know, as well within liberties as without) more fully the truth of all treasons, misprisions of treasons, insur- rections, rebellions, counterfeitings, clippings, washings, false coinings, and other falsities of the moneys of Great Britain and of other kingdoms or dominions whatsoever; and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings and conventicles, unlawful uttering of words, unlawful assemblies, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negligences, concealments, maintenances, oppressions, champerties, deceits, and all other misdeeds, offenses and injuries whatsoever, and also the ac- cessories of the same, within the county aforesaid, as well within liberties as without, by whomsoever and howsoever done, had, perpetrated and com- mitted, and by whom, to whom, when, how and in what manner; and of all other articles and circumstances in the said letters-patent of the said lord the king specified, the premises and every or any of them howsoever concerning; and for this time to hear and determine the said treasons and other the premises, according to the law and custom of the realm of Eng- land; and also keepers of the peace, and justices of the said lord the king, assigned to hear and determine divers felonies, trespasses and other misde- meanors committed within the county aforesaid.^ [Oominencement],— by the oath of Sir James Thomson, baronet, Charles Roper, Henry Dawes, Peter Wilson, Samuel Rogers, John Dawson, James Philips, John Mayo, Richard Savage, William Bell, James Morris, Lawrence Hall and Charles Carter, esquires, good and lawful men of the county aforesaid, then and there impaneled, sworn and charged to inquire for the said lord the king and for the body of the said county, it is presented 2 [Indictment], — That Peter Hunt, late of the parish of Lighthorne in the said county, gentleman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fifth day of March, in the said second year of the reign of the said lord the king, at the parish of Lighthorne aforesaid, with force and arms, in and upon one Samuel Collins, in the peace of God and of the said lord the king then and there being, feloniously, wilfully and of his malice aforethought did make an assault; and that the said Peter Hunt, with a certain drawn sword, made of iron and steel, of the value of five shillings, which he the said Peter Hunt in his right hand then and there had and held, him the said Samuel Collins, in and upon the left side of the belly of him the said Samuel Collins, then and there felo- niously, wilfully and of his malice aforethought did strike, thrust, stab and • This Is the ordinary English cap- tions, Crim. Pro., I, §§ 656-667. And tion in a court of special and limited see ante, §§ 53-56. jurisdiction; but in this country, and 2 xhis commencement is a sort of probably even in England, less will minglingof commencement and cap- equally well sulHce and is common, tion. It is well enough, but no bet- and still less where the court is a ter than to let each stand separate superior one. See, for the explana- as at ante, §§ 53-63. 607 § 1070.] BEFOEE AND AFTEE. [bOOK IV. penetrate; giving unto the said Samuel Collins, then and there with the sword drawn as aforesaid, in and upon the left side of the belly of him the said Samuel Collins, one mortal wound of the breadth of one inch and the depth of nine inches; of which said mortal wound he the said Samuel Col- lins, at the parish of Lighthorne aforesaid in the said county of Warwick, from the said fifth day of March, in the year aforesaid, until the seventh day of the same month in the same year, did languish, and languishing did live: on which the said seventh day of March in the year aforesaid, the said Samuel Collins, at the parish of Lighthorne aforesaid, in the county afore- said, of the said mortal wound did die; and so the jurors aforesaid upqn their oath aforesaid do say, that the said Peter Hunt him the said Samuel Collins, in manner and form aforesaid, feloniously, wilfully and of his malice aforetliought did kill and murder, against the peace of the said lord the now king, his crown and dignity.^ [Warrant of arrest.] — Whereupon the sheriff of the county aforesaid is commanded that he omit not for any liberty in his bailiwick, but that he take the said Peter Hunt, if he may be found in his bailiwick, and him safely keep to answer to the felony and murder whereof he stands indicted.'^ [Returning indictment into court.] Which said indictment the said justices of the lord the king above named afterwards, to wit, at the delivery of the jail of the said lord the king holden at Warwick in and for the county aforesaid, on, etc., before the right honorable William Lord Mansfield, chief justice of the said lord the king, and others their fellows, justices of the said lord the king, assigned to hold pleas before the king' himself. Sir Sydney Stafford Smythe, knight, one of the barons of the exchequer of the said lord the king, assigned to deliver his said jail of the county aforesaid of the prisoners therein being, by the irproper hands do deliver here in court of record in form of the law to be determmed.3 [Arraignment.] — And afterwards, to wit, at the same delivery of the jail of the said lord the king of his county aforesaid, on the said, etc., before the said justices of the lord the king last above named and others their fellows aforesaid, here cometh the said Peter Hunt, under the custody of William Browne, esquire, sheriff of the county aforesaid (in whose custody in the jail of the county aforesaid, for the cause aforesaid, he had been before committed); being brought to the bar here in his proper person by the said sheriff, to whom he is here also committed. And forthwith being demanded concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, he saith * [The plea interposed by the defendant, or 1 Comparing this indictment with ence of the defendant in court ap- ante, § 520, and chapters in Crim. pears of record, anything relating to Pro., II, " Homicide," we see that it the arrest or warrant of arrest need has a great deal of surplusage. Still also appear. And see Crim. Pro., I, the record should contain the indict- § 1359. In fact it does not in all the ment, accurately recited, as found records. by the grand jury, with no improve- ' With us, this matter will, in gen- ments or corrections. And see Crim. eral, be different Crim. Pro., I, Pro., I, § 13ii5. § 869a. 2 1 can discover no reason to sup- * In one of the precedents of the pose that, in a case where the pres- record before me (Keefe v. P., 40 G08 CH. XCV.] THE EECOED. [§ 1070. his demurrer, witli the subsequent pleadings, here follows. In the present instance, it was the general issue of not guilty; thus], — that he is not guilty thereof ; and thereof for good and evil he -puts himself upon the country:! and [Joinder in issue]. — John Blencowe, esquire, clerk of the assizes for the county aforesaid [with us, substitute the title of the prose- cuting officer], who prosecutes for the said lord the king in this behalf, doth the like.''' [Petit jury.] — Therefore let a jury thereupon here immediately come before the said justices of the lord the king last above mentioned, and others their fellows aforesaid, of free and lawful men of the neighbor- hood of the said parish of Lighthorne in the county of Warwick aforesaid, by whom the truth of the matter may be the better known, and who are not of kin to the said Peter Hunt, to recognize upon their oath, whether the said Peter Hunt be guilty of the felony and murder in the indictment aforesaid above specified, or not guilty; because as well the said John Blencowe, who prosecutes for the said lord the king in this behalf, as the said Peter Hunt, have put themselves upon the said jury. And the jurors of the said jury by the said sheriff for this purpose impaneled and re- turned, to wit, David Williams, John Smith, Thomas Home, Charles Noke.s, Richard May, Walter Duke, Matthew Lion, James White, William Bates, Oliver Green, Bartholomew Nash and Henry Long, being called, come; who, being elected, tried, and sworn to speak the truth of and concerning the premises, upon their oath say [Verdict],— that the said Peter Hunt is guilty of the felony and murder aforesaid, on him above charged in the form aforesaid, as by the indictment aforesaid is above supposed against him [and that said Peter Hunt, at the time of committing the said felony and murder, or at any time since to this time, had not nor hath any goods or chattels, lands or tenements, in the said county of Warwick, or else- where, to the knowledge of the said jurors ']. [Anything to say, etc.]. — And upon this it is forthwith demanded of the said Peter Hunt, if he hath or knoweth anything to say, wherefore the said justices here ought not upon the premises and verdict aforesaid to proceed to judgment and exe- cution against him; who nothing farther saith, unless as he before had said.* [Sentence.] — Whereupon, all and singular the premises being seen, N. Y. 348), the part corresponding to «Id., §§ 801, 1354. Subsequent so much of the text as follows the in- term. — Where the trial was at a sub- dictment down to this point is, — sequent term, the following, in the " And the said A. [the defendant], record in Keefe v. P., supra, was here afterwards, to wit, on, etc., at, etc., inserted: — before the said justice above named, '• And afterwards, to wit, at a court came in his own proper person, and, of, etc., held, etc., at, etc., on, etc., being brought to the bar here in his comes the said A. [the defendant], own proper person, and arraigned and the said B., esquire, district at- upon the said indictment, and hav- torney, likewise comes. Therefore, ing heard the said indictment read, etc.'' [proceeding similarly to the and being asked whether he de- text]. manded a trial upon the said indict- ' Where, as with us, there are no ment, answered that he does require forfeitures, the matter in these a trial thereon, and says." brackets does not appear. 1 Crim. Pro., I, §§ 788, 794a, 796. 797. < Crim. Pro., I, § 1358. 39 609 §§ 1071-1073.] BEFOEE AND AFTER. [bOOK IT. and by the said justices here fully understood, it is considered by the court here, that the said Peter Hunt be taken to the jail of the said lord the king of the said county of Warwick, from whence he came, and from thence to the place of execution on Monday now next ensuing, being the ninth day of this instant August, and there be hanged by the iieck until he be dead; and that afterwards his body be dissected and anatomized.' § 1071. Manslaughter and clergy. — Where the verdict is for manslaughter, and clergy is allowed, the record, according to this precedent, is, — That the said Peter Hunt is not guilty of the murder aforesaid, above charged upon him; but that the said Peter Hunt is guilty of the felonious slaying of the aforesaid Samuel Collins [and that he had not nor hath any goods or chattels, lands or tenements, at the time of the felony and man- slaughter aforesaid, or ever afterwards to this time to the knowledge of the said jurors 2]. And immediately it is demanded of the said Peter Hunt, if he hath or knoweth anything to say wherefore the said justices here ought not upon the premises and verdict aforesaid to proceed to judgment and execution against him: who saith that he is a clerk, and prayeth the bene- fit of clergy to be allowed him in this behalf. Whereupon, all and singu- lar the premises being seen, and by the said justices here fully understood, it is considered by the court here, that the said Peter Hunt be burned in his left hand and delivered. And immediately he is burned in his left hand, and is delivered, according to the form of the statute. § 1072. Not guilty and discharged. — On the verdict of not guilty, and the discharge of the prisoner by the court, the rec- ord is, — That the said Peter Hunt is not guilty of the felony and murder in the said indictment charged against him. Whereupon, all and singular the premises being seen and fully understood by the court here, it is considered and adjudged by the said court here that the said defendant be discharged of the premises and do depart hence without day in this behalf.' § 1073. Other forms. — The foregoing forms for the record cover the ordinary ground. One by comparing them with the elucidations in "Criminal Procedure" will see how any others, which he may require, should be; or, if still he is in doubt, he can consult the precedents cited to a previous section.* iThis is not exactly the better considered bythe said justice that the form of the sentence. Certainly it is said William Keefe, for the murder different in some of our states. Grim, and felony aforesaid, be imprisoned Pro., I, § 1311. Imprisonment.— In in the state prison at hard labor for Keefe v. P., supra, the sentence was the term of his natural life." to imprisonment for life, and it is re- 'Not used with us, as see a note to corded thus: — the last section. "Whereupon, all and singular the »1 Chit Crim. Law, 718, 719; 4 id. premises being seen, and by the same 386, 40'i justice here fully understood, it is * Ante, % 1068. 610 CHAPTER XCVL STEPS TO PROCURE A REVERSAL. § 1074. Introduction. 1075-1077. Motion for new trial 1078. Exceptions. 1079. Arrest of judgment. 1080-1083. Certiorari. 1083-1091. Writ of error. § 1074. What for chapter and how divided. — We shall con- sider, in the following order, I. The motion for a new trial ; II. Exceptions; III. The motion for arrest of judgment; lY. The writ of certiorari^ Y. The writ of error. I. The Motion foe a New Teial.^ § 1075. Form. — There is no exact form of words indispen- sable for this motion. Its terms may be, for example, — And now comes the said A. [the defendant] by X his attorney [or, in his own proper pei-son 2] and moves [or prays the court here] that the verdict of the jury be set aside and a new trial ordered, for the reasons that, etc. [particularizing the grounds for the motion].' 1 For the direct elucidations of the tomey, and such would seem to be a various methods of obtaining new reasonable method especially in the trials, see Grim. Pro., I, §§ 1263-1381. higher offenses. Incidental, as to new trial on motion, ^ gge, for precedents of this mo- Crim. Law, I, §§ 993, 993, 998, 1001- tion: — 1005, 1007-1009, 1036; Crim. Pro., I, Georgia.— Pinka.Td v. S., 30 Ga. 757. §§ 376, 730a, 887, 949&, 987, 998a, 999, Indiana.— Hamilton v. S., 34 Ind. 1016, 1038, 1065. 380. 2 As to whether the defendant Mississippi — Price v. S., 36 Miss. roust be personally present at the 531. hearing of this motion, see Crim. Montana. — Ter. v. Kennedy, 3 Pro., I, § 376. The motion, in practice, Mont. Ter. 530. appears commonly to be signed by North Carolina. — S. u Lipsey, 3 attorney; but there can be no objec- Dev. 485. tion to its being signed instead by United States. — U. S. v. TuUy, 1 the defendant himself, or signed by Gallis. 247, 350. him and countersigned by his at- 611 §§ 1076-1078.] BEFOEE AND AFTER, [bOOK IV. § 1076. Affidavit. — Where the defendant's motion rests in whole or in part on new facts, he should show them by affi- davit. Its form will vary with the cases, and be obvious.' § 1077. Order granting motion. — Where the court grants the motion, its order may be, — Upon hearing counsel on both sides, it is ordered that the verdict of guilty in this case heretofore [or, on, etc.] rendered be set aside, and a new trial had.2 II. Exceptions.' § 1078. How. — The form for the exceptions, or bill of excep- tions, is regulated by no technical rules. It should clearly set out the matter complained of, and, in its formal parts, conform to the ordinary practice of the particular court. The following form may be readily adapted to the practice of different courts: * [Venue.] [Title of cause.] Bill of Exceptions. Be it remembered that upon the arraignment of the prisoner at the term of the circuit court of the said county of in said state of , and before pleading or taking any other steps in this cause, the defendant, by his counsel, moved the court \here insert motion to quash or any other pre- ' For a form of afiBdavit, see Rose- Michigan. — P. v. McKinney, 10 borough V. S., 43 Tex. 570. Mich. 54, 60. 2 Archb. Grim. PL & Ev. (19th ed.) Montana.— Ter. v. Drennan, 1 197. See 4 Obit. Grim. Law, 344 Mont. Ter. 41, 42. 3 Grim. Pro., I, § 1365. O^w.— Poage v. S., 3 Ohio St. 329; * Alabama.— Jnigev. S.,58 Ala. 403, Nichols v. S., 8 Ohio St 485; Moore v. 403 (motion to establish bill of ex- S., 12 Ohio St. 387; Stockwell v. S., 37 ceptions). Ohio St. 563. California. — P. v. Keenan, 13 CaL Tennessee. — Ward v. 3., 1 Humph. 581. 353. Indiana.— Jenks v. S., 39 Ind. 1; Texas. — Lister v. S., 3 Tex. Ap. 17^ Cluck V. S., 40 Ind. 363, 367. 19; Dempsey v. S., 3 Tex. Ap. 429; lowa.— S. V. White, 47 Iowa, 555. Berkley v. S., 4 Tex. Ap. 133; Hatch Kansas.— S. v. Bybee, 17 Kan. 463, v. S., 8 Tex. Ap. 416, 418. 464 Virginia. — Finn v. Com., 5 Rand. ZoMmano.— S. v. Cammeyer, 8 La. 701; Haynes v. Com., 38 Grat. 943; An. 313; S. v. Patten, 10 La. An. 399; Johnson v. Com., 39 Grat. 796, 799^ S. V. Garvey, 38 La. An. 935; S. v. Kinney r. Com., 30 Grat. 858; Mitchell Cooper, 33 La. An. 1084 v. Com., 33 Grat. 845. Maine.— S. v. Smith, 67 Me. 338. West Virginia.— 8. v. Strauder, 11 Massachusetts.— Com. v. Tivnon, 8 W. Va. 745, 782-793; S. v. Hughes, 2Z Gray, 375. W. Va. 743, 744 613 OH. XCVI.J STEPS TO PEOCUEE EEVEESAL. [§ 1078. liminary motions that may he made in the cause, or if any affidavits, proofs or documents are offered in support of said motion, here insert the same\, which motion was by the court overruled and denied. To which ruling and decision of the court, the defendant, by his counsel, then and there ex- cepted. Be it further remembered that on the trial of this cause on the day of , A. D. 19—, at the term, A. D. 19 — , of the said circuit court, the people, to maintain the issue on their part, called as a witness E. F., who, being duly sworn, testified as follows: [here insert evidence of the wit- ness and all other evidence given by the people]. [Where it is desired to preserve objection and exception, proceed:] And thereupon the counsel for the people [or the commonwealth, as the case may be] asked the witness the following question [here insert question], to which question the defendant, by his counsel, then and there objected for the reason [here insert reasons for objection]; but the court overruled the defendant's objection and per- mitted the question to be answered, to which ruling and decision of the court the defendant, by his counsel, then and there excepted, and there- upon the witness testified: [here insert answer of witness, etc.]