~ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE 8CH00I- By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS '"'^MiilSSi; iteteffl „tf.e,.a.«fhorlty and Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024685814 PRACTICAL TREATISE ON THE AUTHOEITY AND DUTIES OF TRIAL JUSTICES, DISTRICT, POLICE, AND MUNICIPAL COURTS, IN CRIMINAL CASES. WITH rOEMS IN CRIMINAL PROCEEDINGS, AND PRECEDENTS OP COMPLAINTS, INDICTMENTS, AND SPECIAL PLEAS. BY FRANKLIN FISKE HEARD. BOSTON: LITTLE, BROWN, AND COMPANY. 1879. Entered according to Act of Congress, in tlie year 1878, by FEASKLIK FISKE HEARD, In the Office of tlie Librarian of Congress at Washington. CAMBRIDGE: PRESS OF JOHN WILSOK AND SON. PREFACE. It has been the aim of the Author to make the pres- ent work practically useful. No pains have been spared to adapt it to the wants of the magistrate and of the Profession generally. The statutes and cases passed and decided up to the time of publication have been noted and inserted. Such portions of the Author's edition of Davis's Criminal Justice' as were available have been incorporated into this volume. A full collection of Forms in Criminal Proceedings has been inserted. The Precedents of Complaints and Indictments have been carefully drawn. Those on the statutes of Massachusetts are original, and with very few exceptions have never been before published. All superfluous and redundant allegations have been rigidly excluded.^ The Pleader should always be 1 Third edition, a.d. 1853. gina v. Webb, 1 Denison C. C. 344; 2 " There is no rule that redun- Temple & Mew C. C. 29. " A de- dancy of allegation is prejudicial parture from the ancient precedent to an indictment," said that acute and form is an experiment which is judge, Mr. Justice Maule,in Regina always to be deprecated in the ad- V. Clarke, Dearsly C. C. 202; 3 C. ministration of the criminal law." & K. 371. On the other hand, in Per Whiteside, C. J., in Regina v. the language of Pollock, C. B., "It O'Neill, Irish Rep. 6 C. L. 4, 5. is very desirable to adhere to the "Novel attempts in pleading are known forms, instead of making not to be encouraged." Per Ab- experiments to see with how small bott, C. J., in Rex v. Stevens, 5 B. amount of legal averment an in- & C. 250. "The object of having diotment can be sustained." Re- certain recognized forms of pleading IT PREFACE. mindful of Cowper's precept, that " perspicuity is more than half the battle." A good Complaint or Indictment, like a good Declaration, is of itself a story ,^ — perspicu- ous, continuous, finished, passing lucidly on in logical sequence from the first allegation to the conclusion.^ The condition in which Criminal Pleadings now stand is somewhat peculiar. Indeed, so far as the defendant is concerned, the Pleadings are almost entirely useless, neither serving to inform him what the crime is for which he is about to be tried, nor as a record of the past, in case he should ever be put to the plea of au- trefois acquit or convict.^ It is to be observed that Justices of the Peace have no power, authority or jurisdiction in criminal cases, except as conservators of the peace. And when any criminal jurisdiction is given to Justices of the Peace, it shall he construed to mean Trial Justices.'^ is to prevent the time of the court 154, per Coleridge, J. Regina v. from being occupied with vain and Waverton, 2 Denison C. C. 347. useless speculations as to the mean- Regina v. Webster, Bell C. C. 157, ing of ambiguous terms." Per Pol- per Cockburn, C. J. Regina v. lock, C. B,, in Williams v. Jarman, Scott, 13 Cox C. C. 599, per Cock- 13 M. & W. 133. Stephen PI. 391, burn, C. J. Regina v. Home, 4 9th Amer. ed. Cox C. C. 266, per Patteson, J. 1 Narratio, the old French term Commonwealth v. McLoon, 5 Gray, for declai'ation or count. 92, 93. Commonwealth v. Miller, 2 In Hale's Pleas of the Crown 8 Gray, 486 ; 116 Mass. 341. Com- it is said that " An indictment is monwealth v. Hart, 10 Gray, 467. nothing else but a plain, brief and Commonwealth v. Barhight, 9 Gray, certain narrative of an ofEence com- 114. Commonwealth ». Desmar- mitted by any person, and of those teau, 16 Gray, 16. Commonwealth necessary circumstances that con- v. Traverse, 11 Allen, 261. Com- cur to ascertain the fact and its monwealth v. Hagarman, 10 Allen, nature." 2 Hale P. C. 169. 402. Commonwealth v. Sherman, " And still the Judges are con- 105 Mass. 171. Regina v. Jarrald, stantly regretting the laxity and in- Leigh & Cave C. C. 307, per Cock- artificial form of allegation which burn, C. J. Commonwealth v. prevail in criminal pleading. Re- Johns, 6 Gray, 278. gina V. Botfield, C. & Marsh. 153, * Gen. Sts. ch. 120, § 36. PREFACE. V The St. 1877, ch. 211, § 1, enacts that "No justice of the peace, not designated and commissioned as a trial justice, shall hereafter have or exercise any power, au- thority or jurisdiction to try civil cases, or receive com- plaints, or issue warrants: provided, however, that any justice of the peace who shall also be a clerk or as- sistant clerk of any municipal, district or police court, may receive complaints and issue warrants, returnable before some trial justice, police, district or municipal court, having jurisdiction of the examination of the person charged with the oflFence." Boston, December, 1878. EEPORTERS AND TEXT-WRITERS CITED. The editions of the principal Reporters and Text-writers cited, when not otherwise expressed, are the following : — Archbold Criminal Pleading, Eighteenth Edition, London, 1875. Bennett and Heard Leading Criminal Cases, Second Edition. Best on Evidence, Sixth Edition, London, 1875. Chitty Criminal Law, Second Edition, London, 1826. Folkard on Slander and Libel, Fourth Edition, London, 1876. Foster Crown Cases, Third Edition, London, 1792. Hale Pleas of the Crown, London, 1800. Hawkins Pleas of the Crown, Eighth Edition, London, 1824. Kelyng Crown Cases, London, 1873.- Leach Crown Cases, Fourth Edition, London, 1815. Powell on Evidence, Fourth Edition, 1875. Report of the Penal Code of Massachusetts, a.d. 1844, and Supple- mentary Report, A.D. 1845. Russell on Crimes, Fourth Edition, London, 1865.-^ Saunders Reports, Sixth Edition, London, 1845. Smith Leading Cases, Seventh Edition, London, 1875. Starkie on Criminal Pleading, Second Edition, London, 1828. Starkie on Evidence, Fourth Edition, London, 1853. Stephen Commentaries, Seventh Edition, London, 1874. Stephen Digest of the Criminal Law, London, 1877. Stephen on Pleading, Second Edition, London, 1827. Taylor on Evidence, Sixth Edition, 1872.^ Williams's Notes to Saunders's Reports, London, 1871. 1 The fourth edition was pub- had no connection with this edi- lished in 1885. The fifth edition, tion. edited by Samuel Prentice, Esq., ^ The seventh edition was pub- was published in 1877. Mr. Greaves lished in 1878. CONTENTS. , Page Repoktees and Text-Weitees Cited vi Table of Cases Cited xvii PART I. CHAPTER I. Application for Process 1 CHAPTER II. Complaint 23 CHAPTER III. Warrant 99 CHAPTER IV. Search- Warrants 110 CHAPTER Y. Arrest and Execution of Process 128 CHAPTER VI. Examination and Trial 152 CHAPTER VIl. Competency of Witnesses 175 CHAPTER VIII. Confessions 189 Vlll CONTENTS. CHAPTER IX. Examination of Witnesses 202 CHAPTER X. Appeals 224 CHAPTER XI. Bail and Recognizance 233 CHAPTER XII. Commitment 260 CHAPTER XIII. Taxation of Costs 273 CHAPTER XIV. Certifying Process and Returning Recognizances .... 286 PART II. CHAPTER XV. Forms in Criminal Proceedings 295 PART III. CHAPTER XVI. Precedents of Complaints, Indictments and Special Pleas . 351 CHAPTER XVII. Abduction 356 CHAPTER XVIII. Abortion 859 CONTENTS. X CHAPTER XIX. Accessory 366 CHAPTER XX. Administering Chloroform &c. with Intent to Commit In- dictable Offences 376 CHAPTER XXI. Adultery 377 CHAPTER XXII. Affray 382 CHAPTER XXIII. Arson and other Burning 383 CHAPTER XXIV. Assault and Battery 391 CHAPTER XXV. Attempts to Commit Crimes 405 CHAPTER XXVI. Barratry 412 CHAPTER XXVII. Bastard Children, Maintenance of 417 CHAPTER XXVni. Billiard Tables and Bowling-Alleys 425 CHAPTER XXIX. Blasphemy 427 CHAPTER XXX. Bribery 430 X CONTENTS. CHAPTER XXXI. Bonfires and False Alarms of Fire 432 CHAPTER XXXII. Burglary and Breaking and Entering Buildings 433 CHAPTER XXXIII. By-Laws and Ordinances 450 CHAPTER XXXIV. Cemeteries and Burials 452 CHAPTER XXXV. Compounding Offences 454 CHAPTER XXXVI. Conspiracy 456 CHAPTER XXXVII. Cruelty to Animals 502 CHAPTER XXXVIII. Disorderly House 504 CHAPTER XXXIX. Disturbance of Public Meetings &c 508 CHAPTER XL. Duelling and Challenging to Pigbt 510 CHAPTER XLI. Dogs 518 CHAPTER XLIL Drunkenness 515 CONTENTS. XI CHAPTER XLIII. Elections 521 CHAPTER XLIV. Embezzlement 524 CHAPTER XLV. Embracery 538 CHAPTER XLVI. Escape 541 CHAPTER XLVII. Extortion 551 CHAPTER XLVIII. False Personation 553 CHAPTER XLIX. False Pretences 557 CHAPTER L. Forcible Entry and Detainer 610 CHAPTER LI. Forgery and Counterfeiting 615 CHAPTER LII. Fornication 644 CHAPTER LHI. Fraudulent Conveyance of Real and Personal Property . . 645 CHAPTER LIV. Gaming, Gaming-Houses and Gaming Implements .... 659 Xll CONTENTS. CHAPTER LV. Highways ■! 669 CHAPTER LVI. Hoistway Openings 672 CHAPTER LVII. Homicide 673 CHAPTER LVIII. Houses of 111 Fame 720 CHAPTER LIX. Incest 723 CHAPTER LX. Infant, Neglect to Provide for 724 CHAPTER LXI. Innholders, Boarding-House Keepers and their Guests . . 726 CHAPTER LXII. Larceny 728 CHAPTER LXIII. Lewdness and Lascivious Cohabitation 737 CHAPTER LXIV. Libel 740 CHAPTER LXV. Lord's Day, Observance of 745 CHAPTER LXVI. Lottery 750 CONTENTS. XIU CHAPTER LXVII. Maintenance 752 CHAPTER LXVIII. Malicious Mischief and Malicious Injury to Real Estate , . 753 CHAPTER LXIX. Mayhem 760 CHAPTER, LXX. Nuisance 761 CHAPTER LXXI. Officer, Refusing to Aid 765 CHAPTER LXXII. Offences against the Public Health 767 CHAPTER LXXIII. Obscene Books 769 CHAPTER LXXIV. Peijury 771 CHAPTER LXXV. Polygamy 785 CHAPTER LXXVI. Previous Conviction 788 CHAPTER LXXVII. Railroad Corporations 790 CHAPTER LXXVIII. Rape 794 XIV CONTENTS. CHAPTER LXXIX. Receiving' Stolen and Embezzled Property 796 CHAPTER LXXX. Rescue 799 CHAPTER LXXXI. Riot 801 CHAPTER LXXXII. Robbery 803 CHAPTER LXXXIII. Sale of Intoxicating Liquors 806 CHAPTER LXXXIV. Search-Warrant 808 CHAPTER LXXXV. Sepulchres of the Dead 813 CHAPTER LXXXVI. Shipping and Pilotage 815 CHAPTER LXXXVII. Slung Shot 816 CHAPTER LXXXVIII. Sodomy and Bestiality 817 CHAPTER LXXXIX. Street Railway Corporations 818 CHAPTER XC. Surety for the Peace and Good Behavior 821 CONTENTS. XV CHAPTER XCI. Threatening with Intent &c 823 CHAPTER XCII. Witness 825 CHAPTER XCIII. Pleas, Replications and Rejoinders 827 Index to Fokms 839 Index to Precedents of Complaints and Indictments, 841 General Index 853 TABLE OF CASES CITED. Page Abbott, Eegina v. 607 Abitbol V. Beiiiditto 33 Aeerro v, Petroni 207 Ackroyd, Eegina w. 789 Adams v. Adams S'2'2 Commonwealth v. 35, 90, 425, 426, 628, 729, 796 V. Moore 134 Kex V. 122, 658 V. Wheeler 219 Ady, Rex o. 564 Airey, Kex v. 604 Alderman, Commonwealth!). 101,172 Aldis !'. Mason 57 Allen, Commonwealth v. 670 V. London & South-western Railway Co. 135 Eegina i: 16, 794, 817 V. Wright 138 Alkenbrack v. People 58 Amesbury v. Bowditch Mutual Fire Ins. Co. 451 Amherst Bank v. Eoot 627 Anderson, Ee 270 Andrews, Commonwealth v. 251 V. Frye 216 Eegina v. 438 Annis, Commonwealth v. 187, 447 Archer, Rex v. 18 Ardley, Regina v. 561 Arnold, Commonwealth v. 59 Arrance, Commonwealtli v. 35, 223 Asliley, Commonwealtli v. 67, 721 Aspinall, Regina v. 42, 45, 97, 456, 458, 460, 462, 468, 563 Atkinson, Regina v. 801 Rex V. 622 Attorney-General v. Brown 391 V. Hawkes 32 V. Hitchcock 221 Attorney-General v. Justices of the Municipal Court of Boston 125 Page Attorney-General o. Justices of Municipal Court 660, 661 Attorney-General v. Macplierson 59, 394 V. Radloff 4 V. Sillem 5 Attwood, Regina v. 196 Austin, Commonwealth u. 251 V. Cox 18 Ayer, Commonwealth v. 427, 615, 617 Aylett, Rex v. 28, 771, 772 Ayres, Commonwealth v. 191 B. Bacon, Conramwealth v. 806 V. Williams 626 Badger, Regina v. 234, 235, 244, 552 Bagley, Commonwealth v. 552 Bailey, Ex parte 271 Commonwealth v. 78, 629 Eegina v. 448, 531, 667 Rex V. 200, 442 Baird, Commonwealth v. 249, 289, 290 Bakeman, Commonwealth v. 63, 736, 790 Baldry, Eegina v. 189,193, 194, 195, 201 Baldwin, Commonwealth v. 616 Ball, Eex o. ,385 Ballou, Commonwealth v. 54, 68,^27, 721 Bamford v, Turnley 761 Bancroft r. Mitchell 3 Banks y. Farwell 111, 731 Barbat v. Allen 182 Barliight, Commonwealth v. 14, 24 Barker o. Stetson 13 Barnard, Commonwealth v. 37, 679 Eex V. 598 Barnes v. Harris 184 Eegina v. 558 Barney, Commonwealth v: 385, 387, 436 XVIU TABLE OP CASES CITED. Barons v. Luscombe Barran, Eegina v. 109 Barratt, Regina v. 794 Barrett, Commonwealth v. 67 542 V. Long 741 Kegina v. 720 Barronet, Regina v. 234 Barry, Commonwealth v. 20, 227, 307, 796 Bartheleniy, Eegina v. 234 Barthelemy's Case 237 Bartlett, Regina v. 264 Barton v. Bricknell 14 Bassett v. Howorth 108 V. United States 252 Basten v. Carew 298 Batuhelder, Commonwealth i . 226, 228 Bate, Regina v. 195 Bates V. Barber 218 V. Smith 452 Baude's Case 396 Baynes v. Brewster 133 148 Beacall, Rex v. 526 527 Beale, Regina v. 16 Beaman, Commonwealth v. 84 Bean, Commonwealth v. 67 ,69, 756, 796 Beckley, Commonwealth v. 81 Beckwith v. Philby 134 138 141 Beebe, Re 267 Beekman v. Traver 106 Beeton, Regina v. 94 Belgard, Commonwealth v. 378 V. Morse 239 Bell, Eegina v. 100 Bellows, Commonwealth v. 227 Belou, Commonwealth v. 227 Benedict v. Cutting 250 290 Benfield, Rex v. 54 Bennett, Kx parte 267 V. Brooks 746 747 Commonwealth v. 70, 300, 352, 892, 525, 527, 528, 531 806 Eegina v. 772 V. Watson 245 Bent, Eegina v. 384 521 Berenger, Rex v. 468 Berry, Commonwealth v. 165, 524, 625 526 538 Regina v. 162 179 Bertrand, Regina v. 208 Besset, Ex parte 270 Betton, Commonwealth v. 384 Bidwell, Regina v. 48, 825 Biggs, Rex V. 628 Bilhngs, Commonwealth v. 187 Bills V. Comstock 9 Birch, Rex v. 620 Bird, Regina e. 87, 168, 171, 441, 681, 833 Birkett, Rex v. 619 Blair, Commonwealth v. 362 Blair v. Forehand 513 Blake v. Barnard 398 Commonwealth v. 167, 229, 827 Blakemore, Eegina v, 6 Blanehard, Commonwealth v. 164 Blanding, Commonwealth v. 531, 740 Blood, Commonwealth v. 34, 100, 230 Bolkom, Commonwealth v, 68, 426 Bond, Regina v. 83, 85, 88 Bonner, Commonwealth v. 409 Eegina v. 82 Bontien, Rex v. 617 Boon, Commonwealth v. 107, 415, 519, 761 Booth, Commonwealth v. 95 Regina v. 357 Bootyman, Rex v. 527 Bossidy, Commonwealth v. 505 Boston & Worcester Railroad Cor- poration, Commonwealth w. 792,793 Boston & Worcester Railroad u. Dana 135 Bosworth, Commonwealth v. 86, 170, 172, 187, 882 Botfield, Regina v. 669, 678 Boudire, Commonwealth v. 732 Bourne, Rex v. 39 Bowden, Commonwealth v. 436, 447 Bowditch V. Balchin 4, 135, 140, 141 Bowdler, In re 265, 271 Bowen, Commonwealth v. 366, 406 Regina v. 61, 53, 54, 565 Bowers, Eegina v. 531 Bowley v. Barnes 151 Boyall, Rex v. 28, 358 Boyer, Commonwealth v. 786 Boyle, Commonwealth v. 159 Boynton, Commonwealth v. 63, 64, 187, 361, 362, 380, 566, 767 Bradford, Commonwealth v. 521, 522 Regina w. 790 Bradlaugh, Regina v. 42, 78, 79, 97, 98, 352, 468 V. The Queen 769 Bradley, Commonwealth v. 787 V. Fisher 13 Brady v. The Queen 61, 415 Bragg V. Raymond 855, 413 Brahany, Commonwealth v. 513 Brannon v. Hursell 220 Braun u. Sauerwein 47 Bray, Commonwealth v. 227 Brettun, Commonwealth v. 83, 86, 89 Brickett, Commonwealth v. Bridge v. Ford Briggs, Commonwealth v. Rex V. V. Wardwell Brigham, Commonwealth v. 255 247, 250 36, 788 445, 754 18 35, 164, 602 Brimblecom, Commonwealth v. 514 Brisao, Rex v. 456 Britian v. Bank of London 619 TABLE OF CASES CITED. XIX Broad v. Pitt 184 Brock V. Stimson 107, 148 Brockett v. Bartholomew 222 Brook V. Brook 785 Brooks, Commonwealth v. 64, 67, 187, 754, 818 Kegina v. 18 Rex V. 538 V. Weeks 220 Broome, Regina v. 244 Brown, Commonwealth v. 34, 50, 53, 54, 65, 82, 95, 187, 195, 199, 209, 359, 360, 361, 362, 364, 432, 657, 761 V. Foster 184 Regina v. 166, 184 Rex V. 41 Brown's Case 151 Brownlow, Regina v, 39, 685 Bryan, Kegina v. 660, 563 Bryans. Regina v. 51 Bubser, Commonwealth ii. 169 Bullock, Regina v. 463 Rex V. 37 Bulman, Commonwealth v. 504, 505, 720 Bunn, Regina v. 501 Burdett v. Abbot 272 Rex V. 530, 552, 741, 742 Burding, Commonwealth v. 71 Burford, Ex parte 267 Burgess, Regina v. 406 Burk, Commonwealth v. 20 Rex V. 91 Burke, Commonwealth v. 71, 95, 100, 177, 207, 229, 298, 305, 376, 394, 730, 733, 736, 794, 806 Burnel, Rex v. 353 Burnet, Rex v. 92 Burnham v. Beal 273 V. Morissey 263 Burns, Commonwealth v. 52, 227 V. Pennell 456 Burrell, Regina v. 357 Burton v. I'lummer 211 Regina v. 191 Bushell's Case 272 Biitolier, Regina v. 366, 566 Butland, Commonwealth v. 240, 241, 308, 773 Butler, Commonwealth v. 19, 46 Regina v. 192 Butt V. Conant 742 Butterfield, Regina v. 371 Butterick, Commonwealth v. 39, 64, 86, 87, 525, 527, 528, 564, 617, 622, 625, 628, 630, 646 Button, Regina v. 391, 392 Butts, Commonwealth v. 736 Buzzeil, Commonwealths. 15, 175,216, 222, 385, 436 Byce, Commonwealth v. 735 Bykerdike, Rex v. 501 Cahill, Commonwealth v. 89, 803 Cain, Commonwealth v. 55, 96, 216 Calder v. Halkett 13 Calef, Commonwealth v. 738 Calhane, Commonwealth v. 226, 298 Call, Commonwealth v. 46, 199, 377, 379, 563, 566 Campbell, Commonwealth v. 38, 83, 796, 801 V. The Queen 95 V. Rickards 209 Campion, Commonwealth v. 224 Camplin, Regina v. 376 Canada, Commonwealth v. 36, 246, 514 Canfleld, Rex v. 669 Cannon v. Rands 454 Cardwell, Regina v. 251 Carel, Commonwealth v. 43, 773 Carey, Commonwealth v. 95, 133, 135, 136, 307, 629, 736 Carlile, Rex v. 427 Carlisle, Regina v. 495 Carlton, Commonwealth v. 95 Carpentar, Commonwealth v. 824 Carr, Commonwealth v. 165 Carroll, Commonwealth t'. 21, 100 Carson, Rex v. 88, 89, 531 Cartwright's Case 297 Case, Regina v. 392, 398 Caspar, Regina v. 796 Castell Carinion, Rex v. 181 Castles, Commonwealth v. 79, 617, 629 Cattell V. Ireson 4 Caudle v. Seymour 104 Cave V. Mountain 13, 266 Cavey, Commonwealth v. 227 Certain Intoxicating Liquors, Commonwealth v. 36, 65 Chalkley, Rex v. 45 Chandler ;;. Home 206 Regina v. 724 Chapman, Commonwealth v. 370, 384, 399, 682, 685, 687, 688, 740 Regina v. 43, 147 Charlesworth, Regina v. 167, 172 Charleton's Lechmere Case 430 Charlton v. Coombes 184 Cliarnock, Rex v. 38 Charretie, Regina v. 625 Chase, Commonwealth v. 45 Clieeve, Rex v. 32 Cheney, Commonwealth v. 20, 129, 130, 250, 290, 720 Chesley, Commonwealth v. 170, 172, 832 Cheverton, Regina v. 195, 198 Chichester, Regina v. 251 Chickering v. Robinson 13 Child, Commonwealth v. 98 XX TABLE OP CASES CITED. Choate, Commonwealth v. 378, 448, 531 Christie v. Unwin 108 Churchill, Commonwealth i'. 130, 217 City V. Lamson 47 Clair, Commonwealth v. 168, 730 Clancy, Commonwealth v. 619, 630 Clap, Commonwealth v. 740 Clapp, Commonwealth v. 32, 352 Clark & Attorney-General, Peti- tioners 304 Clark, Commonwealth v. 24, 36, 228, 307 Clarke v. May 13, 158, 297 Reginau. 393,441,788 Clarke's Case 159. 297 dementi v. Golding 209 Clifford, Commonwealth v. 67, 69, 803, 804 Closs, Regina v. 618 Clubb V. Hutson 6 Coal-Heavers' Case 370 Cobb, Commonwealth v. 504 V. Lucas 31 Cobbett V. Hudson 206 Cockin, Kex v. 122 Codd V. Cabe 147 Coe, Commonwealth v. 86, 564 Cohen, Commonwealth u. 796 V. Huskisson 139 Regina v. 20 Collins V. IJlantern 6 Commonwealth v. 68, 69, 98, 251, 525, 553, 748 Regina v. 139, 409 Colonial Bank of Australasia v. Willan 158 Colton, Commonwealth v. 426 Combe v. Pitt 522 Compton, Rex v. 446 Concannon, Commonwealth v, 524, 525, 634 Conde, Regina v. 724 Cone, Commonwealth v. 632 Conley, Commonwealth v. 515 Connell, Commonwealth v. 228, 307 Connor, Regina v, 385 Conolly w. Boston 748 Rex V. 19 Coogan, Hex v. 615 Cook V. Berth 250 Commonwealth v. 358 Cooke, Regina v. 558, 567, 605, 771 Cooley, (.'ommnnwealth v. 147, 813 V. Norton 222 Coolidge i). Choate 113 Cooper V. Blick. 60 Regina v. 65, 122, 559, 560, 564 Rex V. 414, 415 V. Slade 521 Corden, Rex v. 69 Corydon, llegina v. 197 Costello, Commonwealth v. 67, 95, 96, 617, 621, 729 Costley, Commonwealth v. 531, 676 Cotton's Case 686 Couglilin, Commonwealth v. 20, 517 Coulson, Regina v. 78 Coupal V. Ward 174 Cowan V. Milboume 427 Cox, Commonwealth v. 69, 754, 756 Coxe V. Wirrall 4 Craddock, Kegina v. 66, 796 Crawford, Commonwealth v. 34, 226, 227, 307, 425 Creed, Commonwealth v. 38, 395, 399 Crespin, Regina v. 34, 57, 394, 441 Crigliton, Rex v. 532 Crimm, Commonwealth v. 286 Crisham, Regina v. 370 Crocker, Commonwealth v. 190 Crofts, Kegina v. 788 Crotty, Commonwealth v. 102, 103, 145, 801 Crowley, Ex parte 417 Commonwealth w. 95,440 V. Page 221 Crowther, Commonwealth v. 437, 749 Crozier v. Cundy 120 Cruse, Regina v. 19, 518 Cuddihy, Commonwealth v. 209 Cuddy, Regina v. 510 Ciiffee, Commonwealth v, 190, 198 Culkin, Rex v. 681 CuUen, Commonwealth v. 198 Cummings, Commonwealth v. 37 V. Perham 513 Cunningham. Commonwealth v. 173 Cureton v. The Queen 788 Curgerwen, Regina v. 786 Curran, Conmionwealth v. 54, 806 Rex V. 143, Curtis V. Bothamly 244 Commonwealth v. 51, 64, 190, 195, 450 Curvan, Rex v. 136, 140 Cughing V. Worrick 353 Cutler, Commonwealth v. 169 Cutter, Commonwealth v. 247 D. Dailey, Commonwealth v. 35 Dale, Regina v. 29 Rex V. 602 Dallinger, Commonwealth v. 628 Daly, Commonwealth v. 171 Damon, Commonwealth v. 646 Dana, Commonwealth v. 67, 105, 106, 113, 116, 117, 121, 257 Dann, Rex v. 168, 169 Darcey, Commonwealth v. 30 Darley v. The Queen 129 Dascom, Commonwealth v. 101, 172 TABLE OP CASES CITED. XXI Davenport, Commonwealth v. 504 Davidson, Commonwealth v. 6H4 V. Slocomb 296 Davis, Commonwealth i.'. 24, 26, 44, 70, 76, 77, 163, 230, 297, 412, 413, 414, 684, 721, 806 Regina v. 83 Eex !>, 24, 384, 442 V. Russell 142 Davy w. Baker 49 Dawkins v. Lord Eokeby 223 Dawson v. Fraser 270 Day V. Cooley 220 Regina v. 392 Dean,Commonwealtht). 24,63,68, 106, 107, 108, 425, 532, 566, 794 Deane, Regina v. 788 De Berenger, Rex v. 469 Dedliam, Commonwealth v. 30, 165, 828 Deeley, Rex v. 59, 786 Deer, Regina v. 797 Deerfield, Commonwealth v. 671 Delaval, Rex" v. 356 Demerritt v. Randall 214, 627 Denehy, Commonwealth v. 195 Dennis, Commonwealth v. 5, 72, 366, 406 Denslow, Regina v. 182 Dent, Regina v. 564, 566 Denton, Kegina v. 70 Derby, Regina v. 108 Derringlon, Rex v. 200 Desmarteau, Commonwealth v. 24, 29, 32, 33, 93, 674, 681, 683, 684 Desmond, Commonwealth v. 27, 70, 164, 187, 298, 302, 521 Devoe, Commonwealth v. 436, 439 Diekerman v. Graves 183 DiUane, Commonwealth v. 300 Dilworth, Regina o. 392 Dimond, Commonwealth v. "733 Dixon, Rex v. 20, 61 Dobb's Case 437 Dod V. Monger 120 Doe V. Meakin 87 V. Perkins 207 Doggett V. Cook 261 Doherty, Commonwealth v. 39, 62, 164, 443, 445, 635, 816 Regina v. 195 Dolan, Commonwealth v. 806 Dole, Commonwealth v. 629 Donahoe v. Slied 105, 106, 107, 145 Donolly, Rex v. 803 Donovan, Commonwealth v. 83 Doody, Regina v. 406 Doran, Commonwealth v. 36, 227, 802, 354 Dorsey, Commonwealth v. 208 Dorus, Commonwealth v. 81, 551, 824 Doty, Commonwealth v. 227, 289 Dougherty, Commonwealth v. 759 Douglas, Rex v. 604 Douglass, Regina v. 552 Dovey, Regina u. 797 Dow, Commonwealth v. 227 Dowdican'aBail, Commonwealth v, 251, 252, 253, 395 Dowlin, Eex v. Ill, 773 Dowling, Hex v. 37 Downey, Commonwealth v. 247 Downing v. Capel 143 Commonwealth v. 227 V. Porter ~ 117 Regina v. 370 Doyle, Commonwealth v. 86, 164 V. Lynn & Boston Railroad 748 Drake, Commonwealth v. 184, 187, 199, 362 Regina v. 619 Dressel, Commonwealth v. 227 Drew, Commonwealth v. 97, 130, 165, 367, 426, 559, 563 Drnitt, Regina v. 501 Drum, Commonwealth v. 794 Drury, Regina v. 171 Duchess of Kingston's Case 210 Duffield, Regina v. 501 Duffy, Commonwealth v. 86 Dugdale v. The Queen 630, 770 Dunbar, Commonwealth v. 250 Dundas, Regina v. 662 Dunford v. Trattles 46 Dunham, Commonwealth v. 225, 226 Dunlap V. Bartlett 238 Dunn, Commonwealth v. 54, 806 Dunning, Regina v. 771, 782 Dunstan v. Paterson 142 Durfee, Commonwealth v. 378 Dutton V. Woodman ' 222 Dwinnels v. Boynton 117 Dwyer v. Collins 184 E. Eagan, Commonwealth v. 19, 27, 164 Eagleton, Regina v. 139, 406, 636 Earle v. Picken 200 Easland, Commonwealth v. 182 East Boston Ferry Company, Commonwealth v. 793 Eastman, Commonwealth v. 84, 86, 87, 163, 456, 457, 461, 462, 627, 629, 656, 730 Eaton, Commonwealth v. 54, 428, 743 Edds, Commonwealth v. 659 Edgecomb v. Rodd 6 Edgerley, Commonwealth v. 632 Edwards, Commonwealth v. 39, 67, 70, 630 Rex V. 84 Eldershaw, Rex v. 16 Eldredge, Rex v. 191 Elisha, Commonwealth o. 797 xxu TABLE OF CASES CITED. Ellenwoofl, Commonwealth v. 162 Kllins, Rex v. 634 Elliot, Commonwealth v. 187 Regina v. 737 Elsee V. Smith 127 Elswortli, Rex v. 369, 622 Elwell, Commonwealth v. 92, 93, 377, 380 Emmons, Commonwealth v. 164, 425 Eiitick V. Carrington 102 Evans, Commonwealth v. 166, 168 V. McLoughlan 148 Exall, Regina v. 122 Exminster Rex v, 441 F. Eaderman, Regina v. 167, 172 Fagan, Commonwealth v. 24 Fallon, Regina v. 374 Falvey, Commonwealth v. 89, 754 Farler, Regina v. 187 Farley, Regina v. 184 Farr, Commonwealth v. 191 Farrand, Commonwealth v. 806 Farrell, Commonwealth v. 14, 230, 414, 427, 541, 542, 617, 832 Farren, Commonwealth v. 768 Faulkner, Regina v. 383 Feeley's Case 231 Feeney, Commonwealth v. 18, 19 Felton, Commonwealth v. 367, 371, 634 Fenno, Commonwealth v. 682 Fernandez, Ex parte 203 In re 157 Ferrall, Regina v. 3 Field, Commonwealth v. 248, 250, 251 Filburn, Commonwealth v. 68, 542, 543 Finn, Commonwealth v. 34, 35, 796 Fischblatt, Commonwealth v. 399, 794 Fisher, McGirr v. 102, 111, 115 Rex V. 669 V. Shattuck 104 Fitchhurg Railroad Co., Common- , wealth v. 93, 95, 683, 792 Flagg V. Millbury 747 Flaherty v. Thomas 70, 788 Flattery, Regina v. 392, 794 Fleming, Regina v. 195 Fletcher, In re 265 Commonwealth v. 794 Flight V. Leman 752 Flint, Rex v. 49 Flitters v. Allfrey 171 Flynn v. Coffee 787 Commonwealth v. 24, 407, 772 Foley, Commonwealth v. 36, 519 Forbes v. King 25 Regina v. 403 Ford, Commonwealth v. 187, 227, 307 Rex V. 135 Forsyth, Rex v. 89 Fortune, Commonwealth v. 370 Foster, Commonwealth v. 100, 525, 615, 616, 617 V. Hall 183 V. Pierce 216 Regina v. 563 Rex V. 29, 33 Fox, Commonwealth v. 677, 679, 681, 682 V. Gaunt 140, 142 Regina v. 21 Francis, Regina v. 567, 568 Rex V. 39 Fraser, Rex v. 143 Fredericks, Commonwealth v. 80, 77, 229, 298, 306, 806 Freegard v. Barnes 101 Freeman, Regina v, 165 French v. Bancroft 145 Fry, Regina v. 563 Fuller, Commonwealth v. 634 V. DaTis 253 Rex V. 45, 369, 630 Fulton, Regina v. 630 Furneaux, Rex a. 88 Furnival, Rex v. 439 Gainey v. Parkman 516 Galavan, Commonwealth v. 199 Gale, Regina v. 532 Gallagher, Commonwealth v. 87, 804 Gallears, Regina v. 85 Galliard v. Laxton 133, 147 GalUgan, Commonwealth v. 36, 98, 227, 230, 297 Gaming Implements, Common- wealth V. 660 Gatftlingay, Rex v. 669 Gannett, Commonwealth v. 721 Gannon, Commonwealth v. 19, 20 Gardener, Rex v. 143 Garland, Rex v. 387, 437 Garner, Regina v. 195 Garrett, Regina v. 564, 567 Garvey, Commonwealth v. 788 Gathercole, Regina v. 427 Gavin, Commonwealth v. 58, 82 Gay, Commonwealth v. 71, 451 Gaylor, Regina v. 368 Genner v. Sparkes 150 George, Regina v. 185 Gibbs, Rex v. 569 Gibbons's Case 442 Gibney, Commonwealth v. 801 Rex V. 194, 199, 200 Gibson, Commonwealth v. 28 Rex V, 165 Giddins, Regina v. 54, 803 Gilchrist, Rex v. 353, 621 TABLE OP CASES CITED. XXIH Giles, Commonwealth v. Regina v. Gilhara, Rex v. Gill, Commonwealth v. Rex V. V. Scrivens Gillham, Rex v. Gillis, Regina v. Gillon, Commonwealth v. Gladhill, Ex parte Glandfield, Rex v. Gloucester, Commonwealth v. Glover, Commonwealth v. Goate, Rex v. Godall, Rex v. 230, 414 559, 560, 564 184, 194, 199 33 462 75 552 195 40, 96, 675 295 385 167 34, 187, 371, 442 625 266 26 Goddard, Commonwealths. 38, 173,564 Regina v. 48 V. Smith 414 Godfrey, Regina v. 87 Coding, Commonwealth v. 425 Godley, Commonwealth ;;. 505 Godsoe, Commonwealth v. 787 Golding, Commonwealth v, 165, 172 Goldsmith, Regina v. 44, 97, 563 Goldstein, Commonwealth v. 35, 39, 78, 389, 630 Gompertz, Regina v. 462 Good V. French 297 Goodchild, Regina v. 359 Goodhall, Regina v. 859 Goodhue, Commonwealth v. 723, 794 Goodrich v. Hooper 741 Goodwin, Commonwealth!;. 81,551,824 Gorbut, Regina v. 525 Gordon, Rex ;;. 151 Gorham, Commonwealth v. 171, 181 Gorman, Commonwealth v. 163, 514 Goss, Regina v. 561 Gossett V. Howard 247 Gould, Commonwealth v. 163, 832 Gourdier, Commonwealth v. 659 Gourlay, Ex parte 264 Gowen, Commonwealth v. 352 Grace v. M'Elroy 659 Grady, Commonwealth v. 806 Graham v. Chapman 680 Grant v. Moser 140 Graves, Commonwealth v. 224 Gray, Commonwealth v. 395 Regina v. 63, 91 V. The Queen 135 Green, Commonwealth v. 16, 37, 86, 90, 151, 181, 296, 352, 525, 675, 679, 728, 736 Regina u. 170 Green & Simpson, Common- wealth V. 164 Greenwood, Regina v. 367 Gregory, Commonwealth v. 108, 229 Regina v. 29, 375 Grevil, Rex v. 369 Grey, Commonwealth v. 49, 50, 51 Griffin v. Coleman 133, 135, 142 Commonwealth v. 34, 36, 71, 93, 634, 721 Regina v. 184 Rex V. 200 Griffith V. Taylor 144 Grimes, Commonwealth v. 86 Groombridge, Regina o. 16 Grounsel),Rex v. 681 Guernsey. Regina v. 90 Gamble, Regina v. 87 Gurney, Regina v. 430 Guthrie, Regina v. 54 H. 679, Hackett, Commonwealth v. Hadfield, Regina v. Hagarman, Commonwealth v. 32, 302, Haigh V. Belcher Haines, Regina v. Hall V. Booth 4, Commonwealth v. 31, 41, 54, 82, 164, 626, 670, Rex V. Hallett, Regina v. 43, Halloway, Rex v. Hamilton, Commonwealth v. 385, Rex V. V. The Queen 564, 565, Hammon, Rex v. Hamond v. Howell Hamp, Regina v, Handcock u. Baker Handy v. Eoley Hanks, Rex v. Hanley, Commonwealth v. Hanson, Regina v. Hanway v. Boultbee Hardy, Regina v. 6, Rex V. Harley, Commonwealth v. Harlow, Commonwealth v. Harmon, Commonwealth v. Harney, Commonwealth v. 35, 53, 408, Harrington, Commonwealth v. 720, V. Lincoln Harris, Commonwealth v. 53, 67 159, 165, 171, 415, 737, 750, 751, Regina v. 56, 122, Harrison, Commonwealth v. Harrod v. Harrod Hart, Commonwealth v. 54, 60, 72, 75, 76, 108, 722, Hartford v. Palmer 179, Hartnett, Commonwealth v. 731, Harvey, Commonwealtli D. 108, 226, 227, 229, 297, 298, 306, 566, 680 791 36, 827 215 B79 138 81, 788 803 771 84 389 463 607 728 272 462 139 18 771 806 392 143 791 213 625 217 77 88, 437 722 216 69, 743, 761 737 748 179 ,73, 806 518 735 164, 307 XXIV TABLE OP CASES CITED. Harvey v. Pocoek 120 Hogan, Regina u. 724 Retina v. 72, 90 369,684 : Hogg V. Ward 133, 142 Harwood, Commonwealth v. 721 ' Holder, Commonwealth v. 729 Has, Commonwealth v. 745, 746 Holford V. Bailey 90, 684 Hassen^ier, Commonwealth v 300 Holland, Regina v. 679 Hastings, Commonwealth v. 132 RexB. 61 Hatfield, Commonwealth u. 80, 240, V. Seagrave 116 301, 809 773 HoUey, Commonwealth v. 788 Hathaway, Commonwealth v . 84,447 HoUingberry, Rex v. 552 V. Crocker 221 Hollingham v. Head 215, 216 Hatwood V. State 41 Holloway, Regina v. 550, 728 Hawkes v. Davenport 250, 297 V. The Queen 43, 95, 549 Hawkins, Commonwealth v. 518 Holmes, Commonwealth v. 55, 79, 229, Hay, Regina v. 185 362, 769 Haylock v. Sparke 742 Regina v. 180, 196 415, 737 Haynes, Commonwealth v. 62, 92, 415, Holt, Commonwealth v. 378 738, 761 768, 788 Regina v. 568 Rex V. 28 Holyday v. Oxenbridge 140 Hays, Commonwealth v. 524 Hood, Rex v. 29 103, 182 Hayward, Regina v. 184 Hooper, Commonwealth v. 39, 564 Hazelton, Regina v. 599 Hope, Commonwealth v. 53, 89, 90, Healey, Rex v. 34 438, 439 626, 631 Heard v. Pierce 99 Horley v. Rogers 140, 143 He'arne, Regina v. 163, 165 Home V. Mackenzie 211 Heath, Rex ?>. 630 Regina v. 91 Henderson, Regina v. 565 Rex V. 42, 428 Hendrie, Commonwealth v. 34 Horrigan, Commonwealth v. 388 Henry, Commonwealth v. 80, 108, 229, Horton, Commonwealth w. 161, 174, 617, 629 191 377, 750 Henshaw, Regina v. 44, 563 Houghton, Commonwealth V. 79, Hensler, Regina v. 564 619 Herrick, Commonwealth v. 70 Houlden v. Smith 158 Hersey, Commonwealth v. 62, 352, 438, Houlton, Rex v. 183 688 Housin V. Barrow 103 Hetherington, Regina v. 427 Howard v. Gossett 29, 109 Heymann v. The Queen 43 , 97, 456, Howarth, Rex v. 139, 143 459, 563 Howe, Commonwealth v. 190, 191 Hibbert, Regina v. 358 Howell V. Jackson 139, 140 HickUn, Regina v. 124 Howells, Regina v. 467 Hicks, Commonwealth v. 64, 818 Hoxey, Commonwealth v. 97, 509 Regina v. 185 Hoye V. Busli 29, 103 Higgins, Rex v. 3 375, 407 Commonwealth v. 71 Higginson, Rex v. 45 Huard, Commonwealth v. 298 Hill, Commonwealth v. 34, 162, 179, Hudson, Commonwealth v. 164 797 Regina v. 667 Regina v. ■179 Hughes, Commonwealth v. 240, 773 Rex V. 564 V. Marshall 521 Hills, Commonwealth v. 94,95 Regina v. 779, 796 Hilton, Regina v. 788 Hulbert, Commonwealth v. 64, 564, Hinds, Commonwealth v. 617, 621 565, 625 Hinks, Regina v. 181 Humphries, Commonwealth v. 803 Hirsch, Commonwealth v. 404 Hunt, Commonwealth v. 34, 394. 456, Hiss V. Bartlett 129 461, 738 Hitchings, Commonwealth v. 235, Regina v. 382, 602 450 Hunt, Rex v. 139 143, 742 Hoar, Commonwealth v. 302 Hunter, Rex v. 619 V. Wood 223, 285 Huntley, Regina v. 57 Hoare v. Silverlock 25 Hurley, Commonwealth v. 20. 378 Hodgkiss, Regina v. 773 Hussey, Commonwealth v. 86,' 525, Hodgson, Rex v. 527 526, 736 Hoffman, Commonwealth v. 443 Hutchinson, Commonwealth V. 180 Hogan, Commonwealth v. 100, 169, V. Lowndes 265, 266 227 230, 297 Hutton, Commonwealth v. 36, 302 TABLE OP CASES CITED. XXV I. Ingram, Regina v. 19 Intoxicating Liquors, Common- wealth V. 27, 34, 98, 115, 118, 119, 120, 123, 145, 164, 354, 662, 809 Ion, Regina v. 626 Irwin, Commonwealth v. 150 Iveson V. Moore 414 J. Jackson, Commonwealth v, 91, 163 Rex V. 599 Jacobs, Commonwealth v. 359 Jaha V. Belleg 827 James, Commonwealth v. 82 Regina v. 33, 63, 163, 565 Rex V. 157, 270 Jarrald, Regina v. 38, 69, 449 Jarvis, Regina v. 195, 196 Jeffries, Commonwealth v. 39, 46, 59, 531, 564, 565 Jenkins, Rex v. 200 Jenks, Rex v. 440 Jennings, Commonwealth v. 33, 72, 75, 76, 440, 786, 806 Jervis, Rex v. 796 Jessop, Regina v. 606 Jewett V. Draper 626 John, Regina v. 19 Johns, Commonwealth v. 46, 773 Johnson, Commonwealth v. 253, 378, 787 Regina v. 407, 771 Rex ;;. 28, 83, 86, 462, 827 Jones, Commonwealth v. 514 Regina v. 184, 197, 567, 600 Rex V. 57, 457, 621 V. Rice 6, 454 V. Robbins 23, 224, 735 u. State 439 V. Stroud 211 t>. The Queen 70 Jordan, Regina v. 16 Josselyn, Commonwealth v. 747, 748 Josslyn, Commonwealth v. 95, 436, 440 Kaine's Case 267 Kane, Commonwealth v. 151, 816 Keefe, Commonwealth v. 59, 300, 302, 722 Keena, Regina v. 532 Keir v. Leeman 6, 454 Keitl), Commonwealth v. 24, 173 Kelleher, Regina w. 97 Kelley, Commonwealth ;;. 214 V. Dresser 296, 298 Kelliher, Commonwealth v. 70 Kellogg, Commonwealth v. 626 Kelly y. Bemis 13 Commonwealth v. 46, 67, 69, 779, 806 V. Dresser 225 V. Drew 183 Rex V. 681 Kemp V. Neville 13, 296 Kendall u. Powers 225, 231, 261, 296, 298 Kendrick, Regina v. 457 Kennard, Commonwealth v. 145 Kennedy, Commonwealth v. 21 Kenney, Commonwealth v. 198 Kenny, Regina v. 19, 183, 797 Kent, Commonwealth v. 635 Kepper, Commonwealth v. 617 Kettle, Rex v. 85 Keyes, Commonwealth v. 222 Keyon, Commonwealth w. 36 Kidder, Commonwealth v. 762 V. Parkhurst 228 Killian, Commonwealth v. 791 Kimball, Commonwealth v. 54, 70, 504, 721, 722 Kincaird v. Howe 31 King, Commonwealth v. 524, 525, 554, 796, 797 V. The Queen 456, 468 Kingman, Commonwealth v. 39, 225, 301 Kingsbury v. Ellis 8 Kingsbury's Case 151 Kingston, Rex v, 93, 195 Kirby, Commonwealth v. 65, 401, 402 Kite, Commonwealth v. 440 Knapp, Commonwealth v. 186, 190 195, 200, 367, 370, 372 Kneeland, Commonwealth v. 81, 427, 428, 740 Knight, Commonwealth v. 772 Regina v. 97, 168 Rex V. 48, 669 Knowles v. Davis 130, 131, 241, 257 Knox, Commonwealth v. 747 L. Lad, Rex v. 678 iiahey. Commonwealth v, 378 Lakeman, Commonwealth v. 796 Lamb, Commonwealth v. 36, 37, 386, 435, 437 Lambert, Commonwealth v. 65, 662, 720, 738 Lane, Commonwealth v. 785 Lang, Commonwealth v. 399, 723 XXVI TABLE OP CASES CITED. Langley, Commonwealth v. 39 Langmaid, Regina v. 122 Lannan, Commonwealth v. 43, 48, 63, 162, 172, 217, 564 Lamed, Commonwealth v. 77, 401, 440 Larrabee, Commonwealth v. 187, 188 Latham D. The Queen 95,463 Lattinville, Commonwealth v. 806 Launock v. Brown 148 Lavery, Commonwealth v. 100, 447 Larey, Commonwealth v. 82, 89, 90 V. The Queen 43, 771, 782 Lawes, Regina v. 441 Lawless, Commonwealth v, 35, 56, 617, 619 Lawley, Rex v. 28 Leach v. Money 111 Leafe, Rex v. 43 Leddington, Regina v. 411 Ledwith v. Catchpole 134 Lee, Commonwealth v. 799 V. Gansel 149 Regina v. 563 Leech, Regina v. 567 Le Fanu v. Malcolmson 741 Lefroy, Regina v. 157 Legassey, Commonwealth a. 164 Leonard v. Allen 208 Levine, Regina v. 560 Levy V. Gowdy 71 Regina v. 788 Lewis V. Alcock 47 Commonwealth v. 19, 20, 31, 164, 720 Libbey, Commonwealth v. 524 Light, Regina v. 143 Lince, Regina v. 564 Lincoln, Commonwealth v. 559, 564, 565 V. Wright 204 Linford v. Fitzroy 235, 242 Lister, Regina v. 762 Littlefield v. Rice 182 Livermore, Commonwealth v. 51 Liverpool Adelplii Loan Associa- tion V, Fairliurst 17 Lloyd, Rex v. 823 Lock, Regina v. 393 Lockwood, Commonwealth v. 171, 172, 174, 181, 789 Locost, Rex v. 438 London, Regina v. 732 V. Wood 785 Long's Case 28, 682 Longstreeth, Rex v. 553 Lonsdale, Regina v. 84 Lord Delamere v. The Queen 97 Lord Grey, Rex v. 356 Loring, Commonwealth v. 814 V. Thorndike 378 Lottery Tickets, Commonwealth v. Ill, 116, 121 Loud, Commonwealth v. 173 Lough V. Willard 106 Loveil, Regina v, 526 Loveridge, Commonwealth v. 237, 246 Low V. Blanehard 659 Lows V. Telford 610 Luckhurst, Regina w. 195 Luckis, Commonwealth v. 409 Lufkin, Commonwealth v. 54, 502 Lyden, Commonwealth v. 214 Lynch, Commonwealth v. 68, 748 Lyne, Ex parte 255 Lyon, Regina v. 59 Rex V. 619 M. Mabel, Regina v. 140 Macdonnell v. Evans 181 Mackally, Rex v. 681 Maclean v. Robinson 215 Macloon, Commonwealth v. 531, 676, 678, 681, 682, 686, 729 Magoun, Commonwealth v. 227 Maguire, Commonwealth v. 35 Mahar, Commonwealth v. 735 Mahon, Rex v. 395 Mahoney, Commonwealth v. 229 Malinson, Regina v. 822 Malloy, Commonwealth v. 357, 799 Malone, Commonwealth v. 394, 518 Maloney v. Piper 417 Manley, Commonwealth v. 34 Mann v. Owen 3 Mann's Case .413 Mansfield, Regina v, 83 Many, Commonwealth v. 159 Mapleback, In re 454 Marchioness of Downshire, Rex v. 669 Marsden, Regina v. 133, 143 Rex V. 742 Marsh, Commonwealth v. 185 V. Loader 16, 142, 179 V. Lowder 16 Regina v. 407, 565, 566 Rex V. 286 Marshall, Commonwealth v. 70 V. Lamb 151 Rex V. 77 Martin v. Campbell 244, 246 Commonwealth v. 107, 804 Regina v. 32, 795 Rex V. 566, 681 V. Tlie Queen 65, 70 Mash, Commonwealth v. 380, 787 Mash's Case 270 Mason, Commonwealtli v. 748 Rex V. 25, 43, 97, 563 Master, Regina v. 8 Matthews v. Biddulph 141, 143 Maxwell, Commonwealth v. 75, 82, 749 TABLE OF CASES CITED. XXVll Mayhew v. Locke 157, 265 McAfee, Commonwealth v. 681, 682 M'Anerney, Regina v. 31 McAvoy, Commonwealth v. 31 McCall V. Parker 104 McCann, Commonwealth v. 191 MeCarron, Commonwealth v. 756 McCarthy, Commonwealth v. 531 McCarty v. De Best 18 McCaughey, Commonwealth v. 504, 505 MoCIellan, Commonwealth v. 502 McClusky, Commonwealth v. 96 McCormack, Commonwealth v. 226, 229 McCue, Commonwealth v. 151 McCuUoch, Commonwealth v. 413 McCully, Regina v. 88 McDermott, Commonwealth v. 199 McDonald, Commonwealth v. 409 McDonough, Commonwealth v. 70 McFadden v. Murdock 209, 627 McGaliey, Commonwealth v. 10, 131, 132, 150 McGee v. Barber 61 McGorty, Commonwealth v. 35, 223 McGovern, Commonwealtli v. 45, 164, 167 McGrath v. Seagrare 297 McGregor, Rex v. 527 Mclntire, Regina v. 682 Mclvor, Commonwealth v. 36, 227, 230, 301 McKale, Regina v. 653 McKean, Commonwealth v. 80 McKenna, Regina v. 59 McKenney, Commonwealth v. 89 M'Kensie, Rex v. 70 M'Keron, Rex v. 772 McLane v. State 41 McLaughlin, Commonwealth v. 35, 54, 64, 133, 135, 411, 682, 754, 773 McLaughlin's Case 407 McLean, Commonwealth v. 247 McLennon v. Richardson 133, 659 McLoon, Commonwealth v. 36, 54, 302, 369 McNaghten, Regina v. 208 McNamara, Commonwealth v. 519 McNeill, Commonwealth v. 249, 250, 251, 257, 290 McPherson, Regina v. 139, 405 M'Pike, Commonwealth v. 679 Mead, Commonwealth v. 17 Meakin, Rex v. 518 Mears, Regina v. 356, 467 Medway v. Needham 785 Meek, Regina v. 771 Mehan, Commonwealth v. 33 Melling, Commonwealth v. 32 Merriam, Commonwealth v. 64, 241, 246, 247, 249, 250, 251, 308, 378, 767 Merrifield, Commonwealth v. 88, 525 Merrill, Commonwealth v. 172, 832 Messenger, Commonwealth v. 24 Metropolitan Railroad v. High- land Railway 818 Middlehurst, Rex v. 742 Middleton, Regina v. 90, 533, 728 Miller, Commonwealth v. 519 V. Knox 99 V. Salomons 15, 175 V. Smith 214 Mills, Regina v. 604 Mink, Commonwealth v. 366, 406 Minton, Rex v. 384, 386 Mitchell, Commonwealth v. 190 Moah, Regina v. 617 Mockford, Regina v. 191 Moland, Regina v. 367, 566 MoUoy, Commonwealth v. 298 Monkhouse, Regina v. 518 Montgomery v. Pickering 183 Moody V. Rowell 206, 212, 626 Moor, Rex v. 28, 858 Moore, Commonwealth v. 85, 162, 877, 379, 380, 644, 722 a. Lyman 225, 298 V. Ray 134 Regina v. 189, 197, 518 Moorhouse, Commonwealth v. 95 Mordaunt v. Moncrieffe 377 Morey, Commonwealth v. 168, 169, 190, 737, 738 Morgan, Commonwealth v. 80, 212, 217, 742 Morley, Rex v. 49 Morrill, Commonwealth v. 564, 773 Morris, Commonwealth v. 378 Regina v. 72, 168 Rex V. 17, 394 Morrison v. Lennard 179 Morse, Commonwealths. 34 Moses V. Macferlan 296 Mosley, Rex v. 683 Moss, Regina v. 566, 668 Mouflet V. Cole 40 Monlton, Commonwealth v. 81, 223, 551, 824 Mowry v. Chase 145 Commonwealth v. 804 Moxon V. Payne 56 Mulcahy v. The Queen 52, 54, 167, 456, 457 Mullen, Commonwealth v. 217 Munsey, Commonwealth v. 20 Murdock, Regina v. 530 Murphy, Commonwealth v. 19, 20, 81, 91, 97, 165, 183, 217, 377, 551, 644, 794, 823, 824 Regina v. 560 Rex V. 510 Murray, Rex v. 526 V. The Queen 786 Mycock, Regina v. 357 Myers v. State 3 XXVI u TABLE OP CASES CITED. Nagle, Commonwealth v. 749 Napper, Rex v. 37, 437 Nash V. The Queen 54 Nason, Commonwealth v. 564 Nauer v. Thomas 1 67 Neal, Ex parte 287 Commonwealth v. 19, 21 Negus, Regina k. 531 Newboldt, Regina v. 67, 436 Newbury, Commonwealth v. 669 Newcomb v. Worster 248 Newell, Commonwealth v. 438 V. Homer 220 Newman, Regina v. 199, 205 Newton, Regina v. 625 Nibbs, Rex v. 83 Nicholas, Regina v. 180 Rex V. 370, 685 Nichols, Commonwealth v. 54, 216, 217, 378, 768 NicoUs V. IngersoU 255 Noden v. Johnson 28, 57 Nolan, Commonwealth v. 733 North, Rex v. 49 North Brookfield, Commonwealth v. 669 Norlhampton, Commonwealth v. 163 Norton, Commonwealth v. 35, 164, 263, 659 Rex V. 29, 32, 566 Nye, Commonwealth v. 251 O. Oakley, Rex v. 610 Oaks, Commonwealth v. 415, 761 Oates, Regina v. 563, 606, 607 O'Brian, Regina v. 681 O'Brien, Commonwealth v. 51, 54, 187, 208, 394, 436, 456, 461, 504, 742, 803, 824 Regina v. 95 O'Connell, Commonwealth v. 86, 96, 796 Regina v. 165 V. The Queen 95, 456, 829 O'Connor, Commonwealth v. 515, 816 Oddy, Regina v. 797 Odiorne v. Bacon 214 Odlin, Commonwealth v. 45 O'Donnell, Commonwealth «. 48, 169 O'Hara, Commonwealth v. 35 O'Keefe, Commonwealth!;. 164,525 Oldham, Regina v. 353, 448 Ohfler, Regina v, 357 Oliver, Regina v. 97 O'Malley, Commonwealth v. 525 Oniichund v. Barker 175 O'Neil, Commonwealth v. 226 O'Neil, Regina v. 382 O'Neill V. Kruger 501 V. Longman 501 Orchard, Regina v. 737 Osborn v. Sargeant 130 241 Otis, Commonwealth v. 246 Otway, Regina v. 57 Oulaghan, Regina v. 180 Overton, Regina v. 43 772 Owen, Regina v. 772 Rex V. 17 731 Oxford, Rex v. 88 Oxley, Regina v. 43, 773, 774 Packard v. Lawrence 227 Padfield v. Cabell 106 Page V. Faucet 209 Regina v. 28, 878, 635 Paget, Regina v. 3 Pain, Ex parte 50 Palfrey's Case 413 Palmer, Rex v. 75 Pamenter, Regina v. 200 Papineau v. Bacon 516 Parcel's Case 413 Parfitt, Regina v. 401 Pargeter, Regina v. 698 Park V. Darling 297 Parker, Commonwealth v. 65, 667, 676, 779 V. Green 3 )•. Huntington 223 Regina v. 44, 57, 197, 463 Rex V. 599 Parkes, Rex v. 615 Parkin v. Moon 214 Parmenter, Commonwealth v. 31, 564 Partridge v. Hood 6, 7, 395, 454 Rex V. 122 Patch, Commonwealth v. 450 Pattee, Commonwealth v, 659 Patterson v. Goldsmith 247 Regina v. 51 Paulus, Commonwealth v. 629 Payne, Regina v. 182 Peacock, Rex v. 617 Pearce v. Atwood 15, 145, 247 Pease, Commonwealth v. 454 Peaslee v. McLoon 182 Peehel v. Watson 752 Peck, Rex v. 457 V. Thompson 247 Pelfryman, Rex v. 399, 804 Pelham, Regina v. 28, 29 Pemberton, Commonwealth v. 674 Pembliton, Regina v. 383 Penuiman, Commonwealth v. 57, 59 V. French 87 People V. Bush 407 V. Collins 31 TABLE OF CASES CITED. XXIX People V. Cook 31 V. Eastwood 209 V. Holoomb 106 V. Kingsley 647 V. Miller 41 V. Wright 65 Percival v. Caney 182 Perkins, Commonwealth v. 31 Regina v. 180 Perris, Commonwealth v. 68, 436, 731, 735 Perrott, Rex w. 42, 44, 462, 563 Perry, Regina v. 89 Perryman v. Lister 134 Peters, Commonwealth v. 173 Pettes, Commonwealth v. 369 Phelps, (Commonwealth v. Ill, 230 Regina v. 143 V. Stearns 223 Phillips, Commonwealth v. 24 Regina u. 16, 801 Rex V. 510 Phillpot, Regina v., 724, 772 Pierce v. Gray 250 Regina v. 732 Pierson, Regina v. 504, 720 Piper, Commonwealth v. 190, 198 V. Pearson 13, 158, 297, 298 Pitsinger, Commonwealth v. 192 Piatt's Case 267 Pollard, Commonwealth v. 772 Regina v. 18 Poole, Regina v. 728 Pope, Commonwealth !>. 34, 208, 792 Porter, Commonwealth v. 508 Powell V. Hoyland 558 Regina w. 87, 435, 443 Rex V. 619 Powner, Regina v. 68 Pratt V. Gardner 13, 153, 298 Pratten, Rex v. 75 Pray, Commonwealth v. 42, 44, 45, 56, 58, 671 Prendergast, Rex v. 172 Presby, Commonwealth v. 517 Price, Commonwealth v. 39, 46, 187, 216, 632 . Rex V. 19, 143 V. Seeley 135, 139, 143 Prince, Regina v. 92, 124, 356, 357, 403, 553 V. Samo 222 Prius, Commonwealth v. 456 Pruden v. Allen 296 Puckering, Rex v. 84 Pugh V. Griffith 150 Q. Queen v. O'Connell 55 Quin, Commonwealth v. 27, 181, 215, 300 R. Radley, Regina v. 87 Ramsbottom v. Buckhurst 296 Rand v. Mather 450 Randall v. Brigham 13 Commonwealth v. 34, 57, 394 Ransford, Regina v. 405 Ratclifte, Rex v. 160 Rawlings v. Coal Consumers' As- sociation 6, 454 Rawlins v. Ellis 15, 145 Ray, Commonwealth v. 367, 615 Raymond v. BoUes 13, 298 Read v. Sutton 297 Reading, Rex v. 183, 621, 679 Reardon, Commonwealth v. 379, 381 Reason, Regina v. 194, 196 Redman, Rex v. 57 Reed, Rex v. 607 Reese v. United States 233, 248, 255 Reeve, Regina v. 194, 196 V. Wood 183 Reid, Regina v. 171 Reily, Commonwealth v. 35 Remnant, Rex v. 264 Remon v. Hayward 24 Rew, Rex v. 679 Rex V. 30, 122 Reynolds, Commonwealth v. 47, 97, 150, 415, 735, 786, 738, 761, 825 Rice D. Coolidge 223 Regina v. 504, 721 Rex V. 510 Richards, Commonwealth v. 80, 86; 172, 225, 226 Regina v. 368, 370 Rex V. 37, 46, 437, 772 Richardson v. Sibley 818 Ricketson, Commonwealth v. 223 Rickman, Rex v. 385 Rigg V. Curvengen 522 Riggs, Commonwealth v. 24, 297, 447, 730 Rigney, Commonwealth v. 517 Rindge D. Coleraine 355 Ring, Commonwealth v. 721 Ritson, Regina v. 616 Roberts, Commonwealth v. 199 Regina v. 139, 151, 406, 636 Rex V. 651 Robins, Regina v. 356, 357 Robinson, Re 242 Commonwealth v. 65, 68, 81, 823 Regina v. 85 V. Richardson 102, 111, 112 Roby, Commonwealth v. 168, 169, 170, 173, 832 Roche, Rex v. 832 Roebuck, Regina v. 664 Rogan, Rex v. 803 XXX TABLE OP CASES CITED. Rogers, Commonwealth v. 208 Kegina v. 630 Rogier, Rex v. 662 Rohan v. Sawin 133, 134, 137 Roland, Commonwealth v. 77 Root V. Hamilton 214 Rosinski, Rex v. 392 Rough's Case 84 Rowed, Regina v. 25, 42 Rowlands, Regina v. 25, 70, 601 Kowton, Regina v. 208 Roxburgh, Regina v. 454 Roystead, Rex v. 163 Rudd, Rex v. 186 Rudge, Regina v. 441 Rex V. 683 Rue, Regina v. 194 Rugg, Regina v. 724 Rumford Chemical Works, Com- monwealth V. 54, 72, 352, 761 Rundell v. Le Fleur 218 Runnels, Commonwealth v. 25, 801, 802 Rushworth, Rex v. Russell, Regina v. Rnston, Rex v. Ryalls V. The Queen Ryan, Rex v. Rycroft, Regina v. Ryerson v. Abington Ryland, Regina v. 63, 565 3 179 60, 399, 773 92, 185, 384 463 215, 220 28, 229, 724 Sackett, Commonwealth v. 208, Sadler, Rex v. Sainsbury, Rex v. Salmon, Rex v. Sampson, Commonwealth v. lib, 102, 117, 124, 222 49 47 384 747, 748 Samuel v. Payne 134 Sanborn, Commonwealth v. 189, 399, 773 235 145 793 398 28 647 297 233 91 405 659 139 187 355 223 149 467 828 617 813 Sanders, Regina v. Sandford v. Nichols Sanford, Commonwealth v. Saunders, Regina v. Savage's Case Sawtelle, Commonwealth v. 87, Sayles v. Briggs 225, 296, Scaife, Regina v. Scannell, Commonwealth v. Schofield, Rex v. ScoUans v. Flynn Scott, Ex parte Commonwealth i;. V. Harmon Seaman v. Netherclift Semayne's Case Seward, Rex v. Sliakespeare, Rex v. 33, Sharman, Regina v, Sharpe, Regina v. Sharwin, Rex v. 681 Shattuck, Commonwealth v. 97, 163, 605, 610, 611 Shaw V. Chairitie 140 Commonwealth v. 48, 214, 440, 621 Shea, Commonwealth ». 169 Shearm v. Burnard 57 Shearman, Commonwealth ». 31, 34 Shedd, Commonwealth v. 457, 461, 462 Sheehan, Commonwealth v. 164, 169, 227 Rex V. 187 Sheen, Rex v. 168, 171, 835 Shepard, Commonwealth v. 631 Shepherd, Regina v. 501 V. Shepherd 52, 56 Sherlock, Regina v. 142, 768 Sherman, Commonwealth v. 34, 230, 409, 414, 647 Sholes, Commonwealth v. 91, 92, 109, 163, 164, 240, 247, 262, 361, 832 Silk, Commonwealth v. 214 Sill V. The Queen 164, 566 Silsbee, Commonwealth v. 528 Simmons v. Milligen Simonds, Commonwealth v. Simpson, Commonwealth v. Regina v. V. Wood Slack, Commonwealth v. Slate, Commonwealth v. Sleeman, Regina v. Sloan, Commonwealth v. Slocum, Commonwealth v Smart, Commonwealth v. 140, 142 629, 736 53, 57, 525, 535, 554 409 425 42, 63, 814 796, 797 196, 199 93 250, 251, 308 524, 625, 527, 533 Smith V. Adams 670 V. Adkins 28 V. Boucher 116 V. Cleveland 97 Commonwealth v. 88, 136, 151, 177, 185, 190, 191, 198, 369, 415, 525, 731, 735, 768 Regina v. 16, 18, 70, 438 Rex V. 182, 442, «03 V. Shirley 135 V. United States 251 Snelling, Commonwealth v. 741, 742 Snow, Commonwealth v. 187, 190, 362 Soley, Regina v. 801 Solomon v. Lawson 741 Somerton, Rex v. 25, 28, 526 Soper, Rex v. 47 Soule, Commonwealth v. 754 Sowle, Commonwealth v. 68, 352, 445, 754 Sparks, Commonwealth v. 182 Speart's Case 49 Spencer, Rex v. 598 Spicer, Regina ». 83 TABLE OP CASES CITED. XXXI Spieres v. Parker 75 St. John, Regina v. 37 Spillman, Commonwealth v. 622 Stockbridge, Commonwealth ;. 16.3, Spilsbury, Rex v. 199 677 Spittle V. Walton 179 Stoeker, Rex v. 49,51 Springfield, Commonwealth v 37, 163 Stoekwell v. Silloway 230, 414 Squire, Commonwealth v. 59, 64, 77, | Stoddard, Commonwealth v. 34, 164, 97, 389, 401, 436, 437 647 Squires, Commonwealth v. 377, 644, Stokes, Regina v. 46 723, 794 Stone, Commonwealth v. 33 Stafford, Commonwealth v. 681, 682 V. Dana 111, 118, 119, 120 Stahl, Commonwealth v. 65, 662 Rex V. 455 Stanbury, Eegina v. 27, 566 V. Yeovil 71 Stancliffe, Eegina v. 732 Stonnell, Regina v. 789 Stannard, Regina v. 504, 505, 506, 720 Stougliton, Rex v. 49 Stanton, Regina v. , 398 Stout, Commonwealth v. 386 Stapleton v. Crofts 182 Stowell, Commonwealth v. 53, 426 Rex V. 18 Strahan, Re 167 Starr, Commonwealth v. 626 Strain, Commonwealth v. 43, 458, 564 State V. Brown 83 Strangford, Commonwealth v . 81, 86, V. Butler 75 646 V. Cooper 438 Stratton, Commonwealth v. 44, 45, u. Coyle 106 391, 392 V. Curtis 106 Stubbs, Regina v. 187, 188 V. Drake 106 Sturge, Regina v. 670 y. Dowell 83 Sturtivant, Commonwealth v 190, V. Dresser 167 208, 209 V. Fowler 55 St. Weonards, Rex v. 669 V. Gilbert 50 Sugland, Commonwealth v. 794 V. Handy 16 Sullivan v. Adams 224. 225 V. Haney 51,53 Commonwealth v. 32, 35, 36, V. How 55 39, 307, 528, 729, 730, 754, V. Logan 83 795, 803 V. Merrill 55 V. Jones 13, 231 V. Moore 58, 516 Regina v. 3 V. Nelson 55 SuUs, Rex V. 29 V. O'Brien 4 Sutcliffe, Regina v. 191 c. Pratt 25 Suter, Regina v. 562 V. Price 51 Sutton, Rex v. 17 V. Roe 389 V. Warren 785 u. Robinson 41 Swain v. Mizner 149 V. Rust 41 Sydserff v. The Queen 462, 464 V. Shinborn 208 Syer's Case 434 V. Smith 681 Sylvester, Commonwealth v. 425 V. Stevens 86 Symouds, Commonwealth v. 55, 509 <.. Weed 106 V. Worley 106 V. Wormell 246 T. V. Yancey 169 Stearns, Commonwealth v. 524, 525, Tabart v. Tipper 428 634 Talbot, Commonwealth v. 617 Stebbins, Commonwealth i>. 86, 251, Tannett, Rex v. 38 527 Tarbell v. Gray 247, 250 Steel V. Smith 74 Tarbox, Commonwealth v. 7 3, 79, 7H9, Steele v. Brannan 124 770 Stephens, Regina i>. 3,761 Tarr, Commonwealth ;;. 187 Stephenson, Commonwealth V. 616 Taunton, Commonwealth v. 671 Stevens v. Bigelow 57 ' Taverner v. Little 46 Commonwealth v. 53, 78, 629, Taylor, Commonwealth v. 32, 78, 190. 796 297, 437 , 629, 659 Rex V. 26 , 772, 773 V. Jones 529 Steventon, Regina v. 37, 670 Regina v. 197, 368 St. George, Regina v. 393 Rex V. 530, 662 Still V. Walls 266, 267 V. Tainter 254 , 255 256 XXXll TABLE OP CASES CITED. Taylor v. Wells 83 Teague, Rex v. 622 Temple, Commonwealth v. 818 Tennant v. Hamilton 215 Tenney, Commonwealth v. 168, 524, 634 Terry, Commonwealth v. 80 Thaoher, Commonwealth v. 750 Thallman, Regina v. 737 Thayer, Commonwealth v. 37, 295, 297 ». Thayer 378 The Barrators 413 The King v. Bourne 39 V. Perrott 458 V. Philipps 62 V. Wilkes 9 V. Wylie- 567 The Queen v. Johnston 189 V. O'Brien 95 V. Saintiff 352 The Queen's Case 222 Thomas, Commonwealth v. 629, 632 Eex V. 518 Thompson, Commonwealth V. 35, 77, 352, 361,. 362, 364, 369, 379, 436, 514, 723, 787, 794 Regina v. 182, 434, 558, 605 Rexw. 135,195,409,681 Thomson, Kegina v. 25 Thornton, Commonwealth v 34, 503 Rexu. 200 Thrasher, Commonwealth v. 377 Thurborn, Regina v. 90, 728 Thurston v. Whitney 177 Tibbetts, Commonwealth v. 467 Tiddeman, Regina v. 552, 823 Tilley, Rex v. 98, 550 Tillotson V. Warner 297 Tilton, Commonwealth v. 161, 166, Timothy v. Simpson Tinkiiara, Commonwealth v. Tobin, Commonwealth ;; 663 135 226, 229 132, 151, 382, 515, 616 Tolliver, Commonwealth v. 38, 395 Tompson, Commonwealth v. 34, 379 Topliam V. McGregor 211 Torpey, Regina v. 18, 19 Torrenee v. Gibbins 46 Tosback, Regina v. 617 Tower, Commonwealth v. 36, 93 Tracy v. Malony 297 Traiiior, Commonwealth v. 828 Trask, Commonwealth w. 238 Tremaine, Rex v. 163 Tribiloock, Regina v. 728 Trickey, Commonwealth v. 169, 748 750 Trull V. Howland 31 Tryon, Commonwealth v, 20 Tubbs, Commonwealths. 413 V. Tukey 107, 148 Tuck, Commonwealth ". 53, 55, 439 Tucker, Commonwealth v. 384 Rex V. 823 V. Welsh 222 Tuckerman, Commonwealth v. 524, 625, 526, 531 Tully, Commonwealth v. 90, 435 Tunstall's Case 413 Turner v. Bartlett 253 Rex V. 92, 384 Turner's Case '69 Turns, Commonwealth v. 28, 30, 58, 69, 165, 828 Turweston, Regina v 57, 669, 670 Tuttle, iCommonwealth v. 71, 75, 76 Tutton V. Darke 209 Tweedy v. Jarvis 29 Twitchell, Commonwealth v. 53, 54, 428, 743 Tye, Rex v. 682 U. United States v. Boyden 456 V. Cook 41, 42, 72, 73, 74 V. Cruikshank42,45,46, 66 V. DriscoU 92 V. Elliot 773 v.Fox 28, 36, 44 V. Foye 67 V. Furlong 95 V. Howard 57 V. Howell 620 V. Lunt 394 V, Nickersoa 71 V. Pond 66 ti. Reed 66 V. Reese 42, 65,66 V. Simmons 542 V. Williams 191 Unkles , Regina v. 191 Unkno wn. Commonwealth ;. 71 Upricliard, Commonwealth V. 729 Upton, Commonwealth v. 761 Upton on Severn, Rex v. 669 Urlyn, Rex V. 412 V. Vandereomb, Rex v. 169 Van Sandau v. Turner 166 Van Shaaek, Commonwealth v. 384 Varney, Commonwealth v. 34 Vaux's Case 48 Vavasour v. Ormrod 75 Viall, Commonwealth v. 452 Villeneuve, Rex v. 601 Vincent, Commonwealth v. 164 Vinton v. Middlesex Railroad 518 TABLE OP CASES CITED. XXXIU W. Waddington, Kex v. 427 Wade, Commonwealth v. 33, 168, 170, 173, 385, 386, 387 Eex V. . 47 Waite, Commonwealth v. 768 Wakely v. Hart 137 Walcott, Commonwealth v. 68, 164 Walden, Commonwealth v. 64, 753 Walkden, Regina v. 392 Walker, Commonwealth v. 199, 559 V. London 732 Regina v. 133, 143 Rex V. 570 Wallace, Commonwealth t'. 300, 367, 456, 461, 462 Regina v, 374 V. Townsend 297 Walne, Regina v. 599 Walsby v. Anley 501 Walsh, Regina v. 195, 198 Walton, Commonwealth v. 36, 164, 229, 301, 302, 354 Warbnrton, Regina v. 456, 460 Ward, Commonwealth v. 265, 267, 268, 290, 628 Regina v. 566, 823 V. State 33 Wardle, Rex v. 50 Wardroper, Regina v. 18 Warman, Regina v. 681 Warren v. Charlestown 145, 450 Warringham, Regina v. 193, 195 Waterman, Commonwealth v. 456, 471 Waters, Regina v. 32, 44 Rex V. 681 Watkins, Ex parte 267 V. Major 357 Regina v. 438 Watson V. Moore 223 Regina v. 737 Rex V. 123, 207 Watts V. Lyons 215 Waverton, Regina v. 28, 95, 98, 669 Way V. Wright 253 Webb, Regina v. 97, 737 Rex V. 681 Webster, Commonwealth v. 93, 208, 352, 626, 647, 673, 674, 683, 716 Webster v. Watts 139 Welch, Commonwealth v. 20 Regina v. 383 V. Scott 106 Wellington, Commonwealth v. 57, 437, 452, 458 Wells, Commonwealth v. 36, 57, 61, 352, 721 V. Iggulden 75 V. Stevens 13,225,231,261,298 Welsh, Commonwealth v. ' 67 Wentworth, Commonwealths. 380,762 West, Regina v. 563 Westley, Regina v. 47 Wetherbee v, Norris 218 Wheatly, Rex v. 459 Wheeler v. Whiting 140 Whitcomb's Case , 208, 297 Wliite V. Buss 659 Commonwealth v. 369, 393, 394, 729; 735, 771, 796 V. Garden 558 Regina v. 617 Rex V. 436 V. The Queen 42, 44, 45, 65, 456, 457 V. White 880 Whitehead, Regina v. 179 V. The Queen 14 Whitman, Commonwealth v. 57, 502 Whitney, Commonwealth v. 48, 224, 228, 519 Whittemore, Commonwealth v. 190 Wiggin, Commonwealth v. 227 Wilcox, Commonwealth v. 104, 152 Rex M. 619 Wild, Rex v, 199 WUkes, Rex v. 148 V. Wood 111 Wilkinson v. Gaston 670 Williams, Ex parte 245 V. Bay ley 6, 454 Commonwealth v. 36, 64, 88, 304, 434, 436, 448, 524, 533, 735, 753, 759 V. CrossweU 134 V. Ogle 33 Regina v. 19, 20, 79, 191, 393, 898, 624, 625 Rex V. 82, 39, 48, 630, 742 Willis, Regina v. 788 Willot V. Regina 601 WUmarth v. Burt 145 Wilson, Commonwealth!;. 78, 209, 448, 629 Regina v. 33, 163, 683 Rex V. 610 Windsor, In re 615 Wingate, Commonwealth v. 251, 300, 302 Winsor v. The Queen iSS, 182 Winton, Commonwealth v. 229 Wise, Commonwealth v. 504 Witchell, Rex v. 605 Withers, Regina v. 31, 33 Woburn v. Henshaw 216 Wolcott, Commonwealth v. 554 WoUaston, Regina v. 392, 393 Wood, Commonwealth v. 20, 187, 222, 230, 286, 361, 362, 414, 502, 721 V. Cooper 210 Regina v. 40 V. Southwick 771 Wooding V. Oxiey 140 XXXIV TABLE OF CASES CITED. Woods, Commonwealth v. 622, 629, 632, 736 Woodward, Commonwealth v. 517, 682, 688, 688 Eex V. 37, 436 Woolf V. City Boat Co. 352 WooUey, Eegina v. 606 Worcester, Commonwealth v. 71, 451 Worley, Regin^ v. 772 Wright V. Clements 77 Commonwealth v. 68, 77, 78, 164, 619, 740, 748 V. Court 148 V. Lainson 46 Rex V. 47 u. The Queen 457 Wyatt, Reglna v. 47, 825 Wyman, Commonwealth v. 72, 532 Wyndham's (Su- W.) Case 267 Tork, Rex v. 266 York's Case 17 Yorkshire, Rex v. 225 Young, Commonwealth v. 624 V. Gilles 165 V. Makepeace 805 Eegina v. 510 V. The King 601 u. The Queen 95 PART I. CRIMINAL LAW. CHAPTER I. • APPLICATION FOK PEOCBSS. When a crime ' has been committed, and application is made to a magistrate for a warrant against the party accused, 1 " The proper definition of the word 'crime,'" said that accurate judge, Mr. Justice Littledale, "is an ofience for which the law awards punishment. Such crimes are sub- divided into three classes, — trea- sons, felonies, and misdemeanors." Mann v. Owen, 9 B. & C. 602. Crimes are defined as acts punished by law. Stephen General View of the Criminal Law, pp. 4, 5. "A crime is constituted by an overt act done with a guilty intent, or in- cludes a guilty mind, knowledge, or possession, affecting or prejudicing the public." Broom Philosophy of the Law, § 164. " At common law, a crime is an act done with criminal intent, to the injury of the public." 1 Lead. Crim. Cas. 6, 2d ed. An indictment is the means of a prosecution instituted by the crown, as supreme magistrate, against some person or persons, for an act com- mitted or omitted, the committing or omitting of which, with impu- nity, is calculated to work an in- jury to the public, or which act or omission is made illegal by stat- ute. Reporters' note to Regina v. Ferrall, Temple & Mew C. C. 400. "In Bancroft e. Mitchell, L. R. 2 Q. B. 549, that an indictment would lie was said not to be the test whether the act was criminal or not." Mellor, J., in Regina v. Master, L. R. 4 Q. B. 289. The distinction is, whether the real end and object of the action, whether criminal only in form, and in substance merely civil, is punish- ment or reparation. Parker v. Green, 2 B. & S. 299 ; 9 Cox C. C. 169. Regina ». Paget, 3 F. & F. 29, and reporters' note. Myers V. State, 1 Conn. 502. Regina v. Russell, 3 E. & B. 942, 951, per Coleridge, J. Regina v. Sullivan, Irish Rep. 8 C. L. 404. Regina v. Stephens, L. R. 1 Q, B. 702. Un- der the denomination of crimes, all offences of^a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable. Lawrence, J., in Rex v. Higgins, 2 East, 21, which is one of the best-considered cases to be found in the books. The meaning of the 1 CRIMINAL LAW. it becomes necessary to ascertain the grounds of the accusation so far as to enable the magistrate to decide upon the propriety of granting or refusing such application. Criminal prosecu- tions are carried on in the name, and, in this Commonwealth, at the expense, of the government ; and have for their object the public safety and security. Whenever, therefore, it shall be manifest that mere private redress, and not the public good, or any breach of the laws, is the motive of the party applying, the magistrate may decline to institute the process. It is a cardinal rule, which ought to be written in letters of gold, that no one can be arrested on mere suspicion of crime. This rule, that such suspicion is no ground for arrest- ing any man, is well settled ; ^ and it applies to misdemeanors, and all crimes whatsoever'.^ There is no such thing allowed as seizing and detaining any one till evidence shall have been found on which he may be charged or convicted.^ The person injured is usually the complainant, or prosecu- tor, as he is generally called in England. But every man of common right is entitled to prefer an accusation against a party who is guilty of an offence. In this country, where public prosecutions are carried on at the public expense, the privilege of originating them is often abused. Magistrates are liable to be imposed upon by the ex parte statements of the party complaining ; which are usually made under the influence of feelings excited by a strong sense of personal injury, sometimes from motives of revenge, and not unfre- quently from a disposition or propensitj'^ to appear at court in the character of a witness for the Commonwealth. It is an important duty of the magistrate -to acquaint himself with the real motives of the complainant ; and, in proper cases, to suspend the issuing of the process, and to turn the party over to the grand jury and public prosecutor. A predisposition in magistrates to commence a public prosecution upon trivial or groundless applications is a great evil to the community ; word "crime" is discussed in At- no cause of arrest." Coxe v. Wir- torney-General v. Radloif, 10 Exch. rail, Cro. Jao. 193, 194. 84; Cattell v. Ireson, El., Bl. & ^ Bowditoli v. Balchin, 5 Exch. El. 91; and in State v. O'Brien, 3 378. Vroom, 172. s Hall v. Booth, 3 Nev. & Man. 1 " Without a fact, suspicion is 316. 2 Paterson Comm. 137, 138. APPLICATION FOR PROCESS. O and, when it is indulged from selfish or pecuniary motives (as is sometimes the ease with the hungry and trading part of them), requires exemplary correction. It is, therefore, of importance to consider upon what evi- dence a complaint shall be received, and a warrant granted. In the first place, a complaint cannot be received from per- sons disqualified to make oath to it. A consequence of this, until recently, was, that the testimony of a person who, by the turpitude of his conduct, had made it probable that he would not regard the obligation of an oath, was not received ; and therefore no individual who had been convicted of any infamous crime was competent to give evidence in a court of justice. The Legislature has, however, thought it wiser to admit the evidence of such a person, and to leave it to the discrimination of the magistrate and the jury to attach the proper weight to it ; and a very recent statute has enacted that no person of sufficient understanding shall be excluded from giving evidence in any proceeding, civil or criminal, in court, or before a person having authority to receive evidence. But the conviction of a witness of any crime may be shown to affect his credibility.^ Persons legally entitled to prefer an accusation against a person charged with an offence are bound to exert the power with which they are invested ; not from motives of revenge, but for the security of the peace and safety of the community. The object of criminal laws is not vengeance for 'the past, but safety for the future ; and to the furtherance of this design every citizen is bound to contribute.^ This moral obligation 1 St. 1870, ch. 393, §§ 1, 3. The ^ 1 Chit. Crim. Law, 3, 2d ed. law as to the competency of wit- " Human laws are made not to nesses was formerly the most, or punish sin, but to prevent crime and nearly the most, important and ex- mischief. All criminal statutes that tensive branch of the Law of Evi- were ever passed were intended dence. The obvious result of this not to punish guilt, but to prevent change is, that the law upon the sub- crime. " Per Pollock, C. B., in At- ject of the objection to competency torney- General v. Sillem, 2 H. & C. on the ground of infamy has been 510, 526. " The end of punishment rendered obsolete, and, save as a is the prevention of crime." Per matter of historical interest, useless. ■ Colt, J., in Commonwealth v. Den- For the old law, see 1 Greenl. Ev. nis, 105 Mass. 162. Part IK. ch. 2; 2 Taylor Ev. Part m. ch. 2. 6 CRIMINAL LAW. is enforced by the laws themselves. For every person, know- ing, that a capital crime has been committed, and concealing it, is guilty of an offence. In such cases, it is the indispen- sable duty, and only safe conduct, of those who have knowl- edge of the crime, to reveal it as soon as possible to a trial justice or other magistrate.^ And although, in cases of mis- demeanor, this neglect is not in general punishable, yet, if the crime be of a public character, it is illegal to receive, or stipu- late to receive, a compensation for suppressing a prosecution of it. And any contract or security made in consideration of dropping a criminal prosecution, suppressing evidence, or compounding for any public offence, is invalid.^ But the nullity of such contracts is not the only effect pro- duced by the suppression of public prosecutions ; and as these attempts are usually made at the commencement of them, and are sometimes sanctioned or connived at by magistrates who are not well instructed in their duty, their injurious effects ought to be clearly pointed out. 1 1 Chit. Crim. Law, 4. 4 Bl. Comm. 120, 121. 2 Collins V. Blantern, 2 Wils. 341. Edgcombe v. Eodd, 5 East, 294. It has not been unfrequent on trials in the criminal courts, in England, for the prosecutor to with- draw from the prosecution, the per- son accused agreeing to bring no action for trespass and false iinpris- onment or malicious prosecution. Such an agreement appears to be legal, if the prosecution is for an offence which might be made the subject of a civil action for dam- ages; for instance, a common as- sault, Kerr v. Leeman, ubi infra. But if the offence be a felony, Raw- lings V. Coal Consumers' Associa- tion, 43 L. J.' M. C. Ill ; or even a misdemeanor, if such misdemeanor be in the whole or in part of a pub- lic nature, as, for instance, an as- sault and riot, Kerr v. Leeman, 6 Q. B. 308; 13 L. J. Q. B. 359; in Exch. Cham. 9 Q. B. 371; 15 L. J. Q. B. 360; S. C. 2 Lead. Crim. Cas. 216, 221, — such an agreement is void; and, if the person accused subsequently sues the prosecutor, the action will not be stayed upon the ground that it is brought against good faith. Regina v. Blakemore, 14 Q. B. 544. Regina v. Hardey, 14 Q. B. 529. Clubb v. Hutson, 18 C. B. N. S..414, and note p. 417, American ed. Williams v. Bayley, L. R. 1 H. L. 200, 213, 220. The prosecution in Jones v. Rice, 18 Pick. 440; S. C. 2 Lead. Crim. Cas. 239, was for a riot as well as an assault. But the language and the reasoning of the opinion extend to the compounding of any offence whatever. And in a very recent case, it was declared that, in this country, no crime can lawfully be made the subject of private com- promise, except so far as expressly authorized by statute. Partridge v. Hood, 120 Mass. 403. Gen. Sts. ch. 170, § 33, and ch. 171, § 28. Collins v. Blantern, 1 Smith L. C. 369 and note, 389, 7th Eng. ed. APPLICATION FOR PROCESS. 7 It sometimes occurs, when the accuser and accused meet before the magistrate, that their animosity towards each other is abated. At this early stage of the process, numerous temptations may present themselves to the parties, to stop or suppress it. Frequently the party complained of becomes convinced that he has no legal means of escaping punish- ment, and is therefore willing to purchase an exemption from it. When the injury is merely of a personal nature, the per- nicious consequences of stopping the prosecution for it, upon an agreement for a personal satisfaction, are not always per- ceived ; and, when such agreements are assented to by the parties, there have been instances of their being sanctioned or permitted by the magistrate. This practice is always ille- gal and criminal in the parties, except so far as expressly authorized by statute ;i and, when participated in by the magistrate, the consequences to him may wholly depend upon the motives of his conduct. If he proceed ignorantly, and without any criminal design, he may possibly be excused from punishment ; but if he permit himself to be influenced by selfish, pecuniary, or other unworthy or corrupt consider- ation, he becomes liable to exemplary punishment, impeach- ment, and removal from office. An ignorant magistrate may suffer much injury to be done in this way ; a corrupt one may prevent the punishment of the most atrocious offender, and thus defeat one of the great objects of civil government. For, as the magistrate is the officer upon whose integrity and vigilance the government depends for the apprehension and security of the perpetrators of crimes, he may, if corrupt, at all times afford thim the means of escape, by permitting the accused to negotiate with and buy off his prosecutor. This practice is severely frowned upon and punished by the common law. It is an offence against public justice, and one that contributes to make the laws odious to the people.^ An agreement to stifle a prosecution is said to be a crime most detrimental to the Commonwealth ; for it is the duty of every man to prosecute, appear against, and bring offend- 1 Partridge v. Hood, 120 Mass. ^ i Deacon Crim. Law, 269. 403. Gen. Sts. ch. 170, § 33, and ch. 171, § 28. 8 CRIMINAL LAW. ers to justice. Any agreement to the contrary is said to be void by the common law, the civil law, the moral law, and all laws whatever. " You shall not stipulate for iniquity." All writers upon our law agree that a polluted hand shall not touch the pure fountains of justice. And so chaste is the English law upon this subject, that it is made criminal by statute for a man to advertise a reward for the return of stolen goods, with no questions asked, or words of the same import.^ It seems, therefore, of great importance, both to the public and to the character and safety of a magistrate, that, whenever a public prosecution has been commenced by him, he should proceed with it in a direct course, without the least regard to any private or personal views of the parties, which may be inconsistent with the due course of public justice. In the case of Kingsbury v. Ellis,^ a promissory note was given to the plaintiff, who was a magistrate, for the amount of fines and costs imposed by him upon the defendant, the maker of the note, on a criminal charge. In an action on the note, it was held to be void, for want of consideration moving from the payee personally, and that the consideration was illegal, being in violation of a public duty. Shaw, C. J., in delivering the opinion of the court, said: " Such a proceeding as this is entirely contrary to public policy. If a magistrate, or any other judicial ofl&cer, could enter into a negotiation with a convict, take a contract to himself, and enforce it by law, it would operate as a temptation to the judge, and lead to the oppression of the accused by the use of public process, If the judge might take a note, with surety, he might take a pledge of personal, or a mortgage of real, estate, or make any other contract in his own name. It would lead to compli- cated relations between ministers of the law and parties accused, entirely inconsistent with the purity, simplicity, and directness which should ever characterize the administration of the criminal law." A justice of the peace sentenced a prisoner, whom he had convicted of larceny, to pay a fine and costs; and, on his failure to pay them, delivered a mittimus to an officer, who, while conducting the prisoner to jail, took the 1 1 Deacon Crim. Law, 268. 24 ^ 4 Cush. 578. & 25 Vict. ch. 96, § 102. APPLICATION FOB PROCESS. ■ 9 promissory note of a third person, for the amount of the fine and costs, and his own fees, payable to the justice, and dis- charged the prisoner. The note was held to be void for ille- gality of consideration, the court saying that the act of the officer was clearly a violation of his official duty, and against public policy.^ At common law a magistrate may institute a process for the punishment of an offence committed in his presence. He is thereby possessed of a double power in relation to the arrest of wrong-doers : the first branch of which may be per- sonally exercised on the commission of a felony or breach of the peace in his presence ; the second, by issuing a warrant on the evidence and complaint of another. And, if a justice of the peace see a felony or breach of the peace committed, he might, at common law, either himself arrest the parties offending, or verbally command any person to take them into custody .2 The right to exercise this power, under our Con- stitution, might well be doubted, if it had not been recognized by a particular statute. It has not been usually exercised in this Commonwealth since the adoption of its present Consti- tution. And, indeed, it seems inconsistent with the doctrine of Chief Justice Pratt in the case of The King v. Wilkes.^ He there gives it as his opinion, that if a magistrate has a particular knowledge that a person has committed an offence, it is not sufficient ground for him to commit the criminal ; but in that case he is rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate, who should thereupon act the official part, by granting a war- rant to apprehend the offender; it being more fit that the accuser should appear as a witness, than act as a magistrate. This advice is so salutary, that no arguments seem necessary to recommend it to the magistrates of this country. The statute above alluded to is the Gen. Sts. ch. 120, § 32, and is in the following words : " Justices of the peace may, as conservators of the peace, upon view of any affray, riot, assault, or battery, within their respective counties, without 1 Bills V. Comstook, 12 Met. ^ i chit. Crim. Law, 24, 25. 468. 1 Deacon Crim. Law, 47. = 2 Wils. 158. 10 CRIMINAL LAW. any warrant in writing, command the assistance of every sheriff, deputy-sheriff, and constable, and of all other persons present, for suppressing the same, and for arresting all who are concerned therein ^ as provided in chapters one hundred and sixty-nine and one hundred and seventy." Whatever power to make these arrests is vested in justices of the peace, either at common law or hj the statute here quoted, such power ought to be cautiously exercised ; and, indeed, never resorted to, but in cases of extreme necessity, as, for instance, where an atrocious crime has been committed, and there is no other means of preventing the escape of the offender. Perhaps it is unnecessary to add, that it is essen- tial to the power and protection of the magistrate that in these cases he act without malice, and upon plenary evidence that a crime has been committed. In Massachusetts, the power to commit or hold to bail all persons who appear to be guilty of capital or lesser offences is given to trial justices, by statute.^ Having introduced a part of the statute vesting powers in justices of the peace in criminal cases, the importance of those powers in the administration of justice and the punish- ment of crimes may be the subject of a few remarks. The conservation of the peace is the very end and foundation of civil society, and has been one of the first and favorite objects of the common law. Both in England and in America, the highest officers of state have been ex officio associated with justices of the peace, for its preservation. In some countries, the tyranny and oppression exercised over the subject, by officers liable to no responsibility except to their immediate employers, are among the greatest horrors of a despotic gov- ernment. A power to arrest offenders, and secure them for trial, which can at all times be called into immediate exer- 1 And a justice of the peace has been ordered by a justice without a the same authority to command warrant to pursue and retake the assistance in pursuing and retaking - offender, may, after demand and an offender whom he has caused to refusal of admission, break doors be arrested for an offence committed for the purpose. Commonwealth v. in his presence, and who has es- McGahey, 11 Gray, 194. caped, which he has to command ^ Gen. Sts. ch. 120, § 39. Gen. assistance in making the original Sts. ch. 169. Gen. Sts. ch. 170, § 9 arrest. And a constable who has et seq. APPLICATION FOR PROCESS. 11 cise, is indeed essential to the prompt and successful admin- istration of justice. The necessity of guarding such a power in the hands of any order of the community is coextensive with the liability to and danger of its abuse. It has been abused ; although instances of it have seldom occurred. A corrupt magistrate is a monster rarely to be met with in this country. Few as their number are, they are objects of the scorn and contempt of all classes of the people. A mercenary and profligate magistrate is one of those nuisances which noth- ing can remove or cleanse, until he is hunted down by public indignation. On the other hand, those of upright and respect- able characters have the thanks and the support of all the friends and advocates of good government. Justices of the peace are said to possess all the powers of ancient conservators of the peace at common law, in suppress- ing riots and affrays, in taking security for the peace, and in apprehending and committing felons and other inferior crimi- nals.^ Such are the important powers vested in them by the statute under which they derive their authority in criminal prosecutions, that, in this Commonwealth, the whole authority of the government for the preservation of the peace and pun- ishment of criminals, during the vacation of the superior tribunals, in a great measure devolves upon them. For, in addition to those offences which are within their jurisdiction to try and punish, they are authorized to punish by fine, not exceeding thirty dollars, all assaults and batteries, and other breaches of the peace, when the offence is not of a high and aggravated nature ; ^ and cause to be stayed and arrested all affrayers, rioters, disturbers and breakers of the peace, and all who go armed offensivel}' to the terror of the people, and such as utter menaces or threatening speeches, or are other- wise dangerous and disorderly persons.^ 1 1 Deacon Crim. Law, 713. peace, to the great damage and com- 2 Gen. Sts. ch. 120, § 38. St. mon nuisance of the citizens of the 1871, ch. 115. " District courts, Commonwealth, inhabiting, being police courts and trial justices may and residing in the place where such punish by fine not exceeding thirty disturbance occurs." St. 1876, ch. dollars, or imprisonment in the jail 174. or house of correction not exceeding ^ Gen. Sts. ch. 120, §§ 3&, 39. ninety days, a disturbance of the 12 CRIMINAL LAW. Their duty also requires them to examine into all homi- cides, murders, treasons, and felonies, and to commit to prison all persons guilty, or suspected to be guilty, of those offences ; and to hold to bail all persons guilty, or suspected to be guilty, of lesser offences ; to require sureties for the good behavior of dangerous and disorderly persons ; and to take cognizance of all other crimes, matters, and offences, which by particular laws are put within their jurisdiction. These important powers and duties of trial justices will be more particularly commented upon in the subsequent chapters, and in their more appropriate places. They are recited and referred to in this place from the statute last mentioned, as containing a summary of those duties and cases which relate more immediately to the subject of this chapter ; namely, to the receiving of complaints and applica- tions for criminal processes. In every case embraced within the provisions of this statute, it is the duty of the magistrate to institute a process, if the grounds of the application are made clear and satisfactory to him. When a magistrate finds reason to believe that the party applying for a criminal process is actuated by motives of pri- vate interest rather than those of public justice, it is his duty to examine him strictly, and to warn him of the liabilities he may incur. Prosecutions have been, and may be, origi- nated from no better motive on the part of the complainants than a desire to obtain advantages from them in civil suits depending upon the same facts. Numerous instances are recollected, when hopes of this kind have been cherished relating to civil actions which have been tried in the lower courts, and are pending by appeal. The general object of these prosecutors is to obtain an indictment for perjury against some witness whose testimony has been unfavorable to them in a former trial, in order to disqualify him from testifying on an appeal or new trial. In these and all simi- lar cases, the magistrate should be careful not to involve the government in the expense, or subject the individual to the liabilities, of a groundless or malicious prosecution. He can generally avoid the responsibility of refusing a process, by referring the complainant to the grand jury. It rarely hap- APPLICATION FOE PROCESS. 13 pens that any injury or injustice is the consequence of this delay, unless the offence complained of may be barred by the statutes of limitation. But, on the other hand, when an offence not within the jurisdiction of a magistrate is to be carried for trial before the higher courts, and there appear to be sufficient grounds for the prosecution, it is highly expedient to commence the proceedings before the magistrate, whereby the party and witnesses for the government are bound over to the court in which the trial is to be had. This course affords so much facility to the public prosecutor, that he is thereby usually enabled to save the time and expense of a whole term. In such cases, the law insures to the prosecutor all due protec- tion. He cannot be injured in the discharge of this duty, unless his proceedings are instigated by malice, and destitute of any probable foundation. ^ A magistrate may, upon deliberate consideration, refuse to institute a criminal process. But this cannot be legally done where there is an accusation upon oath of an offence of a higher nature than is within his jurisdiction, if there appear any reasonable ground for the charge. Yet if there be a positive charge on oath, and the justice sees that there is no credit to be given to it, he may decline receiving the com- plaint and issuing a warrant.^ He must act honestly and judiciously, as well towards the government as the party, — he must have a " stout and upright heart, and clean and un- corrupted hands," ^ — and, when that is the case, he can be subjected to no injury on account of his official conduct.* 1 1 Chit. Crim. Law, 8. p. 321 et seq. ; Randall v. Brigham, 2 1 Chit. Crim^Law, 31. 7 Wall. 523; Bradley v. Fisher, s King James's Speech to the 13 Wall. 335 ; Kemp v. Neville, 10 Judges in the Star Chamber, a.d. C. B. N. S. 523 ; Pratt v. Gardner, 1616, quoted in Dalton's Justice, 2 Gush. 63 ; Chickering v. Robin- ed. 1742. son, 3 Gush. 543 ; Raymond v. * As to the liability of magis- Bolles, 11 Cush. 315; Briggs v. trates to an action for acts done Wardwell, 10 Mass. 356; Sullivan by them, see the following cases: v. Jones, 2 Gray, 570; Wells v. Piper V. Pearson, 2 Gray, 120; Stevens, 2 Gray, 115; Clarke v. Calder v. Halket, 3 Moore P. C. May, 2 Gray, 410 ; Kelly v. Bemis, 28, and the notes to those cases in 4 Gray, 83 ; Barker v. Stetson, 7 Leading Criminal Cases, vol. ii. Gray, 54; Cave v. Mountain, 1 M. 14 CRIMINAL LAW.' If the magistrate, after deliberate consideration, determines to institute a process, he will commence it by receiving the complaint of the party applying for it; which complaint ought to be, both in form and substance, adapted to the crime complained of, and to be sanctioned by the oath of the com- plainant. This prerequisite is required in England, and in the United States. In Massachusetts, it is in pursuance of the fourteenth article of the Declaration of Rights, which is in these words : " Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his .possessions ; all warrants, therefore, are contrary to this, if the cause or foundation of them be not previously supported by oath or affirmation." The course for the complainant is, to go before a magistrate, sometimes accompanied with other witnesses^ and state the facts upon which the application is founded. The magis- trate then should interrogate the accuser, and other wit- nesses if present, so as to enable him to judge of the nature of the complaint, and the propriety of instituting the process. He then draws up the complaint in legal form, unless the complainant present one ready drawn by counsel ; which is often done in cases requiring particular technical accuracy, such as perjury, conspiracy, and the like. The complaint is then signed by the accusing party,^ and the oath or affir- mation to its truth and justice administered by the magis- & G. 257; Barton v. Brioknell, 13 Gray, 463. A complaint for lar- Q. B. 393. ceny, signed by the complainant In Whitehead v. The Queen, below the description of the goods 14 L. J. M. C. 166, Lord Denman, stolen, and above the charge of lar- C. J. , said : " I remember an action ceny, is not ' ' subscribed by the com- tried before Gibbs, C. J., brought plainant," as required by the Rev. against Alderman Wood by a man Sts. ch. 135, § 2 ; Gen. Sts. ch. 169, whom he had sentenced to be im- §2. Shaw, G.J. : " It is not certain prisoned; and it was contended that that the complaint was reduced to the imprisonment was illegal, be- writing before it was sworn to. It cause the sentence did not also cannot be ascertained that this sig- direct that he should be whipped." nature was made for the purpose of Gibbs, C. J., said to the jury, authenticating the whole complaint. " Give the plaintiff the full damages Such looseness and carelessness in he has sustained by reason of not instituting criminal proceedings are having been whipped." not to be encouraged." Common- ^ Commonwealth v. Farrell, 8 wealth v. Barhight, 9 Gray, 113, 114. INFANTS. 15 trate. Upon this the warrant is usually issued. A war- rant may be issued and executed on Sunday, as well as on any other day.^ As the object of the oath is to bind the conscience of the witness, it follows that some form of swearing must be used which the witness considers to be binding. On the principles of the common law, no particular form is essential to the oath ; and therefore every witness is now sworn according to the form which he holds to be the most solemn, and which is sanctified by the usage of the country or of the sect to which he belongs.^ In Massachusetts, the ceremony of holding up the right hand is adopted ; ^ but an exception is introduced by the express provisions of the Legislature, in favor of the religious scruples of Quakers and some others. To these a solemn affirmation is administered, which is done without the ceremony of holding up the hand. Roman Catholics, in this State, are directed to be sworn on the Holy Evangelists, on the ground that those who profess the Catholic faith generally regard this to be the most solemn form of administering an oath. This is done by the witness placing his hand upon the book whilst the oath is administered, and kissing it after- wards.'' It is now settled that the testimony of a child can- not be received except upou oath, although the contrary practice once prevailed.^ The liability of Infants and of Married Women for crimes committed by them may be conveniently stated here. There are certain conclusive presumptions of law made 1 Pearce v. Atwood, 13 Mass. 324, any court or magistrate shall declare 347. Gen. Sts. ch. 84, § 6. Rawlins that any peculiar mode of swearing V. Ellis, 16 M. & W. 172 ; 2 Cox is, in his opinion, more solemn and C. C. 96. Except for a violation of obligatory than holding up the the statute by travelling on the hand, the oath may be administered Lord's day. in such mode." By the second 2 See the celebrated case of Mil- section. Gen. Sts. ch. 131, § 9, is ler V. Salomons, 7 Exch. 475. repealed. ^ The manner of administering * Commonwealth v. Buzzell, 16 oaths is fully pointed out in the Pick. 154, 157. Gen. Sts. ch. 131. By St. 1873, s i gt^rk. Ev. 33, 4th Eng. ed. ch. 212, § 1, it is enacted, that, 2 Taylor Ev. §§ 1242, 1243. " When a person to be sworn before 16 CRIMINAL LAW. with respect to infants. Thus, an infant under the age of seven years is conclusively presumed to be incapable of com- mitting any felony, for want of discretion ; ^ and under four- teen a male infant is presumed incapable, on the ground of impotency, of committing a rape as a principal in the first degree,^ or even of committing an assault with intent to per- petrate that crime.^ So a female under the age of ten years is presumed incapable of consenting to sexual intercourse.* Other disputable presumptions arise in respect of infants. Thus, during the interval between seven years and fourteen, infants are primi facie presumed to be unacquainted with guilt, and therefore cannot be convicted, unless the jury shall be satisfied from the evidence that, at the time when the offence was committed, they had a guilty knowledge that they were doing wrong." This rule, though perhaps originally adopted in favorem vitse with respect to capital, offences only,^ has of late years been expressly held applica- 1 Best Ev. § 306. 1 Taylor Ev. » Res v. Eldershaw, 3 C. & P, § 91, 6th ed. If an infant under 396, Vaughan, B. Eegina v. Phil- seven is given into custody on a ips, 8 C. & P. 736, Patteson, J. charge of felony, an action for false State v. Handy, 4 Harringt. 566. imprisonment will lie. Marsh v. 3 Greenl. Ev. § 215 and note. Con- Loader, 14 C. B. N. S. 535 ; S. C. tra. Commonwealth v. Green, 2 nom. Marsh v. Lowder, 2 New K. Pick. 380, Parker, C. J., dissent- 280. ing. 2 1 Taylor Ev. § 90, 6th ed. * State v. Handy, 4 Harringt. Regina v. Groombridge, 7 C. & P. 567. 1 Taylor Ev. § 91, 6th ed. 582, Gasalee, J., and Lord Abin- The offence of attempting to have ger, C. B. This presumption ap- carnal knowledge of a girl under plies to the ofience of carnally abus- the age of ten years may be com- ing a girl under ten years of age. mitted, notwithstanding the girl Regina v. Jordan, 9 C. & P. 118, consents to the acts done. Her Williams, J. But as this presump- consent is a matter of indifference, tion proceeds on the ground of im- If the indictment is merely for an potency rather than the want of indecent assault, the question of discretion, if the boy have a mis- consent is material. Regina v. chievous discretion, he may be a Beale, L. R. 1 C. C. 10 ; 10 Cox principal in the second degree. C. C. 157; 35 L. J. M. C. 60. 1 Hale P. C. 630. The patient « 1 Russell on Crimes, 7, 4th may. be convicted of an unnatural ed. 1 Taylor Ev. § 151, 6th ed. crime, though the agent be under Best Ev. § 314. Regina v. Smith, fourteen. Regina v. Allen, 1 Deni- 1 Cox C. C. 260, Erie, J. son C. C. 364: 2 C. & K. 869; Tem- « 1 Hale P. C. ch. 3. pie & Mew C. C. 55. MARRIED WOMEN. — COERCION BY HUSBAND. 17 ble to all felonies ; ^ and there seems no reason why, on prin- ciple, it should not also be extended to misdemeanors,^ with the exception, perhaps, of those cases where an infant occu- pier of lands, charged with the repair of a bridge or road, might be held liable to an indictment for non-repair.^ The authorities establish these propositions: — I. An infant under the age of seven years is presumed to be incapable of committing any crime, and evidence to the contrary shall not be admitted. II. An infant of the age of seven years and under the age of fourteen years is presumed to be incapable of committing any crime, until the contrary is proved. III. A person of the age of fourteen years or upwards is presumed to have capacity to commit a crime, until the con- trary is proved.