. And thereupon the counsel for the people [or cojnmonwealth, as the case may be] offered in evidence [here insert description of documentary evi- dence as marked exhibit ], to which offer of the people the defendant, by his counsel, then and there objected for the reason [here insert reason], but the court overruled the defendant's objection and permitted the same to be read in evidence in words and figures as follows: [here insert instru- ment in exact words], to which ruling and decision of the court in permit- ting the same to be read in evidence, the defendant, by his counsel, then and there excepted. And the said defendant, to maintain the issue on his part, called as a wit- ness G. H., who, being duly sworn, testified as follows: [here insert the testi- mony of the witness and such other evidence as is given by the defendant.] The foregoing is all the evidence offered or introduced by either of the parties. Thereupon the court at the instance and request of the people, by the state's attorney, instructed the jury as follows: [here insert the instructions given for the people]; to the giving of all and each of the said instructions for the people, the defendant, by his counsel, then and there excepted. And thereupon the court gave the following instructions at the instance and request of the defendant: [here insert the instructions given for the peo- ple]. And the counsel for the defendant then and there also requested the court to give to the jury the following additional written instructions for the defendant: [here insert the additional instructions as asked to be given], which the court refused to give as requested, but modified the same so as to read as follows: [here insert the instructions as modified], and then gave and read the same as modified to the jury. To which ruling and decision of the court in refusing to give such instructions and each of them as asked, and to the modifications of such instructions and each and every modification thereof, and the giving of such instructions as modified, the defendant, by his counsel, then and there excepted. And the counsel for the defendant then and there requested and asked 613 § 1079.] BEFOEE AND AFa'EE. [bOOK IV the court to give to the jury the following written instructions for and on behalf of the defendant: [here insert instructions which the defendant asked the court to give that the court refused to give]. But the court re- fused to give these instructions or any or either of them to the jury, to which ruling and decision of the court in refusing to give and read the same to the jury, the defendant, by his counsel, then and there excepted. The foregoing instructions given as asked and those given as modified are all the instructions given on the trial of the case. And thereupon the jury rendered a verdict against the defendant of guilty. And whereupon, on a subsequent day of the term before any judg- ment was entered on said verdict, the said defendant, by his counsel, moved the court to set aside the verdict of the jury and for a new trial of the case upon the grounds and for the reasons following, viz.: [here insert the grounds of the motion]. [In case affidavits or other documents are read in evidence in support of the motion, here insert the same.] The court, after hearing of said motion of the defendant to set aside the verdict of the jury and for a new trial, denied the same and rendered judgment upon the said verdict, to which ruling and decision of the court, in overruling and deny- ing said motion, the defendant, by his counsel, then and there excepted. And for as much as the matters set forth do not fully appear of record, the defendant, by his counsel, tenders this bill of exceptions and prays that the same may be signed and sealed by the judge of this court pursuant to the statute in such case made and provided, which is done accordingly this day of , A. D. 19—. , Judge. [Seal.] III. The Motion in Aeeest of Jitdgment.' § 1079. How the form. — It being competent for the court, on seeing cause, to arrest a judgment without motion,'' no one form for the motion can be or is indispensable. Even it has been permitted to be made orally and informally by the de- fendant when called up for sentence.' But the better and com- mon course is to present it, with its reasons, in writing; as, for example, — And now, after verdict against the said A. and before sentence, comes the said A. in his own proper person [or, by X. his attorney], and moves the court here to arrest judgment herein and not pronounce the same, be- cause of manifest errors in the record appearing; to wit [specifying them], and because no judgment against him the said A. can be lawfully rendered on said record.* 1 Direct expositions, Crim. Pro., I, ^Crim. Pro., I, § 1283. §§ 1382-1288. Incidental, Crim. Law, 3 Rex v. Home, 30 How. St. Tr. 651, I, §§ 998-1000; Crim. Pro., I, §§ 43, 764, 773. And see Rex v. Wadding- 369, 277, 424, 443, 470, 813, 887-889, ton, 1 East, 143, 146. 1038, 1393, 1368, 1370: Stat. Crimes, < For precedents, see — § 347a. Alabama.— Morgan v. S., 48 Ala. 65. 614 OH. lOVI.] STEPS TO PEOOUEE EEVEE8AL. [§§ 1080-1082. lY. The Weit of Ceetioeaei.^ § 1080. In general. — The practice, as to the writ of certi- ora/ri^ is explained in various books of practice, so that there is no necessity of incumbering these pages therewith. § 1081. Removing for trial. — In England and a very few of our states, this proceeding is employed for the removing of indictments from the lower courts for trial in the higher.^ Were such use of the writ within the scope of the present chapter, a simple reference, as now, to places where if and its attendant forms may be found,' would suffice, so seldom is it required by American lawyers. § 1082. After conviction — And special cases. — After con- viction and sentence, after a judgment in habeas corpus, between conviction and sentence, and in other circumstances similar to these, this writ is often employed. To set out the proceed- ings in full in these various cases would require considerable space, and less would be of little service to the practitioner. So a reference to places where they may be found must suffice.* JVorida.— Dixon v. S., 13 Fla. 631. Trem. P. C. 807; Rex v. Lever, Trem. Georgia.— B. v. Cuthbert, T. U. P. P. C. 320, 831; Rex v. Hoopes, Trem. Charl. 13; Long v. S., 13 Ga. 393, 310; P. C. 558; Rex v. Read, Trem. P. C. Jordan v. S., 60 Ga. 656. 559. Maine. — S. v. Murphy, 73 Me. 433. New York. — P. v. Van Santvoord, Massachusetts. — Com. v. Hardy, 3 9 Cow. 655; P. v. Tompkins, 1 Parker, Mass. 303; Com. v. Galligan, 113 Mass. C. C. 334; P. v. Tliurston, 3 Parker, 203, 205. O. 0. 49; McGuire v. P., 2 Parker, C. Texas.— Quitzow v. S., 1 Tex. Ap. C. 148; P. v. Benjamin, 3 Parker, C. C. 47, 51; Ware v. S., 3 Tex. Ap. 547. 301; P. v. Cavanagh, 3 Parker, C. C. iFor the direct expositions, see- 650; P. v. Carroll, 3 Parker, C. C. 73; Crim. Pro., I, §§ 1375-1381. Incidental, P. v. Bogart, 3 Parker, C. C. 143 ; P. v. Id., § 1864. Adier, 3 Parker, C. C. 349; P. v. But- 2 Crim. Pro., I, § 1377. ler, 3 Parker, C. C. 377; P. v. Cun- 3 Archb. Crim. PI. & Ev. (19th ed.) ningham, 3 Parker, C. C. 531; P. v. 101-108; 4 Chit. Crim. Law, 346-353; Page, 8 Parker, C. C. 600; P. v. Mc- 6 Went. PI. 438; 3 Gude, Crown Praot. Cormack, 4 Parker, C. C. 9; O'Leary 187, 188; Rex v. Dickenson, 1 Saund. v. P., 4 Parker, C. C. 187; Stephens v. 134; P. V. RuIIoff, 3 Parker, C. C. 401, P., 4 Parker, C. C. 396; P. v. Riley, 5 408. Parker, C. C. 401; P. v. Nash, 5 Par- *2 Gude, Crown Pract. 39-41, 189- ker, C. C. 473; P. v. Gardiner, 6 Par- 191, 567, 568, 637; 4 Chit. Crim. Law, ker, C. C. 143. 134, 135, 196, 344, 245, 253-363, 419; 6 Fermonfc— Brackett v. S., 2 Tyler, Went. PI. 34; Rex v. Hambden, 153. 615 §§ 1083-1086.] EEFOEE AND AFTEE. [BOOK IV. Y. The "Weit of Eeeoe.' § 1083. Diversities. — The practice on writs of error is, in minor particulars, not quite identical in our states; admonish- ing the practitioner to look into the course of his own court, the rules of court, and the statutes, and take them for his guide where they differ from what is set down in a book of practice. Subject to this modification, the principal steps are, — § 1084. Attorney-general's fiat. — In England, the first step is to apply to the attorney-general for his fiat. If he assents, the form is for him to write after the words of the prceoipe " Let this writ issue," and sign his name.^ It is believed that in none of our states at present is the assent of the prosecut- ing or any other non-judicial officer essential.' But — § 1085. Petition for writ — Application to judge. — In some of the states, or m some circumstances, there is a petition to the court to grant the writ of error, or an application to a judge for leave to bring it, — the forms for which are simple and obvious.* § 1086. Form of writ. — The writ, admitting of minor va- riations to suit the particular case, is — The People of the State of, etc. [or the State of, etc., or the Common- wealth of, etc.]' to our Justices of, etc.. Greeting: Because in the record and proceedings, and also in the giving of judgment, in a certain indict- ment against A. for murder [or, etc., according to the fact], whereof by a certain jury of the county before you impaneled thereupon between us and the said A- he was convicted,* as it is said, manifest error has intervened, 1 For the direct expositions, see ^ Crim. Pro., I, § 1362. There have Crim. Pro., I, ■§§ 1361-1374. Inciden- been, and perhaps may be still, in tal, Crim. Law, I, §§ 1034, 1026; Crim. some of our states, remnants of this Pro., I, §§ 277, 448, 1026, 1039, 1367. English practice; as see, for exam- 2 For the proceedings, see Archb. pie, Lavett v. P., 7 Cow. 339; Com. v. Crim. PL & Ev. (19th ed.) 206, 207; 4 Capp, 12 Wright (Pa.), 53; S. v. Chit. Crim. Law, 415, 416. Archb., Fields, Mart. & Yerg. 137. New Crim. Pro. 199, states: "Ob- ^ For forms of petition, see 3 Morris, tain a certificate from counsel that St. Cas. 1838; S. v. Anderson, 3 Sm. thereiserror in the record; and upon & M. 751. Where a judge allows a producing that, and a verified copy writ of error, he generally does it by of the indictment or record, to the an indorsement on the writ itself, attorney-general, he usually grants * In most of the New York prece- his fiat." For a form of memorial to dents, the expression is " The People the attorney-general praying for his of the State of New York by the flat, seeDugdale v. Reg., Dears. 64, 78, grace of God free and independent." note. '' I suppose that the sole purpose of 616 GH. XOVI.] STEPS TO PEOCPEE EEVEESAL. [§ 108Y. to the great damage of the said A., as by his complaint we are informed; we, being willing that the error, if any there be, should be in due manner corrected, and full and speedy justice done to the said A. in this behalf, do command you that, if judgment be thereupon given, then you send to the justices of our court of, etc., distinctly and openly under your seal,i the record and proceedings aforesaid, with all things concerning the same, and this writ, so that we may have them before said court, on, etc. [stating the return day], that, the said record and proceedings being inspected, we may cause to be further done thereupon, for correcting the said error, what of right and of law 2 ought to be done. Witness, etc. [as in other writs].' § 1087. Coram nobis. — Where, as in the practice which pre- vailed in England when we derived thence our common law, the writ of error issues out of chancery, there is propriety in its commanding a common-law court to review its own judg- ment; yet there can be none in a tribunal's addressing the like command to itself. Still it is with us common in civil causes for a court of record to issue a writ of error to itself, called a this description of the record is iden- tification, therefore that which is mi- nute enough for such object will suffice. I have here followed in sub- stance the form in Mansell v. Reg., 8 Ellis & B. 54, compared with that in 2 Gude, Crown Praot. 207, and vari- ous others. The description in some of the precedents descends further into the particulars. In P. v. Cyphers, 5 Parker, C. C. 666, and some others, it is shorter. iln most of the English prece- dents, and in ours in proper circum- stances, the expression here is "under your seals or the seal of one of you." 2 The English form here, followed with the proper substitution of names in some of our states, is " what of right and according to the law and custom of our realm of England." ' The precedents, from the earliest times, are alike in their entire sub- stance, but there are slight verbal differences. This form is the result of a comparison of considerable num- bers. For precedents see Archb. Grim. PI. & Ev. (19th ed.) 308; 4 Chit. Crim, Law, 416-420, 434; 2 Gude. Crown Pract. 207; Rex v. Fanshaw, Trem. P. C. 199; Rex v. Stone, Trem. P. C. 288; Rex v. Holies, Trem. P. C. 294, 305; Rex v. Hambden, Trem. P. C. 307, 313; Rex v. Walcot, 9 How. St. Tr. 519, 560; Rex v. Wilkes, 19 How. St. Tr. 1075, 1086; 4 Bur. 3527, 2535; Rex v. Perin, 2 Saund. 389; Mansell v. Reg., 8 Ellis & B. 54; Lev- erson v. Reg., Law R. 4 Q. B. 394, 11 Cox, C.C. 386 (in substance); Wright V. Reg., 2 Cox, C. C. 91; Duval w Reg., 14 L. C. 53; Whelan v. Reg., 28 U. C. Q. B. 2; Cornwall v. Reg., 33 U. C. Q. B. 106. Maryland.— S. v. Boyle, 25 Md. 509. Mississippi. — 2 Morris, St. Cas. 1840. New York. — Yates v. P., 6 Johns. 337; Lake v. P., 1 Parker, C. C. 495; Peverelly v. P., 3 Parker, C. C. 59; P. V. Thoms, 3 Parker, C. C. 256 (in be- half of the people); Coats v. P., 4 Parker, C. C. 662; Lowenberg v. P., 5 Parker, C. C. 414; P. v. Cyphers, 5 Parker, C. C. 666. United States.— ;XJ, S. v. Plumer, 3 Clif. 1. 617 § 1088.] BEFOEE AND AFTER. [book ly. writ of error coram nobis or coram voiis, or a writ in the nature of such writ, commonly or always for the correction of some error of fact; and this practice appears to extend even to crim- inal cases.' As to the form, Tidd observes of the writ as given in the last section, that it "consists of two parts: first, a cer- tiorari to remove the record, and, secondly, a commission to examine it. But," he continues, " in a writ of error coram nobis or vobis; the certiorari part, being unnecessary, is omitted." ' The writ, therefore, is easily constructed from the form in the last section.' § 1088. Return. — The return is ordinarily indorsed on the writ itself, with the record in question attached thereto, and the whole transmitted to the higher court. Its form will be more iCrim. Pro., I, § 1369; "Webster v. Com., 5 Gush. 386; Green v. Com., 13 Allen, 155. 22 Tidd, Pract. (8th ed.) 1198. 3 For forms in civil oases, see Smith V. Kingsley, 19 Wend. 620; Camp u Bennett, 16 Wend. 48, 50. Accord- ing to a former practice in England, now apparently discontinued, but probably permissible still, the ag- grieved person might, instead of pro- curing his writ of error addressed to the lower tribunal, first remove the record by certiorari into the king's bench, then bring his writ of error coram nobis upon such removed rec- ord. Reg. V. Foxby, 1 Salk. 266, 6 Mod. 178, Holt, 274; Archb. New Crim. Pro. 200 ; 2 Hale, P. C. 310. The proceeding appears in full in Rex v. Hambden, Trem. P. C. 307. The writ of error coram nobis therein is, — " To our Justices assigned to hold Pleas before us. Greeting: Because m the record and process, and also in the giving of judgment, of a certain indictment before our justices as- signed to deliver our jail of New- gate of the prisoners being therein, against A. of the parish, etc., in the county of Middlesex, gentleman, for high treasons against the person of the lord Charles the Second, late king of England, our most dear brother, whereof before them he lately was attainted, as it is said, manifest error hath intervened to the great damage of the said A., as we have understood from his com- plaint; we, willing that the error, if any there hath been, in the due man- ner be corrected, and that full and speedy justice be done to the said A. in this behalf, command you, that, if judgment be thereupon given, then that, inspecting and examining the record and process aforesaid, which we have caused to come before us for certain causes, and which before us now remain, as it is said, we may further cause to be done thereupon for correcting the error that which of right and according to the law and custom of our kingdom of Eng- land shall be to be done. Witness our- self at Westminster, the fourteenth day of May, in the second year of our reign." This proceeding, if it does not con- tradict what the books sometimes say is the rule, that error coram nobis lies only for error of fact, shows it not to be without exception. 618 OH. XOVI.] STEPS TO PEOOUEE EETEESAL. [§§ 1089, 1090. or less modified by the circumstances, and there is nothing in it demanding special consideration.' § 1089. Diminution of record and certiorari. — A party not satisfied with the record returned, and alleging diminution of record, may in a proper case have a writ of certiorari to supply the defect.^ In one instance the form was, — The people, etc. We being willing, for certain causes, to be certified of the exact words and form of the verdict rendered against A. in your said court, upon an indictment against him, which said indictment and the judg- ment thereon have been certified to our supreme court in answer to the writ of error issued in behalf of said defendant, do command you that, hav- ing searched the records of said court of sessions, the exact words and form of the verdict rendered against said A., and whether that is the only ver- dict rendered against him in said court, you certify to our justices of our supreme court of judicature, without delay, at the capitol, in the city of Albany, fully and entirely as the same remains on record in your said court, and this writ. Witness, etc' § 1090. Assignment of errors. — The usual form is, in sub- stance, — And now comes into court here the said A., in his own proper person {or, by X his attorney], and says that, in the record and proceedings aforesaid, and also in the rendering of the judgment aforesaid, there is manifest error in this, that the indictment aforesaid and the matter therein con- tained are not sufficient in law to warrant the judgment against him now given, or to convict him of the, etc. [say what], aforesaid. There is also error in this, that, etc. [proceeding to particularize]. And [if new matter is introduced, not othervrise] this he is ready to verify. And the said A. prays that the judgment aforesaid, for the errors aforesaid, may be reversed and annulled and absolutely held for nothing, and that he may be restored to all things which he has lost by reason of the premises aforesaid.* 1 Forms appear at many places al- sections, Archh, Crim. PL & Ev. (19th ready cited. For the common Eng- ed.) 311; 2 Gude, Crown Pract. 209, lish form, see Archb. Crim. PI. & Ev. 310; 4 Chit. Crim. Law, 320-236; Rei (19th ed.) 209, 310; 3 Gude, Crown v. Stone, Trem. P. C. 288; Rex v. Pract. 208; 4 Chit. Crim. Law, 417, Doughty, Trem. P. C. 285, 286; Rex v. 420; Rex v. Stone, Trem. P. C. 388. Hambden, Trem. P. C. 307; Rex v. American, Lowenberg v. P., 5 Parker, Wilkes, 19 How. St. Tr. 1075, 1086, 4 C. C. 414, 416; Yates v. P., 6 Johns. Bur. 2527, 2536; Williams v. Reg., 1 837,839. Cox, C. C. 179; Campbell v. Reg., 11 2 Crim. Pro., I, § 1379. Q. B. 799, 800, 1 Cox, C. C. 269; Martin 8 O'Leary v. P., 4 Parker, C. C. 187, v. Reg.,8 Cox, C. C. 318, 335; O'Brien v. 189. But see as to New York, Hayen Reg., 3 Cox, C. C. 860, 878; O'Neill v. V. P., 3 Parker, C. C. 175. For a form Reg., 6 Cox, C. C. 495, 498; Whelan of motion suggesting diminution, see v. Reg., 38 U. C. Q. B. 3; Cornwall v. Crimm v. Com., 119 Mass. 836, 828. Reg., 33 U. C. Q. B. 106. * For forms, see, besides various Delaware. — Gray v, S., 3 Harring. other places cited in the preceding (Del.) 76, 77. 619 § 1091.J BEFOEE AND AFTEE. [book IV. § ibOl. Other forms^ — not differing from those used in civil causes, or not difBcuIt of construction, might be some- times convenient; but, at the places referred to in connection with those already given, and in the books of civil practice, they can be readily found. Nor, though other topics may be added not quite unprofitably, is there any urgent occasion for them. So it is best that this chapter and the volume here close. Massachusetts. — Brien v. Com., 5 Met. 508; Turns v. Com., 6 Met. 234; Jeffries u Com,, 13 Allen, 145; Crimm V. Com., 119 Mass. 326, 337. Mississippi. — Byrd v. S., 1 How. (Miss.) 347; Kingw. S., 5 How. (Miss.) 730. New Jersey. — Donnelly v. S., 2 Dutoher, 468, 475. New York. — Hayen v. P., 3 Parker, C. C. 175. Texas. — Harris v. 8., 1 Tex. Ap. 74 77. 630 INDEX TO FORMS AND SUBJECTS. - References are to sections. ABANDONING ANIMAL, indictment for, 358. ABANDONMENT (see Dependent Person; NEaLECTS), of child or helpless person, indictment, 218, 319, 753. indictment for murder of new-born child by, 536. of animal, 358. ABATEMENT, forms of pleas in, 1037-1039. of nuisance, 1013. ABDUCTION OF WOMEN (see Seduction and Abduction op Women)^ indictment for conspiracy to procure, 296, note. ABETTORS (see Accessoby; Accessory After; Accessory Before; Participants; Principal Second Degree; Solicitation), allegation against, in mayhem, 743. ABORTION, indictments for; namely, — formula, and precedents cited, 138. including assault, common-law precedent, 139. administering with intent — attempt, 140. particular forms for administering drug, etc., 141. same for operating with instrument, 142 and note, for causing death by, 143. solicitation to, cited, 143, note, indictment for murder of child through, 537. for murder of mother through, 538. ABROAD (see Foreign Country; Out of Country). ABSENCE FROM STATE, allegation of, to avoid bar of statute of limitations, 88. "ABUNDANT CAUTION," matter introduced into, precedents for, 17. ABUSE (see Carnal Abuse). ABUSIVE LANGUAGE, indictments for uttering, 344, 858, 859. ACCEPTANCE, indictment for forging and uttering an, 473. ACCEPTING CHALLENGE, to duel, precedent for, cited, 381. ACCESSORY, exposition of, 113-133. in arson, precedents cited, 190. same in burglary, 256. forms of allegation against, in homicide, 539. 631 ACO] INDEX TO TOEMS AND SUBJECTS. [AGA References are to sections. ACCESSORY AFTER, formula and forms against, with precedents cited, 114, 118. the like in misdemeanor and treason, 123. ACCESSORY BEFORE, formula and forms against, with precedents cited, 114 116j 117. before conviction of principal, 116. after conviction of principal, 117 and note. the like in misdemeanor and treason, 119-121. indictment against, in self-murder, 953. ACCOUNTING, precedents for not, cited, 687. ACCUSTOMED RANGE, driving cattle from their, 167. ACQUITTANCE, forging and uttering an, precedents cited, 471. ACTOR, indictment for conspiracy to ruin, by hissing, 303. ACTS (see Overt Acts). ACTS OF BANKRUPTCY, indictments for, cited, 233. ADDITION, allegations of the, 74, 75, 78. plea of wrong, or none, precedents cited, 1039. ADMINISTERING POISONOUS DRUG, indictment for abortion by, 139-141, 213, 533, 714 assault by, and precedents cited, 318. ADMINISTRATION, perjury in application for, precedent cited, 876w ADMINISTRATOR, form for allegation of name of, 79. ADULTERATE MANUFACTURE, indictment for conspiracy to, 31 L ADULTERATED FOOD (see Noxious and Adulterated Food). ADULTERATED LIQUORS, indictment for selling, 771. ADULTERATED MILK, indictment for selling, 770. ADULTERY (see LrvofG in Adultery), exposition of, 147-163. indictments for, 148-150, 153-155. formula, and precedents cited, 148. various common forms, 149. joint allegations, against both parties, 150. living in, 153-155. indictment for conspiracy to commit, 394, precedent cited, 288, note. precedents cited for conspiracy to charge with, to extort money, 300, note. ADVERTISING LOTTERY TICKETS, indictment for, 679, AFFIDAVIT (see False Affidavit), indictment for perjury in, 873, 874. See PeejueY. to sustain motion for new trial, 1076. AFFRAY, exposition of, 924 indictment for, 935. AGAINST THE PEACE, conclusion of, 66, 67. AGAINST FORM OF STATUTE, conclusion of, 66. repeated in each count, 67. 623 ago] index to forms and subjects. [aeh Eeferencea are to sections. AGGRAVATED ASSAULT, indictments for. 303, 211, 213-336, 558. AGREEMENT (see Contract). AIDING AND ABETTING (see ACCESSORY, ETtt), a duel, precedent cited, 881. AIR (see Injurious or Offensive Air). ALARM OF FIRE (see False Alarm op Fire), ALARMING PERSON, precedent for, cited, 860. ALLEGATIONS, some needless pointed out, 43, 49. ALLEGIANCE (see Oath op ALLEaiANOE), how allege in treason, 937, 988, notes. ALTERING BOOKS, bankrupt's, precedents cited, 237. ALTERING COURSE OF WAY, indictment for, cited, 1015, note. ALTERING INSTRUMENT, indictment for forgery by, 458, 474. AMMUNITION (see Fire-arms and Ammunition). ANGER, indictment for language calculated to arouse to, 859. ANIMALS (see Cruelty to Animals; Killing Cattle), indictments for offenses relating to; namely, — abandoning, 858. illegal marking, and altering marks, 164-166. . unlawful driving, 167, 168. unlawful herding, 169. connected with purchasing and slaughtering, 170. neglecting to restrain, 171. pound breach, 174, 175. taking up and using estray, 176. keeping dogs without license, 177. precedents for larceny of, cited, 606. indictments for malicious mischief to, 709-717. ANSWER (see False Answer). ANYTHING TO SAY, form of the question of, in record, 1070. APPOINTMENT TO OFFICE, corrupt conduct relating to, precedents cited, 394. APPREHENSION (see Arrest). APPRENTICES, precedent for conspiracy to prevent one from taking, cited, 308, note. for offenses relating to, cited, 577, note. AQUEDUCT PIPE, indictment for destroying an, 729. ARBITRATORS AND REFEREES, indictment for bribing, 250. perjury before, precedents cited, 876. ARMED (see Rmma Armed), entering assembly, indictment for, 267. for robbery by one being, 935. ARMS (see Taken up Arms). ARRAIGNMENT, how in record, 1070. ARREST, indictment for wounding, etc., to prevent, 19, note, refusing to assist oflBcer concerning an, 845, 846L 623 aee] indei: to foems and subjects. [ass References are to sections. ARREST OP JUDGMENT, motion in, 1079. ARRESTED, indictment for having dangerous weapon when, 268. ARSENIC, indictment for endangering life by administering, 213. ARSON, exposition of, 178-199. indictment for substantive; namely.^ common-law precedent, 179. formula, and precedents, cited, 180. in burning a mill, 181. an uninhabited house, 182. public building, — church, 183. building, to defraud insurers, 184-186. one's own, to defraud insurers, 184, 185. another's, to defraud insurers, 186. goods, to defraud insurers, 187a. burning house with a person in it, 188. degrees, accessories, etc., 189, 190. attempts to commit, 191-195. own house to burn neighbor's, 192. old precedent for, 193, note, statutory felony of attempt, 193. another form of attempt, 194 solicitation to, 195. ARTIFICERS (see Workmen), conspiracy to seduce out of country, precedent cited, 312, nota ASSAULT (see Bodily Harm; Neglect), indictment for, on policeman, with intent, 19, note, abortion by, 139. on account of money lost at gaming, cited, 507. with intent to maim, 748. with intent to commit rape or carnal abuse, 910, 911. with intent to rob, 937. ASSAULT AND BATTERY (see PRiZE-FlGHTlNa), indictments for; namely, — common form at common law, 201. same with the particulars, 802. Indiana forms, and precedents cited, 205. formula and precedents cited, 208. forms not technical, 207-309. with dog, 208. by driving cart against carriage, 309. statutory forms cited, 310. with "deadly," "dangerous," etc., weapon, and precedents cited, 313. with poison, by administering, etc., and precedents cited, 213. inflicting grievous bodily harm, with precedents cited, 214 being armed with dangerous weapon, " felonious assaulter," and precedents cited, 215. aggravated, with intent to do bodily harm, 317. 6H ass] index to foems and subjects. [aut Eeterenoes are to sections. ASSAULT AND BATTERY (continued), by abandoning tielpless person, 218, 319. by abusing right of chastisement, 220. on two or more, 221. by two on each other, 222. attempts, 224; solicitations, 225. with ulterior intent, precedents cited, 826. mcident for conspiracy to commit, 292. ASSAULT WITH INTENT (see Assault; Attempt), indictment for, and precedents cited, 324, 336. to kill, formula and forms, with precedents cited, 558. ASSAULT ON OFFICER. Indictment for, 839. ASSEMBLY (see Disturbing Mebtlnq). ASSIGNMENT OF ERRORS, on writ of error, 1090. ASSIST OFFICER (see Refusing to Assist Officer). ASSOCIATION, indictment for conspiracy to compel workmen to join an, 305. ASSUMING OFFICE, indictments for, 848, 849. ATTACHMENT, form of, for contempt of court, 818. ATTEMPT (see Assault with Intent; Endeavor to Break; Possess- ing; Solicitation), general forms for charging the, 100-113. solicitation to crime, 105-107. committing one offense with intent to commit another, 108, 109. less than offense, with like intent, 110, 111. precedents for, cited, 106, 109, 111. to commit abortion, 138-140, note. to commit arson, indictment for, 192-195. burglary, indictment for, 358-361. to prevent one from voting, indictment for, 393. to obtain money by false pretenses, 434. in forgery and uttering, precedents for, cited, 479. in homicide, forms and formula for, with precedents cited, 558. indictments for, to commit larceny, 611-614. to commit suicide, 954 ATTORNEY (see Letter of Attorney; Prosecuting Officer), precedent against, for not paying over money, cited, 687. for practicing without license, cited, 1001. form of plea of not guilty by, 1049. AUTHORITY, cheating by false pretense of having, precedent cited, 435. precedents, considered as, 4. " AUTHORITY OF STATE," allegation of, in caption, fiO, 64 AUTREFOIS ACQUIT, 1042-1044 See Jeopardy Repeated. AUTREFOIS CONVICT (see Jeopardy Repeated). 40 635 'Bkl] INDEX TO FOEMS AND SUBJECTS. [bAY Eeferenoes are to sections. B. BAIL, precedents for conspiracy concerning, cited, 312, note, various official malfeasances relating to, cited, 688. BAILEE, indictment for statutory larceny by, 610. BAITING BULL, precedent for nuisance of, cited, 800, note. BANK, conspiracy to cheat, by overdrawing and false entries, cited, 398, note. BANK-BILL (see Fictitious Bank-note), indictment for forging, 465. for uttering, 466. for possessing, with intent to titter, 467. for larceny of, 603, 60-3. BANK-BOOK, for embezzlement of, precedent cited, 411. BANK-CHECK, for forging and uttering, cited, 469. BANK-NOTE (see Bank-bill). BANK OFFICER, for embezzlement by, cited, 411. BANKRUPTCY (see Acts of Bankruptcy), perjury in proceedings in, precedents cited, 876. full exposition, 230-239. BANKRUPTCY AND INSOLVENCY, precedents of indictments for offenses connected with, cited; namely, wilfully omitting from schedule, 231. not disclosing, etc., eflEeets, 233. acts of bankruptcy, 283. wrongful purchases and sales. 234 bankrupt not surrendering himself, 235. refusing examination, or answering falsely, 236. altering or mutilating account-books, 237. concealing books, 338. fraudulent insolvency, 239. BANKS OF CANAL, for injuring, cited, 730. BANNS OR LICENSE, solemnizing marriage without, indictment for, 736. BARRATRY, indictment for, 778, 779. BASTARDY, indictment for, 159. perjury in proceedings of, precedent cited, 876. BATTERY (see Assault and Battery), indictment for solicitation to, 235. BAWDY-HOUSE, indictments for; namely, — under the common law, 781, 783. house of ill-fame, against statute, 784. letting house for bawdry, 785, 786. , other forms of, precedents cited, 787. indictment for, including liquor-selling, etc., 831. BAYONET, for assault with, and precedent cited, 213. 636 bea] index to foems and subjects. [boy Eeferenees are to sections, BEATING fsee Cruel Beating of Animal), indictment for murder by, 520. assault by, and kicking, 302. BEING PRESENT AT PRIZE-FIGHT, offense of, 90L BEGGING, indictment for, 1004. And see 429. BELL-PUNCH LAW, indictment under the, 658. BETTING ON ELECTIONS, formula and precedents cited, 395. losing or winning by, 396. other forms for, 397, 398. BETTING ON GAMES, indictment for, 506. BIGAMY (see Polygamy). BILL-BROKER, for embezzlement by, precedent cited, 411. BILL OF EXCHANGE, indictment for forging and uttering, 468. for larceny of, 604 BILL OF SALE, for purchasing without, precedent cited, 170, note. BIRTH OF CHILD, for false statement as to, for registration, cited, 933. BITING OFF EAR, indictment for, cited, 745. BITING OFF NOSE, indictment for, cited, 745. BLACK ACT, indictment for killing animal contrary to, 709. BLANK INDICTMENTS (see Printed Blanks), indorsement on, for court flies, 73. BLASPHEMY AND PROFANENESS, common-law indictment for, 341. formula, and precedents cited, 243. on statute, 244. BODILY HARM, indictment for causing, 19, note. for inflicting, and precedents cited, 814 assault, with intent to inflict, 217. precedents for inflicting, cited, 694. BODY (see Dead Body). BOILING, offensive things, indictment for nuisance of, 829; precedents cited, &31. BOND, indictment for not giving, in bastardy, 159. BONE FACTORY, for nuisance of, cited, 831. BOOKS OF ACCOUNT (see Altering Books; Concealing Books; En- tries IN Books of Account). BOOTH, indictment for keeping, for indecent exhibition, 799. BOUGHT PROPERTY, for cheating by false pretense of having, cited, 425. BOUNDS, of land, indictment for removing, 734 BOWLING ALLEY, for unlicensed keeping of, cited, 507. indictment for keeping, on Lord's day, 670. for nuisance of keeping, 807, 808. BOY AT SCHOOL, for conspiracy to alienate from parents and marry, cited, 396, note. 637 bra] index to foems and subjects. [bdk References are to sections. BRAWL AND TUMULT, indictment for making, 826. BRAWLER (see Raileb and Brawler). BRAZIER, for nuisance of business of, cited, 831. BREACH OF PEACE (see Peace, Breaches of), BREAD (see Noxious and Adulterated Food), indictment for selling noxious, 763, 764 BREAK (see Endeavor to Break). BREAKING (see Burglary). BREAKING IN DAY-TIME, indictment for, 255. BREAKING AND ENTERING, for larceny with, cited, 58a BREAKING PRISON (see Prison Breach, etc.). BREAKING WINDOWS, indictment for, 857. BRIBERY, exposition, 245. indictments for; namely, — offering bribe to constable, at common law, 246. formula, and precedents cited, 247. election — bribery at common law, 248. same on statute, 249. bribery of arbitrator, 250. for conspiracy to procure election of one to oflBce through, cited, 312, note. BRIDGE (see Wat), precedent for destroying a, cited, 730. other precedents relating to, cited, 1023. BROKER, for doing business without license, cited, 1001. BUGGERY (see Sodomy). BUILDING (see Public Building), indictment for larceny from, 588. for injuring a, 727, 728. for nuisance for keeping, for selling liquor, 820. placing, in highway, 1015. in public square, 1024. BURGLARY, Indictments for; namely, — common-law burglary and larceny, 253. formula, and precedents cited, 254, note. breaking in the day-time, 255. against principals of second degree, and accessories, precedents cited, 256. allegation of, in night-time, 87. in statutory degrees of, precedents cited, 257. indictments for attempts; namely, — by solicitation, 258. unsuccessful endeavor to break, 359. taking impression of key, 260. possessing implements of, 261. indictment for conspiracy to commit, 288. 