* There are cases in which her coverture protects a married woman from criminal prosecution ; and that absolutely, so that she cannot even be indicted jointly with her husband. For a feme covert is not liable to be prosecuted at all for some felonies committed by her in the presence of her hus- band, — the law supposing her to act in such cases under his coercion. But the exemption extends not to treason, mur- der, or manslaughter ; nor to any crime whatever committed by her in the absence of her husband,^ or even in his pres- ence, if the evidence shows that she was acting voluntarily, and was the principal instrument. And where she is liable as a criminal, she may be indicted as such (in general), with- ^ Kex V. Owen, 4 C. & P. 236, are collected in the notes to York's Littledale, J. Case, 1 Lead. Crim. Cas. 74 et 2 Commonwealth v. Mead, 10 seq., 2d ed. See 4 Stephen Comm. Allen, 398. 23 et seq., 7th ed.; Archb. Crim. 8 Rex D.Sutton, 3 Ad. & El. 597; PI. 16, 17, 18th ed.; 1 Bishop 5 Nev. & Man. 353. In Russell on Crim. Law, § 367 et seq. ; 3 Greenl. Crimes, vol. i. p. 387, 4th ed., it is Ev. § 4. said, " Women are punishable as ^ Rex v. Morris, Russell & Ryan rioters; but infants under the age of C. C. 270. As to the case of her ob- discretion are not," citing 2 Hawk, taining money under the fraudulent P. C. ch. 65, § 14, 7th ed. pretence of being a feme sole, see "* The liability of infants for Liverpool Adelphi Loan Associa- crimes is discussed and the cases tion v. Fairhurst, 9 Exch. 422. 18 CRIMINAL LAW. out making her husband a joint defendant, — contrary to the general rule which obtains in a civil action.^ If a wife commit a felony other than treason or homicide,^ or, perhaps, highway robbery,^ in company with her husband, the law presumes that she acted under his coercion, and, con- sequently, without any guilty intent, unless the fact of non- coercion be distinctly proved. This presumption appears, on some occasions, to have been considered conclusive, and is still 'practically regarded in no very difPerent light, especially when the crime is of a flagrant character ; but the better opinion seems to be, that in every case the presumption may now be rebutted by positive proof that the woman acted as a free agent ; * and in one case that was much discussed, the Irish judges appear to have considered that siich positive proof was not required, but that the question was always one to be determined by the jury, on the evidence submitted to them.^ It seems that a married woman cannot be convicted under any circumstances as a receiver of stolen goods, when the property has been taken by her husband, and given to her by him ; ^ neither can she be convicted of stealing her hus- band's goods, though she may have committed adultery and have absconded with her paramour, taking the goods with her ; but this rule, of course, does not depend on the doctrine 1 2 Stephen Comm. 272; 4 Id. the coercion of the husband, and 32, 33, 7th ed. See St. 1871, ch. that she did not personally inflict 312; McCarty r. De Best, 120 Mass. any violence on the prosecutor. On 89; Austin i). Cox, 118 Mass. 58. this finding the wife was held 2 1 Taylor Ev. § 152, 6th ed. ; entitled to an acquittal. § 190, 7th ed. « * 1 Taylor Ev. § 152, 6th ed. 8 In Regina J). Torpey, 12 Cox C. Handy u. Foley, 121 Mass. 261. C. 45, 48, the late Recorder of Lon- Regina v. Pollard, 8 C. & P. 553, don held that the doctrine applied per Tindal, C. J., and Vaugban, to robbery. In Rex v. Stapleton, J., in a case of arson, where the Jebb C. C. 93, the majority of the husband was bedridden. 2 Moody judges appeared to think that this C. C. 57, 58. Commonwealth v. presumption did not apply to cases Feeney, 13 Allen, 560, where the of highway robbery. In Regina v. husband was in prison. Smith, Dearsly & Bell C. C. 553, ^ Rgx v. Stapleton, Jebb C. C. husband and wife were jointly 93. charged with felonious wounding, "^ Regina u. Brooks, Dearsly C. C. ■with intent to disfigure, and to do 184. Rex v. Archer, 1 Moody C. C. grievous bodily harm. The jury 143. See Regina v. Wardroper, found that the wife acted under Bell C. C. 249; 8 Cox C. C. 284. MARRIED WOMEN. — COERCION BY HUSBAND. 19 under discussion, but simply rests on the principle that a man and his wife are one in the eye of the law.^ Whether the doctrine of coercion extends to any misde- meanors may admit of some doubt ; ^ but the better opinion seems to be, that, provided the misdemeanor be of a serious nature, as, for instance, the uttering of base coin,^ the wife will be protected in like manner as in cases of felony ; although it has been distinctly held that the protection does not extend to assaults and batteries,* nor to the offence of keeping a brothel.^ Indeed, it is probable that in all inferior misdemeanors this presumption — if admitted at all — would be held liable to be defeated by far less stringent evidence of the wife's active co-operation than would suffice in cases of felony.^ A wife who takes an independent part in the commission of a crime, when her husband is not present, is not protected by her coverture.^ If the wife, in the absence of the hus- band, commit a crime, even in obedience to his order, her coverture will be no defence.* In order to make out the de- fence that she was acting under the control of her husband, it must appear that he was present at'the time ; his presence the law construes a coercion.^ But, in order to establish the fact of his presence, it is not necessary to show that the act was committed literally in his sight. If the husband were near enough for the wife to be under his immediate influence ^ Eegina v. Kenny, L. R. 2 Q. Crim. Cas. 81. Commonwealth v. B. D. 307 ; 18 Cox C. C. 397. 1 Eagan, 103 Mass. 71. Taylor Ev. § 190, 7th ed: ^ Eegina v. Williams, 10 Mod. 2 In Eegina v. Torpey, 12 Cox 68 ; 1 Salk. 384. Commonwealth v. C. C. 45, it was held to extend to Lewis, 1 Met. 151. misdemeanors; and, if admitted at ^ 1 Taylor Ev. § 152, 6th ed. ; all on any just principle, it ought to § 191, 7th ed. Eegina v. Cruse, 8 extend to misdemeanors as well as C. & P. 541; 2 Moody C. C. 58. to felonies. ^ Eegina v. John, 18 Cox C. C. 3 Eex V. Conolly, 2 Lewiu C. C. 100, Brett, J. 229, per Bailey, J. Eex v. Price, ^ Commonwealth t>. Murphy, 2 8 C. & P. 19. Anon., Irish Circ. Gray, 510. Commonwealth!;. Fee- Eep. 374. ney, 13 Allen, 560. Commonwealth * Eegina !). Cruse, 8 C. &P. 541; v. Gannon, 97 Mass. 547. 2 Moody C. C. 53. Eegina v. Ing- ^ Commonwealth v. Butler, 1 ram, 1 Salk. 384. Commonwealth Allen, 4. V. Neal, 10 Mass. 152; S. C. 1 Lead. 20 CRIMINAL LAW. and control, though not in the same room, it is sufficient.^ If he were on the premises, and near at hand, a momentary absence from the room, or a momentary turning of his back, might still leave her under his influence.^ The coercion of the husband will be presumed, although he is not actually present and in sight of the wife, if he is so near that she is under his immediate influence and control.^ A husband and wife may be jointly indicted for misde- meanors. Whether she can be convicted separately or jointly with him is a question to be determined by direct evidence, or by legal presumptions concerning the freedom of her action or the coercion of her husband.* They may be jointly convicted of the crime of larceny ;^ for keeping a bawdy-house ;^ or a common gaming-house ;'' or a liquor nuisance.^ At common law, and under the Gen. Sts. ch. 87, § 1, a married woman may be indicted, and, upon appropriate evi- dence, convicted, either separately or jointly with her husband, of keeping a house of ill-fame, even if he resides with her in the house.^ And, on the other hand, he has the power to prevent his wife from using his house for an illegal business or purpose. If he permits her to use it for keeping a house of ill-fame, or for the illegal business of keeping intoxicating liquors for the purpose of sale, he becomes a participator in the misdemeanor, and is separately liable to a complaint or an indictment for it. The recent legislation in this Common- wealth relating to married women have reference to legiti- mate business, and not to the keeping of brothels, or the unlawfully keeping of intoxicating liquors for sale.i" 1 Commonwealth v. Burk, 11 ' Rex e. Dixon, 10 Mod. 335. Gray, 437. s Commonwealth v. Tryon, 99 2 Commonwealth v. Welch, 97 Mass. 442. Mass. 598. 9 4 Stephen Comm. 33. Com- 8 Commonwealth v. Munsey, 112 monwealth v. Lewis, 1 Met. 151. Mass. 287. Commonwealth v. , Cheney, 114 * Commonwealth v. Murphy, 2 Mass. 281. Gray, 512. Commonwealth v. i" Commonwealth v. Wood, 97 Tryon, 99 Mass. 442. Mass. 225. Commonwealth v. Gan- ' Regina v. Cohen, 11 Cox C. C. nou, 97 Mass. 547. Common- 99. wealth v. Coughlin, 14 Gray, 389. « Regina v. Williams, 1 Salk. Commonwealth ». Hurley, 14 Gray, 384; 10 Mod. 63. 411. Commonwealth v. Barry, 115 MARRIED WOMEN. COERCION BY HUSBAND. 21 Mr. Greaves, " the very learned editor of Russell on Crimes," ^ deduces the following positions from the cases upon this subject : ^ — I. There is no objection, on demurrer, to an indictment which charges husband and wife jointly with the commis- sion of an offence ; for the indictment is joint and sev- eral, and both may be convicted, if it appear the wife was not acting under the coercion of the husband, or either of them. II. There is no objection, either in arrest of judgment or on error, to the joint conviction of husband and wife of the same offence ; for she may have been the instigator, and both guilty. III. Upon the trial of husband and wife, the primS. facie presumption is, that she acted under his coercion, provided he were actually present at the time the felony was commit- ted. If, therefore, nothing appear but that the felony was committed while they were both together, the jury ought to be directed to acquit the wife. IV. This presumption is primS, facie only, and may be rebutted, either by showing that the wife was the instigator or more active party, or that the husband, though present, was incapable of coercing ; as that he was a cripple, and bed- ridden, or that the wife was the stronger of the two. As matters now stand, says a very recent writer on the Criminal Law, and have stood for a great length of time, married women ought, as regards the commission of crimes, to be on exactly the same footing as other people. It seems monstrous to say that if a husband and wife of mature age, and their daughter of, say eighteen, commit a larceny to- gether, the wife should be presumed to act under the hus- band's coercion, and should be excused by it, whereas direct proof that the daughter acted under the most stringent coer- Mass. 146. Commonwealth v. Ken- ^ 1 Russell on Crimes, 41 note, nedy, 119 Mass. 211. Common- 4th ed.; 147, 5th ed. The cases are wealth V. Carroll, 124 Mass. 30. collected and the principles stated 1 Per Whiteside, C. J., in Re- in the notes to Commonwealth v. gina V. Fox, 10 Cox C. C. 505. Neal, 1 Lead. Crim. Cas. 81. 22 CRIMINAL LAW. cion from her parents is no excuse at all. The present law never works any thing but injustice, and not much even of that. It ought to be repealed simply. An additional reason for doing away with it is, that it is very uncertain, upon the cases and authorities, how far the rule extends.^ 1 Stephen Dig. Grim. Law, p. xsx; Art. 30, p. 17; Note II. p. 332. THE COMPLAINT. 23 CHAPTER II. THE COMPLAINT. The form of the complaint requires particular consid- eration. It must describe the party charged and to be apprehended, and the offence of which he is accused, with sufficient technical accuracy. By the provision of Magna Charta, no person can be taken or imprisoned but by the lawful judgment of his peers, or the law of the land.^ The twelfth article of the Declaration of Rights in the Consti- tution of Massachusetts is founded upon this provision of the great English Charter. It contains a more intelligi- ble and particular recognition of the rights of the citizen than is specified in the part of Magna Ciiarta above re- cited. It . is in these words : " No subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him."^ All persons arrested by virtue of a warrant from a magis- trate, upon complaints for breaches of the laws, are " held to answer for" them, within the meaning of this provision. It follows, therefore, that the crime or offence for which they are held to answer ought to be fully and plainly, substantially and formally, described. A complaint setting forth, in general terms only, the crime complained of, if within the jurisdiction of the magistrate, is not sufficient in those governments where there is similar constitutional pro- visions. 1 These words are understood to courts of justice. 2 Kent Comm. mean due process of law. The *13, 12th ed. definition of " due process of law " ^ " In this article, the makers is, that it means law in its regular very accurately describe a good course of administration, through indictment." Shaw, C. J., in Jones V. Robbins, 8 Gray, 342. 24 CRIMINAL LAW. The preceding remarks are applicable, strictly speaking, to those complaints only which relate to offences within the jurisdiction of the magistrate. Although, in all other cases, this accuracy ought to be adhered to, yet the magistrate has no right to quash the complaint for informalities, and dis- charge the party for that cause ; ^ his duty in all cases be- yond his jurisdiction being nothing more than to examine into the grounds of the complaint, for the purpose of decid- ing whether the party accused shall be bailed, committed, or discharged. The Constitutions of our country have not changed the common law upon this subject, and there is no necessity nor even apology for a careless or incorrect manner of con- ducting any judicial process j^ especially one which controls the personal liberty of the citizen, and requires him to de- fend himself against a criminal accusation. When, there- fore, a magistrate institutes such a process, it is his duty to make it conformable to the requirements of technical precision. It may here be observed that no erasures, interlineations, or abbreviations should be used, in any criminal proceedings. Although these imperfections may not be fatal, still they are objectionable, and to be avoided.^ No part of a complaint or indictment should be in figures ; and, therefore, numbers, dates, &c., must be stated in words at length. A contrary practice is unclerical, uncertain, and liable to alteration ; and the courts which have sustained such practice have uniformly cautioned against it. The only exception to this rule is where 1 Commonwealth v. Flyna, 3 * Commonwealth v. Fagan, 15 Cush. 525, 529. Commonwealth v. Gray, 194. Commonwealth v. Des- Phillips, 16 Pick. 211. Common- marteau, 16 Gray, 1, 16. Kex v. wealth V. Keith, 8 Met. 531. Com- Davis, 7 C. & P. 319. Remon v. monwealth v. Dean, 21 Pick. 334. Hayward, 2 A. & E. 666. Com- Commonwealth v. Messenger, 4 monwealth v. Davis, 11 Gray, 4, 9. Mass. 462. Commonwealth u. Davis, Commonwealth v. Riggs, 14 Gray, 11 Pick. 432. 376. The word " and " may be 2 " Looseness and carelessness in (but should not be) expressed by instituting criminal proceedings are the sign "&." Commonwealth v. not to be encouraged." Shaw, Clark, 4 Cush. 596. C. J., in Commonwealth v. Bar- hight, 9 Gray, 114. THE COMPLAINT. 25 a fac-simile of a written instrument is to be set out ; in which case it must be set out in words and figures, as in the original itself. 1 " It is a clear principle that the language of all pleadings," said Mr. Justice Erie, "must be construed by the rules of pleading, and not by the common interpretation piit on ordi- nary language ; for nothing, indeed, differs more widely in construction than the same matter when viewed by the rules of pleading, and when construed by the language of or- dinary life."^ On the contrary. Lord Ellenborough observed that, " except in particular cases, where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are in ordinary use, or that in indictments or other pleadings a different sense is to be put upon them than what they bear in ordinary accepta- tion." 2 " Common sense," said Chief Justice Parker, " is not to be deemed a stranger to legal process, but as very influen- tial in ascertaining the force' and effect of words and sen- tences which, although technical, are to receive a sensible construction."* And Mr. Justice Coleridge observed, "It has been held of late here that the courts have more common sense than some of the old decisions give them credit for. We have considered that such expressions as ' Frozen Snake ' ^ and 'Man Friday'^ may be understood by us as a person out of court understands them." ^ The term " complaint " is a technical one, descriptive of 1 1 Deacon Crira. Law, 645. Rex were used in other instruments, V. Mason, 1 East, 180 note. with the exception of those cases ^ Kegina v. Thompson, 16 Q. B. where the law requires technical 846. An indictment may have a cer- terms to be used." Lord Tenter- tainty in common parlance, and yet den, C. J., in Rex v. Somerton, 7 want legal certainty. Patteson, J., B. & C. 466. in Regina v. Rowed, 2 Gale & Dav. * Commonwealth v. Runnels, 10 522. Mass. 520. 2 Rex V. Stevens, 5 East, 259. ^ Hoare v. Silverlock, 12 Q. B. State V. Pratt, 14 -N. H. 456. 624. " We must read and understand ^ Forbes v. King, 1 Dowl. 672. the language used in indictments ' Regina v. Rowlands, 17 Q. B. as the rest of mankind would un- 634. derstand the same language if it 26 CRIMINAL LAW. proceedings before magistrates.^ The word " indictment," in a statute giving jurisdiction over offences committed within one hundred yards of the dividing line of two coun- ties, to thie courts of either county, includes proceedings by " complaint." ^ The essential part of a complaint will be considered under the following heads : — 1. The Venue. 2. The Commencement. 3. Averments, how made. 4. The Name and Addition of the Defendant. 5. The Name and Addition of the Person against whom the Offence was committed, and the Name of every Person necessarily mentioned in the Indictment. 6. Time and Place. 7. Certainty as to the Facts and Circumstances constituting the Offence. 8. Inducement. 9. Argumentativeness. 10. Disjunctively. 11. Duplicity. 12. Repugnancy. 13. Surplusage. 14. Videlicet. 15. Presumptions of Law. 16. Conclusions of Law. 17. Facts within the Knowledge of the Defendant. 18. Allegation of Intent. 19. Averment of Knowledge. 20. Complaints and Indictments on Statutes. 21. The Pleading of Exceptions and Provisos in Statutes. 22. Written Instruments. 23. Words- Spoken. 24. Personal Property. 25. Technical Terms. 26. Unnecessary Averments. 1 Commonwealth v. Davis, 11 ^ Commonwealth v. Gillon, 2 Pick. 436, per Shaw, C. J. Allen, 502. THE COMPLAINT. 2T 27. Joinder of Defendants. 28. Joinder of Counts. 29. Conclusion of Complaint. 30. Motion in Arrest of Judgment. — Aider by Verdict. 1. The Venue. The venue in the margin is the only part of the commence- ment of a complaint or indictment that requires attention. The purpose of a venue, in the margin of an indictment, is to designate the county in which' the party accused is to be tried ; and that, by the common law, always was the county in which the offence was committed.^ Or, if the jurisdiction of the court extends only to part of the county, the venue in the margin should be coextensive with the jurisdiction of the court ; that is, it should be descriptive of the limit to which the jurisdiction of the court is confined, and the offence must have been committed within the limit so described.^ This is the general rule of the common law; but many exceptions have been made to it by statute. The venue is in this form : " Middlesex, to wit." 2. The Commencement. The commencement of a complaint is thus : " To A. B., Esquire, one of the Trial Justices within and for the County of M., C. D.3 of F. in the County of M.,* on behalf of the Commonwealth of Massachusetts, on oath complains, that," &c. 3. Averments, hovr made. With respect to the form in which averments are made, as the principal charge of the complaint is introduced at the commencement with the words, " A. B., of, &c., on his ^ Commonwealth !>. Quin, 5 Gray, be taken advantage' of in arrest of 480. . See Commonwealth v. Des- judgment. Commonwealth v. Ea- mond, 103 Mass. 445. gan, 103 Mass. 71. 2 Regina ». Stanbury, Leigh & * The place of residence of a Cave C. C. 128; 31 L. J. M. C. 88. complainant is sufficiently desig- ^ The omission of the complain- nated by setting forth the county ant's name, being for a cause exist- in which he lives. Commonwealth ing before verdict, and not affecting v. Intoxicating Liquors, 113 Mass. the jurisdiction of the court, cannot 13. 28 CRIMINAL LAW. oath complains, that," &c., so the usual way of making a subsequent averment is, " And the complainant aforesaid, on his oath aforesaid, further complains, that," &c. Or, if it be connected with what has immediately preceded it, it may be introduced simply thus : " And that," &c., then proceed- ing to state the matter of the averment.^ But when the matter of the averment is but a mere adjunct of some person or thing preceding, it does not require even this technical mode of introducing it. Thus, the word " being " is often taken as a direct allegation ; ^ "that A., being an officer," &c., is a sufficient averment that A. was an officer.^ So, ^'■dans plagam mortalem,"^ or " sciens that," &c., is a good aver- ment.5 " That A., knowing that B. was indicted for forgery, concealed a witness against him," is a sufficient averment that B. was indicted.^ So, where an indictment for perjury stated that, " at and upon the hearing of the said complaint," the defendant deposed, &c., this was holden to be a sufficient averment that the complaint was heard.''' The special mat- ter of the ability of a person to perform an act is sufficiently implied in and averred by an averment that he unlawfully " neglected " to do that act.^ 1 Per Le Blanc, J., in Rex v. Yelv. 28. Turns v. Commonwealth, Haynes, 4 M. & S. 227. 2 Gabbett 6 Met. 234. Gibson v. Common- Crim. Law, 240. Archb. Grim. PI. wealth, 2 Va. Gas. Ill, 120. 2 67, 68, 18th ed. Wms. Saund. 61 m, 6th ed. As to ^ Regina v. Pelham, 8 Q. B. 964, the ground on which Long's Gase, 5 per Patteson, J. 2 Hawk. P. G. Rep. 120, proceeded, see the note of ch. 25, §§ 61, 112. Rex v. Moor, the learned editors of the edition 2 Lev. 179. Rex v. Somerton, 7 B. 1826, vol. iii. p. 251. & C. 463; 6, D. & R. 524. United 5 jj,ex v. Lawley, 2 Strange, 904. States J). Fox, 1 Lowell, 199. "No Regina v. Page, 9 G. & P. 756. doubt, an averment by a participle "Then and there distilling" is a is as good as by a verb, if the -word sufficient affirmative allegation that be so intended as to show that an the defendant did distil. United allegation is meant." Regina v. States u; Fox, 1 Lowell, 199. Waverton, 17 Q. B. 595, per Lord ^ Rex v. Lawley, Fitzg. 122,, 263; Campbell, C. J. 2 Strange, 904. s Rex V. Johnson, 2 Roll. Rep. ' Rex v. Aylett, 1 T. R. 70. 226. Rex v. Boyall, 2 Burr. 832. 8 Regina v. Ryland, L, R. 1 C. Noden v. Johnson, 16 Q. B. 832, G. R. 99 ; 37 L. J. M. C. 10. This 834. Smith ». Adkins, 8 M. & W. was a decision of the majority of 362. the court. * March, pi. 127. Savage's Case, THE COMPLAINT. 29 The word " whilst " does not carry an averment with it. Where a count charged that the prisoner, intending to injure B. S., being a person of unsound intellect and incapable of taking care of himself, whilst B. S. was under the care, cus- tody, and control of the prisoner, maliciously and unlawfully kept, confined, and imprisoned B. S., &c., the Court of Queen's Bench arrested the judgment for want of a positive averment that B. S. was under the care and control of the prisoner at the time she committed the acts alleged in the indictment. " They were all said to have been done whilst the unfortunate lunatic was under her care and control ; but there was no averment that he ever was so." ^ 4. The Name and Addition of the Defendant. The christian name^ and surname of the party to be apprehended, if known, must be correctly stated in the com- plaint and warrant, and must not be left in blanks, to be filled up after they are delivered to the officer.^ If the pro- cess be defective in this particular, that is, if there be a mis- take in the name of the person on whom it is to be executed, it is fatal. It is not necessary to describe a party by what is in strictness his right name ; but it will 'be sufficient to state any name he has assumed,* or by which he is generally known.° It is no misnomer if the name be misspelt, pro- vided it be of the same sound as the real name ; ^ and if two 1 Regina v. Pelham, 8 Q. B. 959; » 1 Chit. Crim. Law, 38 a. Rex 15 L. J. M. C. 105; 2 Cox C. C. 17. «. Hood, 1 Moody C. C. 281. Hoye 2 A single vowel or a single con- u. Bush, 1 M. & G. 780, per Tin- sonant is a good christian name by dal, C. J. Howard v. Gossett, 10 itself. Tweedy v. Jarvis, 27 Conn. Q. B. 387 et seq., per Coleridge, J. 42. Regina v. Dale, 17 Q. B. 64. * Rex v. Norton, Russell & Lord Campbell, C. J.: "There is Ryan C. C. 510. 1 Taylor £v. no doubt that a vowel may be a § 235. good christian name; why not a ^ Commonwealth v. Desmarteau, consonant? I have been informed 16 Gray, 17. Regina v. Gregory, by a gentleman of the bar, sitting 8 Q. B. 508. Rex v. SuUs, 2 Leach here, on whose accuracy we can C. C. 861. 3 Russell on Crimes, rely, that he knows a lady who was 400, 5th ed. baptized by the name of ' D.' Why ^ jj^g^; v. Foster, Russell & Ryan may not a gentleman as well be bap- C. C. 412. tized by a consonant? " 80 CRIMINAL LAW. names are, in original derivation, the same, and are taken promiscuously in common use, though they differ in sound, the inserting of either will not be a variance.^ But what- ever mistake may be made in this respect, if the defendant appears and pleads not guilty, he cannot afterwards take advantage of the error.^ And, if he plead misnomer of his name, the prosecutor may reply, that the defendant is known as well by one name as the other ; though it is said to be the best and most usual practice to allow the plea, as the defend- ant must set forth his right name therein, and a new and more regular complaint may be immediately preferred against him, and he will be concluded by his own averment.^ A name which he has usually gone by and acknowledged is sufficient ; and, if there be a doubt which of two names is the right one, the second maybe added after an alias dictus, thus: " Richard Wilson, otherwise called Richard Layer." * If the name of the party to be arrested is unknown, a complaint against him as a person whose name is unknown to the com- plainant, without something to ascertain whom the complain- ant meant to designate, is insufficient. In such cases, the complaint may state, and the warrant be issued against him, by the best descriptisn the nature of the case will allow; as "the body of a man whose name is unknown, but whose person is well known, and who is employed as the driver of cattle, with a badge. No. 573." ^ Where the name of the prisoner was unknown, and he refused to disclose it, it was held that he might be indicted as a person whose name is to the jurors unknown, but who is personally brought before them by the keeper of the prison.^ The middle letter of a name forms part of the christian name, and must be correctly set forth. Thus, where T. H. P. was indicted by the name of T. P., junior, it was held a mis- 1 2 Gabbett Crim. Law, 214. » 1 Chit. Crirn. Law, 203. 2 Turns v. Commonwealth, 6 * Archb. Crim. PI. 39, 18th Met. 235. Commonwealth v. Dar- ed. cey, 12 Allen, 589. Commonwealth ^ i Qyt Crim. Law, 38 a. V. Dedham, 16 Mass. 141. Com- ^ Rex v. , Russell & Ryan monwealth v. Fredericks, 119 Mass. C. C. 489. 199. THE COMPLAINT. 31 nomer.^ Where the father and son have the same name, and are both indicted, some distinction, as " the elder," or " the younger," should be adopted ; but where the father alone is the defendant, the distinction is unnecessary.^ Where a woman was described in the indictment as A. B., " wife of C. D.," it was held that this allegation was a mere addition, and, if erroneous as such, the only remedy was by a plea in abatement, and that the plea of not guilty was a waiver of all objections of this nature, and put in issue only the material allegations necessary to constitute the offence charged in the indictment.^ The word "junior" is no part of the name. It is mere description of the person, and in- tended only to designate between different persons of the same name. It is a casual and temporary designation. It may exist one day and cease the next. The insertion of this word in an indictment is of no importance ; and this rule applies to the name of the defendant or of any third person mentioned in the body of the indictment.* It is the usual and better course to state the addition of the defendant as of the place where the offence was committed ; thus, "C. D. of B. in the county of S.," although his place of abode may be in another county; because he is considered as having been conversant in the county where the offence was committed.^ The Gen. Sts. ch. 172, § 19, enacts : " No indictment, and no complaint before a justice of the peace or police court, shall be quashed or deemed invalid, nor shall the judgment or proceedings thereon be arrested or affected, by reason of the omission or misstatement of the title, occu- pation, estate, or degree of the defendant, or of the name of ^ Commonwealth v. Perkins, 1 " People v. Collins, 7 Johns. 549. Pick. 388. Commonwealth v. Hall, People v. Cook, 14 Barb. 261, 299. 3 Pick. 263. Trull v. Howland, Kineaid v. Howe, 10 Mass. 203. 10 Cush. 113. Commonwealth v. Cobb v. Lucas, 15 Pick. 7. Com- Shearman, 11 Cush. 542. Common- mon wealth w. Parmenter, 101 Mass. wealth V. IMcAvoy, 16 Gray, 235. 211. Commonwealth v. Beckley, Eegina v. M'Anerney, Irish Circ. 3 Met. 330. Regina v. Withers, Kep. 270, Crampton, J. 4 Cox C. C. 17, Rolfe, B. ^ 2,Gabbett Crira. Law, 217. ^ 2 Gabbett Crim. Law, 217. ' Commonwealth v. Lewis, 1 Met. 151. 32 CRIMINAL LAW. the city, town, county, or place of his residence : ^ provided, that such omission or misstatement does not tend to the prejudice of the defendant." It has often been decided, that when the name of the defendant, or of any person necessarily mentioned in the indictment, has been once stated in full, he may be afterwards described in the same or subsequent counts by his christian name only ; as, ex gr., " the said A." 2 But the word "said" does not import into a second count, and there incorporate a previous description of a person.^ It is obviously necessary that the name of the defendant should be repeated to every distinct allegation ; yet it will suffice to mention it once, as the nominative case in one con- tinuing sentence.* 5. The Name and Addition of the Person against 'whom Offence ■was committed, and the Name of every Person necessarily men- tioned in the Complaint or Indictment. The christian name and surname of the person injured, if known", must be accurately stated. The christian name and surname of any person whose existence is essential to the charge must be accurately stated. He may be described by the name he has assumed, though it is not his right name.^ And a person is well described by the name by which he is generally known.® A variance or an omission in this particu- lar is much more serious than a mistake in the name of the defendant ; as the latter, as we have already seen, can only be 1 The omission of the name of 1 Denison C. C. 356 ; S. C. 2 Lead, the place of the defendant's resi- Crim. Cas. 152, 2d ed. Regina v. dence is immaterial, if the court has Martin, 9 C. & P. 215. Common- jurisdiction irrespective of the place -wealth v. Sullivan, 6 Gray, 478, of residence. Commonwealth v. 479. Taylor, 113 Mass. 1. ^2 Gabbett Crim. Law, 214. 2 Commonwealth u. Melling, 14 ^ Rgx v. Norton', Russell & Ryan Gray, 38S. Commonwealth v. Ha- C. C. 510. Commonwealth v. Des- garman, 10 Allen, 401. Or, "the marteau, 16 Gray, 1, 17. said A. B." Commonwealth v. ^ Attorney- General i>. Hawkes, Clapp, 16 Gray, 237. 1 Tyrw. 3. Rex v. Williams, 7 C. 8 Rex V. Cheeve, 4 B. & C. 902 ; & P. 298. . 7 D. & B. 461. Regina u. Waters, THE COMPLAINT. 33 taken advantage of by plea in abatement, while the former will be sufficient ground for ari'esting the judgment, when the error appears on the record, or for acquittal, when a variance arises on the trial.^ But if the name proved be idem sonans with that stated in the complaint or indictment, and different in spelling only, the variance will be immaterial. The true rule is, that if the names may be sounded alike, without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial.^ Thus, Segrave for Seagrave is no variance,^ nor is Benedetto for Beniditto,* nor is McNicole for McNicoU,® nor Augustina for Augus- tine, nor Chicopee for Chicifcopee.^ So, on an indictment for committing an offence on one John Whyneard, it ap- peared that his name was spelt Winyard, but it was pro- nounced Wirinyard ; the judges, on a case reserved, held that the prisoner had been rightly convicted.^ But an indict- ment charging the prisoner with having personated " Peter M'Cajin," is not supported by evidence that he personated "Peter M'Carn."^ So it has been decided that "Shake- speare " cannot be considered idem sonans with " S'hake- pear." ^ Whether two names sound alike is a question for the jury and not for the court.'*' 1 1 Chit. Crim. Law, 216. Com- C. C. 412. Commonwealth v. Gill, monwealth v. Wade, 17 Pick. 395. 14 Gray, 400. A transposition of the order in * Rex v. Tanuet, Kussell & Ryan which names are borne causes a C. C. 351. variance. Thus it is a variance to ' Rex v. Shakespeare, 10 East, 83. describe Henry Jules Steiner as ^^ Regina v. Davis, 2 Denison Jules Henry Steiner. Regina v. C. C. 231 ; 5 Cox C. C. 237. Com- James, 2 Cox C. C. 227, Pollock, monwealth v. Jennings, 121 Mass. C. B. 47. Commonwealth v. Mehan, 11 2 Wardu. State, 28 Alabama, 60. Gray, 322, 323. Commonwealth v. 8 Williams v. Ogle, 2 Strange, Donovan, 13 Allen, 571. To the 889. case of Commonwealth u. Stone, * Abitbol V. Beniditto, 2 Taunt. 103 Mass. 421, the language of the 401. Regina u. Withers, 4 Cox court in Commonwealth v. Mehan, C. C. 17. ubi supra, is applicable; viz., that 6 Regina v. Wilson, 1 Denison the question of idem sonans was left C. C. 284. to the jury, so as to lead them "to ^ Commonwealth v. Desmarteau, suppose that the difference between 16 Gray, 1, 15. the names was to be entirely dis- ' Rex ». Foster, Russell & Ryan regarded." 34 CRIMINAL L|iW. When the name of the person injured is unknown to the complainant, he may be so described in the complaint ; and no further description of that person is necessary. And when a person is described as "a certain person whose name is to the complainant aforesaid unknown," ^ the aver- ment is traversable, and is put in issue by the plea of not guilty ; and so strictly is the rule held, that if it is made to appear at the trial that the name of the person was, in fact, known to the complainant at the time when the com- plaint was made, the defendant will be entitled to an ac- quittal. The inquiry is, not what the complainant could or ought to have known, but what he did know. The offence must not only be proved as charged, but it must be charged as proved. 2 The misnomer of the complainant, or third person, will not be fatal, if the name inserted be immaterial, and may be rejected as surplusage.^ In no case is it necessary to state the addition of estate, degree, or mystery of such person.* The Gen. Sts. ch. 172, § 12, enact: "In the prosecu- tion of offences in relation to or affecting real or personal ^ A description of the person as 551. Commonwealth v. Manley, "a certain person -whose name is 12 Pick. 173. Commonwealth v. not known by the complainant," Intoxicating Liquors, 116 Mass. 21. has the same signification as the Commonwealths. Glover, 111 Mass. allegation that he is not known to 401. The decision in Common- him. Commonwealth v. Griffin, wealth v. Morse, 14 Mass. 218, 105 Mass. 175. seems to have been a departure 2 Commonwealth v. Blood, 4 from the rule at common law, and Gray, 33. Commonwealth «. Stod- has been corrected by statute. Eev. dard, 9 Allen, 280, 282. Common- Sts. ch. 133, § 11. Gen. Sts. ch. wealth V. Sherman, 13 Allen, 248. 172, § 12. Commonwealth v. Finn, Commonwealth v. Thornton, 14 108 Mass. 467. Gray, 41. Commonwealth v. Craw- * Rex v. Healey, 1 Moody C. C. ford, 9 Gray, 129. Commonwealth 1. Commonwealth v. Hunt, 4 Pick. V. Hendrie, 2 Gray, 504. Common- 252. Commonwealth v. Randall, 4 wealth V. Brown, 2 Gray, 358. Gray, 36.' Regina v. Crespin, 11 Commonwealth v. Pope, 12 Cush. Q. B. 913. 272. Commonwealth v. Hill, 11 * Commonwealth v. Varney, 10 Cush. 141. Commonwealth v. Cush. 402. Gen. Sts. ch. 172, Shearman, 11 Cush. 546. Com- § 19. monwealth v. Tompson, 2 Cush. THK COMPLAINT. 35 estate, it shall be sufficient, and shall not be a variance, if it is proved on the trial that, at the time when the offence was committed, either the actual or constructive possession, or the general or special property, in the whole or any part of such real or personal estate, was in the person or commu- nity alleged to be the owner thereof." Thus, where an in- dictment alleged the ownership of a building to be in one W., and the evidence was that W. was joint lessee with another person, it was held that the statute entirely obviated the objection of a variance.^ It may be observed that the pro- visions of the Gen. Sts. ch. 172, § 12, are broader than the corresponding provisions of the Revised Statutes above re- ferred to, extending the rule as to a variance to all offences in relation to or affecting personal estate.^ 6. Time and Place — "Then and There." The law requires such a specification of the time and place of every material fact constituting the offence, and for which a special venue (as it is technically termed) must be laid, that any uncertainty or incongruity in these respects will be fatal.^ No indictment, therefore, can be good without precisely show- ing a certain day and year, in which such facts as are issuable and triable happened ; and if the day of the month alone, without the year, be inserted, it will be bad, and cannot be supplied by intendment.* The time laid should be the day of the month and year, written out in words at length, thus : 1 Commonwealth v. Harney, 10 wealth v. Goldstein, 114 Mass. 272, Met. 422. Commonwealth w. Thomp- 277. Commonwealth v. McGorty, son, 9 Gray, 108. Commonwealth 114 Mass. 299. Commonwealth v. V. O'Hara, 10 Gray, 469. Common- Brigham, 123 Mass. 249. wealth v. Arrance, 5 Allen, 517. ^ Commonwealth v. McLaugh- Commonwealth v. Norton, 11 Al- lin, 103 Mass. 436. len, 110. Commonwealth v. Law- ^ 2 Hawk. P. C. ch. 25, §§ 77, 83. less, 103 Mass. 425. Common- Commonwealth v. Adams, 1 Gray, wealth V. Sullivan, 104 Mass. 552. 481. Commonwealth v. Moore, 11 Commonwealth v. Finn, 108 Mass. Cush. 600. Commonwealth u. Eeily, 466. Commonwealth v. Maguire, 9 Gray, 1. 108 Mass. 469. Commonwealth v. * 2 Gabbett Crim. Law, 221. Dailey, 110 Mass. 503. Common- Com. Dig. Indictment, G. 2. 36 CRIMINAL LAW. " On the first day of June^ in the year^ of our Lord ^ one thousand eight hundred and seventy-eight." Since the pass- ing of the statute which has defined " night-time " for all purposes of criminal prosecutions, it is sufficient to allege generally that any offence was committed in the night-time, without designating the particular hour of the night.* If the complaint lay the offence to have been done on a day certain, " and on divers other days and times," it will be repugnant and bad, where the offence is one entire individual act, as in the case of an assault ; ^ but a continuing offence may be alleged to have been on a certain day, and on divers days and times between that and another day specified ; ^ and the evi- dence must be confined to acts done within the time.'^ If the indictment lay the offence to have been committed on an im- possible day, as on the thirtieth day of February or thirty- first day of June, or on a future day,^ this will obviously be as 1 " On the third of June in- stant " is not a sufficient allegation. Commonwealth v. Hutton, 5 Gray, 89. The omission of the words " in the year," or the letters " a.d.," was held, in Commonwealth v. McLoon, 5 Gray, 91, to render the allegation of a single day defective ; and the same was held in Wells «. Commonwealth, 12 Gray, 326, as to the allegation of divers other days. ' ' The first day of June now past" is not sufficiently certain. Commonwealth v. Griffin, 3 Cush. 523. The words " within one month last past," in a warrant, sig- nify one month next before the making of the complaint. Com- monwealth V. Certain Intoxicating Liquors, 6 Allen, 599. ^ The year may be stated by means of the letters "a.d.," fol- lowed by words expressing the year. Commonwealth v. Clark, 4 Cush. 596. ^ The omission of the words " of our Lord" is not a fatal defect. Commonwealth v. Doran, 14 Gray, 37. Commonwealth v. Sullivan, 14 Gray, 97. Gen. Sts. ch. 3, § 7, cl. 11. < Gen. Sts. ch. 172, § 13. Com- monwealth V. Williams, ^2 Cush. 282. Commonwealth v. Lamb, 1 Gray, 493. 6 2 Gabbett Crim. Law, 222. ^ Wells V. Commonwealth, 12 Gray, 326. Commonwealth u. Tower, 8 Met. 527. United States v. Fox, 1 Lowell, 201. As to the sufficiency of the allegations, when the time is laid with a continuando, see Com- monwealth B. Hagarman, 10 Allen, 401; Commonwealth v. Walton, 11 Allen, 238; Commonwealth v. Mc- Ivor, 117 Mass. 118; Commonwealth B. Keyon, 1 Allen, 6; Common- wealth V. Sullivan, 5 Allen, 511; Commonwealth v. Foley, 99 Mass. 499; Commonwealth v. Galligan, 113 Mass. 203. ' Commonwealth u. Briggs, 11 Met. 574. Commonwealth v. Can- ada, 107 Mass. 405. ' Commonwealth v. Doyle, 110 Mass. 103. THE COMPLAINT. 37 objectionable as if no day at all bad been inserted.^ When a particular time is limited for the prosecution of an offence, though it must appear on the face of the proceedings that the prosecution was commenced within that period, yet no express averment to that effect is necessary.^ If no time be stated, where time is of the essence of the offence, or no place, where the court does not appear by the complaint to have jurisdiction over the offence, the defendant may demur, move in arrest of judgment, or bring a writ of error.^ A correct practice in averring place is, to charge the offence to have taken place at the town and in the county where it was committed.* In complaints and indictments for those offences which the law regards as bearing a local character, the description must be inserted in the body of the pleading, and the evidence must correspond with the allegation. The distinction between local and transitory offences is not very clearly drawn ; but in the former category may be safely included, among others, burglary ,3 but not highway robbery,^ house-breaking ; '' steal- ing in a dwelling-house ; * sacrilege ; ^ riotously demolishing churches, houses, machinery, &c. ; i" maliciously firing a dwelling-house, " perhaps an out-house, but not a stack ; ^^ forcible entry ;^^ nuisances to highways ;" malicious injuries to sea-banks, mill-dams, or other local property. '^ In most » 2 Gabbett Crim. Law, 223. ' Rex v. Bullock, 1 Moody C. C. 2 2 Gabbett Crim. Law, 226. 324 note. 8 Arohb. Crim. Pi. 50, 18th » Eex v. Napper, 1 Moody C. C. ed. Thayer v. Commonwealth, 12 44. Met. 9. 9 Arohb. Crim. Pi. 51, 421, 18th ' * Thayer v. Commonwealth, 12 ed. Met. 9. Commonwealth v. Cum- i" Rex v. Richards, 1 M. & Rob. mings, 6 Gray, 487. Common- 177. 1 Taylor Ev. § 227, 6th ed. wealth V. Barnard, 6 Gray, 488. " Commonwealth v. Lamb, 1 Commonwealth v. Springfield, 7 Gray, 493. Mass. 9. But see Green v. Com- 12 gg^ ^ Woodward, 1 Moody monwealth. 111 Mass. 417. C. C. 323. 5 2 Russell on Crimes, 47, 4th ed. " 2 Leon. 186. Regina v. St. John, 9 C. & P. 40. " Regina v. Steventon, 1 C. & « Rex V. Bowling, Ry. & M. 433, K. 55. Littledale, J. There is now no " 1 Taylor Ev. § 227, 6th ed. such offence known to the law as Archb. Crim. PI. 51, 18th ed. " highway " robbery. 38 CRIMINAL LAW. of these cases it is sufficient to allege and prove the town and county in which the offence was committed ; but in some a more accurate description is necessary. In a recent crown case reserved, it was decided that an indictment for being found by night, armed, with intent to break into a dwelling- house, &c., and to commit a felony therein, must specify the building intended to be broken into.i Although the allegations of a specific time and place for each material fact is thus important, it never is necessary (except in the cases hereinafter mentioned) that they should be laid according to the truth ; for if the time stated is proved to be previous to the finding of the indictment, and within the time limited for preferring it (where any time is limited), and the place stated (not being matter of local description) is also proved to be within the county, or other extent of the court's jurisdiction, a variance between the indictment and evidence as to the time when and the place where the of- fence was committed is not material ; '■^ and, for this reason, all the facts were and still may be stated to have occurred at the same time and place ; time and special venue being laid as to the first fact, and afterwards referred to by the words " then and there " as to the others.^ There are, however, some exceptions to this rule : 1. The dates of bills of exchange and other written instruments must be truly stated when necessarily set out. 2. Deeds must be pleaded either according to the date they bear, or to the day on which they were delivered. 3. If any time stated in the complaint is to be proved by matter of record, it must be truly stated. 4. If the statute upon which the complaint is founded give the penalty to the town in which the offence 1 Regina v. Jarrald, Leigh & county, except in matters of local Cave C. C. 301. See 2 Russell on description, will support the indict- Crimes, 70 note, 4th ed. ment. Rex v. Charnook, 12 Howell 2 The time and place laid in an State Trials, 1398, per Holt, C. J. indictment are form and circum- Commonwealth v. Campbell, 103 stance only, and not material in Mass. 439. Commonwealth v. God- point of proof; and evidence of the dard, 2 Allen, 150. Commonwealth offence charged on any other day v. Tolliver, 8 Gray, 386. Common- hefore the indictment was found, wealth v. Creed, 8 Gray, 387. or at any other place within the ' 2 Gabbett Crim. Law, 226. THE COMPLAINT. 39 was committed, the name of the town must be truly stated. 5. If the precise date of a fact be a necessary ingredient in the offence, it must be truly stated. 6. Where a place named is part of the description of a written instrument, or is to be proved by matter of record, it must be truly stated. 7. If the place where the fact occurred be a necessary ingre- dient in the offence, it must be truly stated. And the slight- est variance in these several respects, between the indictment and the evidence, will be fatal, and the defendant must be acquitted.^ It is settled law that, where a single fact is alleged, with time and place, the words " then and there," subsequently used as to the occurrence of another fact, refer to the same ■point of time, and necessarily import that the two were pre- cisely coexistent.^ In Edwards v. Commonwealth,^ the judg- ment was reversed on error, because, where the possession of ten or more counterfeit bills at the same time was of the essence of the offence, the indictment merely alleged posses- sion of ten bills on the same day, and not at the same time on that day.* The case of The King v. Bourne ^ well illus- trates the precision involved in this rule of pleading. An indictment for abduction stated in one count that the pris- oners, on a certain day and at a certain place, upon H. G., then and there being, did make an assault, and her, the said H. G., did carry away, without laying any venue to this aver- 1 Archb. Crim. PL 51, 52, 11th From the decisions in Massachu- ed. setts, it seems that, after time and ^ Commonwealth v. Butteriek, place have been first distinctly 100 Mass. 12. Commonwealth v. stated, the omission of the words Goldstein, 114 Mass. 272. " then and there " in the subse- ' 19 Pick. 124. Kex v. Williams, quent allegations is of no impor- 1 Leach C. C. 529. tance. Commonwealth v. Sullivan, * The word "instantly" is not 6 Gray, 477. Commonwealth h. equivalent to the word "then." Doherty, 10 Cush. 52. Common- Regina v. Brownlow, 3 P. & D. wealth v. Langley, 14 Gray, 21. 52 ; 11 A. & E. 119. " The word Commonwealth v. Kingman, 14 " immediately " is of too uncertain Gray, 85. Jeffries c Common- a signification to be used, when wealth, 12 Allen, 145, 152. Com- time constitutes part of the offence, monwealth v. Hooper, 104 Mass. Rex V. Francis, Cunningham, 275, 549. Commonwealth r. Price, 10 3d ed. ; 2 Strange, 1015; Cas. Temp. Gray, 472. Hardw. 114, 115; Comyns, 478. ^ jebb C. C. 21. 40 CRIMINAL LAW. ment of the abduction. Another count stated, in the same terms, an assault and abduction by persons unknown, and that the prisoners were then and there present, aiding and abetting. It was resolved, by eight of the judges, that the felony, being laid without a venue, is not to be intended to be committed at the time and place at which the assault was committed, but may have been committed at another time and place ; that " then and there," when prefixed to the averment of the felonious abduction, are words of reference to the time and place of the abduction, and not to the time and place of the assault ; and that it is not necessary that the time and place should be defined, in order to constitute them words of reference, but they may refer to an undefined time and place. The Gen. Sts. ch. 171, § 17, enact: "An offence com- mitted on the boundary of two counties, or within one hun- dred rods of the dividing line between them, may be alleged in the indictment^ to have been committed, and may be prosecuted and punished, in either county. An offence com- mitted upon the sea, within one league of the shore, may be prosecuted and punished in the adjacent county." On the trial of an indictment for robbery at the Kent assizes, the offence appeared to have been committed in Surrey, at a dis- tance of about three hundred and twenty yards from the boun- dary of Kent and Surrey, as measured by a direct line, but at considerably more than five hundred yards by the nearest road ; and Parke, B., held that the distance must be measured in the direct line, and therefore the prisoner was triable in Kent.^ And where a prosecution was carried on in the county of Wor- cester, and the allegation was that the defendant committed the offence at Milford in said county, but the evidence was that he committed it at HoUiston in the county of Middle- sex, within one hundred rods of the boundary line between the two counties, the prosecution was sustained.^ And, lastly, where the time is limited for making a com- 1 This statute is construed to ^ Regina v. Wood, 5 Jurist, 225. apply to complaints before magis- SeeMoufletw. Cole, 42L. J. Exch. 8. trates. Commonwealth v. Gillon, » Commonwealth v. Gillon, 2 2 Allen, 502. Allen, 502. THE COMPLAINT. 41 plaint or preferring an indictment, the time laid should be within the time so limited. When an exception takes the case out of the statute, the correct course, on principle, is to state the exact time when the offence was committed, and then aver the exception. It should appear on the face of the indictment that the defendant has been indicted within the time prescribed by the laws of the land. And the defendant, when an indictment is primd facie barred by the statute, is entitled to know the particular exception on which the pros- ecution seeks to avoid its operation. Where this view obtains, and the offence is on the face of the indictment barred, ad- vantage may' be taken of the defect by motion to quash, demurrer, motion in arrest of judgment, or writ of error.^ 7. Certainty as to the Facts and Circumstances constituting the Offence. The twelfth article of the Declaration of Rights declares that " No subject shall be held to answer for anj' crimes or offence, until the same is fully and plainly, substantially and formally, described to him." It will accordingly be found that in the forms of all the complaints contained in the Third Part of this volume, as much technical precision has been oberved as is required in an indictment. Whenever a man is arrested by virtue of a defective process, he may in some sort be said to be unlawfully restrained of his liberty. In addition to which, it may be suggested that the object of the arrest may be defeated, and the criminal's chance of escape increased, by this deficiericy. He is entitled to the full benefit of the constitutional provisions in his favor. To know the precise nature of the offence against which he is called upon to defend himself, is one of them.^ If it can be dispensed 1 State V. Robinson, 29 N. H. ' In the case of Commonwealth 274. People o. Miller, 12 Cal. 291. v. Hall, 15 Mass. 239, the indict- McLane v. State, 4 Ga. 335. State ment charged the defendant with V. Rust, 8 Blackf. 195, in error, erecting " a number of sheds and Hatwood 1'. State, 18 Ind. 492. buildings, one hundred feet in 1 Wharton Crim. Law, §§ 275, 446. length, and nineteen feet in Contra, United States v. Cook, 17 breadth," on a public highway. Wall. 168. See Rex v. Brown, M. Parker, C. J., in delivering the & M. 163, Littledale, J. opinion of the court upon a motion. 42 CRIMINAL LAW. with in part, it may be, for the same reasons, in whole ; and in this way the authority of the government may be perverted to the most vexatious and tyrannical purposes. The reason given by Lord Hale why the complaint and warrant should contain the cause of the arrest specially, appears to be unan- swerable, — namely, that, if they are generally to answer such matters as shall he objected against him, it cannot appear whether the cause be within the jurisdiction of the magis- trate ; neither can it appear whether the party be bailable or otherwise.^ In the statement of the ofPence all the facts and circum- stances necessary to constitute it must be specifically set forth ; and they must be stated with such certainty and precision that the defendant may be able to judge whether they amount to a violation of the law, in order that he may demur or plead to the complaint or indictment accordingly; that he may be enabled to determine the species of ofPence they constitute, in order that he may prepare his defence accordingly ; that he may be enabled to plead a conviction or acquittal upon this complaint or indictment, in bar of another prosecution for the same offence ; and that there may be no doubt as to the judg- ment which should be given, if the defendant be convicted.^ in arrest of judgment, said, "The 225. United States v. Cruikshank, indictment is too loose, in averring 92 U. S. 558. White v. The Queen, that a number of sheds, one hun- Irish Rep. 10 C. L. 523; 13 Cox dred feet in length, were erected, C. C. 318. Judgment of Brett, ■without stating what number. This J. A., in Regina v. Aspinall, L. R. may savor a little of nicety; but, 2 Q. B. D. 56, 57, "which was a unless known rules are observed, case carefully and laboriously con- there will soon be no certainty in sidered." Brett, L. J., in Regina indictments. The defendants ought v. Bradlaugh, 38 L. T. N. S. 128. to be able to know what they are called In this case, at p. 121, which was upon to defend." determined in the Court of Appeal, 1 2 Hale P. C. 111. 1 Chit. Crim. Bramwell, L. J., tersely observed: Law, 40, 2d ed. " The general rule on the subject ^ Rex V. Home, 2 Cowp. 282, is clear and beyond all doubt, and 283. Rex v. Perrott, 2 M.f& S. 386. by it the indictment must show on Regina v. Rowed, 3 Q. B. 180; 2 the face of it the particular offence G. & D. 518. Commonwealth v. committed, and how it was com- Pray, 13 Pick. 363. Commonwealth mitted. That is the general rule V. Slack, 19 Pick. 307. United at common law, and this case rests States V. Cook, 17 Wall. 174. wholly on common-law principles, United States v. Reese, 92 U. S. no statute being applicable to it. THE COMPLAINT. 43 Thus an indictment for perjury, at common law, must show in what court, or before whom, the oath was taken, wherein the perjury is assigned ; the authority of the court or magis- trate to administer the oath ; the materiality of the point on which the oath was given ; the falsity of it ; and the wilful and corrupt intention in giving the false testimony or taking the false oath.^ So an indictment for contemptuous or disre- spectful words to a magistrate, without showing that he was in the execution of his duty at the time, is bad.^ On this principle, also, an indictment for obtaining money by false pretences must not only show what the false pretences were, and to what circumstances the charge of falsehood was in- tended to apply, but to whom the money belonged.^ But For instance, in an indictment for murder, it is not enough to say a man is iildicted ' for that he com- mitted murder,' or ' for that he murdered A. B.' So, in the case of burglary, it will not do to allege merely that the man committed burglary, but you must set out that the prisoner did at such and such a time, on a certain day, ' break and enter the dwelling-house of A. B.,' &o. And there are three reasons given for this particularity, two of which are perhaps unimportant at this day, but the third of which is still a substantial reason. The first reason was that the defendant might know what precise charge he had to meet; the second, that, in the ab- sence of this particularity, it might become difficult afterwards to prove of what precise offence the defend- ant had been convicted or acquitted, as the case might be. At the pres- ent day, perhaps, these reasons have little weight, as it i-arely could hap- pen that there was any real doubt as to the offence the defendant was charged with. But the third rea- son is even now a substantial one. The third reason for requiring par- ticularity was in order that the defendant might have an opportu- nity of taking the opinion of a court, either on demurrer or in ar- rest of judgment, as to whether the offence he was charged with was an offence at all, or constituted any ground for an indictment. And it was, and is, reasonable that a de- fendant should have such an oppor- tunity of challenging the indict- ment ; and it is therefore reasonable to- require that the indictment shall set out the specific offence which is charged." 1 Eegina v. Overton, 4 Q. B. 90. Regina v. Hallett, 2 Denison C. C. 2-37. Regina v. Chapman, 1 Denison C. C. 432. Lavey v. The Queen, 2 Denison C. C. 504; 17 Q. B. 496. Regina v. Oxley, 3 C. & K. 317. Commonwealth v. Carel, 105 Mass. 582. 2 Gabbett Crim. Law, 227. 2 Rex V. Leafe, Andr. 226. " HoUoway v. The Queen, 17 Q. B. 329, and 2 Denison C. C. 296, per Lord Campbell, C. J. Commonwealth v. Strain, 10 Met. 521. Commonwealth v. Lannan, 1 Allen, 590. Rex v. Mason, 2 T. R. 581. The decision in this last case was disapproved of in Heymann V. The Queen, L. R. 8 Q. B. 102, 44 CRIMINAL LAW. uncertainty or ambiguity in stating matter which may be rejected as surplusage does not vitiate the indictment.^ The uncertainty of one count of an indictment cannot be aided by reference to the description of the offence in another count.2 But this general rule, useful and important as it may be, is not without its exceptions ; for there are classes of cases to which it does not appl3^ Wherever the crime consists of a series of acts, they need not be specially described ; for it is not each or all of the acts of themselves, but the practice or habit, which produces the principal evil and constitutes the crime.^ Thus, it is sufficient to charge a person with being " a common barrator," without setting forth the particular acts of barratry ; for it is the general practice and not the par- ticular acts which constitute the offence.* They go to make up the evidence of the crime, but are not the crime itself. And it is never necessary in pleadings, civil or criminal, to set forth the evidence ; for, if so, it would make the indictment as long as the evidence. So a woman may be indicted for being " a common scold," without detailing the particulars of her conduct.^ There is another class of cases, which, though not very similar to the preceding, come within the same exception. It is sufficient to charge a person generally with keeping a house of ill-fame, a disorderly house, or a common gaming- and in Kegina v. Goldsmith, L. R. Met. 217. Commonwealth v. Davis, 2 C. C. 74. The judgment of Lord 11 Pick. 432. In United States ». EUenhorough, C. J., in Rex v. Per- Fox, 1 Lowell, 199, 201, the law is rott, 2 M. & Sel. 379, 386, well ex- thus stated : " In general, when the plains this rule of pleading. See charge is that a certain trade has also the judgment of Whiteside, been carried on, or that the defend- C. J., in White v. The Queen, ant has sustained a particular char- Irish Rep. 10 C. L. 526; Regina v. acter, as that of a barrator, scold, Henshaw, Leigh & Cave C. C. 449. &c., it is not essential to set out the 1 Regina u. Parker, L. R. 1 C. C. particular acts which go to make 225. up the trading or course of life. It ^ Regina v. Waters, 1 Denison would be otherwise if each were a C. C. 356; S. C. 2 Lead. Grim, crime, or if, by the statute defini- Cas. 152. tion, a fixed number of separate ^Commonwealth ». Pray, 13 acts made up the crime." Pick. 362, per Morton, J. 6 Commonwealth ». Pray, 13 * Stratton «. Commonwealth, 10 Pick. 362, per Morton, J. THE COMPLAINT. 45 house. Although all the acts which make up these general offences are in themselves unlawful, it is not necessary to set them forth. The several acts may be indicted and punished separately ; but the keeping of the house is a distinct offence, and as such liable to punishment.^ So the offence of being " a common seller " of spirituous liquor without license, where the indictment charged the offence generally, was held, from the nature of the offence, well charged.^ In an indictment for soliciting or inciting to the commission of a crime, or for aiding and assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance.^ In other eases, every fact or circumstance which is a necessary ingradient in the offence must be accurately and clearly set forth. A defect in this respect is not cured by verdict ; and conse- quently the defendant may take of it by demurrer, motion in arrest of judgment, or writ of error. It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition ; but it must state the species, — it must descend to particulars.* Descriptive allegations in crim- inal pleading are required to be reasonably definite and cer- tain, as a necessary safeguard to the accused against surprise, misconception, and error in conducting his defence, and in order that the judgment in the case may be a bar to a second accusation for the same charge. Considerations of this kind 1 Commonwealth v. Pray, 13 ment for a conspiracy. Regina v. Pick. 362. Per Dewey, J., Strat- Aspinall, L. R. 2 Q. B. D. 60. ton V. Commonwealth, 10 Met. White ». The Queen, Irish Rep. 10 221. Rex V. Higginson, 2 Burr. C. L. 526 ; 13 Cox C. C. 318. 1232. ' Commonwealth v. McGovern, 2 Commonwealth v. Pray, 13 10 Allen, 193. Rex v. Fuller, 1 Pick. 362. Commonwealth o. Odlin, B. & P. 180 ; 2 Leach C. C. 790. 23 Pick. 275. These are not the 2 Gabbett Grim. Law, 231. only exceptions. There are other * United States v. Cruikshank, cases, where the charge is of such a 92 U. S. 558. Commonwealth v. general nature as not to be, nee- Chase, 124 Mass., not yet pub- essarily, pointed to any particular lished. Rex v. Chalkley, Russell & facts; as in the case of an indict- Ryan C. C. 258. 46 CRIMINAL LAW. are entitled to respect ; and it is obvious that if a contrary practice should obtain, that a complaint or an indictment, instead of being a security to persons who are accused, would be a delusion, a mockery, and a snare?- A complaint or an indictment is not vitiated by ungram- matical language or clerical errors, if the real meaning is sufficiently expressed.^ Words must be referred to that ante- cedent to which the tenor of the indictment and the princi- ples of law required it should refer, whether exactly according to the rules of syntax or not.^ " The court will not arrest the course of justice merely because pleaders are careless or unskilful in punctuation, or do not make such a collocation of words as renders their meaning perfectly perspicuous on the first reading."* 8. Inducement. By the term inducement is meant that part of a declaration or an indictment which contains a statement of the facts out of which the charge arises, or which are necessary or usual to make that charge intelligible.^ In short, it includes all the allegations which do not involve the special charge alleged against the defendant ;® and although it is usual with good pleaders to introduce these facts as a preliminary statement, since by so doing the whole charge is rendered more perspic- uous, yet the pleading is equally good in law, though the in- ducement is inserted at the very end of the declaration, or be interwoven, by way of parenthesis, with the charge itself; ^ for it will then, as Baron Parke has expressed it, "be simply 1 O'Connell ». The Queen, 11 wealth, 12 Allen, 152. Common- Clark & Fiimelly, 351, per Lord wealth v. Kelly, 123 Mass. 417. Denman. United States u. Cruik- * Commonwealth v. Price, 10 shank, 92 U. S. 569, per Clifford, J. Gray, 476. 2 Kegina v. Stokes, 1 Denison * Per Tindal, C. J.,in Tavemerw. C. C. 307 ; 2 C. & K. 536. Com- Little, 5 Bing. N. C. 685. Per Lord monwealth v. Butler, 1 Allen 4. Abinger in Wright v. Lainson, 2 Commonwealth v. Johns, 6 Gray, M. & W. 744. 274. Kex v. Richards, 1 M. & Rob. « Gould, PI. ch. 3, § 9. 177, and 178 note. ' Per Lord Abinger in Dun- 8 Commonwealth v. Call, 21 ford ». Trattles, 12 M. & W. 534. Pick. 515. Jeffries v. Common- Torrance v. Gibbins, 5 Q. B. 297. 1 Taylor Ev. § 276. THE COMPLAINT. 47 inducement put in in the wrong place." ^ And the same prin- ciple applies to an indictment. There is a distinction between the allegation of facts con- stituting the offence, and those which must be averred by way of inducement. In the former case, the circumstances must be set out with particularity ; in the latter, a more general allegation is allowed. An " inducement to an offence does not require so much certainty." ^ As in an indictment for escape " debito modo commissus " is enough, without show- ing by what authority, and even " commissus " is sufficient.^ So in an indictment for disobeying an order of justices to re- admit a member of a friendly society, under a statute by which it was enacted that if a member of a society established by the act should think himself aggrieved, two justices might determine the matter according to the rules of the society confirmed pursuant to the act, an averment that the society was established, and the rules duly confirmed according to the act, was held sufficient ; and Lord Tenterden observed, " that the matter objected to in the introductory part of the indict- ment was not, properly speaking, matter relating to the offence, but to the authority of the justices who made the order." * Unless, indeed, some general allegations were allowed, em- bracing both fact and law in such cases, it would tend greatly to the prolixity of indictments and pleadings.^ Thus, in an 1 Lewis V. Alcqck, 3 M. & W. the same act had been " duly es- 190. tablished, confiVmed, deposited and 2 Com. Dig. G. 5. Regina v. filed of record," without stating Wyatt, 2 Ld. Raym. 1191. Com- how, and no objection was taken; monwealth v. Reynolds, 14 Gray, and in Rex u. Sainsbury, 4 T. R. 90. Regina v. Westley, Bell C. C. 451, an averment that a meeting 193. The office of an inducement is of justices was '■'duly" held for explanatory, and does not, in gen- the purpose of licensing, seems to eral, require exact certainty. The have been thought sufficient by City !;. Lamson, 7 Wall. 482. Lord BuUer, J., and Ashhurst, J. V. Tyler, 14 Pick. 165. ^ An averment that an act is ' Rex u. Wright, 1 Vent. 170. "duly" done, is pleading a con- * Rex V. Wade, 1 B. & Adol. elusion of law rather than a fact. 861. In Rex v. Soper, 3 B. & C. Braun v. Sauerwein, 10 Wall. 219, 857, under a similar indictment, the 223. allegation was that the rules vmder 48 CRIMINAL LAW. indictment for disobedience to an order of justices for pay- ment of a church rate, made under 53 Geo. III. eh. 127, an averment, by way of inducement, that a rate was duly made as by law required, and afterwards duly allowed, and that the defendant was by it duly rated, was held sufficient, with- out setting out the facts which constituted the alleged due rating, «fec., although in the statement of the offence itself it would not have been sufl&cient.^ Parke, B. : " The offence for which the defendant is indicted is the disobedience of the order ; the introductory facts are alleged only to show that the justices had jurisdiction to make that order, and that the order was therefore obligatory, and they fall within the description of inducement." Stating a matter by way of argument or inference renders an indictment bad ; as, for instance, that by a certain inden- ture testatum existit, that J. S. demised, &c. ; and this, per- haps, even in mere matter of inducement j^ although in one case the contrary, certainly, has been decided,^ and, it seems, correctly. 9. Argumentativeness. " The matter of the indictment ought to be full, express, and certain, and shall not be maintained by argument or implication." * In a recent case. Chief Justice Bigelow said : " We cannot support a complaint or indictment by connecting together its difPerent parts, so as to eke out an essential allegation argumentatively and by inference." ^ And Mr. Justice Ashhurst, in delivering the opinion of the Twelve Judges : " The law in criminal cases requires the utmost precision, and will not permit a fact on which the life or liberty of a person depends to be made out merely by infer- ence."^ In Hawkins's Pleas of the Crown it is said: "It 1 Regina v. Bidwell, 1 Denison Commonwealth v. Shaw, 7 Met. 52, C. C. 222 ; 2 C. & K. 564. 56. Commonwealth v. Whitney, 2 Archb. Crim. PI. 67, 18th ed. 5 Gray, 85. ' Regina v. Goddard, 3 Salk. 171. ' Commonwealth v. O'Donnell, * Vaux's Case, 4 Rep. 446. Rex 1 Allen, 594. t'. Knight, 1 Salk. 375. Common- ^ Rex v. Williams, 1 Leach C. C. wealth V. Lannan, 1 Allen, 590. 534. / /"■ THE COMPLAINT. 49 being the strict rule of law to have the substance of the fact expi-essed with precise certainty, the judges will suffer no argumentative certainty whatsoever to induce them to dis- pense with it. For, if they should once be prevailed with to do it in one case, the like indulgence would be expected from them in others nearly resembling it, and then in others resembling those, and no one could say where this might end ; which could not but endanger the subverting of one of the most fundamental principles of the law, by giving room to judges, by arguments from what the jury have found, to convict a man of a fact which they have not found." ^ 10. Disjunctively. It may be deduced as a corollary from the rule which requires the charge to be direct and positive, that an indict- ment charging a party disjunctively is void ; for, where different offences are thus included in the charge, it does not appear, either directly or with certainty, of which of them the grand jury have accused the defendant. An indictment stating that the defendant " murdered or caused to be mur- dered " is a sufficient example ; these are distinct crimes, and an indictment is clearly bad, from the uncertainty whether the defendant was intended to be charged as a principal, or as an accessary before the fact.^ An indictment which alleges a sale of " spirituous or intoxicating liquor " is bad for uncertainty.^ An indictment which averred that S. made a forcible entry into two closes of meadow or pasture was held to be bad.* And the same rule applies if an indict- 1 2 Hawk. P. C. ch. 23, § 82. 370 ; 1 Sess. Cas. 307 ; forged or 2 2 Hawk. P. C. ch. 25, § 58. caused to be forged, Rex v. 2 Gabbett Crim. Law, 200, 237. Stooker, 5 Mod. 187, and 1 Salk. Rex ». Stocker, 5 Mod. 137. 342, 371. 8 Commonwealth v. Grey, 2 Gray, * Speart's Case, 2 Roll. Abr. 81. 501. Rex V. North, 6 Dowl. & See also Rex v. Sadler, 2 Chit. Rep. Ryl. 143. So, levavit vel. levari 519. Davy v. Baker, 4 Burr. 2471. eausavit, Rex v. Stoughton, 2 Rex v. Morley, 1 Y. & Jerv. 221. Strange, 900, and 2 Sess. Cas. 25; In this case the cases are collected conveyed or caused to be conveyed, and reviewed in the judgment which Rex V. Flint, Cas. Temp. Hardw. was delivered by Baron Garrow. 4 50 CRIMINAL LAW. ment charges the defendant in two different characters, in the disjunctive ; as, quod A., existens servus sive deputatus, took, &c.^ In Hale's Pleas of the Crown it is said that an indictment for robbery " in or near the highway " is good, because, " though the indictment ought to be certain, yet this is not the substance of the indictment, nor that which makes the crime." ^ The robbery is the same felony wherever com- mitted. The allegation, "in or near the highway," maybe rejected as surplusage.^ When the word " or " in a statute is used in the sense of " to wit," that is, in explanation of what precedes, and mak- ing it signify the same thing, a complaint or indictment which adopts the words of the statute is well framed.* Thus it was held that an indictment was sufficient which alleged that the defendant had in his custody and possession ten counterfeit bank-bills or promissory notes, payable to the bearer thereof, and purporting to be signed in behalf of the president and directors of the Union Bank, knowing them to be counterfeit, and with intent to utter and pass them, and thereby to injure and defraud the said president and direc- tors ; it being manifest from the statute on which the indict- ment was framed that " promissory note " was used merely as explanatory of bank-bills, and meant the same thing.* So an informaticrTi was held sufficient which alleged that the defendant feloniously stole, took and carried away a mare " of a bay or brown color ; " the court saying that the colors named in the information were the same.^ The statute 5 Eliz. ch. 4, enacts, " That it shall not be lawful to exercise a trade, except he shall be apprentice seven years, under the penalty of forty shillings per month ; " and a man was in- dicted on this statute, for that he did exercise artem sive mysterium, &c.; and this was held good, for the reason that 1 2 Roll. 263. 1 Stark. Grim. PI. * Commonwealth u. Grey, 2 Gray, 245. 202. 2 Vol. i. p. 535. Ex parte Pain, ^ Brown u. Commonwealth, 8 5 B. & C. 254. Mass. 59. s Rex V. AVardle, 2 East P. C. « State v. Gilbert, 13 Vt. 647. 785; Russell & Ryan C. C. 9. THE COMPLAINT. 51 " sive " is only an explanation of what precedes, and makes it signify the same thing.^ The form usually adopted, and which is well settled to be the correct form in drawing an indictment on a statute, is to charge the offence in the words of the statute, conjunctively. The rule was thus admirably stated by Mr. Justice Gaston : " If an offence be cumulative with respect to the acts done, although any one of the acts be sufficient to constitute the crime, the cumulative offence may be charged." ^ And then the rule applies, that it is sufficient to prove so much of the indictment as shows the defendant to have been guilty of a substantive crime therein stated, without proving the whole extent of the charge.^ Thus, an indictment alleging a sale of " spirituous or intoxicating liquor " is bad for uncer- tainty. If the words " spirituous " and " intoxicating " were synonymous, the indictment would have been rightly drawn. An indictment should charge the defendant either with sell- ing spirituous liquor, or with selling intoxicating liquor, or with selling spirituous and intoxicating liquor. The latter form is the correct one. And proof of the defendants hav- ing sold either spirituous liquor or intoxicating liquor, as well as proof of his having sold both, will support the indict- ment.'' But if the defendant is charged with being a common ^ Anon., cited in the argument in fully or maliciously breaking down Kex V. Stocker, 5 Mod. 137. or cutting dawn any sea-bank or 2 State V. Haney, 2 Dev. & sea-wall, the indictment may allege Bat. 403. Commonwealth v. Cur- a cutting and breaking down. And tis, 9 Allen, 269. Kegina v. Bowen, the indictment is not bad on the 1 Denison C. C. 22 ; 1 C. & K. ground of its charging several of- 501. There are numerous instances fences. Regina v. Patterson, 27 where, the statute being in the dis- U. C. Q. B. 145, 146, per Draper, junctive, a conjunctive statement is C. J. commonly used in an indictment. ^ This is a general rule which Thus, the St. 7 & 8 Geo. IV. ch. runs through the whole criminal law. 30, enacts, that if any person shall The cases are collected in Leading unlawfully and maliciously cut, Crim. Cases, vol. ii. p. 38, 2d ed. break or destroy any threshing- See also Commonwealth b. O'Brien, machine, he shall be guilty of felony. 107 Mass. 208; Regina i;. Bryans, The indictment may charge that 12 U. C. C. P. 167. the defendant did feloniously, un- * Commonwealth v. Grey, 2 lawfully and maliciously cut, break Gray, 502, 503. Commonwealth and destroy. So, where the offence o. Livermore, 4 Gray, 18. State v. created by statute is the unlaw- Price, 6 Halst. 203, 215. 52 CRIMINAL LAW. seller of " intoxicating liquors, and mixed liquors part of which is intoxicating," the sale of either constitutes the offence. Mr. Justice Thomas: "It is sometimes said the lines of distinction are nice. That may be true, but they must be drawn. As to matters seemingly most diverse there is a point where the line of demarcation becomes faint and shadowy. Night and day are diverse, and it is hard sometimes to say when night has passed the line and broken into day ; but most important rights may depend upon the fact." 1 11. Duplicity. The general rule is, that two or more crimes cannot be joined in the same count of an indictment. This rule is not only convenient in practice, but essential to the rights of the accused, and important to the due administration of the crimi- nal law.^ But there are various exceptions which are as well settled as the rule itself. Where two crimes are of the same nature, and necessarily so connected that they may, and when both are committed must, constitute but one legal offence, they should be included in one charge. Familiar examples of these are assault and battery, and burglary. An assault and battery is really but one crime. The latter includes the former. A person may be convicted of the former and acquit- ted of the latter, but not vice versS,. They therefore must be charged as one offence. So in burglary, where the indict- ment charges a breaking and entry with an intent to steal, and an actual stealing (which is the common form), the jury may acquit of the burglary and convict of the larceny, but cannot convict of the burglary and larceny as two distinct ^ Commonwealth v. Burns, 9 or in an action upon a bond at the Gray, 287. common law, with several breaches ^ Duplicity was not at common of condition assigned. The ob- law an objection to a count upon jeetion, that a count was double the ground of including several for containing several causes of ac- demands (witness the common tion, did not hold good. Shepherd counts), but only when the count v. Shepherd, 1 C. JB. 84Q. , Mulcahy claimed the same thing upon several v. The Queen, L. R. 3 H. L. 322, independent grounds, each suffi- per Willes, J., delivering the opinion cient; as in the case of quare impe- of the judges, dit setting up several presentations, THE COMPLAINT. 53 offences. The latter is merged in the former, and they con- stitute but one offence .^ So a count, alleging that the defend- ant broke and entered a shop with intent to commit larceny, and did there commit larceny, is not double.^ An indictment on the Rev. Sts. ch. 133, § 12, for an attempt to set fire to a building, is not bad for duplicity, although it sets forth a break- ing and entering of the building, as well as an attempt, in the building, after the breach and entry, to set fire to it.^ It is, however, the usual practice to allege offences cumula- tivety, both at common law and under the description con- tained in the statutes. The rule was thus stated by that able judge, Mr. Justice Gaston : " If an offence be cumula- tive with respect to the acts done, although any one of the acts be sufficient to constitute the crime, the cumulative offence may be charged." * An indictment which alleges that the defendant did " em- bezzle, steal, take and carry away " certain goods, is not bad for duplicity, as charging the two offences of embezzlement and larceny. The word " embezzle " may be rejected as sur- plusage, and the indictment be regarded as charging a larceny only.5 The statute prescribing the punishment of " every person who shall buy, receive or aid in the concealment of any stolen goods, knowing the same to have been stolen," describes only one offence, which may be committed either by buying, receiving or aiding in the concealment of such stolen goods. And an indictment which charges a defendant with receiving and aiding in the concealment of such goods charges only one offence.^ So an allegation that the defend- ant " did set up and promote " an exhibition does not make the indictment objectionable for duplicity.^ An indictment which alleged that the defendant " did unlawfully offer for 1 Regina v. Bowen, 1 Denison ^ Commonwealth v. Simpson, 9 C. C. 28, per Parke, B. Common- Met. 138. See Commonwealth v. wealth V. Hope, 21 Pick, 1. Stowell, 9 Met. 569. ^ Commonwealth v. Tuck, 20 ^ Stevens v. Commonwealth, 6 Pick. 356, 360. Met. 241. 8 Commonwealth o. Harney, 10 " Commonwealth «. Twitchell, 4 Met. 422. Cush. 74. Commonwealth v. Har- * State V. Haney, 2 Dev. & Bat. ris, 13 Allen, 534. 403. Commonwealth v. Brown, 14 Gray, 430. Ante, p. 51. 54 CRIMINAL LAW. sale, and did unlawfully sell," a lottery-ticket, was held good on demurrer.! So an indictment which avers that the defend- ant " did write and publish, and cause to be written and pub- lished," a malicious libel, is not bad for duplicity, for tliey are the same offence.^ So, if a person be charged with " destroy- ing, defacing and injuring " a register, it being all one act.^ It is now well settled that a man who assaults two persons at the same time may be charged in a single count with the assault upon both as one breach of the peace.* In civil actions, the only mode of objecting to pleadings for duplicity was by special demurrer, before special demur- rers were abolished ; it Avas cured by general demurrer, or by the defendant's pleading over. In criminal cases, the defend- ant may object to it by special demurrer ; perhaps, also, on general demurrer, or the court in general, upon application, will quash the indictment ; but it seems that duplicity cannot be made the subject of a motion in arrest of judgment, or of a writ of error ; ^ of course, it is cured by a verdict of guilty as to one of the offences, and not guilty as to the other. ^ Commonwealth v. Eaton, 15 101 Mass. 1, 23; Commonwealth Pick. 273. Commonwealth u. Mch- u. Lufkin, 7 Allen, 579; Common- ols, 10 Allen, 199. Commonwealth wealth v. Ballou, 124 Mass. 26; V. Curran, 119 Mass. 216. Commonwealth v. Hart, 10 Gray, 2 2 Gabbett Crim. Law, 234, cited 465; Commonwealth v. Ruraford in Commonwealth v. Twitchell, 4 Chemical Works, 16 Gray, 231. Cush. 74. * Commonwealth v. O'Brien, 107 3 Regina v. Bowen, 1 Denison Mass. 208. Commonwealth v. M'- C. C. 21; 1 C. & K. 501. "This Laughlin, 12 Cush. 208. Rex v. is one set of facts," said Tindal, Benfield, 2 Burr. 980, 983, 984. C. J.; "it is all one transaction; In felonies, also, the indictment the prisoner could not have been may charge the defendant, in the embarrassed." The case of Com- same count, with felonious acts with monwealth v. Curtis, 9 Allen, 266, respect to several persons; as, in is hardly distinguishable from this, robbery, with having assaulted A. For other cases illustrating this and B., and stolen from A. one rule of pleading, see Regina v. shilling, and from B. two shillings, Guthrie, L. E. 1 C. C. 241; Mul- if it was all one act and one entire cahy V. The Queen, L. R. 3 H. L. transaction ; and the counsel for 317 ; Commonwealth v. Hall, 4 the prosecution will not be put to Allen, 305 ; Commonwealth v. Kim- elect. Regina v. Giddins, C. & ball, 7 Gray, 328, 330; Common- Marsh. 634, Tindal, C.J. wealth !). Dunn, 111 Mass. 426; 6 jjash u. The Queen, 4 B. & S. Commonwealth v. Brown, 14 Gray, 935. 419; Commonwealth v. MacLoon, THE COMPLAINT. 55 When one count in an indictment charges two offences, distinct in kind, and requiring distinct punishments, the ob- jection of duplicity has been allowed in arrest of judgment.^ But when the two offences are precisely alike, the only reason against joining them in one count is, that it subjects the ac- cused to confusion and embarrassment in his defence. The objection is not open after a verdict of guilty of one offence only, but must be taken by motion to quash, or to. compel the prosecutor to confine himself to one of the charges ; and the fault is cured by his electing to proceed upon one charge only, and entering a nolle prosequi as to the others.^ 12. Repugnancy. When one material averment in an indictment is contradic- tory to another, the whole is void. If an indictment charge the defendant with having forged a certain writing, whereby one person was bound to another, the whole will be vicious ; for no one can be bound by a forgery.^ A. B., a bankrupt, was indicted for not discovering all his real estate, &c., be- fore the commission of bankruptcy. The charge in the indict- ment Was, that the said A. B. " surrendered himself, &c., and was then and there duly sworn, &c., and at the time of his said examination, to wit, on the day and year last aforesaid, he was possessed of a certain real estate, to wit, &c., and that at the time of his said examination, and being so sworn as aforesaid, he then and there feloniously did not discover when he disposed of, assigned and transferred the real estate," &c. It was held that the indictment was bad for repug- nancy, because it charged the prisoner with not discovering, at the time of his examination, when he disposed of an estate, 1 State V. Nelson, 8 N. H. 163. 2 Commonwealth v. Holmes, 119 State V. Fowler, 8 Foster, 184, 194. Mass. 195. Commonwealth v. People u. Wright, 9 Wend. 193. Tuck, 20 Pick. 356, 361, 362. State V. How, 1 Rich. 260. Com- Commonwealth e. Cain, 102 Mass. monwealth v. Holmes, 119 Mass. 487. State v. Merrill, 44 N. H. 198. Commonwealth v. Symonds, 624. The Queen v. O'Connell, 7 2 Mass. 163. It may well he doubted Irish Law Rep. 338. whether any offence was properly » 2 Hawk. P. C. ch. 25, § 62. charged in this case. See 9 Gray, Archb. Crim. PI. 67, 18th ed. 132 ; 20 Pick. 356. 56 CRIMINAL LAW. which was averred to be in his possession at the time of his examination.! The difference between a written instrument and the name given to it in an indictment constitutes a repugnance which is fatal to the indictment. Thus, an indictment under Gen. Sts. ch. 162, § 1, charging a forgery of an " accountable re- ceipt " of the tenor following : " Received of W. J. D., surgeon-general, my discharge and check for |100. G. P. G.," is repugnant. This is not an accountable receipt, for it does not acknowledge that any thing has been received which is to be accounted for.^ The general rule is, it is a fault if a pleading be inconsis- tent with itself, or repugnant. But there is this exception, that if the second allegation, which creates the repugnancy, is merely superfluous and redundant, so that it may be re- jected from the pleading, without materially altering the general sense and effect, it shall in that case be rejected as surplusage ; for the maxim is, utile per inutile non vitiatur.^ 13. Surplusage. In all cases where any fact or circumstance is stated in a complaint or in an indictment, which is not a necessary ingre- dient in the offence, it may be rejected as surplusage, and need not be proved ; * and, if there be any defect in the mode of stating such matter, it will not vitiate the complaint or indictment. Yet, if an averment be part of the description of the offence, or be embodied by reference in such descrip- tion, it cannot be rejected, and its introduction will be fatal.^ So any insensible, ungrammatical or useless words which 1 Regina v. Harris, 1 Denison perfect pleading is always danger- C. C. 461; Temple & Mew C. C. ous." Heath Maxims, 47, ed. 1771. 177. See Regina v. Craddook, 2 ^ " If a man robs his fellow-trav- Denison C. C. 31; Temple & Mew eller, and is indicted for so doing, C. C. 361. the allegation that he became the ^ Commonwealth v. Lawless, 101 companion of his victim, with a Mass. 32. preconceived design to rob him, 8 Stephen PL 335, 336, 7th ed. is wholly immaterial." Moxon Shepherd v. Shepherd, 1 C. B. 849. v. Payne, L. R. 8 Ch. 881, James, Commonwealth v. Pray, 13 Pick. L. J. 359. "Although surplusage doth 6 1 Deacon Crim. Law, 659. seldom hurt the pleading, yet im- Broom Maxims, 629, 5th ed. THE COMPLAINT. 57 obstruct the sense and are inconsistent with the previous matter, may also be rejected as surplusage.^ The rule of pleading respecting surplusage is, that if the matter alleged be wholly foreign and impertinent, so that no allegation whatever on the subject is necessary, it may be rejected as surplusage ; and the allegation which is material is not vitiated by that which is immaterial.^ This, it is true, is a loose, and, therefore, an unsatisfactory rule : it is diflicult, not to say impossible, to find one more distinct and practical. Each case must, in a great measure, depend on its own pecul- iar circumstances ; and the best means of ascertaining what will, or will not, amount to surplusage, is by examining the decisions on the subject. The rule which rejects surplusage applies equally in crim- inal and in civil proceedings. The principle is concisely stated in the following language of Mr. Justice Coleridge : " The distinction is between an averment the whole of which can be got rid of without injury to the plea, and an averment of circumstances essential to the defence, which are stated with needless particularity. In the latter case, the whole averment must be proved as pleaded. In the for- mer case, in civil or criminal pleadings, the whole may be considered as struck out, and therefore need not be proved." ^ And it is said by Mr. Justice Story that " no allegation, whether it be necessary or unnecessary, whether it be more or Jess particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage."* The authorities are 1 Eex V. Redman, 1 Leach C. C. 326. Commonwealth v. Whitman, 477. Commonwealth v. Penniman, US Mass. 458. 8 Met. 519. 3 Shearm v. Burnard, 10 A. & 2 Stevens v. Bigelow, 12 Mass. E. 593, 596; 2 P. & D. 565, 569. 438. Aldis v. Mason, 11 C. B. 139, Noden v. Johnson, 16 Q. B. 218, per Maule, J. Regina v. Parker, 226, 227, per Patteson, J. L. E. 1 C. C. 225; 39 L. J. M. C. < United States ». Howard, 3 60. Regina o. Huntley, Bell C. C. Sumner, 15. United States v. Foye, 238; 29 L. J. M. C. 70. Regina v. 1 Curtis C. C. 364, 368. Common- Turweston, 16 Q. B. 109. Regina wealth v. Wellington, 7 Allen, 299, V. Crespin, 11 Q. B. 913. Com- 302. Commonwealth v. Simpson, monwealth v. Randall, 4 Gray, 36. 9 Met. 138. Rex v. Jones, 2 B. & Wells V. Commonwealth, 12 'Gray, Adol. 611, Regina v. Otway, 1 Irish Law Rep. N. S. 69. 