628 BUE] index to rOEMS AND SUBJECTS. [OAU Eeferences are to sections. BURIAL (see Sepulture), for conspiracy to prevent, cited, 313, note. indictment for usurping oflfice of coroner to procure, without in- quest, 848. BURNING (see Arson), indictment for murder by, 524. goods, malicious mischief of, 703. letters, etc., cited, 885. BURNING DEAD BODY, cited, 956, note. BUSINESS (see Noxious and Offensive Trades; Unlicensed Business), indictments for conspiracies to ruin men in their, 801-306 and notes, for carrying on unlicensed liquor-selling, 656. for various sorts of, on Lord's day, 663-669. BY-LAW (see Municipal By-law). 0. CALF, indictment for killing, too young to be vyholesome food, 769. CAMP MEETING, for disturbing, cited, 373. CANDIDATE FOR OFFICE, against, for advancing money for bribery, cited, 349, note. CAPTION FOR INDICTMENT, forms for the, and precedents cited, 53-56, 1070. CARCASSES OF ANIMALS, for rendering air impure by, cited, 813. CARDS, indictment for playing, on Lord's day, 670, note, for keeping, for gaming, 500. for playing at, for money, 490, 491. CARELESS NAVIGATION, for manslaughter through, cited, 530, note. CARNAL ABUSE (see Rape; Rape and Carnal Abuse of Children), indictments for, 907-909. CARRIAGE, indictment for assault by driving against, 209. CARRIER, for false pretense by, of having delivered parcel, cited, 435. indictment against, for unlawfully transporting liquor, 646. CARRYING CHALLENGE (see Challenging). CARRYING WEAPONS, indictments for offense of; namely, — at common law, 362. formula on statutes, and precedents cited, 263. concealed weapons, forms on statutes, 364, 365. privately, to terror, 366. going into assembly armed, 367. having dangerous weapon when arrested, 268. CART, for riding over one with a, cited, 533, note. CASTRATION, indictment for, cited, 745. CATHETER, procuring abortion by use of, 143 and note. CATTLE (see Animals; Driving; Injuring Cattle; Killing Cattle). CAUSING DEATH, by abortion, indictment, 143. 639 cee] index to foems and subjects. [com Eeferences are to sections. CERTIFICATE OF CHARACTER, for forgery of, cited, 475. CERTIORARI, precedents of writ and proceedings in, cited, 1080-1083. form of, in aid of writ of error, 1089. CHALLENGING (see Sending Challenge), to duel, indictments for, 378, 379. carrying and sending challenge, 381. CHAMPERTY AND MAINTENANCE (see Maintenance). CHANGE OF VENUE, forms of the proceeding for, cited, 1064. CHARACTER (see Certificate of Character). CHARITY (see Begging), for obtaining money by false pretense in, cited, 439. CHASTISEMENT, indictment for assault by excessive, 330. CHASTITY OF FEMALE, for verbal slander of, cited, 635. CHEATS (see False Pretenses). CHEATS AT COMMON LAW, indictments for; namely, — formula, and precedents cited, 278. common form for selling by false scales, 373. cheating by false dice, 374. by false marks on goods. 275. by fictitious bank-note, or other false writing, 276. falsely assuming character of merchant, 276, note, indictments for conspiracies to cheat, 386, 289, 291. CHILD MURDER, indictment for, and precedents cited, 378. CHILD UNBORN, indictment for conspiracy to murder, 287, note. CHILDREN (see Abandonment; Hating Child; Rape and Carnal Abuse of Children). CHOKING AND STRANGLING, indictment for murder by, 530. CHOSE IN ACTION, for obtaining, by false pretenses, cited, 437. CHURCH, indictment for arson of a, 183. for larceny from, cited, 588, nota CITY ORDINANCE (see Municipal By-law). CLAMS (see Oysters and Clams). CLERGY, record form of discharge on plea of, 1071. CLERGYMAN, for assault on, cited, 233, note. CLIPPING AND FILING COIN, indictment for, 835, note. COCK-FIGHTING, as cruelty to animals,' indictment for, 361. assisting at, precedents cited, 507. CODIFICATION. 14. COHABIT (see Continuing to Cohabit). COHABITATION, LEWD, indictments for, 153-158. COIN (see Counterfeiting; Lightening; Utterinq, etc.), for larceny of, cited, 593. COLLEGE (see Institution of Learning). COMBINED CAUSES, indictment for murder by, 535. 630 com] index to forms and subjects. [con Eeferenoes are to sections. COMBUSTIBLE AND DANGEROUS THINGS, indictments for; namely, — keeping explosives, wood naphtha, gunpowder, 788. keeping ferocious dog, 789. unruly bull, precedent cited, 789, note. COMMENCEMENT, of indictment, 58, 1070. information, 59, 60, 64 complaint before magistrate, 61, 63, forms for, cited, 58. of counts succeeding the first, 64. COMMISSIONERS OF ELECTION, malfeasances by, precedents cited, 391. COMMITMENT, form of, for contempt of court, 330, 331. COMMITTEE (see Legislative Committee). COMMON CARRIER (see Carriek). COMMON DRUNKARD (see Drunkard). COMMON GAMBLER, indictment for being a, 495. COMMON LABOR, indictment for, on Lord's day, 668, 669. COMMON NUISANCE (see Nuisance). COMMON PROSTITUTE, for being, cited, 834. COMMON SABBATH-BREAKER, indictment for being, 663 and note. COMMON SCOLD, indictment for being a. 793. COMMON SELLER, of liquor, unlicensed, indictment for being, 655. COMPOUND LARCENY (see Larceny). COMPOUNDING, formula for indictment, 133, 134. common-law form, 135. after steps taken, 136. on statute, penal offense, 137. conspiracy to, 800. COMPOUNDING MEDICINE, for negligently, cited, 757. CONCEALED WEAPON (see Carrying Weapons), indictment for carrying, 364, 365. CONCEALING BOOKS, bankrupt's, precedents cited, 338. CONCEALING EFFECTS, by bankrupt, precedents cited, 333. CONCEALMENT, allegation of, to avoid statute of limitations, 88. CONCEALMENT OF BIRTH OR DEATH, indictment for, and precedents cited, 378. CONCE.\LMENT OF GOODS (see Fraudulent Conveyances). CONCLUDING PART, of indictment, 66, 67. of information, 68, 69. in nuisance, 775. complaint on ordinance, 134, 171. CONCLUSION OF COUNTS, forms for the, 67. CONFESSION, for assault in touching one to extort, cited, 333, note. CONFIDENCE GAME, precedent for cheating by, cited, 431. CONFISCATION OF LIQUOR, precedents of proceedings for, cited, 645. 631 oon] index to forms and subjects. [con References are to sections. CONGREGATION ASSEMBLED, indictment for disturbing a, 367, 370. CONSENT OF PARENTS, solemnizing marriage without, indictment for, 735. CONSPIRACIES AGAINST ELECTION, precedents for, cited, 394 CONSPIRACY, indictments for; namely, — formula, and precedents cited, 285. common form, with overt acts, — to cheat, 286. to murder, 287; one yet unborn, 287, note, to commit burglary, with overt acts, 288. other felonies, precedents cited, 288, note. to cheat by false tokens, — dice, 289. by statutory false pretenses, 290. other forms for, to cheat, 391. to assault — to ravish, 292. to deba,uch a female, 294. to procure elopement and marriage, 296. to cause a false record of marriage, 297. to entice a wife from her husband, 298. to procure a divorce wrongfully, 299. falsely to charge with crime, or less offense, 300. to injure actor by hissing, 302. to seduce workmen from their employment, 303, 304 by workmen to compel other workmen, 305. to compel employer to discharge workman, 305, by workmen to raise their wages, 306. by manufacturers to reduce wages, 307. j)recedents for various labor conspiracies cited, 308, note. by false news, to enhance government securities, 310. to adulterate manufacture, 311. precedents for other conspiracies cited, 312, note, to procure unequal marriage of minor, cited, 738. indictment for, in nature of embracery, 851. to release prisoners from custody, cited, 854 precedents cited of indictment for seditious, 94:1. CONSTABLE, indictment for offering bribe to, 246 and note, against, for not attending election, cited, 391. for extortion by, 414 neglect of, to convey prisoner to jail, 681, 682. against one for refusing office of, 919. CONTEMPT O? COURT, summary proceedings for, precedents cited, 317. attachment, 318; commitment, 321. indictments; namely, — in disobeying judicial orders, 322, 323. formula, and precedents cited, 325. by oral words to judge in open court, 326, 634 ' 632 con] index to F0EM8 AND SUBJECTS. [CRI References are to sections. CONTEMPT OF COURT (continued), threats made to induce relinquishment of verdict, 337. hindering witness from appearing, 338. CONTINUANCE, forms for the application for, cited, 1065. CONTINUANDO, forms for the, 83-84. CONTINUING TO COHABIT, indictment for, 888. CONTINUING OFFENSES, allegations of time in, 81-84 CONTRACT, indictment for conspiracy to procure violation of, 303, enticing or hiring away one under, 576, 577. CONTRARY TO FORM OF STATUTE (see Against, etc.). CONVEYANCES (see Fraudulent Conveyances). CONVEYING INSTRUMENTS (see Instruments of Escape). CONVICTION, allegations of a previous, 94-97, 117, note. CONVICTION OF PRINCIPAL, indictment against accessory, after, 117. COPPERSMITH'S SHOP, for nuisance of, cited, 831. CORPORATION, allegations of name of, 79. for neglect of, causing loss of life, cited, 756, note. COUNTERFEIT COIN, obtaining thing by, as false pretense, 423, note. COUNTERFEITING THE COIN, including utterings, etc., indictments for; namely, — common-law uttering, 331. statutory counterfeiting, and precedents cited, 333, 334. impairing, clipping, mutilating, etc., 335. gilding, coloring, etc., 336. uttering, passing, putting off, etc., with precedents cited, 337. uttering after conviction, two utterings on same day, within ten days, etc., 338, 339. uttering, having other counterfeits in possession, 340. possessing, with intent to utter, and precedents cited, 341. having tools and materials for, 343, 343. attempt, coin not current, making tools for, 343. precedents cited for other utterings, 344. COUNTRY (see Out of Country). COUNTS, subsequent to first, commencement of, 64. joinder of, 64, 67. COUNTY (see Special Locality). COUNTY TREASURER, indictment against, for extortion, 416^ COUNTY WARRANT, for forging, cited, 475. COURT FILES (see Files of Court). COURT ORDER (see Judicial Order). COVENTRY ACT, indictment on, for slitting nose, 748. COW, indictment for beating, in public street, 800. CRIME (see False Charge of Crime: Offense Repeated), Indictment and precedents cited for committing lighter, intending heavier, 109. same for steps toward committing. 111. 633 Clil] INDEX TO FOEMS AND SUBJECTS. [deA References are to sections. CRIME AGAINST NATURE (see Sodomy). CRUEL BEATING OP ANIMAL, indictment for, 350. CRUEL KILLING OF ANIMAL, indictment for, 353. CRUELTY TO ANIMALS, indictments for; namely, — overdriving, 846. overloading, 347. driving overloaded horse, 348, torturing, 349. cruel beating, 350. mutilating, 351. wilful and wanton wounding, 353. cruel killing, 353. depriving of necessary sustenance, 354> inflicting unnecessary cruelty, 355. not providing proper shelter, 356. driving when unfit for labor, 357. abandoning, 358. cruelly transporting, 359. suffering cruelty to be inflicted, 360. cook-fighting as cruelty, 361. shooting pigeons, with precedents cited, 363, note, indictment for nuisance of public, 800. CUSTOMS, conspiracies against the, precedents cited, 313, note. CUTTING THE THROAT, indictment for murder by, 530. CUTTING AND WOUNDING (see Malicious Injuries to Person), assault by, precedent cited, 333, note. D. DAMAGING PROPERTY, indictments for, 719, 733-788. DAMAGING STREAM, for rendering air unwholesome by, cited, 816, nota DANCE-HALL, for keeping, cited, 787. DANCING AND MUSIC, for conducting without license, cited, 1000, note. DANGEROUS THINGS (see Combustible and Dangerous Things). DANGEROUS WEAPON (see Deadly Weapon), indictment for having, when arrested, 268. for assault with, and precedents cited, 313, 317, 233, note, for assault, being armed with, 315. DAY (see Part of Day). DAY OF WEEK, allegation of, 85, 86. DEAD, indictment for libel on the, 635. DEAD BODY, allegation of name of, 79. DEADLY WEAPON (see Dangerous Weapon), indictment for assault with, and precedents cited, 213, 215, 238. DEALING THE GAME, in gaming, indictment for, cited, 507. DEALING AS MERCHANT (see Merchant). DEATH, for neglects causing, cited, 756. 634 dea] index to foems astd subjects. [dis References are to sections. DEATH BY ABORTION, indictment for causing, 143. , DEBAUCH FEMALE, indictment for conspiracy to, 394. DEBTOR (see Poor Debtor). DECEASED PERSON, allegation of name of, 79. DEED (see Extort Deed). DEFACING REGISTER, precedent of indictment for, cited, 923. DEFENSES, suggestions as to preparing, 37-41. DEGREES IN ARSON, indictments cited, 189. DEGREES IN BURGLARY, indictments cited, 257. DEGREES IN MURDER (see Homicide, Felonious). DEGREES IN ROBBERY, indictments cited, 936. DEMURRER, to indictment, 1041. to plea, 1053. joinder in, 1054, 1055. to replication, cited, 1060. DEPENDENT PERSON (see Abandonment; Neglects), indictment for injuring, by neglect, 751, 753. DEPRIVING ANIMAL OF SUSTENANCE, indictment for, 854. DESCRIPTION, of things stolen, 590-606; of laud in malicious mischief, 734-726. DESTROY SHIP (see Ship).- DESTROYED, indictment for forging and uttering instruments, 477. DESTRYING PROPERTY (see Malicious Mischief), indictment for, 730; vessel, 731; aqueduct pipe, 739. DESTRUCTION OF LIQUOR fsee Confiscation). DESTRUCTIVE MATTER, indictment for assault with, and precedent cited, 213. DETACHING INDORSEMENT, indictment for, 473. DETAIN PRISONER, indictment for not assisting officer to, 845. DETAINER (see Forcible Entry and Detainer), indictment for wounding to prevent, 19, note. DICE (see False Dice). DIGGING IN STREET, indictment for, cited, 1015. DIMINISHING COIN, indictments for, 335, note. DIRT, for removing, from street, cited, 1015. DISCHARGE OF PRISONER, record form of, on acquittal by jury, 1073. DISCLOSING, bankrupt not, cited, 333. DISFIGURE, wounding with intent to, 19, note. DISINTERRING DEAD BODY, indictment for, 957, 958. DISOBEYING COMMANDS (see Judicial Order), of ship's officer, precedent of indictment for, cited, 580, note. DISOBEYING ORDER, to close drinking places, precedent cited, 654. DISORDERLY HOUSE, indictment, formula, and precedents cited, 794. DISORDERLY AND IDLE PERSON, indictment for being, 1005. DISSECTING DEAD BODY, indictment for, 956. DISSENTERS, English indictment for disturbing meeting of, 369. DISSUADING WITNESS, from appearing, indictment for, 853. 635 DIS] INDEX TO F0KM8 AND SUBJECTS. [dDE References are to sections. DISTINCTNESS OF ALLEGATION, 35-37. DISTILLERY, precedent for nuisance of, cited, 831. DISTILLING (see Illicit Distilling). DISTINCT PASSAGES, form of setting out libel in, 619, note. DISTRICT ATTORNEY (see Prosecuting Officer). DISTURBANCE OP HABITATION (see Dwelling-house), indictment for, in the night, 856, 857. DISTURBING ELECTION (see Election Offenses), indictment for, 393. DISTURBING MEETINGS, indictment for, by entering armed, 367. conspiracies to disturb, precedents cited, 313, note. other indictments for; namely, — formula, and precedents cited, 365. forms under the common law, 366, 367. secular meetings at common law, 368. under statutes, 369-371. trading, etc., near camp-meeting, precedents cited, 378, note. DITCH, for injuring a, cited, 730. DIVORCE, indictment for conspiracy to procure, wrongfully, 299. DOG (see Howling Dogs), unlicensed, for keeping, cited, 177. indictment for assault with, 308. DOMICILE (see Residence). DOUBLE VOTING, indictment for, 385. DRAFT, indictment for forging and uttering a, 470. DRAWBRIDGE, for passing vessel irregularly through, cited, 985. DEINKING PLACES (see Disobeying Order; Liquor Keeping and S'SLLING). DRIVING (see Furious Driving), unlawful, of cattle, 167, 168. DRIVING ANIMAL, when unfit for labor, indictment for, 357. DRIVING AGAINST CARRIAGE, indictment for assault by, 209. DRIVING OVERLOADED HORSE, indictment for, 348. DROWNING, indictment for murder by, 52a DRUG, indictment for abortion by, 139-141. DRUNK, indictment for being, 376; in public place, 375. DRUNKARD, indictment for being a common, 374 for selling liquor to a, 653. DRUNKENNESS (see Drunk; Drunkard; Liquor Keeping and Sell- ing; Liquor and Tippling Shops), in office, indictment for, cited, 376, note. DUELING, indictments for; namely, — challenging, and precedents cited, 378, 879. provoking to a challenge, 380. for other forms of offending, cited, 381. 636 DUP] INDEX TO FOEMS AND SUBJECTS. [eND Eeferences are to sections. DUPLICITY, aToiding, 15-21. DURESS AND STARVING, indictment for murder by, 535. DWELLING-HOUSE (see Disturbance op Habitation; Uninhabited Dwelling), for assault in, cited, 233, nota indictment for forcible entry or detainer of, 445. for larceny in, 588. for malicious mischief to, with riotous conduct, 707. E. EAR (see Biting Off Ear). EAVESDROPPING, indictment for, 796. about grand-jury room, indictment, 797. EFFIGIES (see Exhibiting Effigies). ELECTION, for perjury at, cited, 876. ELECTION BRIBERY, indictments for, 248, 249. ELECTION DAY, indictment for selling liquor on. 654. ELECTION LAWS, for conspiracies against, cited, 313, note. ELECTION OFFENSES, indictments for; namely, — formula and precedents cited, 384. double voting, 385. voting when not qualified, 386. falsely personating voter, 387. false answer as to right to vote, 388. refusal by election officer to receive vote, 390. attempting to prevent one from voting, 393. disturbing election, 393. conspiracy against election, precedents cited, 394. formula for betting on election, and precedents cited, 895. losing or winning by such betting, 396. betting on election, 397, 398. ELEVATOR (see Warehouse and Elevator). ELOPEMENT AND MARRIAGE, indictment for conspiracy to procure, 296. EMBEZZLEMENT, indictments for; namely, — formula, and precedents cited, 403. allegations of money embezzled, 404 indictment for, under particular form of statute, 407. statutory form for indictment, 408. by public officers, 409. differing precedents for, cited, 411. solicitations to, 412. EMBEZZLING AND SECRETING, letters, etc., precedents cited, 885. EMBRACERY, indictment for, 850. conspiracy in nature of, 851. ENDEAVOR TO BREAK (see Attempt), to commit burglary, indictment for, 359. 