58 CRIMINAL LAW. numerous, and there are many instances of the application of the rule. Perhaps the most extreme case of the kind is that of Alkenbrack v. People,^ in which the charge was for stealing one white woollen flannel shirt ; and the evidence was that it was made partly of cotton and partly of wool. In State v. Moore," it was held that a charge of larceny of two barrels of turpen- tine required proof that the turpentine was in barrels. And in Commonwealth v. Gavin,^ it was decided that an indict- ment alleging the larceny of a number of bottles of whiskey and of brandy is not sustained by evidence that the defendant drew the liquor from casks into bottles which he took with him for the piirpose. The offence proved did not correspond with the offence charged. It was unnecessary to allege that the liquors were contained in bottles ; but, being so alleged, it rendered the averment a matter of description, requiring to be proved with exactness. A charge of stealing a defi- nite quantity of brandy and of whiskey would have been suiBcient. In Commonwealth v. Pray,* a very considerable portion of the whole allegation in the indictment was allowed to be rejected as surplusage, and a conviction was held good on the residue, it appearing, after such expurgation, that an offence was well charged. In Turns v. Commonwealth,® where the indictment alleged " that F., with, a stone, which he the said F., in his right hand then and there had and held, then and there did cast and throw," the word " witlj " was rejected as surplusage ; and the charge was then held to be, that " F. a stone, which he in his right hand then and there had and held, then and there did cast and throw," &c. So, in a case where the indictment charged an inn- holder with suffering " persons to play at cards and other unlawful games," the words " unlawful games " were re- jected as surplusage.^ Also, where the indictment charged the defendant with permitting persons to play "at the game of cards," the word " game " was rejected as surplus- 1 1 Denio, 80. 2 11 Ired. 70. ^ g Met. 225. 8 121 Mass. 54. e Commonwealth v. Bolkom, 3 « 13 Pick. 359. Pick. 281. THE COMPLAINT. 59 age.^ And the word "feloniously" — a word of techni- cal import, and essential in giving a character to a proper accusation of a felonious act — may yet be rejected as-surpliis- age, when insensibly and improperly introduced in con- nection with an allegation of certain acts done by the defendants, which manifestly do not amount to a felony.^ Where an indictment for bigamy described the second wife as a widow, when in fact she had never been married, the misdescription was held fatal, though it was unnecessary to have stated more than her name.^ And where a crime was alleged to have taken place at " A., in the county of B., within five hundred yards of the boundary of the county of D., to wit, at C.,in the county of D.," Mr. Justice Crampton held that the words, "at A., in the county of B., within five hundred yards of. the boundary of the county of D., " were surplusage, but that, having been stated, they became material to be proved. " If you choose to go out of your way to make a special averment," said that acute judge, " and to allege a particular place in the indictment, the question is whether you are bound to prove it. I think you are." ^ In these cases, the essential and non-essential parts of the allega- tion were so connected as to be incapable of separation, and therefore both were considered as alike material. Surplusage, it should be observed, is not a subject of demurrer.^ But allegations which are altogether superflu- ous and immaterial, and which are not descriptive of the identity of the offence charged, may be rejected as sur- plusage, either on trial, motion in arrest of judgment, or on error, if the indictment can be supported without those allegations.^ 1 Commonwealth v. Arnold, 4 ^ Stephen PI. 376, 7th ed. Pick. 251. ^ Commonwealth d. Keefe, 7 2 Commonwealth v. Squire, 1 Gray, 336. Commonwealth v. Jef- Met. 258. Commonwealth v. Pen- fries, 7 Allen, 572. Attorney-Gen- niman, 8 Met. 519, 521. eral «. Macpherson, L. R. 3 P. C. 3 Eex V. Deeley, 1 Jloody C. C. 268 ; 39 L. J. M. C. 59 ; 11 Cox C. 303. Note to Regina v. Lyon, Irish C. 604. Turns v. Commonwealth, Circ. Rep. 363, 364. 6 Met. 225. 3 Russell on Crimes, * Regina v. M'Kenna, Irish Circ. 305, 4th ed. ; 392, 5th ed. Rep. 416. 60 CRIMINAL LAW. 14. Videlicet. The precise and legal use of a videlicet in every species of pleading is to enable the pleader to isolate, to identify, to distinguish, and to fix with certainty, that which was before general, and which, without such explanation, might with equal propriety have been applied to different objects.^ In discussing the effect of the videlicet, Mr. Justice Patteson observed, that it could not make that immaterial which was in its nature material, though its omission might render that material which would not otherwise be so.^ With reference to the real utility of a videlicet before matters of description, it is said in Smith's Leading Cases ^ that it depends on the doctrine of the rejection of averments as surplusage. The learned author continues : " It is a pre- caution which is totally useless where the statement placed after the videlicet is material, but which, in other cases, pre- vents the danger of a variance by separating the description from the material averment, so that the former, if not proved, may be rejected without mutilating the sentence which con- tains the latter."* 15. Presumptions of Law. Presumptions of law need not be alleged.^ Besides points of law, there are also some facts of such a public or general nature that the courts, ex officio, take notice of them, and with respect to which it is consequently unnecessary to make allegation in pleading.^ 16. Conclusions of Law. Conclusions of law resulting from the facts of the case need not be stated ; it is sufficient to state the facts, and leave 1 Commonwealth v. Hart, 10 1st ed. Ryalls v. The Queen, 11 Gray, 468. This case is a fair Q. B. 781. specimen of how much carelessness ^ ygi. i. p. 592, 6th ed. can be passed over, and still the * 2 Wms. Notes to Saund. 687. indictment be sustained. 1 Stark. ^ Stephen PI. 399, •2d ed. Pur- Crim. PI. 251 et seq. cell Crim. PI. 46. 2 Cooper V. Blick, 2 Q. B. 915; 2 « Co. Litt. 303 b. 1 Taylor Ev. G. & D. 295. 1 Taylor Ev. § 600, ch. 2. Powell Ev. ch. 19. Stephen PI. 286, 7th ed. THE COMPLAINT. 61 the court to draw the inference. ^ Therefore, an indictment which alleges that the defendant kept and maintained a build- ing used as a house of ill-fame, to the common nuisance of all good citizens, &c., need not expressly allege that the de- fendant kept a commou nuisance.^ 17. Facts 'Within the Kno'wiedge of the Defendant. It is a rule of pleading that a party may allege generally what is more peculiarly within the knowledge of the other party .^ Thus, where a public officer is charged with a breach of duty in certain acts within the limits of his office, it is not necessary to state they were within his knowledge ; for this will be inferred from the nature of the trust reposed in him.* 18. Allegation of Intent. When by the common law, or by the provision of a statute, a particular intention is essential to an offence, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with dis- tinctness and precision, and to support the allegation by proof. On the other hand, if the offence does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention will be presumed, and need not be alleged nor proved. In such case, the intent is nothing more than the re- sult which the law draws from the act, and requires no proof beyond that which the act itself supplies.^ To illustrate the application of the rule, take the case of an indictment for an assault with an intent to commit a rape. The act not being consummated, the gist of the offence consists in the intent with which the assaidt was committed. It must, therefore, be distinctly alleged and proved. But in an indictment for 1 Wells V. Commonwealth, 12 ^ jjg^ v. Dixon, 3 M. & Sel. 11, Gray, 326. Brady v. The Queen, 14, per Bayley, J. Purcell Crim. 2 Jebb & Symes, G57 ; 8 Irish Law PI. 47. Rep. 21. M'Gee v. Barber, 14 * Rex v. Hollond, 3 T. R. 607. Pick. 212. 5 xhe distinction taken in the 2 Wells V. Commonwealth, 12 text runs through all the cases. Gray, 826. 62 CRIMINAL LAW. the Clime of rape no such averment is necessary. It is suffi- cient to allege the assault, and that the defendant had carnal knowledge of a woman by force and against her will. The averment of the act includes the intent, and proof of the commission of the offence draws with it the necessaiy infer- ence of the criminal intent. The same is true of indictments for assault with intent to kill and murder. In the former, the intent must be alleged and proved. In the latter, it is only necessary to allege and prove the act.^ This principle was applied to the case of an indictment for murder by poi- soning, in which it was held that it is not necessary to allege in the indictment that the poison was administered with an intent to kill. If a person administers to another that which he knows to be a deadly poison, and death ensues therefrom, the averment of these facts in technical form necessarily in- volves and includes the intent to take life.^ This rule of pleading may thus be stated : Where any gen- eral intent is essential to the offence, it may be alleged gener- ally, in the terms of the definition of the offence, that the act was wilfully, maliciously or unlawfully done or omitted, ac- cording to the description of the offence. Where some special intent in reference to defined facts is essential to an offence, the particulars to which the intent relates must be specified. The intent may be laid either in the introductory part of the indictment, or in the conclusion, or in both. In the lead- ing case of The King v. Philipps,^ the indictment began by charging that the defendant, intending to do great bodily harm to R. G. T., and to break the peace, &c., sent a letter to R. Gr. T., in which he was said to have behaved like a blackguard, with intent to incite R. G. T. to challenge the defendant ; and it was held that the intent was sufiiciently alleged in the prefatory averment, and that the indictment might be supported either by the intent there laid, or by the intent laid at the conclusion. And it is a familiar rule of criminal pleading, that wherever the intention 1 Judgment ill Commonwealth ». ^6 East, 464, 473, a.d. 1805. Hersey, 2 Allen, 180. Commonwealth u. Doherty, 10 Cush. ^ Commonwealth v. Hersey, 2 54. Commonwealth v. Haynes, 2 Allen, 173. Gray, 72. THE COMPLAINT. 63 of a party is necessary to constitute an offence, such in- tent must be alleged in every material part of the descrip- tion where it so constitutes it.^ Thus, where a forged order was presented and money obtained thereby, and the indict- ment alleged that the defendant, with intent to cheat, know- ingly pretended it to be genuine, but did not aver the obtaining money thereby to have been done knowingly, it was held bad.^ In some cases, the law has adopted certain technical expres- sions to indicate the intention with which an offence is com- mitted ; and in such cases the intention must be expressed by the technical word prescribed, and no other. Thus, trea- son must be laid to have been done " traitorously ; " all felo- nies, whether at common law or created by statute, to have been done " feloniously ; " ^ burglary is laid to have been done " feloniously and burglariouslj'," and with intent to commit a particular felony ,• murder, " feloniously and of his malice aforethought;" forgery, "feloniously," if made felony by statute, and "' with intent to defraud," &c.* In an indictment on the Gen. Sts. ch. 161, § 54, for obtaining goods by false pretences, the intent to defraud is an essential element of the crime intended to be charged, and must be distinctly averred by a proper affirmative allegation, asd not by way of inference or argument merely.^ An indictment for this offence is bad, if it contains no allegation of the intent to defraud, other than in the usual form in the concluding clause, " And so the jurors aforesaid, upon their oath afore- said, do say that," &c. The conclusion does not follow from the premises. The only allegation of an intent to defraud is made argumentatively, and as a legal inference from facts stated, and that inference is unsound.^ In complaints and indictments for malicious mischief, the 1 Commonwealth v. Boynton, 12 ^ Regina v. Gray, Leigh & Cave Cush. 500. Commonwealth v. C. C. 365; 33 L. J. M C. 78. Slack, 19 Pick. 307. Common- ^ Archb. Crim. PI. 61, 62. ISthed. wealth V. Bakeman, 105 Mass. 53. ^ Commonwealth i;. Lannau, 1 2 Rex V. Rushworth, 1 Stark. Allen, 590. Regina v. James, 12 Rep. 896; Russell & Ryan C. C. Cox C. C. 127, Lush, J. 317. Commonwealth v. Bean, 110 ^ Commonwealth i: Dean, 110 Mass. 6i. jMass. 64. Rex c. Rushworth, Rus- sell & Ryan C. C. 317. 64 CRIMINAL LAW. intention of the defendant is sufficiently alleged by charging in the words of the statute, that his acts were " wilfully and maliciously" done. The word " wilfully" means " intention- ally," and the word " maliciously " imports a criminal motive, intent or purpose.^ It is now sufficient to allege generally an intent to defraud, without alleging the intent to defraud any particular person.^ 19. Averment of KnoTwIedge. Where a particular knowledge on the part of the defend- ant renders his acts criminal, the fact of this must be expressly averred. And the averment of knowledge must extend to each part of the description of the 'offence in which it is an essential element. An indictment for selling unwholesome provisions, which alleges that the defendant did " knowingly " sell such provisions, " without making fully known to the vendee that the same were diseased," is insufficient, without an averment that the defendant knew at the time of the sale the corrupt and unwholesome condition of the articles sold.^ Whenever a statute makes a guilty knowledge part of the definition of an offence, the knowledge is a material fact which must be expressly averred. But where a statute pro- hibits generally, and is sUent as to intention, it is clear that the pleader need not aver knowledge.* When the terms "knowingly," or " the defendant well knowing," are intro- duced into an indictment, although alleged as an ingredient in the imputed crime, if introduced when the knowledge alleged is unnecessary to be shown in evidence in order to constitute the crime, these allegations may always be rejected as surplusage.^ No express form of words is essential to this averment. 1 Common-wealth v. Walden, 3 448. Commonwealth v. Butterick, Gush. 558. Commonwealth v. Wil- 100 Mass. 12. liams, 110 Mass. 401, 402. Com- 8 Commonwealth v. Boynton, 12 monwealth v. Brooks, 9 Gray, 299, Cush. 499. Commonwealth v. Mer- 303. Commonwealth v. Hicks, 7 riam, 7 Allen, 357. Allen, 573. Commonwealth v. ^ 1 Stark. Crim. PI. 164, 166, McLaughlin, 105 Mass. 460. 2d ed. 2 Gen. Sts. ch. 162, § 13. Com- « Commonwealth v. Squire, 1 monwealth v. Hulbert, 12 Met. 446, Met. 261, per Dewey, J. THE COMPLAINT. 65 An allegation that the defendant did " unlawful!}^, knowingly and designedly " hinder and oppose an officer while in the discharge of his office, is a sufficient allegation that the de- fendant knew that the person assaulted was an officer.^ 20. Complaints and Indictments on Statutes.^ The statute contains a definition of the offence ; and the offence consists of the commission or omission of certain acts, under certain circumstances, and in some cases with a partic- ular intent. A complaint or an indictment, therefore, for an offence against the statute, must, with certainty and precision, charge the defendant to have committed or omitted the acts, under the circumstances and with the intent mentioned in the statute ; and, if any one of these ingredients in the offence be omitted, the defendant may demur, move in arrest of judg- ment, or bring a writ of error.^ And it is not only necessary to state such facts and circumstances as will bring the case within the purview of the particular statute, but it is always prudent, if not necessary, to pursue the precise words of the statute, in the description of the offence.* From the canons of interpretation of the criminal law, it will appear, that, in 1 Commonwealth v. Kirby, 2 -without being recited. Gould PI. Cush. 577. ch. 3, § 16 note. ^ There is a material distinction, ' Archb. Crim. PI. 62, 18th ed. not always observed by writers on United States v. Reese, 92 U. S. Pleading, — and the non-observance 225. Martin v. The Qaeen, 3 N. of which has sometimes occasioned & P. 472; 8 A. & E. 481. Re- confusion, — • between pleading, gina v. Cooper, 1 Denison C. C. counting upon, and reciting a st&tate. 4.59; Temple & Mew C. C. 125. Pleading a statute is merely stating Commonwealth v. Brown, 15 Gray, the facts which bring a case within 189. Robinson v. Commonwealth, it, without making mention or tak- 101 Mass. 27. White v. The ing any notice of the statute itself. Queen, Irish Rep. 10 Com. Law, Counting upon a statute consists 521 ; 13 Cox C. C. 318, where in making express reference to it; many of the cases are collected and as, by the words " against the form reviewed. of the statute," or "by force of the *2 Gabbett Crim. Law, 238. statute in such case made and pro- Commonwealth v. Stahl, 7 Allen, Tided." Reciting a statute is quot- 304. Commonwealth v. Lambert, ing or stating its contents. A 12 Allen, 177. Commonwealth v. statute may, therefore, be pleaded Certain Intoxicating Liquors, 97 without either reciting or counting Mass. 332. Commonwealth v. Par- upon it; and may be counted upon ker, 117 Mass. 112. 66 CRIMINAL LAW. ancient and modern time^ the greatest exactness has been required in the correspondence of the words of the statute with those of the indictment. "The general rule that the words of a statute are to be followed is not absolutely and always true. On the one hand, it is often sufficient, when the statute expresses a simple and clear meaning in one way, that the indictment should give the same meaning clearly in another way. And, on the other hand, when the statute is itself elliptical, so that its meaning must be gathered from the context, or from other parts of the same or other statutes, the indictment, which has not the advantage of such aids in its interpretation, must of itself allege a crime, according to the true intent of the statute. Both these exceptions or ex- planations amount only to this, that the statutory crime must be laid with reasonable certainty, according to the true mean- ing of the statute." ^ Indictments for offences created and defined by statute must in all cases follow the words of the statute ; and, where there is no departure from that rule, the indictment is in gen- eral sufficient, except in cases where the statute is elliptical, or where, by necessary implication, other constituents are component parts of the offence; as where the words of the statute defining the offence have a compound signification, or are enlarged by what immediately precedes or follows the words describing the offence, and in the same connection.^ Cases of the kind arise, as where, in the dissenting opinion of Mr. Justice Clifford in United States v. Reese,^ it was held that the words offer to pay a capitation tax were so ex- panded by a succeeding clause of the same sentence, that the word "offer" necessarily included readiness to perform what was offered ; the provision being, that the offer should be equivalent to actual performance, if the offer failed to be car- ried into execution by the wrongful act or omission of the party to whom the offer was made. 1 United States v. Reed, 1 Low- ^ United States v. Cruikshank, ell, 233. The rule and exception 92 U. S. 564, dissenting opinion of are also tersely stated in United Clifford, J. States V. Pond, 2 Curtis C. C. » 92 U. S 235, 236. 268. THE COMPLAINT. 67 In many of the reported cases it is said that it is a well-set- tled rule of the common law, that, in setting out a statutory offence, it is generally sufficient to follow the words of the statute. But there is no such rule of law. No distinction is made by the common law as respects the degree of particu- larity and precision essential to the description of an offence between statutory and common-law offences. All indict- ments must specify the criminal nature and degree of the offence, and the particular facts and circumstances which ren- der the defendant guilty of that offence. If the statute sets out fully and precisely the necessary ingredients of the offence, then an indictment is generally sufficient which fol- lows the words of the statute. But such an indictment is good, not because it follows the words of the statute, but because it satisfies the common-law rules of pleading. It is undoubtedly true, as a matter of fact, that, where a statute creates an offence, it is generally sufficient to follow the words of the statute. But this is true, not because there is any rule of law to that effect, but because, when the Legislature creates a new offence, the statute generally specifies the facts neces- sary to constitute the offence.^ In Hawkins's Pleas of the Crown, this rule of pleading is thus stated : " Neither doth it seem to be always sufficient to pursue the very words of the statute, unless by so doing you fully, directly and expressly allege the fact, in the doing or not doing whereof the offence consists, without any the least uncertainty or ambiguity." ^ These rules of pleading are very wide in their application ; it will therefore be necessary to illustrate them by a variety of cases.^ A statute enacts in very general terms that 1 1 Green Crim. Law Rep. 295 Commonwealth v. Welsh, 7 Gray, note. Commonwealth v. Dana, 2 324, 327. Commonwealth v. Kelly, Met. 341. Commonwealth v. Bean, 12 Gray, 175. Commonwealth v. 14 Gray, 52. Commonwealth v. Harris, 13 Allen, 534, 539. Com- Edwards, 12 Cush. 189. monwealth v. Barrett, 108 Mass. 2 2 Hawk. F. C. ch. 25, § 111. 302, 303. Commonwealth v. Cos- Commonwealth V. Clifford, 8 Cush. tello, 118 Mass. 454. Common- 215, 217. Commonwealth v. Ash- wealth v. Bean, 11 Cush. 414; S. C. ley, 2 Gray, 356, 357. Common- 2 Lead. Crim. Cas. 172 and notes, wealth V. Brooks, 9 Gray, 299, 303. s See Regina v. Newboult, L. R. 68 CRIMINAL LAW. " Whoever keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity and charity," on the Lord's day, shall be punished, &c. Literally, " whoever keeps open his shop " subjects himself to the penalty ; but it is obvious that more than this is meant to constitute the offence. The intent of the statute was to prohibit the. opening of shops, warehouses and work- houses, for the purpose of work or the transaction of business ; but not to prohibit the opening of them for any lawful pur- pose. An indictment, therefore, must allege that the de- fendant kept open his shop for the purpose of transacting business, or for some other unlawful purpose.^ And as the purpose to do unlawful business is not of necessity limited to any particular kind of business, and may exist before any business is actually done, the general allegation of the pur- pose is sufficient.^ The 24 & 25 Vict. ch. 96, § 58, enacts : " Whosoever shall be found by • night armed with any dangerous or offensive weapon or instrument whatsoever, with intent to break or enter into any dwelling-house or other building whatsoever, and to commit any felony therein, shall be guilty of a misde- meanor." An indictment under this section must specify the building intended to be broken into, and, per Crompton, J., it must also specify the felony intended to be committed. Crompton, J. : " The language of the statute is clear. The words are ' any building.' Then, the rules of pleading and the precedents show that that building must be specified. It is said that a general intent to break into a building is within the mischief of the act. Assuming that to be so, that general intent is provided for by the following clause, which makes the being found in possession of implements of house- breaking punishable. There must be an intent to break into 1 C. C. 344, and Commonwealth a. 26; Commonwealth v. Walcott, 10 Perris, 108 Mass. 1 ; Regina v. Cush. 61 ; Commonwealth u. Sowle, Powner, 12 Cox C. C. 235, Quain, 9 Gray, 304. J.; Commonwealth v. Dean, 110 i Commonwealth v. Collins, 2 Mass. 64; Robinson v. Common- Cush. 556. Commonwealth v. wealth, 101 Mass. 27 ; Common- Lynch, 8 Gray, 384. wealth V. Filburn, 119 Mass. 297; ^ Commonwealth v. Wright, 12 Commonwealth u. Ballon, 124 Mass. Allen, 187. THE COMPLAINT. 69 a specific house and commit a specific felony, whicli must be alleged and proved in the usual way." ^ A statute enacts that, " If any person shall, by force and violence, or by assault and putting in fear, feloniously rob, steal and take from the person of another, any money or other property which may be the subject of larceny, he shall be punished," &c. The words of this section do not set forth, and were not intended to set forth, fully, directly and expressly, all that is necessary to constitute the offence thereby intended to be punished. To constitute that offence, the articles stolen must be carried away by the robber, and must be the property of the person robbed, or of some third person. These facts, therefore, must be alleged, in an indictment on that section, in the same manner in which they are required to be alleged in an indictment at common lavv.^ In Massachusetts, a statute enacts that every person who " shall maliciously or wantonly break the glass, or any part of it, in any building not his own," shall be pun- ished, &c. An indictment alleged that the defendant " did break and destroy the glass, to wit, two panes of glass of the value of ten cents each, in a certain building there situate, not his own." The words of the statute, "glass in a building," mean glass which is part of a building ; and, as glass may be in a building without being a part of it, the indictment was obvi- ously defective. The allegation would have been satisfied by evidence that the glass was in the building as merchandise.* It is said that whenever a case occurs in which all the facts charged against the defendant by the indictment may be admitted as proved, and yet the defendant be innocent, in every such case the indictment is bad.* " But I deny the ^ Regina «. Jarrald, Leigh & * Rex v. Corden, 4 Burr. 2279, Cave C. C. 301 ; 9 Cox C. C. 307. per Lord Mansfield. Turner's Case, But see 2 Russell on Crimes, 70 9 Q. B. 80, per Williams, J. note, 4th ed. Commonwealth v. Harris, 13 Allen, 2 Commonwealth i'. Clifford, 8 539. Commonwealth v. Collins, 2 Cush. 215. Commonwealth v. Cush. 558. Lord Campbell, C. J.: Kelly, 12 Gray, 176. " If it is laid down that where it is 2 Commonwealth v. Bean, 11 consistent with the allegations in Cush. 414. Commonwealth v. the indictment that no indictable Cox, 7 Allen, 577, 578. offence has been committed, the 70 CRIMINAL LAW. justness of the proposed test," said Mr. Justice Crampton. " It would prove to be fallacious in the case of a common assault. In such a case, the party may have done all im- puted to him by the indictment, and yet be innocent. He may have only corrected his child or his servant; he may have committed the assault charged against him in necessary defence of his life or of his possession. Thus this test is quite too wide. In many cases it will be applicable ; it may be a general rule, but it certainly is not an universal one ; in many cases it would mislead, and to many it is quite inapplicable." ^ It is not necessary, in a complaint upon a statute, to indi- cate the particular section, or even the particular statute, upon which it is founded. It is only necessary to set out in the complaint such facts as bring the case within the provisions of some statute, which was in force when the act was done, and also when the complaint was made.^ And, if the facts properly laid in the complaint and found to be true show indictment is insufficient, that is a useful rule. " Regina ». Rowlands, 2 Denison C. C. 377. See Martin V. The Queen, 8 A. & E. 486, per Lord Denman, C. J. 1 Jones V. The Queen, Jebb & Bourke, 161. " But there can be no judgment unless the law is in force at the time of the judgment. If the law ceases to operate by its own limita- tion or by a repeal, at any time be- fore judgment, no judgment can be given. Thus, when an act of Par- liament upon which an indictment was framed was repealed, after the indictment was found by the grand jury, but before plea pleaded, the judgment was arrested. Regina v. Denton, Dearsly C. C. 3; 18 Q. B. 761. Commonwealth v. Mar- shall, 11 Pick. 350. Commonwealth V. Kimball, 21 Pick. 373. Rex v. M'Kemsie, Russell & Ryan C. C. 429. Commonwealth v. Herrick, 6 Cush. 465, 467. Flaherty v. Thomas, 12 Allen, 428, 435, 436. Commonwealth v. Kelliher, 12 Al- len, 480. Commonwealth v. Davis, 11 Gray, 50. Commonwealth v. Mc- Donough, 13 Allen, 581. Jt is to be observed that repealing acts some- times contain clauses for the pur- pose of keeping alive the statutes they repeal, so far as they relate to offences committed against them. As to the effect of such clauses, see Regina v. Smith, Leigh & Cave C. C. 131 ; Commonwealth v. Edwards, 4 Gray, 1; Commonwealth v. Ben- nett, 108 Mass. 30. St. 1869, ch. 410, enacts that " The repeal of an act shall not affect any punish- ment, penalty, or forfeiture incurred before the repeal takes effect, or any suit, prosecution, or proceeding pending at the time of the repeal for an offence committed or for the recovery of a penalty or forfeiture incurred under the act repealed." Commonwealth v. Desmond, 123 Mass. 407. THE COMPLAINT. , 71 that the act done was punishable by statute, it is sufficient to warrant the court in rendering judgment. ^ It is not necessary, in an indictment on a public statute, to recite it,^ or specially refer to it ; but it is sufficient to con- clude " against the form of the statute in such case made and provided." The court is bound to take notice of all public statutes, and to refer the acts, which are charged in an indict- ment, to such statute as makes them punishable.^ By the Gen. Sts. ch. 171, § 16, it is enacted: "In a com- plaint, prosecution or other process, founded on a special act of the legislature, an ordinance or by-law of any city or town, or an order of the mayor and aldermen, it shall be sufficient to set forth the offence fully, plainly, substantially and for- mally ; and no part of such law, ordinance, by-law or order need be set forth." * It is not necessary to state on the face of a complaint or indictment how the penalty is to go. It is sufficient to adjust it to the person or persons entitled to it after it is received.^ In such a case, the court render a judgment that will secure the disposal of the penalty according to the statute on which the information is founded.^ The misrecital of a public statute, so as to make it sense- less, in a complaint charging an act to have been done in violation thereof, and not otherwise showing that the act was illegal, is a fatal defect.^ Wher.e a word in a statute would make the clause in which it occurs unintelligible, the word must be eliminated, and the clause read without it.^ 1 Commonwealth v. Griffia, 21 * As to the conclusion of a com- Pick. 523, 525. plaint for a breach of a by-law, see ^ A variance between the recited Commonwealth v. Worcester, 3 and the true title of a statute is Kck. 462, and 5 Pick. 44. Corn- fatal to an indictment or complaint, monwealth v. Gay, 5 Pick. 44. 1 Stark. Crim. PI. 215, 216, 2d ed. ; ^ Commonwealth v. Tattle, 12 1 Gabbett Crim. Law, 47, 48; un- Cush. 502, 504. Commonwealth u. less the variance is immaterial, and Burding, 12 Cush. 506. does not alter the sense, Common- * Levy v. Gowdy, 2 Allen, 323. ■wealth V. Burke, 15 Gray, 408. ' Commonwealth v. Unknown, 6 8 Commonwealth v. Hoye, 11 Gray, 489. Gray, 462, 463. United States v. 8 gtone v. Yeovil, 34 L. T. N. Nickerson, 17 How. 204. 2 Gab- S. 874; 1 L. R. C. P. Div. 691; 45 bett Crim. Law, 239. 1 Taylor Ev. L. J. C. P. Div. 657; 24 W. K. §5,6thed. Stephen PI. 287, 7th ed. 1073. 72 , CRIMINAL LAW. By a well-established rule of the construction of statutes, the common law is held to be repealed by implication-, when the whole subject is revised by the Legislature.^ The statu- tory remedy alone is then to be pursued. But it is a sound rule to construe a statute in conformity with the common law, rather than against it, except where, or so far as, the statute is plainly intended to alter the course of the common law.^ 21. The Pleading of Exceptions and Provisos in Statutes.^ If there be any exception contained in the same clause of the act which creates the offence, the indictment must show, negatively, that the defendant, or the subject of the indict- ment, does not come within the exception. And the rule is the same, although the statute casts upon the defendant the burden of proving that he comes within the exception.* If, however, the exception or proviso be in a subsequent clause or statute, or, although in the same section, yet if it be not incorporated with the enacting clause by any words of ref- erence, it is in that case matter of defence for the other party, and need not be negatived in the pleading.^ Where a statute makes the doing of an act "without lawful authority or ex- cuse " criminal, it is sufficient if the indictment negatives " lawful excuse," without also negativing " lawful authority; " as there can be no " lawful authority " which would not also be a " lawful excuse," and, therefore, to negative " lawful excuse " is also to negative "lawful authority."^ Where a statute defining an offence contains an exception, in the enacting clause of the statute, which is so incorporated 1 Commonwealth v. Dennis, 105 1872; and in Commonwealth v. Mass. 162. Commonwealth v. Wy- Jennings, 121 Mass. 47, a.d. 1876. man, 12 Cush. 237, 239. * Regina v. Harvey, L. B.. 1 2 Regina i>. Morris, L. R. 1 C. C. C* C. 284; 40 h. J. M. C. 63. The 94, per Byles, J. Commonwealth v. statute only alters the rules of evi- Bumford Chemical Worlis, 16 Gray, dence, it does not alter the rule as 231, 282. to the description of the offence in 8 This rule of pleading is thor- an indictment, oughly discussed in Commonwealth ^ Archb. Crim. PI. 64, 18th V. Hart, 11 Cush. 130; S. C. 2 Lead. ed. Crim. Cas. 1, a.d. 1853; in United ^ Regina u. Harvey, L. R. IC. C. States V. Cook, 17 Wall. 168, a.d. 284 ; 40 L. J. M. C. 63. THE COMPLAINT. 73 with the language defining the offence that the ingredients of the offence cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception ; but if the language of the section defining the offence is so entirely separable from the exception that the ingredients constituting the offence may be accurately and clearly defined, without any such reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is matter of defence, and must be shown by the accused.^ It has been said, that, if the exception is in the enacting clause, the party pleading must show that the accused is not within the exception ; but where the exception is in a subsequent section or statute, that the matter contained in the exception is matter of defence, and must be shown by the accused. Undoubtedly, that rule will frequently hold good, and in many cases prove to be a safe guide in pleading ; but it is clear that it is not a universal criterion, as the words of the statute defining the offence may be so entirely separa- ble from the exception, that all the ingredients constituting the offence may be accurately and clearly alleged, without any reference to the exception.^ There is a class of cases where the exception, though in a subsequent clause or section, or even in a subsequent statute, is nevertheless clothed in such language, and is so incorpo- rated as an amendment with the words antecedently em- ployed to define the offence, that it would be impossible to frame the actual statutory charge in the form of an indict- ment with accuracy, and the required certainty, without an allegation showing that the accused was not within the exception contained in the subsequent clause, section, or statute. Obviously, such an exception must be pleaded, as otherwise the indictment would not present the actual statu- tory accusation, and would also be defective for the want of clearness and certainty.^ ^ United States v. .Cook, 17 Wall. 174. Commonwealth v. Hart, Wall. 173. 11 Cush. 134. 2 United States v. Cook, 17 = United States v. Cook, 17 WaU. 175. 74 CRIMINAL LAW. Some writers and judges have sometimes been led into error by supposing that the words " enacting clause," as fre- quently employed, mean the section of a statute defining the offence, as contradistinguished from a subsequent section in the same statute ; which is a misapprehension of the term, as the only real question in the case is, whether the exception is so incorporated with the substance of the clause defining the offence as to constitute a material part of the description of the acts, omission or other ingredients which constitute the offence. Such an offence must be accurately and clearly de- scribed ; and if the exception is so incorporated with the clause describing the offence that it becomes, in fact, a part of the description, then it cannot be omitted in the pleading ; but if it is not so incorporated with the clause defining the offence as to become a material part of the definition of the offence, then it is matter of defence, and must be shown by the other party, though it be in the same section, or even in the suc- ceeding sentence.^ In Steel v. Smith,^ Mr. Justice Bayley stated the rule thus : " When there is an exception so incorporated with the enact- ing clause, that the one cannot be read without the other, then the exception must be negatived." The statute con- cerning the observance of the Lord's day. Rev. Sts. ch. 50, furnishes as plain an example of this rule of pleading as can be found. By section 1, " No person shall do any manner of labor, business or work, except only works of necessity or charity, on the Lord's day." By section 2, " No person shall travel on the Lord's day, except from necessity or char- ity." Here the exception is in the enacting clause, and that clause cannot be read without reading the exception. In an indictment on either of these sections, it is doubtless neces- sary to negative the exception, otherwise the case provided for is not made out. Labor or travelling merely is not for- bidden, but unnecessary labor and travelling, and labor and travelling not required by charity. The absence of necessity and charity is a constituent part of the description of the acts prohibited, precisely as if the statute had, in totidem verbis, 1 United States v. Cook, 17 Wall. 176. 2 Lead. Crim. Cas. 12, 2d ed. 2 1 B. & Aid. 94. THE COMPLAINT. 75 prohibited unnecessary labor and travelling, and travelling and labor not demanded by charity. All the cases in which this rule of pleading has been rightly applied are found, when examined accurately, to be just the same in principle.^ The word " except " is not necessary in order to constitute an exception within the rale. The words " unless," " other than," "not being," "not having," &c., have the same legal effect, and require the same form of pleading.^ " There is a middle class of cases," said Mr. Justice Met- calf,^ " namely, where the exception is not, in express terms, introduced into the enacting clause, but only by reference to some subsequent or prior clause, or to some other statute ; as when the words ' except as hereinafter mentioned,' or other words referring" to matter out of the enacting clause, are used. The rule in these cases is, that all circumstances of exemption and modification, whether applj'ing to the offence or to the person, which are incorporated by reference with the enacting clause, must be distinctly negatived. Verba relata in esse videntur."* But in a very recent case it was said that this statement of Mr. Justice Metcalf is inconsistent with the subsequent adjudication, in which he .concurred, in Commonwealth v. Tuttle ; ^ and that it is " established, by a great preponderance of authority, that, when an exception is not stated in the enacting clause otherwise than by merely referring to other provisions of the statute, it need not be negatived, unless necessary to a complete definition of the offence." ^ The St. 1852, ch. 322, § 1, enacted that no person should be allowed to sell any spirituous or intoxicating liquors, " except as hereinafter provided." Section 7 provided that if any per- son should sell any spirituous or intoxicating liquors, "in violation of the provisions of this act," he should be punished 1 Commonwealth v. Hart, 11 " Commonwealth v. Hart, 11 Cush. 135. Cush. 137 ; S. C. 2 Lead. Crim. 2 Gill V. Scrivens, 7 T. R. 27. Cas. 7. Spieres v. Parker, 1 T. R. 141. Rex * Citing Rex v. Pratten, 6 T. R. V. Palmer, 1 Leach C. C. 102, 4th ed. 559. Vavasour v. Ormrod, 9 D. & Wells V. Iggulden, 5 D. & R. 19. R. 597; 6 B. & C. 430. Commonwealth v. Maxwell, 2 Pick. ^ 12 Cush. 502. 139. State v. Butler, 17 Vt. 145. ^ Commonwealth v. Jennings, 1 East P. C. 166, 167. 121 Mass. 50, 51. 76 CRIMINAL LA.W. by fine or imprisonment. In prosecuting for this penalty, it was held, in Commonwealth v. Tuttle,^ to be unnecessary to negative the exceptions which were stated in subsequent sections of the statute. In Commonwealth v. Jennings,^ the court were of opinion that that case fell within the principle stated by Mr. Justice Metcalf in the closing paragraph of the judgment in Com- monwealth V. Hart: " It is an elementary principle of plead- ing (except in dilatory pleas, which are not favored), that it is not necessary to allege matter which would come more properly from the other side ; that is, it is not necessary to anticipate the adverse party's answer, and forestall his de- fence or reply. It is only when the matter is such that the affirmation or denial of it is essential to the apparent or primS, facie right of the party pleading, that it must be affirmed or denied by him in the first instance." ^ It was determined in the case of Commonwealth v. Jen- nings,* that, in an indictment on section 4 of the Gen. Sts. ch. 165, which enacts that " Whoever, having a former husband or wife living, marries another person, or continues to cohabit with such second husband or wife in this State, shall (except in the cases mentioned in the following section) be deemed guilty of polygamy," the exceptions stated in section 5, of a person whose husband or wife has been absent for seven years and not known to be living, need not be negatived. Gray, C. J. : " The offence of polygamy is fully defined by the Gen. Sts. ch. 165, § 4, as consisting in the defendant's, while hav- ing a former husband or wife living, marrying or continuing to cohabit with another person in this State. The words, ' except in the cases mentioned in the following section,' are not so incorporated with the enacting clause that the one cannot be read without the other, but are enclosed in a parenthesis, inserted, after completing the enumeration of the elements necessary to constitute the crime, in the midst of the conclu- 1 12 Cush. 502. 121 Mass. 52. ^ 121 Mass. 53. It would seem to be unnecessary in ' 11 Cush. 137 ; S. C. 2 Lead, a complaint on St. 1875, ch. 99, § 1, Crim. Cas. 7. to negative the exception contained * 121 Mass. 47. The judgment in § 6. Commonwealth v. Davis, in this case is worthy of an attentive 121 Mass. 332. perusal. THE COMPLAINT. 77 sion which declares its legal denomination. That the for- mer husband or wife has been absent for seven years and unheard from is a matter of defence or excuse, rather than a limit of the definition of the crime." The general principle is, that where, by statute or statutes, there is a gradation of offences of the same species, — as in the various degrees of punishment annexed to the offence of malicious burning of buildings, or in the various grades of the offence of larceny, — it is not necessary to set forth a negative allegation, alleging that the case is not embraced in some other section than that which, upon the evidence, may be found to apply in the case on trial, and by virtue of which the punishment is to be awarded. This subject was much discussed in the case of Commonwealth v. Squire,-' and the principle was there fully stated. If, therefore, certain acts are, by force of the statutes, made punishable with greater severity, when accompanied with certain aggravating cir- cumstances, thus creating two grades of crime, it is no objection to an indictment that it charges the acts which constitute the minor offence, unaccompanied by any aver- ment that the aggravating circumstances did not exist.^ In such cases the offence charged is to be deemed the minor offence, and punishable as such. "Not being then and there," &c., is the usual form of allegation.^ The word " without " is a word of sufficiently positive negation.* 22. Written Instruments. Where written instruments enter into the gist of the offence, as in forgery, libel, sending threatening .letters, pass- ing counterfeit money, &c., they must be set out with literal accuracy and precision ; ^ and where part only thereof is 1 4 Met. 258. * Commonwealth v. Thompson, ^ Lamed v. Commonwealth, 12 2 Allen, 507. Met. 240, 241. Contra, Rex v. ^ Commonwealth v. Wright, 1 Marshall, 1 Moody C. C. 158. Cush. 46. Wright ■;. Clements, 3 ' Commonwealth v. Roland, 12 B. & Aid. 503; S. C. 2 Lead. Crim. Gray, 132. Commonwealth v. Fred- Cas. 94 and notes. Commonwealth ericks, 119 Mass. 199. Common- v. Harmon, 2 Gray, 289. wealth V. Davis, 121 Mass. 852. 78 CRIMINAL LAW. included in the offence, that part only is necessary to be set out.^ It is not necessary, however, in indictments for forg- ery, &c., to insert the vignettes, devices, letters or figures in the margin, as they make no part of the instrument. But the entire contract must be fully and precisely set out.^ The instrument is usually introduced by the words " of the tenor following." " The word tenor imports an exact copy, — that it is set forth in the words and figures, — whereas the word purport means only the substance or general import of the instrument." ^ The indictment must not only set out the tenor of the instrument, but it must profess to do so. Marks of quotation, by themselves, are not sufficient.* If one of the original printed papers, in an indictment for printing an obscene paper, is pasted on to the indictment, it is not a sufficient indication that the paper is set out in the very words.^ It is necessary to set out an instrument in an indictment, only when the court can derive assistance from seeing a copy of it on the record ; as where the case turns on the nature and character of the instrument, as distinguished from its quality of good or bad. " " Where the setting out of the instrument," said Chief Justice Wilde, "cannot afford the court information, it is unnecessary that it should be set out. Here it alleged that a certain printed piece of paper was unlawfully and falsely represented by the prisoner to be a good and valid promissory note, whereas it was not so. It appears to me that all the cases show, that, where the instru- ment has been required to be set out in the indictment, some- thing has turned on the construction of the paper." ^ Where the instrument on which the indictment rests is in the defendant's possession, or cannot be produced, and there 1 2 Gabbett Crim. Law, 231. * Commonwealth v. Wright, 1 " Commonwealth v. Bailey, 1 Gush. 46. Mass. 62. Commonwealth v. Ste- ' Commonwealth v. Tarhox, 1 vens, 1 Mass. 203. Commonwealth Cush. 66. See Regina v. Brad- V. Taylor, 5 Cush. 605. Common- laugh, 38 L. T. N. S. 118. wealth V. Wilson, 2 Gray, 70. * Regina ». Coulson, 1 Denison s 2 Gabbett Crim. Law, 201, C. C. 592; Temple & Mew C. C. quoted in Commonwealth w. Wright, 332. Commonwealth w. Goldstein, 1 Cush. 65. 114 Mass. 272. THE COMPLAINT. 79 is no laches on the part of the government, it is necessary to aver in the indictment such facts as are sufficient to excuse the non-description of the instrument, and then to proceed, either by stating its substance, or by describing it as an in- strument which cannot be set forth by reason of its loss, destruction or detention, as the case may be.^ An indictment for printing an obscene paper must set it out in the very words of which it is composed ; and the indictment must undertake or profess to do so by the use of appropriate language, unless the publication is so obscene as to render it improper that it should appear on the record, and then the statement of the contents may be omitted altogether, and a description thereof substituted ; but, in this case, a reason for the omission must appear in the indictment, by proper averments.^ In an English case,^ the indictment charged the defendant with having forged " a certain warrant, order and request, in the words and figures following^," to wit : " Mr. Bevan, S — . Please to sen by bearer a quantity of basket nails," &c. It was objected that the paper, being only a request, did not support the indictment, which described it as a warrant, order and request. But it was held that there was no 1 Commonwealth ». Houghton, of judicial necessity; but that is as 8 Mass. 110. far as they go. Where it is rele- ^ Commonwealth v. Holmes, 17 vant and necessary, there is no rule Mass. 336. Commonwealth v. Tar- which allows matter to be omitted box, 1 Cush. 66. The records of merely because it is impure and the court, it is said, ought to be libellous. A court ought not to kept pure and undefiled. This is a consider its records defiled by any wholly fanciful and imaginary de- matter which a defendant has a sideratum. In the celebrated case substantial interest in demanding of Kegina v. Bradlaugh, 38 L. T. to "be placed on them." In this N. S., Cotton, L. J., said; "The case, the reasoning of the judges of American cases lay down a rule, the Court of Appeal is clear, to the that, where there is an allegation effect that, no matter how obscene that the libel is too bad to be put the book or paper may be, on the on the record, it may be omitted; record it should be spread, and it is enough to say that there ' Kegina v. Williams, 2 Denison is no such allegation here. But do C. C. 61; Temple & Mew C. C. 382. the English courts recognize that The case of Commonwealth v. Cas- rule? They do not. Our courts ties, 9 Gray, 123, was decided on a do not allow libels to be perpetuated principle similar to that of Regina and disseminated under a pretence «. Williams. 80 CRIMINAL LAW. variance, as the document being set out in full in the indict- ment, the description of its legal character became immate- rial. Parke, B., suggested that the correct course would have been for the indictment to have alleged the uttering of one warrant, one order and one request. In certain cases, such as larceny, receiving stolen goods, &c., it is suflScient to give a brief legal description of the instrument. Thus, an indictment for larceny, alleging that the defendant stole " one bank-note of the value of ten dol- lars, of the goods and chattels of the said A. B., " is sufficient, without a more particular description of the note.^ St. 1864, ch. 250, § 1, enacts that "No variance between any matter, in writing or in print, produced in evidence on the trial of any criminal cause, and the recital or setting forth thereof in the complaint, indictment or other criminal process whereon trial is had, shall be deemed material, pro- vided that the identity of the instrument is evident, and the purport thereof is sufficientl}' described to prevent all preju- dice to the defendant." This statute has rendered practi- cally obsolete the decisions on the law of variance.^ In an indictment it was alleged that the defendant had iii his pos- session, with intent to utter, knowing the same to be false, " a counterfeit bank-bill, of the tenor following, to wit," and then set forth a bill purporting to be issued by a national bank, promising to pay a certain sum to the bearer on demand, and dated, and signed by the president and cashier; and also set forth, as if a part of the instrument, a certificate purporting to be signed by the register of the treasury and by " p. E. Spinner, Treasurer of the United States," that " this note is secured by bonds of the United States deposited with the United States Treasurer at Washington." At the trial, the paper offered in proof of this allegation was of that tenor, except that the certificate thereon bore the signature of " F. E. Spinner, Treasurer of the United States ; " and it 1 Commonwealth v. Richards, 1 monwealth v. Terry, 114 Mass. Mass. 337. 263. Commonwealth v. McKean, 2 Commonwealth v. Morgan, 107 98 Mass. 9. Commonwealth v. Hat- Mass. 199, 205. Commonwealth v. field, 107 Mass. 227. Henry, 118 Mass. 460, 462. Com- THE COMPLAINT. 81 appeared in evidence that the name of the treasurer of the United States was Francis E. Spinner. Held, that the vari- ance was rendered immaterial by the statute above quoted.^ 23. "Words Spoken. Where words are the gist of the offence, they must be set forth in the indictment with the same particularity as a libel ; as, for instance, in an indictment for scandalous or contemp- tuous words spoken to a magistrate in the execution of his office, or for blasphemous or seditious words. If there be any material variance between the words proved and those laid, even if laid as spoken in the third person, and proved to have been spoken in the second, the defendant must be acquitted. But if some of the words be proved as laid, and the words so proved amount to an indictable offence, it will be sufficient.^ A statute makes an offence to consist in threatening, " either verbally or by any written or printed communica- tion," to accuse, &c. These words are part of the descrip- tion of the offence ; and an indictment which contains no averment that the threats charged were made in either form charges no offence.^ 24. Personal Property. The objects of the rule of criminal pleading, which requires property in reference to which an offence is alleged to have been committed to be definitely described in the indict- ment, are to identify the offence, to give the defendant full notice of the nature of the charge, to inform the court what sentence should be passed if the defendant is convicted, and to enable him to plead his acquittal or conviction to a subse- quent complaint or indictment for the same cause.* 1 Commonwealth v. Hall, 97 Commonwealth v. Murphy, 12 Al- Mass. 570. len, 449. Commonwealth v. Good- 2 Archb. Crim. PL 58, 18th ed. win, 122 Mass. 19, 33. Commonwealth v. Kneeland, 20 ' Robinson v. Commonwealth, Pick. 206, 215. Commonwealth v. 101 Mass. 27. Rev. Sts. ch. 125, Moulton, 108 Mass. 308. Common- § 17. Gen. Sts. ch. 120, § 68. wealth V. Dorus, 108 Mass. 488. * Commonwealth v. Strangford, 6 82 CRIMINAL LAW. In Commonwealth v. Hall,i the indictment was for a nui- sance, by erecting in a public highway " a number of sheds and buildings," which could easily have been separately de- scribed. In Commonwealth v. Brown,^ the indictment was for fraudulently conveying real estate without giving notice of an incumbrance thereon, and merely described it as " a certain parcel of real estate situated in Salem in the county of Essex." In Commonwealth v. Maxwell,^ the indictment, which was held bad for not stating the number of persons entertained by the defendant on the Lord's day, was upon a statute which made him liable to a penalty for each person so entertained. When, as in larceny, or receiving stolen goods, personal chattels are the subject of an offence, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated. In this respect difficulties will sometimes occur. In this statement, certainty, to a common intent, as it is technically termed, is generally sufficient, which means such certainty as will enable the jury to decide, in cases of larceny, whether the chattel proved to have been stolen is the very same with that upon which the indictment is founded, and show judicially to the court that it could have been the sub- ject-matter of the offence charged, and thus secure the de- fendant from any subsequent proceedings for the same cause, after a conviction or acquittal ; * and therefore to charge A with having feloniously taken and carried away the goods of B will not be sufficient.^ The description of the property must be stated with accu- racy and certainty.^ The common and ordinary acceptation governs the description, and it is sufficient if it be one that is usual or well known.''' Thus, in an indictment for stealing a 112 Mass. 291, 292. 2 Russell on 235. 1 Stark. Crim. PI. 193, 2d Crimes, 260, 5th ed. 1 Stark, ed. Crim. PI. 193, 2d ed. « 2 Hale P. C. 182. Common- 1 15 Mass. 240. Ante, p. 40 note, wealth v. Gavin, 121 Mass. 55. 2 15 Gray, 189. « See Regina v. Bonner, 7 Cox 8 2 Pick. 139. C. C. 13 I 2 RusseU on Crimes, 314 » Commonwealth v. Lavery, 101 note, 4th ed. Mass. 207. 1 Gabbett Crim. Law, ' Commonwealth v. James, 1 THE COMPLAINT. 83 handkerchief, it is not necessary to describe it particularly as a handkerchief of any specific make or materials, as that it is of silk, linen, or any other particular quality.^ And where the prisoners were indicted for stealing six handkerchiefs, and the property produced was a piece of silk containing that number of handkerchiefs, but not cut or severed from each other, it was held that the indictment was supported by the evidence ; the prosecutor having sworn that when purchasing or selling these articles they were charged not by the piece, but according to the number of handkerchiefs, though the name which it went by in the shop was, a piece of silk hand- kerchiefs.^ An indictment charging A with stealing a book is sufficient, and the title of it need not be stated.^ On the trial of an indictment for stealing " one sheep," some of the witnesses stated the animal to be a sheep, others, a lamb. It was between nine and twelve months old. The jury con- victed the prisoner, and found that, in common parlance, according to the usual mode of describing such animals, it would be called a lamb. On a case reserved, the conviction was held right, the word " sheep " being gen&ral.* It is suflfi- cient to describe the property stolen as " one hide, of the value," &c.^ So a charge of stealing " a parcel of oats " is sufficiently certain.^ In general, as great a degree of certainty is required in an indictment respecting personal property as in a declaration in an action of trespass.'^ But it is not ground for arresting Pick. 375. Commonwealth v. Bret- Lewin, 272. Eegina v. Barran, tun, 100 Mass. 206. Common- Jebb C. C. 245. The case of Re- wealth V. Campbell, 103 Mass. 436. gina v. Spicer seems to show that Rex V. Johnson, 3 M. & S. 540. the thing stolen need not now be Regina v. Mansfield, C. & M. 140. alleged in the indictment with so 1 Per Le Blanc, J., in Rex v. great a degree of certainty as was Johnson, 3 M. & S. 540. formerly deemed requisite. See ^ Rex V. l^ibbs, 1 Moody C. C. the reporter's note to Regina v. 25. Bond, 1 Denison C. C. 528. 3 Per Lord EUenborough, C. J., ^ state v. Dowell, 3 Gill & and Bayley, J., in Rex v. Johnson, Johns. 310. 3 M. & S. 540. State v. Logan, 1 ^ State v. Brown, 1 Dev. 137. Mo. 377. ' Purcell Crim. PL 84. In the * Regina v. Spicer, 1 C. & K. note to Taylor v. Wells, 2 Saund. 699; 1 Denison C. C. 82. See Re- 74 a, 6th ed., and 2 Wms. Notes to gina V. M'Cully, 2 Moody, 34; 2 Saund. 267, it is said, "The law 84 CRIMINAL LAW. judgment on an indictment for stealing several articles, that some of them are insufficiently described.^ But an indictment for stealing chattels which are the subject of larceny only in particular cases, or under certain circum- stances, must show that they fall within the requisite descrip- tion. And it is so clearly established that those creatures which are ferae naturae can only become the subject of prop- erty by being dead, reclaimed, or confined, that it has been holden to be necessary that they should be so described in an indictment for stealing them. -The prisoner, having been convicted on an indictment for stealing a pheasant of the value of forty shillings, of the goods and chattels of H. S., upon a case reserved, the judges, after much debate, all agreed the conviction was bad ; that, in cases of larceny of animals fevse naturae, the indictment must show that they were either dead, tame,^ or confined ; otherwise, they must be presumed to be in their original state, and that the alle- gation " of the goods and chattels " did not supply the defi- ciency.^ Where the larceny of live animals is charged, it is not necessary to state them to be alive ; because the law will pre- sume them to be so, unless the contrary be stated. But if when stolen the animals were dead, that fact must be stated ; for, as the law would otherwise presume them to be alive, the variance would be fatal.'* " The doctrine respecting the description of animals in an indictment," says Patteson, J., does not now require so much pre- ' Rough's Case, 2 East P. C. cision and certainty in the descrip- eh. 16, § 41, p. 607. 2 Russell on tion of the goods as formerly ; for Crimes, 236, 5th ed. if they are described according to * Rex v. Edwards, Russell & common acceptation, it is suffi- Ryan C. C. 497. Rex v. Halloway, cient." This is said of declara- 1 C. & P. 128. Commonwealth v. tions, and it is undoubtedly true of Beaman, 8 Gray, 497, denying Rex indictments. Many cases are there v. Puckering, 1 Moody C. C. 242, collected to show how little of cer- and 1 Lewin C. C. 302. The de- tainty is required in a declaration ; cision in Rex v. Edwards, ubi supra, but they all specify clearly and pre- must have been the same, if the cisely the article taken. word " live " had not been inserted 1 Commonwealth v. Eastman, 2 in the indictment, the word " tur- Gray, 76. Commonwealth v. Hath- keys " having the legal meaning of away, 14 Gray, 392. " live turkeys ; " and so Holroyd, J., ^ Regina v. Lonsdale, 4 P. & F. 56. stated the law. , THE COMPLAINT. 85 in a modern case,^ " applies only to live animals, not to parts of the carcasses of animals when dead, such as a boar's head. Do you find in works on natural history that there is any living animal called a ham ? " In this case, the in- dictment stated that the defendant stole " one ham of the value of ten shillings, of the goods and chattels of one T. H." This was held a sufficient description, without stat- ing the name of the animal of which the ham had formed a part. In regard to the description in a complaint or indictment of animals which are the subjects of larceny by statute, the result of the authorities is thus well stated : " Generally, we may state the rule to be that when a statute uses a nomen generalissimum, as such (e.g. cattle'), then a particular species can be proved ; but that when the statute enumerates certain species, leaving out others, then the latter cannot be proved under the nomen generalissimum, unless it appears to have been the intention of the Legislature to use it as such."^ Substances mechanically mixed should not be described in an indictment as " a certain mixture consisting of," &c., but by the names applicable to them before such mixture, though it is otherwise with regard to substances chemically mixed.^ But where the prisoner was indicted for stealing " one bushel of oats, one bushel of chaff, and one bushel of beans, of the goods and chattels of A. B., then and there found," and the proof was that these articles at the time of the taking were mixed together, Bayley, J., held that the articles ought to have been described as mixed, thus, " a certain mixture consisting of one bushel," &c. ; and he directed an acquit- tal on this count.* 1 Regina v. Gallears, 1 Denison * Rex v. Kettle, 3 Chit. Crim. C. C. 501; 2 C. & K. 981; Temple Law, 947 a, 2d ed. An indictment & Mew C. C. 196. against A for stealing and B for ^ 1 Wharton Crim. Law, § 377. receiving a mixture of grain, is not * Per Alderson, B., in Regina o. sustained by evidence which shows Bond, 1 Denison C. C. 521; Tem- that two sorts of grain, then sepa- ple & Mew C. C. 247, where he says rate, were stolen by A, mixed by that he should question the ruling him, and afterwards sold by him to in Rex v. Kettle, ubi infra, if a B. Regina «. Robinson, 4 F. & F. similar case came before him. 43, Pollock, C. B. 86 CRIMINAL LAW. , In larceny, however, particular descriptions of the goods taken have never been considered necessary, and the descrip- tion given in the statute which creates the offence in statu- table larcenies has in general been deemed sufficient.-'^ This doctrine is founded partly on the fact that the prosecutor is not considered in possession of the article stolen, and is not, therefore, enabled to give a minute description ; and princi- pally because, notwithstanding the general description, it is made certain to the court, from the face of the indictment, that the thing taken is such whereof larceny may be com- mitted. In an indictment for a larceny of bank-notes, it is sufficient to allege that the defendant stole " a bank-note of the value of one hundred dollars, of the property of one C. D.," without a more particular description of the note.^ The words " bank- note " and "bank-bill " are used indifferently in the statutes, and have the same meaning.^ An indictment for stealing bank-bills, which states the amount and value of the whole, need not describe their number or denomination, nor allege that the grand jurors could not more particularly describe them.* In an indictment for embezzling "bonds of the United States of America, for the payment of monej', issued ^ 1 Stark. Crim. PI. 193. Rex v. monwealth v. Butterick, 100 Mass. Johnson, 3 M. & S. 540. Common- 1, 8. Commonwealth v. Bosworth, wealth V. Brettun, 100 Mass. 206. 113 Mass. 201. The same reasons Commonwealth v. Coe, 115 Mass. exist for such general description of 481, 500. bank-bills, as of coin. When taken 2 Commonwealth v. Richards, 1 from one holding them as currency- Mass. 336. State v. Stevens, 62 for daily use, and when composed, Maine, 284. as they may be, of all the smaller s Eastman v. Commonwealth, 4 denominations of bills, it would be Gray, 416. Commonwealths. Steb- difficult to describe the number of bins, 8 Gray, 492. bills taken, or their denominational * Commonwealth v. Stebbins, 8 value, as it would be in a case for Gray, 492. Commonwealth v. larceny of coin. To meet such Duffy, 11 Cush. 145. Common- necessity, great latitude has been wealth V. O'Connell, 12 Allen, allowed in describing the particular 451. Commonwealth v. Hussey, coin, and a similar rule is applied to 111 Mass. 432. Commonwealth u. an indictment for larceny of bank- Green, 122 Mass. 333. The same bills. Commonwealth v. Grimes, 10 particularity is sufficient in an in- Gray, 470, 471. Commonwealth v. dictment for embezzlement. Com- Strangford, 112 Mass. 292. THE COMPLAINT. 87 by authority of law," and of an "aggregate value" specifi- cally averred, this description of the embezzled property is sufficient.^ It is said in Termes de la Ley, a work of high reputation,^ that " coin is a word collective, which contains in it all man- ner of the several stamps and portraitures of money." As the word " coin," without any prefix, means metallic money generally, so " copper coin," without any further description, means copper money generally, and not a single coin, nor any specific number or kind of coins. The words " copper coin " have the same meaning as copper coins.'' In the case of lar- ceny of coins it is sufficient to allege the collective value of the whole, without specifying the value and denomination of each, nor that they are current as money in this Common- wealth ; for coins not current here are doubtless the subject of larceny.* Where the property is of the nature to warrant that de- scription, it should be described as " the goods and chattels of A," or as "the property of A," and money as being " of the moneys of A ; " and without these, or equivalent words, the indictment will be defective ; at all events, if these words be unnecessary, they may be rejected as surplusage, and it is best to insert them.^ But there is a distinction between the modes of describing real and personal property, in reference to the ownership of such property. While the latter is de- scribed as has been stated, a very general, if not universal, mode of describing the ownership of real estate, is, as " the ^ Commonwealth v. Butterick, Cusli. 144. Commonwealth v. Gal- 100 Mass. 1. Gen. Sts. ch. 161, lagher, 16 Gray, 240. § 42. ^ Eastman v. Commonwealth, 4 2 " A very excellent book." Gray, 416. Regina v. Radley, 1 Lord Kenyon, C. J., in Doe v. Denison C. C. 450; 2 C. & K. 972; Meakin, 1 East, 459. "That is a Temple & Mew C. C. 144. Regina book of great antiquity and accu- v. Godfrey, Dearsly & Bell C. C. racy, as is observed by Bayley, J. , 426; 27 L. J. M. C. 151. See in 5 B. & C. 229." Putnam, J., Regina o. Powell, 2 Denison C. C. in Penniman v. French, 17 Pick. 403; 5 Cox C. C. 396; Regina v. 405. 16 Gray, 241. Gumble, L. R. 2 C. C. 1 ; 42 L. J. ' Commonwealth v. Gallagher, M. C. 7 ; Regina o. Bird, 42 L. J. 16 Gray, 240. M. C. 44. * Comnipnwealth v. Sawtelle, 11 88 CRIMINAL LAW. dwelling-house of one B. W.," ^ " the city hall of the city of Charlestown," &c.^ The description of the property, at least as to part of it, must be borne out in evidence. An indictment charging a stealing of one or more specific thing or things is not sup- ported, except by proof of some one or more of the specific things so charged. Therefore, an indictment charging a stealing of seventy pieces of the current coin of the realm called sovereigns, of the value of £10, one hundred and forty pieces, &c., called half-sovereigns, &c., five hundred pieces, &c., called crowns, &c., is not supported by proof of a stealing of a sum of money, consisting of some or other of the coins mentioned in the indictment, without proof of some one or more of the specifie coins charged to have been stolen.^ So an indictment charging an embezzlement "of one pound eleven shillings " cannot be supported, without showing in evidence that it was a one-pound note and eleven shillings, or any part of it in silver.* Upon an indictment for having in possession a die made of iron and steel, proof of a die made of either material is sufficient.^ An indictment which charges a larceny or embezzlement of the printed sheets of a certain publication is not supported by evidence that those sheets were delivered to the defendant to be bound, and that the defendant, after he had folded, stitched, bound and trimmed them, embezzled and fraudulently converted them to his own use. In such case, the indictment should charge a larceny or embezzlement of books.^ It is necessary to state in the complaint the value of what- ever articles are alleged to have been stolen.'' The reason for requiring this allegation and finding of value may have been, originally, that a distinction might appear between the I Commonwealth v. Harney, 10 Ryan C. C. 335. See Rex ». Met. 422. Carson, Russell & Ryan C. C. ^ Commonwealth v. Williams, 2 303. Cush. 582. 6 Rex v. Oxford, Russell & Ryan 8 Regina v. Bond, 1 Denison, C. C. 382. C. C. 517; Temple & Mew C. C. « Commonwealth w. Merrifield, 4 242. 2 Russell on Crimes, 264 Met. 468. notes, 5th ed. ' Commonwealth v. Smith, 1 * Rex «. Furneaux, Russell & Mass. 244 and note. THE COMPLAINT. 89 offences of grand and petit larceny, in reference to the extent of punishment ; that being graduated, in some measure, by the value of the article stolen. Our statutes prescribe the punishment for larceny with reference to the value of the property stolen ; and for this reason, as well as because it is in conformity with long-established practice, the value of the property alleged to have been stolen must be set forth in the complaint. 1 An indictment cannot be sustained: for stealing a thing of no intrinsic or artificial value. A count, however, for stealing " one piece of paper, of the value of one cent," would be good, when a count for stealing a bank-note fails.^ In general, it is not necessary to prove the precise value as stated, provided the value proved is sufBcient to constitute the offence. Thus, if on an indictment for embezzling one- pound notes, and other moneys, &c., describing them, though the evidence be that other property than that described was embezzled, yet if it be proved that one-pound notes were em- bezzled, it will suifice.^ But where value is essential to con- stitute an offence, and the value is ascribed to many articles collectively, the offence must be made out as to every one of those articles, and if the jury find the defendant guilty of stealing only a part of them, he must be acquitted.^ Because, where many articles are described as of a collective value, the entire value might be attached to those articles as to which the jury acquitted the party, and thus the remainder be really without value. Therefore, where one count in the indict- ment charged the stealing of " one set of steelyards, one block-tin teapot, and one lot of cut nails, all of the value of three dollars," and the jury found the defendant guilty of stealing the steelyards, and not guilty of stealing the other articles charged, it was held that no judgment could be legally 1 Hope V. Commonwealth, 9 paper. Regina v. Perry, 1 Denison Met. 136. Commonwealth!;. Mc- C. C. 69; 1 C. & K. 725. Common- Kenney, 9 Gray, 114. Common- wealth v. Brettun, 100 Mass. 206. wealth u. Lavery, 101 Mass. 208. s Rex v. Carson, Russell & Ryan, Gen. Sts. oh. 161, § 18. C. C. 303. 2 If the instrument he for any ^ Rex u. Forsyth, Russell & Ryan reason void in law, the defendant C. C. 274. Commonwealth v. Ca- may he convicted on a count charg- hill, 12 Allen, 540. Commonwealth ing him with steahng a piece of v. Falvey, 108 Mass. 304. 90 CRIMINAL LAW. rendered against him.^ And on an indictment for larceny of " twelve handkerchiefs, of the value of six dollars," it is not suflBcient to prove a larceny of a less number of handkerchiefs of some value.^ 25. Technical Terms. There are some terms which are so appropriated by the law to express the precise idea which it entertains of the offence, that no other terms, however synonymous they may seem, are capable of doing it. Thus, in indictments for murder, it is necessary to say that the party indicted "murdered," not "killed" or "slew," the deceased. In indictments for rape, the word "ravished " is necessary, and must not be expressed by any periphrasis.^ So, in larcenies, the words " feloniously took and carried away " are necessary to every indictment ; for these only can express the very offence.* But in this Commonwealth the technicalities of the common law " are fast vanishing before the supposed efScacy of statute phrase- ology." Thus, in the case of TuUy v. Commonwealth,^ it was decided that the statute definition of house-breaking had done away with the common-law requisitions of the offence, so that "burglariously" no longer makes a part of the quo modo of the crime. The distinction to be observed in describing stat- ute offences and common-law offences was stated in this case by Chief Justice Shaw, as follows : "When the statute pun- ishes an offence, bj' its legal designation, Avithout enumerating the acts which constitute it, then it is necessary to use the ^ Hope u. Commonwealth, 9 Met. * Commonwealth v. Adams, 7 134. Gray, 44. Regina v. Thurborn, 1 2 Commonwealth v. Lavery, 101 Denison C. C. 388 ; S. C. 2 Lead. Mass. 207. Crim. Cas. 409. Regina !>. Guern- 8 2 Hawk. P. C. ch. 25, § 55. sey, 1 F. & F. 894. "The uni- 1 Deacon Crim. Law, 651. The form course of the indictments for words, " felony," " murder," larceny from the earliest times has " burglary," are terms of art, for been to allege that the defendant which equivalent expressions can- ' feloniously stole, took and car- notbeused. Holford u. Bailey, 13 Q. ried away' the goods of a named B. 446, per Parke, B. " There are person." Regina v. Middleton, certain consecrated words of art, L. R. 2 C. C. 41; 42 L. J. M. C. such as felonice, murdravit," &c. 75, per Bovill, C. J. But see Green Per Willes, J., in Regina v. Harvey, v. Commonwealth, 111 Mass. 417. 40 L. J. M. C. 66. 6 4 Met. 357. THE COMPLAINT. 91 terms which technically charge the offence named at com- mon law. As, for instance, the Rev. Sts. ch. 125, § 1, declare that every person who shall commit the crime of mur- der shall suffer the punishment of death. Here the statute does not enumerate the acts which constitute murder : it refers for that to the common law. In such cases, the forms and technical terms used at common law to describe and define the murder must be used. But this is not necessary when the statute describes the whole offence, and the indict- ment charges the crime in the words of the statute." It is expressly declared by statute that " It shall not be necessary to allege in any indictment or complaint that the offence charged is a felony, or felonious, or done feloniously ; nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words ' felony,' ' felo- nious,' or ' feloniously.' " ^ 26. Unnecessary Averments. In an indictment for murder, it is not necessary to aver that the defendant, " not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil," committed the murder, nor is it necessary to aver that the deceased at the time of the murder was " in the peace of the Commonwealth." ^ The words " with force and arms," &c., although xisual in indictments for offences which consist of acts of violence, or amount to an actual disturbance of the public peace, are not, it would seem, absolutely essen- tial, at common law ; ^ and it is expressly provided by statute that the omission shall not vitiate a complaint or an indict- 1 Gen. Sts. ch. 168, § 2. Com- to encourage vagueness and uncer- monwealth u. Jackson, 15 Gray, tainty in criminal pleading." Ee- 187. Commonwealth v. Sholes, 13 gina v. Home, 4 Cox C. C. 263, per Allen, 554, 558. In England, all Patteson, J. felonies, whether at common law ^ Commonwealth v. Murphy, or created by statute, must be laid 11 Cush. 472. to have been done "feloniously." ^ 2 Hawk. P. C. ch. 25, § 90. Regina a. Gray, Leigh & Cave C. C. Eex v. Burks, 7 T. R. 4. Com- 365. " The omission of the word monwealth v. Soannell, 11 Cush. ' feloniously ' is a departure from 547. rules and precedents, and calculated 92 CRIMINAL LrAW. ment.i The words " wickedly, maliciously of his own wicked and corrupt nature, being a person of evil disposition," &c., are in general mere matter of aggravation, and not mate- rial.^ The word " unlawfully " is not often of much value in an indictment : it only asserts a conclusion of law, which, if it arises out of the facts set forth, is unnecessary, and, if it does not, is insufficient.^ But if a statute, in describing an oflFence which it creates, uses that word, an indictment founded on the statute is bad, if that word be omitted ; * and it is in gen- eral best to insert it, especially as it precludes all legal excuse for the crime.^ 27. Joinder of Befendants. The general rule is, that where the same evidence as to the act which constitutes the crime applies to two or more, they may be jointly indicted. Nor is it an objection that the fact proved against two or more constitutes a distinct species of legal and technical ofPence ; as where the same evidence proves one guilty as principal, and another as accessory before the fact, they may be jointly indicted.^ The general rule is, that in every indictment against two or more the charge is several as well as joint ; in effect, that each is guilty of the offence charged ; so that, if one is found guilty, judgment may be passed on him, although one or more may be acquitted. There may be exceptions, as in case of conspiracy and riot, and perhaps some others, when the 1 Gen. Sts. ch. 172, § 19. s United States v. DriscoU, 1 2 That the material criminal in- Lowell, 305, 306. tent may be suflBciently alleged in * 2 Hawk. P. C. ch. 25, § 96. apt words in the prefatory part of Rex v. Turner, 1 Moody C. C. 239. the indictment, -was expressly de- Rex u. Ryan, 2 Moody C. C. 15. cided in the case of Commonwealth Regina v. Prince, L. R. 2 C. C. -f. Haynes, 2 Gray, 72; although the 154, 177, per Denman, J. Com- court said that the indictment would monwealth v. Sholes, 13 Allen, 554, have been more full, and more in 558. conformity with the precedents, if ^ ggx „_ Burnet, 4 M. & S. 274. it had contained a second allegation Purcell Grim. PI. 87. of the intent, succeeding the narra- ^ Commonwealth v. ElweU, 2 tion of the acts done by the de- Met. 190, 191. fendant. THE COMPLAINT. 93 agency of two or more is of the essence of the offence. Vio- lations of the license law are not within the reason of these exceptions, but are governed by the general rule.^ Parties to the crime of adultery may be jointly indicted.^ Misjoinder of defendants may be made the subject of a demurrer, motion in arrest of judgment, or writ of error ; or the court will, in general, quash the indictment. But where there are different counts against different persons in the same indictment, this, though it may be a ground for moving to quash the indictment, is no cause of demurrer,^ provided the counts be otherwise such in substance as may be joined.* 28. Joinder of Counts. It is frequently advisable to insert two or more counts, where the transaction which is the subject of the complaint or indictment is of a doubtful nature, as to some of the cir- cumstances essential to be stated, or it is uncertain whether the evidence will establish a greater or less degree of crimi- nality. As, for instance, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the goods or house of A or of B, they may be stated in one count as the goods or house of A, and in another as the goods or house of B. This joinder of counts is admitted upon the same principle as the joinder of offences ; every separate count charges the defendant as if he had committed a distinct offence, though it merely describes the same transaction in a different way; and a general verdict of guilty upon such indictment and judgment thereon is a conviction of but a single offence, and is deemed to be upon that count of the indictment to which the evidence is applicable.^ In the celebrated case of Commonwealth V. Webster,^ the reason of this was thus stated by Chief 1 Commonwealth u. Tower, 8 « Arehb. Crim. PI. 70, 71 , 18th ed. Met. 528. Commonwealth v. Grif- ^ Commonwealth v. Fitchburg fin, 3 Gush. 523. Commonwealth u. Railroad Co. 120 Mass. 372, 380. Sloan, 4 Gush. 52. 2 Gabbett Grim. Law, 246. 2 Commonwealth v. Elwell, 2 ^ 5 Cush. 295, 321. Common- Met. 190. wealth v. Desmarteau, 16 Gray, 12, 2 Kex V. Kingston, 8 East, 41. 13. 94 CRIMINAL LAW. Justice Shaw, in the charge to the jury, as follows : " To a person unskilled and unpractised in legal proceedings, it may seem strange that several modes of death, incon- sistent with each other, should be stated in the same docu- ment. But it is often necessary ; and the reason for it, when explained, will be obvious. The indictment is but the charge or accusation by the grand jury, with as much certainty and precision as the evidence before them will warrant. They may be well satisfied that the homicide was committed, and yet the evidence before them may leave it somewhat doubt- ful as to the mode of death ; but, in order to meet the evi- dence as it ma.j finally appear, they are very properly allowed to set out the mode in different counts ; and then if any one of them is proved, supposing it to be also legally formed, it is sufficient to support the indictment. Take the instance of a murder at sea. A man is struck down, lies some time on the deck insensible, and in that condition is thrown over- board. The evidence proves the certainty of a homicide by the blow, or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charg- ing a death by a blow, and a death by drowning, and per- haps a third, alleging a death by the joint result of both causes combined." In an English case,i in wliich the indictment contained sixteen counts, Alderson, B., observed : "Why may there not be as many counts for receiving as there are for stealing, — one for each ? It is really only one offence, laying the prop- ertj"^ in different persons. It is one stealing and one receiv- ing ; and because there was some doubt as to the person to whom the property really belonged, the property is laid in five different ways. If a late learned judge had drawn the indictment, you would very likely have had it laid in fifty more." As one offence, whether felonious or not, cannot be properly charged twice over, whether in one indictment or in two, it is usual to lay a different time in each count, by the word " after- wards," and to insert the word " other " in a second count, to 1 Regina v. Beeton, 2 Car. & Kir. & Mew C. C. 87. Commonwealth 960; 1 Denison C. C. 41i; Temple v. Hills, 10 Gush. 530. THE COMPLAINT. 95 obviate the difficulty, through the fiction that the cause of action thus stated is new and distinct.^ Reference may be made from one count to another for some purposes. Any qualities or adjuncts averred to belong to any subject in one count, if they are separable from it, shall not be supposed to be alleged as belonging to it in a subsequent count, which merely introduces it by reference as the same subject " before mentioned." ^ Each count in an indictment is, in fact and in theory, a separate indictment.^ Indictments for misdemeanors may con- tain several counts for entirely different offences, and on the trial the prosecutor may prove them all.* In Massachusetts, it is well settled that several distinct, substantive offences may be charged in separate counts of the same indictment, if they are of the same general description, and the mode of trial and the nature of the punishment are the same ; and this whether they are felonies or misdemeanors.^ By the terms of the St. 1861, ch. 181, " Two or more counts, describing different offences, may be set forth in the same com- plaint or indictment, depending upon the same facts or transac- tions : provided, that the complaint or indictment shall contain an averment that the different counts therein are different de- 1 Campbell v. The Queen, 11 Q. Commonwealtli v. Fitchburg Rail- B. 799. HoUoway v. The Queen, road Co. 120 Mass. 380. 17 Q. B. 317, 812, 838. Regina v. * 2 Russell on Crimes, 677 note, O'Brien, Irish Rep. 1 Com. Law, 4th ed. ; 594 note, 5th ed. Eighth 179. Report English Crim. Law Comm. 2 Regina v. Waverton, 2 Denison p. 86, pi. 99. O'Connell v. The C. C. 347; S. C. 2 Lead. Crim. Queen, 11 Clark & Finnelly, 41.5, Cas. 157. per Lord Campbell. Young v. The 3 Latham i. The Queen, 5 Best Queen, 3 T. R. 105, 106. & Smith, 642, 643. The Queen v. ^ Commonwealth v. Costello, 120 O'Brien, Irish Rep. 1 Com. Law, Mass. 358, 366. Commonwealth v. 174, 175. Young v. The Queen, Brown, 121 Mass. 70. Common- 3 T. R. 106. United States v. Fur- wealth v. Carey, 103 Mass. 215. long, 5 Wheat. 185, 201. Com- Carlton v. Commonwealth, 5 Met. monwealth v. Carey, 103 Mass. 215. 532, 534. Booth v. Commonwealth, " The rights of the defendant are in 5 Met. 135. Josslyn v. Common- no respect different from what they wealth, 6 Met. 236. Crowley v. would have been if the charge had Commonwealth, 11 Met. 578. Com- been set out in a separate indict- monwealth v. Hills, 10 Cush. 534. ment." Per Bigelow, C. J., in Com- Commonwealth v. Moorhouse, 1 monwealth B. Burke, 16 Gray, 33. Gray, 471. 96 CEIMINAL LAW. scriptions of the same act." The meaning of this statute seems to be, that if the prosecutor should desire to secure the advan- tage of presenting the same subject-matter in several distinct forms, and describing the same act in several different ways, without being driven to his election on which he will rely, he may do so, on complying with the terms of the statute, and making it a matter of special averment in the complaint or indictment that the different counts are different descriptions of the same act. This proviso is undoubtedly intended for the benefit of the defendant, by informing him that charges which, taken literally, appear to relate to distinct and sepa- rate offences, are substantially but one, and that there is but one act or transaction which is really the subject of trial. It was also intended to permit the same act to be variously described in different counts, which could not be united at common law without being liable to the objection of misjoin- der. The object of the statute was not to impose upon the pleader any new restrictions. The law relating to the joinder of offences which are really distinct and separate continues to stand exactly as it did before that statute was enacted.^ 29. Conclusion of Complaint. The complaint usually concludes 'with the averment, " against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided." Nearly the whole of the learning relating to the conclusion of complaints and indictments seems, however, to have be- come obsolete since the passing of the Gen. Sts. ch. 172, § 19, which enacts 'that " No indictment, and no complaint be- fore a justice of the peace or police court, shall be quashed or deemed invalid, nor shall the judgment or proceedings thereon be arrested or affected by reason of the omission of the words * against the peace,' nor by reason of omit- ting to charge au}'^ offence to have been committed ' con- trary to the form of the statute or statutes ; ' provided that 1 Commonwealth v. Costello, 120 453. Commonwealth v. Gillon, 2 Mass. 367. Commonwealth v. Cain, Allen, .TO5. Commonwealth v. Mc- 102 Mass. 487, 488. Common- Cluskey, 123 Mass. 406. wealth V. O'Connell, 12 Allen, 451, THE COMPLAINT. 97 such omission or misstatement do not tend to the prejudice of the defendant." An indictment concluding with the aver- ment, contra forniam statuti, may be sustained under the decisions as well as under the statute law of this Common- wealth, if the facts charged constitute an offence either by statute or at the common law.' 30. Motion in Arrest of Judgment. ^ — Aider by Verdict. In conclusion, if all the ingredients of the offence, whether it be an offence at common law or one created by statute, are not set forth in the indictment with sufficient certainty, the defendant may move to quash the indictment, or may demur, or, if the defect is one which is not cured by verdict, he may move in arrest of judgment, or bring a writ of error. And it is a general rule of pleading at common law, — and where there is a question of pleading at common law there is no distinction between the pleadings in civil cases and in criminal cases, — that where an averment which is necessary for the support of the pleading is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by verdict.^ Lord Justice Cotton thus tersely stated this rule of pleading : " The rule is simple ; verdict will cure only defective statements. This 1 Commonwealth v. Hoxey, 16 Regina v. Goldsmith, L. R. 2 C. C. Mass. 385. Commonwealth v. 74; 12 Cox C. C. 479; 42 L. J. Squire, 1 Met. 261. Common- M. C. 94, overruling Rex v. Mason, wealth V. Shattuck, 4 Cush. 141, 2 T. R. 581. Regina v. Aspinall, 143. Commonwealth v. Reynolds, L. R. 2 Q. B. D. 48, 57, 58. Re- 14 Gray, 87. gina v. Bradlaugh, 38 L. T. IST. S. 2 The pendency of one indict- 118. Regina u. Oliver, 13 Cox C. C. ment is no ground for a plea in 588. Regina v. Knight, 14 Cox C. abatement to another indictment in C. 31. Regina v. Kelleher, 14 Cox the same court for the same cause. C. C. 48. Reporter's note to Re- Commonwealth V. Drew, 3 Cush. gina v. Webb, 1 Denison C. C. 279. A fortiori, it is not ground 348. Lord Delamere v. The Queen, for arresting judgment. Common- L. R. 2 H. L. 419. 1 Wms. Saund. wealth V. Murphy, 11 Cush. 472. 227, 228, 6th ed. 1 Wms. Notes ' Heymann v. The Queen, L. R. to Saund. 261. Smith v. Cleveland, 8 Q. B. 102; 12 Cox C. C. 883. 6 Met. 332, 334. 98 CRIMINAL LAW. is not a mere defective statement, there is an absolute and total omission. Such an omission has not been cured, and cannot be by verdict." ^ " It is a well-settled rule of law," said Shaw, C. J., " that the statute respecting amendments does not extend to indict- ments, that a defective indictment cannot be aided by a ver- dict, and that an indictment, bad on demurrer, must be held insufficient on a motion in arrest of judgment." ^ "A ver- dict cannot cure an insufficient indictment," said Mr. Justice Wilde .3 Any defect in the record affecting the jurisdiction is open to the defendant on motion in arrest of judgment.* But the objection may also be taken under the general issue, and this is by far the most usual course. Finally, it is to be observed, that in criminal cases it is never too late to revise what has been done ; and if, at any time, it appears that a prisoner is entitled to an advantage, though the objection is made out of time, the court will always anxiously endeavor to give him the benefit of it, and find out some way in which he may avail himself of it.