637 ent] index to foems and subjects. [eye References are to sections. ENTERING (see Breaking and Entering). ENTERING ON PREMISES, after forbidden, indictment for, 994 ENTERTAINING PERSONS, on Lord's day, indictment for, unlawfully, 666. ENTICING AWAY LABORER, indictment for, 577. ENTICEMENT TO CRIME, mdictment for, 105, 106, 114, 115, 119-121. ENTRIES (see False Entries). ENTRIES IN BOOKS OP ACCOUNT, precedents for forging, cited, 475. EQUIPPING VESSELS (see Neutrality Laws). EQUITY, for perjury in proceedings in, cited, 876. ERASING INDORSEMENT, indictment for, 473. ERECTING BUILDING, on pleasure-grounds, indictment for, 1034 ERROR (see Writ oe Error). ESCAPE (see Prlson Breach, etc.). ESCAPED PRISONER, proceedings for returning, to confinement, cited, 898, note. ESTRAY, indictment for taking up and using, 176. EVADING TAX, indictments for, cited, 974, 975. EVADING TOLL, indictments for, cited, 984 EVIL SHOWS AND EXHIBITIONS, indictments for; namely, — keeping room for obscene prints, 798. booth for indecent exhibitions, 799. public cruelty to animals, 800. for other forms of offending, cited, 801. EXAMINATION (see Refusing to be Examined). EXCEPTIONS, precedents of, cited, form of, 1078. EXCESSIVE TOLL, for taking, cited, 983, note. EXECUTOR (see Administrator). EXHIBITING EFFIGIES, indictment for libel by, 639, note, 630. EXHIBITIONS (see Evil Shows and Exhibitions). EXPLOSIVE SUBSTANCE, indictment for keeping, 788. EXPOSING LIQUOR FOR SALE, indictment for, 644 EXPOSURE, indictment for assault by, 318, 319; murder by, 538. EXPOSURE OF PERSON, indictments for; namely, — common form, and precedents cited, 808. open and notorious indecency, 803. uncovered and indecent exposure, 804 EXTORT DEED, for conspiracy to, cited, 300, note. EXTORT MONEY, indictment for conspiracy to, 300 and note. EXTORTION, indictments for; namely, — common form for, against constable, 414 formula, and precedents cited, 415. upon statute, 416. EYE (see Putting Out Eye), for assault by beating out, cited, 333, note. 6a8 FAC] INDEX TO TOEMS AND 8PBJE0T8.' [fAL References are to sections. F. FACTS, indictment should set out only, 38, 35, 39. "FALSE," in indictment for libel, 619, note. FALSE AFFIDAVIT (see Affidavit), for presenting, to pension office, cited, 867, note; indictment for per- jury by, 873, 874. FALSE ALARM OF FIRE, indictment for, 861. FALSE ANSWER, by voter, indictment for, 888. for giving, to collector of customs, cited, 975. FALSE CHARGE OF CRIME, indictment for conspiracy to prefer a, 300- FALSE DICE, indictment for cheating by, 374 for conspiracy to cheat by, 389. FALSE ENTRIES (see Entries in Books of Account), for conspiracies to cheat by, etc., cited, 389, note, in marriage register, for deceits to procure, cited, 738. for causing, in register, cited, 933. FALSE IMPRISONMENT, 568-573. See Kidnaping and False Impris- onment. FALSE KEY, indictment for making, to commit burglary, 360. for having in possession, 261. FALSE MARKS, on goods, indictment for cheating by, 375. FALSE MEASURE, for cheating by, cited, 378, note. FALSE NEWS, indictment for conspiracy to enhance prices by, 810. FALSE OATH, to procure marriage license, precedent cited, 738, 853. FALSE PERSONATING (see Pbksonating), indictment, 387, 436, 868. FALSE PRETENSES, indictment for conspiracy to cheat by, 390. other indictments for; namely, — formula, and precedents cited, 430. form authorized by statute, 431. common-law form, 433. by forged and worthless paper, 433. as to pecuniary standing, 484 as to quality of goods, 435, note, for numerous other varieties of, cited, 435, note, for false personating, cited, 436. for obtaining ofwse in action by, cited, 437. obtaining signature by, 438. money in charity by, cited, 439. for swindling by, cited, 430. by confidence game, cited, 431. sleight of hand, etc., indictment for, 433. 639 fal] index to forms and subjects. [foo References are to sections. FALSE PRETENSES (continued), defrauding keeper of hotel by, 433. attempt to cheat by, 434. for receiving goods obtained by, 918. FALSE SCALES, indictment for cheating by, 273. FALSE STATEMENT FOR REGISTRY, for making, cited, 922. FALSE TESTIMONY, for conspiracies to procure, cited, 313, note. FALSE TOKENS, indictment for conspiracy to cheat by, 289; various in- dictments, 272-276. FALSE TOLL-DISH, indictment for keeping, 981, 983. FALSE WEIGHTS, indictment for cheating by, 273. FALSE WRITING, indictment for cheating by a, 376. FEAR (see Putting in Fear). FEEDING ARMED PROWLERS, for, cited, 854 FELONIOUS ASSAULTER, indictment for being a, 315. FEMALE (see Chastity of Female; Debauch Female; Girl Unmarried; Rape). FENCES (see Removing Fence), indictment for injuries to, 733. FEROCIOUS DOG, indictment for keeping, 789. FERRY (see Keeping Ferry). FERULE, indictment for assault with, 330. FICTITIOUS BANK-NOTE, indictment for cheating by a, 376. FIGHTING TOGETHER (see Prize-fight). indictment for assault by, 333. FILES OF COURT, indorsement of indictment for, 72. FIRE (see False Alarm op Fire). FIRE-ARMS, indictment for assault with, 19, nota for murder with, 530. FIRE-ARMS AND AMMUNITION, for having, without license, cited, 1001. FIREWORKS, for setting off, in street, cited, 801. FISH, for larceny of, cited, 606. FISH AND GAME, indictments for; namely, — having in possession wild fowl recently killed, 436. taking oysters or clams contrary to statute, 437. taking fish in unlawful manner, 488. other unlawful fishing, 439. Obstructing passage of fish, 440. FISH-POND, for injuring a, cited, 730, nota FITTING OUT VESSEL (see Neutrality Laws), to engage in slave-trade, cited, 961. FLESH (see Meat for Food). FLOODING WAY, by damaging stream, etc., cited, 1015, note. FOOD (see Noxious and Adulterated Food; Unwholesome Food and Water), 640 FOO] INDEX TO FOEMS AND SUBJECTS. [fOB References are to sections. FOOTWAY (see Way), for obstructing, cited, 1015, note. FORBIDDING, entering on premises, after, 994. FORCIBLE ENTRY AND DETAINER (see Trespass to Lands), indictments for; namely, — formula, and precedents cited, 443. the ordinary form at common law, 444 into or of a dwelling, 445. at night, cited, 446. FORCIBLE TRESPASS, indictments for, 451, 453. FOREIGN COIN, not current, indictment for attempt to counterfeit, 343. FOREIGN COUNTRY, against accessory to crime in, cited, 116, note. FOREIGN ENLISTMENT ACTS (see Neutrality Laws). FOREIGN LANGUAGE, form of setting out libel in a, 619, note. FOREIGN LOCALITY (see Out of Country). FOREIGN OFFICIAL PERSONS, indictments for libel on, cited, 627. FOREIGN PORT, assault in, with dangerous weapon, precedents cited, 233, note. FOREIGN SERVICE (see Neutrality Laws). FORFEITURE, of gaming implements, proceedings to enforce, cited, 507. of intoxicating liquors, same, 645. "FORGE," meaning of, 460, note. FORGED PAPER, obtaining money by false pretense of, indictment for, 423. FORGERY OF WRITINGS, exposition, 453^S0. allegation of second offense of, 93. indictments for, including the utterings; namely, — form where efBoacy of writing depends on special facts, 459. formula, and precedents cited, 460. ordinary common-law form, 463. for forging writ, 463. promissory note, 464. for forging bank-bill, 465. uttering forged bank-bill, 466. possessing forged bank-bills with intent to utter, 467. forging and uttering bill of exchange, 468. same of bank-check, precedents cited, 469. forging and uttering orders, warrants, drafts, etc., 470. same of receipts, 471. same of indorsements, acceptances, and other indorsed matter, 473. erasing or detaching indorsement, 473. altering a genuine instrument into a forgery, 474 various other forgeries, precedents cited, 475. stamps and seals, indictments for forging, 476. writing lost, destroyed, or in hands of defendant, 477. possessing implements of forgery, 478. attempts at forgery, precedents cited, 479. 41 641 foe] index to forms and subjects. [gam Eeferences are to sections. FORM OF STATUTE (see Against Form op Statute). FORMAL ALLEGATIONS, 43-49. FORMER ACQUITTAL (see Jeopardy Repeated). FORMER CONVICTION (see Jeopardy Repeated). FORMER JEOPARDY (see Jeopardy Repeated). FORNICATION (see Living in Fornication), indictments for, 148, 151-155. formula, and precedents cited, 148. common forms, 151. for conspiracy to commit, 294 FOWL (see Wild Fowl). FRAUD, conspiracies for various sorts of, cited, 313, note. FRAUDULENT CLAIMS, to pensions, precedents for presenting, cited, 867. FRAUDULENT CONVEYANCES, indictments for; namely, — under statute of Elizabeth, 481. under modern statute.s 483. fraudulently selling mortgaged property, 485. same of land without title, 486, twice selling land, 487. FRAUDULENT INSOLVENCY, indictments for, cited, 339. FRAUDULENT WINNING, indictment for, in gaming, 496. FURIOUS DRIVING, indictments for, 560, 563. G. GAMBLING-HOUSE (see Gaming-house). GAME (see Fish and Game). GAME OR-DEVICE, indictment for obtaining money by, 433. GAMING (see Lotteries), assault on account of money won at, precedent cited, 323, nota indictment for cheating in, 374. for conspiracy to cheat in, 289. other indictments for; namely, — formula, and precedents cited, 489. playing for money, 490, 491. for " valuable thing," 493. in public place, storehouse, etc., 493. habitual gaming; professional gambler, 494. common gambler, etc., 495. fraudulent winning, 496. losing or winning, 497, 498. keeping gaming device, various forms, 499-503. permitting gaming on one's premises, etc., 503. by minors, precedents cited, 504. permitting minors to congregate, etc., 505. betting on games, etc., 506. precedents cited for other forms of gaming, 507. indictment for, on Lord's day, 670. 643 gam] index to foems and subjects. [han References are to sections. GAMING DEVICE, indictment for keeping, various forms, 499-503. GAMING-HOUSE, indictments for keeping; namely, — common form, and precedents cited, 805. bowling alley, 807. gaming place, and suffering gaming, 808. GAMING PLACE, indictment for nuisance of keeping, 808. GAMING-TABLE, indictment for keeping a, 501, 503. GATE, for erecting, across a street, cited, 1015, nota in turnpike, unlawfully shutting, 1016, note. GENERAL ISSUE, pleas of the, 1048-1050. form of the plea of, in record, 1070. GIRL UNMARRIED (see Seduction and Abduction), indictment for taking, out of father's possession, 945. under twenty-one, indictment for seducing by fraud, 946. of chaste character, indictment for seducing, 947, 948. same, under promise of marriage, 949, 950. GLANDERBD HORSE, indictment for taking, into public place, 815. GLASS-HOUSE, for nuisance of, cited, 831. GOODS (see Quality of Goods), indictment for burning, to injure insurers, 187. GOVERNMENT (see Obstructing Justice and Government; Sedition), for conspiracies to defraud, cited, 313, note. conspiracy to overturn the, cited, 313, note. indictment for libel on, 631. GRAMMAR SCHOOL, indictment against town for not maintaining, 755. GRAND JURY, for perjury before, cited, 876. plea to competency of the, in abatement, 1038. GRAND-JURY ROOM, indictment for eavesdropping about, 797. GRIEVOUS BODILY HARM (see Bodily Harm). GROWING ON LAND, indictments for larceny of things, 598-600. GUARDIAN, for embezzlement by, cited, 411. GUEST, indictment against innkeeper for refusing, 587. GUN, indictment for assault with, and precedents cited, 313. for being found with, on Lord's day, cited, 788, note. GUNPOWDER, for transporting and keeping, cited, 788, note. H. HABEAS CORPUS, employing certiorari in, 1083. HABITATION (see Disturbance of Habitation). HABITUAL DRUNKARD, selling liquor to, 653. HABITUAL GAMING, indictments for, 494, 495. HAIR, for assault by tearing out, cited, 333. note. HANGING IN EFFIGY, indictment for libel by, 639, note, 630. HARBORS, for offenses against the, cited, 1039. 643 hae] index to pokms and subjects. [hoe Eeferences are to sections. HARNESS, indictment for malicious mischief to, 706. HARTSHORN, for nuisance of making, cited, 831. HAVING CHILD, by woman taken into tiouse, indictment for, 155. HAVING LIQUOR (see Possessing). HAWKERS AND PEDDLERS, unlicensed, indictments cited, 509. HEALTH REGULATIONS, indictments for violating board of health order, cited, 513. indictment for breach of quarantine, 513. for neglect to vaccinate child, 514. HERDING, indictment for unlawful, of cattle, 169. HIGH SEAS, allegations of offense on, 89. for homicides on the, cited, 538. HIGHWAY (see Way). HINDERING OFFICER, various forms of indictment for, 838-843. HOLIDAY, indictment for selling liquor on, 654. HOMICIDE, FELONIOUS (see Death by Abortion), indictments for; namely, — formula and forms, with precedents cited, 530. with fire-arms, 530. by stabbing, 530; beating, 520. by choking and strangling, 530; cutting throat, 530. by unknown means, 530. by riding over one with a horse, 523. by drowning, 533. by burning, 534. by duress and starving, 535. of new-born child by abandonment, 536. of child through abortion, 527. of mother through abortion. 538. by medical malpractice and neglect, 529. of wife by husband, through neglect, 530. civil injury of homicide by railroad, 531. by poison, 533. by rape, 534. by combined causes, 30, 535. death or wound out of jurisdiction, 536, 537. on high seas, etc., precedents cited, 538. accessories, principals of second degree, etc., 539. on statutes, precedents cited, 540. as modified by statutes, 541-546. short statutory forms, 543-545. murder of first and second degrees, 546. attempts, assault with intent, formula and forms with precedents cited, 558. HORSE (see Glandeeed Horse), indictments for overloading and driving overloaded, 347, 848 (and see Cruelty to Animals). indictment for murder by riding over one with a, 533. 644 hoe] index to foems aot) subjects. [ind Eef erences are to sections. HORSE-RACING AND FURIOUS DRIVING, indictments for; namely, — at common law, 560. horse-racing contrary to statute, 561. furious driving contrary to statute, 563. HORSE-RAILROAD CAR, indictments for overloading, 347, note, 348. HOTEL-KEEPER (see Innkeepbb). HOUNDS, for keeping pack of, near street, cited, 818. HOURS OF LABOR (see Wokk), indictments for violating statutory, cited, 579. for not putting up notice of, cited, 757. HOUSE (see Disorderly House; Dwellinu-house). HOUSE-BREAKING (see Burglary), in day-time, indictment for, 255. HOUSE OF ILL-FAME (see Bawdy-house),' indictment for keeping, 784. for enticing female to, cited, 946, note. HOWLING DOGS, indictment for keeping, 833. HURTFUL NOISES (see Offensive and Hurtful Noises). HUSBAND, indictment for conspiracy to injure, by alienating and enticing away wife, 398. against, for manslaughter of wife through neglect, 530. I. ICE, for cutting and carrying off, cited, 730. IDLENESS (see Disorderly and Idle Person). ILL-FAME (see House of Ill-fame). ILLEGAL MARKING (see Marks and Marking), ILLEGAL MILITARY DRILL (see Military Drill). ILLEGAL TOLLS, indictment for demanding or taking, 983. ILLEGAL VOTING (see Election Offenses). ILLICIT DISTILLING, precedents for, cited, 973. ILLICIT LIQUOR SELLING (see Liquor Keeping and Selling). IMPAIRING COIN, indictment for, 335. IMPEDIMENT, solemnizing marriage of persons under, indictment for, 734 IMPLEMENTS OF FORGERY, indictment for possessing, 478. IMPLEMENTS OF GAMING (see Forfeiture). IMPRESSION OF KEY (see Key). IMPRISONMENT (see Kidnaping and False Imprisonment), form of sentence to, 1070, note. INCEST, formula and indictments for, with precedents cited, 563-566. INCORRIGIBLE ROGUE (see Vagabond and Rogue), precedent for being, cited, 1006. INDECENCY (see Open Indecency). INDECENT SHOW, indictments for libel by, 639, note, 631. INDENTURED SERVANT, for harboring, cited, 577, note. 645 ind] index to foems and subjects. [int References are to sections. INDIAN, indictment for selling liquor to, 653. INDIANA, peculiar forms for assault and battery in, 305. INDICTMENT (see Caption; Commencement; Concluding Part, etc.), questions to test the, 36; as appearing of record, 1070. INDICTMENT PENDING (see Pending). INDORSEMENT (see Erasing Indorsement), forms for, on indictments and informations, 70-73. indictment for forging and uttering indorsement, 473. for conspiracy to destroy indorsement, cited, 313, note. INFLICTING UNNECESSARY CRUELTY, on animal, indictment for, 355. INFORMATION, commencement of the, 59, 60. before magistrate, 61-63. counts in, subsequent to first, 64 concluding part of the, 66-69. INJURIES TO PERSON (see Malicious Injuries to Person). INJURIES TO PROPERTY (see Malicious Mischief), indictments for, to cattle, 705, 715, 716. to other property, 718. INJURING PERSON (see Dependent Person). INJURIOUS OR OFFENSIVE AIR, indictments for nuisance of; namely, — general form, and precedents cited, 810. offensive necessary-house, 811. offensive piggery, 813. for other filth, cited, 818. bringing into a public place one having small-pox, 814. glandered horse, 815. rendering water stagnant, 816. INN, for unlicensed keeping, cited, 1001. INNKEEPER (see Public House), indictment against, for refusing to entertain, 567. against guest for defrauding, 433. INOCULATING HOUSE, for nuisance of common, cited, 814, note. INSANITY, forms for setting up, in defense, 1061-1063. INSOLVENCY (see Bankruptct and Insolvency; Fraudulent Insolv- ency), for perjury in proceedings in, cited, 876. INSPECTED, driving cattle vsrhile not, 168. INSPECTOR OF ELECTION, for neglecting duty, cited, 391. INSTIGATOR, indictments against the, 105, 106, 114, 115-117, 119-131. INSTITUTION OF LEARNING, indictment for selling liquor near, 651. INSTRUMENTS, indictment for abortion with, 143. INSTRUMENTS OF ESCAPE, indictment for conveying, to prisoner, 894. INSTRUMENTS UNDER SEAL, for forging, cited. 475. INSURERS (see Underv^triters), indictments for arson to defraud, 184-187. INTERNAL REVENUE, for violation of the, cited, 973. 646 iht] index to foems and subjects. [kbb Eeferences are to sections. INTBRROaATORIES, for perjury in answer to, cited, 876. INTIMIDATING LABORER (see Labor Offenses). INTIMIDATING PERSON, precedent for, cited, 860. INTOXICATING LIQOUR (see Liquor Keeping and Seli^ng). JAIL, for not repairing, cited, 757. JEOPARDY REPEATED, plea of former conviction or acquittal, 1043. replication thereto, cited, 1059, note. pleas of former jeopardy without conviction or acquittal, 1044 replication thereto, cited, 1059, note. JOINDER OF COUNTS, form for the. 64. 67. JOINDER IN DEMURRER, form of, 1054, 1055. to replication, cited, 1060. JOINDER IN ISSUE, form of, in record, 1070. JOURNEYMEN (see Workmen). JUDGE OF ELECTION, for neglecting duty, cited, 391. JUDGE AND JURY, indictment for libel on, 633. JUDGES, for slander of, cited, 634, note. JUDGMENT (see Arrest op Judgment), record forms of the, 1070-1073. JUDICIAL ORDER (see Order of Magistrate), indictment for disobeying, 333. JURISDICTION (see Plea to Jurisdiction). allegation for homicide where death or wound is out of the, 536, 537. for offense of officer acting without, cited, 689. JUROR (see Withdrawal of Juror), for perjury in answer of, cited, 876. JURY (see Judge and Jury; Petit Jury), for slander of, cited, 634, note. JUSTICE AND GOVERNMENT (see OBSTRUCTING Justice and Govern- ment). JUSTICE OF PEACE, indictment of, for not making returns, 685. various malfeasances by, precedents cited, 687. K. KEEPING FERRY, without license, cited, 1001. KEEPING GAMING DEVICE (see Gaming Device). KEEPING LIQUOR fsee Liquor Keeping and Selling). KEEPING LIQUORrSELLING PLACE (see Liquor and Tippunq Shops), indictment for, 647. KEEPING LOTTERY, indictment for, 675. KEEPING FOR SALE (see Liquor Keeping ANp Selling), lottery tickets, indictment for, 678. 647 ^EE] index to FOKMS AOT) subjects. [Li References are to sections. KEEPING OPEN SHOP, on Lord's day, indictment for, at common law, 663, note, same on statute, 664. KEROSENE, for keeping, below test, cited, 773. KEY, indictment for taking impression of, to commit burglary, 360. KICKING AND BEATING, indictment for assault by, 303. KIDNAPING AND FALSE IMPRISONMENT, indictments for; namely, — formula, and precedents cited, 569. on particular statute, 570. importing kidnaped person, 571. holdmg kidnaped person in involuntary servitude, 573. KILLING (see Cruel Killing op Animal). KILLING CATTLE, indictments for malicious mischief by, 703, 709-713. KILLING SHEEP, to steal carcass, cited, 618, note. KNIFE, indictment for assault with, 317. LABOR, indictment for, on Lord's day, 668, 669. LABOR CONSPIRACIES, indictments for various, 303-307. LABOR OFFENSES (see Hours of Labor), indictments for; namely, — enticing or hiring away laborer under contract, 577. intimidating laborer, 578. violating statutory regulations as to hours of labor, cited, 579. for mutiny and revolt on shipboard, cited, 580. LABORERS (see Workmen). LAND (see Growing on Land; Trespass to Lands). indictment for twice selling, 487. for conspiracy to expel possessor from, cited, 313, note. LAND WITHOUT TITLE, indictment for conveying, 486. LANDMARK, indictment for removing, etc., 734. LANGUAGE (see Opprobrious Language). LARCENY, for conspiracy to commit, cited, 388, note, conspiracy wrongfully to accuse one one of, cited. 300, note, indictments for simple and compound; namely, — formula, and precedents cited, 583. simple, 583. by servant, 584. in the night, 585. with breaking and entering, 586. with putting" in fear, 587. from dwelling-houses, shops, and other particular places, 588. from the person, 589. forms for describing thing stolen, at common law, 593, 593. of ore from mine, 596. 648 lab] index to forms and subjp:cts. [lic Eeferences are to sections. LARCENY (continued), lead fixed to dwelling-house, 597. things growing on land, 598, 599. growing crop, cited, 600. writings, cited, 601. bank-notes, 603, 603. promissory notes and bills of exchange, 604 other writings, cited, 605. animals and fish, cited, 606. special statutory elements, Texas, 609, by bailee contrary to statute, 610. attempts by solicitation, 611, by picking pocket, 613, by marking hog, 613. other attempts, cited, 614 Larceny and burglary, indictment for, 353; and see 354, nota LARCENY FROM LETTER, precedents for, cited, 885. LARCENY OF LETTER, precedents for, cited, 885. LARCENY FROM PERSON (see Picking Pocket), indictment for assault with intent to commit, 315. LASCIVIOUS COHABITATION, indictments for, 154-158. LEAD FIXED, to buildings, indictment for larceny of, 579. LEARNINGS (see Institution of Learning). LEAVING SEAMEN, in foreign land, precedent for, cited, 757. LEGISLATIVE COMMITTEE, for perjury before, cited, 876. LETTER, FORGED, for passing as true, cited, 475. LETTER OF ATTORNEY, for forgery of, cited, 475. LETTERS (see Postal OPFiiNSES). LETTING HOUSE FOR BAWDRY, indictments for, 785, 786. LEWD PERSON, indictment for being a, 157. LEWDLY ASSOCIATING, indictments for, 153-158. LIBEL AND SLANDER (see Truth of Libel),' exposition of, 617-639. indictments for; namely, — formula for written, and precedents cited, 619. common form, libel on private person, 630. seditious libel on government, 631. on judge and jury, 633. on other official persons, 633. on the dead, 635. o"bscene libel, 636. formula for, by signs, pictures and effigies, 629. by hanging a man in effigy, 630. by exhibiting obscene painting, 631. formula for, by oral words, with precedents cited, 633. in nature of contempt, words spoken to magistrate, 654 precedents cited for other forms of oral, 635. LICENSE (see Banns or License; Marriage License; Liquor Keeping AND Selling). 649 lig] ihdex to foems and subjects. [lor References are to sections. LIGHTENING COIN, indictment for, 335, note. LIMITATIONS (see Statute of Limitations). LIQUOR KEEPING AND SELLING (see Liquoe and Tippling Shops), indictments for unlicensed; namely, — formula, and precedents cited, 643. having the liquor with intent to sell, 643. exposing it for sale, 644. proceedings for the confiscation of liquor, 645. illegally transporting liquor, 646. keeping place for unlawful selling, 647. single unlicensed sale, 649 and note, selling to be drank on premises, 650. near institution of learning, 651. to minor, 652. to drunkard and other particular persons, 653. on Sunday, on election day, and on other special days and times, 653, 654. being a common seller, 655. carrying on business of selling, 656. traveling and taking orders for liquor, 657. not registering sales (bell-punoh law), 658. concealing the selling by screen, 659. indictment for neglect of selectmen to appoint agent for, 684 LIQUOR SELLING, for conspiracies to defeat the laws against, cited, 318, note. LIQUOR AND TIPPLING SHOPS (see Tippling-house), indictments for nuisance of keeping; namely, — shop for making sales forbidden by statute, 818. on statute declaring nuisance, 819, 820. keeping tenement for, 880. house of ill-fame, gaming-house and liquor-selling house combined, 831. keeping house for selling liquor, 832. LIQUORS (see Adulterated Liquors). LIQUORS AND DISTILLING, precedents for violation of internal reve- nue laws concerning, cited, 973. LIVING IN ADULTERY or Fornication, formula for indictment, and precedents cited, 148. various forms for, 152-155. LOCALITY (see Special Locality). LODGING-ROOM, indictment for larceny in, 58& LORD'S DAY, indictments for selling liquor on, 653. indictments for violation of; namely, — the common-law nuisance, 663. formula on statutes, and precedents cited, 663. keeping open shop on, 664. selling goods on, 665. 850 lob] index to forms and subjects. Eeferenoes are to sections. LORD'S DAT (continued), unlawfully entertaining persons on, 686. unlawful traveling on, 667. doing work and common labor on, 668, 669. gaming on, 670. for other forms of the offense, cited, 671. LOSING OR WINNING, in gaming, indictment for^ 497, 498. LOST INSTRUMENT, indictment for forgery of 477, LOTTERIES, indictments for unlawful; namely, — formula, and precedents cited, 673. setting up or promoting, etc., 673, 674. keeping, 675. permitting, on one's premises, 676. selling lottery tickets, 677. having lottery tickets for sale, 678. advertising the tickets, 679. indictment for nuisance of keeping, 819. LOTTERY CIRCULARS, for sending, through mails, cited, 887. LOTTERY TICKETS, indictment for selling, 677. having for sale, 678. advertising, 679. LUNATIC, indictment for neglecting, 754. M. MAGISTRATE (see Order of Magistrate), commencement of information before, 61-63. indictment for contemptuous words spoken to, 634. for contemptuous words spoken of, cited, 634, note, for perjury before, cited, 876. MAIL (see Postal Offenses; Robbing Mail). MAIMING, to prevent arrest, cited, 854. MAIMING ANIMAL, indictment for, 717. MAIMS (see Mayhem and Maims). MAINTENANCE, indictment for, 370. ' MAKING SELF A NUISANCE, indictment for being common pi-ostitute, cited, 834. indictment for being railer and brawler, 835. brawl and tumult, 836. MALFEASANCE AND NON-FEASANCE IN OFFICE, indictments for; namely, — formula, and precedents cited, 680. common form, neglect by constable, 681. same condensed, 683. against selectmen for not appointing liquor agent, 684. against justice of peace for not making returns, 685. for various other sorts of the offense, cited, 686-693. 651 max] index to fokms and subjeots. [mae References are to sections. MALICIOUS INJURIES TO PERSON, fer inflicting grievous bodily barm, cited, 694. See Bodily Harm. malicious shooting, cited, 695. cutting, stabbing, wounding, cited, 695. See Cuttino and Wound- ing; Stabbing; Stabbing and Cutting; Wounding. MALICIOUS MISCHIEF, indictments for; namely, — formula, and precedents cited, 699. At common law, — killing cattle to injure owner, 703. burning goods, 703. maliciously injuring cattle, 705. maliciously injuring harness, 706. where another wrong blends with the, 707. To animals under statutes, — killing contrary to Black Act, 709. killing under various other statutory words, 710-713. killing in an inclosure, 713. killing by poison, 713. administering poison, 714 injuring animal, 715, 716. maiming or wounding animal, 717. To other personal property under statutes, — injuring, 718. damaging, 719. destroying, 720. destroying vessel, etc., 731. To the realty under statutes, — breaking or injuring fences, 733. removing land-mark or bounds. 734. cutting down or injuring trees, 736. injuring a building, 737. carrying away or injuring saw-mill, 738. destroying aqueduct pipe, 739. precedents for other forms of injury, cited, 730. MALICIOUS SHOOTING, precedents for, cited, 695. MALPRACTICE (see Medical Malpractice). MANSLAUGHTER (see Homicide, Felonious), form of record in case of, 1070-107'J. MANUFACTURE, indictment for conspiracy to adulterate, 311. MANUFACTURERS, indictment for conspiracy by, to reduce wages, 307. MANUFACTURING ESTABLISHMENT, for selling liquor near, cited, 651, nota MARKING AND ALTERING MARK, of animals, fraudulent, formula, and precedents cited, 164 indictment for branding another's animal, 165. altering brand to defraud, 164, note, 166. attempt to commit larceny of hog by marking, 613. 053 mae] index to foems and subjects. [mil References are to sections. MARKS ON GOODS (see False Marks). MARRIAGE (see Record of Marriaoe), for conspiracy to obtain consent of parties to, cited, 396, note, indictments for various conspiracies against, 295-299. conspiracy to procure elopement and, 396. MARRIAGE LICENSE, for perjury in oath to obtain, cited, 876. MARRIAGE, OFFENSES AGAINST, indictments for; namely, — refusing to solemnize, cited, 733. solemnizing, of persons under impediment, 734 solemnizing without consent of parents, 735. same without bans or licenses, 736. being unauthorized, cited, 737. for other like offenses, cited, 738. miscegenation (blacks and whites), 739. MARRIAGE PROMISE, indictments for seduction under, 949, 950. MARRIAGE REGISTER, making false statement for, cited, 933. MARRIED WOMAN, form for alleging name of, 74 for false pretense by, of living with husband, cited, 434 MAYHEM AND MAIMS (see Maiming), indictments for; namely, — formula, and precedents cited, 743. on Coventry Act (slitting nose), 743. on similar American statutes, 744, 745. wounding with intent to maim, 747. assault with intent to maim, 748. MEANS UNKNOWN (see Unknown Means), contemplated in conspiracy, 391, 393. MEASURE (see Weight or Measure). MEAT FOR FOOD, indictment for exposing and selling unwholesome, 765. for having with intent, 768. MEDAL, for uttering, resembling coin, cited, 344, note. MEDICAL MALPRACTICE, indictment for manslaughter by, 529. MEDICAL MAN (see Compounding Medicine; Physician), requiring female patient to strip, cited, 223, note. MEETING-HOUSE, indictment for arson of a, 183. MEETING BY TRAVELERS (see Travelers Meeting). MEETING (see Disturbing Meetings). MERCHANT, indictment for cheat by falsely assuming to be, etc., 276, note, for unlicensed dealing as, 998. METHODS, of offending, charging several in one count, 19-21. MILITARY DRILL, for illegal, cited, 943. MILITARY OFFICER, for obtaining money by false pretense of being, cited, 425. MILK (see Adulterated Milk). 653 milJ index to foems and subjects. [neo References are to sections. MILL, indictment for arson of a, 181. MILL-DAM, indictment for nuisance by, 816. MILL-POND, indictment for, overflowing land, 816, MILL-RACE, for obstructing a, cited, 730. MINE (see Ore from Mine), for drowning or injuring a, cited, 730. MINORS, indictment for selling liquor to, 652. permitting, to game, congregate, etc., on one's premises, 504, 505. statutory regulations of hours of labor of, 579. MISCEGENATION, indictment for, 739. MISCHIEF TO PROPERTY (see Malicious Mischief). MISDEMEANOR, for compounding, cited, 134, note. See Compounding. MISFEASANCE (see Malfeasance and Non-feasance in Office), for various forms of oflBcial, cited, 691. MISNOMER, plea of, in abatement, 1037. MISPRISION, indictment for, by neglect to disclose and prosecute offense, 139. neglect to prevent offense, 130. MONEY, forms for alleging, 403 and note, 404, 414^416, 431, 423, 433 and note, 490 and note, 491, 496, 506, 593, note. for false pretense of having paid, cited, 435. indictment for gaming for, 490, 491. MORTGAGED PROPERTY, indictment for fraudulently selling, 485. MOTION IN ARREST OF JUDGMENT (see Arrest or Judgment). MOTION FOR NEW TRIAL (see New Trial). MOTION TO QUASH INDICTMENT, form for the, 1031 ; for the entry, 1033. MUNICIPAL BY-LAW, indictment on, 133-136. precedents for, cited, 136. MURDER (see Homicide, Felonious), indictments for conspiracy to, 387 and note. form of record in a case of, 1070-1073. MURDER, FIRST DEGREE (see Homicide, Felonious). MUTILATING ANIMAL, indictment for, 351. MUTILATING BOOKS, bankrupt's, cited, 237. MUTINY, indictments for, cited, 580. K NAME OF DEFENDANT, allegations of the, 74r-77. NAME OF THIRD PERSON, allegations of the, 78, 79. NATIONAL BANK NOTES, how described in larceny, 603, 603. NATURALIZATION, perjury in application for, cited, 876. NAVAL STORES, for unlawfully having, cited, 975. NECESSARY HOUSE, indictment for keeping an offensive, 811. NECESSARY SUSTENANCE, indictment for depriving animal of, 354. 654 neg] index to foems and subjects. [n References are to sections. NEGLECT, NEGLECTS, indictments for, to disclose and prosecute offense, 139. to prevent offense, 130. to give bastardy bond, 159. to have cattle-mark recorded, cited, 168, note. to retain list of cattle slaughtered, cited, 170, note. to keep swine from sidewalk, 171. to vaccinate, 514. manslaughter by, 530. of constable to convey prisoner to jail, 681, 683. of selectmen to appoint liquor agent, 684. of justice of peace to make returns. 685. various offenses of ofBcial, cited, 690. other indictments for; namely, — formula and precedents cited, 750. at common law, for neglecting dependent person, 751. same under statute, 753. on statute for abandoning child, 753. neglecting lunatic, 754. town not maintaining grammar school, 755. for various other, cited, 756, 757. NEGLIGENT ESCAPE, indictments against officer for, 895, 896. NEGRO, indictment for selling liquor to, 653, note. NEIGHBOR'S HOUSE, indictment for burning one's own to burn, 193. NET, indictment for unlawfully fishing with a, 488. NEUTRALITY LAWS, for offenses against the, cited, 760. NEW TRIAL, form for motion for, 1075. affidavit to sustain motion, cited, 1076. order granting motion, 1077. NEWS (see False News). NEXT FRIEND, for forgery of consent to be, cited, 475. NIGHT (see Time and Place), for forcible entry and detainer at, cited, 446. indictment for larceny in, 585. for selling liquor in, 654. NIGHT-SOIL, for putting, in street, cited, 818. NIGHT-WALKER, indictment for tieing, 1007. NOISES (see Offensive and Hurtful Noises). NOLO CONTENDERE, form of plea of, 1051, 1053. NON-FEASANCE (see Malfeasance and Non-feasance in Office). NON-REPAIR, of way, indictment for, 1017. of bridge, cited, 1033. NOSE (see Biting off Nose; Slitting Nose). NOT BUILDING ROAD, indictments for, cited, lOia NOT GUILTY. forms of plea of, 1049, 1050. same in record, 1070. 655 NOX] INDEX TO FOEMS AND SUBJECTS, [nUI ' References are to sections. NOXIOUS AND ADULTERATED FOOD, indictments for offenses as to; namely, — formula, and precedents cited, 763. selling noxious bread, 761 exposing unfit flesh meat for sale, 763. poisoning a well, 766. selling unwholesome provisions contrary to statute, 767. having unwholesome meat for sale, 768. killing a calf when too young, 769. selling adulterated milk, 770. keeping adulterated liquors for sale, 771. kerosene oil of too low test, cited, 773, note. for adulterating seeds by dyeing, cited, 773, nota NOXIOUS AND OFFENSIVE TRADES, indictments for carrying on; namely, — general form and precedents cited, 828. common form, tripe-boiling, etc., 829. on statute, 830. precedents for various other sorts, cited, 831. NUISANCE (see Riding Armed; Way, etc.), of Sabbath-breaking, indictments for, 663. other indictments for; namely,— the conclusion. 