® 1 Regina ». Bradlaugh, 38 L. T. * Commonwealth u. Galligan, 113 N. S. 125. Mass. 203. St. 1864, ch. 250, . ^ Commonwealth v. Child, 13 §§ 2, 3. Irregularities in sending Pick. 200. up papers do not ailect the juris- * Commonwealth v. Collins, 2 diction. Commonwealth v. Intoxi- Cush. 557. Note to Regina v. eating Liquors, 97 Mass. 600. Waverton, 2 Lead. Crim. Cas. 162. ^ Rex v. Tilley, 2 Leach C. C. 1 Russell on Crimes, 676 note, 670, per Buller, J. 4th ed.; 651, 5th ed. THE WAERANT. 99 CHAPTER III. THE WAKEANT. The form and requisites of the warrant, and the manner of issuing it, are the next subject of consideration. In order of time, it immediatelj^ follows the drawing up and receiv- ing of the complaint. At common law, whenever an au- thority is granted to hear or determine offences, a power to issue compulsory process is incidentally given. For there can be no inquiry respecting offences without the presence of the accused ; and wherever the power is intrusted of examining into or determining the former, there must also be authority to compel the latter.^ The Gen. Sts. ch. 170, provide for the arrest of persons charged with crime : — Sect. 9. For the apprehension of persons charged with offences, the justices of the Supreme Judicial Court, the Superior Court, or of any police court, in vacation as well as in term time, and all trial justices, are authorized to issue process, to carry into effect the following provisions of this chapter. Sect. 10. Upon complaint made to any such magistrate, that a criminal offence has been committed, he shall examine on oath the complainant and any witnesses produced by him, shall reduce the complaint to writing, and cause the same to be subscribed by the complainant, and, if it appears that such offence has been committed, the court or justice shall issue a warrant, reciting the substance of the accusation^ and re- ^ 12 Rep. 131. Heard v. Pierce, can be more clear than the duty of 8 Gush. -344. Miller v. Knox, 4 the Commonwealth to prove the Bing. N. C. 574, 583. 1 Deacon identity of the offence charged in a Crim. Law, 45. complaint, with that on which it ^ The party is to be tried and seeks to convict the party charged convicted of the same offence in the before a jury. A contrary practice courts below and above. Nothing would be in direct contravention of 100 CRIMINAL LAW. quiring the officer to whom it is directed^ forthwith to take the person accused and bring him before said court or jus- tice, or some other court or magistrate of the county, to be dealt with according to law, and in the same warrant may- require the officer to summon such witnesses as shall be therein named, to appear andVgive evidence on the exam- ination. Sect. 11. If a person against whom a warrant is issued under the provisions of chapter seventy-two,^ or for any alleged offence, before or after the issuing of such warrant escapes from or is out of the county, the officer to whom such warrant is directed may pursue and apprehend the party charged in any county of this State, and for that purpose may command aid and exercise the same authority as in his own county. The Gen. Sts. ch. 18, enact : — Sect. 69. If a person against whom a warrant is issued for an alleged offence committed within any town, before or after the issuing of the warrant escapes from or is out of the town, any constable of such town to whom the warrant is directed may pursue and apprehend him in any place in the Common- wealth. The practice of .going before a magistrate, by persons who have been guilty of breaches of the peace, confessing them- selves guilty, and paying a small and inadequate fine, has been the subject of complaint and reprehension both in this coun- try and in England. The object of such persons is to pre- vent or bar a process from another magistrate, founded upon the complaint of the injured party. The mischief and abuse this provision of the statute; "if it under our criminal law, where the appears that sucli ofEence has been case is left in obscurity and doubt." committed, the court or justice Whiteside, C. J., in Eegina u. Bell, shall issue a warrant, reciting the Irish Rep. 8 C. L. 546. Common- substance of the accusation." Com- wealth v. Lavery, 101 Mass. 209. monwealth v. Blood, 4 Gray, 31, 32. i A magistrate has no authority Commonwealth v. Hogan, 11 Gray, to direct his warrant to a private 315. Commonwealth v. Burke, 14 person. Commonwealth v. Foster, Gray, 81. Commonwealth v. Car- 1 Mass. 488. roll, 15 Gray, 412. "Precision is ^ Relating to " The Maintenance essential in proving the very crime of Bastard Children." imputed. Nobody can be convicted THE WAHBANT. 101 is the same where a colorable prosecution is instituted by a friend of the offender.^ Attempts of this kind are usually abortive ; for, in general, the proceedings in consequence of them are of no validity, — as no sentence or order of a mag- istrate is of any validity or authority, unless they are made and obtained bonS, fide. Whenever, therefore, applications of this nature are made to a justice, he ought generally to decline acting upon them at all ; but never in the absence of, or without notice to, the party injured. A sentence thus obtained is no bar to another prosecution for the same cause of complaint : ^ the general effect of proceedings of this kind is nothing more than to show the consciousness of guilt on the part of the offender, and the want of judgment, and sometimes of integrity, on the part of the magistrate. And when the case is, as it has been known to be, that there is an understanding, or rather a combination, between the party and the magistrate to prevent, in this way, the due course of justice, they are both of them liable to a public prosecution and exemplary punishment. With respect to the form and requisites of the warrant, the first inquiry is, to whom it shall or may be directed. The invariable practice in this Commonwealth is to direct it to the sheriff of the county, his deputies, and to either of the constables and police-officers of any city or town in the county within which it is to be executed. By various statutes these officers are directed and empowered to serve and execute all lawful processes legally directed to them.^ Care must be taken that the warrant is directed to the proper officer, be- cause it cannot lawfully be executed by any other person.* ^ Commonwealth v. Dascom, 111 court or trial justice has jurisdic- Mass. 404. tion." ^ Commonwealth v. Dascom, 111 * In Freegard v. Barnes, 7 Exch. Mass. 404. Commonwealth v. Al- 827, A. B. obtained a warrant from derman, 4 Mass. 477. a magistrate for the apprehension ^ St. 1876, ch. 94, enacts that of C. D. upon a criminal charge, ' ' Warrants and other criminal pro- which, on the hearing, was dismissed. cesses issued by any district or This warrant was directed " to the police court, or hy a trial justice, constable of D.," a parish in the may be directed to and served by county of AV. A. B. delivered the any constable of any city or town warrant to a county constable of W., within the county in which such and directed him to serve it, which 102 CRIMINAL LAW. One vital, essential part of a warrant is the name of the person to be arrested. It is a principle of the common law, as well as of constitutional law,^ that a general warrant to apprehend all persons suspected, without naming them, is alto- gether void ; and any person seized may defend himself in person against being taken, or, if taken, may bring an action for false imprisonment.^ There is no statute which author- izes this mode of arresting suspected persons without naming them. It is true that the want of such a power is very much obviated by the practice in modern statutes defining offences, and authorizing constables, and sometimes owners of lands, and a few persons connected with the subject-matter, to arrest parties found committing the offence, without any warrant at all. Such is the course under the statutes relating to vagrants, pickpockets, cruelty to animals, gaming, exhibitions of fight- ing birds and animals, malicious mischief to property on the Lord's day, and some other offences.^ But though a warrant to arrest for crime is void without naming the party to be arrested, it is not absolutely neces- sary to describe him by name ; if the name is entirely un- known and unascertainable, then no name need be specified, if the next best means of identification are given.* To omit he did. Held, that the warrant ders, L. K. 1 C. C. 75; 36 L. J. could not be executed by any other M. C. 87; 10 Cox C. C. 445. constable than by a constable of the ^ Declaration of Rights, Art. parish of D., and consequently that XIV. Fisher v. McGirr, 1 Gray, 1. the execution of it by the county Robinson v. Richardson, 13 Gray, constable was illegal, and that tres- 454. pass lay against A. B. A warrant ^ i jj^le P. C. 577. 2 Hale P. addressed " to the constable of " A. C. 112. Entick «. Carrington, 19 can only be executed by the parish Howell State Trials, 1030. Corn- constable, and not by a county monwealth v. Crotty, 10 Allen, police constable stationed at A. 404. Kelly, C. K. : " If the warrant had = See also St. 1878, ch. 181, enti- been specially directed to the police tied " An Act relating to arrests in constable, or generally to all other certain cases." constables and peace-officers of the * A warrant to arrest "John division, the arrest would have been Doe or Richard Roe, whose other lawful; but as it was directed to or true name is unknown," without the 'constable of Gainsborough,' any further description or means of that is,, the parish constable only, identification of the person to be it could not lawfully be executed by arrested, is void. Commonwealth v. any other person." Regina v. San- Crotty, 10 Allen, 403. THE WARRANT. 103 the christian name, without giving any reason for the omis- sion, is the same thing as to omit the name altogether ; and, unless some distinguishing particulars are given, the warrant is void.^ And it will not cure the warrant to fill in the name of the person after the arrest.^ And if the warrant describe the person intended as John Hoye, his real name being Rich- ard Hoye, the arrest is illegal, although the true offender is in fact arrested.^ This rule or principle does not prevent the issue and service of a warrant a'gainst a party whose name is unknown. In such case, the best description pos- sible of the person to be arrested is given in the warrant ; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circum- stances by which he can be identified.* A magistrate should not seal or issue any warrant in which a blank remains to be filled up ; for if the process be defec- tive in the frame of it, — e.g. if there is a mistake in the name or addition of the person on whom it is ordered to be exe- cuted, or if the name of such person, or of the officer in- tended to execute it, is inserted or interlined or altered, without authority, after the sealing or issuing the process, or if the officer exceeds the limits of his authority, — the killing him by the person whose liberty is thus invaded will amount to no more than manslaughter.^ The warrant may be general, to bring the party before any magistrate in the county ; or special, to bring him be- 1 Rex V. Hood, 1 Moody C. C. ^ Dickenson Quarter Sessions, 281. In this case, the prosecutor 142, 143, 6th ed. lu Housin o. Bar- not knowing the christian name of row, 6 T. R. 122, a.d. 1794, Lord the defendant, the warrant directed Kenyou said he remembered a case the constable " to take the body of of a serious nature arising from Hood (leaving a blank for the altering a warrant. A gentleman, christian name), of &c , by whatso- having obtained a warrant directed ever name he may be called or to a sheriff to arrest his debtor, known, the son of Samuel Hood." struck out the officer's name and in- 2 2 Hale P. C. 114. serted his own in its stead. He was 8 Hoye V. Bush, 2 Scott N. R. afterwards shot by the defendant 86 ; 1 M. & G. 775. in arresting him, and the offence * Commonwealth v. Crotty, 10 was held to be at most only man- Allen, 403. slaughter, the arrest being illegal. 104 CRIMINAL LAW. fore the magistrate only who granted it.^ If it be general, the election of the magistrate before whom the party is to be taken lies in the officer, and not in the prisoner.^ If the warrant be special, and returnable only before the magistrate who granted it, the officer is bound to carry the prisoner before him. In some cases the warrant must be special and returnable before the magistrate who issues it, if there is no authority in the statute for returning it before another mag- istrate.^ The Gen. Sts. ch. 170, § 16, enacts : " Every person arrested by warrant for any offence, where no other provision is made for his examination thereon, shall be brought before the magis- trate who issued the warrant, or, if he is absent or unable to attend, before some other magistrate of the same couijty ; and the warrant, with a proper return thereon signed by the person who made the arrest, shall be delivered to the mag- istrate." This section of the statute was not intended to abrogate or change the practice as above stated. It was probably introduced with a view to provide for cases, if any such there might be, in reference to which no other mode of proceeding was elsewhere prescribed.* A warrant should state the specific offence with which the party is charged, and that complaint thereof was duly made on oath before the magistrate. The warrant should not be generally to answer such matters as shall be objected against the party to be apprehended. Such a warrant merely pro- fesses to bring him up on speculation, to hear what the com- plainant has to say.^ 1 Commonwealth v. Wilcox, 1 = i ci^it. Crim. Law, 39. 2 Cush. 503. Gen. Sts. ch. 170, § 10. Deacon Grim. Law, 1368. The St. 1877, ch. 211, § 4, enacts » pisher v. Shattuck, 17 Pick. that "All warrants in criminal 252. McCall v. Parker, 13 Met. cases issued by any person author- 372. These were cases arising un- ized to issue warrants under the der the statute relating to the main- provisions of this act, shall be made tenance of bastard children. But returnable before some trial justice, the warrant may now be general, police, district, or municipal court Gen. Sts. ch. 72, § 1. having jurisdiction of the exaraina- * Commonwealth v. Wilcox, 1 tion of the person charged with the Cush. 505. offence." * Caudle v. Seymour, 1 Q. B. 8S9; 1 G. &D. 454. THE WARRANT. 105 It has been the common practice in this Commonwealth for magistrates to draw the complaint and warrant upon the same sheet of paper; and, instead of setting forth in the warrant the cause upon which it is granted, to refer to the complaint which is annexed, and in this way make a part of the warrant. There seem to be many objections to this practice. It is presumed to be unknown at common law, but it is sanctioned by express decision. ^ The complaint is a distinct and important part of the process. It contains the accusation upon which the party is to be arrested. It is to become a matter of record, and therefore ought never to be out of the office, keeping or power of the magistrate. In cases within the jurisdiction of the magistrate, it may be the subject of a plea to his jurisdiction, plea in abatement, de- murrer, and of a motion in arrest of judgment, both before the magistrate, and, in cases of appeal, in the Superior Court. For these reasons, it is manifestly improper that it should be delivered to the officer, with the warrant, to be by him car- ried wherever it may be necessary for him to go to execute the warrant, and thus be exposed to loss, injury or mutila- tion. The practice in this case ought to be similar to that of filing the indictment, and issuing the capias or warrant thereon, in the higher courts. The reason for it is precisely the same. In those courts,' the indictment, when returned into court by the grand jury, is filed of record, and a warrant against the party accused is ordered to issue, in which an abstract of the charge in the indictment is inserted, stating in general terms the crime alleged. It would be dangerous and absurd in the highest degree to depart from this prac- tice in the courts having jurisdiction of crimes to be prose- cuted by indictment. Yet the complaint and warrant in the inferior court are of the same nature (and the practice concerning them ought therefore to be grounded upon the same reasons) as the indictment and capias in the Superior Court. ^ Donahoe v.. Shed, 8 Met. 326. proceeding had been uniform for In the case of Commonwealth v. more than fifty years, in search- Dana, 2 Met. 336, a.d. 1811, warrants for stolen goods. Wilde, J., said that this form of 106 • CRIMINAL LAW. A sufficient abstract of the complaint must be inserted in the warrant, so as to show a legal cause for issuing it. The statute directs that " the substance of the accusation " shall be recited in the warrant.^ Although this, upon a strict and literal construction, would require the insertion of the sub- stance of the complaint in the body of the warrant, still it is a rule, almost if not quite universal, that where a paper is annexed, and definitely referred to, it is to be treated as recited in and a part of the process or instrument in which it is recited.2 It has been decided that a warrant which was issued on the same sheet of paper with the complaint, com- manding the officer to arrest the party " mentioned in the above complaint," and bring him, &c., to answer " to the same," is in due legal form.^ It is settled law that a seal is necessary to a warrant in a criminal case. A failure in this requisite makes the warrant void. The cases deciding that a warrant may be valid with- out a seal do not appear to have been those authorizing an arrest or imprisonment of the person. The cases are recon- cilable by observing this distinction.* The warrant ought to set forth the year and day wherein it was granted ; that in an action brought upon an arrest 1 Gen. Sts. ch. 170, § 10. 436. People v. Holcomb, 3 Parker 2 Commonwealth v. Dean, 9 C. C. 657. Beekman v. Traver, 20 Gray, 283. Wend. 68. State v. Weed, 1 Post. s Donahoe v. Shed, 8 Met. 326. 268. 1 Lead. Grim. Gas. 223, Commonwealth v. Dana, 2 Met. where many of the cases are col- 329. lected. 2 Wms. Saund. 305 b. 2 * 3 Inst. 76. 2 Inst. 52. 1 Hale Wms. Notes to Saund. 703. " And P. C. 577. 2 Hale P. G. 111. 2 so are the precedents." In the Hawk. P. G. ch. 13, § 21, p. 134 forms of the warrants in the Ap- ed. Garwood. Dalton Justice, p. pendis to the Fifth Report of the 402, ed. 1742. Com. Dig. Impris- English Grim. Law Commissioners, onment, H. 7. 4 Bl. Coram. 290. the words "hand and seal" are Jacob Law Dictionary, tit. War- uniformly inserted in the jurats, rant. 2 Gabbett Crim. Law, 128. What is a seal is a question of law 2 Deacon Crim. Law, 1368. Dick- for the court. State v. Worley, 11 enson Quarter Sessions, 143 note, Ired. 212. A wafer is a sufficient 6th ed. Welch v. Scott, 5 Ired. seal. State v. Coyle, 33 Maine, 72, 75. State v. Worley, 11 Ired. 427. A seal may be dispensed 242. State v. Drake, 36 Maine, with by statute. Padfield ». Cabell, 366. State v. Curtis, 1 Haywood, Willes, 411. 471. Lough V. Willard, 2 R. I. THE WAREANT. 107 made by virtue of it, it may appear to be prior to such arrest.-'^ But if there is a mistake made in the date of the. warrant, and it appears to be a mere clerical error, such error will not vitiate the subsequent proceedings.^ It is safe, but perhaps not necessary, in the body of the warrant to show the place where it was made ; yet it seems necessary to set forth the county in the margin at least, if it be not set forth in the body of the warrant.^ It must contain a command to the offi- cer to make a return of the same, and of his doings ; but, if it contain no such command, the omission will not excuse the officer for not making a; return. " This principle," said Metcalf, J., " is essential to the safety of the citizen, and to prevent the processes of the law and the action of its officers from being employed for purposes of oppression." * If the warrant contains no command to the officer to return it, and it is properly executed and duly returned, the deficiency of a formal command to the officer to do that which he actu- ally did, affords no reason why the defendant should be ab- solved from answering to the charge made against him.^ It must be made in the name of the Commonwealth, as appears from the precedents in the Second Part of this volume. Tlie warrant of a magistrate is not returnable at any par- ticular time ; and it continues in force until it is fully executed and obeyed. It need not state the time when the party is to be brought befpre the magistrate for examination. This is never done in any warrant whatever, nor is it possible to do it without manifest injury to the party ; for, if a distant or any period should be limited, he must remain in custody during all the time between the issuing of the warrant and the day limited for its return ; whereas he is entitled to be discharged the first day, if it should appear that he is innocent. The law has fixed a time ; for by statute the officer is required to carry the party accused forthwith be- fore the magistrate ; and if he delay so to do, it is contrary 1 2 Hawk. P. C. ch^ 13, § 22. s 2 Hawk. P. C. ch. 13, § 23. = Donahoe v. Shed, 8 Met. 326. * Tubbs d. Tukey, 3 Cush. 438. Commonwealth v. Dean, 9 Gray, Brook v. Stimson, 108 Mass. 520. 285. Commonwealth v. Martin, 98 ^ Commonwealth v. Boon, 2 Mass. 4. Gray, 74. 108 CRIMINAL LAW. to the duties of his office.^ In Massachusetts, the practice is invariable to make the warrant returnable "forthwith." If there is any irregularity in the warrant, the defendant should object to it before pleading to the complaint. A mo- tion to dismiss any action for want of due service must be made before a general appearance in the action. This applies as strongly in criminal as in civil cases. If the party appears, and pleads to the complaint, he is fully before the court, pro- vided the court has jurisdiction, and the proceedings are other- wise regular. All objections to the form or service of the warrant are thereby waived.^ If an objection to the warrant is taken in the lower court, it must be renewed in the ap- pellate.^ There is a grand distinction between the warrants of mag- istrates and others who act by special statutory authority, and out of the course of the common law, and such warrants as are to be regarded as the mandate of a superior court act- ing according to the course of the common law. In the case of special authorities given by statute to justices or others acting out of the ordinary course of the common law, the instruments by which they act, whether warrants to arrest, commitments, orders, recognizances, or convictions, ought to show their authority, on the face of them, by direct averment or reasonable intendment.* Not so the process of superior courts acting by the authority of the common law. The rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a superior court but that which spe- cially appears to be so, and nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.^ 1 Gen. Sts. ch. 170, § 10. Ante, s Commonwealth v. Dean, 9 p. 99. Regina v. Derby, Fortescue, Gray, 283. 143. 1 Chit. Crira. Law, 39, 40. ^ And whether the order be made 2 Commonwealth v. Henry, 7 by the Lord Chancellor, under the Cush. 512. Commonwealth u. Greg- special act, or by a justice of the ory, 7 Gray, 498. Commonwealth peace, the facts which gave the au- V. Harvey, 111 Mass. 420. Bas- thority must be stated. Christie sett I). Howorth, 104 Mass. 224. v. Unwin, 11 A. & E. 879, per Col- Commonwealth V. Hart, 123 Mass. eridge, J. 416. 6 Judgment of Parke, B., in THE WARRANT. 109 It has been doubted whether, after magistrates have once issued a warrant to arrest, they can withdraw it, and so can- cel the authority given to arrest. It would be singular if, on discovering some mistake, they could not, like the rest of mankind, rectify such mistake, and lessen the injury which may result from the warrant being executed. Nor is it easy to see how any abuse could arise from their doing so, since all kinds of misconduct, including that of cancelling a war- rant for some corrupt cause, may be corrected by criminal information, should the circumstances of any particular case show a bad motive.^ Howard v. Gossett, 10 Q. B. 452. ^ Barons v. Luscombe, 3 A. & E. 1 Kussell on Crimes, 739, 5th ed. 589; 5 N. & M. 330. 2 Paterson Commonwealth v. Sholes, 13 Allen, Comm. 155. 396, 397. 110 CRIMINAL LAW. CHAPTER IV. SE AECH-W ABK AKTS. The grantiag of search-warrants is a part of the duty of a magistrate, which requires particular consideration. On the one hand, the discovery of stolen goods is frequently the effect of these warrants ; on the other, the power of grant- ing them may be easily abused, and great injuries to innocent persons, both as to their reputation and property, thereby occasioned.^ Ancient writers upon the criminal law differed as to their original legality. Lord Coke said they were con- trary to law; ^ and Lord Camden said they had crept into 1 A -warrant of this description is a judicial act, and ought not to be granted without due examination of the fact. 2 Deacon 'Crim. Law, 1165. 2 4 Inst. 176. Thepractice of issu- ing a general warrant to seize the pa- pers of. a suspected person appears to have been frequently resorted to in former times, with great abuse, of which the case of Lord Coke him- self furnishes an instance, whose papers were seized and carried to the secretary's office, with some valuable securities, which were never returned to him. Insignifi- cant, however, is a loss of such a nature when compared with the more serious evils incident to such a procedure, the grievous invasion of domestic peace and security, and the facility with which a person might be made responsible for the contents of writings never in his possession, or deprived of those necessary for the purpose of his defence. Folkard on Slander and Libel, 734, 4th Eng. ed. When Lord Halifax, the Secre- tary of State in 1763, was anxious to discover the author of a seditious libel in " The North Briton," No. 45, he issued a general warrant to his mes- sengers to search for the offender. No individual being /named in the warrant, forty-nine persons were arrested, and among others Dryden Leach, printer, was taken from his bed at night, his papers seized, and his journeymen and servants also apprehended. Wilkes, having also afterwards been arrested on the same ground, observing that his name was not mentioned in the warrant, said it was " a ridiculous warrant against the whole English nation, " and refused to obey it. He was accordingly ai-rested and com- mitted to the Tower, while his papers were ransacked. The print- ers and Wilkes then brought actions for damages. Leach obtained £400 SEARCH-WARRANTS. Ill the law by imperceptible practice ; but Lord Hale, it is said, has clearly established their legality, upon the ground that, without them, felons would frequently escape detection.^ Whatever doubts may formerly have existed as to their legal- ity, they have long been sanctioned as a necessary and useful power, to be exercised under the authority of magistrates having jurisdiction in the matter of arrests in criminal cases. The authority for issuing such warrants is found not only in judicial decisions, but to this is added the authority derived from direct legislative enactment.^ The principles upon which the legality of such warrants could be defended, and the use and purpose to which, by the common law, they were restricted, were well known to the framers of our Constitu- tions. The fourth article of the Amendments of the Constitution of the United States provides that " The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be vio- lated." The fourteenth article of the Bill of Rights in our own Constitution uses nearly the same language, and is of the same import. " Every "subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers and his possessions ; " and that " no war- rant ought to be issued but in cases, and with the formalities prescribed by the laws ; " that is, the common law, in cases within that law, and the statute law, in other cases.^ " Per- sonal rights," said Morton, J.,* "are deemed sacred and inviolable ; and these provisions are intended to shield them from the effects of arbitrary power, and to secure to them the protection of equal and uniform laws. They spread their damages against the messengers. ^ 2 Hale P. C. 113. 1 Chit. Wilkes recovered £1,000 against Crim. Law, 64. Wood, the Under-Secretary, and ^ Stone v. Dana, 5 Met. 101. £4,000 against Lord Halifax. Leach Robinson v. Richardson, 13 Gray, V. Money, 19 Howell State Trials, 456, 4:37. Gen. Sts. ch. 170. 1001; 3 Burr. 1692, 1742; 1 W. Bl. » Fisher v. McGirr, 1 Gray, 29. 555; S. C. Broom Const. Law, 525. Copimonwealth v. Lottery Tickets, Wilkes V. Wood, 19 Howell State 5 Cush. 370. Trials, 1153; Lofft, 1 ; S. C. Broom * Banks v. Farwell, 21 Pick. 158. Const. Law, 548. Stone v. Dana, 5 Met. 109. 112 CRIMINAL LAW. segis over all ; but it is for a shield against oppression, and not an exemption from the just operation of criminal laws. The protection is not against arrests for crime, nor does the security cover stolen property. It only guards against ' unrea- sonable searches and seizures.' What is meant by ' unrea- sonable searches and seizures ' is clearly explained by the subsequent words in both Constitutions. A warrant founded upon oath, duly describing the person to be arrested, the place to be searched or the property to be seized, and issued with the formalities and in cases prescribed by law, is in exact conformity with both constitutional provisions. And any seizure of person or property made in pursuance of such warrant would manifestly be legal and valid." Search-warrants were never recognized by the common law as processes which might be availed of by individuals in the course of civil proceedings, or for the maintenance of any mere private right ; but their use was confined to cases of public prosecutions, instituted and pursued for the suppression of crime or the detection and punishment of criminals.^ The Gen. Sts. ch. 170, enact : — Sect. 1. When complaint is made on oath to any mag- istrate authorized to issue warrants in criminal cases, that personal property has been stolen, embezzled, or obtained by false tokens or pretences, and that the complainant believes that it is concealed in any particular house or place, the mag- istrate, if he is satisfied that there is reasonable cause for such belief, shall issue a warrant to search for such property. Sect. 2. Any such magistrate may also, upon like com- plaint, made on oath, issue search-warrants when satisfied that there is reasonable cause, in the following cases, to wit : — First. To search for and seize counterfeit or spurious coin, forged bank-notes, and other forged instruments, or tools, machines, or materials prepared or provided for making either of them : Second. To search for and seize books, pamphlets, ballads, printed papers, or other things, containing obscene language, or obscene prints, pictures, figures, or descriptions, manifestly 1 Robinson v. Richardson, 13 Gray, 454. SEAECH-WAKEANTS. 113 tending to corrupt the morals of youth, and intended to be sold, loaned, circulated, or distributed, or to be introduced into any family, school, or place of education : ^ Third. To search for and seize lottery tickets or materials for a lottery ,2 unlawfully made, provided, or procured, for the purpose of drawing a lottery : * Fourth. To search for and seize gaming apparatus or im- plements used,* or kept and provided to be used, in unlawful gaming, in any gaming-house, or in any building, apartment, or place resorted to for the purpose of unlawful gaming. By St. 1869, ch. 364, § 2, " The second section of the one hundred and seventieth chapter of the General Statutes is hereby so far amended that all provisions relating to the search for and seizure of gaming apparatus or implements used, or kept and provided to be used, in unlawful gaming, in any gaming-house, or in any building, apartment or place resorted to for the purpose of unlawful gaming, shall also apply to the search for and seizure of all the furniture, fix- tures and personal property found in such gaming-house, building, apartment or place at the time when any persons are there found playing at any unlawful game." The St. 1865, ch. 127, § 2, enacts : " When complaint is made to any magistrate, authorized to issue warrants in crim- inal cases, that personal property, hired, leased, or held as collateral security, has been fraudulently concealed, and that the complainant believes it is concealed in any particular house or place, the magistrate, if he is satisfied that there is 1 This section is so far amended " materials for a lottery," and may that all the provisions apply to the be seized on a search-warrant, search for and seizure of the type, Commonwealth v. Dana, 2 Met. forms, press, wood-cuts, and all 329. the material and the mechanical " This clause is not inconsistent apparatus used for the business of with the fourteenth article of the printing obscene books, &c. St. Declaration of Eights. Common- 1862, ch. 168, § 4. This statute wealth v. Dana, 2 Met. 329. contains other provisions relating ■* Game-cocks are not imple- to the seizure of books, prints, &c., ments of gaming, and cannot be of this class, and of the subsequent lawfully seized on a warrant com- proceedings. manding the seizure of such imple- ^ Books kept in relation to the ments. Coolidge v. Choate, 11 proceedings respecting a lottery are Met. 79. 8 114 CRIMINAL LAW. reasonable cause for such belief, shall issue a warrant to search for such property." St. 1869, ch. 344, entitled " An Act for the more effect- ual prevention of cruelty to animals," enacts : — Sect. 5. When complaint is made on oath or affirma- tion to any magistrate authorized to issue warrants in crim- inal cases, that the complainant believes and has reasonable cause to believe that the laws in relation to cruelty to animals have been or are being violated in any particular building or place, such magistrate, if satisfied that there is reasonable cause for such belief, shall issue a search-warrant authorizing any sheriff, deputy sheriff, deputy state constable, constable or police officer to search such building or place ; but no such search shall be made after sunset unless specially authorized by the magistrate, upon satisfactory cause shown. Sect. 6. In this act the word " animal " or " animals " shall be held to include all brute creatures ; and the words " owner," " person," and " whoever," shall be held to include corporations as well as individuals, and the knowledge and acts of agents of and persons employed by corporations in regard to animals transported, owned or employed by or in custody of such corporations, shall be held to be the acts and knowledge of such corporations. An act of Congress enacts that, " If any collector, naval officer, surveyor, or other person specially appointed by- either of them, or inspector, shall have cause to suspect a conceal- ment of any merchandise in any particular dwelling-house, store-building, or other place, they, or either of them, upon proper application on oath to any justice of the peace, shall be entitled to a warrant to enter such house, store, or other place, in the daytime only, and there to search for such mer- chandise ; and if any shall be found, to seize and secure the same for trial ; and all such merchandise, on which the duties shall not have been paid, or secured to be paid, shall be for- feited." 1 It is competent for the Legislature to declare the possession of certain articles of property, either absolutely, or when held 1 U. S. Rev. Sts. ch. 10, § 3066, p. 592. SEARCH-WAEEANTS. 115 in particular places and under particular circumstances, to be unlawful, because they would be injurious, dangerous, or noxious ; and by due process of law, by proceedings in rem, to provide both for the abatement of the nuisance and the punishment of the offender, by the seizure and confiscation of the property, by the removal, sale, or destruction ,of the noxious articles.^ There are various instances of the applica- tion of law to proceedings in rem. The illegal keeping of gunpowder, gun-cotton, or other substances prepared like it for explosion ; ^ petroleum, earth rock oil, or any of their products ; * corrupted food ; * intoxicating liquors ; ° birds, dogs, or other animals, kept, trained, or intended for fighting,^ are of this class. The theory of this branch of the law seems to be this: That the property of which injurious or dangerous use is made shall be seized and confiscated, because either it is so unlawfully used by the owner or person having the power of disposal, or by some person with whom he has placed and intrusted it, or at least, that he has so carelessly and negligently used his power and control over it, that by his default, it has fallen into the hands of those who have made, and intend to make, the injurious or dangerous use of it, of which the public have a right to complain, and from which they have a right to be relieved. Therefore, as well to abate the nuisance, as to punish the offending or careless owner, the property may be justly declared forfeited, and either sold for the public benefit or destroyed, as the circumstances of the case may require, and the wisdom of the Legislature direct. Besides, the actual seizure of the property, intended to be offensively used, may be effected, when it would not be prac- ticable to detect and punish the offender personally.^ The usual and legal form, at common law, of complaints on which warrants are issued to search for stolen goods is, that the complainant " has reasonable cause to suspect and does suspect," &c. Under the Gen. Sts. ch. 170, the complainant 1 Fisher !). McGirr, 1 Gray, 1, 28. « St. 1876, ch. 85. 2 Gen. Sts. ch. 88, § 49. ' Fisher v. McGirr, 1 Gray, 27, 3 St. 1869, ch. 152. 28. Commonwealth v. Intoxicating « St. 1876, ch. 180. Liquors, 107 Mass. 396, 400. « St. 1876, ch. 162. St. 1869, ch. 415, § 44. 116 CRIMINAL LAW. should make oath to his belief. The oath to the complain- ant's belief, and not to his suspicion, is one of " the formali- ties prescribed by the laws," without which " no warrant ought to be issued." The warrant is issued on no other terms. The words " suspect " and " believe " are not tech- nical words, and have not, by the approved usage of lan- guage, the same meaning. Suspecting is not believing. That may be a ground for suspicion which will not induce belief.^ It has been decided that lottery tickets cannot be lawfully seized on a search-warrant, except on a warrant issued upon a complaint in which the complainant makes oath that he believes that they are concealed in some particular place specified.^ By the Gen. Sts. ch. 170, § 3, it is enacted that "All search- warrants shall be directed to the sheriff of the county or his deputy, or to any of the constables of a city or town, com- manding such officer to search, in the daytime, the house or place where the stolen property or other things for which he is required to search are believed to be concealed (which place and property, or things to be searched for, shall be designated and described in the warrant), and to bring such stolen prop- erty, or other things, when found, and the persons in whose possession they are found, before the magistrate who issued the warrant, or some other magistrate or court having cog- nizance of the case." This section has not made such change in the law as to render necessary any alteration in the form of search-warrants. It is still proper to insert the name of the person in whose building, . Charlesworth, 1 B. Pick. 295, per Shaw, C. J. Regina & S. 460; 31 L. J. M. C. 2S. V. Faderman, 1 Denison C. C. 569, « Arohb. Crim. PI. 128, 139, per Lord Campbell, C. J. 18th ed. * Commonwealth v. Merrill, 8 ^ Commonwealth v. Alderman, Allen, 545. Commonwealth v. 4 Mass. 477. Commonwealth i). Lannan, 18 Allen, 563. Common- Dascomb, 111 Mass. 404. ■wealth V. Chesley, 107 Mass. 223. THE EXAMINATION AND TRIAL. 173 an offence of which that court has no jurisdiction, is no bar to an indictment against him for the same offence in a State court.i But it has been held, that a prior conviction and judg- ment before a justice of the peace, and a performance of the sentence pursuant to the judgment, constitute a bar to an in- dictment for the same offence, although the complaint, on which the justice proceeded, was so defective that his judg- ment might have been reversed for error.^ In Massachusetts, after a special plea in bar has been ad- judged bad, the defendant may plead over. And in this I'espect no distinction is recognized between indictments for felonies and indictments for misdemeanors.^ Where the jurisdiction of a magistrate, for the trial and punishment of an offence, depends upon its not being of a high and aggravated nature, or upon its not being a high crime or misdemeanor, without any definite provision by law as to what shall constitute such high and aggravated nature, or such high crime or misdemeanor, the assuming such juris- diction is not conclusive of the offence not being of a high and aggravated nature, or a high crime or misdemeanor.* By the Gen. Sts. ch. 120, § 38, trial justices have jurisdic- tion for the trial and punishment of all assaults and batteries, and other breaches of the peace, when the offence is not of a high and aggravated nature. So by the forty-fifth section of the same chapter it is directly implied that trial justices have not such jurisdiction of a high crime or misdemeanor. Accordingly, a conviction or acquittal of a crime of an aggravated nature, or a high crime or misdemeanor, on a trial before a magistrate not having jurisdiction for the trial and punishment of such a crime, cannot be pleaded in bar of a subsequent prosecution for such crime.^ 1 Commonwealth v. Peters, 12 wealth v. Gelding, 14 Gray, 49; Met. 387. 1 Lead. Crim. Cas. 292, 293. 2 Commonwealth v. Loud, 3 Met. ^ Commonwealth v. Goddard, 13 828. Commonwealth v. Keith, 8 Mass. 456. Commonwealth v. Cun- Met. 531. ningham, 13 Mass. 245. " Commonwealth v. Koby, 12 ^ Report of the Crim. Law Corn- Pick. 510. Commonwealth v. Wade, missioners, tit. Former Conviction 17 Pick. 402. Commonwealth v. or Acquittal, pi. 9, note (/). Goddard, 13 Mass. 455. Common- 174 CRIMINAL LAW. A pardon may be pleaded in bar ; or after verdict, in arrest of judgment ; or after judgment, in bar of execution. But this can only be done after " conviction ; " for by the Constitution of Massachusetts, it is provided that " no char- ter of pardon granted by the Governor, with advice of the council hefore conviction, shall avail the party pleading the same, notwithstanding any particular or general expressions contained therein, descriptive of the offence or offences in- tended to be pardoned." ^ Under this provision, it has been determined that a pardon may be granted of an offence after verdict of guilty and before sentence, and while exceptions are pending in the Supreme Judicial Court for argument; and the convict, upon waiving his exceptions and pleading the pardon, is entitled to be discharged.^ The general issue is not guilty. Upon which the defendant is not merely confined to evidence in negation of the charge, but may offer any. matter in justification or excuse. In short, the general issue goes to say, that the defendant, under the circumstances, has not been guilty of the crime imputed to him. Where a party pleads not guilty to any matter cognizable before a magistrate, no conviction can be had without an adjudication that the party is guilty. His judgment in such case stands for the verdict of a jury.^ In all prosecutions before a police court or trial justice, under the by-laws of a city or town, the city solicitor, or other person appointed by the board of aldermen or select- men of such city or town, may enter a nolle prosequi, or do any other matter or thing which may be done by a district- attorney in criminal prosecutions.* 1 Constitution, ch. 2, § 1, art. 8. ' Commonwealth v. Horton, 9 2 Commonwealth «. Lookwood, Pick. 207. 109 Mass. 323. ^ Gen. Sts. ch. 172, § 20. Cou- pal V. Ward, 106 Mass. 289. THE COMPETENCY OP WITNESSES. 175 CHAPTER VII. THE COMPETENCY OP "WITNESSES. Whenever there is a plea of not guilty, every substantial affirmative or negative allegation in the complaint or indict- ment, material to the constitution of the offence, must be proved by the government. What evidence is necessary for the purpose in reference to particular offences, will be con- sidered when these offences are severally treated of in the Third Part of this volume. It will now be necessary to ex- amine the law relating to witnesses. The mode of adminis- tering the oath will first be considered. All witnesses ought to be sworn according to the peculiar ceremonies of their own religion, or in such manner as they deem binding on their consciences.^ In order to ascertain what form is so binding, the court should inquire of the wit- ness himself; and the proper time for making this inquiry is before he is sworn.^ The Gen. Sts. ch. 131, § 8, enacts : " The usual mode of administering oaths now practised in this State, with the ceremony of holding up the hand, shall be observed in all cases in which an oath may be administered by law, except as is hereinafter provided." The St. 1873, ch. 212, § 1, enacts : " When a person to be sworn before any court or magistrate shall declare that any peculiar mode of swearing is, in his opinion, more solemn and obligatory 1 This was settled to be the rule man Catholics are directed to be at common law in the great case of sworn upon the Holy Evangelists, Omichuud v. Barker, Willes, 538; on the ground that those who pro- 1 Atk. 21; 1 Wils. 84; 1 Smith fess the Catholic faith generally L. C. 455, 7th Eng. ed. a.d. 1744- regard this as the most solemn form 45. Per Alderson, B., in the of administering the oath. Com- celebrated case of Miller v. Salo- monwealth v. Buzzell, 16 Pick. 753. mons, 7 Exch. at pp. 534, 535, and ^ i Greenl. Ev. § 371. 2 Tay- per Pollock, C. B., at p. 558. Ro- lor Ev. § 1253. . 176 CRIMINAL LAW. than holding up the hand, the oath may be administered in such mode."- By § 2, Gen. Sts. ch. 131, § 9 is repealed. Iri-espective of the relaxation of the law so far as it re- lates to atheists, the Legislature, out of tender regard for the conscientious scruples of certain religious sects,i and of other persons endowed with peculiar moral susceptibilities, has allowed them, in the place of taking an oath, to make a solemn affirmation; but such affirmation has the same effect as an oath, and persons who knowingly affirm what is false are equally guilty of perjury with those who falsely swear.2 The Gen. Sts. ch. 131, enact: — Sect. 10. Every Quaker when called on to take an oath shall be permitted, instead of swearing, solemnly and sin- cerely to affirm, under the pains and penalties of perjury. Sect. 11. Every persop who declares that be has con- scientious scruples against taking any oath, shall, when called upon for that purpose, be permitted to affirm in the manner prescribed for Quakers, if the court or magistrate on inquiry is satisfied of the truth of such declaration. Sect. 12. Every person believing in any other than the Christian religion may be sworn according to the peculiar ceremonies of his religion, if there are any such. Every per- son not a believer in any religion shall be required to testify truly, under the pains and penalties of perjury ; and the evi- dence of such person's disbelief in the existence of God may be received to afPect his credibility as a witness. A witness cannot be examined as to his religious belief, either upon the voir dire or upon cross-examination. This rule of the common law is not changed by this section'of the statute. The purpose and effect of this provision were to render persons who were disbelievers in any religion compe- tent witnesses, and to cause their disbelief to be proved ^ Gentlemen of the Yea and refused to answer until he was put Nay school, who love to interpret upon his oath by the high priest, literally our Saviour's injunction, See and compare 5th ch. of St. " Swear not at all," seem utterly Matt. vv. 34-37, and 26th oh. of to ignore the fact that Christ him- St. Matt. vv. 59-64. 2 Taylor Ev. self not only submitted to be sworn § 1254 note, before the Sanhedrim, but actually 2 2 Taylor Ev. § 1254. THE COMPETENCY OF WITNESSES. 177 only to affect their credibility. The mode of showing the want of religious belief in a witness remains unaltered. ^ Defect of religious faith is never presumed. The burden of proof is on the objecting party to prove the witness's disbelief in the existence of God, which evidence may be received to affect his credibility ; ^ and it is well settled that the avowal of a witness of his religious belief or disbelief may be proved, like any other fact. For this purpose, evi- dence of his declarations, previously made to others, is ad- missible ; but the evidence of such declarations should be received cautiously. Remarks and avowals of belief or dis- belief may be made in the heat of argument, and for the purpose of discussion, which may be no sure indications of the real belief or disbelief of the party.^ In modern practice, the witness himself is never questioned as to his religious belief.* The correct and proper time for asking a witness whether the form in which the oath is about to be administered to him is one that will be binding on his conscience, is before that oath is administered. But although a witness shall have taken the oath in the usual form, without making any objec- tion, he may, nevertheless, be afterwards asked whether he considers the oath he has taken to be binding on his con- science. But if the witness answer in the affirmative, that he does consider the oath which he has taken to be binding upon his conscience, he cannot then be further asked whether there be any other mode of swearing that would be more binding upon his conscience than that which has been used.^ Any objection to competency ought to be taken in the first instance, and before the witness has been examined in chief; for otherwise it would afford an unfair advantage to the other party, who would avail himself of the testimony of the wit- ness, if it were favorable, but would get rid of it by raising the objection, if it turned out to be adverse. There is no disqualification on the ground of relationship, 1 Commonwealth v. Burke, 16 ^ Thurston v. Whitney, 2 Cush. Gray, 33. Commonwealths. Smith, 104,109. 2 Gray, 516. * 1 Greenl. Ev. § 370. 2 Gen. Sts. eh. 131, § 12. ^ gtark. Ev. 116. 1 Greenl. Ev. § 371. 2 Taylor Ev. § 1253. 12 178 CRIMINAL LAW. except that of husband and wife. But other near relation- ship may induce such a suspicion of partiality, as greatly to lessen the weight of the evidence of him who may deliver it. A witness may be competent, who is not credible ; and in such case a magistrate is to judge, like the jury on a trial, how far the witness is to be credited. The nice shades of distinction as to the degree of belief are matters of fact to be judged of by the magistrate, as they are by a jury, and are ■ infinitely too subtle and numerous to become the objects of general inquiry. All persons of sufficient understanding are competent to testify in criminal cases, except as hereinafter mentioned. The St. 1870, ch. 393, entitled " An Act in relation to witnesses," enacts: — Sect. 1. No person of sufficient understanding shall be excluded from giving evidence as a witness in any proceeding, civil or criminal, in court or before a person having authority to receive evidence, except in the following cases : — Fu'st. Neither husband nor wife shall be allowed to tes- tify as to private conversations with each other. Second. Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint, or other criminal proceeding, against the other. Third. In the trial of all indictments, complaints, and other proceedings against persons charged with the commis- sion of crimes or offences, the person so charged shall, at his own request, but not otherwise, be deemed a competent wit- ness ; and his neglect or refusal to testify shall not create any presumption against him. Sect. 3. The conviction of a witness of any crime may be shown, to affect his credibility. Sect. 5. Sections thirteen, fourteen, fifteen, and sixteen of chapter one hundred and thirty-one of the General Stat- utes, chapter three hundred and four of the acts of the year eighteen hundred and sixty-four, chapter two hundred and seven of the acts of the year eighteen hundred and sixty-five, section five of chapter one hundred and forty-eight, and chapter two hundred and sixty of the acts of the year eighteen hundred and sixty-six, are hereby repealed. THE COMPETENCY OF WITNESSES. 179 Deaf and dumb persons were formerly regarded as idiots, and therefore incompetent to testify ; but the modern doc- trine is, that, if they are of sufficient understanding, they may give evidence, either by signs, or through an interpreter, or in writing.! It has been laid down that " the presumption is always in favor of sanity ; and there is no exception to this rule in the case of a deaf and dumb person, but the onus of proving the unsoundness of mind of such a person must rest on those who dispute the sanity." ^ A lunatic is a person who hath had understanding, but by disease, grief, or any other cause, hath lost the use of his reason.^ As long as the suspension of the intelligence continues, the lunatic is an incompetent witness ; but there appears to be no doubt that his competency is restored during a lucid in- terval.* Nor will the disability extend to eases of mere monomania, nor where the hallucination permits the witness to understand the nature of the duty which is expected from him.^ But where a person is tendered as a witness who is believed to be suffering from monomania, he must first be examined as to his capacity to give evidence.^ As, in the case of total madness, the occurrence of a lucid interval, so, in the case of intoxication, the return of sobriety, will render the witness competent.'' With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evi- dence, on the presumption that they have not sufficient understanding. The rule by which an infant under seven years of age cannot commit a felony,^ because the law pre- sumes him conclusively not to have sufficient intelligence for 1 1 Hale P. C. 34. Eex v. Rus- 254; S. C. 2 Lead. Cas. 204. See ton, 1 Leach C. C. 408. Morrison also Regina v. Whitehead, L. R. 1). Lennard, 3 C. & P. 127, per ICC. 33; Regina b. Berry, 1 Q. B. Best, C. J. Commonwealth!;. Hill, D. 447, C. C. R. 14 Mass. 207. 1 Greenl. Ev. § 366. ^ Spittle v. Walton, L. R. 1 Eq. 2 Per Wood, V. C, in Harrod 420. V. Harrod, 4 Kay & Johns. 9. '' Hartford v. Palmer, 16 Johns. s 2 Stephen Comm. 510. 153. 2 Taylor Ev. § 1240. * Com. Dig. Testmoigne, A. 1 ^ Marsh v. Loader, 14 0. B. Powell Et. 28, 4th ed. N. S. 535. ^ Regina v. Hill, 2 Denison C. C. 180 CRIMINAL LAW. the act, has no analogy in the law of evidence. ^ Neither can any precise rule be laid down respecting the degree of intelli- gence and knowledge which will render a child a competent witness. The admissibility of children is now regulated, not by their age, but by their apparent sense and understanding. It is a question addressed to the good sense and discretion of the judge whether the child is competent or not ; but neither the testimony of the child without oath, nor evidence of any statement which he has made to any other person, is admis- sible. This is now the established rule in all cases, criminal and civil. In practice, it is not unusual to receive the testi- mony of children of eight or nine years of age.^ " It certainly is not law," said Baron Alderson, " that a child under seven cannot be examined as a witness." ^ The practice of insisting on a child's belief in punishment in a future state for lying, as a condition of the admissibility of its evidence, 'leads to anecdotes and to scenes little calcu- lated to increase respect either for religion or for the adminis- tration of justice. The statute referred to in a preceding page * would seem to render this unnecessary. If a person who deliberately and advisedly rejects all belief in God and a future state is a competent witness, a fortiori a child who has received no instructions on the subject must be competent also. The credit of a witness, which is greatly impaired by his age, is to be judged of by the magistrate or jury, from the manner of his testifying, and other circumstances. And it seems reasonable to add, that when persons, from their great age and infirmity, are reduced to second childhood, the same rules should be adopted respecting their competency as wit- nesses, as are applied to children. It has already been observed, that, until recently, if a per- son had been convicted of a crime which is inconsistent with the common principles of honesty and humanity, the law con- 1 Powell Ev. 29, 4th ed. o. Holmes, 2 F. & F. 788. Re- 2 Stark. Ev. 117. 2 Taylor Ev. gina v. Oulaghan, Jebb C. C. 270. § 1242. Commonwealth v. Hutch- ^ Regina v. Perkins, 2 Moody inson, 10 Mass. 224. Regina v. C. C. 139. Nicholas, 2 C. & K. 246. Regina * St. 1870, ch. 393. Ante, p. 178. THE COMPETENCY OF WITNESSES. 181 sidered his oath to be of no weight, and excluded his testimony as of too doubtful and suspicious a nature to be admitted in a court of justice, to affect the property or liberty of others. It has, however, been thought by the Legislature that the in- quiry after truth in courts of justice was often obstructed by these incapacities, and that it is desirable that full information as to the facts in issue should be laid before the persons who are appointed to decide upon them ; and that they should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimony. And a very important change was worked in the Law of Evidence by Gen. Sts. ch. 131, § 13 ; St. 1870, ch. 393 ; and the incompetency of wit- nesses who had been convicted of certain crimes was removed. But the conviction of a witness of any crime may be shown to affect his credibility. The law upon the subject of the incompetency of witnesses, by force of recent legislation, has been rendered obsolete and, for practical purposes, useless. The common rule and the common language was, that a conviction made the witness incompetent. But it was not the conviction alone that incapacitated. When, therefore, the credit of a witness is sought to be impeached, the judgment, as well as the conviction, must be proved;^ and can only be proved by the record, or, in proper cases, by a duty authen- ticated exemplification of it.^ Even the admission of the witness himself, that he has had judgment against him for larceny, or any other crime which would incapacitate him, would not make him incompetent, however it might affect his credibility.^ And if a witness be asked, on cross-examination, whether he has been convicted,* or has been in the house of correction, the question, if objected to, ought to be rejected.^ There are, also, some instances where the law excludes particular evidence, not because in its own nature it is sus- 1 Comraonwealtli v. Gorham, 99 ^ Rex v. Castell Careinion, 8 Mass. 420. Commonwealth v. Lock- East, 77. wood, 109 Mass. 325, 330. Kegina * Per Cresswell, J., in Macdon- V. Hinks, 1 Denison C. C. 84; 2 nell ». Evans, 21 L. J. C. P. 141; C. & K. 462. 11 G. B. 930, 935. 2 Commonwealtli v. Green, 17 ^ Commonwealth v. Qain, 5 Gray, Mass. 537. Commonwealth v. Quin, 478. 5 Gray, 478. 1 Greenl. Ev. § 375. 182 CRIMINAL LAW. picious or doubtful, but on grounds of public policy, and because greater mischief and inconvenience would result from the reception than from the exclusion of such evidence. On . this account, it is a general rule, at common law, which is not affected, in criminal cases, by the recent statute,^ that the husband and wife shall not be compelled to give evidence against the other.^ For to admit such evidence would occa- sion domestic dissension and discord ; it would compel a violation of that confidence which ought, from the nature of the relation, to be regarded as sacred; and it would be arming each of the parties with the means of offence, which might be used for very dangerous purposes.^ " The long-established rule of law is," says Lord Truro,* " that a wife cannot be examined for or against her husband ; and no alteration has yet been made in that established rule of law. It is a rule founded on a principle which is more valuable even than the administration of justice, — the necessity of preserving the confidence and happiness of domestic life." The principle of this rule is applied to all cases in which the interests of the other party are involved. Thus, on an indictment against several defendants, the wife of any one of them is inadmissi- ble as a witness.^ " Yet where the grounds of defence are several and distinct, and in no manner dependent on each other, no reason is perceived why the wife of one defendant should not be admitted as a witness for another." ^ 1 St. 1870, ch. 393. Ante, p. 178. ^ Commonwealth v. Sparks, 7 ^ At common law, in criminal Allen, 534. Judgments in Stapleton cases, the accused person and his or v. Crofts, 18 Q. B. 367 ; Barbat v. her wife or husband, and every per- Allen, 9 Exch. 609. Peaslee v. son and the wife or husband of McLoon, 16 Gray, 491. Littlefield every person jointly indicted with v. Rice, 10 Met. 287. him, is incompetent to testify. Re- * Percival v. Caney, Chanc. 18 gina 0. Payne, L. R. 1 C. C. 349 ; Law Times, 249, a.d. 1852. 41 L. J. M. C. 45; 12 Cox C. C. ' Regina v. Thompson, L. R. 118, by the sixteen judges. Regina 1 C. C. 377; 41 L. J. M. C. 112. V. Thompson, L. R. 1 C. C. 377; Rex v. Smith, 1 Moody C. C. 289. 41 L. J. M. C. 112; 12 Cox C. C. Rex v. Hood, 1 Moody C. C. 281. 202. 2 Taylor Ev. §§ 1357, 1362. Commonwealth v. Easland, 1 Mass. 3 Russell on Crimes, 619, 627, 5th 15. Regina v. Denslow, 2 Cox C. C. ed. See Winsor v. The Queen, 6 230. B. & S. 143; L. R. 1 Q. B. 390; 35 « 1 Greenl. Ev. § 335. L. J. M. C. 161. THE COMPETENCY OP WITNESSES. 183 It is the constant practice in criminal trials, where husband and wife have been present at the commission of a crime, to produce the wife as well as the husband in support of the prosecution. And she is equally a competent witness for the defence ; and the fact that she is brought to contradict the testimony of her husband is no objection to her competency.^ And in all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness for^ and against the other .^ This exception to the general rule is allowed "from the necessity of the case, partly for the protection of the wife in her life and liberty, and partly for the sake of public justice." * So, in bastardy cases, from the necessity of the thing, a married woman has been constantly admitted to prove her own criminal intercourse, by which the child was begotten.^ Upon the same principle, the law prohibits a counsellor or attorney from divulging that which has been reposed in him confidentially by his client. This prohibition arises from the situation in which a counsel stands to his client, and the confidence which it is necessary for every one to repose in his legal advisers. To this confidence the law has attached so sacred an inviolability, that it will not compel, nor even suffer, those who are thus employed to disclose any facts stated to them confidentially, in the way of their profession, even after the cause, in the course of which they were communicated, is entirely concluded.^ But this is the privilege, not of the > Eex V. Houlton, Jebb C. C. 24. Audley, 3 Howell State Trials, 402, 2 Commonwealth v. Murphy, 4 a.d. 1631, is the earliest ou record, Allen, 491. — an exception was admitted to the ^ Keeve v. Wood, 5 B. & S. 364. rule, which proceeded on the prin- Kelly V. Drew, 12 Allen, 109. ciple, that, -where the offence charged *1 Greenl. Ev. § 343. " Hus- touched the person of the wife, and band and wife are, in the eye of the where, therefore, she must be cog- law, one person. Neither can be a nizant of it, and might perhaps be witness for or against the other on the only person cognizant of it, she a criminal charge against either of was an admissible witness, them, except when the charge is ° Dickerman v. Graves, 6 Cush. one of personal injury committed 310. Rex ». Reading, Cas. Temp, by one on the other." Eegina v. Hardw. 79. Kenny, 46 L. J. M. C. 160, per ^ Poster v. Hall, 12 Pick. 89. Lush, J. In criminal cases, from Montgomery v. Pickering, 116 Mass. an early period, — the case of Lord 227. This privilege is to be con- 184 CRIMINAL LAW. counsel or attorney, but of the client; and, therefore, the former ought not to be allowed to divulge his client's secrets, even though he should be willing to do so.^ This principle does not apply to a student of an attorney, but is confined strictly to members of the legal profession.^ Here, however, the law draws the line, and the principle of policy which, in the instances of husband and wife, and of attorney and client, forbids a violation of confidence, ceases to operate. The law will not permit any one to withhold any communication which is important as evidence, however secret and confidential the nature of that communication may have been, although it may have been made to a physician or a surgeon, or even to a clergyman, in the course of discharg- ing his professional duties, or to members of the party's own church ; for it has even been held that a clergyman is bound to disclose that which has been revealed to him as a matter of religious confession.^ sidered as excluding the disclosure merely of such facts as have bona fide been communicated confiden- tially by the client to the attorney, in his professional capacity. The privilege does not extend to any communication made in furtherance of any criminal purpose. Regina V. Farley, 1 Denison C. C. 197; 2 C. & K. 313. Regina v. Jones, 1 Denison C. C. 166. Regina v. Hay- ward, 2 C. & K. 234. Charlton v. Coombes, 32 L. J. Chanc. 284. Brown v. Foster, 1 H. & N. 736. It is well settled that an attor- ney may be called on to prove the existence of certain papers belong- ing to his client, and that they are in his possession, so as to enable the opposite party to give parol evi- dence of their contents, if their pro- duction is refused. But this is only to let in secondary evidence of their contents; the papers themselves, the attorney cannot be compelled to pro- duce. Neither can he be compelled to produce a note left with him by his client, in order that the grand jury may found an indictment upon it for forgery or fraud. Anon. 8 Mass. 370. The principle is fully explained in Dwyer v. Collins, 7 Exch. 639. Where, however, on a trial for forg- ery, a witness who has been served with a subpoena duces tecum objected that the documents came into his possession as the attorney of the pris- oner in a previous prosecution in- stituted by him, Willes, J. , held that the document must be produced. Regina v. Brown, 9 Cox C. 0. 281. 1 Stark. Ev. 40. 2 Barnes v. Harris, 7 Cush. 576. 3 Stark. Ev. 40. Commonwealth V. Drake, 15 Mass. 162. Rex v. Gilham, 1 Moody C. C. 186. See Broad v. Pitt, 3 C. & P. 519; M. & M. 234, Best, C. J.; Regina V. Griffin, 6 Cox C. C. 219, Alder- son, B. The question whether clergymen, and particularly whether Roman Catholic priests, can be compelled to disclose confessions made tn them professionally has THE COMPETENCY OF WITNESSES. 185 At common law, a defendant in an indictment, who has pleaded guilty, is a competent witness, before sentence on the trial of other parties included in it.^ So, where several are indicted together, one defendant as to whom a nolle prosequi has been entered may be called as a witness for the other defendants.^ But a co-defendant who has not been tried cannot be called as a witness for one put on trial sepa- rately.'^ Where several are tried together, if at the close of the case for the government there appears to be no evidence against one defendant, the judge will direct an acquittal, in order that he may be called as a witness by another de- fendant.* It is now proper to consider the duty of magistrates in obtaining the evidence of accomplices. They ought to be well instructed in their duty in this respect ; otherwise, they may be the means of great injustice both to the gov- ernment and the party who may expect favor from this source. The engagement of a magistrate to an accomplice, that if he will give his evidence he may expect favor, is merely a personal engagement on his part that he will recommend the accomplice to mercy; for a magistrate has no authority to promise him any favor, or to tell him that he shall be a witness against others. A magistrate has no authority to select whom he pleases to pardon or prosecute ; and the prosecutor has less power, or rather pretence, to do this than the magistrate.^' Whatever promises or engagements a magistrate may make with an accomplice, and however punctually or faithfully the accomplice may comply with the conditions upon which such promises may have been made, never been solemnly decided in Met. 238. Regina v. Hicks, 1 England, though it is stated by the Denison C. C. 84; 2 C. & K. 462. text-writers that they can. 1 Tay- Regina v. George, Car. & Mai'sh. lor Ev. §§ 837, 888. Stephen Ev. 111. Rex v. Ryan, Jebb C. C. 5. art. 117, p. 119, and note p. 180, « 1 Stark. Ev, 129. 3d ed. 1 Greenl. Ev. § 247. The ^ Commonwealth v. Marsh, 10 question is discussed in Best Ev. Pick. 56. §§ 583, 584. See Regina v. Hay, * Stark. .Ev. 130 note. 2 F. & F. 4. 6 1 Chit. Crim. Law, 82. 1 Commonwealth i'. Smith, 12 186 CRIMINAL LAW. he cannot avail himself of them on his trial. They may operate as an equitable claim upon the government for a pardon, or a postponement of his trial. And, on this account, the greatest caution and judgment ought to be used by magistrates upon these occasions. The power assumed by them of admitting accomplices to be witnesses is founded in practice only, and does not control, and in many cases ought not to influence, the authority of the court by which the accomplice is liable to be tried. The accomplice, therefore, may be deceived and drawn in, under the color and pretence of judicial authority and power of protection, to disclose what he is not bound to discover, and thus make himself the de- luded instrument of his own conviction.^ The benefit of the accomplice is, in fact, nothing more than a mere hope that he may be exonerated from punishment; but, in this hope, he maybe deceived and disappointed; and w^hen that is the case, he has not, in reality, any grounds to complain of a breach of public faith, as sometimes happens to be the case. There can be no breach of public faith when it is pledged without competent authority. The correct practice is in conformity to these principles ; for no magistrate would probably take the responsibility of releasing an accomplice who oifers to give evidence against his associates, but commit him for trial, and leave the event to the decision and control of the court before whom he is to be tried.^ In some cases, when an accomplice offers to testify against his associates, and more especially when he offers to point out the place where the evidence of the guilt of his associates may be discovered (as by discovering the places where stolen goods or counter- feit bank-notes are deposited), it may be safe and advisable for the magistrate to inform him, that if he conducts fairly in every respect, and discloses the whole truth concerning the guilt of himself and associates, his punishment may be miti- gated, and perhaps he may obtain a pardon ; but he ought to inform him at the same time that he has no power or right to promise, or make any engagement with him to that effect ; 1 Rex V. Eudd, Cowp. 331. Commonwealth v. Knapp, 10 Kck. 478, 494. 2 1 Chit. Crim. Law, 82, 83. THE COMPETENCY OP WITNESSES. 187 and, further, that his confession, testimony, and disclosure must not only be perfectly voluntary, but that it must be found to be strictly according to the truth. The magistrate should also recollect that the credibility of these accomplices,- when made witnesses, is always doubtful, suspicious, and liable to be impeached ; and that their testimony, unless fully cor- roborated by other evidence, is of very little, and generally of no weight or value in the prosecution. Such testimony would never have been admitted, but from a principle of public policy and necessity ; without which it is sometimes impossible to detect many crimes the most detrimental to society. It is not a rule of law that an accomplice must be confirmed in order to render a conviction valid ; and it is the duty of the judge to tell the jury that they may, if they please, act on the unconfirmed .testimony of an accomplice. It is a rule of practice, and that only, and it is usual in practice for the judge to advise the jury not to convict on the testimony of an accomplice alone ; and juries generally attend to the direction of the judge, and require confirmation. i There has been a difference of opinion as to what corroboration is requisite ; but the correct practice is to direct the jury not to convict, unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the identity of the prisoner. Where an accomplice speaks as to the guilt of three prisoners, and is confirmed as to two of them only, the jury may, no doubt, if they please, act on the 1 Regina v. Stubbs, Dearsly Allen, 315. Commonwealth v. C. C. 555; 25 L. J. M. C. 16. Rex O'Brien, 12 Allen, 183. Oommon- V. Sheehan, Jebb C. C. 54. Cora- wealth v. Snow, 111 Mass. 411. monwealth v. Larrabee, 99 Mass. Commonwealth v. Ford, 111 Mass. 413. Commonwealth v. Bosworth, 394. Commonwealth v. Glover, 22 Pick. 897. Commonwealth v. Ill Mass. 395. Commonwealth v. Desmond, 5 Gray, 80. Common- Scott, 123 Mass. 222, 238. Cora- wealth V. Elliot, 110 Mass. 104. raonwealth v. Drake, 124 Mass. 21. Commonwealth v. Brooks, 9 Gray, Regina v. Farler, 8 C. & P. 107, 108, 299. Commonwealth u. Price, 10 per Lord Ahinger. The maxim Gray, 472. Commonwealth v. falsus in uno, falsus in omnibus is Aunis, 15 Gray, 197. Common- not an established rule in the law wealth V. Boynton, 116 Mass. 343. of evidence. Commonwealth v. Commonwealth v. Brown, 121 Mass. Wood, 11 Gray, 86. Common- 69. Commonwealth v. Tarr, 4 wealth v. Billings, 97 Mass. 405. 188 CRIMINAL LAW. evidence of the accomplice alone as to the third prisoner ; but it is proper for the judge in such a case to advise the jury that it is safer to require coniirmation of the testimony of the accomplice as to the third prisoner, and not to act upon his evidence alone ; for nothing is so easy as for the accomplice speaking truly as to all other facts of the case, to put the third man in his own place. ^ Jervis, C. J. : It is not a rule of law that an accomplice must be confirmed in order to render a conviction valid ; and it is the duty of the judge to tell the jury that they may, if they please, act on the unconfirmed testimony of an accom- plice. It is a rule of practice, and that only, and it is usual in practice for the judge to advise the jury not to convict on the testimony of an accomplice alone, and juries generally attend to the direction of the judge, and require confirmation. Parke, B. : During the time that I have been upon the bench, now [a.d. 1855] more than a quarter of a century, I have uniformly laid down the rule of practice as it has been stated by the Lord Chief Justice. I have told the jury that it was competent for them to find a prisoner guilty upon the un- supported testimony of an accomplice ; but that great caution should be exercised, and I have advised them — and juries have acted on that advice — not to find a prisoner guilty on such testimony unless it was confirmed. There has been a difference of opinion as to what corroboration is requisite ; but my practice has always been to direct the jury not to convict unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the identity of the prisoner. An accomplice necessarily knows all the facts of the case, and his story, when the ques- tion of identity is raised, does not receive any support from its consistency with those facts.^ If evidence is submitted to the jury as corroborative, which is not legally such, the error may be revised by a bill of ex- ceptions.^ 1 Regina v. Stubbs, Dearsly C. * Commonwealth v. Larrabee, 99 C. 555; 25 L. J. M. C. 16. Mass. 413. " Regina u. Stubbs, Dearsly C. C. 557, 558. CONFESSIONS. 189 CHAPTER VIII. CONFESSIONS.! " The evidence of verbal confessions of guilt," says Green- leaf,2 " is to be received with great caution.^ For, besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make an untrue confession. The zeal, too, which so generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong dis- position, in the persons engaged in pursuit of evidence, to rely on slight grounds of suspicion, which are exaggerated into sufficient proof, together with the character of the per- sons necessarily called as witnesses, in eases of secret and atrocious crime, all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, where, in civil actions, it would have been received. The weighty observa- tion of Mr. Justice Foster is also to be kept in mind, that ' this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be, and often is, confronted.' " * 1 The law of confessions is fully misconstrued by a knave. What stated in the notes to Kegina v. was spoken metaphorically may be Baldry, Regina v. Moore, and The apprehended literally. What was Queen v. Johnston, 2 Lead. Crim. spoken ludicrously may be appre- Cas. 484 et seq. hended seriously. A particle, a ^ 1 Greenl. Ev. § 214. tense, a mood, an emphasis, may * Commonwealth v. Sanborn, make the whole difference between 116 Mass. 61. Macaulay has ex- guilt and innocence." History of pressed this rule in forcible Ian- England, vol. i. oh. 5, p. 583, guage. " Words," says he, " may quoted in 1 Taylor Ev. § 862 note, easily be misunderstood by an 7th ed. honest man. They may easily be * Foster Crown Law, 243. 190 CRIMINAL LAW. A full confession of guilt, however, although it be but pre- sumptive evidence, is one of the surest proofs of guilt, because it rests upon the strong presumption that no innocent man would sacrifice his life, liberty, or even his reputation, by a declaration of that which was untrue. The presumption immediately ceases as soon as it appears that the supposed confession was made under the influence of threats or of promises, which render it uncertain whether the admissions of the accused were wrung from a timid and apprehensive mind, deluded by promises of safety, or subdued by threats of violence or of punishment. " The ground," said Chief Justice Shaw, " on which con- fessions made by a party accused, under promises of favor, or threats of injury, are excluded as incompetent, is, not be- cause any wrong is done to the accused, in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief, or avoid the threatened danger, and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted. Of course, such inducement must be held out to the accused by some one who has, or who is supposed by the accused to have, some power or authority to assure to him the promised good, or cause or influence the threatened injury. The gen- eral rule of law seems sufficiently plain and clear, but the great variety of facts and circumstances, attending particular cases, renders the application difficult, and each case must depend much upon its own circumstances." ^ Confessions are divided into two classes ; namely, judicial and extrajudicial. Judicial confessions are classed as follows : 1 Commonwealth v. Morey, 1 Curtis, 97 Mass. 574, 578. Corn- Gray, 462, 463. This is in con- monwealth u. Cuflee, 108 Mass. 285, formity -with the whole current of 288. Commonwealth v. Smith, 119 authorities on the subject. Com- Mass. 305, 311. Commonwealth v. monwealth v. Knapp, 9 Pick. 507, Crocker, 108 Mass. 464. Common- and 10 Pick. 489. Commonwealth wealth v. Mitchell, 117 Mass. 431. V. Taylor, 5 Cush. 605. Common- Commonwealth v. Sturtivant, 117 wealth V. Whittemore, 11 Gray, Mass. 122. Commonwealth v. Snow, 201. Commonwealth v. Howe, 2 111 Mass. 411. Commonwealth v. Allen, 153. Commonwealth v. Piper, 120 Mass. 186. CONFESSIONS. 191 1. Where the defendant in open court confesses that he is guilty of the offence of which he is charged in the indict- ment.i 2. Where the defendant, by the plea of nolo con- tendere, impliedly confesses that he is guilty of the offence charged.^ Extrajudicial confessions are those which are made by a party, of his guilt, or of any fact which may tend to prove it, to any other person, or assented to by him, to what is said in his presence and hearing, relative to a fact within his knowledge. All these several species of confession, in order to be admissible, must be free and voluntary. Whether, on ordinary indictments for felony or misde- meanor, extrajudicial confessions, uncorroborated by any other proof of the corpus delicti, are of themselves sufficient to found a conviction of the prisoner, has been gravely doubted. And the highest English authorities have now established that a free and voluntary confession of guilt, made by a de- fendant, if duly made and satisfactorily proved, is sufficient at once to warrant a conviction without any corroborative evidence aliunde. But this must be understood of a direct and positive confession ; admissions by implication are not entitled to the same weight.^ It is to be observed that in each of the English cases usually cited in favor of the suffi- ciency of this evidence, some corroborating circumstance will be found.* In Massachusetts, it has been held that, where there is independent evidence that the crime has been com- mitted, a free and voluntary confession by the party accused will warrant a conviction.^ 1 Commonwealth v. Ayers, 115 Ev. § 217. 1 Taylor Ev. § 868 Mass. 137. 7th ed. 2 Commonwealth v. Horton, 9 ^ Commonwealth v. Howe, 9 Pick. 206. Gray, 110. Commonwealth v. 3 3 Russell on Crimes, 365, 366, Farr, 4 Allen, 315. Commonwealth 4th ed.; 440, 441, 5th ed. Archb. v. McCann, 97 Mass. 580. Com- Crim. PL 249, 18th ed. Eegina v. monwealth v. Smith, 119 Burton, Dearsly C. C. 282. See 305. As to when the corpus delicti United States v. "Williams, 1 Clif- need not he proved, see Eegina u. ford, 5, 25; 2 Lead. Crim. Cas. 626 Burton, Dearsly C. C. 282, 284; et seq. Eegina,);. Unkles, Irish Eep. 8 C. L. * Eex u. Eldridge, Eussell & 50 ; Eegina v. Mockford, 11 Cox Ryan C. C. 440. Eegina v. Sut- C. C. 16. The case of Eegina v. cliffe, 4 Cox C. C. 270. 1 Greenl. Williams, 11 Cox C. C. 684, cannot be relied on. — 122- CRIMINAL LAW. In all cases, the whole of the confession relative to the par- ticular crime with which the party is charged should be given in evidence.^ It is a general rule, that the whole of the account which a party gives of a transaction must be taken together ; and his admission of a fact disadvantageous to himself should not be received, without receiving at the same time his contemporaneous assertion of a fact favorable to him, not merely as evidence that he made such assertion, but admissible evidence of the matter thus alleged by him in his discharge.^ When the party is brought before the magistrate, he ought to be cautioned that he is not bound either to accuse him- self or confess his guilt ; and that any confession or admis- sion of that nature may be produced in evidence against him on his trial. Before any confession can be received in evi- dence, it must be shown to have been voluntarily made. The course of practice is to inquire of the witness, whether the prisoner has been told that it would be better for him to con- fess, or worse for him if he did not confess, or whether lan- guage to that effect Had been addressed to him.^ Another caution which it is the duty of a magistrate to make use of, when in his power, is, to prevent the prosecutor, and the officers who may have the party in custody, from any attempts to obtain a confession of his guilt. Both officers and prosecutors are apt to be extremely officious in this way, and many evils both to the public and to individuals have re- sulted from it. The distinction is very clear : officers are not to suppress the truth, neither are they to take any meas- ures of their own to endeavor to extort it. If the slightest influence is made use of for this purpose, and a confession thereby obtained, such confession is not only of no validity, but all subsequent confessions, however free and voluntary, V7hether before the magistrate or any other person, are in- admissible on the trial of the party, unless it appears that 1 If the confession relates to conversation, and not the rest, evi- another and distinct crime^ it is dence of what he did hear is corn- inadmissible. Regina v. Butler, petent. Commonwealth o. Pit- 2 C. & K. 221, Piatt. B. singer, 110 Mass. 101. 2 Archb. Crim. PI. 249, 18th ed. s i Greenl. Ev. § 219. If a witness hears only a part of a CONFESSIONS. 193 the influence was totalis/ done away before the confession was made.^ The material question is, whether the confession has been obtained by hope or fear ; and the evidence to this point, being in its nature preliminary, is addressed to the judge, who will require the prosecutor to show affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement, and who, in the event of any doubt subsisting on this head, will reject the confes- sion.2 " The ground for not receiving such evidence," said Pollock, C. B., in a leading case,^ " is, that it would not be safe to receive a statement made under any influence or fear. There is no presumption of law that it is false or that the law considers such statement cannot be relied upon ; but such confessions are rejected because it is supposed that it would be dangerous to leave such evidence to the jury." " Bj'- the law of England," said Parke, B., in the same case, " in order to render a confession admissible in evidence, it must be perfectly voluntary ; and there is no doubt that any inducement in the nature of a promise, or of a threat held out by a person in authority, vitiates a confession. The decisions to that effect have gone a long way ; whether it would not have been better to have allowed the whole to go to the jury, it is now too late to inquire, but I think there has ^ Kegina v. Baldry, 2 Denison ruling in matter of law, or the C. C. 430; S. C. 2 Lead. Crim. Cas. whole evidence is reported with a 484 and notes. view of submitting its sufficiency to 2 Regina v. Warringham, 2 Den- the appellate court. If the presid- ison C. C. 447 note, per Parke, B. ing judge is satisfied that there were In the case of Commonwealth v. such inducements, the confession is Piper, 120 Mass. 188, the law was to be rejected; if he is not satisfied, thus stated : " When a confession the evidence is admitted. But if is offered in a criminal case, and there is any conflict o£. testimony or the defendant objects that he was room for doubt, the court will sub- induced to make it by threats or mit this question to the jury with promises, it necessarily devolves instructions that if they are satis- upon the court to determine the fied that there were such induce- preliminary question whether such ments, they shall disregard and inducements are shown. And the reject the confession." finding of the court upon this ques- 3 Regina v. Baldry, 2 Denison tion cannot be revised upon a bill of C. C. 430, 441; S. C. 2 Lead. Crim. exceptions, unless it involves some Cas. 484, a.d. 1852. 13 194 CRIMINAL LAW. been too much tenderness towards prisoners in this matter. I confess that I cannot look at the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confessions in evidence ; and I agree with the observation of Mr. Pitt Taylor, that the rule has been extended quite too far, and that justice and common sense have too frequently been sacrificed at the shrine of mercy." ^ Lord Campbell, C. J., stated the rule to be " that if there be any worldly advantage held out, or any harm threatened, the confession must be excluded." The fear, however, to be produced, must be of a temporal nature. Thus, a confession was held admissible, although apparently induced by the acts of the parties who conducted the prisoner to jail, those acts being calculated to excite, not fear of temporal punishment, but horror at the recollection of the crime.^ Many cases have been decided as to the language which amounts to an inducement to confess ; and here the reported decisions certainly furnish a very unsatisfactory guide. They are, however, for practical purposes, summed up in the lead- ing case of Regina v. Baldry.^ A few are cited by way of illustration. In the first place, it is to be observed that the words, " you had better tell the truth," seem to have acquired a sort of technical meaning importing either a threat or a 1 1 Taylor Ev. § 807. That ment have gone too far for the pro- accomplished writer continues: "So tectioQ of crime.'' " The real ques- anxious was the court at one time tion is," said Keating, J., "whether to exclude evidence of confessions, • there has heen any threat or prom- that exhortations not to tell lies, ise of such a nature that the pris- but to speak the truth, have been oner would be likely to tell an un- deemed likely to induce a false truth from fear of the threat, or acknowledgment of guilt; and, con- hope of profit from the promise." sequently, admissions made after Regina v. Reason, 12 Cox C. C. such exhortations have more than 228. To render a confession ad- once been rejected. But this para- missible, it is not so much material doxical opinion is now happily ex- to prove to whom or when it is ploded." "It seems to have been made, as it is to ascertain the mind supposed, at one time, that saying of the person making it, and see 'tell the truth,' meant, in effect, whether or not it is probable that it 'tell a lie.'" Regina v. Reeve, was made voluntarily. Regina c. L. R. 1 C. C. 363. And in the Rue, 13 Cox C. C. 209, Denman, J. same case, as reported in 12 Cox ^ Rex v. Gibney, Jebb C. C. 15. C. C. 179, Kelly, C. B., observed: Rex v. Gilham, 1 Moody C. C. 186. "The cases excluding confessions " 2 Denison C. C. 430; S. C. on the ground of unlawful induce- 2 Lead Crim. Cas. 484, a.d. 1852. CONFESSIONS. 195 benefit.^ Thus, the confession will not be admissible if it be said to the defendant, — " It will be best for you if you will tell how it was trans- acted ; " 2 or, " It might be better for you to tell the truth and not a lie ; " 3 or, " You are under suspicion of this, and you had better tell all you know." * " Saying to the prisoner that it will be worse for him if he does not confess, or that it will be better for him if he does, is suf&cient to exclude the confession, according to constant experience." ^ The rule of exclusion has been applied to such words as these : — " Unless you give me a more satisfactory account, I will take you before a magistrate ; " ^ " Now, be cautious in the answers you give me to the ques- tions I am going to put you about this watch." ' But a statement made to a constable, after he had told the defendant the nature of the charge against him, and that he need not say any thing to criminate himself, but that what he did say would be taken down, and used as evidence against him, was held to be admissible.^ A confession made with a view and under a hope of being thereby permitted to become State's evidence is admissible against the party, if he after- wards refuses to testify.^ A caution to a prisoner by a police- officer that what he said would be used against him on his 1 Per Kelly, C. B., in Kegina v. ^ 2 East P. C. 659. Common- Jarvis, L. R. 1 C. C. 99; 37 L. J. wealth v. Curtis, 97 Mass. 578. M. C. 1. Regina v. Garner, 1 ^ Rex v. Thompson, 1 Leach Denison, 329; 2 C. & K. 920; Tern- C. C. 291, per Hotham, B. Regina pie & Mew C. C. 7. Regina ». v. Luckhurst, Dearsly C. C. 245. Doherty, 13 Cox C. C. 23, White- Regina v. Walsh, Irish Ciro. Rep. side, C. J. 866, per Jackson, J. 2 Regina v. Warringham, 2 Deni- ' Regina v. Fleming, Armstrong, son C. C. 447 note; S. C. 2 Lead. Macartney & Ogle, 330. Grim. Gas. 487 note. ' Regina v. Baldry, 2 Denison C. 3 Regina v. Bate, 11 Cox C. C. C. 480; S. C. 2 Lead. Grim. Gas. 484. 686. ^ Commonwealth v. Knapp, 10 < Rex V. Kingston, 4 G. & P. 387, Pick. 478. See Commonwealth v. per Parke and Littledale, JJ. Re- Brown, 108 Mass. 422, and Com- gina V. Cheverton, 2 F. & F. 888, monwealth u. Denehy, 424 note; per Erie, C. J. Regina v. Gillis, 11 Cox G. C. 69. 196 CRIMINAL LAW. trial, if committed by the magistrates, is not an inducement to him to make a statement so as to exclude that statement from being given in evidence on the trial.^ Where, the defendant being in custody on a charge of set- ting fire to her master's farm-building, her master's married daughter said to her, "I am very sorry for you; you ought to have known better ; tell me the truth, whether you did it or no ; " the defendant said, " I am innocent ; " whereupon the other replied,/' Don't run your soul into more sin, but tell the truth," — a confession thereupon made by the defendant was held admissible.^ So where one of the prisoner's employers, having called him up into his private room, said, " I think it right that I should tell you, that, besides being in the presence of my brother and myself, you are in the presence of two'' police-officers ; and I should advise you that, to any ques- tions that may be put to you, you will answer truthfully, so that, if you have committed a fault, you may not add to it by stating what is untrue ; " and having shown a letter to him, which he denied having written, added, " Take care ; we know more than you think we know ; " and the prisoner there- upon made a confession, — it was held that such confession was admissible.^ So where the mother of a little boy in cus- tody on a criminal charge said to him and another little boy, also in custody on the same charge, in the presence of the mother of the latter and of the policeman, " You had better, as good hoys, tell the truth," whereupon both boys confessed, it was held that the confession was clearly admissible.* And where a constable, in the course of a conversation between himself and the prisoner respecting the subject-matter of the charge, and immediately before apprehending the prisoner, said to the prisoner, " I must know more about it," it was held that the use of this expression by the constable did not render a statement thereupon made by the prisoner inad- missible.^ Where a constable said to the prisoner, who was 1 Kegina v. Attwood, 5 Cox C. * Regina v. Reeve, L. R. 1 C. C. C. 322, per Erie, J. See also Re- 362. gina V. Holmes, 1 C. & K. 248. ^ Regina v. Reason, 12 Cox C. '^ Regina u. Sleeman, Dearsly C. C. 228, per Keating, J., after con- C. 249. sultation with Quain, J. 3 Regina v. Jarvis, L. R. 1 C. C. 96. CONFESSIONS. 197 suspected of having stolen the prosecutrix's purse, " Now is the time for you to take it back to her" (the prosecutrix), it was held that the use of these words by the constable did not render inadmissible a statement subsequently made to him by the prisoner, as the words imported no promise or threat to the prisoner to induce him to confess. ^ With regard to the persons whose inducements will pre- vent the admission of confessions, it should seem that all who are engaged in the apprehension, prosecution, or examination of a prisoner are considered as persons of such authority that their inducements will exclude any confession thereby ob- tained. Thus, an inducement held out by the prosecutor, the prosecutor's wife, or his attorney,^ or by a constable or other 'officer, or some person assisting a constable, or the prosecu- tor in the apprehension or detention of the prisoner, or by a magistrate acting in the business, or other magistrate, or magistrate's clerk, or by a jailer, or chaplain of a jail, or by a person having authority over the prisoner, as by the cap- tain of a vessel to one of his crew, or by a master or mistress to a servant, or by a person having authority in the matter, or by a person in the presence of one in authority with his assent, whether direct or implied, — will fee sufficient to exclude a confession made in consequence of such inducement.^ The cases clearly establish the position that, if a threat or inducement is held out in the presence of a person in author- ity, and he does not dissent therefrom, the effect is precisely the same as if it had been held out by the person in au- thority.* If the threat or inducement is held out by a person not in authority, the confession is clearly admissible.® 1 Regina v. Jones, 12 Cox C. C. ceeded on the ground that desiring 241, C. C. R. a prisoner to tell the truth is not 2 Regina v. Corydon, 2 Cox C. an inducement. C. 67. 6 Per Parke, B., in Regina v. " 3 Russell on Crimes, 463, 464, Moore, 2 Denison C. C. 527 ; S. C. 5th ed. 2 Lead. Crim. Cas. 503. Per Pat- * 3 Russell on Crimes, 468, 5th teson, J., in Regina ti. Taylor, 8 ed. The case of Regina «. Parker, C. & P. 734. 3 Russell on Crimes, Leigh & Cave C. C. 42, at first sight 471, 5th ed. See 2 Taylor Ev. may appear the other way; but in §§ 799, 780; 1 Greenl. Ev. § 223. all probability this decision pro- 198 CRIMINAL LAW. With respect to subsequent statements made to the same and other officers, it is to be observed that it is not to be pre- sumed that, if one officer makes threats or promises, their influence will lead the defendant to accuse himself falsely to another officer. The settled and reasonable rule is, after ex- cluding subsequent statements made to the same officers, to admit statements made to other officers, with the instruction that any statements made at any subsequent time to other officers, under the influence of such threats or promises, should not be allowed any weight or influence against the defendant.^ It is to be observed that, although the fact that promises or threats are held out will exclude a confession influenced thereby, yet it will not preclude the government from show- ing independent acts and declarations of the defendant not in the nature of a confession, which tend to prove his guilt.^ Confessions may be inferred from the conduct of the de- fendant, and from his silent acquiescence in the statements of others, respecting himself, and made in his presence. ' " If a statement is made in the hearing of another," says Chief Justice Shaw,^ " in regard to facts affecting his rights, and he makes a reply, wholly or partially admitting that truth, then the declaration and the reply are both admissible : the reply, because it is the act of the party, who will not be presumed to admit any thing affecting his own interests or his own rights, unless compelled to it by the force of truth ; and the decla- ration, because it may give meaning and effect to the reply. In some cases, where a similar declaration is made in one's hearing, and he makes no reply, it may be a tacit admission of the facts. But this depends on two facts : first, whether he hears and understands the statement, and comprehends its bearing ; and secondly, whether the truth of the facts embraced in the statement is within his own knowledge or not ; whether he is in such a situation that he is at liberty to 1 Commonwealth v. CufEee, 108 lor Ev. § 802. See Regina v. Chev- Mass. 285. Commonwealth v. Cul- erton, 2 F. & F. 833. len, 111 Mass, 435. Common- ^ Commonwealth v. Piper, 120 wealth V. Smith, 119 Mass. 305, Mass. 186, 189. 811. Regina v. Walsh, Irish Circ. ^ Commonwealth v. Kenney, 12 Rep. 866, per Jackson, J. 1 Tay- Met. 235, 237. CONFESSIONS. 199 make any reply, and whether the statement is made under such circumstances and by such persons as naturally to call for a reply, if he did- not intend to admit it. If made in the course of any judicial hearing, he could not interfere and deny the statement ; it would be to charge the witness with perjury, and alike inconsistent with decorum and the rules of law. So, if the matter is of something not within his knowledge ; if the statement is made by a stranger, whom he is not called on to notice ; or if he is restrained by fear, by doubts of his rights, by a belief that his security will be best promoted by his silence ; then no inference of assent can be drawn from that silence." ^ It is also necessary, in order to exclude a confession, that the inducement held out should contain some promise or prospect of a temporal benefit.^ Accordingly, if it amount to no more than a moral or religious exhortation, it will be ad- mitted.3 Thus, the words, " Do not run your soul into more sin, but tell the truth," have been held not to contain an induce- ment.* It is no objection to the admissibility of a confession that it was induced in consequence of persuasion by a clergy- man, not with any view of temporal benefit.^ So the con- fessions of a party, voluntarily made to members of the same church, are admissible.^ A statement made by a prisoner when he was drunk is admissible, even though the liquor was given to him in the hope that he would make some admis- sions.'^ So a statement under a mistaken supposition that some of the defendant's accomplices were in custody, even though it were created by artifice, with a view to obtain a 1 CommonweaUh v. Call, 21 ^ Rex v. Gibney, Jebb C. C. 15. Pick. 509, 522. Commonwealth v. » Rex v. Wild, 1 Moody C. C. Galavan, 9 Allen, 271. Common- 452. •wealth V. Walker, 13 Allen, 570. ^ Regina u. Sleeman, Dearsly Commonwealth v. Roberts, 108 C. C. 269. Mass. 296. Commonwealth v. ^ Rex ». Gilham, 1 Moody C. C. Brown, 121 Mass. 70, 80. Com- 186; more fully reported 2 Lead, monwealth v. MeDermott, 123 Crim. Cas. 600 et seq. Mass. 440. See the case of Regina ^ Commonwealth v. Drake, 15 V. Newman, 1 El. & Bl. 268; 3 C. Mass. 161. & K. 252; 22 L. J. Q. B. 156, ' Rex v. Spilsbury, 7 C. & P. where it was sought to push this 187, per Coleridge, J., qu. on the doctrine to an unwarrantable length, ground that in vino Veritas. 200 CRIMINAL LAW. confession.^ A letter given to the jailer by a defendant, to put into the post, is evidence against him.^ The only ques- tion in these cases is, whether the inducement held out was calculated to produce any untrue confession.^ Although a confession unduly obtained may not be receiv- able in evidence, yet any discovery that takes place in conse- quence of such confession, or any act done by the defendant, as the finding of the property stolen, or the instrument of the crime, is admissible.* And the declarations of the de- fendant, accompanying such acts, are admissible in evidence, even though the confession itself is inadmissible." And, finally, it may be remarked that, in general, a party's confession is only admissible against himself. In cases of conspiracy, riot, and other crime, any thing said or written by one of the accomplices, not as a confession simply, but for the purpose of furthering the common design, is admissible in evidence against the others.^ Although the confessions of an accomplice, as such, are not competent evidence, yet when made in the presence of the defendant, and assented to by him, they are admissible ; and this though his express assent is wanting. Where declarations against a party are made in bis presence, and not objected to by him, he being at liberty to do so, his assent is implied, and they are always deemed competent evidence. It has been observed byLordWensleydale,^ that "too great weight ought not to be attached to evidence of what a party has been supposed to have said; as it very frequently happens not only that the witness has misunderstood what the party has said, but that, by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at vaj-iance with what the party really did say." ^ 1 Rex V. Bailey, 1 Phillipps Ev. Knapp, 9 Pick. 511. 1 Taylor Ev. 104. § 824. 2 Rex «. Derrington, 2 C. & P. ^ Rg^ v. Griffin, Russell & Ryan 418. See Regina v. Pamenter, 12 C. C. 151. 1 Taylor Ev. § 825. Cox C. C. 177. « 1 Greenl. Ev. § 233. 1 Taylor 8 Rex V. Gibney, Jebb C. C. 15. Ev. § 826. Rex V. Thornton, 1 Moody C. C. ' Then Mr. Justice Parke, a.d. 27. 1 Taylor Ev. § 804. 1883. * Rex V. Jenkins, Russell & Ryan » Earle v. Picken, 5 C. & P. 542 C. C. 492. Commonwealth v. note. CONFESSIONS. 201 Finally, it may be stated as the result of the authorities, that the statement of a defendant as to the circumstances of a crime with which he is charged is evidence against himself, unless it has been elicited from him by a person who had at the time, actually or presumably, authority over the defend- ant in connection with the prosecution ; and who, in that capacity, induced the defendant to confess, whether the in- ducement assumed the form of a promise, a threat, or mere advice, provided it had reference to the defendant's escape from the criminal charge against him. Such is the existing rule as confirmed by the latest decisions ; but it is important to observe that it must be regarded as still comparatively unsettled and in a state of transition. There appears to be a growing conviction in the minds of many learned judges that it has been limited too much, and that it has so been made the technical instrument of excluding much valuable and unobjectionable evidence. The tendency, there- fore, seems to be rather towards an extension than a contrac- tion of the rule ; and the latest authorities are remarkable for the strong language in which the judges have reprobated even the principle of its limitation. ^ With respect to the whole of this subject, Lord Campbell, C. J., observed : ^ "If this matter were res Integra, I should, perhaps, have doubted whether it might not have been advisable to allow the confession to be given in evidence, and to let the jury give what weight to it they pleased." 1 Powell Ev. 275, 4th ed. C. C. 446; S. C. 2 Lead. Crim. Cas. ' Regina v. Baldry, 2 Denison 498. 202 CRIMINAL LAW. CHAPTER IX. THE EXAMINATION OP WITNESSES. When a witness has taken the stand, and no objection taken or sustained against his competency by the adverse party, he must be sworn by the officer of the court, or, when an affirmation is allowed, he must declare on affirmation. He may then be submitted to three distinct kinds of examination as to his knowledge of the facts which he is called to prove. 1st. He may be examined in chief by the party who calls him. 2d. He may be cross-examined by the adverse party.^ 3d. He may then be re-examined by the party who calls him. Although it is obvious that the regulation of the examina- tion of the witnesses in any given trial must be left mainly to the discretion of the presiding judge, yet certain general rules have been established for the conduct of such exam- ination, and it is the purpose of this chapter to state and explain them. If, after having been sworn, a witness refuse to give evi- dence, or to answer any question which the court holds that he is bound by law to answer, he is guilty of contempt, and may be punished accordingly. When such an offence is committed before a superior court, the refractory witness « ^ The terms "examination in posed towards the party by whom chief" and "cross-examination" he is called. The very opposite is, are commonly applied, respectively, however, often the fact ; and, ac- to the interrogation of witnesses by cordingly, the term ' ' cross-examina- the party who presents them to the tion " is used in the sense of " ex- court, and by his adversary; the amination ex adverse;" i.e., the legal rules of practice governing interrogation by an advocate of a both being mainly based on the witness hostile to his cause, without principle that every witness pro- reference to the form iu which the duced ought, in the first instance, at witness comes before the court, least, to be presumed favorably dis- Best Ev. § 651. THE EXAMINATION OF WITNESSES. 203 may be punished instanter by fine and imprisonment ; nor is it necessary that the cause of commitment should be set out at length in the warrant.^ When a witness is guilty of a similar contempt before an inferior tribunal, the mode of dealing with him will, in general, depend upon the statutable powers with which the particular court is clothed ; but in all cases a refusal to discharge the duties of a witness is re- garded in the light of a grave offence, as having a tendency to obstruct the course of public justice.^ In delivering the judgment of the Privy Council in a recent case, Sir John Taylor Coleridge thus eloquently discoursed of the advantages of the vivS. voce examination of witnesses : " The most careful note must often fail to convey the evidence fully in some of its most important elements, — those for which the open oral examination of the witness in presence of prisoner, judge, and jury, is so justly prized. It cannot give the look or manner of the witness ; his hesi- tation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration ; it cannot give the manner of the prisoner, when that has been impor- tant, upon the statement of any thing of particular moment. It is, in short, or it may be, the dead body of the evidence, without its spirit ; which is supplied, when given openly and orally, by the ear and eye of those who receive it." * The Examination in Chief. The object of the examination in chief is to elicit from the witness all the material facts which tend to prove the ease of the party who calls the witness. In such a case, as the pre- sumption and the ordinary fact are that the witness, having been chosen by the party who calls him, is favorable to his cause, and therefore likely to overstate or misstate the circum- stances which conduce to establish the party's case, it is a principal rule that, — On an examination in chief, a witness must not be asked leading questions. 1 Ex parte Fernandez, 10 C. B. ^ g Taylor Ev. § 1262. N. S. 3, and 6 H. & N. 717. Whit- ^ Regina v. Bertrand, L. R. 1 P. comb's Case, 120 Mass. 120. C. 535; 10 Cox C. C. 625. 204 CRIMINAL LAW. The simple meaning of this rule is, that a party who calls a witness to prove a case must not suggest answers to the wit- ness, nor frame his questions in such a manner that the witness by answering merely " yes" or " no," shall give the reply and the evidence which the party wishes to elicit. A question is said to be leading when the words, which the wit- ness is expected and required to utter, are put into his mouth, or when it suggests to the witness the answer which the examiner wishes or expects to have ; and such a question is inadmissible, because the object of calling witnesses and exam- ining them vivSi voce in open court is, that the judge and jury may hear them tell their own unvarnished tale of the cir- cumstances which they are called to attest. If, therefore, a party or his counsel were allowed to put a question to their own witness which the latter might answer by a mere affirma- tive or negative, it is apparent that the evidence would be the statement of the party, and not that of the witness. Such a course would strike radically at the credibility of all oral evidence, and therefore it is a sound and established rule, that, on the examination in chief, leading questions must not be asked.i The rule may be exemplified thus : A. B. is charged with stealing a watch, the property of CD. E. F. saw A. B. take the watch from the counter in C. D.'s store. Now, if the counsel for the prosecution, in order to prove the theft, were to call E. F., and ask him " whether, at such a time, he saw A. B. enter C. D.'s store and take the watch from the coun- ter," it is plain that such a question would be leading, because it would at once suggest to the witness the answer which he was expected to make, and the prisoner would be convicted by an answer simply in the affirmative. The answer to the latter branch of the question involves the whole question of guilt and the substance of the charge. 1 In the course of the argument thing about something." In re- in Lincoln v. Wright, 4 Beav. p. spect to leading questions, it is said, 171, Lord Langdale observed: "All "It is entirely a question for the interrogatories must, to some ex- presiding judge whether or not the tent, make a suggestion to the wit- examination is being conducted ness. It would be perfectly nuga- fairly." Roscoe N. P. Ev. 182, 13th tory to ask a witness if he knew any ed. THE EXAMINATION OP WITNESSES. 205 The witness ought, therefore, to be asked, not whether he saw the prisoner commit the offence, but what he saw the prisoner do at the time when and at the place where it is alleged that the offence was committed. It is also to be noticed, that questions are not objectionable as leading questions while the examination is only introduc- tory to what is material. Thus, in the above example, it would be quite proper, for the purpose of saving the time of the court, to ask the witness whether at a specified time he entered C. D.'s store, and even whether at that time he saw the prisoner there, and near the counter. Such questions are quite immaterial, and may therefore be put in the short- est and most direct manner possible, because the answer can- not inculpate the prisoner in any proximate degree, nor even at all. But when the real issue is approached, and when it is sought to fix guilt on the prisoner, the witness must be asked, not whether he saw the prisoner do a certain act, but what he saw the prisoner do. Such a course of examination is clearly necessary to prevent, at least in some measure, the possibility of collusion between a prosecutor, or a party, and his witness. It may be noticed in this place, that, where an adverse party has reason to suspect collusion between his opponent's witnesses, or even where he is without any ground of reason- able suspicion, he may apply to the court, in any civil or criminal proceeding, to order all such witnesses,^ or any of them, with the exception of the one under examination, to leave the court ; and such an order, although apparently not absolutely a matter of right, is never refused to the applicant. The Gen. Sts. ch. 170, § 22, enacts : " The magistrate may at his discretion, while examining a witness, exclude from the place of examination all the other witnesses, and may if re- quested, or if he see cause, direct the witnesses, for or against the prisoner, to be kept separate so that they cannot converse with each other until they have been examined." The order does not usually extend to an attorney in the cause, nor to scientific witnesses. If a witness remain in court after such 1 This includes the prosecutor. Kegina v. Newman, 3 C. & K. 260, per Lord Campbell, C. J. 206 CRIMINAL LAW. an order, it seems that he may be attached ; but his evidence will be received, although subject to strong observation.^ The rule that leading questions must not be asked on ' an examination in chief is neither inflexible nor universal. The conduct of all vivS voce examination is at all times subject to the discretion and direction of the judge ; and, although he will enforce vigilantly the general rule, yet there are also various cases in which he will suffer it to be relaxed. The foundation of the rule is, that the witness is favorable to the party who calls him. Whenever, therefore, it appears that .the witness is hostile, or that his evidence cannot be extracted by general questions as to his knowledge of material facts, the judge may, and will, permit the'party, or his counsel, to put a leading question to him point blank as to a material fact, and require him to answer it in the affirmative or negative. In such a case an examination in chief frequently assumes the form of a cross-examination.^ So, also, where a question from its nature cannot be put except in a leading form, the judge will allow it to be put. 1 Chandler v. Home, 2 M. & Rob. 423, per Erskine, J., who stated that it was now so settled by all the judges. Cobbett v. Hudson, 22 L. J. Q. B. 13, per Lord Campbell; 1 El. & Bl. 14. 3 Russell on Crimes, 571, 572, 5th ed. 2 Taylor Ev. § 1260. 1 Greenl. Ev. § 432. " In Moody v. Rowell, 17 Pick. 498, the law on this point was stated by Chief Justice Shaw as follows: "The court have no doubt that it is within the discretion of a judge at the trial, under particular cir- cumstances, to permit a leading question to be put to one's own wit- ness, as when he is manifestly re- luctant and hostile to the interest of the party calling him, or where he has exhausted his memory with- out stating the particular required, where it is a proper name, or other fact, which cannot be significantly pointed to by a general interroga- tory, or where the witness is a child of tender years, whose attention can be called to the matter required, only by a pointed or leading ques- tion. So a judge may, in his dis- cretion, prohibit certain leading questions from being put to an ad- versary's witness, where the witness shows a strong interest or bias in favor of the cross-examining party, and needs only an intimation to say whatever is most favorable to that party. The witness may have pur- posely concealed such bias, in favor of one party, to induce the other to call him and make him his witness ; or the party calling him may be compelled to do so, to prove some single fact necessary to his case. This discretionary power to vaiy the general rule is to be exercised only so far as the purposes of jus- tice plainly require it, and is to be regulated by the circumstances of each case." THE EXAMINATION OP WITNESSES. 207 Thus, where an offence is proved, a prisoner may be pointed out to a witness, and the latter may be asked whether the pris- oner was the man whom the witness saw commit the offence.^ So, also, where a witness has manifestly or apparently for- gotten a circumstance, and all indirect attempts to recall it to his mind have failed, the circumstance may be put to him in a leading form, and he may be asked whether he remem- bers it. Thus, where a witness stated that he could not remember the names of certain persons, but that .he should remember and be able to identify them if they were read to him. Lord Ellenborough allowed this to be done.^ On this principle, it is allowable to hand a witness a memo- randum in his own writing, containing an account of the dis- puted facts, and to ask him to peruse it and give his evidence from his memory, as refreshed by his own memorandum. Where such a memorandum is used, the opposite counsel has a right to inspect it, and to cross-examine the witness on it.^ The next important rule under the head of the examina- tion in chief is, that — A witness must be asked only questions of fact which are relevant and pertinent to the issue ; and he cannot be asked irrelevant questions, or questions as to his own infer- ences from, or personal opinion of, facts. Since it is the province of the judge or of the jury to draw all inferences from facts, it follows, as a general rule, to which, however, there are several exceptions, that — A witness must only state facts ; and his mere personal opinion is not evidence. The object of this rule is to keep the witness, as much as possible, from trespassing on the functions of either judge or jury ; and it is relaxed as often as the opinion of a witness can be regarded in the nature of a presumptive fact.* Thus, in cases of insanity, a medical witness cannot be asked whether he considers that the patient was insane ; for that is the issue for the court and jury ; but he may be asked whether certain 1 Kex u. Watson, 2 Stark. Rep. « Doe v. Perkins, 3 T. K. 749. 128. Commonwealth v. Burke, 114 Mass. ^ Acerro v. Petroni, 1 Stark. Eep. 261. 100. ^ Powell Ev. 99, 4th ed. 208 CRIMINAL LAW. symptoms are indications of insanity, and his answers are evidence for the guidance of the court and jury.^ In the case of Regina v. Rowton,^ which established that, in reply to evidence of a prisoner's good character, the pros- ecution may call witnesses to prove that his general character is bad, it was held by the majority of the judges that wit- nesses>to character can only speak as to the prisoner's reputa- tion, having reference to the nature of the charge, and may not give their own opinion on the subject.^ The general rule stated above is subject to the following exceptions : — 1st Exception. On questions of identification, a witness is allowed to speak as to his opinion or belief. Every person is competent to express an opinion on a ques- tion of identity as applied to persons, things, animals, or hand- writing, and may give his judgment in regard to the size, color, weight of objects, and may estimate time and distances. He may state his opinion in regard to sounds, their character, from what they proceed, and the direction from which they seem to come.* The correspondence between boots and foot- prints is a matter requiring no peculiar knowledge, and to which any person can testify." So a person not an expert may give his opinion whether certain hairs are human hairs.^ And a witness may state what he understood by certain " ex- pressions, gestures, and intonations," and to whom they were applied ; otherwise the jury could not fully understand their meaning.'' It is also within the range of common knowledge to observe those appearances, in marks or stains caused by blood or other fluids, which indicate the direction from which they came, if impelled by force.^ 1 Regina u. M'Naghten, 10 Clark ^Commonwealth, v. Pope, 103 & Finnelly, 200. Commonwealth Mass. 440. V. Rogers, 7 Met. 500; S. C. 1 ^ Commonwealth «. Dorsey, 103 Lead. Crim. Cas. 94. Mass. 412. 2 Leigh & Cave C. C. 520; S. C. '' Leonard ». Allen, 11 Cush. 2 Lead. Crim. Cas. 333. Common- 241. wealth u. O'Brien, 119 Mass. 842. ^ Commonwealth v. Sturtivant, 8 Commonwealth v. Webster, 5 117 Mass. 122, where the subject is Cush. 295. Commonwealth v. fully discussed in the opinion of the Sacket, 22 Pick. 394. court, which was delivered by Mr. * State V. Shinborn, 46 N. H. 497. Justice Endicott. THE EXAMINATION OP WITNESSES. 209 2d Exception. A witness's opinion is receivable in evidence to prove the apparent condition or state of a person or thing. Thus, a witness may state that a person appeared to him confused or agitated, rich or poor, young or old ; or that a building appeared to be in good or bad condition. A witness may give his judgment whether a person was intoxicated at a given time.^ Zd Exception. The opinions of skilled or scientific wit- nesses are admissible evidence to elucidate matters which are of a strictly professional or scientific character.^ Books, and in particular dictionaries,^ are admissible to show the sense in which words are used.* Books are only hearsay ; often of the most vague, inconsistent, and remote character ; statements made by absent, perhaps anonymous, witnesses, who wrote without being under the fear of the penalties of an oath, and without being subject to cross- examination. It is plain, therefore, on the first principles of evidence, that they are without any of the elements of legal credibility.® Thus, books on medical jurisprudence cannot be read by a witness to the jury, although the witness is an expert, and concurs in the views therein expressed.® ■Writings •which are admissible to Refresh the Memory. A document which may be inadmissible intrinsically and per se as primary or secondary evidence, either because it does not embody the substance of the issue, or because it is in the nature of hearsay, will often be admissible to refresh the memory of a witness, and to enable him to speak to the matters to which it refers. 1 People V. Eastwood, 4 Keman, the judge will refer to an almanac. 562, cited in Commonwealth v. Page v. Faucet, Cro. El. 227. See Sturtirant, 117 Mass. 134, where Tutton v. Darke, 5 H. & N. 649. many of the cases are collected. * Powell Ev. 105, 106, 4th ed. 2 Campbell u. Riokards, 5 B. & ^ Commonwealth u. Sturtivant, Adol. 846. M'Fadden v. Murdook, 117 Mass. 123. Commonwealth u. Irish Rep. 1 C. L. 211. 2 Taylor Ev. Brown, 121 Mass. 70. Common- § 1418, 7th ed. wealth v. Wilson, 1 Gray, 337. ' dementi v. Golding, 2 Campb. Washburn v. Cuddihy, 8 Gray, 25. 430. * If the point at issue be a date, 14 210 CRIMINAL LAW. It appears that such a document may he handed to a wit- ness for inspection, and that the witness may give oral evi- dence accordingly, after a perusal of its contents : — 1. When the writing actually revives in his mind a recol- lection of the facts to which it refers. 2. When, although it fail to revive such a recollection, it creates a knowledge or belief in the witness that, at the time when the writing was made, he knew or believed it to con- tain an accurate statement of such facts. 3. When, although the writing revives neither a recollec- tion of the facts nor of a former conviction of its accuracy, the witness is satisfied that the writing would not have been made unless the facts which it purports to describe had oc- curred accordingly.^ It is not necessary that the memorandum should have been actually made by the witness, if he can otherwise make it an original source of personal recollection. Thus, a witness has been allowed to refresh his memory from a paper which he remembers to have recognized as a correct narrative when the facts were fresh in his memory.^ There is no precise time within which a writing must be shown to have been made before it can be used by a witness. It is not necessary that it should have been made contempo- raneously with the occurrence of the fact ; but it ought to have been made soon afterwards, or at least within such a subsequent time as will support a reasonable probability that the memory of the witness had not become impaired when the statement was committed to paper.^ It appears to be only necessary that the witness should swear positively that the memorandum was made at a time when he had a distinct recollection of the facts, and ante litem motam.* The memorandum must either have been made by the wit- ness or recognized by him, at or about the time when it was made, as a correct account. It must not' contain any of the elements of hearsay, and it will therefore be inadmissible if 1 Powell Et. 359, 360, 4th ed. » Powell Ev. 362, 363, 4th ed. 2 Duchess of Kingston's Case, 20 * Wood v. Cooper, 1 C. & K. Howell State Trials, 619. 646. THE EXAMINATION OF WITNESSES. 211 it appear to be the statement of a third person,^ as where it had been drawn up by such a person from the witness's own memoranda ; or even if it be a copy made bj' the witness himself from his own original memoranda.^ This rule is consistent with the general principles of secondary evidence, by which the copy of a copy, unless in the nature of a dupli- cate original, is entirely inadmissible, and corresponds with the express dictum of Mr. Justice Patteson, that " the copy of an entry, not made by the witness contemporaneously, .does not seem to be admissible for the purpose of refreshing a witness's memory."^ The cases where such a privilege ap- pears to have been conceded, as where the author of a written report * or an article in a newspaper ^ has been allowed to refer to the printed versions, are cases where such printed versions appear to have been treated as originals, and not as copies.^ The Cross-Examination. When a witness has been called by one party, the other party, as soon as the examination in chief is closed, has a right to cross-examine him. The exercise of this right is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a cor- rect and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description, are all fully investigated and ascertained and submitted to the considera- tion of the jury, who have an opportunity of observing his demeanor, and of determining the just value of his testi- mony. It is not easy for a witness, subjected to this test, to impose on a court or jury ; for, however artful the fabrication 1 Anon., Ambler, 252. * Home v. Mackenzie, 6 Clark & 2 Jones V. Stroud, 2 C. & P. Finnelly, 628. 196. 5 Topham v. M'Gregor, 1 C. & s Burton v. Plummer, 2 Ad. & K. 320. El. 343. » PoweU Ev. 363, 364, 4th ed. 212 CRIMINAL LAW. of falsehood may be, it cannot embrace all the circumstances to which a cross-examination may be extended.^ The right to cross-examine is discretionary,* and, when the examination in chief has resulted in clear, conclusive, or un- impeachable evidence, it will be prudent for the adverse party not to claim his privilege; for cross-examination in such a case, instead of weakening the evidence, generally strengthens and confirms it. So, where the adverse party does not dispute the truth of his opponent's case, but relies on a justification or an excuse, he will not think it desirable, generally, to cross-examine a witness. As the object of the examination in chief is to lay all the material evidence of a case before the court, so the object of cross-examination is to impeach the accuracy, credibility, and general value of that evidence; to sift, detect, and expose discrepancies ; or to elicit suppressed facts which weaken or qualify the case of the examining party and support the case of the cross-examining party .^ It is therefore, generally, a rule that on cross-examination an adverse witness may be asked leading questions. The reason for excluding leading questions, on the exami- nation in chief, on which the witness is generally favorable to the examiner, does not usually apply to cross-examination, on which the witness is as generally hostile to the cross- examiner. Accordingly, on cross-examination, a witness may be asked in direct words as to the truth or falsehood of a matter which bears substantially on the issue. Thus, in debt for goods, when the defence is an unexpired term of ci'edit, a witness who proves the sale and the debt could not properly be asked whether he sold a particular description of goods to the defendant at a certain price, and for present payment ; but he should be asked separately whether he sold 1 2 Taylor Ev. § 1428, 7th ed. came behind him and called him by- Lord Bacon, in his Essay on Cun- his true name, whereat straightways ning, shrewdly observes, " A sud- he looked back." den, bold, and unexpected question '' The cross-examination is not doth many times surprise a man, confined to the matters inquired of and lay him open. Like to him in chief. Moody v. Rowell, 17 that, having changed his name, and Pick. 490, 498. Commonwealth v. walking in Paul's, another suddenly Morgan, 107 Mass. 199. THE EXAMINATION OP WITNESSES. 213 any goods at all, and, if so, what they were, and what were the terms of payment. But on cross-examination he might be asked about the goods specifically and by name, and whether it was not understood between the parties that the purchaser was to have a specific time, such as a year, of credit. But the rule under consideration appears to be, and is practically, subject to the restriction that a witness, even on cross-examination, can be asked leading questions only, if he be, or appear to be, adverse to the cross-examiner ; and where the witness appears to be favorable to him, the court will sometimes, and even frequently, not suffer even a cross- examiner to lead his opponent's witness. Thus, on Hardy's trial, a witness for the prosecution, on evincing a favorable disposition towards the prisoner, was asked by his counsel whether, at a meeting, certain persons had not used certain specified expressions which, if uttered, would have been favor- able to the defence. But the court held that in such a case counsel could not put words into the witness's mouth ; and Buller, J., said: " You may lead a witness upon a cross-exami- nation to bring him directly to the point as to the answer ; but you cannot go the length of putting into the witness's mouth the very words which he is to echo back again." i In examining in chief, the object of the party should be to elicit from the witness all the material facts which he is called to prove, and to take especial care that the witness does not stand down before the latter has proved that part of the case which he is expected to prove. Generally, it is de- sirable and proper to ask him only such questions as will confine him to the matter in issue, and such as will elicit his own personal and independent account of it. Unless he devi- ate into hearsay, or other inadmissible kinds of evidence, or unless he ramble into utterly irrelevant matters, it is always the right, as it is generally the prudent, course not to inter- rupt a witness, when examining him in chief. If he be hos- tile or dishonest, a more stringent style of examination may be adopted ; but if he be favorable, or even adverse but honest, a party will seldom lose any thing by suffering a wit- ness to give his own ungarbled version of a circumstance ; 1 Eex V. Hardy, 24 Howell State Trials, 659. Powell Ev. 456, 457. 214 CRIMINAL LAW. and such a course will always be most satisfactory to the court, and most conducive to the administration of justice. In criminal cases, especially where a prisoner is not defended, it is the practice, and probably the duty, of a prosecuting counsel, to ask a witness questions which are favorable in their object to the prisoner ; for the duty of a prosecuting counsel is to lay all material evidence impartially before the court, and not to press for a conviction. In all such cases, and in cross-examination, as on the examination in chief, the court will exercise its discretion as to how far it is desirable and consistent with the ends of justice to allow a question to be put in a leading form. It has been stated, however, by Alderson, B., that the right to lead on cross-examination exists, whether the witness be favorable or not.' Great latitude is allowed in the questions which a party is permitted and entitled to ask on cross-examination ; and he will seldom be stopped by the court, unless the question be manifestlj' irrelevant to the case, and calculated neither to qualify the examination in chief nor to impeach the credit of the witness.^ It is manifest that questions which would be clearly irrelevant on the examination in chief may be of the highest importance when asked on cross-examination. Gen- erally, on cross-examination a witness may be asked any question the answer to which may have a tendency to affect his credit. But he will not always be obliged to answer such questions,^ and generally he may be asked questions which affect his veracity or his memory ; such as, whether he has been convicted on a trial on a criminal charge ; * whether he 1 Parkin v. Moon, 7 C. & P. 408. wealth v. Kelley, 113 Mass. 453. ^ The extent to which a witness Demerritt v. Randall, 116 Mass. may be cross-examined is ordinarily 331. within the discretion of the judge ^ The rule of law is settled, that, presiding at the trial ; and his deci- in cases in which a witness is not sion is not subject to be reversed bound to answer a question, yet the or revised by an appellate court, question may be asked if his an- Commonwealth v. Shaw, 4 Cush. swer, should he waive his privilege, 593. Odiorne v. Bacon, 6 Cush. would be competent. Bootu. Ham- 185, 191. Miller v. Smith, 112 ilton, 105 Mass. 22. 1 Greenl. Ev. Mass. 470. Commonwealth v. Silk, § 460. Ill Mass. 431. Commonwealth v. * The fact that a witness has Lyden, 113 Mass. 452. Common- been in the house of correction can- THE EXAMINATION OP WITNESSES. 215 is a relation, or intimate friend, or under any special obliga- tion, to the party who calls him ; whether he be not identified or connected with him in interest; whether he has not been on terms of enmity with the adverse party ; and whether his memory is not defective generally, or as to the particular transaction. Such questions are within the circumference of the issue, although not within that inner circle to which the examination in chief is confined. When the cross-examination is rambling, prolix, or irrele- vant, the court may and will properly interfere to stop it. But where it is apparently irrelevant, and the cross-examiner undertakes to show subsequently that the question is mate- rial, it will generally be allowed.^ Generally, a cross-examination will be held irrelevant where it tends neither to contradict nor to qualify the result of the examination in chief, nor to impeach the credit of the witness. It is also irrelevant, in civil proceedings, when it is sought to infer an act of a party from his dealings with a third party. Thus, in an action for a nuisance, the defendant's witness cannot be asked on cross-examination whether compensation for a similar nuisance has not been paid by the defendant to a third person in the same position as the plaintiff.^ So, evi- dence of the mode in which a party has contracted with third parties is no evidence of the mode in which he contracted with the adverse party in a similar transaction ; and the latter can- not ask a witness on cross-examination as to the terms on which the party contracted with such third parties.^ Neither can a witness be asked as to the statement or admission of a third person, to show that a liability belongs to such third person, and not to the party charged ; for such evidence would be hearsay.* But he may be asked whether such a third person is not the person to whom a credit was given, or who was dealt with as the party originally liable. And it not be proved by cross-examination & Finnelly, 122 ; Maclean & Robin- of the witness, but must be proved son, 821. Eyerson v. Abington, by the record of his conviction. 102 Mass. 531. Commonwealth v. Quin, 5 Gray, ' Hollingham v. Head, 4 C. B. 478. N. S. 388. 1 Haigh y. Belcher, 7 C. & P. 389. * Watts v. Lyons, 6 M. & G. 2 Tennant v. Hamilton, 7 Clark 1047. 216 CRIMINAL LAW. seems that he might be asked such a question as the forego- ing, in order to test his memory or credibility.^ It is a settled rule, that, when a question is put to a wit- ness which is collateral or irrelevant to the issue, his answer cannot, for the purpose of discrediting him, be contradicted by the party who asked the question.^ When a defendant becomes a witness under St. 1870, ch. 393, § 1, cl. 3, he may be cross-examined as to every thing relevant to the issue. By the common law, a witness cannot be obliged to criminate himself, and may therefore refuse to testify to any facts which will tend to prove him guilty of a crime. But his refusal must be made at the beginning of his examination upon the issue whether a crime has been commit- ted by him. If he answers any questions upon that subject, he cannot afterwards interpose his privilege, but is liable to be fully examined and cross-examined upon the matter.^ A party to the cause, who voluntarily offers himself as a witness, is entitled to no more, and in some respects less, protection than a third person who testifies in obedience to a summons. A party taking the stand as a witness in his own behalf may be cross-examined in relation to a communication between himself and his counsel, as to which the latter would not be allowed to testify.* And a refusal to answer a mate- rial question on the ground that it might criminate him is competent evidence against him, when it would not be against an ordinary witness.^ The twelfth article of the Declaration of Rights, prefixed to the Constitution of the Commonwealth, declares that no subject shall be compelled to answer or furnish evidence against himself. The recent statutes allowing a person ac- cused of crime to testify upon his trial (which he could not do at common law), provides, in order to secure this con- stitutional privilege, that he " shall at his own request, but 1 HoUinghara v. Head, 4 C. B. Commonwealth v. Price, 10 Gray, N. S. 388. 472. Commonwealth v. Nichols, 2 Harrington v. Lincoln, 2 Gray, 114 Mass. 286. 133. Commonwealth v. Cain, 14 * Wobum u. Henshaw, 101 Mass. Gray, 7, 9. Commonwealth v. Buz- 193. zell, 16 Pick. 1.58. ^ Andrews v. Frye, 104 Mass. 8 Foster v. Pierce, 11 Cush. 437. 234. THE EXAMINATION OP WITNESSES. 217 . not otherwise, be deemed a competent witness, and his neg- lect or refusal to testify shall not create any presumption against him."^ The object of these statutes is not to protect or assist criminals, but to promote the discovery of truth, so far as can be done without infringing the constitutional rights of the subject. If the accused chooses not to be a witness, he cannot be compelled to testify, and no inference prejudi- cial to him is to be drawn from his silence.^ But if he puts himself on the stand as a witness in his own behalf, and tes- tifies that he did not commit the crime imputed to him, he thereby waives his constitutional privilege, and renders him- self liable to be cross-examined upon all facts relevant and material to that issue, and cannot refuse to testify to any facts which could be competent evidence in the case, if proved by other witnesses.^ Impeacbing the Character of a Witness. The character of a witness may he impeached either by cross-examination, subject to the rules already mentioned ; or by general evidence affecting his credit for veracity ; * or by evidence that he has before done or said that which is incon- sistent with his evidence on the trial ; or, lastly, by contrary evidence as to the facts themselves. It is well settled that the credit of a witness can be im- peached by general evidence only, and not by evidence as to particular facts not relevant to the issue ; for this would cause the inquiry, which ought to be simple and confined to the matters in issue, to branch out into an indefinite number of issues. The regular mode of examining into the general reputation, is, to inquire of the witness whether he knows the general reputation for truth and veracity of the person im- 1 St. 1870, ch. 393, § 1, cl. 8. « Evidence that a female witness ^ Commonwealth v. Harlow, 110 is a common prostitute is not ad- Mass. 411. missible for the purpose of impeach- ' Commonwealth w. Nichols, 114 ing her credibility. Commonwealth Mass. 285. 'Commonwealth v. Lan- v. Churchill, 11 Met. 538, overrul- nan, 13 Allen, 563. Commonwealth ing Commonwealth v. Murphy, 14 V. Mullen, 97 Mass. 545. Common- Mass. 387. wealth ». Morgan, 107 Mass. 199. 218 CRIMINAL LAW. peaehed,^ that is, what is said in regard to it ; and what that reputation is. The witness is not allowed to testify to his own opinion. The inquiry must be made as to his general reputation where he is best known. It is not enough that the impeaching witness professes merely to state what he has heard " others" say ; for those others may be but few. He must be able to state what is generally said of the person by those among whom he dwells, or with whom he is chiefly conversant; for it is this only that constitutes his general reputation or character. And, ordinarily, the witness ought himself to come from the neighborhood of the person whose character is in question. If he is a stranger, sent thither by the adverse party to learn his character, he will not be allowed to testify as to the result of his inquiries ; but, otherwise, the court will not undertake to determine, by a preliminary in- quiry, whether the impeaching witness has sufficient knowl- edge to the fact to enable him to testify, but will leave the value of his testimony to be determined by the jury.^ Whenever general evidence is given impeaching the credit of a witness, the opposite party may go into a cross-exam- ination to ascertain the grounds of the unfavorable opinion expressed, and, in doing so, may interrogate the witness as to ' his opportunities for knowing the character of the impeached witness ; how long a time generally the unfavorable reports have prevailed ; and may require him to state the names of all persons whom he has heard speak against the reputation of the witness impeached.^ " In point of principle," said Fletcher, J.,* " it would seem proper to make this inquiry, because the witness is called on to state what is the reputa- tion of the person impeached ; what is his character for truth by report ; what is said as to his character for truth ; and it may be very material and important to know from whom in particular the reports come, and what persons they were 1 Whether the circumstances of Norris, 103 Mass. 565, distinguish- the case require this preliminary ing Bates v. Barber, 4 Cush. 107. question to be put is a matter '^ 1 Greenl. Ev. § 461. Rundell within the judicial discretion of the v. Le Fleur, 6 Allen, 480. presiding judge, and cannot be re- ^ Bates v. Barber, 4 Cush. 107. vised on exceptions. Wetherbee v. ^ Bates v. Barber, 4 Cush. 109. THE EXAMINATION OP WITNESSES. 219 who spoke against the character of the person impeached. Upon such inquiry, it may appear that all the persons from whom the witness has heard any thing against the person impeached are his personal enemies, and so situated in regard to him that their speech and reports against him are entitled to no consideration whatever. The inquiry may also be proper in order to test the extent and means of information possessed by the witness in regard to the character of the party impeached for truth and veracity. By allowing such inquiry, it may perhaps be made to appear that the imputed bad character is wholly factitious, and got up for a particular purpose." The Eight of a Party to Discredit his ov7n Witnesses. St. 1869, ch. 425. The St. 1869, ch. 425, entitled, " An Act concerning the examination of witnesses," enacts : " The party producing a witness before any court, as well criminal as all others, or before any person having by law or by consent of parties au- thority to hear, receive, and examine evidence, shall not be allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also prove that he has made at other times statements inconsistent with his present testimony ; but before such last-mentioned proof can be given, the circumstances of the supposed state- ment sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statements, and if so, allowed to ex- plain them." This statute abrogates the rule of the common law bv which a party who had called a witness was deemed to have held him out as worthy of credit, and was therefore not al- lowed to prove by other witnesses statements previously made by him inconsistent with his present testimony, which would not be admissible as independent evidence, and which could have no effect but to impair his credit with the jury.^ So great a change in the rules of evidence, giving so extensive 1 Adams v. Wheeler, 97 Mass. 67. 220 CRIMINAL LAW. a power to a party to introduce proof in contradiction and disparagepient of a witness put on the stand by himself, un- controlled by the discretion of the judge before whom the trial is had, must be kept strictly within the bounds of the statute, and cannot be construed as enabling a party to con- tradict his own witness in any respect in which the law would not permit him to contradict a witness produced by the oppo- site party.i Thus, in a recent case,^ the testimony which was sought to be contradicted was to mere matter of opinion ; would have been incompetent, if objected to ; and, being irrelevant and immaterial, could not have been contradicted, if elicited on cross-examination from a witness called by the opposite party. The surprise of the party calling a witness at his statements is not one of the conditions essential to the exercise of the right to contradict given by the statute. A party may often be obliged to call an adverse witness, or a witness who he may have reason to suppose will give testimony favorable to him. It was to relieve a party so situated from the embar- rassment resulting from the adverse testimony of a hostile witness that the statute was passed. Before its passage, the witness could not be contradicted. The object of the statute is simply to allow the party to impeach the credibility of his witness, by showing, in the manner pointed out, that he has made statements inconsistent with his testimony ; and the contradiction can have no legal tendency to establish the truth of the subject-matter of the statements.^ If a witness be asked, on cross-examination, whether he ever made a formal verbal statement, as to matters connected with the issue, different to that which he has made at the trial, and if he answer in the negative, evidence may be given that he has made such a former statement ; but it is neces- sary to lay a foundation for such evidence by first stating to the witness all the circumstances under which he is supposed 1 Ryerson v. Abington, 102 Mass. ^ Ryerson v. Abington, 102 Mass. 526, 530, 531. Brannon o. Hursell, 526. 112 Mass. 63. Day u. Cooley, 118 s Brooks v. Weeks, 121 Mass. Mass. 524. Newell v. Homer, 120 433. Mass. 278. THE EXAMINATION OP WITNESSES. 221 to have made such a former and contradictory statement, in order that he may have an opportunity of refreshing his mem- ory, and explaining the discrepancy.^ To quote the words of Alderson, B., "A witness may be asked any question which, if answered, would qualify or contradict some previous part of that witness's testimony given on the trial of the issue ; and, if that question is put to him and answered, the oppo- site party may then contradict him. . , . You may ask him any question material to the issue ; and, if he denies it, you may prove that fact, as you are at liberty to prove any fact material to the issue." ^ 1 Crowley v. Page, 7 C. & P. 791. " Attorney- General v. Hitchcock, 1 Exch. 102. In Hathaway u. Crocker, 7 Met. 265, the law on this point was thus stated by Chief Justice Shaw : " It is a well settled rule of evidence, that when a wit- ness testifies to a material fact, within the issue, the adverse party may give evidence, that the witness has, at some other time, or at vari- ous times, made a difierent state- ment of the fact. It tends to show that his present testimony is erro- neous or false as to such material fact. And such contradictory state- ment may be proved by the witness himself, on cross-examination, or by other witnesses, or by both. The fact that he has formerly stated what he now denies, or the reverse, becomes itself a fact which may be proved by any competent evidence. The difference between the cases where other evidence may be called to contradict a witness, and where it cannot, is this: If the fact to which the contradiction applies is a material fact, within the issue, he may be contradicted by any evi- dence of other statement; but when it is not material, and not within the issue, contradictory evidence cannot be introduced. For, in cross-examination, an adverse party is usually allowed great latitude of inquiry, limited only by the sound discretion of the court, with a view to test the memory, the purity of principle, the skUl, accuracy, and judgment of the witness; the con- sistency of his answers with each other, and with his present testi- mony ; his life and habits, his feel- ings towards the parties respec- tively, and the like; to enable the jury to judge of the degree of confi- dence they may safely place in his testimony. The rule is, that when the question is of this description, relative to a fact collateral to the issue, and not material to it, the answer of the witness must be taken as it is, and other evidence cannot be offered to contradict him. And the reason of this rule is obvious: The cross-examination, to the ex- tent mentioned, is allowed only for the purpose of exhibiting the wit- ness in his true light to the jury; and, when that is done, the whole purpose of cross-examination to matters out of the issue is accom- plished. Besides, if a different rule were adopted, if the rule stated were not strictly adhered to, the trial of a cause would branch out into collateral issues without limit. A witness, therefore, cannot be 222 CRIMINAL LAW. Tbe Re-Ezamination. When the cross-examination of the witness is concluded, the party who called him has the right to re-examine him on all matters arising out of the cross-examination, for the pur- pose of reconciling any discrepancies that may exist between the evidence on the examination in chief and that which has been given on cross-examination, or for the purpose of re- moving or diminishing any suspicion that the cross-exam- ination may have cast on the evidence in chief.^ But the re-examining counsel cannot ask the witness as to new mat- ter ; in other words, the questions which may be asked must be exclusively such as are connected with and arise out of the cross-examination ; and no questions can be asked on re- examination which tend to introduce new evidence which might have been given on the examination in chief.^ Ac- cordingly, in The Queen's Case, Lord Tenterden,^ in deliv- ering the judgment of the court, said, " I think the counsel has a right, upon re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross- examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those expressions ; but I think he has no right to go further, and to introduce matter new in itself, and not suited to the pur- pose of explaining either the expressions or the motives of the witness." It is therefore held that a witness who has been cross-examined as to a conversation with a party cannot be re-examined as to parts of the conversation not connected with the portion to which the cross-examination referred.* But, where a party has omitted to put a question on the called to contradict what another i Commonwealth v. Wood, 111 witness has thus testified on cross- Mass. 408. examination relative to a fact not " The Queen's Case, 2 B. & B. material to the issue." Common- 297. Button ». Woodman, 9 Cush. wealth V. Buzzell, 16 Pick. 157, 158. 255. Brockett v. Bartholomew, 6 Met. ' Then Lord Chief Justice Ah- 399. Commonwealth v. Sacket, hott, a.d. 1820. 22 Pick. 394. Tucker v. Welsh, * Commonwealth v. Keyes, 11 17 Mass. 160. Cooley v. Norton, Gray, 323, 325. Prince v. Samo, 4 Cush. 93. 7 Ad. & El. 627. THE EXAMINATION OP WITNESSES. 223 examination in chief, a judge will usually allow it to be put, if requested to do so by counsel. The judge has also a dis- cretionary power to recall a witness at any time, for the pur- pose of putting a question to him.^ The re-examination practically closes the examination of a witness ; although, in rare cases, witnesses may be and are called to justify the character of an impeached witness, or to impeach the character of an impeaching witness. It may be noticed, before concluding this chapter, that no action will lie against a witness for what he says or does in giv- ing evidence before a court of justice ; public policy requiring that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice.^ The House of Lords recently held that this privilege extends to a witness compellable and required to attend and give evidence before a court of inquiry held under the Queen's Regulations.^ 1 The recalling of a government Netherolift, 1 C. P. D. 540. The ■witness during the progress of the same doctrine is held in Massachu- defence, to testify upon a point on setts, ■with the qualification, as to which he has before testified, is a parties, counsel, and ■witnesses, that, matter ■within the discretion of the in order to he privileged, their state- court in directing the course of the ments made in the course of an ac- trial. Commonwealth v. McGorty, tion must he pertinent and material 114 Mass. 299. Commonwealth v. to the case. Watson v. Moore, 2 Kicketson, 5 Met. 412, 429. Com- Cush. 133, 188. Kidder v. Park- monwealth v. Moulton, 4 Gray, 39. hurst, 3 Allen, 393. Hoar v. Wood, Commonwealth v. Arranoe, 5 Allen, 3 Met. 193. In the last cited case, 517. Chief Justice Shaw says : " We take ^ Phelps V. Stearns, 4 Gray, 105. the rule to be well settled by the Parker v. Huntington, 7 Gray, 36. authorities, that words spoken in ' Dawkins v. Lord Rokeby, L. R. the course of judicial proceedings, 8 Q. B. 255 ; L. R. 7 H. L. 744. It though they are such as impute is settled by the English cases that crime to another, and therefore, if judges, counsel, parties, and wit- spoken elsewhere, would import nesses are absolutely exempted from malice and be actionable in them- liability to an action for defamatory selves, are not actionable if they are words published in the course of applicable and pertinent to the sub- judicial proceedings. Dawkins v. ject of inquiry." Judgment in Rice Rokeby, ubi supra. Seaman v. v. Coolidge, 121 Mass. 393, 395. 224 CRIMINAL LAW. CHAPTER X. APPEALS. The twelfth article of the Declaration of Rights secures to every one charged with a crime the right of trial by jury. It has always been held that, if there is an unobstructed right of appeals from the judgments of magistrates and police courts to a court where a jury trial can be had, that article of the Declaration of Rights is not infringed upon.^ The Gen. Sts. ch. 173, § 1, enacts : " Every person con- victed of an offence before a trial justice or police court may appeal from the sentence ^ to the superior court then next to be held in the same county.^ The appellant shall be committed to abide the sentence of said court until he rec- ognizes to the Commonwealth in such reasonable sum and with such siireties as the justice or court requires, with con- dition to appear at the court appealed to, and at any subse- quent term to which the case is continued, if not previously surrendered and discharged, and so from term to term until the final decree, sentence, or order of the court thereon, and to abide such final sentence, order, or decree, and not depart without leave, and in the mean time to keep the peace and he of good behavior." The right of appeal, in the sense in which " appeal " is understood in this Commonwealth, is a general right to have a full new trial, in all matters of law and fact, in the appel- 1 Sullivan v. Adams, 3 Gray, monwealth v. Graves, 112 Mass. 476. Jones v. Robbins, 8 Gray, 282. 329 ; Mr. Justice Thomas dissent- ^ If the appeal is entered at the ing. Commonwealth v. Whitney, next term, an error in the recogni- 108 Mass. 5. zance to prosecute the appeal at ' He cannot appeal from an a subsequent term is immaterial, order of court that he be dis- Commonwealth v. Campion, 105 charged and go without day. Com- Mass. 184. APPEALS. 225 late court. The right both in criminal and civil cases, when it exists at all, is given and regulated by statute.' If a magistrate makes known to a party his right to appeal, and he declines, the magistrate need not inform him what he must do in order to appeal.^ The fact that an appeal was taken cannot be proved except by the record.^ A magistrate is liable to an action of false imprisonment, if he commits a prisoner who is convicted before him, in pursuance of sen- tence, after the prisoner claims an appeal, though he fails to procure sureties to prosecute his appeal. The commitment should be, in such case, to the common jail, until he recognize, with sureties, to prosecute his appeal, &c.* The appellant shall not be required to advance any fees upon claiming his appeal, nor in prosecuting the same ; but if convicted in the court appealed to, or if sentenced for failing to prosecute his appeal, he may be required, as part of his sentence, to pay the whole or any part of the costs of prosecution.^ In prosecuting an appeal, certain things are to be done by the court appealed from, and certain things by the court appealed to ; and the same law regulates both. And when rightly understood and applied, if it requires the one to . receive, it requires the other to allow, the appeal. Cer- tain rules and principles may be considered as well settled upon this subject, and to require no citation of precedents to support them, applicable alike to civil and criminal cases. If an appeal is well taken and prosecuted, it vacates and supersedes the judgment appealed from, annuls the sentence awarded, and places the case within the jurisdiction of the appellate court, to be proceeded in almost, if not entirely, in the same manner as if it were an original proceeding in the appellate court. In fine, an appeal opens to the defendant the whole case as to the law, the facts, and the judgment.^ 1 Commonwealth ». Richards, Moore v. Lyman, 13 Gray, 394. 17 Pick. 295. Sullivan v. Adams, 3 Kelly v. Dresser, 11 Allen, 31. Gray, 478. ^ Kendall v. Powers, 4 Met. 553. 2 Eex V. Yorkshire, 3 M. & S. ^ Gen. Sts. oh. 173, § 4. 493. 1 Deacon Grim. Law, 38. ' Commonwealth v. Dunham, 22 8 Sayles v. Briggs, 4 Met. 421. Pick. 12. Wells v. Stevens, 2 Gray, Wells V. Stevens, 2 Gray, 115. 117, 118. Commonwealth i>. King- 15 226 CRIMINAL LAW. But if the appeal is not well taken and prosecuted, if it is not in a case allowed by law, or if allowed upon terms and conditions prescribed by law, and these are not complied with, the proceeding itself is nugatory and void, and stands wholly unaffected by such claim of appeal.^ Another principle applicable to this subject is this, that the court appealed to, and not the court appealed from, is to judge in the last resort whether the party had a right of ap- peal or not. This obviously results from the relation which these courts, acting under one and the same system of laws, bear to each other, and is necessary to prevent the appellate court from being ousted of its jurisdiction in a case where the law intended to confer it. If, therefore, the court ap- pealed from, through mistake of the law, or otherwise, declines or refuses to allow an appeal, when the appellant is by law entitled to it, and this is made to appear to the appel- late court, that court will entertain the appeal, notwithstand- ing such disallowance, and the judgment of the lower court will be thereby vacated. So, on the other hand, if the court below allow the appeal, where by law it ought not to be allowed, the appellate court will dismiss the appeal.^ Still it is often necessary for the court below to act upon such claim of appeal in the first instance, subject to revision by the appellate court. In case the appeal is disallowed, as one not allowable by law, it is the duty of the lower court to pronounce sentence, or enter the party's default if he do not appear, order his recognizance estreated, or do such other acts as would be required in case no such claim of appeal had been made.^ \ The Gen. Sts. ch. 173, § 3, provide that the justice or court shall on appeal make a copy of the conviction and other man, 15 Gray, 208. Commonwealth ' Commonwealth v. Dmiham, 22 V. O'Neil, 6 Gray, 345. Common- Pick. 11. Commonwealth v. Rich- wealth V. Tinkham, 14 Gray, 12. ards, 17 Pick. 295. Commonwealth Commonwealth v. McCormack, 7 v. Crawford, 12 Cush. 271. Allen, 532. Commonwealth ». * Commonwealth v. Dunham, 22 Harvey, 111 Mass. 420. Satchel- Pick. 13. der V. Commonwealth, 109 Mass. " Commonwealth v. Dunham, 22 361. Commonwealth v. Calhane, Pick. 13. 108 Mass. 431. APPEALS. 227 proceedings in the case, and transmit the same to the clerk of the court appealed to.i The jurisdiction, being wholly appellate, must appear from the papers filed in the case. Unless the justice or clerk of the court certifies that the papers which are transmitted are copies of the conviction and other proceedings in the case, the appellate court cannot know that they are copies. If the copies are not certified, judgment will be arrested, and the case remitted to the supe- rior court for further proceedings, when the proper certified copies are filed in the case.^ No time is prescribed by the Gen. Sts. ch. 173, § 3, within which the certified copies of the proceedings before the lower shall be transmitted to the superior court. It is sufficient if they are produced at any time before the trial.^ And no order from an infe- rior court to its clerk to transmit the proper copies is necessary.* The annexation of a seal has never been deemed necessary to the exemplification of the copies.^ The signature of the clerk of the lower court, followed by the word " clerk," is a sufficient attestation.^ 1 The St. 1862, ch. 217, § 3, con- 541. Commonwealth v. Dressel, tains provisions specially applicable 110 Mass. 102. Commonwealth v. to appeals in any criminal action Galligan, 113 Mass. 203. Com- from the Municipal Court of the monwealth v. Mclvor, 117 Mass. city of Boston. The clerk shall 118, 121. Commonwealth v. Bal- transmit a copy of the judgment, lou, 112 Mass. 279. Packard v. the original recognizances, a list of Lawrence, 15 Gray, 483, 484. the witnesses, and a copy of the ^ Commonwealth v. Magoun, 14 bill of costs, for which no charge Gray, 398. Commonwealth v. Wig- shall be made; and no other pa- gin. 111 Mass. 428. pers shall be required to be trans- * Commonwealth v. Bray, 117 mitted. Mass. 150. 2 Commonwealth v. Doty, 2 Met. ^ Commonwealth v. Downing, 18. Commonwealth v. Burns, 8 4 Gray, 29. Commonwealth v. Gray, 482. Commonwealth v. Cavey, 97 Mass. 541. Commo'n- Phelps, 11 Gray, 72. Common- wealth v. Bellows, 115 Mass. 139. wealth V. Hogan, 11 Gray, 313. ^ Commonwealth v. Belou, 115 Commonwealth v. Dow, 11 Gray, Mass. 139. Commonwealth v. 816. Commonwealth v. Sheehan, Barry, 115 Mass. 146. The attesta- 12 Gray, 28. Commonwealth v. tion of the record by an assistant Doran, 14 Gray, 37. Common- clerk is sufficient, Commonwealth wealth V. Ford, 14 Gray, 399. v. Harvey, 111 Mass. 420; Corn- Commonwealth V. Cavey, 97 Mass. monwealth v. Crawford, 111 Mass. 228 CRIMINAL LAW. The Gen. Sts. ch. 157, § 19, enacts that : " When the administration of justice or the progress of business in crim- inal proceedings is delayed, obstructed, or prevented by the negligence of a magistrate in certifying and returning recog- nizances, records, or other official papers which it is his duty to transmit to a higher court, or in omitting the formalities required by law, the district-attorney, with the approbation of the court, may, either in whole or in part, refuse to allow the fees to which such magistrate would otherwise be entitled." The recognizance to be taken by the magistrate to prose- cute the appeal, ought to be in such a sum as will insure the personal appearance of the party, and the fulfilment of the condition with respect to the payment of the costs of the prosecution, in case of a conviction. And the same precau- tions as to the ability of the party and his sureties to pay the penalty of the recognizance, if forfeited, which are recom- mended in the next chapter, on the taking of bail, will, in taking recognizances to prosecute an appeal, be adhered to by the magistrate. The Gen. Sts. ch. 173, § 2, enacts : " On such appeal, the justice or court shall have the same authority to bind by recognizances witnesses in the case as they have, by chapter one hundred and seventy, when a prisoner is admitted to bail or committed." The Gen. St. ch. 173, § 5, enacts : " If the appellant fails to enter and prosecute his appeal, he shall be defaulted on his recognizance, if any was taken ; and the superior court may award sentence against him for the offence whereof he was convicted, in like manner as if he had been con- victed in that court ; ^ and, if he is not then in custody, pro- cess may be issued to bring him into court to receive sentence." A defendant in a criminal case who has once pleaded to the charge against him has no right to withdraw his plea, but is confined to the issues of law or fact thereby raised or 422; or by a clerk pro tempore, ^ Batchelder v. Commonwealth, Commonwealth v. Connell, 9 Allen, 109 Mass. 361. Commonwealth v. 488. Commonwealth v. Clark, 16 Whitney, 108 Mass. 5. Gray, 88. APPEALS. 229 left open, unless the court in which the case is pending sees fit to exercise the discretion of allowing him to withdraw it and plead anew. If he appeals from a judgment against him in the court in which his plea is first made, the appeal indeed vacates the judgment ; but it does not multiply his grounds of defence, or enlarge the issue once joined between the Commonwealth and himself. The same defences are open to him in the appellate court as in the court below, and no other.i If he pleads guilty upon his first arraignment, and his plea is received by the court and recorded, it is an admis- sion of all facts well charged in the indictment or complaint, and a waiver of his right of trial by jury thereon; and, un- less withdrawn by special leave of court, or a motion is interposed in arrest of judgment for legal defects apparent on the record, leaves nothing to be done but to pass sen- tence.^ Formal objections to a complaint, if not made in the lower court, are not open to defendant in the appellate.^ Objec- tions to the form or service of the warrant cannot be made for the first time in the superior court.^ Any irregularity in the proceedings of the lower court presents no ground for dismissing the complaint in the appellate court ; the appeal vacates the judgment, and gives the defendant his full rights in that court.^ St. 1864, ch. 250, § 3, enacts that " No motion in arrest of judgment shall be allowed for any cause existing before verdict, unless the same affects the jurisdiction of the court." ^ Thus, a defect not in the complaint itself, but which appears for the first time upon the face of the papers trans- 1 He has no right to withdraw ^ Commonwealth v. Henry, 7 the plea of not guilty, and file a Cush. 512. Commonwealth v. special plea in the appellate court, Gregory, 7 Gray, 498. except by leave of that court. * Commonwealth v. Tinkham, Commonwealth v. Blake, 12 Allen, 14 Gray, 12. Commonwealth v. 188. MoCormack, 7 Allen, 532. Com- ^ Commonwealth v. Mahoney, monwealth v. Harvey, 111 Mass. 115 Mass. 151. Commonwealth v. 420. Commonwealth v. Holmes, Winton, 108 Mass. 485. 119 Mass. 195. Commonwealth ». = Commonwealth v. Walton, 11 Fredericks, 119 Mass. 199. Com- AUen, 238. Commonwealth v. monwealth v. Burke, 121 Mass. 39. Harvey, 111 Mass. 420. Ante, « Ante, p. 98. Per Willes, J., in P- 164. Kegina v. Ryland, L. R. 1 C. C. 101. 230 CRIMINAL LAW. mitted to the superior court, and affects its jurisdiction, is open to the defendant on motion in arrest of judgment, after verdict in that court.^ Specifications in a criminal case are ordered at the discre- tion of the court before which a cause is to be tried. They affect the evidence and mode of trial, and not the complaint or indictment ; they are not a part of the record, and are not subject to demurrer, but are merely to give notice, and guard against surprise at the trial. Nor is the prosecution limited to them at the trial of the case in a higher court. It is neces- sary to prove the same offence that was proved in the court below ; but it is not necessary to prove it by the same evi- dence. The court will order a new specification to protect the defendant against surprise.^ On the trial of an appeal, the government cannot be per- mitted to abandon the original offence charged, and on which the accused party was tried before the magistrate, and sub- stitute another and distinct offence in its place, and support it by evidence. Thus,* a complaint for unlawfully selling in- toxicating liquor to a person unknown, on which the defend- ant is convicted before a lower court on proof of a sale to one person, is not supported, on the trial of an appeal, by proof of a sale to a different person.^ An appellate court can inflict no higher penalty for an offence than could by law be imposed by the court appealed from ; and, if that court could punish only by fine or impris- onment, the court appealed to, although it may have a larger original jurisdiction, cannot sentence the offender to fine and imprisonment. And where such a sentence has been im- posed, and the fine paid, the Supreme Judicial Court, in the exercise of its discretionary powers, may discharge the prisoner on habeas corpus, although, for an error in the ^ Commonwealth o. Galligan, 250, 251. Commonwealth v. Wood, 113 Mass. 203. Commonwealth v. 4 Gray, 12, 13. Commonwealth v. Mclvor, 119 Mass. 121. Giles, 1 Gray, 469. 2 Commonwealth v. Davis, 11 ' Commonwealth v. Blood, 4 Pick. 432, 435. Commonwealth v. Gray, 31. Commonwealth v. Farrell, 105 Mass. 189. Stockwell Phelps, 11 Gray, 72. Common- ». Silloway, 100 Mass. 295. Com- wealth v. Hogan, 11 Gray, 315. monwealth v. Sherman, 13 Allen, APPEALS. 231 judgment of the court below, a writ of error is the ordinary remedy.^ A record made by a trial justice or justice of a police court, in a criminal case, which does not state that an appeal was claimed from his decision by the party convicted, is conclusive evidence, in an action brought against the justice for refusing to allow the appeal and committing the party to prison, that no such appeal was claimed.^ In Kendall v. Powers,^ the magistrate sought to bring in extrinsic evidence to establish a fact not stated in the record. It appeared in the record that the convicted party appealed from the judg- ment and sentence awarded against him. The magistrate then offered to show that the appeal was subsequently waived and voluntarily withdrawn ; but it was held that the record was conclusive and the evidence inadmissible. The St. 1874, ch. 33, entitled " An Act to authorize the withdrawal of appeals in criminal cases," enacts : — Sect. 1. An appellant from the judgment of a munici- pal, police, or district court, or trial justice, in any criminal proceeding,* may at any time, before the copy of the proceed- ings in the case has been transmitted to the clerk of the court appealed to, come personally into the court from the judg- ment of which such appeal was taken, and, upon motion made, be permitted by such justice or court, at its discretion, to withdraw his appeal, and abide by the sentence of the court therein ; whereupon said court shall order that the appellant comply with the sentence appealed from in the same manner as if it were then first imposed, and thereupon the sureties who had recognized with the appellant upon his recognizance to prosecute his appeal shall be discharged. Sect. 2. If any such appellant is detained in jail for want of sureties to prosecute his appeal, he may notify the jailer of his desire to avail himself of the provisions of this act ; who shall, as soon as may be thereafter, cause such appellant to 1 Feeley's Case, 12 Cush. 598. * Gen. Sts. ch. 173, §§ 1-5. 2 Wells V. Stevens, 2 Gray, 115. Gen. Sts. ch. 116, § 32. Gen. Sts. ' 2 Met. 558. WeUs v. Stevens, ch. 120, § 46. Gen. Sts. ch. 169, 2 Gray, 118. Sullivan v. Jones, 2 § 8. Gray, 578. 232 CRIMINAL LAW. be produced before the justice or court from which his appeal was taken, whereupon the same proceedings may be had as are provided in the first section of this act. Sect. 3. There shall be allowed and paid to the jailer, for his costs in the conveyance and custody of the appellant, as provided in the second section of this act, compensation at the same rate as is now allowed by law to officers serving a mittimus, the same to be taxed and paid as part of the costs of prosecution. BAIL AND RECOGNIZANCE. 233 CHAPTER XI. BAIL AND EECOGNIZANCE.l The magistrate, having completed the examination, and ascertained that the party accused is not to be discharged, is next to determine whether he shall bail or commit him. Bail is a delivery of a person to his sureties, upon their giving, together with himself, sufficient security for his ap- pearance at court to answer the charge against him ; he being supposed to continue in their friendly custody, instead of going to prison.^ In most of the inferior offences, bail will answer the same intention as commitment ; and therefore it ought to be taken. But in offences of a capital nature, no bail can be security equivalent to the actual custody of the person. There is nothing that a man may not be induced to forfeit to save his life ; ^ and it is no satisfaction or indemnity to the public to seize the effects of those who have bailed a murderer, if the murderer himself be suffered to escape with impunity.* In Regina v. Scaife,^ Coleridge, J., said : " I 1 In the second book of Hawkins's country at least, subjected or can be Pleas of the Crown, ch. 15, the law subjected by them to constant im- relating to bail is fully stated. See prisonment; but he is so far placed also 4 Bl. Comm. ch. 22; 4 Ste- in their power that they may at phen Comm. eh. 18, 7th ed. ; 1 any time arrest him upon the recog- Deacon Crim. Law, 100; 1 Bishop nizance, and surrender him to the Crim. Proced. Bk. IV. ch. 19 ; 1 court, and, to the extent necessary Lead. Crim. Cas. 228 et seq. to accomplish this, may restrain 2 " A man's bail are looked upon him of his liberty." Reese v. as his jailers of his own choosing." United States, 9 Wall. 21. 2 Hawk. P. C. ch. 15, § 3. " By » In the language of Scripture, the recognizance the principal is, iu " All that a man hath will he give the theory of the law, committed to for his life." the custody of the sureties as to * 4 Bl. Comm. 296. The princi- jailers of his own choosing, not that pie upon which a party committed to he is, ' in point of fact, in this take his trial for an offence may be s 9 Dowl. P. C. 553. 234 CRIMINAL LAW. conceive that the principle on which parties are committed to prison by magistrates, previous to a trial, is for the pur- pose of insuring the certainty of their appearing to take their trial. It seems to me that the same principle is to be adopted on an application for bailing a person committed to take his trial, and it is not a question as to the guilt or inno- cence of the prisoner. It is on that account alone that it becomes necessary to see whether the offence is serious, whether the evidence is strong, and whether the punishment of the offence is heavy." In a later case,^ the same learned judge said: "With regard to what I said in Regina v. Scaife, to that judgment I still adhere. An accused person is not committed for trial on the ground of present guilt, but because there is reasonable ground for presuming him to be guilty." The duty of magistrates in relation to the taking of bail is extremely important, requiring the exercise of great judgment and firmness. The two extremes of demand- ing excessive, and of accepting insufficient, bail are what it is equally his duty to avoid ; and in many cases he may be exposed to the censure of the public, or of individuals, if he transcends or falls short of his duty in either of these cases. To refuse or delay to bail any person who is entitled to bail is an offence at common law against the liberty of the citizen, and for which the magistrate is also liable in dam- ages to the party injured. It was also made punishable by ancient English statutes.^ But it has been held in Eng- land, that the duty of a magistrate in respect of admitting a prisoner to bail is essentially a judicial duty, involving inquiries on which discretion must be exercised, and, therefore, that an action cannot be maintained against him for refusing bailed, is founded chiefly upon the ^ Regina v. Barronet, Dearsly legal probability of his appearing C. C. 51; 1 El. & Bl. 1; S. C. 1 to take his trial. Such probability Lead. Crim. Cas. 249. See Regina does not exist, in contemplation of v. Barthelemy, Dearsly C. C. 60; 1 law, when a crime is of the highest El. & Bl. 8. magnitude, the evidence in sup- ^ 2 Hawk. P. C. ch. 15, § 13. port of the charge strong, and the Regina v. Badger, 4 Q. B. 472 ; punishment the severest known to Dav. & Meriv. 375. the law. Clarke Crim. Law, 588. BAIL AND RECOGNIZANCE. 235 to admit to bail a person charged with a misdemeanor, en- titled to be admitted to bail, without proof of malice. ^ Lest the intention of the law should be frustrated by magistrates requiring bail to a greater amount than the nature of the case demands, it is expressly declared by 2 St. 1 W. & M. ch. 2, that excessive bail ought not to be required. In con- formity to these provisions is the twenty-sixth article of the Declaration of Rights in the Constitution of Massachusetts, the words of which are, " No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments." ^ What bail shall be called excessive must be left to the magistrate to determine, on considering the circumstances of the case. It is purely a matter of discretion as to the amount of the sum in which the party and his sureties are to become bound by their recog- nizance ; and this discretion should be governed by the con- sideration of the affluence and rank of the prisoner, and the nature and enormity of the offence. A magistrate is not' only punishable for requiring excessive bail, as above mentioned ; but he may be also liable to indictment, if he shall wilfully or corruptly take insufficient bail.^ It also is an ofPence at common law for a" magistrate to grant bail where it Ought to be denied, and it is punishable as a negligent escape.* It has been resolved that it is no excuse for magistrates admitting a person to bail who was committed for an offence not bailable by law, that they did not know that he was committed for such ofFence ; for that they ought, at their peril, to have informed themselves of the cause for which the party was committed, that they might thereby be satisfied that he was bailable by law.^ The mag- istrate is not bound to demand bail, or that the person to be bailed shall find sureties ; nor is he bound to forbear com- 1 Linford v. Fitzroy, 13 Q. B. infliction of cruel and unusual pun- 240. Regina v. Badger, 4 Q. B. ishments, do not apply to the State 468; Dav. & Meriv. 375. governments. Commonwealth v. 2 The eighth article of amend- Hitch ings, 5 Gray, 482. meats of the Constitution of the " 2 Gabbett Crim. Law, 174. United States, prohibiting the re- Kegina v. Sanders, 2 Cox C. C. 249. quiring of excessive bail, the impos- * 2 Hawk. P. C. ch. 15, § 7. ing of excessive fines, and the ' 2 Hawk. P. C. ch. 15, § 12. 236 CRIMINAL LAW. mitting the party till he shall refuse to find sureties ; but may justify a commitment, unless the party himself shall ten- der his sureties.^ At common law, no magistrate nor indeed any court, can bail a person in execution, on a judgment or conviction for any offence ; for such imprisonment without bail is a part of the sentence and punishment.^ Nor is it usual or expedient to bail the party between the conviction and judgment. And, upon motion to the court, it is proper after conviction, when the party is under recognizance, and sentence is to be sus- pended, to have the amount of the penalty of the recog- nizance increased, and new sureties procured, if the former recognizance or sureties be not satisfactory. The course of a magistrate's duty in this country upon the subject of bail seems to be very plain, so far as it respects the offences which are or are not bailable. In general, it may be stated as true, that no magistrate can admit a man to bail who is charged with an offence the punishment of which is death ; and that he is bound to admit to bail persons charged with all other offences, unless in cases where bail is prohibited or restrained by particular statutes. In the former cases, the public are entitled to demand the highest security that can be given, namely, the body of the accused, in order to insure that justice be done upon him if guilty. Such persons have no other sureties than the four walls of the prison. It is a singular fact, that, by the ancient common law, all felonies were bailable, till murder was excepted by statute ; so that persons might be admitted to bail before conviction in almost every case.^ But the power of bailing in treasons and felo- nies and in other cases was taken away by statute as early as the reign of Edward the First.* The authority of trial justices in this Commonwealth to commit or bail an offender is derived from the Gen. Sts. ch. 120, vesting certain powers in trial justices. The forty-fifth section enacts that " They shall cause to be arrested all per- 1 2 Hawk. P. C. ch. 15, § 14. 2 Crim. Law, 100. 1 Lead. Crim. Gabbett Crim. Law, 176. Cas. 257. 2 4 Bl. Comm. 298. * 3 Edw. I. ch. 15. s 4 Bl. Comm. 298. 1 Deacon BAIL AND RECOGNIZANCE. 237 sons found within their counties charged with any offences, and persons who after committing any offence within tlie county escape out of the same ; examine into treasons, felo- nies, high crimes, and misdemeanors ; and commit or bind over for trial those who appear to be guilty of crimes or offences not within their jurisdiction, and punish those guilty of such offences within their jurisdiction." The Gen. Sts. ch. 170, § 25, also enacts that, " If it appears that an offence has been committed and that there is probable cause to believe the prisoner guilty, and if the offence is bail- able by the magistrate and the prisoner offers sufficient bail, it shall be taken and the prisoner discharged ; but if no suf- ficient bail is offered, or the offence is not bailable by the mag- istrate, the prisoner shall be committed to prison for trial." The offences which are not bailable in this Commonwealth are treason ^ and murder.^ Manslaughter is not a capital offence ; but, when a person charged with a homicide is brought before a magistrate, he cannot undertake to decide whether the crime be murder, manslaughter, or any other species of homicide : his duty is to commit the offender, and leave him to take his trial in the due course of law, or to apply to the Supreme Judicial Court, or to a judge in va- cation, for a writ of habeas corpus. This construction was given to St. 1783, ch. 51, in the case of Commonwealth v. Loveridge.^ In that case it was decided, that a recognizance taken by a justice of the peace, conditioned for the defend- ant's appearance, &c., " to answer to such matters and things 1 Gen. sts. ch. 170, § 54. power to bail on charge of murder." 