775. formula, and precedents cited, 777. barratry, 778, 779 (see Barratry). bawdy-house, 780-787 (see Bawdy-house). combustible and other dangerous things, 788-790 (see Combustible AUD Dangerous Things). common scold, 791, 793 (see Common Scold). disorderly house, 793-795 (see Disorderly House). eavesdropping, 796, 797 (see Eavesdropping). evil shows and exhibitions, 798-801 (see Evil Shows and Exhi- bitions). exposure of person, 802-804 (see Exposure of Person). gaming-house, 805-809 (see Gaming-house). injm-ious or offensive air, 810-816 {see Injurious or Offensive Air). liquor and tippling shops, 817-833 (see Liquor and Tippling Shops). making self a nuisance, 823-836 (see Making Self a Nuisance). noxious and offensive trades, 827-831 (see Noxious and Offen- sive Trades). unwholesome food and water, 834, 835 (see Unvtholesome Food AND Water). plea of legislative authorization of, 1046, note. 656 oat] index to foems and subjects. [off Beferences are to sections. o. OATH (see False Oath; Pebjuey; Unlawful Oath). OATH OF ALLEGIANCE, for refusing to take, cited, 919, note. OATH OP JURY, on preliminary inquiry as to insanity, 1063. OBSCENE BOOKS, sending through mail, cited, 887. OBSCENE LIBEL, indictment for, 626. OBSCENE PAINTING OR PICTURE, indictments for libel by, 639, note, 631. OBSCENE PRINTS, indictment for nuisance of keeping room for, 798. OBSCENE WORDS, for slander by, cited, 635. OBSCENITY, in indictment for libel, 619, note. OBSTRUCTING JUSTICE AND GOVERNMENT, indictments for; namely, — Injuring, resisting or hindering official person, — formula, and precedents cited, 838. assault and battery on oflBcer, 839. resisting and obstructing officer, 840; other forms, 841-843. Refusing to assist officer, — to detain prisoner, 845. to arrest one, 846. to suppress riot, 847. Usurping or assuming office, — ■ office of coroner, 848. of sReriff, contrary to statute, 849. Embracery, — common form, 850. conspiracy in nature of embracery, 851. Other obstructions, — dissuading witness from appearing, 853. for unlawful oath, cited, 853. for other sorts of obstruction, cited, 854. OBSTRUCTING OFFICER, various forms of indictment for, 838-843. OBSTRUCTING PASSAGE OF MAIL, cited, 888. OBSTRUCTING, 1013 (see Wat). OFFENSE REPEATED, (see Punishment), allegations of prior and subsequent *ffense, 94-97, 117, note, for second offense of forgery, cited, 475. OFFENSIVE BUSINESS (see Noxious and Offensive Trades). OFFENSIVE CARRIAGE (see Tumultuous and Offensive Carriage). OFFENSIVE AND HURTFUL NOISES, indictment for howling of dogs, 833. outcries and noises of people, 833. OFFENSIVE TRADES (see Noxious and Offensive Trades). OFFENSIVE WEAPON, indictment for assault with, and precedent cited, 313. OFFERING BRIBE, to constable, indictments for, 346 and note. 43 ' 657 off] index to forms and subjects. [ots References are to sections. OFFICE, OFFICER (see Constable; Drunkenness m Office; Malfeas- ance AND Non-feasance in Office; Obstructing Justice and Government; Policeman; Public Officers; Refusing Office), for conspiracy to obtain money by procuring another's appointment to, cited, 312, nota OFFICIAL MISDOINGS (see Malfeasance and Non-feasance in Office). OFFICIAL PERSONS, for libel on, cited, 623. OPEN ADULTERY, and the like, indictments for, 153-158. OPEN INDECENCY, indictment for, 803. OPEN LEWDNESS, indictments for, 153-158. OPENING LETTERS, precedents for, cited, 886. OPERATING WITH INSTRUMENTS, indictment for procuring abortion by, 142. OPPROBRIOUS LANGUAGE, for assault in connection with, cited, 223, note. OPPROBRIOUS WORDS, indictment for uttering, 858, 859. ORAL BLASPHEMY AND PROFANENESS, formula for, and precedents cited, 243; other forms, 341, 244 ORAL SEDITION, cited, 940. ORAL WORDS (see Oral Sedition), indictment for profane, etc., 244. indictment for, in contempt of court, 396, 634. formula for indictment, and precedents cited, 633. for others, cited, 635. ORDER (see Judicial Order), indictment for forging and uttering an, 470. ORDER OF MAGISTRATE (see Judicial Order), precedent for forgery of, cited, 475. ORDERS (see Traveling for Orders). ORDINANCE (see Municipal By-law). ORE FROM MINE, indictment for larceny of, 596. "OTHERWISE CALLED," forms for alleging, 74. OUT OF COUNTRY (see Foreign Country), forms of charging ofiEense committed, 89, 90, 538. OUTCRIES, indictment for making, 833. OUTSTANDING CROP, indictments for larceny of, cited, 600. OVERDRIVING ANIMAL, indictment for, 346. OVERLOADED HORSE (see Driving Overloaded Horse). OVERLOADING ANIMAL, indictment for, 347. OVERSEERS OF POOR, for malfeasance by, cited, 687. OVERT ACTS, forms for setting out, in conspiracy, 285, 286, 288, 289. OWN HOUSE, arson of one's, to defraud insurers, 184, 185, same, to burn neighbor's, 193. OWNERSHIP, for obtaining money by false pretense of, cited, 435. of public buildings, 183, note, 737, note; in burglary, 353; in embezzle- ment, 403, 407; larceny, 583, note; malicious mischief, 699, note. OYSTERS AND CLAMS, indictment for unlawful taking of, 437. 638 PAC] INDEX TO FOEMS AND SUBJECTS. [PEB Beferencea are to sections. PACK OF CARDS (see Cards). PAINTING (see Obscene Painting), indictment for cheat in sale of, 275. PAPERS (see Fokged Papers). PARDON, plea of, 1045. PARENTS (see Consent op Parents^ PART OP DAY, form for alleging a, 86, 87. PARTICIPANTS IN CRIME (see ACCESSORY Before; Accessory Aeter; Principal of Second Debree), other than felony, 119-133. allegation of name of, in adultery, 160. all chargeable in one count, 113. PARTNERSHIP, allegation of name of, 79. PASSAGE OF FISH, for obstructing, cited, 440. PASSENGER, for manslaughter of, through negligent management, cited, 530, note. PATRONIZING BAWDY-HOUSE, cited, 787. PAUPER, PAUPERS, for conspiracies as to maintenance of, cited, 313, note, for falsely pretending to be, cited, 435. PAYING OVER MONEY, for not, cited, 687. PEACE (see Against the Peace). PEACE, BREACHES OF, indictments for words calculated to create, 244 other indictments for; namely, — by disturbance of habitation in the night, 856. another form, 857. by offensive and tumultuous carriage, etc., 858. ' uttering language calculated to create, 859. by other means, cited, 860. by false alarm of fire, 861. PECUNIARY STANDING, indictment for obtaining money by false pre- tenses as to, 424. PEDDLERS (see Hawkers and Peddlers). PENDING (see Jeopardy Repeated), plea of another indictment, cited, 1039. PENSION LAWS, precedents for offenses against, cited, 864r-868. withholding pension, 864. pension agent offending as to fees, 865. transmitting forged papers to pension office, 866. PERJURY (see Subornation of Perjury), indictments for; namely, — formula and precedents cited, 871. common form for affidavit, with surplusage, 873. same condensed, 874. 659 pee! index to foems and subjects. [ple References are to sections. PERJURY (continued), common form for testimony at trial, 875. precedents for numerous forms, cited, 876. for falsities in nature of, cited, 877. PERMITTING GAMING, on one's premises, etc., indictment for, 503. PERMITTING LOTTERY, on one's premises, indictment for, 676. PERSON (see Expostjee op Person; Upon the Person), indictment for larceny from the, 589. PERSON IN HOUSE, indictment for arson where, 188. PERSONATING, for false pretense by, cited, 426. deceased soldier, to obtain pension, cited, 868. voter, indictment for, 387. PERSONATION, false, for conspiracies to injure one by, cited, 312, note. PETIT JURY (see Juror; Jury), form of record of the impaneling of, 1070, PETIT LARCENY (see Larceny), of things growing on land, indictment for, 599. PHYSICIAN (see Medical Man), indictment for practicing as, unlicensed, 999. PICKING POCKET, indictment for attempt to commit larceny by, 613. PICTURE (see Obscene Paintings; Obscene Prints; Signs and Pict- ures), indictment for cheating in sale of, 375. indictment for libel by, 638-631. PIGEONS (see Shooting Pigeons). PIGGERY, indictment for offensive, 813. PILOT, for crossing bar without, cited, 757. PIRACY, indictment for, under the law of nations, 879. under statutes, and precedents cited, 879, note. PISTOL (see Fire-arms). PLACE (see Time and Place), allegations of, 80, 84 89, 90, 286, note. PLACE OF ABODE, forms for alleging the, 74, 75. PLACE, SPECIAL, indictment for larceny in, 588. PLACE OF TRIAL, for offenses committed out of county, 879, nota PLANK, indictment for assault with, and precedent cited, 213. PLAY. • for exhibiting a, on Lord's day, cited, 671. exhibiting unlicensed, cited, 801. PLAYING GAMES FOR MONEY, indictments for, 490, 491. PLEA (see General Issue; Jeopardy Repeated; Truth of Libelj Withdrawal op Plea). PLEA IN ABATEMENT (see Abatement). PLEA TO JURISDICTION, form of the, 1034. PLEADINGS SUBSEQUENT TO PLEA, forms of the, 1053-1060. PLEAS IN BAR, forms of the, 1043-1047. 660 poo] index to foems and subjects. [pei Eeferenoes are to sections. POCKET-PICKING (see Picking Pocket), indictment, 612. POISON, indictment for assault by administering, etc., and precedents cited, 313. for miEgling, with intent, cited, 236, note, for attempt to, cited, 236, note. for murder by, 533. for the malicious mischief of killing animals by, 713. administering, to animals, 714 POISONING- WELL, indictment for, 766. POLICEMAN, assaulting, resisting and wounding, etc., a, 19, note. POLYGAMY, indictments for; namely, — formula, common form, and precedents cited, 881. under differing statutes, 883. coutinuing to cohabit, 883. POND (see Public Ponds), indictment for unlawfully fishing in, 439. POOR DEBTOR, for perjury by, cited, 876. POOR PEOPLE, for nuisance of putting, into improper neighborhood, cited, 801. POSSESSING, indictment for, counterfeit coin with intent to utter, 341. implements for counterfeiting coin with intent to utter, 343, 343. liquor, with intent unlawfully to sell, 643. POSTAL OFFENSES, for various, cited, 885-888. POSTOFFIOE ORDER, for wrongfully obtaining, cited, 888. POUND BREACH, common-law indictment for, 174i indictment on statute, 175. PRAYER FOR PROCESS, on information, 69. PREMISES, indictment for selling liquor to be drank on, 650. PRINCIPAL AND ACCESSORY, in forgery, against, cited, 475. PRINCIPAL OF SECOND DEGREE, formula for allegations against, 114 form, and precedents cited, 115. in misdemeanor and treason, 119, 130. in arson, cited, 190. in burglary, cited, 356. in felonious homicide, 539. PRINTED BLANKS, forms of indorsements on the, 73. PRINTED SHEETS, for larceny of, cited, 593. PRINTS (see Obscene Pkints). PRISON, for pulling down, cited, 854 for not repairing, cited, 854 661 PEl] INDEX TO rOKMS AND SUBJECTS. [PUB Eeferences are to sectiona PRISON BREACH, RESCUE, ESCAPE, indictments for; namely, — formula, and precedents cited, 890. against prisoner for escaping, 891. against prisoner for breaking, etc., 892. third person for rescuing, or iielping to escape, 893. conveying to prisoner instruments for escape, 894. against officer for permitting escape, 895. same for negligent escape, 896. statutory permitting of escape, 897. PRISONER, indictment for refusing to assist officer to detain, 845. proceedings for returning, to prison when at large, cited, 898, nota PRISONER BREAKING OUT, indictment, 893. PRISONER ESCAPING, indictment, 891. PRIVATE PRISON, indictment for libel on, common form, 620. PRIVATE STATUTE, form for setting out, and allegations upon, 132 and note. PRIVATEERING (see Neutrality Laws). PRIVATELY CARRYING WEAPON, to terror, indictment for, 266. PRIZE-FIGHTING, indictment for, cited, 900. being present at prize-iight, 901, leaving state to engage in, 902. PROCESS (see Prayer for Process). PROCURER, how indicted, 119-121. PROCURING OBSCENE LIBEL, with intent to publish, cited, 629, note. PROFANITY (see Blasphemy and Profaneness), indictments for, 858, 859. PROFESSIONAL GAMBLER, indictment for being, 494 PROMISSORY NOTE, for embezzlement of, cited, 411. indictment for forging and uttering, 464 for larceny of, fi04. PROMOTING LOTTERY, indictment for, 673, 674 PROPERTY (see Bought Property). PROPERTY MORTGAGED (see Mortgaged Property). PROSECUTING OFFICER, indorsements of name of, etc., on the indict- ment, 72; as to his duty, 313, 314 396, 547. PROSTITUTE, indictment to procure one to marry a, cited, 293, note. PROVISIONS (see Noxious and Adulterated Food). PROVOKING CHALLENGE, to duel, indictment for, 380. PROWLER (see Feeding Armed Prowlers). PUBLIC BUILDING, indictment for arson of a, 183. PUBLIC CONVEYANCES, for manslaughter by ill management of, cited, 530, note. indictment for civil injury of death by ill management of, 531. PUBLIC GROUNDS (see Way). 663 pub] index to foems and subjects. [bap References are to sections. PUBLIC HOUSE (see Innkeeper), indictment against keeper of, for entertaining on Lord's day, 667. PUBLIC INJURIES, indictments for conspiracies to inflict, 309-311. PUBLIC OFFICERS (see Official Persons), indictment for embezzlement by, 409. PUBLIC PLACE, indictment for being drunk in a, 375. for gaming in a, 493. PUBLIC PONDS, for oflEenses against, cited, 1039. PUBLIC RECORDS (see Record), for forging, cited, 475. seals, 476. PUBLIC SHOW (see Evil Shows and Exhibitions), indictment for setting up, unlicensed, 1000. PUBLIC STATUTE, for injuring a, cited, 730. PUBLIC WAY, for assault in, cited, 333, note. PUNISHMENT (see Offense Repeated), information for further, because of prior sentence, 97. PURCHASES AND SALES, for wrongful, by bankrupt, cited, 334. PURCHASING CATTLE, for violating regulations about, cited, 170. PUTTING OUT EYE, indictment for, cited, 745. PUTTING IN FEAR, indictment for larceny with, 587 ; allegation in other connections, 587. PUTTING OFF (see Uttering). Q. QUAKER, for perjury in oath by, cited, 876. QUALIFIED, indictment for voting when not, 386. QUALITY OF GOODS, indictment for false pretenses as to, 485, note. QUARANTINE, indictment for breach of, 513. QUARRYING STONE, for nuisance of, cited, 831. QUASH (see Motion to Quash Indictment). QUESTIONS, against bankrupt refusing to answer, or wrongly answering, cited, 336. E. RAILER AND BRAWLER, indictment for being, 835. RAILROAD, indictment against, for civil injury of causing death by ill management, 531. RAILROAD CAR (see Horse-Raileoad Car). RAILROAD TICKET, indictment for larceny of, cited, 605. RAILWAY PASS, for forging, cited, 475. RAILWAY TRACK, indictment for obstructing, 1031. RANGE (see Accustomed Range). RAPE (see Caenal Abuse), for prevailing on woman to compound, cited, 134, note, indictment for conspiracy to commit, 293; cited, 388, note. for conspiracy to charge with, to extort money, cited, 300, note, indictment for murder by, 534. 663 EAP] INDEX TO FOEMS AND SUBJECTS. [eEP References are to sections. RAPE AND CARNAL ABUSE OF CHILDREN, indictments for; namely, — formula, and precedents cited, 904. rape, common-law form, 905. same on statute, 906. carnal abuse of female child, 907, 908. same, betwen the ages of ten and twelve, 909. assault with intent to commit, 910, 911. forms for other attempts, and solicitations, cited, 913, 913, against persons, who were present aiding, 914. REALTY, indictments for various injuries to the, 733-729. REBELLION, for conspiracy to join, cited, 313, note. for advancing money to assist, cited, 943. RECEIPT, for assault and taking away, cited, 333, note. for forging and uttering a, cited, 471. RECEIVING STOLEN GOODS, indictments for; namely, — formula, forms, and precedents cited, 916. obtained by false pretenses, 918. RECORD (see Public Records), forms for the extended, 1070-1073. RECORD OF COURT, indictments for larceny of, cited, 605. RECORD ENTRY, of order quashing indictment, 1033. RECORD FACT, forms for alleging, 94-97, 117, note. RECORD OF MARRIAGE, indictment for conspiracy to procure false, 397. RECORDED, for neglect to have mark of cattle, cited, 168, note. REFEREES (see Arbitrators and Referees). REFUSING TO ASSIST OFFICER, indictment for, 844^-847. REFUSING TO BE EXAMINED, bankrupt's, cited. 336. REFUSING OFFICE, indictment for, 919. pleas in bar to indictment for, cited, 1046, note. REFUSING TO ASSIST OFFICER, 844-847. REFUSING TO SOLEMNIZE MARRIAGE, indictment for, cited, 733. REFUSING VOTE, indictment against election officers for, 390. REGISTER OF VESSEL, for refusing to deliver up certificate of, cited, 975. REGISTERING SALES OF LIQUOR, indictment for not, 658. REGISTRY LAWS, for violating the, cited, 297, 923, 933. RELIGIOUS MEETINGS (see Disturbing Meetings). REMOVING FENCE, without license, indictment for, 995. REPETITIONS OF OFFENSE, indictment for nuisance by, 818; causing heavier punishment, 91-97. REPLICATION, to plea to jurisdiction, 1056. to plea of misnomer in abatement, 1057. to plea of incompetency of grand juror in abatement, 1058. to plea in bar, 1059. 664 eeq] index to eoems and subjects. [sea References are to sections. EEQUEST, indictment for forging and uttering a, 470. RESCUING PRISONER (see Prison Breach, etc.), indictment for, 893. RESIDENCE (see Place of Abode), allegations of the, 74, 75. RESIDING IN BAWDY-HOUSE, cited, 787. RESISTING OFFICER, policeman, 19, note. various forms of indictments for, 838-843. RETAILING LIQUOR, indictments for, 649-654 REVENUE, for conspiracies to defraud government of, cited, 313, note. REVENUE LAWS (see Business; Tax and other Revenue Laws). REVOLT, indictments for, cited, 580. RIDING ARMED, common-law indictment for, 263. RIDING OVER ONE, indictment for murder by, 523. RIOT (see Suppress Riot), indictment for, 939; refusing to assist officer to suppress, 847. RIOTOUS CONDUCT, with injury to dwelling-house, indictment for, 707. ROAD CROSSINGS, for not erecting signs at, cited, 757. ROAD OFFICERS (see Way), for neglects by, cited, 1019. ROB, indictment for assault with intent to, 215. ROBBERY, for conspiracy to commit, cited, 288, note. indictments for; namely, — formula, forms and precedents cited, 933. committed while armed, etc., 935. statutory degrees of, precedents cited, 936, assault with intent to rob, 937. ROBBING MAIL, cited, 885. ROGUE (see Incorrigible Rogue), ROUT, indictment for, 928. RUNNING HORSE IN WAY, interrupting travel by, cited, 1015. S. SABBATH (see Lord's Day). SABBATH-BREAKER (see Common Sabbath-Breaker). SALES (see Fraudulent Conveyances; Purchases and Sales; Unli- censed Sale). SALOON (see Victualing House). SAW-MILL, indictment for injuring, 728. SCALES (see False Scales). SCHEDULE, for omissions from, by bankrupt, cited. 231. SCHOOL (see Grammar School; Institution op Learning). SCHOOL LANDS, indictment for waste and trespass on, 993. SCOLD (see Common Scold). SCREEN, indictment for maintaining, in liquor selling, 659. SEA BEACH, for neglect to repair, cited, 757. 605 sea] index to foems and subjects. [sep References are to sections. SEAL (see Instrtjments undee Seal; Stamps and Seals). SEAMEN (see Leaving Seamen). SEAS (see High Seas). SECOND DEGREE (see Principal of Second Degree). SECOND OFFENSE (see Offense Repeated). SECRETING (see Embezzling and Secreting). SECULAR MEETING, indictment for disturbing, 368. SECURITIES, indictment for conspiracy to enhance price of, by false news, 310. for embezzling various, cited, 411. SEDITION (see Treason), indictments for, cited, 940-942. SEDITIOUS LIBEL, indictment for, 631. "SEDITIOUSLY," in indictment for libel, 619, note. SEDUCTION AND ABDUCTION OF WOMEN, indictment for conspiracy to seduce and debauch, 894 to procure elopement and marriage. 