2 " The offences of rape and ar- Dearsly C. C. 61, 62 ; S. C. 1 Lead, son shall be bailable." St. 1871, Crim. Cas. 256. And in this coun- ch. 61, § 1. By the ancient com- try, in the absence of any constitu- mon law, all felonies were bailable, tipnal or statutory provision limit- till niurder was excepted by statute, ing the right at common law, the 4 Bl. Comm. 298. Com. Dig. Bail, power to admit to bail in capital P. 1. This may be intended to cases has been frequently acted apply only to the power of magis- upon or directly recognized. 1 trales to admit to bail. In Bar- Lead. Crim. Cas. 257, where the thelemy's Case, Lord Campbell, subject is fully and lucidly discussed C. J., observed: "I do not know by Professor Bennett. that it has ever been doubted that * 11 Mass. 336, a.d. 1814. the Court of Queen's Bench has 238 CRIMINAL LAW. as should be objected against him on behalf of the Common- wealth, and especially to the complaint of J. C. of &c. for hilling J. C, senior late of &c.," is merely void, by the said statute ; and that any recognizance taken by a justice of the peace from one charged with homicide is void. This decision is in conformity to the principles and modern practice of the common law ; which, as we have seen, allows no discretion to a magistrate, when a homicide has been committed, to admit the offender to bail,^ though it may appear to the magistrate that the homicide was by misadventure, or even in self-defence.^ This duty of the magistrate to commit, in every case, per- sons charged upon oath with a capital crime, or upon facts which may amount to a capital crime, seems to require no further explanations. With respect to all inferior offences, magistrates must, by the statute above quoted, admit to bail all persons who are charged with them and brought before them for examination. Persons committed by the Governor and Council, or by the Senate, or the House of Representatives, in the manner and for the causes mentioned in the Constitution, shall not be admitted to bail.^ The Gen. Sts. ch. 170, §§ 11-15 inclusive, contain full pro- visions for admitting to bail persons arrested out of the county in which the alleged offence was committed. The Gen. Sts. ch. 144, relating to the writ of habeas corpus, contain the following provisions relating to bail : — Sect. 25. If the party is detained for a cause or offence for which he is bailable, he shall be admitted to bail if suffi- cient bail is offered ; and, if not, he shall be remanded, with an order of the court or judge expressing the sum in which he shall be held to bail, and the court at which he shall be re- quired to appear ; and any justice of the peace may, at any 1 Commonwealth v. Trask, 14 This may be considered in fixing the Mass. 276. See Gen. Sts. ch. 171, amount of the bail, but not in re- § 30. fusing it. Dunlap v. Bartlett, 10 2 Bail may be taken where the Gray, 282. charge is only for assault and bat- ' Gen. Sts. ch. 144, § 31. Con- tery, although there is danger of stitution, ch. 1, § 8, arts. 10, 11. the decease of the party assaulted. BAIL AND RECOGNIZANCE. 239 time before the sitting of said court, bail the party, pursuant to such order. Sect. 30. When a person is committed to jail, on a crim- inal accusation, for want of bail, any justice of the Superior Court or of a police court, or any two justices of the peace and of the quorum, may admit him to bail, in like manner as might have been done by the court or magistrate who com- mitted him ; and said justices, respectively, may issue a writ of habeas corpus, and cause such prisoner to be brought before them when it is necessary for the purpose expressed in this section. 1 The term " magistrate," wherever it occurs in any section of the statutes providing for admitting persons to bail in criminal cases, shall be construed to include bail commission- ers, so far as it shall be necessary to give them authority to act in any case of admitting prisoners to bail.^ The Gen. Sts. ch. 170, contain the following provisions respecting the admitting of persons to bail : — Skct. 35. When a person under indictment for a bailable offence is arrested after the adjournment of the court in which the same is triable, whether such adjournment is final or from day to day,^ any justice of the court, or any standing or special commissioner appointed for such purpose by the court, may fix the amount of and receive bail in the same manner as the court might do. St. 1874, ch. 306, § 4, enacts: Section thirty-six of said chapter one hundred and seventy is hereby amended so as to read as follows, viz. : A justice of the Supreme Judicial Court or Superior Court, or a standing or special commissioner ap- pointed by either of said courts ; a justice or clerk of a dis- trict, municipal or police court, or a master in chancery in any county, — on application of a prisoner held under arrest or committed for bailable offence, whether on a warrant or without one, may inquire into the case and admit such 1 The Supreme Judicial Court to bail by an inferior court. Bel- will not issue a -writ of habeas cor- gard v. Morse, 2 Gray, 406. pus in behalf of a person committed ^ St. 1874, ch. 306, § 5. to jail, on a criminal accusation, for ' St. 1874, ch. 306, § 3. want of bail, who may be admitted 240 CRIMINAL LAW. prisoner to bail ; and such officers may respectively admit to bail any person committed for not finding sureties to recog- nize for him.i The Gen. Sts. ch. 170, farther enact : — Sect. 37. If the person is committed without an order fix- ing the amount of the recognizance, he shall not be admitted to bail under the preceding section until reasonable notice of his application to the officer by whom he was committed; and, if committed with such order, he shall not be admitted to bail by a commissioner, police court, or justices of the peace, for a less amount than is required by the order.^ Sect. 38. Persons committed to jail on the Lord's day, or on the evening or afternoon preceding, may be admitted to bail on that day, when in the opinion of the magistrate an application for that purpose appears to be proper. The St. 1874, ch. 306, entitled " An Act relating to bail in criminal cases," enacts as follows : — Sect. 1. No person arrested on a criminal charge, who is released on bail or recognizance and forfeits or makes default upon his bail bond or recognizance, shall be again per- mitted to go at large upon further bail or recognizance in the same case, unless by order of some justice of the court in which said charge was pending at the time of said default, after showing some reasonable excuse for his previous de- fault or forfeiture.^ No objection exists to proceeding by complaint and exam- ination before a magistrate, for the purpose of binding over to a higher court, where a civil action to recover the same forfeiture or fine is given exclusively to the Commonwealth. The distinction is between the case of a right to a qui tarn 1 The power to inquire of or con- " See Common-wealth v. Hatfield, cerning any particular subject or 107 Mass. 227, 230. matter, given to a judicial officer, ' It will be presumed on the trial necessarily imports an authority to of an action brought on the new administer and to examine any per- recognizance, although the fact does son or persons under the oath not appear of record, that the court proper and suitable for that pur- found, before ordering it, the exist- pose. Commonwealth v. Hughes, 5 ence of some reasonable excuse for Allen, 499, 501. And that officer may the first default. Omnia rite acta require a written statement under presumuntur. Commonwealth v. oath from the bail. Commonwealth Sholes, 13 Allen, 396. V. Butland, 119 Mass. 317, 322. BAIL AND RECOGNIZANCE. 241 action by an individual, and the authority by the Common- wealth to bring an action of debt in its own name.^ The St. 1862, ch. 169, entitled "An Act concerning bail in criminal eases in the county of Suffolk," was designed to provide especial safeguards in the matter of admitting to bail persons convicted in the superior court in the county of Suffolk, and, for that purpose, to require that the court or commissioner should, in such cases, take a written certificate, under oath, of the sureties ; but it does not deprive the com- missioner of the power, which he had independently of the statute, to take a written statement in other cases, where persons offer themselves as bail.^ The fourth section of this statute enacts that " Justices of the peace, and justices of the peace and of the quorum, in Suffolk County, shall hereafter have no authority to take bail in criminal cases." For any crime or offence agaiust the United States, the offender may, by any justice of the peace or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and impris- oned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offence. Copies of the process shall be returned as speedily as may be into the clerk's of&ce of such court, together with the recog- nizances of the witnesses for their appearance to testify in the case.^ Bail shall be admitted upon all arrests in criminal cases where the offence is not punishable by death ; and in such cases it may be taken by any of the persons authorized by this preceding section to arrest and imprison offenders.* The decision of magistrates in matters of bail is of some nicety, and three things are to be considered : first, the grav- ity of the crime ; second, the weight of the evidence ; third, the severity of the punishment. All these points are to be 1 Knowles v. Davis, 2 Aljen, 63, session for proceedings before the 64. Osborn v. Sargent, 23 Maine, grand jury. Commonwealth u. 527. Ante, pp. 129, 130. Merriam, 9 Allen, 371. 2 Commonwealth v. Butland, » U. S. Rev. Sts. § 1014. 119 Mass. 322. The commissioner * U. S. Rev. Sts. § 1015. may act, although the court is in 16 242 CRIMINAL LAW. weighed with a view to estimate the probability of the pris- oner appearing to take his trial.^ There are also four dangers expressly to be guarded against. One is the exacting too heavy bail ; another is the denying of bail when it ought to be granted ; thirdly, the granting of bail when it ought to be refused ; fourthly, the personation of bail. The nature of the duty of the magistrate who is called upon to admit a person to bail is, to a great extent, judicial ; namely, in respect of fixing the amount of bail, and of deter- mining as to the ability of the persons tendered, which two requisites make up the sufficiency. These must necessarily be left, in a great degree, to the discretion of the magistrate, and, in some cases, discretion under circumstances of much nicety.^ It is said, and so is the common practice, that the sureties ought to be at least two men of sufficient ability.^ But where the party charged is himself a responsible person in point of property, and one surety of equal and unquestion- able responsibility is afforded, there can be no danger, in com- mon cases, of accepting them, and not requiring two sureties. But, whenever the magistrate accepts one surety only, there ought to be no doubt of the sufficiency of his property to answer the penalty of the recognizance. And in such case the character and place of residence of the surety ought to be taken into consideration. It is also an indispensable rule, that each of the sureties ought to be severally of sufficient ability and property to answer the sum in which he is bound. The ability and quality of the prisoner, and the nature of the crime, should always be taken into consideration in determin- ing upon the sufficiency of the sureties, and the sum in which they are to be held to recognize. As there is great responsibility upon the magistrate in these cases, he may, in order to ascertain to his satisfaction the ability of his sureties, examine them upon oath as to the 1 Re Robinson, 23 L. J. Q. B. magistrate's duty was not merely 286. ministerial, and that an action 2 Per Lord Denman, C. J., in against him for refusing to take Linford v. Fitzroy, 13 Q. B. 246, bail was not sustainable without 247; 3 New Sess. Cas. 438. In proof of malice. this case, it was determined that a ^1 Chit. Crim. Law, 99. BAIL AND RECOGNIZANCE. 243 value of their property. It is every day's practice, in the higher courts, to do this. And it is the more reasonable, be- cause there are no regulations by any statute, respecting the amount of bail to be required by a magistrate. One rule should be uniformly adopted ; and that is, to require such sureties as are possessed, in their own right, of a clear real estate within the county, — to such an amount as that, upon a sale of it at public auction upon an execution, the full amount of the sum in which the surety was bound may be certainly realized. Sureties not possessed of such real estate may, doubtless, in some instances, be safely taken by the magis- trate ; but, in all cases, sureties possessing, under a clear title, real estate in the county in which the recognizance is taken, ought to be preferred. Personal estate is so fluctuating, and may be so easily kept from the possession of an officer, and transferred from the possessor into other hands, that it affords no such security for the penalty of a recognizance as real estate. And the will of the Legislature was expressed to this effect by the provisions of a statute upon this subject, which were very salutary. It was among the first laws passed after the adoption of the present Constitution of this Common- wealth, and was in these words : " That the lands and tene- ments of all persons, recognizing to the use of this government, before any authority duly authorized and empowered to take the same, are and shall be liable to respond the sum men- tioned in the recognizance, from the time the same is taken and acknowledged, notwithstanding any transfer or alienation thereof." ^ But this statute has been repealed, and there are no similar provisions now in force. It is manifest, that unless proper caution is made use of by magistrates upon the subject of requiring such sureties, upon taking a recognizance, as will be of sufficient ability to re- spond the sums for which they become bound, the whole object of a public prosecution may be defeated, and the guilty escape and go unpunished. A question of very great importance, not merely to magis- trates, but also to the public generally, has been discussed in England. Is the duty of magistrates in taking bail limited 1 St. 1782, ch. 19, § 7. 244 CRIMINAL LAW. to looking to the sufficiency of the bail in a pecuniary point of view ; or may they inquire further into the character of the bail, and the transactions between them and the prisoner, so as to satisfy themselves that there is no collusion, nor a pur- pose to evade justice? In Regina v. Broome,^ Martin, B., laid down the law very strongly that the duty of magistrates in taking bail was strictly confined to ascertaining the sol- vency of the bail. He said, " Whoever might he the persons offering themselves as hail, the magistrates, if satisfied that they possessed the means to bail, should have accepted them. The judgment of the Court of Queen's Bench, delivered by Lord Denman, C. J., in Regina v. Badger,^ entirely confirms my own opinion on that subject. Lord Denman there says, that all the magistrates have to do is to be satisfied that the persons proposed as bail are possessed of sufficient property to meet the recognizances, should there be default in the appearance of the person bailed, and that the magistrates have no power to inquire into the private interests or charac- ter of the persons so offered as bail." In a criminal case, an attorney is not precluded from be- coming bail for his client.^ At common law, a married woman cannot be bound by recognizance, because it is not capable of being estreated. She can no more enter into this bond than she can into any other while she is a feme covert. But under the statutes of Massachusetts she may make contracts, oral and written, sealed and unsealed, in the same manner as if she were sole.* At common law, a minor cannot be ac- cepted as surety, or enter into recognizance as a principal, because he cannot bind himself during his minority. The Gen. Sts. ch. 170, § 28, enacts, " When a married woman or minor is a material witness, any other person may be allowed to recognize for the appearance of such witness ; or the magis- trate may, in his discretion, take the recognizance of such 1 18 Law Times Reports, 19. ■which he is employed as counsel or " 4 Q. B. 468; Dav. & Meriv. attorney." Rules of the Superior 375. Court of Mass. , Rule II. 8 1 Dougl. 467. 1 Deacon Crim. * St. 1874, ch. 184, § 1. Curtis Law, 90. " No attorney shall give v. Bothamly, 8 Allen, 336. Martin bail or recognize as principal or v. Campbell, 120 Mass. 126, 129. surety in any criminal matter in BAIL AND RECOGNIZANCE. 245 married Avoman or minor in a sum not exceeding fifty dollars, which shall be valid and binding in law notwithstanding the coverture or minority." In other cases, a minor must procure some persons to recognize for him as principal, and other per- sons as sureties to such principal.^ The Gen. Sts. ch. 170, § 26, enacts : " When the prisoner is admitted to bail or committed, the magistrate shall bind by recognizance such witnesses against the prisoner as he deems material, to appear and testify at the next court having cog- nizance of the offence, and in which the prisoner shall be held to answer." The St. 1872, ch. 214, §1, enacts that "No person who is ordered to recognize with sureties for his appearance as a witness before any court or magistrate, and is unable to procure such sureties, shall be committed to prison, except in cases of felony." The St. 1868, ch. 69, entitled "An Act concerning wit- nesses for the Commonwealth in criminal cases," enacts that " Any justice of any court of record may, at any time, during a term of such court or in vacation, order a witness for the Commonwealth in any criminal case pending in such court to recognize, either with or without sureties, to appear and testify at the next or any succeeding term of said court ; and may issue a warrant to bring such witness before him to rec- ognize as aforesaid." The prosecutor, or, as he is generally called here, the com- plainant, is recognized in the same manner, and in a recogni- zance of the same nature, as the other witnesses. In his character as a complainant, he being generally (though not always) the injured party, he assumes no peculiar or greater responsibilities, and is liable to no other or different duties or disabilities, than any of the other witnesses, excepting in cases in which he may be interested, by becoming entitled, upon the conviction of the party, to a share of the penalty to be recovered. 1 In general, infants and married recognizance to prosecute or give women, who cannot legally bind evidence seems binding on an in- themselves, must procure others to fant. Ex parte Williams, 13 Price, be bound for them. Bennet v. 673; M'Clellan, 493. Watson, 3 M. & Selw. 1. But a 246 CRIMINAL LAW. The witness or party whose recognizance is to be taken need not sign it. But the magistrate makes a record of it, a copy of which is afterwards made out and subscribed by him. It becomes a matter of record as soon as taken and acknowl- edged, although not made up or entered at large by the mag- istrate, but only entered in his book.^ It is not necessary or convenient to take a separate recognizance for each witness. They may all be bound in one recognizance. And, when sep- arate recognizances for each witness have been taken and certified, there has, in some cases, been no other reason for it than that of charging the fee for each of them. The authority of magistrates in this Commonwealth to take recognizances is derived from the statutes, and its extent and limits are there to be sought for. But in all cases it is by reasonable intendment of law, as well as by the express power given them, that they exercise this authority .^ A recognizance is a debt upon condition ; and on default is forfeited and becomes a debt due.* Every recognizance must be to the Commonwealth ; and must contain the name and place of abode both of principals and sureties, and a certain sum in which they are bound.* In a recog- nizance entered into before a magistrate, it must appear in the condition that the magistrate had jurisdiction in the cause therein referred to, and for what cause it was taken. The superior court cannot conjecture in what manner the process was instituted, or what was the cause of it, or whether it was a cause within the jurisdiction of the inferior court. Nothing is to be presumed in favor of the jurisdiction of an 1 Dalton Justice, p. 401, ed. 1742. to do some act required by law, Commonwealth v. Merriam, 9 Al- which is therein specified. 2 PI. len, 374. Martin v. Campbell, 120 Comm. 341. 121 Mass. 84. Mass. 128, 129. ^ " Our recognizance is taken in 2 Commonwealth v. Canada, 18 court or before a magistrate, and is Pick. 86, 88. Commonwealth v. a contract voluntarily entered into Otis, 16 Mass. 198. Common- in a certain sum attested by the ■wealth V. Loveridge, 11 Mass. 337. clerk or magistrate." 3 Dane Ab. Dalton Justice, p. 399, ed. 1742. 277. 121 Mass. 84. Care must be 2 A recognizance is an obligation taken that the sum expressed in the of record, entered into before a recognizance corresponds with the court or magistrate duly authorized sum set forth in the statute. State for that purpose, with a condition «. Wormell, 33 Maine, 200. BAIL AND RECOGNIZANCE. 247 inferior magistrate ; which, in general, is given and limited by particular statutes.^ In every recognizance, the magis- trate ought to recite so much of the complaint, or cause of taking it, as to show that he has authority to take it. For, if it were not within his jurisdiction, the proceedings as well as the recognizance are void.^ But the recital need not on its face exclude all possibility of want of jurisdiction. All that is requisite in the form of a recognizance is to state a case of apparent jurisdiction, — a case falling within the general pro- vision giving such jurisdiction: it is not necessary to negative the class of cases embraced in an excepting clause of the statute.^ The condition of the recognizance, both of the party and witnesses, ought not to be general to appear and answer &c. The recognizance of the party ought to mention the particu- lar crime for which he is bound over to take his trial ; and not generally to answer to such matters and things as shall be then and there objected against him, and in the mean time to keep the peace &c. If he is to be tried for larceny, for instance, it ought to be so specially stated in the condition of ^ The rule expressed in the 31. Commonwealth v. Merriam, maxim, Omnia rite acta presumun- 7 Allen, 356. A recognizance en- tur, is especially applicable to the tered into before a justice of the action of courts of general jurisdic- peace residing in the town to which tion, in regard to which it will al- any forfeiture incurred under the ways be assumed that their decisions recognizance is given by statute is are well founded, and their judg- void, in the absence of express leg- ments regular. Nothing will be in- islation removing the objection of tended to be without the jurisdiction an intei-est in the forfeitures. In- of a superior court but that which asmuch as any justice for the specially appears to be so; and noth- county, other than one residing in ing will be intended to be within that town, could take jurisdiction the jurisdiction of an inferior court of the case, no necessity exists for but that which is expressly alleged, having jurisdiction assumed by an Commonwealth «. Sholes, 13 Allen, inhabitant of the town where the 397. Gosset v. Howard, 10 Q. B. offence is committed; and, if such 359, 452. Ante, p. 108. jurisdiction is assumed, any acts ^ Bridge v. Ford, 4 Mass. 611, done under it are void. Common- 643, and 7 Mass. 309. Common- wealth i'. McLane, 4 Gray, 427. wealth V. Downey, 9 Mass. 520. Pearce v. Atwood, 18 Mass. 324. Tarbell v. Gray, 4 Gray, 444. Pat- " Peck v. Thompson, 5 Allen, terson o. Goldsmith, 9 Gray, 258. 388. Commonwealth v. Cutter, 98 Mass. 248 CRIMINAL LAW. the recognizance ; and the name of the person upon whose complaint he is charged ought also to be mentioned in the recognizance. And the same particularity is also requisite in a recognizance of witnesses. It should be stated that they are to appear and give evidence in the case of the Common- wealth against the party charged, upon the complaint of the prosecutor, naming him, for the offence, whatever it may be, stating what the offence is. If the recognizance only state that the witness is to appear and give evidence on behalf of the Commonwealth, not stating in what case, or against whom, or upon what offence, it will be informal and perhaps invalid. The insertion of an obligation which is unwarranted in the condition of a recognizance renders the recognizance void ; and, if it is void as to the principal, it is also void as to the surety.i The Gen. Sts. ch. 170, enact : — Sect. 39. When a court or magistrate takes a recogni- zance of a person, either with or without surety, binding him to appear at a court to be held by any police justice, or trial justice, or at a term of any court, to answer to a charge against him, or to prosecute an appeal or bill of exceptions, the condition shall be so framed as to bind him personally to appear at the time or term so expressed, and at any subse- quent time or term to which the case may be continued (if not previously surrendered or discharged), and so from time to time or term to term, until the final decree, sentence, or order of the court thereon ; and to abide such final sentence, order, or decree, and not depart without leave.^ 1 Newcomb v. Worster, 7 Allen, renewing the bail every time the 198. Commonwealth v. Field, 9 cases were, from any cause, con- Allen, 581. tinned from one term to another. 2 In Reese v. United States, 9 It was not intended to apply to any Wall. 18, it is said that " The distant future term to which either provision for his appearance at any party might be disposed to postpone subsequent term had reference to such the ti'ials, without reference to any subsequent term as might follow in intervening term. The principal regular succession in the course of and sureties, by their recognizance, the business of the court. It was covenanted with the United States inserted to obviate the necessity of that the principal should appear BAIL AND RECOGNIZANCE. 249 Sect. 40. All recognizances and examinations taken by a magistrate under the provisions of this chapter shall be cer- tified and returned by him to the district-attorney, or the clerk of the court before which the party charged is bound to ap- pear, on or before the first day of the sitting thereof ; ^ and. if such magistrate refuses or neglects to return the same, he may be compelled forthwith by rule of court, and in case of disobedience, may be proceeded against by attachment, as for a contempt. The right to amend after the first return of a recognizance, and declare upon the amended return in the writ of scire facias, is directly settled in the case of Commonwealth v. M'Neill.^ It is also held to be quite immaterial at whose suggestion the amended or more full return was made. The court say, " Had the justices, from any source, ascertained that they had sent an imperfect record, they would have been at liberty, within a reasonable time, to have sent a more per- fect one." The foundatiop of the action is the contract of the princi- pal and his sureties. The nature of the contract is such that no action can be brought upon it, unless the recognizance be returned to the court before which the party is required to appear ;^ and thence is certified, with the record of the proceed- ings to which it is incident, to the court which is authorized to take further action thereon in case of default, and is there entered of record.* Until fully extended there, the papers and memoranda, duly certified by the magistrate, constitute the record. If any of them are in any respect incomplete, defective, or erroneous, and are capable of amendment, they may be amended upon proper evidence of the truth of the before the court, and answer all ^ Commonwealth v. Merriam, 9 such matters as might be objected Allen, 373. against him at the next term, and ^ 19 Pick. 127, 138. from term to term until the cases " Commonwealth v. Baird, 9 Met. were disposed of; not that he 407. should appear at the next term, * The clerk's certificate on the and then at a term of years later, recognizance is the regular evidence depending for its designation upon of that fact, but is not the only the happening of a contingent sufficient evidence. Commonwealth event." v. Merriam, 7 Allen, 356. 250 CRIMINAL LAW. case. The certificate of the magistrate to the amended re- turn may properly be received by the superior court to show what were the terms of the recognizance actually entered into before him, and the record of the superior court be amended accordingly. The action of the superior court in directing or authorizing the amendment is conclusive.^ An amendment so made is not a new record, and does not give rise to a new cause of action. It is made nunc pro tunc, and has the same operation as if the record had been originally extended in the amended form.^ It is a doctrine of the common law, which our statutes have not changed, that a recognizance, though not of itself a rec- ord, must be of record before it can avail the conusee ; and that, when it is put in suit, it must be declared on as of rec- ord. A declaration on a recognizance must distinctly show that the court in which it was taken had jurisdiction of the offence and authority to take the recognizance ; and that it was returned to the superior court and there entered of record.^ In a declaration on a recognizance taken ip. a lower court, it must be averred and proved at the trial that the recog- nizance was returned to the superior court and made a record of that court.* An indorsement by the clerk of the court of those facts is competent evidence in an action against the sureties.® But it is not the only competent evidence.^ A declaration in an action upon a recognizance taken in a crim- inal case, which alleges that it was taken before the justices of the police court of Boston, " then and there duly qualified to take bail in the premises," sufficiently sets forth the juris- diction of the court to take it, although it does not otherwise 1 Commonwealth v. McNeill, 181. Hawkes ». Davenport, 5 Al- 19 Pick. 128. Commonwealth v. len, 390. Commonwealth v. Mer- Cheney, 108 Mass. 33. Cook v. riam, 7 Allen, 356. A declaration Berth, 108 Mass. 73. which does not so aver cannot be 2 Commonwealth v. Cheney, 108 first objected to for that cause at Mass. 33. Commonwealth v. Field, the argument on a bill of excep- 11 Allen, 488. Commonwealths, tions. Pierce k. Gray, 11 Gray, 377. Merriam, 9 Allen, 371. ^ Commonwealth «. Slocum, 14 « Tarbell v. Gray, 4 Gray, 445. Gray, 395. Commonwealth v. Dun- Bridge 0. Ford, 4 Mass. 641, and bar, 15 Gray, 209. 7 Mass. 209. ° Commonwealth v. Merriam, 7 « Benedict v. Cutting, 13 Met. Allen, 356. BAIL AND RECOGNIZANCE. 251 appear from the declaration or recognizance that it was taken at a court held for criminal business ; the court held for civil business having no authority to take bail in a criminal case 1 When an action is brought on behalf of the Common- wealth against a principal or surety in a recognizance in a criminal prosecution entered into either by a party or a wit- ness, such action shall not be barred or defeated, nor shall judgment be arrested, by reason of neglect or omission to note or record the default of any principal or surety at the term when it happens, nor by reason of a defect in the form of the recognizance, if it sufficiently appears from the tenor thereof at what court the party or witness was bound to appear, and that the court or magistrate before whom it was taken was authorized by law to require and take such recog- nizance.^ In the case of Commonwealth v. McNeill,^ the whole sub- ject of recognizances in criminal cases, and the manner of proceeding to enforce the payment of the same in case of a breach of the condition, is very elaborately considered. The default of the principal is a breach of the recogni- zance, and fixes the liability of his bail.* A record of the court into which a recognizance is returned, that the prin- cipal made default, cannot be controlled or contradicted by parol evidence on scire facias against his bail.* When the defendant is called and does not appear, the court is not re- quired to decide in his absence a motion in arrest of judg- ment.6 The Gen. Sts. ch. 170, § 46, enacts: "When a person under recognizance to appear and answer, or to pros- 1 Commonwealth it. Merriam, 7 ^ Commonwealth v. Slocum, 14 Allen, 356. Gray, 395. 2 Gen. Sts. ch. 170, § 49. Win- « Commonwealth v. Andrews, gate v. Commonwealth, 5 Cush. 97 Mass. 543. Commonwealth 446. Commonwealth v. Nye, 7 v. Dowdican's Bail, 115 Mass. 133. Gray, 316. Commonwealth ». Col- Regina v. Caudwell, 17 Q. B. 503. lins, 11 Gray, 465. Commonwealth Regina v. Chichester, 17 Q. B. 504 V. Field, 9 Allen, 581. note. Commonwealth v. Austin, 8 19 Pick. 127. Commonwealth 11 Gray, 330. Smith v. United I). Stebbins, 4 Gray, 25. States, 94 U. S. 543. * Commonwealth v. Dowdican's Bail, 115 Mass. 133. 252 CRIMINAL LAW. ecute an appeal or bill of exceptions, in a criminal prose- cution, fails to appear for that purpose, according to the condition of his recognizance, and when a person under recognizance to testify in a criminal prosecution fails to perform the condition of his recognizance, his default may be recorded ; whereupon the obligation of such person and his sureties shall be deemed forfeited, and process shall be issued against them or such of them as the prosecuting officer directs ; but in such suit no costs shall be taxed for travel." i It is competent for a court for good cause, to set aside at the same term at which it was rendered, a judgment of con- viction on a plea of guilty, though the defendant had entered on the imprisonment ordered by the sentence.' This control of the court over its own judgment during the term is of every-day practice. The judgment then being set aside, the indictment remains, and the recognizance is valid.^ It has long been a common practice in this Commonwealth, after verdict of guilty in a criminal case, when the court is satisfied that by reason of extenuating circumstances, or of a pendency of a question of law in a like case before a higher court, or other sufiicient cause, public justice does not require an immediate sentence, to order, with the consent of the defendant and of the attorney for the Commonwealth, and upon such terms as the court in its discretion may impose, that the indictment be laid on file ; and this practice has been recognized by statute. Such an order is not equivalent to a final judgment, or to a nolle prosequi or discontinuance, by which the case is put out of court ; but is a mere suspending of active proceedings in the case, which dispenses with the necessity of entering formal continuances upon the dockets, and leaves it within the power of the court at any time, upon the motion of either party, to bring the case forward, and pass any lawful order or judgment therein. Neither an order laying an indictment on file, nor the payment of costs, there- fore, entitles a defendant to be discharged.^ When an indict- 1 See St. 1862, ch. 169. » Commonwealth v. Dowdican's 2 Bassett v. United States, 9 Bail, 115 Mass. 136. Wall. 38. BAIL AND RECOGNIZANCE. 253 ment has been laid on file, the superior court has authority to bring it forward and order new recognizances.^ The St. 1863, ch. 59, entitled "An Act concerning bail in criminal cases," prescribes the mode in which bail may exon- erate themselves by surrendering their principal : — Sect. 1. Bail in criminal cases, at any time before de- fault upon their recognizance, may exonerate themselves by surrendering their principal into court, or to the jailer in the county in which the principal is held to appear and answer by the condition of the recognizance, and delivering to the jailer a certified copy of the recognizance, and the principal shall be received and detained by the jailer ; and any person surrendered as aforesaid may be again bailed in the same manner as if committed for not finding sureties to recognize for him. Sect. 2. At any time after default^ made upon the recog- nizance, bail may surrender their principal in the manner pro- vided in the first section of this act ; and the court for the county in which the default upon the recognizance is recorded, may, on application therefor, being satisfied that the default of the principal was not with the connivance or consent of the bail, remit the whole or any part of the penalty. The Gen. Sts. ch. 170, § 43, enacts : « If by the act of God, or the government of the United States, or any State, or by sentence of law, bail are unable without their fault to sur- render their principal, they shall, on motion before final judg- ment on the scire facias, be exonerated and discharged by the court, with or without costs, as the court deems equitable." It is the settled law of this class of cases that the bail will be exonerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the. law.^ Where the principal dies before the day of performance, the case is within the first category. Where the court before which the principal is bound to ap- pear is abolished without qualification, the case is within the 1 Commonwealth v. Dowdican's » Way v. Wright, 6 Met. 380, Bail, 115 Mass. 133. 385. Fuller u. Davis, 1 Gray, 2 See Commonwealth v. Johnson, 612. Turner ». Bartlett, 109 Mass. 3 Gush. 454. 503. 254 CRIMINAL LAW. second. If the principal is arrested in the State where the obligation is given and sent out of the State by the Governor, upon the requisition of the Governor of another State, it is within the third. In such cases, the Governor acts in his official character, and represents the sovereignty of the State in giving efficacy to the Constitution of the United States and the law of Congress. If he refuse, there is no means of com- pulsion. But if he act, and the fugitive is surrendered, the State whence he is removed can no longer require his appear- ance before her tribunals, ayd all obligations which she has taken to secure that result thereupon at once ipso facto lose their binding effect.-' It is equally well settled that if the impossibilitj' be created by the obligor or a stranger, the rights of the obligee will be in no wise affected. And there is " a distinction between the act of the law proper and the act of the obligor, which exposes him to the control and action of the law." While the former exonerates, the latter gives no immunity. It is the willing act of the obligor which creates the obstacle, and the legal effect is the same as of any other act of his which puts per- formance out of his power. This applies only where the accused has been convicted and sentenced. Before judgment, non constat but that he may be innocent.^ It is true, the rights and liabilities of sureties on a recog- nizance are in man}' respects different from those of sureties on ordinary bonds or commercial contracts. The former can at any time discharge themselves from liability, by surrender- ing their principal, and they are discharged by his death. The latter can only be released by payment of the debt, or performance of the act stipulated. But in respect to the limitations of their liability to the precise terms of their con- tract, and the effect upon such liability of any change in those terms without their consent, their positions are similar. And the law upon these matters is perfectly well settled. Any change in the contract in which they are sureties, made by the principal parties to it without their assent, discharges them, and for obvious reasons. When the change is made 1 Taylor v. Taintor, 16 Wall. = Taylor v. Taintor, 16 Wall. 369, 370. 370. BAIL AND RECOGNIZANCE. 255 they are not bound by the contract in its original form, for that has ceased to exist. They are not bound by the con- tract in its altered form, for to that they have never assented. Nor does it matter how trivial the change, or even that it may be of advantage to the sureties. They have a right to stand upon the very terms of their undertaking. ^ Where a State court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully per- formed and the jurisdiction invoked is exhausted ; and this rule applies alike in both civil and criminal cases. It is indeed a principle of universal jurisprudence, that where juris- diction has attached to person or thing, it is, unless there is some provision to the contrary, exclusive in effect until it has wrought its function. ^ When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continu- ance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their dis- charge ; and, if that cannot be done at once, they may im- prison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State ; may arrest him on the Sabbath ; and, if nec- essary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In 6 Modern, p. 231, it is said: "The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge." The rights of the bail in civil and criminal cases are the same. They may doubtless permit him to go beyond the limits of the State within which he is to answer, but it is unwise and imprudent to do so ; and, if an evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee.** 1 Eeese v. United States, 9 Wall. 371, 372. Commonwealth v. Briek- 21. ett, 8 Pick. 140. Ex parte Lyne, 2 Judgment in Taylor v. Taintor, 3 Stark. Rep. 132. Mcolls v. Inger- 16 Wall. 370. soil, 7 Johns. 145. 8 Taylor v. Taintor, 16 Wall. 256 CRIMINAL LAW. A prisoner, charged with a crime before the Superior Court of Connecticut, entered into a recognizance with sure- ties, for his appearance at a certain time before said court, to answer &c. Prior to the time fixed for his appearance, he was arrested in the State of New York, upon a requi- sition of the Governor of the State of Maine, for a crime previously committed in the latter State, and was taken to that State and was legally there imprisoned at the time fixed for his appearance before the court of Connecticut. His recognizance having been forfeited, and suit brought upon it, it was held that the above facts constituted no defence.^ The Gen. Sts. ch. 170, §§ 47, 48, contain further provisions for the relief of sureties on recognizances : — Sect. 47. A surety in such recognizance may by leave of the court, after default and either before or after process has been issued against him, pay to the county treasurer or clerk of the court the amount for which he was bound as surety, with such costs as the court shall direct, and be thereupon for ever discharged. Sect. 48. When an action is brought on behalf of the Com- monwealth against a principal or surety in a recognizance in a criminal prosecution entered into either by a party or a 1 Taylor v. Taintor, 16 Wall, strument used in the commission of 366. Mr. Justice Swayne, in deliv- a crime of violence is the act of the ering the opinion of the court, instrument, and not of the criminal, said: " The act of the Governor It is true that, in one case, there of New York in making the sur- would be a will and purpose as to render was not ' the act of the law,' the result in question, which would ■within the legal meaning of those he wanting in the other ; but there terms; but, iu the view of the law, would be in both the relation of was the act of the principal himself, cause and effect, and that is suffi- He violated the law of Maine, and cient for the purposes of the analogy, thus put in motion the machinery The principal in the case before us provided to bring him within the cannot be allowed to avail himself reach of the punishment denounced of an impossibility of performance for his offence. But for this, that thus created; and what will not machinery, so far as he was con- avail him cannot avail his sureties, cerned, would have remained dor- His contract is identical with theirs, mant. To hold that the surrender They undertook for him what he was the act of the law, in the sense undertook for himself." 16 Wall, contended for, would be as illogical 373. as to insist that the blow of an in- BAIL AND RECOGNIZANCE. 257 witness, and the penalty is adjudged forfeited, the court may render judgment for the whole of such penalty with interest, or on application of the defendant, for any part thereof ac- cording to the circumstances of the case and the situation of the party, and upon such terms and conditions as the court deems just and reasonable. In Commonwealth v. Dana,Vthe court said that the statute was plainly intended for cases of unavoidable accident or irresistible necessity, and for the relief of unfortunate persons who are induced by humane feelings to become sureties for persons who aft^rwards abscond, leaving their bail without indemnity or remedy. Where a party entered into a recog- nizance in the lower court, with sureties, to keep the peace, and to appear at the higher court to answer to such things as should be objected against him, and he kept the peace, but did not appear to answer to an indictment preferred against him, whereby he forfeited his recognizance, the court, in the exercise of its discretion, reduced the forfeiture to such a sum as it would have been reasonable to require of the principal in a recognizance only to answer to the offence charged in the indictment.^ The Gen. Sts. ch. 173, § 6, enacts : " When upon suit brought on a recognizance to prosecute an appeal, the penalty is adjudged to be forfeited, or when, by leave of court, such penalty has been paid to the county treasurer or the clerk of the court without a suit, or before judgment is given as pro- vided in chapter one hundred and seventy, if by law any forfeiture accrues to a person by reason of the offence of which the appellant was convicted, the court may award to him such sum as he may be entitled to out of the for- feiture." The Gen. Sts. ch. 170, §§ 50 et seq., authorize reviews of judgments upon recognizances to the Commonwealth, and that the amount paid on recogniza,nces, in certain cases, may be ordered to be repaid. 1 14 Mass. 65, a.d. 1817. Gen. Pick. 127. Knowles v. Davis, 2 Al- Sts. ch. 170, § 48. len, 65. 2 Commonwealth v. McNeill, 19 17 258 CRIMINAL LAW. When the examination is finished, and before the par- ties and witnesses separate, it is the duty of the magistrate to enjoin upon them, particularly the witnesses, to appear at court on the morning of the first day of the term, that no time may be lost by the grand jury and public prose- cutor on account of their absence or negligence. Great embarrassment, expense to the public, and waste of time, are frequently the consequence of the neglect of this duty on the part of the magistrate. It is very common for magistrates, officers, and others to misinform and mislead the witnesses in this particular, by telling them that t^ey will not be wanted until the second day of the term ; that little or no business will be done at court until the second day &c. So far from this being generally true, the witnesses, by a punc- tual attendance on the first day of the term, may often be examined and dismissed on the morning of the second day. By their neglect to appear punctually on the morning of the first day of the term, their bonds are forfeited, and they may by law be compelled to pay the whole penalty of their recognizance. Witnesses are frequently brought into this difficulty by the misinformation of the magistrates themselves ; and whenever that is the case, the magistrates are liable for all the consequences to the witness or party whom they thus mislead. It is therefore an important duty of the magistrate that he should give notice to, and particularly inform, all those who enter into recognizance before him, either as parties or witnesses, that their duty and the condi- tion of their recognizance require that they should make their appearance at court at the hour that it is usually opened, on the morning of the first day of the term. This can alwa}'s be done by the magistrate, without inconvenience, before the parties and witnesses are dismissed, and at the moment when their recognizances are taken. There is no excuse for a mag- istrate, who undertakes to dispense with the attendance of witnesses at court, at the time that their duty and the pub- lic business require their presence. Instances have often occurred, even in prosecutions for a capital crime, when the witnesses have not appeared at court until the second day of the term, and have pleaded in excuse the information of the BAIL AND BECOGNIZANCB. 259 magistrate to them, that they would not be wanted until that time. This is a great breach of duty on the part of the mag- istrate, and generally subjects the persons thus misinformed, as well as the public, to delay, embarrassments, and unneces- sary expense. It is also a contempt of the court, for which magistrates are liable to be fined. 260 CRIMINAL LAW. CHAPTER XII. COMMITMENT. A COMMITMENT implies the sending a person to prison by the warrant or order of any court or magistrate, where the party has been convicted, or is charged with any crime.^ The mittimus is a warrant of commitment to the jailer to receive the defendant. The law applicable to this subject will be considered under the following heads : — 1. The Cause of the Commitment. 2. To what Prison the Commitment must be made. 3. The Form of the Commitment. 1. The Cause of the Commitment. If it appears that an offence has been committed and that there is probable cause to believe the prisoner guilty, and if the offence is bailable by the magistrate and the prisoner offers sufficient bail, it shall be taken and the prisoner dis- charged ; but if no sufficient bail is offered, or the offence is not bailable by the magistrate, the prisoner shall be com- mitted to prison for trial.^ When an offender is convicted before a trial justice of an offence within his final jurisdiction, or pleads guilty to the charge, unless an appeal is taken, it is the duty of the magistrate to award the sentence provided by law for the offence. If a commitment be ordered, he issues his mittimus accordingly. But if an appeal is taken, and the defendant fails to procure sureties to prosecute his appeal, the magis- trate must not issue his mittimus pursuant to the sentence, 1 1 Deacon Crim. Law, 255. ^ Gen. Sts. ch. 170, § 25. COMMITME>fT. 261 but must commit the defendant to the common jail, until he shall recognize with sureties to prosecute his appeal, and abide the sentence of the appellate court.^ Witnesses required to recognize, either with or without sureties, shall, if they refuse, be committed to prison by the magistrate, there to remain until they comply with such order, or be otherwise discharged according to law.^ But no person who is ordered to recognize with sureties for his appearance as a witness before any court or magistrate, and is unable to procure such sureties, shall be committed to prison, except in cases of felony? If a person ordered to recognize with sureties to keep the peace refuses or neglects to comply with such order, the court or magistrate shall commit him to the jail, house of correction, or house of industry, during the period for which he was re- quired to give security, or until he so recognizes ; stating in the warrant the cause of commitment, with the sum and the time for which such security was required.* Magistrates and all of the inferior courts, by force of vari- ous statutes, may punish such disorderly conduct as inter- rupts any judicial proceedings before them, or is a contempt of their authority or person, by fine not exceeding ten dol- lars, or by imprisonment in the common jail of the county not exceeding fifteen days.^ When a person is arrested in a county other than that in which the offence was committed, and is taken before a mag- istrate of the county where the arrest is made, for the purpose of being admitted to bail, and if the magistrate before whom he is brought refuses to admit him to bail, or if no sufficient bail is offered, the magistrate has no authority to order a commitment ; but it is the duty of the officer who has charge of the prisoner to take him before the magistrate who issued the warrant, or, in his absence, before some other magistrate of, or police court in, the county in which the warrant was issued, for examination.^ 1 Kendall v. Powers, 4 Met. 553. * Gen. Sts. ch. 169, § 5. "Wells V. Stevens, 2 Gray, 115, 118. ^ Qen. Sts. ch. 120, § 50. Ante, Doggett B. Cook, 11 Cush. 262. pp. 157, 158. 2 Gen. Sts. ch. 170, § 29. « Gen. Sts. ch. 170, §§ U, 15, 3 St. 1872, ch. 214, § 1. 16. 262 CRIMINAL LAW. 2. To what Prison the Commitment must be made. The Gen. Sts. ch. 174, enact : — Sect. 4. Whoever is convicted of an offence punishable wholly or in part by imprisonment in the jail, may be sen- tenced to suffer such imprisonment in the house of correction instead of the jail, or to suffer solitary imprisonment and be confijied at hard labor either in the jail or house of correction of any county in the Commonwealth.^ Sect. 5. Whoever is convicted of a crime punishable by fine and liable to imprisonment in the jail for the non-pay- ment of fine and costs of prosecution, may be sentenced to suffer such imprisonment in the house of correction instead of the jail, and confined at hard labor either in the jail or house of correction. Sect. 8. When it is provided that an offender shall be punished by imprisonment in the jail and a fine, or by impris- onment in the house of correction and a fine, such offender, unless convicted under chapter eighty-six, may at the discre- tion of the court be sentenced to be punished by such im- prisonment without the fine, or by such fine without the imprisonment. The St. 1866, ch. 280, enacts: — Sect. 1. When it is provided by law that an offender shall be punished by a fine and imprisonment in the jail, or by a fine and imprisonment in the house of correction, such offender may, at the discretion of the court, be sentenced to be punished by such imprisonment without the fine, or by such fine without the imprisonment, in all cases where the offender shall prove or show to the satisfaction of the court he has not before been convicted of a similar offence.^ The Gen. Sts. ch. 178, enact : — Sect. 1. The jails in the several counties shall be used, — First. For the detention of persons charged with offences and committed for trial : * 1 St. 1870, ch. 370, § 4. » The sergeant-at-arms of the ^ Commonwealth v. Sholes, 13 Legislature may lawfully detain in Allen, 396. the county jail, with the permission COMMITMENT. 263 Second. For the detention of persons committed to secure their attendance as witnesses on the trial of criminal causes : Third. For the confinement of persons committed pursu- ant to a sentence upon conviction for an offence, and of all other persons committed for any cause authorized by law. The provisions of this section shall extend to persons de- tained or committed by authority of the courts of the United States, as well as the courts and magistrates of this State, except as is provided in section sixtj'-one of chapter one hundred and forty-four. The Gen. Sts. ch. 165, enact: — Sect. 28.^ Rogues and vagabonds, idle and dissolute per- sons who go about begging, persons who use any juggling or unlawful games or plays, common pipers and fiddlers, stub- born children, runaways, common drunkards, common night- walkers, pilferers, lewd, wanton, and lascivious persons in speech or behavior, common railers and brawlers, persons who neglect their calling or employment, misspend what they earn and do not provide for themselves or for the support of their families, and aU. other idle and disorderly persons, includ- ing therein those persons who neglect all lawful business and habitually misspend their time by frequenting houses of ill- fame, gaming-houses, or tippling-shops, may, upon conviction, be committed, for a term not exceeding six months, to the house of correction, or to the house of industry or workhouse within the city or town where the conviction is had, or to the workhouse, if any there is, in the city or town in which the offender has a legal settlement, if such town is within the county. Sect. 29. When a person is convicted, by a trial justice or police court, of any offence mentioned in the preceding section, he may, instead of the punishment therein men- tioned, be punished by fine not exceeding twenty dollars, of the sheriff, a prisoner committed honds." Commonwealth v. Nor- by authority of the House of Repre- ton, 13 Allen, 550. sentatives. Burnham v. Morissey, The St. 1865, ch. 208, § 1, en- 14 Gray, 227. acts that " No person under the age 1 This section is not repealed by of ten years shall be sentenced to St. 1866, ch. 235, § 1, entitled " An a jail or house of correction, except Act concerning vagrants and vaga- for non-payment of fine, or fine and costs." 264 CRIMINAL LAW. either with or without a condition that if the same with the costs of prosecution is not paid within a time specified, he shall be committed to the house of correction, house of in- dustry, or workhouse, as is provided in the preceding section ; which conditional sentence shall be carried into execution according to the provisions of section seven of chapter one hundred and seventy-four. 3. The Form of the Commitment. Although the form of the mittimus does not require so much precision as a complaint, or an indictment,^ yet it must be framed with sufficient accuracy. " It ought to set forth the crime alleged against the party with convenient certainty;" otherwise, the court before whom he is removed by habeas corpus ought to discharge or bail him.^ It may be laid down as a general principle, that though a commitment need not be so special or technical as a complaint or an indictment, yet it should contain the substance of it, or of the offence with which the defendant is to be charged thereby.^ Com- mitments in execution, however, must be more peculiarly cer- tain and construed more strictly than commitments for safe custody.* The formal requisites of a commitment appear by the most approved authorities to be the following : — It is the practice to insert the county in the margin. It is directed to the sheriff of the county, his deputies, to the constables and police-officers of any city or town in the county, and to the keeper of the jail, or the master of the house of correction in the county, or the keeper of the jail, or to the master of the house of correction in any county in the Commonwealth, and, in the proper cases, to the master of the house of industry, and to the keeper of the workhouse in the town or city where the offence was committed. And 1 Rex V. Remnant, 2 Leach C C. the crimes laid against him." Acts 584; 5 T. R. 170. Regina v. Bart- oh. xxv. v. 21-27. lett, 12 L. J. M. C. 130. When " 2 Hawk. P. C. ch. 16, § 16. Paul had appealed to Augustus, ' 2 Gabbett Crim. Law, 178. Festus said to Agrippa, " It seem- * Ex parte Gourlay, 7 B. & C. eth to me unreasonable to send a 669; 1 M. & R. 619. prisoner, and not withal to signify COMMITMENT. 265 when thus directed, the mittimus commands the former to convey and deliver the prisoner into the custody of the lat- ter, and the latter to receive and keep him until he shall be thence delivered by due course of law. It is the duty of the jailer to receive the party ; and if he refuses, or Tinlawfully de- mands any thing for receiving him, it is an indictable offence. No precise mode of introducing the statement of the offence appears to be material. Either of the following forms will answer : " charged with feloniously assaulting," &c., or " with having on," '&c., or " charged with a misdemeanor, namely, with having," &c., or " that the said C. D., on," &e. ; and then recite the complaint, according to the decision in Com- monwealth V. Ward.i f^g latter is decidedly the preferable form of introducing the statement of the crime for which the party is to be committed. If the offence be against a statute, the description should close with the words, " contrary to the form of the statute in such case made and provided." This, indeed, will be only continuing the description of the offence in the complaint, if the complaint is properly drawn ; for the description, in all offences against statutes, should conclude, " contrary to the form of the statute (or, statutes) in such case made and provided." ^ Every final commitment must be in writing, and under the hand and seal of the magistrate, and show the time and place of making it.^ A magistrate, however, may, at common law, 1 4 Mass. 497, a.d. 1808. the period of imprisonment must 2 1 Chit. Crim. Law, 113. Ante, be calculated from that time." p. 96. This case overrules In re Fletcher 8 2 Hawk. P. C. ch. 16, § 13. 13 L. J. M. C. 16. Hutchinson v. Lowndes, 4 B. & "There is no ground for saying Adol. 118. Mayhew v. Locke, 2 that the order of a court committing Marsh. 377 ; 7 Taunt. 63. But if it a person to prison ought to be under should omit to state the date, it is seal. There are several authorities not therefore invalid. In re Bowd- that ordinary warrants must be so, ler, 17 L. J. Q. B. 248, 245. Lord and there are some statutes which Denman, C. J.: "If the party expressly require them to be under could be taken up immediately, it the hands and seals of the justices might be an argument for inserting making them ; but independently the date of the commitment; but of such requirements, there does not that very often is impossible. It appear to be any general principle is a matter of evidence at what requiring a seal." Per Erie, J., In time he is taken into custody, and re Bowdler, 17 L. J. Q. B. 246. 266 CRIMINAL LAW. by parol, order a party to be detained a reasonable time, until he can draw out a formal commitment, but not longer than is necessary for that purpose.^ The warrant ought to express not only the name of the magistrate, but also his office or authority.^ " In this respect there is a difference as to the necessity of so doing between commitments for safe custody and commitments in execu- tion; the latter requiring much greater precision than the former. In the former case, the mention of the name and authority of the magistrate in the beginning of tKe mittimus is not always necessary, and his seal and subscription is a suffi- cient warrant to the jailer. On such a commitment, there- fore, returned by habeas corpus, it will suffice if the authority of the magistrate is stated in the return. But in the case of a commitment in execution, it is material to insert in the commitment the name and authority of the committing mag- istrate ; and an omission in this respect is not supplied by the averment in the return of the warrant on habeas corpus." ^ It is said in Hawkins's Pleas of the Crown, and other English works on Criminal Law, that the mittimus may be made either in the Queen's name, or that of the magistrate awarding it.'' But there seems to be no propriety or au- thority for issuing a precept in the name of the magistrate. He is the mere instrument or organ of the Commonwealth, to enforce its laws and commands ; and whatever he does, in his official capacity, ought to be done in the name of the Commonwealth. The mittimus, therefore, ought to be made in the name of the Commonwealth. The prisoner should be described by his christian name, and surname if known ; and, if not known, then it may be sufficient to describe the person by his age, stature, complex- 1 Hutchinson v. Lowndes, 4 B. 2 Hale P. C. 122. 1 Burn Justice, & Adol. 118. Still V. Walls, 7 852, 30th ed. East, 533. The question as to ^ 1 Deacon Grim. Law, 261, 262. what is a reasonable time is main- Rex v. York, 5 Burr. 2684. Rex ly for the jury. Cave v. Moun- v. Godall, 1 Kenyon, 122. tain, 1 Scott N. R. 132; 1 M. & G. * 2 Hawk. P. C. ch. 16, § 14. 1 257. Burn Justice, 852, 30th ed. 2 2 Hawk. P. C. ch. 16, § 13. COMMITMENT. 267 ion, color of hair, and the like, and to add, that he refuses to tell his nanie.^ The mittimus ought to state that the party has been charged upon oath.^ In this country, no criminal process can be originated, nor can any man be restrained of his lib- ertj"^ but by the oath of a citizen. There may be an excep- tion to this rule in cases of commitments made super visum, or upon view of the offence, by the committing magistrate, in which cases an oath is not requisite.* But in all cases of crimes committed upon the view or in the presence of a magistrate, whatever may be his authority to punish them, it is more fit and proper that he should act the part of a witness, rather than of a magistrate ; and that he should enter his complaint and procure a process from another magistrate. But it is necessary to set forth the particular species of the crime alleged against the party, with convenient certainty, by whatever authority the commitment is made.* In the case of Commonwealth v. Ward,^ it was decided that a mittimus, or warrant of commitment from a justice of the peace, ought to recite the complaint upon which it is founded ; and the Habeas Corpus Act contemplates that the offence shall be plainly and specially expressed in the warrant of commit- ment. Upon the subject of the present inquiry, that is, with what degree of precision the offence charged ought to be stated in ^ 1 Deacon Crim. Law, 2.!i8. 2; and Parker, C. J., in giving judg- ^ Ex parte Burford, 3 Cranch, menfc, said that in many precedents 448, stated more fully in the opinion it was omitted, of Mr. Justice Curtis, in Kaine's ^ Piatt's Case, 1 Leach C. C, Case, 14 How. 124. Ex parte 167. He may then instantly or- Watkins, 3 Peters, 208. Ex parte der the offender to be taken into Bennett, 2 Cranch C. C. 612. The custody. Still v. Wells, 7 East, English text-writers say that " It is 533. safe, but not absolutely necessary, * 2 Hawk. P. C. ch. 16, § 16. to set forth in the warrant that the A warrant of commitment must party is charged upon oath." 2 state the place where the offence Hawk. P. C. ch. 16, § 17. 1 Dea- was committed, otherwise it will be con Crim. Law, 258. 2 Gabbett defective. Re Beebe, 3 U. C. P. R. Crim. Law, 178. 1 Burn Justice, 270. 852, 30th ed. It was so decided in '4 Mass. 497. Sir W. Wyndham's Case, 1 Strange, 268 CRIMINAL LAW. the mittimus, there is evidently considerable contradiction in the English authorities. The cases are collected and ap- parently thrown together, without much order or method, in Chitty's Treatise on Criminal Law.^ Some of them are not applicable to our laws and practice. There seems to be no difficulty in pointing out or adopting a clear and rational mode of procedure in this part of a magistrate's duty ; for it is clearly settled in the case of Commonwealth v. Ward,^ that the crime for which the party is committed should be set forth with the same precision in the mittimus that it is in the complaint; and that, for this purpose, the body of the com- plaint should be recited in the mittimus. When the descrip- tion of the offence is long and very minute, as in cases of perjury, conspiracy, libel, &c., if an abstract, or the substance of the complaint, is inserted in the mittimus, it is not invalid. This is always done in the capias which issues upon an indict- ment in these cases. In practice, in all cases, only an abstract, or the substance of the complaint is inserted in the mittimus. It is said in the English books, that if the commitment itself be informal, yet, if the corpus delicti appear in the depo- sition returned to the court, the defendant will not be bailed upon a habeas corpus, but remanded. "We have no such prac- tice as taking and returning depositions, in any stage of a criminal prosecution, unless in some particular cases of urgent necessity, when a deposition is taken by the consent of the defendant, to be used on the trial of the case.^ In all exam- inations before a magistrate, the evidence is given vivS. voce by the witnesses and in the presence of the party accused.* When these examinations result in a commitment, and the party thinks himself entitled to be discharged or bailed, he brings a writ of habeas corpus before the Supreme Judicial Court, or some justice thereof in term time or vacation.^ In the inquiry and hearing by the court or judge, the party 1 1 Chit. Crim. Law, 109-113, ing by the magistrate, or under his 2d ed. direction, when he deems it neees- 2 4 Mass. 497. sary, and shall, if required by the 8 Gen. Sts. ch. 170, §§ 30, 31. magistrate, be signed by the wit- Gen. Sts. ch. 171, §§ 3-2, 33. nesses. Gen. Sts. ch. 170, § 23. * The testimony of the witnesses « St. 1861, ch. 91, § 1. examined shall be reduced to writ- COMMITMENT. 269 complaining produces his witnesses ; and in this manner the facts and circumstances under which the crime was com- mitted are fully inquired into, and thereupon the prisoner is discharged, bailed, or remanded, as the result of the inquiry- may justify. The mittimus should point out the place of imprisonment, and not merely direct that the party shall be taken to prison. When the commitment is to take place in a county where there are several common or county jails, the mittimus ought to direct to which of them the prisoner shall be committed ; for, if the direction be that he shall be committed to either of the jails in the county, the officer who is to convey him to prison and execute the warrant would be authorized to com- mit him to the most distant as well as the nearest prison to the place where he was examined. There is no necessity or propriety in giving the officer this power ; for, in general, it is proper that the commitment should be to the nearest prison, not only with the object of saving expense, but to prevent the opportunity of escape or rescue. Whenever, through the insufficiency of the nearest jail, or from any other cause, it is expedient to order the commitment to be made in one more distant, the magistrate, and not the officer who executes the warrant of commitment, ought to be the judge of this expediency. Many escapes have been effected, during the conveyance of prisoners from the place of exami- nation to distant jails, bj"^ old offenders, in the custody of inexperienced officers. And although they may ultimately be removed from the jails to which they are committed, to the place where they are to be tried, the danger of escape, and the expense attending their commitment, are considerably diminished by the mode of procedure here recommended. As to the time and mode of imprisonment, it is observed that the mittimus must have an apt conclusion. No precise form for this precept has been established by statute provi- sion ; yet it seems to be as worthy of legislative interference as most of the precepts the forms of which have been estab- lished by legislative authority. We must, therefore, resort to the rules of the common law as guides in this particular. The words used in the conclusion are, to detain the prisoner 270 CRIMINAL LAW. " until he shall be discharged by due course of law." ^ These words are said to be proper, only when the party is commit- ted for an offence not bailable ; but when he is committed for want of sureties for a bailable offence, it is said to be usual to direct the jailer to " keep the prisoner in his said custody, for want of suretie,s, or until he shall be discharged by due course of law." The mittimus may command the jailer to keep the party " in safe custody ; " for, if every jailer be bound by law to keep his prisoner in such custody, there can be no objection to reminding him of this duty in the mittimus. The true distinction is, that where a man is committed for safe custody, ov for trial, for any crime either at common law or created by act of Parliament, then he is to be committed until discharged hy due course of law. But when the com- mitment is in pursuance of a special authority, the terms of the commitment must be special, and exactly pursue that authority.^ The condition must be distinctly expressed, by the perform- ance of which the defendant may be released from his imprisonment; and it must likewise be strictly within the authority giveu to the magistrate by the statute. A warrant of commitment for an indefinite time is bad. So, if a com- mitment be until payment of a fine, the precise sum must be specified, and not left uncertain in the wai-rant of commit- ment. The reason is, that in such a case the jailer does not know what sum to accept as sufficient for the release of the prisoner.^ So, a commitment for contempt (being a commit- ment for punishment) must be for a time certain, and it is bad, if it conclude " until the offender shall be discharged by due Course of law;"* for, as there was no particular course of law specified by which the defendant could be discharged, such a commitment would amount to perpetual imprison- ment. 1 2 Hawk. P. C. oh. 16, § 18. » Dawson w. Eraser, 7 U. C. Q. B. 1 Deacon Crim. Law, 262. 391. 1 Deacon Crim. Law, 262, 263. 2 Mash's Case, 2 W. Bl. 806. * Rex v. James, 5 B. «& Aid. 894. Ex parte Besset, 6 Q. B. 481. 1 If he be committed for contumacy, Deacon Crim. Law, 262. Re An- it should be "until he comply." derson, 11 U. C. C. P. 54. 2 Hawk. P. C. oh. 16, § 18. COMMITMENT. 271 The period of the time of the imprisonment is to be counted from the time when the party was taken into custody, and not from the date of the order. It is clear that the intention is, that the pfirty should lose his liberty for a certain period of time ; and, if the officer was a long time in finding him, he is not to be benefited by that.^ One of the most important presumptions known to the common law is that which is usually embodied in the maxim, Omnia prsesumuntur rite esse acta. B ut this presumption does not apply so as, in any event, to give jurisdiction to inferior courts, or to magistrates, or others acting judicially under a special statutory power ; but, in all such cases, every circum- stance required by the statute to give jurisdiction must appear on the face of the proceedings, either by direct averment or by reasonable intendment. There is no distinction, in this respect, between warrants to arrest and commitments.^ The expense of conveying the prisoner to jail is to be de- frayed by the government. This expense is sometimes made to exceed the bounds of reason or necessity ; and, when that is the case, it will not be allowed by the court before whom the prisoner is to be tried. There are no stated fees for that part of the expense in the service of a mittimus, which usually constitutes the largest item; namely, the mode of conveyance and travelling, and the support of the prisoner on the way. These are regulated-, as to the amount allowed, altogether by . the discretion of the court. By the Habeas Corpus Act, 31 Car. II., the charge of conveying an offender is limited so as not to exceed twelve pence per mile. A similar provision in this Commonwealth would not only be extremely salutary, but be the means of preventing exorbitant demands, and no small degree of imposition upon the government, in the usual expenses of a criminal prosecution. If the magistrate, acting within the scope of his authority and jurisdiction, but taking an erroneous view of the effect of the evidence, should come to a wrong conclusion, and com- mit the defendant, and he should be afterwards discharged 1 In re Bowdler, 17 L. J. Q. B. ^ 1 Taylor Ev. § 126, 6th ed. 243, 246. Ante, p. 266 note. Ex parte Bailey, 3 El. & Bl. 607. 272 CRIMINAL LAW. by the higher court on a habeas corpus, yet the magistrate would not, on that account, be liable to an action for dam- ages.^ It is enacted by the Habeas Corpus Act that an officer, who refuses or neglects for six hours to deliver a true copy of the warrant or process by which he detains a prisoner, to any person who demands such copy and tenders the fees therefor, shall forfeit and pay to such prisoner the sum of two hundred dollars, to be recovered in an action of tort.^ 1 Sir Vicary Gibbs, Attorney- 119. Hamond v. Howell, 1 Mod. General, arg. in Burdett v. Abbot, 184. . 14 East, 82. Bushell's Case, 1 Mod. ^ Gen. Sts. ch. 144, § 33. TAXATION OP COSTS. 273 CHAPTER XIII. TAXATION OF COSTS. In criminal prosecutions instituted before trial justices, in which a warrant is duly served and returned before them and they render judgment, they shall tax the legal costs arising therein and certify their allowance of the same, and in cases where the warrant is not served, they may allow to the officer and tax and certify such costs as they deem proper.^ In cases in which trial justices exercise final Jurisdiction in criminal prosecutions, they shall certify the costs by them taxed and allowed, to the next superior court, which taxation shall be examined by the court or its order, the errors therein corrected, and the costs allowed and made up in the general bill of costs for the same term of the court : provided, that when a person convicted before a trial justice, and sentenced to pay the costs of prosecution, or a fine and costs, complies with the sentence, the costs, or fine and costs, shall be paid to the justice, who may retain his own fees and pay the residue of the costs to the officer and wit- nesses or other persons entitled thereto ; otherwise such costs and the fine shall be paid to the treasurer of the county, city, or town, in the manner directed in chapter one hundred and twenty.^ In criminal prosecutions which are carried to the superior court hy appeal, and in eases where a person is bound by recognizance or committed for want of sureties by a trial justice or police court, to answer in the superior court, the costs shall be taxed, and certified with the papers to the court, and shall be there allowed and taxed in the costs of prosecution. 3 1 Gen. Sts. ch. 176, § 5. 2 Gen. Sts. ch. 176, § 6. Bumham v. Beal, 14 Allen, 217. ' Gen. Sts. ch. 176, § 7. 18 274 CRIMINAL LAW. The statutes enumerate and define the fees of the various officers. A faithful adherence to the provisions of this statute, in the taxation of costs in criminal prosecutions, is a very important duty of a magistrate. They have been so differently construed, or carelessly executed, that little uni- formity has been preserved in the practice of magistrates, in the different counties, and even in the same county. From these causes, the bills of cost sent up to the superior court have varied in amount from twenty-five to one hundred per cent for similar fees and services. Yet the fees of the several officers are stated in the statutes with very little ambiguity. There are two instances where a magistrate is permitted to use his discretion as to the amount of the fee or compensa- tion to be taxed ; and those are, to the officer upon a warrant, when- no actual service is made, and to the officer for summon- ing witnesses, whose fees, in some special cases, may be in- creased to what the court may judge reasonable. In all other cases, the fees allowed and accruing upon a criminal prosecution before magistrates, appear to be plainly and explicitly stated in the statutes. It requires some degree of firmness in an acting magis- trate to restrict officers and witnesses, particularly the former, to their legal fees in the taxation of costs. They generally think themselves inadequately compensated by them ; and in some special instances and services, their complaints are just. But when extra, exorbitant, or unlawful fees are charged and claimed by officers or witnesses, it is the duty of the mag- istrate to examine every item with care, and to allow those only which are strictly legal. With respect to the magis- trate's own fees, although, in practice, there has been a considerable difference in the sums charged by different mag- istrates for similar services, yet they are so plainly stated in the statute, that there seems to be no difficulty in correctly ascertaining them. In certain cases the complainant is liable to pay the costs in criminal prosecutions. Whenever complaint is made to any magistrate that a person has threatened to commit an offence against the person or property of another, the magis- trate may, if he shall deem the complaint unfounded, frivo- TAXATION OP COSTS. 275 lous, or malicious, order the complainant to pay the costs of prosecution, who shall thereupon be answerable to the magis- trate and the officer for their fees, as for his own debt.^ When no order respecting the costs is made by the court or magistrate, they shall be allowed and paid in the same man- ner as costs before justices in criminal prosecutions ; but in all cases where a person is required to give security to keep the peace, or for his good behavior, the court or magistrate may further order that the costs of prosecution, or any part thereof, shall be paid by such person, who shall stand com- mitted until the costs are paid, or he is otherwise legally discharged.^ The St. 1860, ch. 191, § 7, enacts that " The clerks of police courts, the standing justices of police courts of which there are no clerks, and trial justices, shall enter all costs taxed and allowed by them in a record book to be kept by them for that purpose, specifying the case in which the same were allowed, to whom allowed, and the several items of charge specifically ; and the receipt of the 'person entitled thereto shall be entered upon the book when the amount thus allowed is paid." The fees to be taxed and allowed in criminal cases in munic- ipal, police and district courts, and by trial justices, are, — 1. Those of the court or magistrate. 2. Those of the witnesses. 3. Those of the officer and his assistants. 4. And in certain cases a recompense is allowed to the prosecutor and officer. 5. Services of counsel. 1. Fees of the Court or Magistrate.^ By St. 1876, ch. 227, § 4, the following fees may be taxed and allowed in criminal cases in municipal, police, and district courts, and by trial justices : — ^ Gen. Sts. ch. 169, § 6. istrates of the same county, and they- ^ Gen. Sts. ch. 169, § 7. may together execute the powers ' A magistrate to whom com- and duties given to magi.strates by plaint is made, or before whom a Gen. Sts. ch. 170 ; but no fees shall prisoner is brought, may associate he taxed for such associates. Gen. with himself one or more of the mag- Sts. ch. 170, § 32. 276 CRIMINAL LAW. Receiving complaint, administering oath, and issuing war- rant, fifty cents ; Entering a complaint, rendering judgment, and recording same, examining, allowing, and taxing costs, and filing papers, seventy-five cents ; For a subpoena for one or more witnesses, ten cents ; For a trial, or for a hearing or an examination, on a plea of guilty or nolo contendere, one dollar ; For attendance of an officer on the court, one dollar a day, upon one warrant only, if there be two or more against the same defendant at the same time ; but if the trial in any case is continued upon the arraignment without any examination, no fee for officer's attendance upon the day of arraignment shall be taxed. Said fee for officer's attendance, if collected, shall be paid to the treasurer of the town, city, or county as now provided by law, in all said courts in which an officer is in attendance upon the court under a salary or a per diem allowance. For taking a recognizance, of principal and sureties, twenty cents ; of witnesses, in each case, one fee of twenty cents ; For copies upon appeal, or for the grand jury, two dollars ; For a mittimus, twenty-five cents ; Also, the legal fees of officers and witnesses, the fees now allowed on account of lock-up, and such necessary disburse- ments as may have been made by order of the court or of the district-attorney. Trial justices shall be allowed their actual expenses incurred for necessary travel. Receiving complaint, administering oath, and issuing warrant. — The statute allows for this item fifty cents. The term " receiving a complaint," by practical construction, includes the duty of drawing it up. In ordinary cases, the party com- plaining applies to the magistrate, states the nature of his com- plaint, which the magistrate thereupon reduces to legal and technical form. Sometimes, when the crime to be prosecuted requires a long and very particular description, as perjury, conspiracy, &c., the complainant applies to counsel, has his complaint drawn up, and presents it to the magistrate ready written. There is no objection to this practice whenever the TAXATION OP COSTS. 277 party thinks proper to adopt it ; and in the prosecution o£ ofPences which require a long and technical description, it is, on many accounts, convenient and useful. Magistrates who have not had a professional education are generally incompe- tent to this undertaking ; yet the Constitution requires that no person shall be held to answer to an offence until the same is formally (that is, technically as well as substantially de- scribed to him) in the complaint or process upon which he is arrested. But as the prosecution of crimes in this country is not only in the name, but purely by the authority and instrumentality, of the government and its officers, and not, as in England, by the instrumentality of an individual prosecutor, whoever origi- nates a public prosecution has a right to have the accusation drawn up and proceeded upon, free of expense to him, either by the magistrate or public prosecutor. And therefore this duty of drawing up the complaint, as well as receiving it, in all criminal prosecutions which are originated before a magis- trate, devolves upon him ; and thence arises the necessity of his being well versed in this branch of his duty. It may not ' be improper to repeat in this place that the common prac- tice, in this Commonwealth, of making the warrant upon the same sheet of paper as the complaint, and sending the latter out of the hands and power of the magistrate into the hands of the officer, to be carried wherever he is obliged to go to execute his warrant, to be examined, exposed, lost, or de- stroyed, instead of remaining in the office, and on the files of the magistrate, is liable to serious objections.^ Summons for witnesses. — For every subpoena, for one or more witnesses, ten cents is allowed. The statute authorizes the magistrates, and it is the usual practice, to insert the sum- mons for witnesses in the warrant.^ They may also grant summonses for witnesses in aU. criminal cases pending before any court whatever, when requested by the Attorney-General, or other person acting in the case in behalf of the State, and also when requested by the party who is prosecuted : pro- vided, that in the latter case it shall be expressed in the 1 Ante, p. 105. ' Gen. Sts. oh. 170, § 10. 278 CRIMINAL LAW. summons that it is granted at the request of the party pros- ecuted ; and the witness shall not be required to attend, unless upon payment or tender of his legal fees.^ Entering a complaint, entering judgment and recording same, ^c. — This item, which is fixed at seventy-five cents, is for entering the complaint, rendering judgment and recording the same, examining, allowing, and taxing the costs, and filing the papers. The duty for which this sum is allowed, as it is expressed in the statute, comprehends the whole proceedings during the examination and trial, from the arraignment of the defendant to the rendering of judgment and taxation of costs, with the exception of one dollar, which is allowed for the trial. This is generally a very inconsiderable allow- ance for the service required; and in some instances it is wholly inadequate. In many cases the examination necessa- rily occupies a whole day ; the party is often necessarily detained, either by commitment or recognizance, for further examination, and then several hearings upon different days may be required. There is no existing statute provision to remedy this inconvenience. But it has been remedied in certain cases, by the general discretionary power vested in the superior court, which is always exercised in favor of magistrates whose services, in the cases alluded to, cannot be compensated by a strict limitation to their established fees. This liberality has been generally confined to exami- nations in capital cases ; but it has also, in some few special and extraordinary instances, been extended to others. The examination of prisoners, charged with homicide and other capital offences (especially in the country), is usually and necessarily attended with great labor, anxiety, and respon- sibility on the part of the magistrate. It is evident that the established fees in these cases are wholly inadequate to the services rendered to the government ; and, therefore, it has been usual for the magistrate to make out an account against the Commonwealth, in which is charged his actual expenses, including a reasonable allowance for his time. Such ac- counts, containing reasonable charges of this nature, have 1 Gen. Sts. ch. 120, § 48. TAXATION OP COSTS. 279 been allowed. In some few instances, similar allowances have been granted, in the superior court, for extra services in the examination of cases not capital ; such as arise in the detection and prosecution of bands or companies of counter- feiters of bank-notes, high-handed and dangerous riots, &c. Allowances of this description, however, are rarely made, and are not to be expected by magistrates, unless in cases attended with extraordinary dithculty and labor. Recognizances. — Taking a recognizance to prosecute an appeal, or to appear in the superior court, including princi- pal and surety, twenty cents. For the taking of the recog- nizance of witnesses, one fee of twenty cents in each case. Whenever this duty is neglected, the consequences are ex- tremely embarrassing, and occasion great and unnecessary expense in summoning the witnesses, and in the consequent delay of the business of the grand jury ; all which may be prevented without inconvenience to the magistrate, by doing his duty in this particular. When the witnesses are all present, one recognizance for the whole of them is sufficient, and is all that will be allowed the magistrate in the taxation of his costs. To this rule, however, there doubtless may be exceptions ; as where the recognizances of the witnesses are necessarily taken at different times. Depositions of witnesses. — The same fees are allowed for taking the depositions of witnesses in criminal cases as in civil actions, and are taxed in the bill of costs. ^ Copies. — For the copy of a record or other paper, if less than one page, ten cents ; if more than one page, at the rate of twelve cents a page.^ The word " page," when used as the measure of computation, shall mean two hundred and twenty-four words.^ 2. Fees of 'Witnesses. Fees. — In the Supreme Judicial Court or Superior Court, one dollar and twenty-five cents a day ; before a police court or trial justice, fifty cents a day ; for travel, five cents a mile out and home.* 1 Gen. Sts. ch. 170, § 30. = Gen. Sts. ch. 157, § 15. ^ Gen. Sts. ch. 157, § 2. . < St. 1860, ch. 191, § 1, div. 3. 280 CRIMINAL LAW. In taxing the bill of costs, the name of each witness must be separately mentioned, and the amount of his fees carried out against his name. The reason for this is, that when a copy of the bill of costs is certified to the county treasurer, accompanied with an order of court to pay the amount, the name of every person who is to receive any part of it must appear upon the bill, to enable the treasurer to settle and pay it ; the mode of doing which is, for each person whose name is in the bill to receipt upon the back of it when his fees are received. And it is not sufficiently correct to carry out the amount of a witness's fees, without stating the number of miles he has travelled, and of the days he has attended. And when witnesses are summoned to testify on several prosecutions, pending at the same court, the practice is to allow them their travel in one case, and their attendance in all the others. The St. 1860, ch. 191, § 6, enacts that, " Whenever witnesses in criminal trials may be in attendance in two or more cases pending at the same time before the same police court or trial justice, they shall not be allowed full travel and attendance in each case, but the trial justice, or the clerk of the police court, under the direction of the justice thereof, may reduce and apportion the same as may be just and equitable, allowing at least one travel and attendance." The Gen. Sts. ch. 157, contain the following special pro- visions concerning the fees of witnesses : — Sect. 20. When witnesses in criminal trials are in attend- ance in two or more cases pending at the same time before the same tribunal, they shall not be allowed full travel and attendance in each case, but the clerk of the court, under the direction of the district-attorney, may reduce and appor- tion the same as may be just and equitable, allowing at least one travel and attendance. Sect. 21. If on the trial of a criminal case it appears that a witness has induced the defendant to commit the offence with which he is charged, with the intent to appear as a witness against him, the court or magistrate may in his discretion refuse to allow him his fees. Sect. 22. No sheriff, deputy -sheriff, or other officer, taking the certificates of witnesses in criminal cases, shall TAXATION OP COSTS. 281 purchase or discount, or have any interest in orders drawn or demands upon the treasury hy such witnesses. Sect. 23. Whoever, with a design to defraud, signs, or procures to be signed, a certificate of attendance or travel as a witness before a court, trial justice, or reference founded upon any rule of court, in any case in which the witness did not so attend, or for a greater number of days than he actually attended, or for a greater number of miles than he actually travelled, upon which certificate the attend- ance or travel so claimed is allowed in the taxation of costs, shaU forfeit thirty dollars for each offence, to be recovered on complaint or indictment to the use of the Commonwealth, or by action of tort to the use of any person against whom such excessive costs were taxed, together with four times the whole amount taxed for attendance or travel on such false certificate, and double costs in the action of tort : provided, that such complaint, indictment, or action, is commenced within two years after the commitment of the offence. The St. 1870, ch. 326, entitled "An Act concerning fees of witnesses in civil and criminal cases," enacts : — Sect. 1. No person employed as a state constable, or deputy state constable, nor any officer of the State whose salary is fixed by law, shall be entitled to any witness fees before any court or trial justice of this Commonwealth in any cause where the Commonwealth is a party. Nor shall any ofiicer whose pay is derived solely from fees be entitled to receive more than one per diem allowance as a witness for any day's attendance on court, under one or more summonses in behalf of the Commonwealth, and the said per diem allow- ance shall be apportioned by the clerk among the cases in which he is so summoned. Sect. 2. When it shall appear on oath that a salaried officer of the Commonwealth not entitled to witness fees, has at- tended court as a witness in behalf of the Commonwealth, at a place other than his residence, and that his necessary ex- penses have been increased by such attendance as a witness, the court in its discretion may allow such increased necessary expense, not exceeding however one dollar and fifty cents 282 CRIMINAL LAW. in all for actual and necessary attendance per day under the summons or summonses. Sect. 3. Any person or persons included in the foregoing sections who shall receive any witness fees or allowances for increased necessary expense contrary to the true intent and meaning of this act, shall on conviction thereof, be punished by a fine not exceeding one hundred dollars. The clerks of the respective courts and the trial justices, shall report forth- with to the district-attorneys of the respective counties where the said courts or hearings are had, every violation of this statute that shall come to their knowledge, and the said dis- trict-attorneys shall institute prosecutions therefor. The St. 1870, ch. 319, entitled " An Act concerning wit- nesses in criminal prosecutions in other States," enacts : — Sect. 1. If the clerk of any court of record in any State adjoining to this Commonwealth, or the clerk of any court oif record in the State of Maine,^ shall certify that a criminal prosecution is pending in such court, and that a person resid- ing in this Commonwealth is supposed to be a material witness therein,- any justice of the peace for the county in which such witness may reside, shall, on receipt of such certificate, issue a summons requiring such witness to appear and testify at the court in which such cause is pending. Sect. 2. If the person on whom such summons is served, and to whom is paid or tendered double the fees allowed by law for travel and attendance of witnesses in the Supreme Judi- cial Court of this Commonwealth, besides double travelling expenses for the whole distance out and home by the ordinary travelled route, shall neglect, without a reasonable excuse, to attend as a witness at the court in such summons mentioned, he shall forfeit a sum not exceeding three hundred dollars for the use of the Commonwealth. Upon and after the termination of any criminal proceeding before any police, district or municipal court, whether by appeal or otherwise, the justice of said court or the clerk may, under the direction of the court, pay to the witnesses for the Commonwealth in such proceeding their fees, and shall take receipts for all fees so paid ; and such receipts 1 St. 1874, ch. 150, § 1. TAXATION OP COSTS. 283 shall be vouchers for their respective amounts in the hands of said justice or clerk, and shall be allowed to him as paid in any settlement made by him with the county treasurer now required by law.'' 3. Fees of Officers. The St. 1862, ch. 216, entitled " An Act concerning officers' fees in criminal cases," defines with considerable detail and precision the fees of officers. With respect to such of them as are specially stated in the statute there can exist no diffi- culty or uncertainty as to their amount, but with respect to such as may be increased or diminished at the discretion of the court, the adjustment of them is frequently attended with no small degree of trouble and difficulty. 4. Recompense to the Prosecutor and to the Officer. The Gen. Sts. ch. 161, enact : — Sect. 32. Upon a conviction of burglary, robbery, or lar- ceny, the court may order a meet recompense to the prosecu- tor, and also to the officer who has secured and kept the stolen property, not exceeding their actual expenses with a reasonable allowance for their time and trouble ; which shall be paid by the county treasurer, and charged by him to the Commonwealth. Sect. 33. When a person arrested upon a charge of burg- lary, robbery, or larceny, forfeits his recognizance, or escapes from the custody of the law after being committed to jail for trial, the court before whom the case would have been tried shall have the same authority to order a recompense and allowance to the prosecutor, and to the officer who has secured and kept the property, as provided in the preceding section. In cases of conviction of certain ofPences against the cur- rency, and of forfeiture of recognizances for the appearance of persons to answer to the same, the court is authorized to order a meet recompense to the prosecutor and to the officer.^ Trial justices shall twice in every year account with the treasurers of their respective counties and towns for all fines, 1 St. 1878, ch. 142. 2 Gen. Sts. ch. 163, § 28. 284 CRIMINAL LAW. forfeitures, and costs received upon convictions or other pro- ceedings before them, and shall pay over to said treasurers respectively all moneys due and payable to them on such account.^ The county treasurers of the several counties shall not pay over to any justice or clerk of any police court, or to any trial justice, any costs taxed by them and allowed in cases heard before said courts or jiistices, until the justice or clerk of a police court, or the trial justice, shall have ren- dered an account in writing of all fines and costs received by him since his last return, and of all fees which have remained in his hands unclaimed, for the space of three years after the allowance of the same.^ The duty of magistrates to account for all fines by them imposed and received, which is enjoined by this section of the statute, ought to be strictly and con- geientiously complied with. For, in addition to the pecuniary penalty inflicted for the neglect of this duty, it would be a proper ground of impeachment and removal from office, in all cases where the fines have been received and corruptly retained or embezzled. 5. The Services of Counsel. There is another item, which some magistrates frequently put into their bills of costs in criminal prosecutions, which is not allowed in the fee-bill, namely, the services and attend- ance of an attorney. This item is constantly disallowed in the taxation of costs in the superior court, except in the cases hereafter mentioned. It is a common practice for the complainant or party injured to employ counsel upon an examination before the magistrate. In all cases of mis- demeanor, when this is done he is to be paid by the party who employs him, and not by the government, and conse- quently his fees are not to be put into the bill of costs. There may be exceptions to this rule, in cases requiring ex- traordinary labor and attention, or professional talents. But whenever these cases occur, it is the duty of the magistrate ito give notice of them to the district- attorney, and to request his attendance ; and when his assistance cannot be obtained, and other professional aid is necessary, it will, in some ex- 1 Gen. Sts. ch. 120, § 57. ^ gt. i860, ch. 191, § 8. TAXATION OP COSTS. 285 traordinary cases, be compensated., upon application to the court, in prosecutions for crimes of a dangerous and atrocious character. But in all examinations of ofPences of a capital nature, when the assistance of the district-attorney cannot be ob- tained, it is usual, and becomes the duty of the examining magistrate, to procure the attendance and aid of some other respectable gentleman of the profession, to represent the gov- ernment, and conduct the examination. For this service of an attorney, the superior court have constantly and readily allowed a proper compensation. The course to be pursued in obtaining it is, to make out an account of the services, and have it presented to the court for allowance ; and not for the magistrate to insert it as a part of the bill of costs. ^ The Gen. Sts. eh. 120, enact : — Sect. 57. Trial justices shall twice in every year account with the treasurers of their respective counties and towns, for all fines, forfeitures, and costs, received upon convictions or other proceedings before them, and shall pay over to said treasurers respectively all moneys due and payable to them on such account. Sect. 58. They shall annually on the first day of January return to the county treasurers of their respective counties, with a schedule thereof, all fees of sheriffs, deputy-sheriffs, constables, and witnesses, taxed and allowed one year^ pre- viously thereto, and then remaining in their hands. 1 Per Shaw, C. J., in Hoar v. Wood, 3 Met. 195, 196. 2 St. 1876, ch. 4. 286 CRIMINAL LAW. CHAPTER XIV. CEETIPTING PROCESS AND RETURNING RECOGNIZANCES. The last act the magistrate has to perform is that of certifying and returning the recognizances and other parts of the process into court. This part of the duty of the magistrate is so connected with the administration of justice in the superior court as to be of great importance in the economy and despatch of business in that court. A want of accuracy or punctuality in the discharge of this duty pro- duces great embarrassment, delay, and expense in the courts before which the accused party is to be tried. If the magis- trate neglects to recognize the witnesses on the part of the Commonwealth, or to impress upon their minds the necessity and duty of an early and punctual attendance upon the court, or if he neglects to certify and return his copies of the process in due season, the court, the grand jury, the public prosecutor, and all others connected with the prose- cution, are greatly embarrassed and delayed. If magistrates would seriously reflect upon the evils which are the conse- quence of such negligence, they would doubtless be in a great measure prevented. They should consider that the grand jury (seldom consisting of a less number than twenty- three) ^ may be prevented from proceeding on their business, if the documents necessary for their examination are with- held, or the punctual attendance of the witnesses prevented, by their negligence or misinformation. The loss of a day is frequently the consequence of this negligence. An indus- trious and respectable portion of the community are sub- jected, most unreasonably, to the inconvenience and vexation 1 A grand jury cannot consist of Commonwealth, 119 Mass. 326. more than twenty-three, nor of less Rex v. Marsh, 6 Ad. & El. 236; than thirteen. Commonwealth v. 1 Nev. & Per. 187; S. C. 1 Lead. "Wood, 2 Cush. 149. Crimm v. Crim. Cas. 260. CERTIPyiNG PROCESS AND RETURNING RECOGNIZANCES. 287 it occasions. The expense to the county, and the waste of precious time, increase this catalogue of evils, which, to those who are in the habit of punctuality themselves, are grounds of just and loud complaint. No apology is allowed to those magistrates who reside at a distance from the places where the courts are holden ; for there is a fee established by law,^ for their travel in attending the court to deliver the papers of which they are required to make return. And they are punishable for all neglects of this kind, as contempt of court ; ^ instances of which are well recollected in the Supreme Judicial Court.^ Frequently justices intrust the return of their papers to a careless friend or attorney, by whose negligence or inattention the mischief is often occasioned. The Gen. Sts. ch. 170, § 40, expressly enact that all recognizances and examinations taken by a magistrate under the provisions of that chapter shall be certified and returned by him to the district-attorney or the clerk of the court before which the party charged is bound to appear, on or before the first day of the sitting thereof ; and if such magis- trate refuses or neglects to return the same, he may be compelled forthwith by rule of court, and in case of diso- bedience may be proceeded against by attachment as for a contempt. And it is further provided by Gen. Sts. ch. 157, § 19, that when the administration of justice or the progress of business in criminal proceedings is delayed, obstructed, or prevented, by the negligence of a magistrate in certifying and returning recognizances, records, or other official papers, which it is his duty to transmit to a higher court, or in omitting the formalities required hy law, the district-attorney, with the approbation of the court, may, either in whole or in part, refuse to allow the fees to which such magistrate would otherwise be entitled. The process should be certified to the superior court in all cases, except when a recognizance is taken for appearance before another magistrate. This court has original jurisdic- tion of all crimes, offences, and misdemeanors, and appellate 1 St. 1876, ch. 227, § 4. 'Ex parte Neal, 14 Mass. 204. 2 Gen. Sts. ch. 170, § 40. 288 CRIMINAL LAW. jurisdiction o£ all offences tried and determined before a police court or trial justice.^ When a case is appealed, or sent to the grand jury, copies of all the papers should be certified, and returned to court ; namely, the complaint, the warrant, the officer's return, the judgment, the recognizance of the party, when taken, the recognizances of the witnesses, and the biU of costs. The copies required to be certified and returned to court, for the allowance of costs only, consist of the complaint, war- rant, officer's return, judgment, certificate of the witnesses, and the bill of costs. Other papers, such as the subpoena, &c., should be copied and transmitted. If the complaint be correctly drawn, it furnishes all the necessary information to the district-attorney, as to the description of the person, addi- tion &c., of the defendant, and the nature of the offence. With the copy of the warrant, a copy of the officer's return must be certified, which must contain a minute and specific statement of his fees and expenses, the names of the persons employed as aid, with the number of hours that each was employed in the service of the warrant. Without this docu- ment no bill of costs can be completed in the higher courts. The record, or order of the magistrate, is generally of no use except in cases where the defendant has made a voluntary confession of the crime charged upon him, and a record of such confession is duly made by the magistrate. Such a con- fession may be given in evidence against the culprit, either before the grand jury, or on his trial. The necessity of returning to court the other documents, namely, the recog- nizances of the party and witnesses, and a copy of the bill of costs, is too evident to require explanation. In respect to the former, the whole object of taking them will be defeated, unless they are returned into court ; and as to the latter, no costs can be allowed or paid, but by the order of the court to which the process is returned. It is highly important that those forms which are provided by law for the authentication of the papers, transmitted to the superior court from the magistrate, should be strictly 1 Gen. Sts. ch. 114, § 6. CERTIFYING PROCESS AND RETURNING RECOGNIZANCES. 289 adhered to. Thus, a defendant, who appeals to the superior court from a sentence awarded against him by a trial jus- tice, cannot be legally convicted on the appeal, unless the justice has transmitted certified copies of the proceedings be- fore him, in accordance with the provisions of the statute. In such case, the judgment will be arrested ; and, when the proper certified copies are filed, the case may proceed to trial de novo.^ Magistrates taking recognizances for the appearance of a party before another tribunal, must return them to the court where the principal recognizor is to appear ; and if defaulted there, by reason of non-appearance before such tribunal, that court, in case it has not jurisdiction to issue scire facias and render judgment thereon, will certify all the previous pro- ceedings, including the taking of the recognizance and the default thereon, to such other court as has further juris- diction. All the cases require, as a part of the proceedings requisite to charge the conusors, that such recognizance be returned, in the first instance, to the court or magistrate before whom the principal is bound to appear. In the case of Commonwealth v. Baird,^ the prisoner, who had been arrested and carried before a justice of the peace, was ordered to recognize, with sureties, to appear at a future day and abide said justice's order, and was committed to jail for not recognizing. Two magistrates afterwards took his recog- nizance, with sureties, for his appearance &c., pursuant to the justice's order, and thereupon released him from impris- onment ; but he did not appear before the justice, according to the conditions of the recognizance. The magistrates did not return the recognizance to the justice, but returned it to the cqjirt of common pleas held next after the prisoner's default. It was held that no action could be maintained on the recognizance, because there was nothing upon the record of the court of common pleas, and nothing had been certi- fied to that court, authorizing the issuing of a scire facias. The recognizance was returned there, but not through the 1 Commonwealth v. Doty, 2 Met. 18. Ante, p. 227. 2 9 Met. 409. 19 290 CRIMINAL LAW. proper channel, nor accompanied by any record showing that it had been previously returned to the justice before whom the party had recognized to appear. ^ All recognizances, with this single exception, must be returned to the next term of the superior court.^ When all the proceedings upon the process are completed, there iS no remaining duty for the magistrate to perform, but to return his papers into the court in which the party is to take his trial. Great care and punctuality are necessary on the part of the magistrate, in the discharge of this duty ; and great embarrassment and vexation are the certain conse- quence of his neglect of it. He will have discharged this duty correctly only when he has done one of two things, — namely, either deposited his record and papers in the clerk's office of the court, on or before the morning of the day on which the court is to be opened ; or by delivering them into the hands of the district-attorney, on some day previous to the sitting of the court, or on the morning of the day on which it is opened, and before the grand jury are empanelled. Whenever a magistrate neglects to do one or the other of these things, he is in danger of the censure of the court, and, as we have seen, of being fined for a contempt. The prac- tice has been for magistrates who live at a distance from the shire town to send their papers by some friend or attorney who has business at court. Whenever a magistrate takes the risk of doing this, he will find it for his interest to give his messenger a very particular charge as to the consequences of a neglect to deliver them in such season as is herein stated to be necessary. Attorneys and others, to whom these papers are intrusted, frequently have no occasion to attend the court on account of their own business on the fjj'st day of the term. And when they do attend it is natural for them to think of their own business first, and afterwards, that of their friends. Instances have occurred when the person intrusted with the return of a magistrate's process 1 Commonwealth v. Baird, 9 ^ Commonwealth v. Ward, 4 Met. 407. Benedict v. Cutting, 13 Mass. 497. Commonwealth v. Mo- Met. 181, 187. Commonwealth v. Neill, 19 Pick. 142. Cheney, 108 Mass. 33, 37. CERTIFYING PROCESS AND RETURNING RECOGNIZANCES. 291 has wholly forgotten that he was the bearer of it. The grand jury, and aU others connected with the prosecution, are not only hereby delayed, but undergoing the severest trial of their patience. A day in the most busy season of the year is wasted ; the expenses of the prosecution en- hanced, probably doubled ; and the magistrate mortified and rendered liable to punishment for negligence ! It was the remark of a late venerable judge in Massachusetts,^ that " punctuality was a great republican virtue." It is certainly a virtue of great and indispensable importance in all judicial proceedings. Whenever a magistrate has taken the examination of a person accused of an offence, the record and process of which it is his duty to return to court, he ought either to deposit it, with his own hand, in the clerk'' s office of the court to which it is made returnable, on or before the opening of the court on the morning of the first day of the term ; or he ought to deliver it, with his own hand, to the district-attorney, or other public prosecutor attending the court, before the grand jury are em- panelled. But if such magistrate will take the risk of send- ing up his record and process by some other person, when he delivers him the papers, he ought to say to him, " These papers must be deposited in the clerKs office of the court on the morning of the first day of the session; or they must be de- livered into the hands of the district-attorney, or other public prosecutor, before the grand jury shall be empanelled. If you fail to do it, I shall be liable to punishment for the neglect, and great embarrassment, delay, and public injury may also be the consequence of your inattention." 1 The late Judge Paine. PART II. PART II. CHAPTER XV. POEMS IN CRIMINAL PKOCEEDINGS. The following are the forms of the several parts of a crimi- nal process before a magistrate or court, from the beginning to the conclusion of the proceedings. Many of these forms are the same which are adopted and used by the Municipal Court of the City of Boston. By statute, justices are required to keep a record of all their judicial proceedings, both in civil and criminal cases. ^ A record is a memorial or history of the judicial proceed- ings in a case, commencing with the writ or complaint, and 1 Gen. Sts. ch. 120, § 51. When a justice of the peace is vested with a jurisdiction to hear, try, and pass sentence, which sentence is definite, subject only to the right of appeal, — and when the mode of trial, the rules of pleading and evidence, and the nature of the punishment, are all according to the course of the common law, he acts as a court or judge of record. Thayer v. Com- monwealth, 12 Met. 9, 11, 12. The question has been much dis- cussed, in a number of oases, whether a justice's court is a court of record. Shaw, C. J., in the case last cited, said: "Perhaps it is im- possible to decide this as an ab- stract question, according to any ancient and established definition of a court of record. The Legisla- ture may make laws — in fact they have made laws — vesting in magis- trates and tribunals, some of the powers and qualities of a court of record, accompanied also with a special and peculiar jurisdiction, which cannot be carried into effect in the course of the common law. They may erect new tribunals, with enumerated powers, some of a gen- eral and common-law character, and some of a peculiar character, requir- ing proceedings other than those of the common law. In such cases, we must look rather at the charac- ter of the jurisdiction conferred on such tribunal, than at the name or description by which it may be des- ignated. A court may be so con- stituted by statute as to be a court of record, a court proceeding strictly according to the course of the com- mon law for some purposes, and not for others." 120 Mass. 120. Ex parte Gladhill, 8 Met. 170. 296 CRIMINAL LAW. terminating with the judgment ; and the design is, not merely to settle the particular question in difference between the parties, or the government and citizen, but to furnish fixed and determinate rules and precedents for all future like cases. A record, therefore, must be precise and clear, containing proof within itself of every important fact on which the judg- ment rests ; and it cannot exist partly in writing and partly in parol. Its allegations and facts are not the subject of contradiction. They are received as the truth itself, and no averment can be made against them, nor can they be varied by parol. 1 " A record imports absolute verity, and no aver- ment, plea, or proof is admissible to the contrary." '^ The rule is well settled, that minutes may be introduced when the record has not been drawn out in extenso, as con- taining the elements of a record, and in truth, for the time being, constituting the record itself; and the same rules of presumed verity apply to it.^ And if the minutes have never justice of the peace of things done before him judicially in the execu- tion of his office, in matters over which he has jurisdiction on the facts as laid before him, shall be of such credit that it shall not be gain- said. One man may affirm a thing and another man deny it ; but if a record once say the word, no man shall be received to aver or speak against it. For, if men should be admitted to deny the same, then would there never be any end of controversies. And therefore, to avoid all contention there may arise while one saith one thing, and one other saith another thing, the law reposeth itself wholly and solely in the report of the judge. Great cause, therefore, have the justices of peace to take heed that they abuse not this credit; either to the oppression of any subject by mak- ing an untrue record, or to the defrauding of the Queen by sup- pressing a faithful and true rec- ord." " Davidson v. Slocomb, 11 Pick. 464. Pruden ». Allen, 23 Pick. 1 Sayles v. Briggs, 4 Met. 423. Kendall v. Powers, 4 Met. 553, 555. Kamsbottom v. Buckhurst, 2 M. & S. 565. "The record of a judg- ment, until set aside or reversed, is conclusive as to the subject-matter of it." Moses !). Macferlan, 2 Burr. 1005, per Lord Mansfield, C. J. 3 Stephen Comm. 269, 7th ed. Kemp V. Neville, 10 C. B. N. S. at p. 547. 2 Kelley v. Dresser, 11 Allen, 31, 33. In an action on a recognizance, the record is not conclusive to show that it was duly taken, if the par- ties agree to a statement of facts by which it appears that it was not duly taken. Commonwealth v. Greene, 13 Allen, 251. In Lambard's Eirenarcha, Bk. I. ch. 13, ed. 1588, it is said: "Jus- tices of the peace are numbered amongst the Judges of Record. And therefore let us see what is meant by the word Record. Rec- ords are nothing else but memo- rials or monuments of things done before Judges that have credit in that behalf. A record made by a FORMS IN CRIMINAL PROCEEDINGS. 297 been extended, and are lost, their contents may be proved by parol.^ Justices of the peace are recognized in the Constitution of Massachusetts as exercising a part of the judiciary power, and are for some purposes courts of record. Their authority to punish for contempts — at least so far as is indispensable to the orderly conducting of their business, and especially in the case of the refusal of witnesses, after due summons and pay- ment of their fees, to appear and testify before them — has been generally admitted, and has been regulated by statute from the earliest time of the Commonwealth.^ When terms of an inferior court are established to be held at designated places at stated times, the record must set forth the place at which the court was held at the time the proceed- ings were had. The justice has no jurisdiction to try crimi- nal cases except at such terms. The jurisdiction of the Superior Court is wholly appellate, and must appear from the papers in the case. The complaint will be dismissed, unless the justice of the lower court can file an amended copy of his record, in accordance with the facts, so that the record will show that the defendant was tried at a term of the court legally held.^ Mere clerical omissions in the records of courts, even in criminal prosecutions, can be supplied by amendment.* The question whether words in a copy of a record of an inferior court transmitted to the superior court have been erased, is to be determined by the superior court upon inspection ; and its decision cannot be revised.^ 184. Sayles v. Briggs, 4 Met. 421. 320. Clarke v. May, 2 Gray, 410. Read v. Sutton, 2 Cush. 115. Park Whitoomb's Case, 120 Mass. 120. V. Darling, 4 Cush. 197. Tillotson Piper w. Pearson, 2 Gray, 120; S. C. V. Warner, 3 Gray, 574. McGrath v. 2 Lead. Crim. Cas. 804, 326. See Seagrave, 2 Allen, 443. Hawkes Cartwright's Case, 114 Mass. 230. V. Davenport, 5 Allen, 390. Tracy ' Commonwealth v. Hogan, 113 V. Maloney, 105 Mass. 90. Good v. Mass. 7. French, 115 Mass. 201. * Commonwealth v. Taylor, 113 1 Wallace v. Townsend, 109 Mass. 2. Commonwealth v. Har- Mass. 263. vey, 103 Mass. 451, 452. ^ Constitution, ch. 3, art. 3. ' Commonwealth v. Galligan, Thayer v. Commonwealth, 12 Met. 113 Mass. 203. Commonwealth v. 9. Gen. Sts. ch. 120, § 50; ch. 131, Davis, 11 Gray, 4. Commonwealth §§ 5, 6. Clarke's Case, 12 Cush. v. Riggs, 14 Gray, 376. 298 CRIMINAL LAW. Any irregularity in the recital of the proceedings in the lower court is rendered immaterial by an appeal. A mis- recital in the record of a lower court of the complaint or the warrant is not ground for quashing the complaint or arrest- ing the judgment in the appellate court. The irregularity is rendered immaterial by the appeal.-' Where authority is given to justices by statute, and they appear to have acted within the jurisdiction so given, and to have done all that the particular statute requires them to do, in order to originate their jurisdiction, their record, drawn up in due form and remaining in force, is a protection and conclusive evidence for them in any action which may be brought against them for the act so done.^ The following is a list of Forms : — 1. Complaint to a Trial Justice. — Commencement and Conclusion. 2. "Warrant. 3. Complaint to the Municipal Court of the City of Bos- ton. — Commencement and Conclusion. 4. Warrant. 5. Subpoena. 6. Bill of Costs. 7. Judgment. — Fine or Imprisonment. 8. Recognizance for Appearance at the Superior Court. 9. Recognizance to Keep the Peace. 10. Recognizance for Appearance at the Municipal Court for Further Examination. 11. Recognizance to Prosecute an Appeal. 12. Recognizance of Witness to the Superior Court. 13. Record of Default of Principal and Surety. 14. Warrant on Default. 1 Commonwealth v. Fredericks, ^ Basten ?i. Carew, 3 B. & C. 119 Mass. 199. Commonwealth v. 652, 653; 5 D. & R. 566. Kendall Molloy, 119 Mass. 347. Common- v. Powers, 4 Met. 553, 555. Pratt wealth V. Burke, 121 Mass. 39. v. Gardner, 2 Gush. 63, 69. Wells Commonwealth v. Huard, 121 v. Stevens, 2 Gray, 115. Moore v. Mass. 56. Commonwealth v. Des- Lyman, 13 Gray, 394. Piper v. mond, 103 Mass. 445. Common- Pearson, 2 Gray, 120: S. C. 2 Lead. wealth V. Harvey, 111 Mass. 420. Crim. Cas. 304, 329. Raymond ». Commonwealth v. Calhane, 108 BoUes, 11 Cush. 315. Kelley v. Mass. 431. Dresser, 11 Allen, 31. FORMS IN CRIMINAL PROCEEDINGS. 299 15. Mittimus for not Recognizing to Appear at the Munic- ipal Court. ' 16. Mittimus to Jail for further Examination for an Offence not Bailable. 17. Mittimus for not Recognizing to Appear at the Superior Court in Cases beyond Jurisdiction. 18. Mittimus for a Witness for not Recognizing to Appear at the Superior Court. 19. Mittimus for not Finding Sureties to Keep the Peace. 20. Mittimus for not Recognizing on Appeal. 21. Mittimus to Common Jc,il for not Paying Fine and Costs. 22. Mittimus to Common Jail for a Term of Months. 23. Mittimus to the House of Correction. 24. Mittimus to House of Correction for not Paying Fine and Costs. 25. Mittimus to the House of Industry. 26. Mittimus for not Paying Fine for Drunkenness and Former Conviction. 27. Mittimus for not Paying Fine for Drunkenness. 28. Mittimus to House of Industry for Drunkenness and Former Conviction. 29. Mittimus for not Paying Fine or House of Industry for Drunkenness and Former Conviction. 30. Mittimus for not Paying Fine or House of Industry for Drunkenness. 31. Mittimus to the House for Juvenile Offenders. 82. Mittimus to State Workhouse at Bridgewater. 33. Mittimus for Reformatory Prison for Women. 34. Order to bring up a Prisoner for Further Examination. 35. Capias for a Witness. 86. Habeas Corpus to Testify. 87. Habeas Corpus to Answer. 88. Order for the Discharge from Jail of Poor Convicts. 39. Affidavit of Surety to Municipal Court. 40. Affidavit of Surety to Superior Court. 41. Acknowledgment of Satisfaction by Complainant for the Injury complained of. 42. Declaration on a Recognizance. 43. Summons. 300 CRIMINAL LAW. Inquests in Oases of Death hy Violence. — St. 1877, ch. 200. 1. Notice to District- Attorney. 2. Summons to Witnesses. 3. Judge's Report. 1. Complaint to a Trial Justice.-^ — Commencement and Conclusion. To A. B., Esq., one of the Trial Justices in and for the County of Middlesex, E. F. of W. in the County of Middle- sex, in behalf of the Commonwealth of Massachusetts, on oath complains. That C. D. of W. in the County of Middlesex, on the first day of June in the year of our Lord eighteen hundred and seventy- at W. in the County of Middlesex, against the peace of the said Commonwealth and contrary to the form of the statute in such cases made and provided. Dated at W. in the county aforesaid, this first day of June in the year of our Lord one thousand eight hundred and seventy- Complainant. commonwealth of massac httsetts. Middlesex, ss. Taken and sworn to ^ this first day of June in the year of our Lord one thousand eight hundred and seventy-^ Before me. A. B., Trial Justice. 1 This is the usual form of the was signed and sworn to by the complaint and warrant, when issued complainant. Commonwealth v. on the same sheet of paper. Ante, Keefe, 7 Gray, 332. Common- pp. 105, 106. The summons for the wealth v. Dillane, 11 Gray, 67. witnesses is contained in the war- Commonwealth ». Wallace, 14 Gray, rant. Gen. Sts. ch. 170, § 10. 382. Commonwealth v. Wingate, ^ " Taken and sworn before me," 6 Gray, 485. Commonwealth v. and "Sworn before me," are the Quin, 5 Gray, 478. And the record words commonly used, and either is conclusive of the fact. Common- are sufficient in form. Common- wealth v. Hassenger, 105 Mass. 385. wealth v. Bennett, 7 Allen, 533. ' When the offence is of a con- " Received and sworn to before tinuing character, and consists of a me," or, "before said court," suffi- series of acts, it is somtimes charged ciently shows that the complaint from a day certain to the day of FORMS IN CRIMINAL PROCEEDINGS. 301 2. "Warrant. commonwealth op massachusetts. Middlesex, ss. To any Constable of the Commonwealth, or to the |- -] Sheriff of our County of Middlesex or his Deputy, or any Constable or Police-officer of any city or town in said County.^ Greeting : These are, in the name of the Commonwealth of Massa- chusetts, to command you, the said Constable, Sheriff, Deputy, Constable, and Police-officer, respectively, upon sight hereof, to take and bring before me, the subscriber, or some other Trial Justice, or any Police, District or Munici- pal Court 2 in said County of Middlesex, the body of the above-named C. D., if to be found in your precinct, to answer to said Commonwealth on the foregoing complaint of E. F.,^ this day made on oath before me, the subscriber. And you are also required to summon to appear and testify to what they know touching the mat- ter of said complaint. Hereof fail not. Given under my hand and seal, at W. in said county, this first day of June in the year of our Lord one thousand eight hundred and A. B., Trial Justice. the date of receiving the complaint. ^ All warrants in criminal cases The day of receiving is made certain issued by any person authorized to by the jurat. Commonwealth v. issue warrants under the provisions Walton, 11 Allen, 238. Common- of St. 1877, ch. 211, shall be made wealth V. Kingman, 14 Gray, 85. returnable before some trial justice, Commonwealth v. Mclvor, 117 police, district or municipal court Mass. 118. having jurisdiction of the examina- 1 Warrants and other criminal tion of the person charged with processes issued by any district or the offence. St. 1877, ch. 211, police court, or by a trial justice, § 4. may be directed to, and served by, ' It is not necessary that a war- any constable of any city or town rant should aver or recite that it within the county in which such had appeared that an offence had court or trial justice has jurisdic- been committed. Holland v. Sea- tion. St. 1876, ch. 94. grave, 11 Gray, 209. 802 CRIMINAL LAW. 3. Complaint to the Municipal Court of the City of Boston. — Commencement and Conclusion. To the Justices of the Municipal Court of the City of Boston, holden at said Boston for the transaction of criminal business, within the County of Suffolk, A. B. of the City of Boston in the County of Suffolk, in behalf of the Common- wealth of JMassachusetts, on oath complains, That C. D. of said Boston, on the first day of June in the year of our Lord one thousand eight hundi-ed and at Boston aforesaid in the county aforesaid and within the Judicial District of said Court,! against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. Suffolk, ss. Taken and sworn to this first day of June in the year of our Lord one thousand eight hundred and seventy- ^ Before said Court.^ Clerh 1 The allegation that the offence body of the complaint. In Corn- was committed " within the judicial monwealth u. Hutton, 5 Gray, 89, district of said court," shows that the complaint contained no allega- it was committed in a part of the tion of time except "the third day county of which the court had full of June instant," and no reference jurisdiction. Commonwealth ». to the date of the complaint. And Hoar, 121 Mass. 375. in Commonwealth v. Keefe, 7 Gray, 2 The date of the jurat may be 332, in which the date was rejected expressed in figures. Common- as surplusage, the complaint did wealth V. Hagarman, 10 Allen, 401. not refer to it, but duly set forth Commonwealth v. Walton, 11 Al- the time of the commission of the len, 238. There is a class of cases offence in words at length. Com- which are distinguishable from monwealth v. Doran, 14 Gray, 38. these. In Commonwealth o. Mc- Commonwealth v. Walton, 11 Allen, Loon, 5 Gray, 91, the omission of 238, 240. the words "in the year," or the * This certificate is sufficient, letters "a.d.," without which the Commonwealth u. Wingate, 6 Gray, figures " 1855 " were held insuffi- 485. Commonwealth v. Desmond, cient to denote the year, was in the 103 Mass. 445. FORMS IN CRIMINAL PROCEEDINGS. 303 4. Warrant. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, r -. the Constables and Police-officers of the City of Boston, in said County, and to either of the State Detectives of said Commonwealth, Gkeeting: We command you and each of you, upon sight hereof to take and bring before our Municipal Court of the City of Boston, holden at said Boston for the transaction of criminal business, within and for the County of Suffolk, the body of C. D. of said Boston, if he be found within your precinct, to answer to the Commonwealth, on complaint of A. B. of said Boston, this day made on oath, before said Court, for at said Boston, and within the Judicial District of said Court; against the peace of . said Commonwealth and contrary to the form of the statute in such case made and provided. Hereof fail not at your peril. Witness, A. B., Esq., at Boston, this first day of June in the year of our Lord one thousand eight hundred and seven ty- Clerk. 5. Subpoena. commonwealth op massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, PI the State Detectives of the Commonwealth, and the Constables and Police-officers of our City of Bos- ton. Greeting : We command you and each of you, in the name of the Commonwealth of Massachusetts, to summon to appear forthwith before the Justices of our Munic- 304 CRIMINAL LAW. ipal Court of the City of Boston, holden at said Boston for the transaction of criminal business, within and for the County of Suffolk, to give evidence on behalf of said Commonwealth of what they know relative to a complaint this day made on oath against For Defendant} Hereof fail not and make due return of this writ, with your doings thereon. Witness, A. B., Esq., at our City of Boston, this first day of June in the year of our Lord one thousand eight hundred and seventy- aerk. 6. Bill of Costs. 187 . No. COMMONWEALTH OP MASSACHUSETTS. SuTTOLK, ss. — The Mttnicipal Court op the City op Boston. Complainant vs. COSTS. Receiving complaint, administering oath, and issu- ing warrant $0.50 Subpoena 0.10 Entering complaint, judgment ; recording the same, examining, &c 0.75 Trial 1 Justices of the peace may grant and the witness shall not be re- summons for witnesses in all crimi- quired to attend unless upon pay- nal cases pending before any court ment or tender of his legal fees, whatever, when requested by the Gen. Sts. ch. 120, § ,48. As to the attorney-general or other person right of persons indicted for a fel- acting in the case in behalf of the ony, to process at the expense of state, and also when requested by the the Commonwealth, see Gen. Sts. party prosecuted: provided, that in ch. 171, § 24; Commonwealth v. the latter case it shall be expressed Williams, 13 Mass. 501; Clark and in the summons that it is granted Attorney-General, Petitioners, 104 at the request of the party prosecuted, Mass. 537. FORMS IN CRIMINAL PROCEEDINGS. 305 WITNESSES. Complainant. Attendance, Travel. 10.60 Attend. Tr. Attend. Tr. Attend. Tr. Expenses paid by officer Mittimus Recognizance of witnesses Officer's Fees: Warrant and subpoena .... 1.90 Mittimus $3.85 Recognizance of witnesses and defendant, Service of mittimus by- Copies transmitted to Superior Court Examined and allowed, 187 ClerJe? 7. Judgment. — Fine or Imprisonment. commonwealth of massachusetts. Suffolk, ss. At the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within the County of Suffolk, on this day of in the year of our Lord one thousand eight hundred and seventy- of said Boston, is brought before said court, by virtue of a warrant^ in due form of law issued by said court, under its seal, on the day of in the 1 In taxing costs in the superior subject to revision on appeal, court, the certificate of the clerk of Young v. Makepeace, 108 Mass. a police court is prima facie evidence 233. of the amount of items which ac- ^ A misrecital of the vrarrant is crued there. In taxing costs in the no ground for quashing the corn- superior court, the determination plaint, or arresting the judgment of the judge that the certificates of in the appellate court. Common- the witnesses are duly signed is not wealth ». Burke, 121 Mass. 39. 20 306 CRIMINAL LAW. year of our Lord one thousand eight hundred and seventy- to answer to the Commonwealth of Massachusetts on the complaint under oath of of said Boston, setting forth that,i he the said on the day of in the year of our Lord one thousand eight hun- dred and seventy- at Boston aforesaid and within the Judicial District of said Court, against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. Which complaint is thereupon read by the clerk of said Court in open Court on the said day of to the said and he the said is asked by the Court whether he is guilty or not guilty of the offence charged upon him,2 in manner and form aforesaid, who pleads and says that he is not guilty, and thereof puts sel on trial ; and the Commonwealth doth the like by said and after hearing divers credible witnesses duly sworn to testify the truth, the whole truth, and nothing but the truth, relating to the premises, and fully hearing and understanding the defence of the said it appears to said Court that the said is guilty of the offence aforesaid. Wherefore it is considered by said Court that the said for the offence aforesaid pay a fine of hundred dollars to the use of said Common- wealth, and costs of prosecution taxed at dollars and cents, and that he stand committed until said sentence be complied with, — be committed to the House of Correction situated in said Boston, there, to be put to hard labor, according to the rules of the same, for the term of months from and after this day of Attest : Clerk. From which sentence the said appeals to the Supe- rior Court to be holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on the 1 A record setting forth that A complaint," is sufficient. Common- was guilty of the crime of unlaw- wealth v. Fredericks, 119 Mass. 199. fully selling intoxicating liquors, ^ Commonwealth v. Harvey, 103 " aj3 is more fully set forth in said Mass. 451. FORMS IN CRIMINAL PROCEKDINGS. 307 first Monday of next,^ and recognizes ^ with sufficient sureties in the sum of five hundred dollars to prosecute h said appeal there, as the law directs. Attest : Clerk. A true copy. Attest: Clerk? 8. Recognizance for Appearance at the Superior Court. COMMONWEALTH OF MASSACHUSETTS. Suffolk, as. MEMORANDUM. That on the day of in the year of our Lord one thousand eight hundred and seventy- personally appeared before the Justices of the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, and acknowledged themselves to be jointly and severally indebted to the Commonwealth of Massachusetts, in the sums as fol- lows, viz. : as principal, in the sum of dollars, 1 A record which states that the could not object to the passing of defendant appeals to a term ol the sentence, without entering into a appellate court, which is in fact the recognizance) , he cannot object to next term, need not state that fact, his own omission, after his appeal The statutes establishing the times has been allowed. Commonwealth and places of holding courts of v. Sullivan, 11 Gray, 203. record are general laws of which ' The attestation at the end of judicial notice is taken, without the record by the clerk or assistant their being pleaded. Common- clerk is a sufficient attestation of wealth V. Sullivan, 11 Gray, 203. aU the proceedings. Common- 2 The record need not state the wealth v. Clark, 16 Gray, 88. fact that the defendant entered into Commonwealth ». Connell, 9 Allen, a recognizance to prosecute his ap- 488. Commonwealth u. Harvey, peal. A recognizance is mere col- 111 Mass. 420. Commonwealth v. lateral security for his appearance; Crawford, 111 Mass. 422. Com- and he is equally bound to appear monwealth ». Ford, 14 Gray, 399. whether he entered into a recogni- Commonwealth v. Cavey, 97 Mass. zance or not. If a person takes an 541. Commonwealth v. Barry, 115 appeal, and thereby obtains a sus- Mass. 146. pension of his sentence (though he 308 C31IMINAL LAW. and the said as sureties, in the sum of dol- lars, to be levied on their goods or chattels, lands or tene- ments, and in want thereof upon their bodies, to the use of said Commonwealth, if default be made in the performance of the condition here underwritten. The condition of this recognizance is such, that whereas at said Municipal Court holden as aforesaid, on this day of is brought before said Court, by virtue of a warrant in due form of law issued b}' said Court, to answer to the Commonwealth of Massachusetts on the complaint under oath of of said Boston, ch.arging with the crime of at said Boston, as more fully Bet forth vn said complaint,^ and said court having ordered said to recognize self in the sum of - dol- lars, and to find sureties to recognize in the like sum of dollars, for personal appearance at the Superior Court for the transaction of criminal business next to be holden at said Boston within and for the said County of Suf- folk, on the first Monday of next, to answer to said complaint, and abide the order and sentence of the Court thereon,^ and also in like manner personally appear at any subsequent term of said Court to which the proceedings in the premises may be continued, if not previously surrendered and discharged, and so from term to term until the final decree, sentence, or order of said CcJurt thereon ; and to abide such final sentence, order, or decree of said Court, and not depart without leave. Now, therefore, the condition of this recognizance is such. That if the said according to the above-mentioned order of said Municipal Court, shall personally appear before tlie Superior Court for the transaction of criminal business 1 A recital in a recognizance that ^ A recognizance in this form is the principal was charged " with the valid and sufficient, and binds the crime of knowingly receiving stolen defendant to appear at the superior goods, as more fully set forth in said court and answer to any indict- complaint," thus referring to the ment which is substituted for the terms of the complaint, is sufficient, complaint. Commonwealth v. Slo- if the complaint charges the crime cum, 14 Gray, 395. Common- with technical accuracy. Common- wealth v. Butland, 119 Mass. 317, wealth V. Merriam, 7 Allen, 356. 322. FORMS IN CRIMINAL PROCEEDINGS. 309 next to be holden at said Boston within and for the County of Suffolk, on the first Monday of next, and then and there answer to said complaint and abide the order and sen- tence of the Court thereon, and also in like manner personally appear at any subsequent term of said Court to which the proceedings in the premises may be continued, if not pre- viously surrendered or discharged, and so from term to term until the final decree, sentence, or order of said Court thereon ; and abide such final sentence, order, or decree of said Court thereon, and not depart without leave, then this recognizance to be void : otherwise to be and abide in full force, power, and virtue. Attest : Olerk. 9. Recognizance to Keep the Peace. COMMONWEALTH OF MASSACHUSETTS. SUEFOLK, SS. MEMORANDUM. That on the day of in the year of our Lord one thousand eight hundred and seventy- personally appeared before the Justices of the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within the County of Suffolk, and acknowl- edged themselves to be jointly and severally indebted to the Commonwealth of Massachusetts, in the sums as follows, viz. : the said as principal, in the sum of hundred dollars, and the said as suret in the sum of hundred dollars to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of said Commonwealth, if default be made in the perform- ance of the condition here underwritten. The condition of this recognizance is such. That whereas'on the day of in the year of our Lord one thou- sand eight hundred and seventy- the said was brought before said Court, by virtue of a warrant in 310 CRIMINAL LAW. due form of law issued by said Court, to answer to the Com- monwealth of Massachusetts on the qomplaint under oath of of said Boston, charging the said with the crime of assault and battery upon alleged to have been committed at said Boston within the Judicial District of said Court, as more fully set forth in said complaint, and said having been lawfully convicted by said Court of said offence, and having been ordered by said Court to recognize in the sum of hundred dollars, with suf- ficient surety in the like sum, to keep the peace and be of good behavior towards all persons in said Commonwealth, and especially towards said for the term of months from and after said day of and to stand committed until recognize as aforesaid, or be otherwise discharged in due course of law, the said as principal and the said as surety, thereupon offered in open Court to recognize as above mentioned, and said surety was approved by said Court : Now, therefore, the condition of this recognizance is such, That if said according to the above-mentioned order of said Court, shall keep the peace and be of good behavior towards all persons in said Commonwealth, and especially towards said for the term of months from and after the aforesaid day of then this re- cognizance to be void : otherwise to be and abide in full force, power, and virtue. Attest : Cleric. 10. Recognizance for Appearance at the Municipal Court for Further Examination. commonwealth of massachusetts. Suffolk, ss. memorandum. That on the day of in the year of our Lord one thousand eight hundred and seventy- per- FORMS IN CRIMINAL PROCEEDINGS. 311 sonally appeared before the Justices of the Municipal Court of the City of Boston holden at said Boston for the transac- tion of criminal business within and for the County of Suffolk, and acknowledged themselves to be jointly and severally in- debted to the Commonwealth of Massachusetts, in the sums as follows, viz. : the said as principal, in the sum of dollars, and the as suret in the sum of dollars to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of said Commonwealth, if default be made in the performance of the condition here underwritten. The condition of this recognizance is such, that whereas at said Municipal Court holden as aforesaid, on this day of is brought before said Court by virtue of a warrant in due form of law issued by said Court to answer to the Com- monwealth of Massachusetts on the complaint under oath of of said Boston, charging with the crime of at said Boston, as more fully set forth in said complaint, and said complaint having been read to said and said having pleaded thereto that was guilty, and said Court having ordered said to recognize with sufficient suret in the sum of dollars for personal appearance before said Court on the day of in the year aforesaid, at of the clock in the forenoon of said day, then and there to answer further to said complaint and do and receive that which by said Court shall be enjoined on and not depart without license, and stand committed until recognize as aforesaid, and the said as principal and the said as suret having offered in open Court to recognize as above mentioned, and said suret being approved by said Court : Now, therefore, the condition of this recognizance is such, That if the said according to the above-mentioned order of said Court, shall personally appear before said Muni- cipal Court holden as aforesaid on the day of at of the clock in the forenoon, then and there to an- swer further to said complaint, and shall do and receive that 312 CRIMINAL LAW. which by said Municipal Court shall be then and there en- joined upon and not depart without license ; then this recognizance to be void : otherwise to be and abide in full force, power, and virtue. Attest : Cleric. 11. Recognizance to Prosecute an Appeal. commonwealth of massachusetts. Suffolk, ss. Be it remembered, That on the day of in the year of our Lord one thousand eight hundred and seventy- personally appeared before the Justices of the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business, within the County of Suffolk, and acknowledged themselves to be jointly and severally indebted to the Commonwealth of Massa- chusetts in the sums following, to wit : The said as principal in the sum of hundred dollars and the said as sureties, in the sum of hundred dol- lars each to be levied on their goods or chattels, land or tenements, and in want thereof upon their bodies, to the use of the said Commonwealth, if default be made in the perform- ance of the condition here underwritten. The condition of this recognizance is such. That whereas, at the Municipal Court of the City of Boston within the County of Suffolk holden at said Boston as aforesaid, on the day of in the year of our Lord one thou- sand eight hundred and seventy- of said Boston, is brought before said Court, by virtue of a warrant in due form of law issued by said Court under its seal, on the day of said to answer to the Common- wealth of Massachusetts, on the complaint under oath of of said Boston, setting forth that he. the said on the day of in the j'ear of our Lord one thousand eight hundred and seventy- at FORMS IN CRIMINAL PROCEEDINGS. 313 Boston aforesaid and within the Judicial District of said Court, with force and arms, against the peace of said Commonwealth, and the form of the statute in such ease made and provided. Which complaint is thereupon read by the Clerk of said Court in open Court, on the said day of to the said and the said is asked by the Court whether he is guilty or not guilty of the offence charged upon in manner and form aforesaid, who pleads and says that he "^is not guilty, and therefore puts self on trial, and the Commonwealth doth the like by said And after hearing divers credible witnesses duly sworn to testify the truth, the whole truth, and nothing but the truth, relating to the premises, and fully hearing and understanding the defence of the said it appears to said Court that the said is guilty of the offence aforesaid. It is therefore considered by said Court, that the said for the offence aforesaid forfeit and pay a fine of dollars to the' use of said Commonwealth, and costs of prosecution, taxed at dollars and cents, and stands com- mitted until this sentence be performed. be com- mitted to the House of situated in said Boston, there to be kept at hard labor according to the rules of the same for the term of months from and after this day of said From which sentence the said appeals to the Supe- rior Court for the transaction of criminal business next to be holden at said Boston within and for the County of Suffolk, on the first Monday of next ; and it is ordered by said Court that the said be committed until he shall [find such sureties as the Court shall require to recognize to the Commonwealth for ] recognize to the Commonwealth with such sureties as the Court shall require, in the sum of hundred dollars for personal appearance be- fore said Superior Court, then and there to prosecute said appeal and to abide the sentence of the said Court thereon, and also in like manner personally to appear at any subse- quent term of said Court to which the proceedings in the 314 CRIMINAL LAW. premises may be continued, if not previously surrendered and discharged, and so from term to term until the final decree, sentence, or order of sa,id Court thereon ; and to abide such final sentence, order, or decree of said Court, and not depart without leave, and in the mean time to keep the peace and be of good behavior. Whereupon the said as principal and the said as sureties, then and there in open Court offered to recognize as above mentioned, and said sureties were approved by said Court. Now, therefore, if the said according to the above- mentioned order of said Municipal Court, shall personally appear before the Superior Court for the transaction of crim- inal business next to be holden at said Boston within and for the County of Suffolk, on the first Monday of next, and then and there prosecute said appeal as the law directs, and also in like manner personally appear at any subsequent term of said Court to which the proceedings in the premises may be continued, if not previously surrendered and discharged, and so from term to term until the final decree, sentence, or order of said Court thereon, and' shall abide such final-sentence, order or decree of said Court, and not depart without leave, and shall in the mean time keep the peace and be of good behavior : then this recognizance to be void : otherwise to be and abide in full force, power, and virtue. Attest : Cleric. And be it further remembered, That the said Justices of said Municipal Court, immediately after the caption of the above recognizance do order that this recognizance be trans- mitted to said Superior Court to be filed therein, and the same recognizance is transmitted accordingly. Attest : Clerk. FORMS IN CRIMINAL PROCEEDINGS, 315 12. Recognizance of Witness to the Superior Court. commonwealth of massachusetts. Suffolk, ss. memorandum. That on the day of in the year of our Lord one thousand eight hundred and seventy- personally appeared before the Justices of the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, and acknowledged themselves to be jointly and severally indebted to the Commonwealth of Massachusetts, in the sums as fol- lows, viz. : the said as principal, in the sum of dollars, and the said as surety, in the sum of dollars, to be levied on their goods or chattels, lands or tene- ments, and in want thereof upon their bodies, to the use of said Commonwealth, if default be made in the performance of the condition here underwritten. The condition of this recognizance is such. That whereas at said Municipal Court, holden as aforesaid, on this day of personally appeared before said Court, to give evidence in behalf of said Commonwealth relative to the complaint under oath of of said Boston, charging with the crime of at said Boston, as more fully set forth in said complaint, and said Court hav- ing ordered said to recognize self in the sum of dollars, and to find surety to recognize in the like sum of dollars, for personal appearance at the Superior Court for the transaction of criminal business next to be holden at said Boston within and for the said County of Suffolk, on the first Monday of next, to give evidence relative to said complaint, and also in like manner personally appear at any subsequent term of said Court to which the proceedings in the premises may be continued, if not previously surrendered and discharged, and so from term to term until the final decree, sentence, or order of said Court thereon, and not depart without leave. 316 CRIMINAL LAW. Now, therefore, the condition of this recognizance is such, That if the said according to the above-mentioned order of said Municipal Court, shall personally appear before the Superior Court for the transaction of criminal business next to be holden at said Boston within and for the County of SufPolk, on the first Monday of next, and then and there give evidence relative to said complaint, and also in like manner personally appear at any subsequent term of said Court to which the proceedings in the premises may be con- tinued, if not previously surrendered or discharged, and so from term to term until the final decree, sentence, or order of said Court thereon, and not depart without leave, then this recognizance to be void : otherwise to be and abide in full force, power, and virtue. Attest : Cleric. 13. Record of Default of Principal and Surety. commonwealth of massachusetts. Suffolk, ss. At the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal busi- [l. s.] ness within and for the County of Suffolk, on the day of in the year of our Lord one thou- sand eight hundred and Be it remembered. That on this day of said named in the annexed recognizance was solemnly called to come into Court here, according to the tenor of said recogni- zance, and save self and h bail harmless, and did not appear, but made default and who was bail and surety for said as appears of record in this Court, and in the said annexed recognizance, being also solemnly called on his recognizance as bail and surety for said to come into Court here, and bring with him the said whom he engaged to have here this day and save himself harmless, did not appear, and did not FORMS IN CRIMINAL PROCEEDINGS. 317 bring into Court here the said according to the tenor of said recognizance, but did make default. Whereupon the Court did order that the several defaults of said as principal, and of said as h bail and surety, be entered of record in this Court, and that their said recogni- zance with the record of their said defaults be estreated, certified, and transmitted to the Superior Court to be holden at said Boston for the transaction of criminal business within and for said County of Suffolk, that the same maybe entered of record in said Superior Court, and put in suit according to law. And now, in pursuance of said order of said Municipal Court, the same recognizance of the said as principal and of the said as surety, with the record aforesaid of their several defaults, is hereby estreated and herewith certified and transmitted to said Superior Court to be entered and filed of record therein and to be put in suit according to law and the order of said Municipal Court. In testimony whereof, I have hereunto set my hand and affixed the seal of said Municipal Court at Boston aforesaid, the day of in the year of our Lord one thousand eight hundred and seven ty- Clerk. 14. Warrant on Default. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our Countj' of Suffolk, his Deputies, the Constables and Police-officers of the City of [l. S.] Boston, in said County, and to the Constable of said Commonwealth or either of his Deputies, Greeting : Whereas at the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on the day of in the year of our Lord one thousand eight hundred 318 CRIMINAL LAW. and seventy- of said Boston, was brought before said Court, by virtue of a warrant in due form of law issued by said Court, under its seal, to answer to the Com- monwealth of Massachusetts on the complaint under oath of of said Boston, for against the peace of said Commonwealth, and the form of the statute in such case made and provided ; which complaint was then read to the said by the Clerk of said Court in open Court, and the further consideration thereof was thereupon continued to the day of in the year aforesaid, and the said then and there (found surety to) recognized with surety, in the sum of dollars, for h personal appearance before said Court, on the day so appointed for the hearing of said cause : but on said day so appointed as aforesaid, the said although sol- emnly called to come into Court, according to the tenor of h recognizance, and save sel and h bail harmless, did not appear, but made default, and it was thereupon ordered by said Court that a second warrant issue against the said to bring h before said Court to further answer to said complaint. We therefore command you and each of you, upon sight hereof, to take and bring before our said Municipal Court holden as aforesaid, the body of the said if he be found within your precinct, to further answer to the Com- monwealth on the complaint aforesaid. Hereof fail not at your peril. Witness, A. B., Esq., at Boston aforesaid, this day of in the year of our Lord one thousand eight hun- dred and seventy- Clerk. FORMS IN CRIMINAL PROCEEDINGS. 319 15. Mittimus for not Recognizing to Appear at the Municipal Court.^ commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, r -] the Constables and Police-officers of our City of Boston, and the Keeper of the Jail in our said County, Greeting : We command you, the said sheriff, deputies, constables, and police-officers, and each of you, forthwith to convey and deliver into the custody of the keeper of our said jail, the bod of of our City of Boston in our County of Suffolk, defendant, brought before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on the day of in the year of our Lord one thousand eight hundred and on the complaint of for at Boston aforesaid and within the Judicial District of said Court, on the day of in the year of our Lord and said complaint being read to said defendant he is ordered by our said Court to — find sureties — to recognize with sufficient surety in the sum of hundred dollars for h personal appearance be- fore our said Municipal Court, on the day of current, at ten of the clock, forenoon, to answer to said complaint, with which said order the said defendant now before our said Court refuses to comply. And make return of this precept with your doings thereon. And we command you, the said keeper, to receive the said de- fendant into your custody in our said jail, and h there safely keep until he shall comply with said order, or be otherwise discharged in due course of law. Hereof fail not at your peril. 1 When a person fails to recog- he is committed for further exami- nize, he may be committed to prison nation on a future day to be named by an order under the hand of the in the order. Gen. Sts. ch. 170, magistrate, stating concisely that § 19. 320 CRIMINAL LAW. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Glerk. 16. Mittimus to Jail for Further Examination for an Offence not Bailable. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Depu- [l. S.J ties, the Constables of our City of Boston, and the Keeper of the Jail in our said County, Greeting : We command you, and each of you, the said sheriff, dep- uties, and constables, forthwith to convey and deliver into the custody of the keeper of our said jail, the bod of of said Boston, who now stands charged before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on the com- plaint of said Boston with at said Boston, on the day of current, and on ex- amination the said was ordered by the said Court to be committed to said jail until the day of current, at of the clock in the forenoon, then to be brought before said Court for further examination. And you, the said keeper, are hereby commanded to receive the said into your custody in our said jail, and there safely to keep until the said hour and day of examination, or until be otherwise discharged in due course of law. Hereof fail not at your peril. Witness A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- aerh. FORMS IN CRIMINAL PROCEEDINGS. 321 17. MittimuB for not Recognizing to Appear at the Superior Court in Cases beyond Jurisdiction. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, r 1 the Constables and Police-ofiScers of our City of Boston, and to the Keeper of the Jail in our said County, Geebting : We comraand you, the said sheriff, deputies, constables, and police-oflScers, and each of you, forthwith to convey and deliver into the custody of the keeper of our said jail, the J)ody of of the City of Boston, in our County of Suffolk, laborer, defendant, brought before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on the day of in the year of our Lord one thousand eight hundred and seventy- on the complaint of for at Boston aforesaid and within the Judicial District of said Court, on the day of in the year of our Lord and on examination the said defendant is ordered by our said Court — to find sureties — to recognize with sufficient sureties in the sum of hundred dollars for his personal appearance before the Superior Court for the trans- action of criminal business next to be holden at Boston within and for the County of Suffolk on the first Monday of next, then and there to answer to said complaint, and abide the order and sentence of the Court thereon, and also in like manner personally appear at any subse- quent term of said Court to which the proceedings in the premises may be continued, if not previously surren- dered and discharged, and so from term to term until the final decree, sentence, or order of said Court thereon, and to abide such final sentence, order, or decree of said Court, and not depart without leave, with which said order the said defend- ant now before our said Court refuses to comply : And make due return of this precept, with your doings thereon. 21 322 CRIMINAL LAW. And you the said keeper, in the name of the Common- wealth aforesaid, are hereby commanded to receive the said defendant into your custody in our said jail, and him there safely to keep until he shall comply with said order, or be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at our City of Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerle. 18. Mittimus for a TVitness for not Recognizing to Appear at . the Superior Court. commonwealth op massachusetts. Suffolk, ss. To the SherifP of our County of Suffolk, his Deputies, [l. S.J the Constables of our City of Boston, and the Keeper of the Jail in our said County, Gkeeting : We command you and each of you, the said sheriff, deputies, and constables, forthwith to convey and deliver into the custody of the keeper of our said jail the body of of said Boston, laborer, who is or- dered by our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, to recognize with suffi- cient surety in the sum of dollars, for his personal appearance before the Superior Court for the transaction of criminal business next to be holden at said Boston within and for the County of Suffolk on the first Monday of next, then and there to testify and give evidence in the mat- ters of the complaint in behalf of said Commonwealth of of said Boston, against of said Boston, which said complaint has by said Municipal Court been transferred to said Superior Court as the law directs, and with which said orders the said refuses to comply. And you, the said keeper, are hereby commanded to receive the said into your custody in our said jail, and POEMS IN CRIMINAL PROCEEDINGS. 323 there safely keep until he shall recognize as aforesaid, or be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerh. 19. Mittimus for not Finding Sureties to Keep the Peace. COMMONWEALTH Or MASSACHUSETTS. . SuPEOtK, SS. To the Sheriff of our County of Suffolk, his Deputies, [l. s.] the Constables of our City of Boston, and the Keeper of the Jail in our said County, Greeting : Whereas of the City of Boston, in the County of Suffolk, by virtue of a warrant issued by our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, upon the complaint on oath of of said Boston, charging h with assault and battery on hath this day been brought before said Court ; and the Justices thereof, after a hearing in the premises, have ordered the said defendant to find sufficient surety or sureties to be bound h in a recognizance to keep the peace, and be of good behavior towards all persons of said Commonwealth, and especially towards for the term of months from and after this day of and also to pay a fine of dollars for the use of said Commonwealth, and costs of prosecution, taxed at dollars and cents : And whereas he the said defendant hath refused, and doth now, before said Court, refuse to recognize h self, and to find such surety or sureties to recognize h as aforesaid, in the sum of hundred dollars each, and to pay said fine and costs, as now required by the said Court. These are, therefore, in the name of the Commonwealth of Massachusetts, to command you the said sheriff, depu- 824 CRIMINAL LAW. ties, and constables, and each of you, forthwith to conyey the said defendant to the common jail in our county aforesaid, and to deliver to the keeper thereof: And make return of this precept, with your doings therein. And you, the said keeper, in the name of the Commonwealth afore- said, are hereby commanded to receive the said defendant into your custody in our said jail, and h there safely to keep until he shall find such surety or sureties to recognize h as aforesaid, and pay said fine and costs, or be otherwise discharged in due course of law. "Witness A. B., Esq., at our City of Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerk. 20. Mittimus for not Recognizing on Appeal. COMMONWEALTH OP MASSACHUSETTS. SUEPOLK, SS. To the Sheriff of our County of Suffolk, his Deputies, P ■, the Constables and Police-officers of our City of Boston, and to the Keeper of the Jail in our said County, Greeting : We command you and each of you, the said sheriff, depu- ties, constables, and police-officers, forthwith to convey and deliver into the custody of the keeper of our said jail the body of of said Boston, defendant who now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within the County of Suffolk on the complaint of of at Boston aforesaid, and within the Judicial District of said Court, on the day of in the year of our Lord one thou- sand eight hundred and seventy- For which offence the said defendant is sentenced by our said Cburt to be committed to the House of situated in said Bos- ton, there to be kept at hard labor according to the rules of the same, for the term of months from and after this FORMS IN CRIMINAL PROCEEDINGS. 325 day of pay a fine of dollars to tlie use of said Commonwealth, and costs of prosecution, taxed at dollars and cents, and that he stand committed until said sentence be complied with. From which said sentence the said defendant claims an appeal to the Superior Court for the transaction of criminal business in said County of Suffolk. And the said defendant is ordered by our said Court to recognize with sufficient sureties, in the sum of hun- dred dollars, for h personal appearance before the Superior Court for the transaction of criminal business, next to be holden at Boston within and for the County of Suffolk on the first Monday of next, then and there to prosecute h said appeal and abide the sentence of the Court thereon, and in the mean time to keep the peace and be of good behav- ior ; with which said order the said defendant now before our said Court refuses to comply : And make due return of this precept, with your doings thereon. And you the said keeper are hereby commanded to re- ceive the said defendant into your custody in our said jail, and h there safely to keep until he shall comply with said order, or until he be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerh. 21. Mittimus to Common Jail for not Faying Fine and Costs. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables of the Commonwealth, the Con- [l. S.J stables and Police-officers of our City of Boston in said County, and to the Keeper of the Jail in our said County, Greeting : "Whereas of said Boston, defendant now stands convicted before our Justices of our Municipal Court 326 CRIMINAL LAW. of the City of Boston holden at said Boston for the transac- tion of criminal business within and for the County of Suffolk of on the day of current, at Boston aforesaid, for which offence the said defendant is, by our said Court, sentenced to pay dollars for the use of said Commonwealth, to pay costs of prosecution, taxed at dollars and cents, and to stand com- mitted until this sentence be performed. With all of which sentence the said defendant now before said Court refuses to comply. We therefore command you the said sheriff, deputies, constables, poliee-oflQcers, and each of you, forth- with to convey the said defendant to the common jail in the county aforesaid, and to deliver h to said keeper, and make return of this precept with your doings therein. And you the said keeper are hereby in like manner commanded to receive the said defendant Cwhom we here- with send) into your custody in said jail, and h there safely keep until he shall comply with said sentence, or be otherwise discharged by due course of law. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerh. 22. Mittimus to Common Jail for a Terta of Months. commonwealth op massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, [l. S.J the Constables of our City of Boston, and the Keeper of the Jail in said County, Greeting : We command you, the said sheriff, deputies, constables, and each of you, forthwith to convey and deliver into the custody of the keeper of said jail the body of of our City of Boston, in our County of Suffolk, who now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, of FORMS IN CRIMINAL PROCEEDINGS. 327 at Boston aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- for which offence the said is sentenced by our said Court, to be imprisoned in the common jail in said county, to be employed and kept at work therein in the same manner as other persons committed to said jail for the term of months, from and after this day of And you the said keeper, in the name of the Commonwealth aforesaid, are hereby commanded to receive the said into your custody in our said jail, and there safely to keep until the expiration of said months, or he be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at our City of Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Olerk. 23. Mittimus to the House of Correction. commonwealth op massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables of said Commonwealth, the Consta- [l. S.J bles and Police-officers of our City of Boston, and the Master of the H6use of Correction in said City of Boston, Greeting : We command you, the said sheriff, deputies, constables, and police-officers, and each of you, forthwith to convey and deliver into the custody of the master of said House of Correction the body of of said Boston, defendant who now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, of being at Boston aforesaid and within the Judicial District of said Court, on the day of in the year of our Lord one thousand eight hundred and seventy- For which 328 CRIMINAL LAW. offence the said defendant is sentenced by our said Court to be committed to the House of Correction situated in said Boston, there to be put to hard labor, according to the rules of the same, for the term of months, from and after this day of : And make return of this pre- cept, with your doings thereon. And you the said master, in the name of the Common- wealth aforesaid, are hereby commanded to receive the said defendant into your custody in our said House of Correc- tion, and h there safely keep until the expiration of said months, or he be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at Boston aforesaid, this day of in the year of our Lord one thousand eight hundred and seventy- Olerh. 24. Mittimus to House of Correction for uot Faying Fine and Costs. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables of said Commonwealth, the Consta- [l. s.] bles and Police-oflBcers of our City of Boston in said County, and to the Master of the House of Correc- tion in our said City of Boston, Geeeting : Whereas of said Boston, defendant now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, of on the day of current, at Boston aforesaid, for which offence, he the said defendant is by our said Court sentenced to pay dollars for the use of said Commonwealth, to pay costs of prosecution, taxed at dollars and cents, and to stand committed until this sentence be performed. All which sentence he the said defendant now before our said Court refuses to comply FORMS IN CRIMINAL PROCEEDINGS. 329 with. We therefore command you, the said sheriff, depu- ties, constables, police-officers, and each of yon, forthwith to convey the said defendant to the House of Correction in said City of Boston, and to deliver h to the master thereof ; and to make return of this precept, with your doings therein. And you the said master are hereby in like manner com- manded to receive the said defendant (whom we herewith send) into your custody in said House of Correction, and h there safely to keep at hard labor, until he shall comply with said sentence, or be otherwise discharged by due course of law. Witness, A. B., Esq., at Boston aforesaid, the day of in the year of our Lord one thousand eight hundred and seventy- Glerk. 25. Mittimus to the House of Industry. commonwealth op massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, ■- 1 the Constables and Police-ofi&cers of our City of Boston, and the Master of the House of Industry, in said City of Boston, Geeeting : We command you, the said sheriff, deputies, constables, and police-officers, and each of you, forthwith to convey and deliver into the custody of the master of said House of In- dustry the body of of said Boston, defend- ant, who now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within the County of Suffolk, of at Boston aforesaid and within the Judi- cial District of said Court, on the day of in the year of our L"ord one thousand eight hundred and seventy- For which offence the said defendant is sentenced by our said Court to be committed to the House of Industry situated in said Boston, there to be put to hard labor, accord- 330 CRIMINAL LAW. ing to the rules of the same for the terra of months, from and after this day of And make return of this precept, with your doings thereon. And you the said master, in the name of the Common- wealth aforesaid, are hereby commanded to receive the said defendant into your custody in our said House of Indus- try, and h there safely keep until the expiration of said months, or he be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Glerh. 26. Mittimus for not Paying Fine for Drunkenness cind Former Conviction. commonwealth of massachusetts. Suffolk, «s. To the Sheriff of our County of Suffolk, his Deputies, P , , the Constables and Police-officers of our City of Boston in said County, and to the Keeper of the Jail in our said County, Greeting : Whereas of said Boston, defendant now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transac- tion of criminal business within and for the County of Suffolk, of drunkenness at said Boston on the day of current, and was also convicted before said Court of the crime of drunkenness at Boston aforesaid, on the day of in the year of our Lord for w^hich offence the said defendant is, by our said Court, sen- tenced to pay dollars for the use of said Common- wealth, to pay costs of prosecution, taxed at dollars and cents, and to stand committed until this sentence be performed. With all of which sentence the said defendant now before said Court refuses to comply. We therefore com- mand you, the said sheriff, deputies, constables, police-officers, FORMS IN CRIMINAL PROCEEDINGS. 331 and each of you, forthwith to convey the said defendant to the common jail, in the county aforesaid, and to deliver h to said keeper ; and make return of this precept, vi^ith your doings therein. And you the said keeper are hereby in like manner com- manded to receive the said defendant (whom we herewith send) into your custody in said jail, and h there safely keep until he shall comply with said sentence, or be otherwise discharged by due course of law. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Glerk. 27. Mittimus for not Paying Fine for Drunkenness. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of SuiFolk, his Deputies, the Constables of the Commonwealth, the Consta- [l. s.] bles and Police-officers of our City of Boston in said County, and to the Keeper of the Jail in our said County, Greeting : Whereas of said Boston, defendant now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, of drunkenness, . on the day of current, at Boston aforesaid, for which offence the said defendant is, by our said Court, sentenced to pay three dollars for the use of said Common- wealth, to pay costs of prosecution, taxed at three dollars and five cents, and to stand committed until this sentence be performed. With all of which sentence the said defendant now before said Court refuses to comply. We therefore command you the said sheriff, deputies, con- stables, police-officers, and each of you, forthwith to con- vey the said defendant to the common jail, in the county 332 CRIMINAL LAW. aforesaid, and to deliver him to said keeper; and make return of this precept, with your doings therein. And you the said keeper are hereby in like manner com- manded to receive the said defendant (whom we herewith send) into your custody in said jail, and him there safely keep until he shall comply with said sentence, or be otherwise discharged by due course of law. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerh. 28. Mittimus to House of Industry for Drunkenness and Former Conviction. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables and Police-officers of our City of [l. s.] Boston, the State Detectives of the Commonwealth and the Master of the House of Industry in said City of Boston, Greeting : We command you, the said sheriff, deputies, constables, police-officers, and state detectives, and each of you, forth- with to convey and deliver into the custody of the master of said House of Industry the body of of said Boston, defendant who now stands convicted before our Justices of aur Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, of drunkenness at said Boston and within the Judicial District of said Court, on the day of current, and was also con- victed before said Court of the crime of drunkenness at Boston aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- For which offence the said defendant is sentenced by our said Court to be committed to the House of Industry, situ- ated in said Boston, there to be put to hard labor, according FORMS IN CRIMINAL PROCEEDINGS. 333 to the rules of the same, for the term of months, from and after this day of And you the said master, in the name of the Common- wealth aforesaid, are hereby commanded to receive the said defendant into your custody in our said House of Industry, and he there safely keep until the expiration of said months, or he be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Glerk. 29. Mittimus for not Paying Fine or House of Industry for Drunk- enness and Former Conviction. commonwealth op massachusktts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables and Police-ofEcers of our City of [l. S.J Boston, in said County, and to the Master of the House of Industry in said City of Boston, Greeting : Whereas of said Boston, defendant now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transac- tion of criminal business within and for the County of Suffolk, of drunkenness at said Boston on the day of current, and was also convicted before said Court of the crime of drunkenness at said Boston, on the day of for which offence the said defendant is, by our said Court, sentenced to pay dollars for the use of said Commonwealth, to pay costs of prosecution, taxed at dollars and cents, and to stand committed until this sentence be performed. With all of which sen- tence the said defendant now before said Court refuses to comply. We therefore command you, the said sheriff, deputies, constables, police-officers, and each of you, forth- 334 CRIMINAL LAW. with to convey the said defendant to the House of Industry situated in said Boston, and to deliver h to said master ; and make return of this precept, with your doings therein. And you the said master are hereby in like manner commanded to receive the said defendant (whom we here- with send) into your custody in said House of Industry, and h there safely to keep at bard labor until he shall comply with said sentence, or be otherwise discharged by due course of law. Witness, A. B., Esq., at Boston aforesaid, the day of in the year of our Lord one thousand eight hun- dred and seventy- aerh. 30. IVIittiinuB for not Faying Fine or House of Industry for Drunkenness. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables and Police-officers of our City of [l. S.J Boston, in said County, and to the Master of the House of Industry in said City of Boston, Gkeeting : Whereas, of said Boston, laborer, de- fendant now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Bos- ton for the transaction of criminal business within the County of Suffolk, of drunkenness, on the day of current at Boston aforesaid and within the Judicial District of said Court, for which offence the said defendant is hj our said Court sentenced to pay three dollars for the use of said Commonwealth, to pay costs of prosecution, taxed at three dollars and eighty-five cents, and to stand committed until this sentence be per- formed. With all of which sentence the said defendant now before said Court refuses to comply. We therefore command you, the said sheriff, deputies, constables, police- FORMS IN CRIMINAL PROCEEDINGS. 