396. to abduct girl, with marriage under false representations, cited, 396, note, indictments for; namely, — formula, and precedents cited, 944 taking girl out of possession of parents, 945. seducing female by fraud, 946. married man seducing chaste woman, 947. seducing and debauching unmarried chaste woman, 948. seducing female under promise of marriage, 949. obtaining carnal knowledge by false promise of marriage, 950. same in violation of trust, precedent cited, 951. SEEDS, for adulterating, by dyeing, cited, 773. SELECTMEN, indictment of, for neglect to appoint liquor agent, 684 SELF (see Making Self a Nuisance; Witness for Self). SELF-MURDER, indictment against principal of second degree in, 953. against accessory before the fact in, 953. for the attempt, 954 SELLING COUNTERFEIT): COIN, cited, 344 note. SELLING GOODS, on Lord's day, indictment for, 665. SELLING LIQUOR (see Liquor Keeping and Selling). SELLING LOTTERY TICKETS, indictment for, 677. SENDING CHALLENGE (see Challenging). SENTENCE, information for further, 97. form of the, in record, 1070-1073. SEPULTURE (see Burial), indictments for violations of; namely, — dissecting dead body instead of burying, 956. disinterring dead body, at common law, 957. same, contrary to statute, 958. for burning dead body, cited, 956, note. 666 sek] index to foems and subjeots. [sol References are to sections. SERVANT (see Indentured Servant), indictments for conspiracy to notice away, 303, 304. for larceny by, 584; seduction and defilement of, 294. SETTING UP LOTTERY, indictment for, 673, 674. SHAM MARRIAGE, for conspiracy to seduce a woman by, cited, 294, note. SHELTER FOR ANIMAL, indictment for not providing proper, 356. SHIP (see Wrecked Ship), form for charging offense committed in, 89. indictment for conspiracy to destroy, 286. SHOOTING (see Malicious Shooting), indictment for assault by, and precedents cited, 212. for, at one in duel, cited, 881. SHOOTING WITH INTENT, cited, 226, note. SHOOTING PIGEONS, cited, 362, note. SHOP (see Keeping Open Shop), indictment for larceny in, 588. SHOWS (see Evil Shows and Exhibitions; Public Show). SIDEWALK, indictmeut for permitting swine upon, 171. SIGNATURE, indictments for obtaining, by false pretenses, 428. SIGNS, for not erecting at road-crossings, cited, 757. SIGNS AND PICTURES, indictments for libel by; namely, — formula, and precedents cited, 639. by eflBgy, 630. exhibiting obscene painting, 631. SIMPLE LARCENY (see Larceny). SINGING SONGS, for slander by, cited, 635. SLANDER (see Libel and Slander; Oral Words). SLAUGHTERrHOUSE, indictment for nuisance of, 830; cited, 831. SLAUGHTERING CATTLE, indictment for violating regulations about, 170. SLAVE TRADE, for engaging in, cited, 959, 981. SLAVERY, for some old offenses against, cited, 575. SLEIGHT OF HAND, indictment for obtaining money by, 432. SLITTING NOSE, indictment for, 743. SMALL-POX, indictment for taking one having, into public place, 814. SMOKE, for nuisance of deleterious, cited, 813. SMUGGLING, indictments for, cited, 972. SOAP MANUFACTORY, for nuisance of, cited, 831. SOCIETY (see Assoclition), for cheating by false pretense of being member of a, cited, 435. SODOMY, indictment for, 963. for solicitation to, 964 for assault with intent to commit, 965. SOLDIERS, against town for neglect to relieve, cited, 757. SOLEMNIZING MARRIAGE, indictment for, of persons under impediment, 734. without consent of parents, 735. 667 sol] index to foems and subjects. Beferences are to sections. SOLEMNIZING MARRIAGE (continued), without banns or license, 736. being unauthorized to solemnize, cited, 737. SOLICITATION (see Attempt), indictment for, and precedents cited, 106. to commit abortion, cited, 148, note, indictment for, to commit arson, 195. battery, and precedents cited, 335. indictment for, to commit burglary, 353. larceny, 611. to officers, to violate duty, cited, 853, note. to soldiers, to mutiny, cited, 853, note. to one to enlist as soldier in another state, cited, 853, note, to carnal abuse of child, cited, 913. SONGS (see Singing Songs). SPARKS FROM LOCOMOTIVE, precedent for emitting, cited, 790. SPEAKER OF HOUSE, for assault on, cited, 233, note. SPECIAL LOCALITY, charging offense committed in, 89, 90. SPECIAL STAUTORY LARCENIES, indictments for, 609. SPIRITUOUS LIOUOR (see Liquor Keeping and Selling). STABBING, indictment for murder by, 530. precedents for, cited, 696. STABBING AND CUTTING (see Malicious Injuries to Person), for assault by, cited, 833, note. STAGNANT WATER, indictment for nuisance by, 816. STAMPS AND SEALS, indictment for forging and uttering, 476. STARE DECISIS, doctrine of, 546, note. STARVING, indictment for murder by, 535. STATE (see Authority of State). STATE'S ATTORNEY (see Prosecuting Officer). STATUTE (see Private Statute; Public Statute), conclusion against form of, 66, 67. STATUTE OF LIMITATIONS, plea of, 1046, note. STATUTORY INDICTMENTS, in homicide, 33, 541-546. STATUTORY LARCENIES (see Special Statutory Larcenies). STEAM-ENGINE, for nuisance of, cited, 831. STOCK (see Transfer of Stock). STOLEN (see Thing Stolen). STOLEN GOODS (see Receiving Stolen Goods), for receiving money to help one to, cited, 854 STORE, Indictment for larceny in, 588. STOREHOUSE, indictment for gaming in, 493. for larceny from, 588. STRANGLING (see Choking and Strangling). STREET (see Way). STRIKES, evils of, 313; when indictable, 305, 306. sub] index to foems and subjects. [the References are to sections. SUBORNATION OF PERJURY, 966-969 (see Perjury), indictment for, 968. SUFFERING CRUELTY TO ANIMALS, indictment for, 360. SUICIDE (see Self-murder). SUNDAY (see Lord's Day). SUPERSEDEAS, for perjury in petition for writ of, cited, 876. SUPPRESS RIOT, indictment for not assisting officer to, 847. SURGEON, indictment for practicing as, unlicensed, 999. SURPLUSAGE, to be avoided, 2, 7, 237, 228, 549-556. SURREJOINDER, precedent of. cited, 1060. SURRENDERING HIMSELF, to be examined, bankrupt not, cited, 335. SURVEYOR OF CUSTOMS, for perjury before, cited, 876. SURVEYOR OF HIGHWAYS, for malfeasance by, cited, 687. SUSTENANCE (see Necessary Sustenance). SWINDLING (see False Pretenses), precedents for, cited, 430. SWINE, indictment for permitting, on sidewalk, 171. SWORD, indictment for assault with, and precedent cited, 312. TAKEN UP ARMS, for perjury in swearing that the party had not, cited, 876. TAMPERING WITH WITNESS, 852. TAX COMMISSIONERS, for perjury before, cited, 876. TAX AND OTHElt REVENUE LAWS (see Unlicensed Business), precedents for offenses against the, cited, 972-975. • TECHNICAL TERMS, 31. TEN DAYS, two utterings within, indictment for, 339. TENDERING (see Uttering). TENEMENT (see Liquor and Tippling-shops), indictment for nuisance of keeping, for selling liquor, 830. TERRITORIAL LIMITS, charging offense committed out of, 89, 90, 538. TERROR, riding to excite, common-law indictment for, 263. carrying weapon to, 366. TESTIMONY (see False Testimony). TESTIMONY AT TRIAL, indictment for perjury in, 875. TEXAS, indictment in, for larceny, 609. THEATRE, for opening, on Lord's day, cited, 671. THEATRICALS, indictment for unlicensed, 1000. THING STOLEN, forms for description of the, 593, 593, 696-599, 603, etc THIRD PERSONS, allegations of names of 79. THREATENING LETTERS AND OTHER THREATS, indictment for tumultuous public threats of injury, 262. for threats to induce relinquishment of verdict, 327. threats made to deter witness from appearing, 328. 689 the] index to foems akd subjects. [tek Eeferences are to sections. THREATENING LETTERS AND OTHER THREATS (continued), other indictments for; namely, — formula, and precedents cited, 977. for sending threatening letter, cited, 978. for threat to accuse of crime with intent to extort, 979. demanding things by threats, cited, 980. THROAT (see Cutting the Throat). THUMB, indictment for lacerating and disabling the, 744 TICKETS (see Lottery Tickets). TIMBER, for putting, in street, cited, 1015. TIMBER AND TREES, indictment for malicious injuries, 72a TIME AND PLACE, allegations of, 80-90, 258, 663. TIPPLING-HOUSE (see Liquor and Tippling Shops), indictment for common-law nuisance of keeping, on Sunday, 632, note, precedent cited, 671 ; full exposition, 817, 818. TITLE (see Land -without Title). TOLL-DISH (see False Toll-dish). TOLL-GATE, for injuring, cited, 730, 985. TOLLS, OFFENSES AS TO, indictment for Iseeping false toll-dish, 982. for demanding or taking illegal tolls, 983. for evading tolls, cited, 984 for other forms of the offense, cited, 985. TOOLS FOR COUNTERFEITING, indictment for possessing, 343, 348. TORTURING ANIMALS, indictment for, 349. TOWN MEETING, indictment for disturbing, 368. TRADES (see Noxious and Offensive Trades). TRADING NEAR CAMP-MEETING, cited, 372. TRAFFICKING IN APPOINTMENTS, to pUblic office, cited, 394 TRANSFER OF STOCK, for forgery of, cited, 475. TRANSPORTING ANIMAL, cruelty, indictment for, 359. TRANSPORTING LIQUOR, unlawfully, indictment for, 646. TRAVELERS MEETING, indictment for disobeying law of road at, 1020. TRAVELING, on Lord's day, indictment for unlawful, 667. TRAVELING FOR ORDERS, for intoxicating liquor, indictment, 657. TREASON (see Sedition), for conspiracy in nature of, cited, 312, note, for sedition in nature of, cited, 942. indictments for; namely, — English form for levying war, 987. levying war against United States, 988. adhering to enemies, 989. TREASURER (see County Treasurer). TREES (see Timber and Trees), malicious mischief to, 725, 726. TRESPASS TO LANDS (see Forcible Entry and Detainer), indictments for; namely, — formula, and precedents cited, 992. 670 TEEj INDEX TO FOEMS AND SUBJECTS. [UNL Eeferences are to sections. TRESPASS TO LANDS (continued), to school lands, 993. entering on premises after being forbidden, 994. removing fence, 995. TRIAL (see Testimony at Trial). TRIPE-BOILING, indictment for nuisance of, 829. TRUANCY, for oflEense of, cited, 1008. TRUST, for seduction in violation of, cited, 951. TRUSTEES, for embezzlements by, cited, 411. TRUTH OF LIBEL, plea of, cited, 639. TUMULT (see Brawl and Tumult). TUMULTUOUS AND OFFENSIVE CARRIAGE, indictment for, 85& TURNPIKE (see Way). TWICE SELLING, land, indictment for, 487. TWO OR MORE, indictment for assault on, 321. by, assault on each other, 238. TWO UTTERINGS, on same day, within ten days, Indictment for, 339. u. UNAUTHORIZED PERSON, against, for solemnizing marriage, cited, 737. UNBORN, indictment for conspiracy to murder, 387, note. UNCOVERED EXPOSURE, indictment for nuisance of, 804. UNDERWRITERS (see Insurers), indictment for conspiracy to cheat, by removing goods out of sinking ship, 286. UNFIT FOR LABOR, indictment for driving animal when, 357. UNINHABITED DWELLING, indictment for arson of an, 182. UNKNOWN MEANS, indictment for murder by, 520; when alleged in in- dictment for conspiracy, 284-293 et seq. UNKNOWN NAME, allegations of, 77, 79; instrument unknown, 143. UNLAWFUL ASSEMBLY, indictment for, 937. UNLAWFUL DRIVING (see Driving). UNLAWFUL FISHING (see Fish and Game). UNLAWFUL HERDING (see Herding). UNLAWFUL OATH, indictments for, cited, 853. UNLICENSED BUSINESS (see DoG; Liquor Keeping and Selling; Tax and Other Revenue Laws), indictments for; namely, — formula, and precedents cited, 997. unlicensed dealing as merchant, 998. physician or surgeon, unlicensed, 999. theatricals, and other public shows, not licensed, 1000. ' for other sorts of unlicensed business, cited, 1001. UNLICENSED PLAY (see Plat Unlicensed). UNLICENSED SALE (see Liquor Keeping and Selling), of liquor, indictment for, 649. I 671 unm] index to forms and subjects. [vox Beferences are to sections. UNMARRIED, for false pretense of being, cited, 435. UNNECESSARY CRUELTY, indictment for inflicting, on animal, 355. UNRULY BULL, for keeping, cited, 789, note. UNWHOLESOME AIR (see Injurious oe Offensive Am). UNWHOLESOME FOOD AND WATER (see Noxious and Adulterated Food), for nuisance of, cited, 835. "UPON THE PERSON," assault, indictment for, 217. USING ESTRAY, unlawfully, indictment for, 176. USURPING OFFICE, indictments for, «48, 849. USURY, indictment for, 1003. UTTERING COUNTERFEIT COIN, indictments of various sorts for, 331, 337-340. attempts at, 341-343, note to 344. UTTERING FORGERIES (see Forgery of Writings). UTTERING, HAVING OTHER, counterfeit coin in possession, indictment for, 340. VACCINATING, indictment for neglect of, 514. VAGABOND AND ROGUE, for being, cited, 1009. VAGRANCY, indictment for, 1010. VALUE 164, 174, 176, 390, 699, 703, 709, 713. VALUABLE SECURITY (see Security), indictments for larceny of, cited, 605. " VALUABLE THING," indictment for gaming for, 493; how allege, 397, note. VEAL, indictment for selling corrupted, 767. VEHICLES, standing in street, indictment for, 1014. indictment for collision of, contrary to law of road, 1020. VENUE (see Change of Venue). VERDICT, indictment for threat made to induce relinquishment of, 327. form of the, in record, 1070-1073. VESSEL (see Destroying Propebty; Fitting Out Vessel). VICTUALING HOUSE, for keeping, unlicensed, cited, 1001. "VIOLENTLY," how alleged in assault with intent to rob, 905, nota VOLUNTARY ESCAPE, indictment against officer for, 895-897. VOTE (see Refusing Vote), indictment for refusing to receive, 390. VOTER (see Election Bribery', for giving money to, to repeat vote, cited, 349, note, to vote for particular candidate, 249, note. VOTING (see Election Offenses). 673 wag] index to foems and subjects. [whb Beferences are to sections. w. WAGrES, indictments for conspiracies to raise and reduce, 806, 307, 308, note. WAGON (see Vehicles). WALKING STICK, indictment for assault with, and precedents cited, 213. WAREHOUSE AND ELEVATOR, for keeping, unlicensed, cited, 1001. WARRANT (see County Wabkant), for conspiracy to destroy, cited, 313, note, indictment for forging and uttering, 470. WARRANT OF ATTORNEY, for forgery of, cited, 475. WATER (see Stagnant Water; Unwholesome Food and Water). WATER-COURSES (see Wat), indictments for various offenses against, 1036-1039. WAY (see Public Wat; Sidewalk), indictment for obstructing, by hanging over it clothes to dry, 134. pleas in bar to indictment for non-repair of, 1046, note, indictments for offenses against a public; namely,— formula, and precedents cited, 1013. The ordinary and turnpike streets and roads, — obstructing common highway, usual English form, 1014. modified for American use, 1015. non-repair of public way, 1017. for not making a road, cited, 1018. for neglects by road oflScers, cited, 1019. travelers violating law of road at meeting, indictment, 1030. The railways,— obstructing track, 1031. for other offenses against the railways, cited, 1033. The public bridges, — for not repairing, not building, pulling down, cited, 1023. Tfie public squares and pleasure-grounds, — erecting building on public square, 1034. for other offenses against public squares and pleasure-grounds, cited, 1035. The rivers and other like ways by water, — obstructing navigable river, 1036. obstructing creek, 1037. for obstructing, diverting, and otherwise injuring other water-courses, cited, 1038. The harbors andpublio ponds, — for offenses against, cited, 1039. WEAPONS (see Oarkting Weapons; Dangerous Weapon; Deadlt Weapon). WEEK, allegation of day of. 85. WEIGHT OR MEASURE, for cheating by false, cited, 435. WELL (see Poisoning Well). WHEEL OF FORTUNE, indictment for keeping a, 499, 50a / 7 43 673 whe] index to foems and subjects. [wei References are to sections, "WHEREAS," use of in allegation, 26. WHIP, indictment for assault with, and precedents cited, 313. WIFE (see Maeeied Woman), indictment for conspiracy to entice, from husband, 298. against husband for manslaughter of, by neglect, 530. WILB FOWL, indictment for having, recently killed, 436. WHiFUL AND WANTON WOUNDINGS (see WouNDiisra Animal). WINNING (see Feaudulbnt Winning; Losing oe Winning). WITCH, for slandering one as being, cited, 635. WITHDRAWAL OP JUROR, record of entry of, 1035. WITHDRAWAL OF PLEA, record of entry of, 1085. WITNESS (see Dissuading Witness; Testimony at Teial), for conspiracy to prevent, giving evidence, cited, 312, note. indictment for hindering, 328; how allege summons of, 338, note. WITNESS FOR SELF, indictment for perjury as, 875, note. WITNESSES, form for indorsing, on indictment, 72. WOMAN WITH CHILD, for assault on, cited, 333, note. WORDS (see Opprobeious Language; Oppeobeious Woeds; Oeal Woeds), statutory offense of speaking, 344; how allege^ in disturbing meeting, 364; of challenge to duel, 378-380. disturbances by, 858, 859. WORK (see HouES OP Laboe; Labor Offenses), indictment for doing unlawful, on Lord's day, 668, 669. WORKMEN, indictments for conspiracy to seduce, from employer, 308, 304 to compel, to join association, 805. to compel employer to discharge, 305. by, to raise their wages, 306. against, to reduce wages, 307. WORSHIP, form for alleging time of, 86. WORTHLESS PAPER, obtaining money by, as false pretense, 433. WOUNDING (see Malicious Injueies to Peeson), indictment for, 19, nota policeman, with intent, 19, note. precedents for, cited, 333, note, 696. with intent to maim, 747. WOUNDING ANIMAL, wilful and wanton, as cruelty, indictment for, 353. indictment for, as malicious mischief, 717. WRECKED SHIP, indictment for larceny from, 58a WRIT, indictment for forging and uttering a, 463. WRIT OF CERTIORARI (see Ceetioeaei)^ WRIT OF ERROR, attorney-general's flat for, 1084 petition for, 1985. form of writ, 1086. 674 WEl] INDEX TO FOEMS AND SUBJECTS. [WEO Eeferences are to sections. WRIT OF ERROR (continued), coram nobis or vohis, 1087. return, 1088. certiorari, for diminution of record, in aid of, 1089. assignment of errors, 1090. WRITINGS (see False Weitinq), indictments for larceny of, 601-605. WRITTEN BLASPHEMY AND PROFANENESS, formula and indictment for, and precedents cited, 243. WRITTEN INSTRUMENTS, in foreign language, 619, note. WRONG SIDE, what counsel on, may do, 40. 675