335 officers, and each of you, forthwith to conYey the said de- fendant to the House of Industry situated in said Boston, and to deliver h to said master, and make return of this precept, with your doings therein. And you the said master are hereby in like manner commanded to receive the said defendant (whom we here- with send) into your custody in said House of Industry, and h there safely keep at hard labor there until — he shall comply with said sentence, or be otherwise discharged by due course of law. Witness, A. B., Esq., at Boston aforesaid, this day of in the year of our Lord one thousand eight hun- dred and seventy- Clerk. 31. Mitt±iius to the House for Juvenile Offenders. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables of our City of Boston, and the [l. S.J Master of the House for the Employment and Reformation of Juvenile Offenders in our said City, Greeting : We command you, the said sheriff, deputies, constables, and each of you, forthwith to convey and deliver into the custody of the master of said house the body of of said Boston, a minor, who now stands convicted before our Justices of our Municipal Court of the City of Boston holden at said Boston and within the Judicial District of said Court for the transaction of criminal business, within and for the County of Suffolk, of — and it appearing to our said Court that the said is a proper object for confinement in said house ; and the directors of said house having assented to the admission of said into said house, — It is therefore ordered by our said Court, that the said be committed to said house, there to be kept, governed, and dealt with according to the provisions of an 336 CRIMINAL LAW. act entitled " An Act concerning juvenile offenders in the City of Boston," passed the fourth day of March in the year of our Lord one thousand eight hundred and twenty-six. And make return of this precept with your doings thereon. And you the said master are hereby commanded to re- ceive the said into your custody in our said house and there safely keep until shall be lawfully discharged by said directors or be otherwise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at our City of Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Olerh. 32. Mittimus to State 'Workhouse at Bridgewater. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables of our City of Boston, and the Mas- Fl si ./ ' L ■ 'J ter of the State Workhouse at Bridgewater in said Commonwealth, Greeting : We command you, the said sheriff, deputies, constables, and each of you, forthwith to convey and deliver into the cus- tody of the master of the State workhouse at said Bridge- water the body of of our City of Boston in our County of Suffolk, who now stands convicted before our Justices of our Municipal Court of the City of Boston, holden at said Boston for the transaction of criminal business, within and for the County of Suffolk, on the complaint of one of the overseers of the poor of said city, of being a at Boston aforesaid, on the day of in the year of our Lord one thousand eight hundred and For which offence the said is sentenced by our said court to be committed to the State workhouse at Bridgewater in said Commonwealth, there to be governed and subject to the same liabilities as persons sentenced under the provisions of chapter one hundred and ninety-eight of the FORMS IN CRIMINAL PROCEEDINGS. 337 acts of the year eighteen hundred and sixty-six, for the term of years months from and after this day of And you the said master, in the name of the Commonwealth aforesaid, are hereby commanded to re- ceive the said into your custody in said workhouse, and him — her there safely to keep until the expira- tion of said years months, or he be other- wise discharged in due course of law. Hereof fail not at your peril. Witness, A. B., Esq., at our City of Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerlc. 33. Mittimas for Reformatory Prison for "Women. COMMONWEALTH OF MASSACHUSETTS. SUITOLK, SS. To the Sheriff of our County of Suffolk, his Deputies, the Constables and Police-officers of our City of [l. s.] Boston, and the Superintendent of the Reforma- tory Prison for Women situated in the Town of Sherborn in said Commonwealth, Gkeeting : We command you, the said sheriff, deputies, constables, and police-officers, and each of you, forthwith to convey and deliver into the custody of the superintendent of said re- formatory prison for women the body of of said Boston, defendant who now stands convicted be- fore our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within the County of Suffolk, of at Boston aforesaid and within the Judicial District of said Court, on the day of in the year of our Lord one thousand eight hundred and seventy- For which offence the said defendant is sentenced by our said Court to be committed to the said reformatory prison for women, there to be kept im- prisoned, employed and detained, according to the rules of the same, for the term of months f^om and after 22 338 CRIMINAL LAW. this day of And make return of this precept, with your doings thereon. And you, the said superintendent, in the name of the Com- monwealth aforesaid, are hereby commanded to receive the said defendant into your custody in our said reformatory prison for women, and her there safely keep until the expi- ration of said months, or she be otherwise discharged in due course of law. Hereof fail not at j'our peril. Witness, A. B., Esq., at said Boston, this day of in the year of our Lord one thousand eight hun- dred and seventy- Clerk. 34. Order to Bring up a Prisoner for Further Examination.^ Municipal Court, Boston, 187 No. It is ordered that be brought before the Municipal Court for examination. Clerh. 35. Capias for a Witness. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, the Constables and Police-officers of the City of Bos- Tl s 1 ■- ■ ■-' ton in said County, and the Constables of the Com- monwealth, or either of his Deputies, Greeting : We command you and each of you, upon sight hereof, to take and bring before our Municipal Court of the City of Bos- ton holden at said Boston for the transaction of criminal business within and for the County of Suffolk, the body of of Boston aforesaid, if to be found within your precinct, to answer to all such matters and things as in 1 The prisoner may be brought commitment, or by an order in writ- before the magistrate by his verbal ing to a different person. Gen. Sts. order to the officer who made the ch. 170, § 19. FORMS IN CRIMINAL PROCEEDINGS. 339 behalf of the Commonwealth aforesaid are on oath objected against h : It appearing upon oath that in the case of the Commonwealth on the complaint of against for he the said hath been duly summoned to appear before said Court, and give evidence touching the said offence, and that he hath neglected to appear in pur- suance of said summons, against the peace of said Common- wealth. Hereof fail not at your peril. ^ Witness, A. B., Esq., at Boston aforesaid, this day of in the year of our Lord one thousand eight hundred and seventy- Clerk. 36. Habeas Corpus to Testify. commonwealth op massachusetts. Stjefolk, «S. To the Sheriff of our County of Suffolk, or to the [l. s.] Deputy Keeper of our Jail in said County, Greeting : We command you that you have the body of de- tained in our prison under your custody, as it is said, under safe and secure conduct, before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for said County of Suffolk, on the day of at of the clock in the forenoon, then and there to testify the truth according to his knowledge in the matter of a complaint of in behalf of said Commonwealth against and immediately after the said shall have given his testi- mony as aforesaid, to return the said to our prison under safe and secure conduct, and have you there this writ. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and Clerk. Suffolk, ss. Boston, 187 . In obedience to the within precept I have the body of the within-named here in Court, to testify as therein set forth. 340 CRIMINAL LAW. 37. Habeas Corpus to Answer. commonwealth op massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, or the Dep- [l. S.J uty Keeper of our Jail in said County, Greeting : We commanc? you that you have the body of or by whatsoever name he may be called, detained in our prison under your custody, as it is said, under safe and secure conduct, before our Justices of our Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for said County of Suffolk, immediately after the receipt of this writ, to answer to the Commonwealth upon the complaint of in be- half thereof, and further to do and receive what our said Justices shall then and there consider concerning said in this behalf ; and have you there this writ. Witness, A. B., Esq., at Boston, this day of in the year of our Lord one thousand eight hundred and seventy- ClerJc. Suffolk, ss. Boston, 187 . In obedience to the within precept I have the body of the within-named here in Court, to be dealt with as therein set forth. 38. Order for the Discharge from Jail of Poor Convicts. commonwealth of massachusetts. Suffolk, ss. To the Keeper of the Commonwealth's Jail, in the City of Boston, in the County of Suffolk, Greeting : Whereas it hath been made to appear to our Justices of our Municipal Court within and for our City of Boston, that the following person, whose name is herein written, is held in prison in our said jail, for the non-payment of fine and FORMS IN CRIMINAL PROCEEDINGS. 341 costs, and that said person is poor and unable to pay the same, to wit : These are, therefore, in the nmae of the Commonwealth of Massachusetts, to command you to discharge the said person from your custody, if detained for no other cause than the non-payment of the fine and costs aforesaid. Witness, A. B., Esq., at Boston, this of in the year of our Lord one thousand eight hundred and seventy- Clerle. 39. AfSdavit of Surety to Municipal Court. commonwkalth of massachusetts. Suffolk, ss. No. THE MUNICIPAL COUKT OF THE CITY OF BOSTON. I, of Boston in the County of Suffolk and Commonwealth of Massachusetts, by occupation a offer myself as surety in the sum of hundred dollars for And I on oath depose and say, that I am more than twenty-one years of age, that I reside in Boston in the County of Suffolk and Commonwealth aforesaid, that my residence is situated on Street in said Boston, and is numbered on said street, that I have real estate in Boston in said County of Suffolk and Commonwealth of Massachusetts, consisting of house and land situated on Street, and numbered on said street in said Boston, and that the title to all of said real estate is vested in me and stands of record in my own name, and that 342 CRIMINAL LAW. said real estate is of the value of not less than dol- lars, and is subject to no incumbrance except a mortgage of dollars, and that I have personal estate in said Boston, that its value is not less than dollars, that it consists of and that it is subject to no incumbrance except and that the amount of my debts and liabili- ties of every kind absolute and conditional does not exceed dollars, and that there are no unsatisfied judgments or executions standing against me, and that I am under no recognizance except dollars, that my credit is good, and that I am worth in good property not less than dollars over and above all debts, liabilities, and lawful claims against me, and all liens, incumbrances, and lawful claims upon my property. Suffolk, ss. Boston, 187 Personally appeared the above-named before said Court and made oath that the foregoing affidavit by him subscribed is true. Attest : Clerk. 40. Ai&davit of Surety to Superior Court. commonwealth of massachusetts. Suffolk, ss. No. the municipal court of the city of boston holden at said boston foe the transaction op criminal business. I of Boston in the County of Suffolk and Com- monwealth of Massachusetts, by occupation a offer myself as surety in the sum of hundred dollars for And I on oath depose and say, that I am more than twenty-one years of age, that I reside in Boston in the County of Suffolk and Commonwealth aforesaid, that my residence is situated on Street in said Boston, and is numbered on said street, that I have real estate FORMS IN CRIMINAL PROCEEDINGS, 343 in Boston in said County of Suffolk and Commonwealth of Massachusetts, consisting of house and land situated on Street, and numbered on said street in said Boston, and that the title to all of said real estate is vested in me, and stands of record in my own name, and that said real estate is of the value of not less than dollars, and is subject to no incumbrance except a mortgage of dollars, and that I have personal estate in said Boston, that its value is not less than dollars, and it consists of and that it is subject to no incumbrance ^xcept and that the amount of my debts and liabilities of every kind, absolute and conditional, does not exceed dollars, and that there are no unsatisfied judgments or executions standing against me, and that I am under no recognizance except dollars, that my credit is good, and that I am worth in good property not less than dollars over and above all debts, liabilities, and lawful claims against me, and all liens, incumbrances, and lawful claims upon my property. Suffolk, ss. Boston, 187 Then personally appeared the above-named before said Court and made oath that the foregoing affidavit by him subscribed is true. Attest : Clerk. 41. Ackno'wledgment of Satisfaction by Complainant for the Injury Complained of. COMMONWEALTH OF MASSACHUSETTS. Suffolk, sg. At the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on the day of in the year of our Lord one thousand eight hundred and seventy- Upon the complaint of in behalf of said Common- wealth against for on And now per- 344 CRIMINAL LAW. sonally appears before said Court the injured party, and makes and signs the following acknowledgment : — The injured party hereby acknowledges that he has re- ceived satisfaction for the injury set forth in said complaint. The injured party. Whereupon it is considered by said Court that the said defendant be discharged on payment of costs by the com- plainant. Clerk. 42. Declaration on a Recognizance. commonwealth op massachttsetts. Middlesex, ss. P -| To the Sheriffs of our several Counties or their Deputies, Greeting : We command you to attach the goods and estate of to the value of hundred dollars, and summon the said defendants (if they may be found in your precinct) to appear before our Justices of our Superior Court next to be holden at within and for our County of Middlesex, on the Monday of next. Then and there in our said Court to answer unto the Commonwealth of Massachusetts in an action of contract. And the plaintiff says that the said as principal, and the said as suret did enter into a recognizance ; a copy of which is hereto annexed. And the plaintiff further says, that the said recognizance was duly entered of record in the said Superior Court,^ and continued in said Court where the proceedings against the said referred to in said recognizance were pending, until the term of said Superior Court holden at in said County of Middlesex, on the Mon- day of in the year of our Lord one thousand eight hundred and seventy- when and where, to wit, on 1 This is a sufficient allegation Commonwealth v. Dunbar, 15 Gray, that the recognizance was made 209. of record in the superior court. FORMS IN CRIMINAL PROCEEDINGS. 345 the day of a.d. 187 the said was solemnly called to come into said Court and answer according to the tenor of said recognizance, and did not appear, but then and there made default, and the said w also then and there called to come into said Court and bring with h the said according to , the tenor of the said recognizance, and he then and there did not so come, but made default. And so the plaintiff says the said defendants owe the said Commonwealth the sum of hundred dollars. To the damage of the said Commonwealth (as it says) the sum of hundred dollars, which shall then and there be made to appear with other due damages. And have you there this writ, with your doings therein. Witness, L. F. B., Esq., at Cambridge, the day of in the year of our Lord one thousand eight hundred and seventy- Clerk. 43. Summons. commonwealth of massachttsetts. Middlesex, ss. [L.S.J To Greeting : We command you that you appear at our Superior Court next to be holden at within and for our County of Middlesex aforesaid, on the Monday of next : then and there to answer to the Commonwealth of Massachusetts in an action of contract, which action the said Commonwealth has commenced against you, to be heard and tried at our said Court; and your goods or estate are attached to the value of dollars, for security to satisfy the judgment which the said Commonwealth may recover upon the aforesaid trial. Fail not of appearance at your peril. Witness, L. F. B., Esq., at Cambridge, the day of in the year of our Lord one thousand eight hun- dred and Clerle. 346 CRIMINAL LAW. INQUESTS IN CASES OF DEATH BY VIOLENCE. St. 1877, ch. 200. 1. Notice to District-Attorney. commonwealth of massachusetts. Suffolk, ss. Boston, 187 the municipal couet of the city of boston. To Esq., District-Attorney for the Suffolk Dis- trict : You are hereby notified that an inquest will be holden before said Court on the day of in the year of our Lord one thousand eight hundred and seventy- at o'clock, in the noon, in accord- ance with the provisions of chapter two hundred of the acts of the year one thousand eight hundred and seventy-seven of said Commonwealth, to inquire into the cause and manner of the death of whose dead body has been found lying in said Boston within the Judicial District of said Court. Clerk. 2. Summons to 'Witnesses. commonwealth of massachusetts. Suffolk, ss. To the Sheriff of our County of Suffolk, his Deputies, [l. s.] the State Detectives of the Commonwealth, and the Constables and Police-officers of our City of Boston, Greeting : We command you, and each of you, in the name of the Commonwealth of Massachusetts, to summon to appear on the day of at of the clock, in the noon, before our Justices of our Municipal Court of the City of Boston, at an inquest to be holden at the Court House in said Boston within the County of Suffolk, to give evidence on behalf of said Commonwealth of what they know relating to the death of FORMS IN CRIMINAL PROCEEDINGS. 347 Hereof fail not; and make due return of this writ, with your doings thereon. Witness, A. B., Esq., at our City of Boston, this day of in the year of our Lord one thousand eight hundred and seventy- Clerk. 3. Judge's Report. COMMONWEALTH OF MASSACHUSETTS. StlPFOLK, 8S. At an inquest duly holden before the Municipal Court of the City of Boston, on the day of in the year of our Lord one thousand eight hundred and seventy- in accordance with the provisions of chapter two hundred of the acts of the year one thousand eight hundred and seventy-seven of said Commonwealth, to inquire into the cause and manner of the death of whose dead body has been found lying in said Boston within the Judicial Dis- trict of said Court : The presiding Justice of said Court, having been duly noti- fied of the death of the said and of the circumstances attending the same, by one of the medical examiners of said County of Suffolk, after hearing the testimony relat- ing to the cause and manner of said death, finds that the said came to h death at said Boston, on the day of in the year of our Lord one thousand eight hundred and seventy- in consequence of PART III. PAUT III. CHAPTER XVI. PEECEDENTS OF COMPLAINTS, INDICTMEXTS, AKD SPECIAL PLEAS. Introduction. Having in the First Part of this work pointed out the duty of a magistrate in the different stages of a criminal prosecution, and in the Second Part given the form of a record in all its parts, from the commencement to the con- clusion, together with other forms made use of in such prosecutions, the residue of the volume will contain the forms and Precedents of Complaints and Indictments for most of the crimes both at common law and by statute which are the subjects of a public prosecution. These will be given under the heads of the different offences, alphabetically arranged ; and it is hoped, will be a sufficient guide to magistrates and prosecuting officers in all their proceedings in these cases. Some of them are taken from the precedents of indictments in the English books. Those which are founded upon our statutes must necessarily, in most cases, be original. These forms, however, have become familiar from long experience ; and many of them are taken from, precedents in cases which have been the subjects of judicial animadversion. They will be introduced or accompanied with concise explanatory re- marks, notes, and directions. For a general statement of the law relating to the different offences, the reader is referred to the elaborate treatise of Russell on Crimes as edited by 352 CRIMINAL LAW. Mr. Greaves ; to Bishop on the Criminal Law ; and to Ben- nett and Heard's Leading Criminal Cases. It will be noticed that certain expressions, which are still retained in some of the English precedents, are here rejected ; such as the following, used in indictments for capital offences, namely, " not having the fear of God before his ej'es, but being moved and seduced by the instigation of the devil," and the phrase, "in the peace of God then and there being." As it has been long settled that these allegations are not necessarj; to the validity of an indictment or any other crim- inal accusation, it is high time they were expunged from the records of judicial proceedings. There is a degree of irrev- erence, which nothing but the antiquity of the practice can excuse, in introducing the sacred name of the Deity upon these common occasions ; and as to the other phrase, it is never pronounced in the courts of this country without exciting a smile of ridicule in the audience. Pleading is a science which is governed as well by positive rules as by a known course of precedents.-' Every pleading should be characterized by three qualities; viz., certainty, precision, and brevity. The pleader should not affect an ex- cessive particularitj' on the one hand, which is not essential to his case, nor allow, on the other, a statement to be made so vague and general in its terms as to give to his adversary 1 Woolf V. City Boat Co. 7 C. 6 Mod. 256. " But a solitary prece- B. 104, per Maule, J. " So are all dent in a text-book is of but little the precedents." Commonwealth weight; you must have a mass of V. Gowen, 7 Mass. 378. Common- precedents before they can be used wealth V. Rumford Chemical Works, as an authority." Bramwell, L. J., 16 Gray, 235. Commonwealth v. in Regina v. Bradlaugh, 38 L. T. Clapp, 16 Gray, 237. Wells v. N. S. 122. " It would be giving too Commonwealth, 12 Gray, 330. Com- much force to mere precedents of monwealth v. Thompson, 2 Allen, forms, which often contain unneces- 509. Commonwealth i^. Bennett, sary and superfluous averments, to 7 Allen, 533. Commonwealth u. hold that a particular allegation is Sowle, 9 Gray, 305. Webster v. essential to the validity of an indict- Comraonwealth, 5 Cush. 386. ment, because it has sometimes, or Green v. Commonwealth, 12 Allen, even generally, been adopted by 165. " It is very fit to see the prece- text-writers, or by cautious plead- dents before we determine it." Per ers." Per Bigelow, C. J., in Com- Holt, C. J., in The Queen v. Saintiff, monwealth v. Hersey, 2 Allen, 179. PRECEDENTS OP COMPLAINTS AND INDICTMENTS. 853 information which is not sufficiently specific. Unnecessary matter should not be inserted, and the statement of it is both censurable and dangerous. It is the duty of a good pleader not to encumber the record with unnecessary averments, and thereby throw a greater burden of proof on the prosecutor than the law requires ; and still more is it his duty not to state facts which on the face of the indictment are repug- nant, inconsistent, or absurd.^ " The precision, indeed, of our pleading (whether in crim- inal or civil cases)," says a recent English writer,^ " has ever been remarkable ; and up to a recent period was carried to an extravagant length, tending to an excessive subtlety and overstrained observance of form, very prejudicial to the inter- ests of justice. This blemish on our jurisprudence (the re- sult, it must be observed, of an overweening attachment to a right principle) it has been the constant effort of modern legislation to efface ; though the steps of that improvement have been cautious and progressive." The St. 1864, ch. 250, § 2, enacts that " Any objection to a complaint, indictment, or other criminal process, for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash, assigning specifically the objections relied on before a judgment has been rendered by a trial justice or a police court, or a jury has been sworn in the Superior or Supreme Judicial Court." This statute requires objections for merely formal defects to be taken before submitting the whole case to a decision upon the merits in the court having original jurisdiction of the ease ; and it is within the constitutional authority of the legislature to prescribe the stage of the proceedings at which objections of this kind must be taken. Formal objections are not constitutional rights. The manifest purpose of the 1 Purcell Crim. PI. 48. Rex u. opinion of the judges in Rex v. Bur- Gilchrist, 2 Leach C. C. 660, per nel, 2 Leach C. C. 590. And the Buller, J. Pleadings, when put general rule is, that punctuation is upon record, are without any punc- no part of a statute. Gushing v. tuation, and courts in reading them Worrick, 9 Gray, 382. Eegina v. are bound to introduce such stops Oldham, 2 Denison C. C. 474, per as are most apposite and sensible. Maule, J. Per Ashhurst, J., in delivering the ^ 4 Stephen Comm. 370, 7th ed. 2.^5 354 CRIMINAL LAW. statute was to require formal objections to be taken before putting the Commonwealth to the trouble and expense of a trial on the facts, not to embarrass or take away the right of the defendant to obtain the opinion of the highest court upon any such objection. And if a motion to quash a complaint for this cause is not made before the court by which the com- plaint was heard in the first instance, it is not open to the defendant in the superior court. It is to be observed that the objections must be "specifically assigned." ^ The Gen. Sts. ch. 3, § 7, cl. 1, enacts that " Words and phrases shall be construed according to the common and ap- proved usage of the language ; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and un- derstood according to such peculiar and appropriate mean- ing." This provision of the statute may safely be followed in reference to pleadings and allegations in criminal and civil proceedings.^ Precedents for the offences classed under the general head of Maintenance, — Barratry, Champerty, and Maintenance, — have been inserted. These offences are rare, and all the learning relating to them is readily to be found in the old books. " It is not without hesitation that I have inserted these vague and practically obsolete definitions in this book," says a very able writer on the Criminal Law.^ " As, however, maintenance and champerty hold a place in all text-books, I have not thought it proper to omit all notice of them. A full account of the crimes themselves, of the vagueness of the manner in which they are defined, and of the reasons why they have so long since become obsolete, may be seen in the Fifth Report of the Criminal Law Commissioners, pp. 84-39." The Commissioners observe in conclusion : " Prosecutions for offences comprehended under the general head of mainten- 1 Commonwealth v. Walton, 11 ^ Commonwealth v. Doran, 14 Allen, 238, and cases cited ante, Gray, .39. Ante, p. 25. pp. 163, 164. Commonwealth «. In- * Stephen Digest of the Criminal toxicating Liquors, 105 Mass. 176. Law, p. 346 note viii. PRECEDENTS OF COMPLAINTS AND INDICTMENTS. 355 ance are so rare, that their very rarity has been a protection against the disapproval of judges, and those alterations which a frequent recurrence of doubt and vexation would probably have occasioned. . . . But although no cases have occurred where the doctrine of maintenance has been discussed in the courts, it is by no means true that this law has not been used as the means of great vexation. Instances of this have fallen within our professional observation in the case of prosecu- tions commenced although not persevered in." The Commis- sioners recommend that all these offences should be abolished. The definition of barratry, in particular, is so vague as to be quite absurd. Tliese offences, as sufficiently appears from the preambles of the various statutes relating to them, are relics of an age when courts of justice were liable to intimidation by the rich and powerful, and their dependants. As long as the verdict of a jury was, more or less, in the nature of a sworn report of local opinion, made by witnesses officially appointed to make such reports, intimidation must have been possible, and, in many cases, easy. Many statutes on this subject are still in force, and the law relating to it is to be found in 1 Hawk. P. C. 454, 8th ed. The exceptions to the general rule, that a man is not to assist another in a quarrel in which the maintainer has no interest, are numerous, e.g., a man may assist his neighbor from charity. ^ 1 Bragg V. Raymond, 11 Cush. 158, 162. Stephen Digest of the 274. Scott V. Harmon, 109 Mass. Criminal Law, p. 3i7. 237. Rindge v. Coleraine, 11 Gray, 356 CEIMINAL LAW. CHAPTER XVII. ABDUCTION. In following the principle of arranging the Precedents in an alphabetical order (which has been preferl-ed, as more easy of reference), the crime of Abduction is that which first presents itself for consideration. " The date of the statute of 4 & 5 Philip and Mary," say the Massachusetts Criminal Law Commissioners, " would render it a part of our common law, provided it should be deemed applicable to our laws, in- stitutions, and state of society ; and it seems to be obviously so applicable." ^ A conspiracy to procure the seduction and abduction of a woman is indictable at common law.^ The prisoner was convicted under 24 & 25 Vict. eh. 100, § 55,^ of unlawfully taking an unmarried girl under the age of sixteen out of the possession and against the will of her father. It was proved that the prisoner did take the girl, and that she was vmder sixteen ; but that he bonS, fide believed, and had reasonable ground for believing, that she was over sixteen. Held, Brett, J., dissenting, that the latter fact afforded no defence, and that the prisoner was rightly con- victed.* 1 Report of the Massachusetts years, out of the possession and Criminal Law Commissioners, Ab- against the will of her father or duction, § 4, note (a), and Supple- mother, or of any other person mentary Report, p. 12. having the lawful care or charge of 2 Regina v. Mears, Temple & her, shall be guilty of a misde- Mew C. C. 414; 2 Denison C. C. meanor " &o. 79; 4 Cox C. C. 423. Rex u. Dela- * Regina w. Prince, L. R. 2 C. C. val, 3 Burr. 1434. Rex v. Lord 154; 13 Cox C. C. 138. There is Grey, 1 East P. C. 460; 3 Howell not much authority on the subject, State Trials, 519. said Mr. Justice Blackburn, at p. 8 By 24 & 25 Vict. ch. 100, § 55, 172, but it is all in favor of this " Whosoever shall unlawfully take view. In Regina v. Robins, 1 C. & or cause to be taken any unmarried K. 456, Atcherly, Sergt. , then act- girl, being under the age of sixteen ing as judge of assize, so ruled, ap- ABDUCTION. 357 " It may be true to say," said Mr. Justice Brett,i " that the meaning of the word ' unlawfully ' is, that the prohibited acts be done without justification or excuse. I, of course, agree that, if there be a legal justification, there can be no crime ; but I come to the conclusion that a mistake of facts, on rea- sonable grounds, to the extent that, if the facts were as be- lieved, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enact- ment iu England. I agree with Lord Kenyon, that ' such is our law,' and with Cockburn, C. J., that ' such is the founda- tion of all criminal procedure.' " 1. Abduction of an Unmarried Woman under the age of Sixteen Years, for the Purpose of Effecting a Clandestine Marriage. — Gen. Sts. ch. 165, § 1. The jurors &e. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. in the County of S. feloniously, fraud- ulently ^ and deceitfully did entice and take away one E. F. from the house of one J. N., the father of the said E. F., parently (though the report leaves be found in the hooks. It was not it a little ambiguous), -with the argued for the prisoner. The dis- approval of Tindal, C. J. In Re- seuting opinion of Mr. Justice Brett gina V. Olifier, 10 Cox C. C. 402, is a masterly specimen of juridical Bramwell, B., so ruled at the Old reasoning. The principle of law, Bailey, apparently arriving at the that actus non facit reum nisi mens conclusion independently of Regina sit rea, is fully discussed. It is, V. Robins, 1 C. & K. 4.56. In Re- perhaps, difficult to reconcile the gina V. Mycockj 12 Cox C. C. 28, decision with this principle. See Willes, J., without having the case also Commonwealth v. Malloy, 119 of Regina v. Olifier, 1 C. & K. 456, Mass. 347; Watkins v. Major, 44 brought to his notice, acted on the L. J. M. C. 164. case of Regina v. Robins, 10 Cox ^ Regina v. Prince, L. R. 2 C. C. C. C. 402, saying that a person who 170. took a young woman from the cus- ^ 'y^iq meaning of the words tody of her father, must take the "possession" and "fraudulently" consequences if she proved under was considerably discussed in Re- age. And Quain, J., followed this gina v. Burrell, Leigh & Cave C. C. decision in Regina v. Booth, 12 Cox 354 ; but as the court differed on the C. C. 231. facts of the case, which were com- The case of Regina v. Prince is plicated, no definite conclusion was one of the best-considered cases to arrived at. 358 CRIMINAL LAW. without the consent of the said J. N., for the purpose then and there of effecting a clandestine marriage of the said E. F. with one J. S. without the consent of the said J. N., the said E. F. being then and there an unmarried female ^ under the age of sixteen years, to wit, of the age of fifteen years, and then and there living under the care and custody of the said J. N. ;2 against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 2. Abduction of an Unmarried 'Woman for the Purpose of Pros- titution. — Gen. Sts. ch. 165, § 2.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the County of S. feloniously, fraudulently and deceitfully, did entice and take away one E. F. from the house of one J. N., the father of the said E. F., to a house of ill-fame there situate, for the purpose of com- mon, indiscriminate and public prostitution at the house of ill-fame aforesaid, the said E. F. being then and there an un- married woman of a chaste life and conversation ; contrary to the form of the statute in such case made and provided. For precedents of counts for conspiracy to procure the ab- duction of females on St. 4 & 5 Philip and Mai;y, ch. 8, and on St. Hen. VII. ch. 2, see Eex v. Wakefield, 2 Lewin C. C. 1 j Train & Heard's Precedents of Indictments, pp. 3 et seq. 1 The allegation " being then was under the lawful care or charge and there an unmarried female," is of her father, mother, or some other sufficient. Rex v. Moor, 2 Lev. 179. person, he is not guilty of this Rex V. Boyall, 2 Burr. 832, 834. offence. Regina v. Hibbert, L. R. Ante, p. 28. C. C. 184. The ignorance of facts 2 The St. 24 & 25 Vict. ch. 100, was held to be a complete defence. § 55, enacts that " Whosoever shall ^ This statute does not apply to take an unmarried girl, under the the case of a man's enticing an age of sixteen, out of the possession unmarried woman of a chaste life and against the will of her father or and conversation, away, for the sole mother, or of any person having purpose of illicit sexual intercourse the lawful care and charge of her, with him alone; such an act not shall be guilty of a misdemeanor." being within the meaning of the If the defendant, at the time he term "prostitution," as used in the took the girl away, did not know statute. Commonwealth v. Cook, and had no reason to know that she 12 Met. 98. ABORTION. 359 CHAPTER XVIII. ABOKTION.l Where the language of a statute is general, " to procure the miscarriage of any woman," it is immaterial whether the woman was or was not pregnant at the time.^ It is therefore unnecessary to allege in an indictment that the woman was " then and there pregnant with child." If there is any doubt as to the drug administered, charge it, in different ways, in several counts, and add a count alleging it to be " a certain noxious thing the name of which is to the jurors aforesaid unknown." It is a principle in the law of criminal pleading, that, when a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a stage in the same offence, those which are actually done in the course and progress of its commission may be coupled in one count. On this principle, an indictment, on a statute which inhibits the use of " any -means whatever," which charges one of the defendants with using instruments, and the same defend- ant with other defendants, with administering drugs to procure a miscarriage, and that by both of said means the woman died, is not bad for duplicity ; and proof of the use of either one of the means alleged is sufficient to warrant a conviction.^ , A statute prohibits the use of " any means whatever" to procure miscarriage.* It also provides, that if the woman 1 In Storer & Heard on Crim- Goodchild, 2 C. & K. 293. Com- inal Abortion, Book II. pp. 151 monwealth v. Jacobs, 9 Allen, 275. et seq., the law relating to this ^ Commonwealth v. Brown, 14 crime is fully stated. Gray, 419. 2 Kegina v. Goodhall, 1 Denison * St. 1815, ch. 27. Gen. Sts. C. C. 187, same case as Regina v. ch. 169, § 9. 360 CRIMINAL LAW. shall die in consequence of the doing of any of the acts pro- hibited, which are done to procure and cause her miscar- riage, the punishment to be inflicted upon the offender shall, to a certain specified extent, be increased and aggra- vated. An indictment which avers that the defendant by- one or more of the means described in the statute, with the intent to procure her miscarriage, killed the woman, is only alleging in another form of words that she died in consequence thereof, and does not charge the crime of man- slaughter.^ In an indictment which charges the use of instruments, the administering of drugs, and the thrusting the liand into the womb after the coming forth of the child, and the death of the woman in consequence of all the means so used, the averment of violence by the hand of the defendant at that period constitutes no part of the description of the acts pro- hibited by the statute, and is therefore an immaterial and superfluous statement, and may well be rejected as surplus- age.^ The Gen. Sts. ch. 165, § 9, enacts that " Whoever, with intent to procure the miscarriage of any woman, unlawfully administers to her, or advises or prescribes for her, or causes to be taken by her, any poison, drug, medicine, or other noxious thing, or unlawfully uses any instrument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman dies in consequence thereof, be imprisoned in the state prison not exceeding twenty, nor less than five, jears, and if the woman does not die in consequence thereof, shall be punished by imprison- ment in the state prison not exceeding seven years, nor less than one year, and by fine not exceeding two thousand dollars." An indictment on St. 1845, ch. 127,^ need not allege that the child with which the woman was pregnant was alive, or that she was quick with child ; nor whether she died or not 1 Commonwealth v. Brown, 14 ' Gen. Sts. ch. 169, § 9, is the Gray, 419. same in its legal effect. " Commonwealth v. Brown, 14 Gray, 419. ABORTION. 361 in consequence of the operation. Nor is it necessary to prove that she was quick with child. The statute was in- tended to supply the supposed defects of the common law, and applies to all cases of pregnancy.^ The indictment in Commonwealth v. Wood,^ which was drawn on this statute, averred that the defendant, at a certain time and place, "Maliciously and without lawful justification, did force and thrust a certain metallic instrument, which the said Wood then and there had and held in his hand, into the womb and body of a certain woman by the name of Sarah Chaffee, the said Sarah being then and there pregnant with child, with the wicked and unlawful intent of the said Wood then and there thereby to cause and procure the said Sarah to mis- carry and prematurely to bring forth the said child with which she was then and there pregnant as aforesaid, and the said Sarah at said place and time, by means of the said forcing and thrusting of said instrument into the womb and body of the said Sarah in manner aforesaid, did bring forth said child, of which she was so pregnant, dead ; against the peace " &c. This count was held not to be open to objec- tion, for not alleging that the defendant used the instru- ment, nor who the woman was, nor what was her name, nor that she brought forth the child prematurely, nor brought it forth dead in consequence of what the defendant had done. In Commonwealth v. Sholes,^ an indictment which was drawn under Gen. Sts. ch. 165, § 9, alleged that the defend- ant, at a certain time and place, " unlawfully did use a certain instrument," in a manner which was particularly described, in and upon a certain woman who was pregnant, " with intent then and thereby to cause and procure the miscarriage of said woman." It was held that the indictment need not allege that the act was done " maliciously and without law- ful justification:" it is sufficient to allege, in the language 1 Commonwealth v. Wood, 11 461; Commonwealth v. Boynton, Gray, 86. 116 Mass. 343; Commonwealth v. 2 11 Gray, 86. See also as to Brown, 121 Mass. 70. the form of the indictment, Com- ^ 13 Allen, 554. monwealth v. Thompson, 108 Mass. 362 CRIMINAL LAW. of the statute, that it was "unlawfully" done, with intent to cause and procure the miscarriage. The two expressions are synonymous.^ The woman upon whom the operation is alleged to be performed cannot be indicted as a participator in the offence, and is not an accomplice.^ 1. IndTCtment for Administering a Certain Noxious Thing 'with Intent to Procure Miscarriage. — Gen. Sts. ch. 165, § 9. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, felo- niously and unlawfully did administer to a certain woman whose name is E. F., a large quantity, to wit, two ounces of a certain noxious thing, called savin, with intent thereby then and there to cause and procure the miscarriage of the said E. F. If the woman die in consequence, proceed as fol- lows : — ^ And the jurors aforesaid, upon their oath afore- said, do further present, that the said E. F., afterwards, to wit, on the first day of July in the year of our Lord at B. aforesaid in the county aforesaid, by means of the noxious thing aforesaid, so as aforesaid, in manner and form aforesaid administered by the said C. D., and taken and swallowed by the said'E. F., then and there died ; against the peace &c. 2. For Using Instruments with Intent to Procure Miscarriage. — Gen. Sts. ch. 165, § 9.* The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of 1 Commonwealth v. Thompson, see Commonwealth v. Wood, 11 108 Mass. 461, 463. Gray, 85; Commonwealth o. Brown, 2 Commonwealth v. AVood, 11 14 Gray, 419 ; Commonwealth v. Gray, 85. Commonwealth ». Boyn- Holmes, 103 Mass. 440 ; Common- ton, 116 Mass. 343. Common- wealth v. Thompson, 108 Mass. wealth y. Drake, 124 Mass. 21. 461; Commonwealth «. Snow, 116 8 But it is unnecessary. Com- Mass. 47; Commonwealth v. Boyn- monwealth v. Wood, 11 Gray, 86. ton, 116 Mass. 343; Commonwealth Commonwealth v. Thompson, 108 v. Brown, 121 Mass. 69; Common- Mass. 461. wealth v. Blair, 123 Mass. 242; Com- * For the law and the evidence, monwealth v. Drake, 124 Mass. 21. * ABORTION. 363 our Lord at B. aforesaid in the county aforesaid, felo- niously and unlawfully did use a certain instrument, the name of which instrument is to the jurors aforesaid un- known,! by then and there forcing and thrusting the instru- ment aforesaid into the body and womb of a certain woman whose name is E. F., with intent thereby then and there to cause and procure the miscarriage of the said E. F. ; against the peace of said Commonwealth and contrary to the form of the statute in such ease made and provided. 3. For Circulating an Advertisement relative to Procuring Mis- carriage. — Gen. Sts. oh. 165, § 10.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county afore- said, feloniously and knowingly did publish, distribute and circulate, and feloniously and knowingly did cause to be published, distributed and circulated, a certain advertise- ment, containing words and language giving and conveying notice, hint and reference to a certain place where a medi- cine, advice, direction, knowledge and information may be obtained, for the purpose of causing and procuring the mis- carriage of any woman pregnant with child, which adver- tisement, published, circulated and distributed as aforesaid, is of the tenor following, that is to say, here set out an exact copy of the advertisement ; against the peace of said Com- monwealth and contrary to the form of the statute in such case made and provided. It seems that an indictment which avers that one defend- ant advised, ordered and commanded two other defendants to administer ergot to a woman pregnant with child, and provided the ergot for the purpose, knowing that it was dangerous to life, which ergot she, according to his advice, order and command, swallowed ; and that he, " in so order- ^ Or, "a more particular de- section of the statute, it is advisable scription of -which instrument is to to insert different counts, charging the jurors aforesaid unknown." the offence in different ways. 2 In an indictment under this 364 CRIMINAL LAW. ing, advising and commanding the said ergot administered to her " to be by her swallowed, it being for her provided by him as aforesaid, "so ordered, advised, and commanded the same to be administered," with intent of him to cause her to miscarry, and in order that he might cause the destruction of the life of the child ; and that she by means of said ergot, so ordered, advised and commanded to be administered to her, and so provided by him for her to swallow and so swallowed, the same thereafter being ad- ministered to her by the other defendants with intent of them to cause her to miscarry, and in order that the three defendants might cause the destruction of the life of the child ; and that she " by means of said ergot so administered and so provided by " him for her to swallow, and so swal- lowed, the same having been administered to her by the other defendants in pursuance of his aforesaid order, com- mand, and advice, by him given to them, died, — charges him with administering the ergot as principal and not as accessorj'.i 4. Against the Principal for T7sing an Instrument to Procure Mis- carriage and against an Accessory before the Fact.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, maliciously and without lawful justi- fication, did use a certain instrument, the name of which instrument is to the jurors aforesaid unknown, which in- strument the said C. D. in his right hand then and there had and held, by then and there forcing and thrusting the instrument aforesaid into the body and womb of a certain woman whose name is E. P., with intent thereby then and there to cause and procure the miscarriage of the said E. F. And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H. of B. aforesaid in the county 1 Commonwealth v. Brown, 14 monwealth v. Thompson, 108 Mass. Gray, 419. 461. 2 As to the evidence, see Com- ABORTION. 365 aforesaid, before the said felony was committed in manner and form aforesaid, to wit, on the first day of June in the year of our Lord at B. aforesaid in the county afore- said, did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said C. D. tlie said felony in manner and form aforesaid to do and commit ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 366 CRIMINAL LAW. CHAPTER XIX. ACCESSORY. Persons participating in a crime are either Principals or Accessories. Principals are such either in the first or second degree. Principals in the first degree are those who are the imnaediate perpetrators of the act.^ But it is not necessary that he should be actually present when the offence is con- summated ; for if one lay poison purposely for another who takes it and is killed, he who laid the poison, though absent when it was taken, is a principal in the first degree. Neither is it necessary that the act should be perpetrated with his own hands ; for if an offence be committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal in the first degree. But if the instrument is aware of the consequences of his act, he is a principal in the first degree, and the employer, if he is absent when the fact is committed, is an accessory before the fact. If he is present, he is guilty as a principal in the second degree. If the agent concur in the act merely for the purpose of detecting and punishing the employer, he is considered as an innocent agent.^ Principals in the second degree are those who did not with their own hands commit the act, but were present, aiding and abetting it.^ Presence, in this sense, is either actual or con- 1 3 Greenl. Ev. § 40. In Com- Northampton, in 1816, from -which monwealth v. Bowen, 13 Mass. 856, the statement of the case in 13 it was held that where one coun- Mass. is taken. Commonwealth v. selled another to commit suicide, Mink, 123 Mass. 427. Common- who by reason of his advice, and in wealth v. Dennis, 105 Mass. 162, his presence, did so, the adviser 163. was guilty of murder. The grounds ^ Archb. Crim. PI. 7, 8, 18th ed. of the decision of that case appear Regina v. Butcher, Bell C. C. 6. more clearly in the full report of '3 Greenl. Ev. § 40- the trial in a pamphlet published at ACCESSOKT. 367 structive. It is not necessary that the party should be actu- ally present, an eye or ear witness to the transaction ; he is, in construction of law, present, aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should the occasion arise. Thus, if he be outside the house watching to prevent surprise, or the like, whilst his companions are in the house committing a felony, such constructive pres- ence is sufficient to make him a principal in the second degree.^ The principal in the second degree must be in a situ- ation in which he might render his actual assistance in some manner, to the commission of the offence ; and this, by agree- ment with the perpetrator. It is not enough that the princi- pal in the second degree is at a place appointed, where the perpetrator erroneously supposes he might render aid.^ The presence alone of the party is not sufficient to constitute him a principal in the second degree, unless he participates in the act.* An accessory, as distinguished from the principal offender, is neither the chief actor in the offence, nor present, aiding or abetting at its commission ; but is some way concerned therein, either before or after the fact committed.* An acces- sory before the fact is he who, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony. An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon.^ The law relating to principal and accessory is confined to cases of felony. There are no accessories in treason, because of the extreme gravity of the crime, and none in misdemeanor, because it is not worth while in misdemeanors to draw the distinction. Therefore in an indictment against several for a misdemeanor all are principals.^ 1 Archb. Crim. PI. 8, 18th ed. C. 276. Regina v. Greenwood, 2 2 Commonwealth v. Knapp, 9 Denison C. C. 453. Commonwealth Pick. 496. V. Drew, 3 Cush. 284. Common- « 3 Greenl. Ev. § 41. wealth v. Ray, 3 Gray, 448. Com- * 1 Gabbett Crim. Law, 28. monwealth v. Felton, 101 Mass. 5 Archb. Crim. PI. 14, 18th ed. 204. Commonwealth v. Wallace, ' Regina v. Moland, 2 Moody C. 108 Mass. 14. 368 CRIMINAL LAW. In manslaughter, it has been said, there can be no accesso- ries before the fact, for the offence is sudden and unpremed- itated ; and therefore, if A. be indicted for murder, and B. as accessory, if the jury find A. guilty of manslaughter, they must acquit B.^ Where, however, the prisoner procured and gave a woman poison in order that she might take it and so procure abortion, and she did take it in his absence, and died of its effects, it was held that he might be convicted as an accessor}'- before the fact to the crime of manslaughter.^ In the course of the argument in that case, Brain well, B., asked: " Suppose a man for mischief gives another a strong dose of medicine, not intending any further injury than to cause him to be sick and uncomfortable, and death ensues, would not that be manslaughter ? Suppose, then, that another had counselled him to do it, would not he who counselled be an accessory before the fact ? " Several persons were tried upon one indictment, some as principals in murder, others as accessories after the fact. The principals were convicted of manslaughter. Held, that those charged as accessories might rightly be convicted as accessories to manslaughter.^ Cockburn, C. J. : " The difficulty as to pleading is easily answered. One who harbors several felons, though the principals may have committed a joint crime, is guilty of a separate offence for each person whom he harbors. And, therefore, if he were tried with some of the principals and convicted as an accessory in harboring them, and after- wards were tried with the other principals and charged as an accessory in harboring them, he would be tried, not a second time for the same offence, but for a different offence. 1 1 Hawk. P. C. ch. 30, § 2. support an indictment for being Archb. Crira. PI. 12. In the course accessory before the fact to man- of the argument in Eegina v. Tay- slaughter, there must be an active lor, L. R. 2 C. C. 148, Mellor, J., proceeding on the part of the pris- asked (but the court did not decide oner." 44 L. J. M. C. 67; 13 Cox the question), " Can there be an C. C. 68. accessory before the fact to a man- ^ Regina ». Gaylor, Dearsly & slaughter of this kind, which is not Bell C. C. 288. in any way contemplated before- ^ Regina v. Richards, 2 Q. B. D. hand, but which occurs accideu- 311. tally?" Cockburn, C. J.: "To ACCESSOKT. 369 As to the main point, a man charged with murder may be convicted of manslaughter, because murder involves the lesser charge of felonious homicide ; so, for the same reason, one charged as accessory to murder may be convicted as accessory to manslaughter. The one thing foUows from the other." A person who procures a felony to be committed in a county of this Commonwealth, by means of letters written elsewhere, but received in that county and having effect there, can there be convicted as an accessory before the fact. Those acts are in intendment of law committed in that county, and may be so alleged in the indictment.^ In an indictment against an accessory hefore the fact, after describing the offence of the principal it is sufficient to aver that the said C. D. " did feloniously and maliciously incite, move, procure, aid, counsel, hire and command " the said A. B. to commit the said felony.^ In the ease of an accessory after the fact, it is sufficient, after stating the principal offence, to charge that the said C. D., well knowing the said A. B. to have done and committed the said felony, did afterwards " feloniously receive, comfort, harbor and maintain the said A. B." ^ In case of felonies created or punished by particu- lar statutes, accessories before the fact are frequently described by particular words, which ought to be used in framing indictments against them. Yet it has been held, that an indictment against one as an accessory before the fact to a murder, which alleged that he did " maliciously excite, move and procure," was sufficient, where the words of the statute are "maliciously command, hire, or counsel; " since the coun- selling of another is necessarily included in the exciting, mov- ing and procuring.* A party may be indicted as accessory to one of several principals or to all. And, if he be indicted 1 Gen. Sts. ch. 168, §§ 4, 5. When the words of the indictment Commonwealth ». Pettes, 114 Mass. are of the same legal import as the 307. Commonwealths. Smith, 11 words of the statute, the indictment AUen, 243. Commonwealth v. is sufficient. Regina v. Harvey, MacLoon, 101 Mass. 1. Common- L. R. 1 C. C. 284. Res v. Fuller, wealth V. White, 123 Mass. 430. 1 B. & P. 180. Rex b. Elsworth, 2 1 Stark. Crim. PI. 140. 2 East P. C. 986. Commonwealth 3 1 Deacon Crim. Law, 17. v. Thompson, 108 Mass. 461, 463. « Rex V. Grevil, 1 And. 195. 24 370 CRIMINAL LAW. as accessory to all, he may be convicted on such an indict- ment as accessory to one or some of them.^ 1. Against the Principal in the Second Degree.^ After stating the offence of the principal in the first degree, and immediately lefore the conclusion of the indictment, charge the principal in the second degree, as follows: And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. of B. in the county aforesaid, on the first day of June in the year aforesaid, at B. aforesaid in the county aforesaid, feloniously was present^ aiding, abetting and assisting the said C. D., the felony and [burglary] * aforesaid in manner and form aforesaid to do and commit ; contrary to the form of the statute in such case made and provided. In an indictment for murder this is inserted immediately before the concluding clause : And so the jurors aforesaid, upon their oath aforesaid, do say &c. ; and the concluding clause then charges both the principals in the first and second degree with the mur- der, as follows : And so the jurors aforesaid, upon their oath aforesaid, do say and present, that the said C. D. and E. F., the said J. N., in manner and form aforesaid, then and there feloniously, wilfully and of their malice aforethought, did kill and murder ; contrary to the form of the statute in such case made and provided. 1 Archb. Crim. PL 996, 18th ed. tune, 105 Mass. 592. Gen. Sts. ch. Regina v. Richards, 2 Q. B. D. 313. 168, § 3. 8 Gray, 491. 2 Allen, 165. 2 The pleader may charge the ' An inquisition for manslaugh- principal in the second degree either ter, which charges that the princi- as principal in the first degree, for pals in the second degree were felo- proof that he was present aiding niously present then and there and abetting will, in such a case, abetting, aiding, and assisting, is maintain an indictment charging bad, as the word "feloniously" him with having actually committed only extends to the word "pres- the offence; or, as being present ent." Rex v. Nicholas, 7 C. & P. aiding and abetting, as in the form 538, Littledale, J. above given, at his option. Regina * The only variation between in- V. Grisham, C. & Marsh. 187. Re- dictments against accessories to gina V. Downing, 1 Denison C. C. arson, robbery, rape &c., and the 52 ; 2 0. & K. 382. The Coal-Heav- precedent given in the text, is, that, ers' Case, 1 Leach 0. C. 64. Com- instead of the word "burglary," monwealth v. Knapp, 9 Pick. 496. the word "arson," "robbery," Commonwealth v. Chapmau, 11 "rape" &c., must be inserted, as Cush. 422. Commonwealth v. For- the case requires. ACCESSORY. 371 2. Against an Accessory before the Pact together with the Principal. — Gen. Sts. ch. 168, §§ 3, *?■ After charging the principal with the offence, and immedi- ately heiove the conclusion^ of the indictment, charge the acces- sory as follows : And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. of B. aforesaid in the county aforesaid, before the said felony and [burglary] was committed in manner and form aforesaid, to wit, on the first day of June in the year aforesaid, at B. aforesaid in the county aforesaid, did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said C. D. the said felony and [burglary] in manner and form aforesaid to do and commit ; contrary to the form of the statute in such case made and provided. 3. Against an Accessory before the Pact the Principal being Convicted. — Gen. Sts. ch. 168, § 4. The jurors &c. upon their oath present, that heretofore, to wit, at the Superior Court begun and holden at &c., so con- tinuing the caption of the indictment against the principal, it was presented upon the oath of &c.,^ that one J. S. of &c., continuing the indictment to the end, reciting it in the past, and not in the present, tense ; upon which said indictment the said J. S., at the term &c. aforesaid, was duly convicted of the felony and [burglary] aforesaid ; as by the record thereof more fully and at large appears.* * And the jurors aforesaid, upon their oath aforesaid, do further present, that J. N. of B. aforesaid in the county aforesaid, before the said felony and [burglary] was committed in form aforesaid, to wit, on the ^ Since the passage of the U. S. the federal courts. Commonwealth, St. 1864, ch. 106, making the em- ». Felton, 101 Mass. 204. hezzlement of the funds of a na- " Commonwealth v. Glover, 111 tional bank by one of its oflScers a Mass. 395, 400. misdemeanor indictable in the fed- ^ In setting out the indictment eral courts, an accessory before the against the principal, it is not suffl- fact to such embezzlement by an cient to allege that, "at the ses- officer of a national bank cannot be sions of jail delivery &c., it was indicted for a felony under the Gen. presented" &c., without saying by Sts. ch. 161, § 39, and ch. 168, § 4, in whom and on oath &c. Regina v. the courts of the Commonwealth, Butterfield, 2 M. &Kob. 522; 1 Cox even though he is not indictable in C. C. 39. 372 CRIMINAL LAW. first day of May in the year aforesaid, at B. aforesaid in the county aforesaid, did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command the said J. S. the said felony and [burglary] in manner and form aforesaid to do and commit ; against the peace &c. 4. Against an Accessory before the Pact to Murder. — Gen. Sts. 4.' ch. 168, \ After charging the principal, and immediately before the con- clusion, charge the accessory as follows : And the jurors afore- ' It was decided in Common- ■wealth V. Knapp, 9 Pick. 496, a.d. 1830, that the St. 1784, ch. 65, § 1, providing that " If any person shall aid, assist, abet, counsel, hire, com- mand, or procure any person to commit the crime of murder, he shall be considered as an accessory before the fact," refers to a person not present aiding &c., and that the distinction between principals in the second degree and accessories was not abolished. In Choate's Eulogy on Webster (Addresses and Orations, pp. 264- 267, ed. 1878) is the f oUowmg brill- iant description of the trial of the Knapps, and of the evidence which was not sufficient to prove accesso- rial guilt, and which must thei'ef ore, in order to procure a conviction, be presented in a form sufficient to con- vict the prisoner as a principal in the second degree: " His efforts in trials by jury compose a more tra- ditional and evanescent part of his professional reputation than his ar- guments on questions of law ; but I almost think they were his mightiest professional displays, or displays of any kind, after all. " One such I stood in a relation to witness with a comparatively easy curiosity, and yet with intimate and professional knowledge of all the embarrassments of the case. It was the trial of John Francis Enapp, charged with being present, aid- ing, and abetting in the murder of Joseph White, in which Mr. Web- ster conducted the prosecution for the Commonwealth, — in the same year with his reply to Mr. Hayne, in the Senate and a few months later, — and when I bring to mind the incidents of that trial ; the ne- cessity of proving that the prisoner was near enough to the chamber in which the murder was being com- mitted by another hand to aid in the act, and was there with the in- tention to do so, and thus in point of law did aid in it — because mere accessorial guilt was not enough to convict him ; the difficulty of prov- ing this — because the nearest point to which the evidence could trace him was still so distant as to war- rant a pretty formidable doubt whether mere curiosity had not carried him thither ; and whether he could in any useful or even con- ceivable manner have cooperated with the actual murderer, if he had intended to do so; and because the only mode of rendering it probable that he was there with a purpose of guilt was by showing that he was one of the parties to a conspiracy of murder, whose very existence, actors, and objects, had to be made out by the collation of the widest possible range of circumstances — some of them pretty loose ; and ACCESSORY. 373 said, upon their oath aforesaid, do further present, that E. F. of B. in the County of S., before the said felony and murder was committed in manner and form aforesaid, to wit, on the first day of May in the year of our Lord at B. in the County of S., was accessory thereto before the fact, and then and there did feloniously, wilfully and of his malice aforethought counsel, hire and procure the said C. D. the even if he was a conspirator, it did not quite necessarily follow that any active participation was assigned to him for his part, any more than to his brother, who, confessedly took no such part — the great number of witnesses to be examined and cross- examined, a duty devolving wholly on him ; the quick and sound judg- ment demanded and supplied to de- termine what to use and what to reject of a mass of rather unman- ageable materials; the points in the law of evidence to be argued — in the course of which he made an appeal to the Bench on the complete impunity which the rejection of the prisoner's confession would give to the murder, in a style of dignity and energy, I should rather say of grandeur, which I never heard him equal before or after ; the high abil- ity and fidelity with which every part of the defence was conducted ; and the great final summing up to which he brought, and in which he needed, the utmost exertion of every faculty he possessed to per- suade the jury that the obligation of that duty the sense of which, he said, ' pursued us ever : it is omni- present like the Deity : if we take the wings of the morning and dwell in the uttermost parts of the sea, duty performed or duty violated is still with us for our happiness or misery ' — to persuade them that this obligation demanded that on his proofs they should convict the prisoner : to which he brought first the profound belief of his guilt, without which he could not have prosecuted him ; then skill consum- mate in inspiring them with a desire or a willingness to be instrumental in detecting that guilt ; and to lean on him in the effort to detect it; then every resource of professional abiUty to break the force of the propositions of the defence, and to establish the truth of his own : in- ferring a conspiracy to which the prisoner was a party, from circum- stances acutely ridiculed by the able counsel opposing him as ' Stuff ' — but woven by him into strong and uniform tissue; and then bridging over from the conspiracy to the not very necessary inference that the particular conspirator on trial was at his post, in execution of it, to aid and abet — the picture of the murder with which he begun — not for rhetorical display, but to inspire solemnity and horror, and a desire to detect and punish for justice and for security; the sublime exhorta- tion to duty with which he closed — resting on the universality, and authoritativeness, and eternity of its obligation — which left in every juror's mind the impression that it was the duty of convicting in this particular case the sense of which would be with him in the hour of death, and in the judgment, and for ever — with these recollections of that trial I cannot help thinking it a more diflfioult and higher effort of mind than that more famous ' Ora- tion for the Crown.' " 374 CRIMINAL LAW. felony and murder aforesaid in manner and form aforesaid to do and commit ; contrary to the form of the statute in such case made and provided. 5. Against an Accessory before the Fact as for a Substantive Felony. — Gen. Sts. oh. 168, § 4.^ The jurors for &c. upon their oath present, that one C. D. of B. in the County of S. (or, that some person whose name is to the jurors aforesaid unknown), on the first day of June in the year of our Lord &c., stating the felony, exclusive of the conclusion, " against the peace " &c. And the jurors afore- said, upon their oath aforesaid, do further present, that E. F. of B. aforesaid in the county aforesaid, before the said felony and [larceny] was committed in form aforesaid, to wit, on the first day of May in the year aforesaid, at B. aforesaid in the county aforesaid, did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said C. D. (or, the said person whose name is to the jurors aforesaid un- known) the said felony and [larceny] in manner and form aforesaid to do and commit ; contrary to the form of the stat- ute in such case made and provided. 6. Against an Accessory after the Fact. — Gen. Sts. ch. 168, §§ 6, 7.2 Draw ike indictment against the principal^ according to the precedents, as the case requires, and then proceed as follows : And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F. of B. aforesaid in the county aforesaid, afterwards, to wit, on the first day of July in the year of our Lord at B. aforesaid in the county aforesaid, 1 An indictment is properly ^ An indictment as for a sub- framed as for a substantive felony stantive felony may be in the which states in the first place, that same terms. Regina v. Wallace, the principal committed the felony, 2 Moody C. C. 200; C. & Marsh, and then that the defendant incited, 200. moved &c. him to commit it; al- ^ On an indictment charging a though the principal has not been man as a principal felon only, he tried, and does not appear to be cannot be convicted of being an amenable to justice. Regina v. accessory after the fact. Regina v. Wallace, 2 Moody C. C. 200; C. & Fallon, Leigh & Cave C. C. 217; Marsh. 200. 32 L. J. M. C. 66. ACCESSORY. 375 then and there well knowing the said C. D. to have done and committed the felony and [burglary] in manner and form aforesaid, the said C. D. then and there did knowingly har- bor, conceal, maintain and assist, with intent that the said C. D. should then and there avoid and escape from detection, arrest, trial and punishment ; the said E. F. then and there not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consan- guinity or aiEnity to the said CD.; whereby and by force of the statute in such case made and provided, the said E. F. is deemed an accessory after the fact to the felony and [burg- lary] aforesaid. And so the jurors aforesaid, upon their oath aforesaid, do say and present, that the said E. F. of B. afore- said in the county aforesaid, on the said first day of July in the year aforesaid, was an accessory after the fact, in manner and form aforesaid, to the felony and [burglary] aforesaid ; against the peace of the Commonwealth and contrary to the form of the statute in such case made and provided. 7. For Soliciting a Person to Commit an Offence.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, falsely and unlawfully did solicit and incite one J. W., a servant of one J. N., to embezzle, steal, take and carry away a large quantity, to wit, one hundred pounds, of cotton twist, of the value of five dollars each pound, of the goods and chattels of his master, the said J. N. ; against the peace of the Common- wealth and contrary to the form of the statute in such case made and provided. 1 The soliciting and inciting a which, if done, would amount to a person to commit a felony, where felony, and render the defendant, no felony is in fact committed by as an accessory before the fact, also the person so solicited, is a misde- guilty of felony, it is unnecessary meanor. Eegina v. Gregory, L. K. to negative the doing of the act; for 1 C. C. 77; 36 L. J. M. C. 60. it cannot be intended that a felony Where a defendant is indicted for a has been committed where none is misdemeanor committed by the charged. 1 Stark. Crim. PI. 148, soliciting another to do an act 149. Rex v. Higgins, 2 East, 5. 376 CRIMINAL LAW. CHAPTER XX. ADMINISTERING CHLOEOFOEM ETC., WITH INTENT TO COMMIT INDICTABLE OFFENCES.^ The following precedent is drawn on the Sts. 24 & 25 Vict, ch. lOOj § 22, which enacts that "Whosoever shall unlawfully apply or administer to, or cause to be taken by, or attempt to apply or administer to or cause to be taken by, any person, any chloroform, laudanum, or other stupefying or overpower- ing drug, matter, or thing, with intent in any of such cases thereby to enable himself or any other person to commit, or with intent in any of such cases thereby to assist any other person in committing, any indictable offence, shall be guilty of felony, and being convicted " &c. Although this statute is not in force in this country, still it has been deemed advis- able to insert a precedent, from which an indictment imder any similar statute can be easily framed. For Administering Chloroform with Intent to Commit a Larceny from the Person. The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloni- ously and unlawfully did apply and administer to one E. F. a large quantity of chloroform,^ to wit, two ounces of chloro- form, with intent thereby then and there to enable him the said C. D. then and there feloniously to steal, take and carry away the moneys, goods, and chattels of the said E. F., from the person of the said E. F. ; contrary to the form &c. 1 See Regina v. Camplin, 1 Den- monwealth v. Burke, 105 Mass. 378, ison C. C. 89, and the Addenda 379. explaining the grounds of that de- ^ If it is not certain that it was cision. Lord Campbell's Acts, ed. chloroform that was administered, Greaves, 39 note. This case is also add a count or counts stating it to reported in 1 C. & K. 746, and in be " a certain stupefying and over- 1 Cox C. C. 220. See also Regina powering drug and matter, the name V. Page, 2 Cox C. C. 133 ; Com- of which is to the jurors aforesaid unknown." ADULTERY. 377 CHAPTER XXI. ADULTERY. It has been very recently declared in the House of Lords, that by the law of England adultery, though " a grievous sin," is not a crime. ^ The Gen. Sts. oh. 165, § 3, enacts that " Whoever commits adultery shall be punished by imprison- ment in the state prison not exceeding three years, or in the jail not exceeding two years ; or by fine not exceeding five hundred dollars ; and, when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery." ^ In an indictment the words, " carnal knowledge " of a woman by a man, imply sexual bodily connection.^ If there is an allegation in an indictment for rape that the woman of whom it is alleged that the man had carnal knowl- edge was not, at the time laid in the indictment, his wife, a conviction for fornication, or adultery, may be sustained.* In Commonwealth v. Horton,^ it was held, upon the trial of an indictment for adultery with a person named, that evi- dence of subsequent cohabitation in another county was not admissible. It is put upon the familiar principle in criminal law, that evidence tending to prove a similar but distinct offence, for the purpose of raising an inference or presump- tion that the accused committed the particular act with which he is charged, is not admissible. This case was followed by Commonwealth v. Thrasher,^ where it is broadly laid down 1 Mordauntu.MoncriefEe, 2 App. * Commonwealth v. Murphy, 2 Cas. 375, A.D. 1874. Allen, 163. Moore v. Common- ^ Commonwealth v. Call, 21 Pick, wealth, 6 Met. 243. Commonwealth 512. Commonwealth v. Elwell, 2 v. Squires, 97 Mass. 59. Gen. Sts. Met. 190. ch. 172, §/16. ' Commonwealth v. Squires, 97 , ^ 2 Gray, 354. Mass. 59. « 11 Gray, 450. 378 CRIMINAL LAW. that acts of improper familiarity, amounting to adultery be- tween the same parties, before the time relied on as the time of the commission of the adultery charged, is admissible, either in corroboration of the witnesses for the Commonwealth, or to show the disposition of the parties to commit the crime. Both these cases follow and approve Commonwealth v. Mer- riam,^ where it was held that other instances of improper familiarity between the defendant and the same woman might be given in evidence to corroborate the witness ; but both reject such evidence where it tends to show a substantial act of adultery on a different occasion. In the case of Thayer v. Thayer, it was said that, in the opinion of the court, there is in each of the two cases first named " a plain misapplica- tion of the rules of evidence to the facts presented." In Commonwealth v. Nichols,^ it was held that evidence is ad- missible of other acts of adultery committed by the same parties, near the time charged, though in another county. Upon every trial for adultery, the case for the government is not made out without proof of the marriage. When the fact of marriage is required or offered to be proved before any court, evidence of the admission of such fact by the party against whom the process is instituted, or of general repute, or of cohabitation as married persons, or any other circum- stantial or presumptive evidence from which the fact may be inferred, shall be competent.^ The admission of the fact by the party against whom the process is instituted, general repute, cohabitation, or any other circumstantial or presumptive evidence from which the fact may be inferred, is made competent by the statute. But the admission of another person, though charged with a crime in the same indictment, is not made competent ; and it would be contrary to the elementary principles of justice to allow it. 1 14 Pick. 518. Commonwealth « Gen. Sts. oh. 106, § 22. Com- V. Choate, 105 Mass. 458. Com- monwealth v. Morris, 1 Gush. 391. monwealth v. Durfee, 105 Mass. Commonwealth v. Holt, 121 Mass. 146. Commonwealth v. Lahey, 14 61. Commonwealth v. Johnson, Gray, 91. For a criticism on the 10 Allen, 196. Loring v. Thorn- case of Commonwealth v. Merriam, dike, 5 Allen, 268. Commonwealth see 2 Lead. Crim. Cas. 33. v. Hurley, 14 Gray, 411. Common- 2 114 Mass. 285. wealth v. Belgard, 5 Gray, 95. ADULTERY. 379 The circumstantial or presumptive evidence referred to must be evidence accompanying or preceding the fact to be proved, and not a mere subsequent declaration or admission of an- other than the defendant, which is only hearsay. The fact that the man and woman are charged with a joint offence, and in the same indictment, does not give to either the power to affect the other by a confession of any material part of the charge.^ 1. Adultery by a Married Man -with an tJnmarried Woman. Gen. Sts. ch. 165, § 3. The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. in the County of S.,^ did commit the crime of adultery with one J. N.,* by then and there having carnal knowledge of the body of the said J. N., the said C. D. being then and there a married man, and then and there having a lawful wife alive, other than the said J. N., and the said C. D. and the said J. N. not being then and there lawfully married to each other ; ^ against the peace of said Common- 1 Commonwealth v. Thompson, lawful wife alive other than said 99 Mass. 444. woman whose name to said jurors 2 A special verdict finding the is unknown as aforesaid," is a suffi- defendant guilty of the offence, but cient description of the person with not finding him guilty in the county whom the ofience is alleged to have where it is alleged to have been been committed. Commonwealth committed, cannot be supported, v. Tompson, 2 Cnsh. 551. And such a verdict will not operate * In Moore v. Commonwealth, 6 as an acquittal; but the defendant Met. 243, the indictment alleged must be again put on his trial, that the said Moore ' ' did commit Commonwealth v. Call, 21 Pick, the crime of adultery with one Mary 509. Stuart, by then and there having * As adultery may be committed carnal knowledge of the body of the by a married man with a single said Stuart, she the said Stuart then woman (Commonwealth v. Call, and there being a married woman, 21 Pick. 509), it is not necessary to and having a husband alive," &c. state the name of the woman, with It was held that these allegations any view to showing that she was a did not show with certainty that married woman. And an allega- Mary Stuart was not the wife of tion that the offence was committed Moore. In Commonwealth v. Rear- " with a certain woman whose name don, 6 Cush. 78, the indictment to said jurors is unknown," &c., alleged that the defendant "did " the defendant being then and commit the crime of adultery with there a married man and having a one Catherine Ann Smith, then the 380 CRIMINAL LAW. wealth and contrary to the form of the statute in such case made and provided. 2. Against Both Parties Jointly. — Gen. Sts. oh. 165, § 3.^ That C. D. of B. in the County of S., and J. S., the wife of J. N., of B. aforesaid in the county aforesaid, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did commit the crime of adultery, by then and there having carnal knowledge of the bodies of each other, the said J. S. being then and there a married woman, and then and there having a lawful husband alive other than the said C. D. ; and the said C. D. being then and there' a married man and then and there having a lawful wife alive other than the said J. S. ; and the said C. D. and the said J. S. not being then and there lawfully married'to each other ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 3. Adultery by an Unmarried Man vrith a Married Woman. Gen. Sts. oh. 165, § 3? That C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did commit the crime of adultery with one lawful wife of Peter J. Smith, by ' Parties to the crime may be then and there having carnal knowl- jointly indicted. Commonwealth edge of the body of said Catherine v. Elwell, 2 Met. 190. Ann Smith." It was held that it ^ Under this section, an unmar- was sufficiently alleged that Cathe- ried man having sexual intercourse rine Ann Smith was not the wife with a married woman is guilty of of the defendant. In this case, adultery, although he did not know Dewey, J., said: "The case of that she was married, and therefore Moore v. Commonwealth, 6 Met. such knowledge need not be averred, 243, does not conflict with this view nor proved at the trial. Common- of the case. In that case, there wealth v. Elwell, 2 Met. 190. No was no allegation that the female principle is better established than was the ynte of another person, and that ignorance of the law is no the only allegation, from which such excuse for its violation. Common- inference could be supposed to be au- wealth ». Mash, 7 Met. 472. Com- thorized, was that setting forth the monwealth v. Boynton, 2 Allen, name of the female, and giving her 160. White v. White, 105 Mass. a different name from that borne by 326, 327. Commonwealth v. Went- the party indicted for the adultery." worth, 118 Mass. 441. ADULTERY. 381 E. F., by then and there having carnal knowledge of the body of the said E. F., the said C. D. being then and there an unmarried man,i and the said E. F. being then and there a married woman, and then and there having a lawful husband alive, other than the said C. D., and the said C. D. and the said E. F. not being then and there lawfully married to each other ; whereby and by force of the statute in such case made and provided, the said C. D. is deemed guilty of adul- tery. And so the jurors aforesaid, upon their oath aforesaid, do present and say, that the said C. D., on the said first day of June in the year aforesaid, at B. aforesaid in the county aforesaid, in manner and form aforesaid, did commit the crime of adultery; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. . 1 If the offence is charged to that the defendant was either mar- have been committed with a married riedi or unmarried. Commonwealth woman, not the wife of the defend- v. Reardon, 6 Cush. 78. ant, it is not necessary to allege 382 CRIMINAL LAW. CHAPTER XXII. AFPBAT. An indictment for an affray which does not aver that the affray took place in a public street or highway is fatally defec- tive, on error.' Fighting, if in a private place, is only an assault and battery .^ Any affray or assault is a disturbance of the peace. ^ Indictment for an Affray. The jurors &c. upon their oath present, that C. D. of B. in the County of S., and E. F. late of B. aforesaid in the county aforesaid, on the first day of June in the year of our Lord with force and arms, at B. aforesaid in the county aforesaid, being then and there unlawfully assembled together and arrayed in a warlike manner, then and there, in a certain public street and highway there situate, unlawfully and to the great terror and disturbance of divers citizens of said Commonwealth then and there being, did make an affray by then and there fighting with each other in the pub- lic street and highway aforesaid ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 1 Regina v. O'Neil, Irish Rep. of doubt that, in the latter case, as 6 Com. Law, 1. Whiteside, C. J.: in the former, what constitutes the "It is contended for the prisoners ofience must be stated in the appro- that this count departs from the priate language of the law. It ancient precedent and form, and so appears to us, considering the pro- it does. It is in that sense an ex- priety of pursuing the usual and reg- periment which is always to be dep- ular course of pleading, and depre- recated in the administration of the eating all novelty in such matters, criminal law. It is said that, al- that a material averment has been though precision of averment may carelessly omitted." be necessary in indictments for fel- " 1 Hawk. P. C. ch. 28. Affrays, ony, it is not equally essential that § 1, p. 487. Regina v. Hunt, 1 Cox the peculiar phraseology should be C. C, Alderson, B. followed in an indictment for mis- ' Commonwealth v. Tobin, 108 demeanor. But there is no manner Mass. 426. ARSON AND OTHER BURNING. 383 CHAPTER XXIII. ARSON AND OTHER BURNING. To constitute the crime of arson at common law, the set- ting fire to the house must be unlawful and malicious ; yet it is.not disputed that a person firing a shot with a felonious intent, and thereby unintentionally burning a house, is guilty of feloniously burning it ; and certainly it seems difficult, on logical grounds, to see why the words " unlawful and mali- cious," when used to describe the essential attributes of the burning of a house as an offence at common law, are to receive a different interpretation from the same words when used in the statute, the object of which is simply to place the burning of a house and the burning of a ship in the same legal category. Perhaps the true solution of the difficulty is that the doctrine of constructive malice or intention only applies to cases where the mischief with which the accused stands charged would be, if maliciously committed, an offence at common law.^ In an indictment for arson at common law, it is necessary to lay the offence to have been done wilfully {or, voluntarily) and maliciously, as well as feloniously.^ And though the clause of the 9 Geo. I. ch. 22, which related to the setting fire to any house, barn, out-house &c., had not the words " wil- fully and maliciously," or any words equivalent to them, or either of them, yet they were considered to be necessary to an indictment under that statute, for malice is of the essence of 1 Kegina v. Pembliton, L. B,. 2 held in his hand came into contact C. C. 119. Regina v. Welch, 1 Q. with the inflammable liquor, whence B. D. 23. Regina o. Faulkner, a conflagration ensued which de- Irish Rep. 11 C. L. 8, 13. In this stroyed the ship. Held, that he was case, a sailor on board ship entered not rightly convicted of arson, the spirit-room and stole rum, and, ^ 1 Gabbett Crim. Law, 78. 2 while doing so, a lighted match East P. C. 1033. 384 CRIMINAL LAW. the offence.^ But it seems that the allegation that the act was done " wilfully " is unnecessary, as the term " mali- ciously" sufficiently imports that the offence was committed wilfully.^ It is also necessary, at common law, to state an actual burning ; ^ and though the St. 9 Geo. I. ch. 22, used the words " set fire to," it was common, in prosecutions under that statute, to state both, though in effect meaning the same thing.* But, in a prosecution under this statute for setting fire to a haystack, it was moved to arrest the judgment on the ground that it was not averred in the indictment that by reason of setting on fire the stack of hay was burnt and con- sumed. And, the point being reserved, the judges were of opinion that the conviction was right ; that it was not neces- sary the stack should be burned, the words of "the act being " set fire to." » It is sufficient, at common law, to charge in the indictment 1 Kex V. Minton, 2 East P. C. 1021, 1033. An indictment on St. 7 & 8 Geo. IV. ch. 30, §§ 2, 17, which charged the defendant with having " feloniously, voluntarily, and mali- ciously " set fire to a harn, was holden bad, because the words of the statute are ' ' unlawfully and maliciously." Kex v. Turner, 1 Moody C. C. 239 ; 4 C. & P. 245; 1 Lewin C. C. 9. See also Kex v. Ryan, 2 Moody C. C. 15; 7 C. & P. 854. ^ Chapman ». Commonwealth, 5 Whart. 427. Kex v. Cox, 1 Leach C. C. 71, which was an in- dictment for perjury at common law. But an indictment on that part of the Black Act which made it felony ^^ wilfully and maliciously " to shoot at any person in a dweU- ing-house or other place, was holden bad, because it charged the offence to have been done " unlawfully and maliciously," omitting the word "wilfully." Some of the judges thought that "maliciously" in- cluded " wilfully; " but the greater number held, that as "wilfully" and " maliciously " were both men- tioned in the statute as descriptive of the ofience, both must be stated in the indictment. Rex u. Davis, 1 Leach C. C. 493. See Regina ti. Bent, 1 Denison C. C. 157 ; 2 C. & K. 179. ° Whether a building has been so affected by Are as to constitute a burning within the legal meaning of the term, is a question of fact, to be determined by the jury upon the evidence. Commonwealth v. Bet- ton, 5 Cush. 427. The least burn- ing of the house is sufficient to con- stitute the crime. Commonwealth V. Van Shaack, 16 Mass. 105. Commonwealth ». Tucker, 110 Mass. 403. 1 Gabbett Crim. Law, 75. < 2 Stark. Crim. PI. 442 note (m). 2 East P. C. 1033. 1 Gab- bett Crim. Law, 79. 5 Rex V. Salmon, Russell & Ryan C. C. 26. ARSON AND OTHER BURNING. 385 the burning of a " house," without describing it to be a dwell- ing-house;^ but this is not so now, in indictments under the statutes of this Commonwealth which use the term " dwelling-house." ^ Where out-houses are the subject of the indictment, it appears to be sufficient to describe them as out- houses generally, without stating of what particular denom- ination they are.* In designating the person against whom the offence is laid to have been committed, great care must be taken, as any variance in this respect will be fatal.* Where there is a doubt in which of several persons the property vests, it should be differently described in different counts, in order to obviate any objection on the score of variance. An indictment which avers that the defendant did burn a barn "belongiag to one J. S." sufficiently alleges the owner- ship of the property, although not in the more usual and more technical language. That would be for the burning of a certain barn " of one C. G.," or " being the property of C. G." But the books of precedents also use the form " belonging to one C. G.," as in an indictment for malicious mischief to real property in 3 Chit. Crim. Law, 1116 ; and in an indictment for maliciously burning a meeting-house, and one for trespass upon real estate, in Davis Precedents, 51, 257. One of the approved defini- tions of the word " belong" is " to be the property of," and " belonging " is "being the property of" Webster Dictionary.^ It may here be stated, that where one intending only to burn the house of A, thereby burns the house of B, the indictment may directly charge him with the wilful and malicious burning of B's house.^ ' Eegina v. Connor, 2 Cox C. C. * Commonwealth r. Wade, 17 65, 66. 1 Gabbett Crim. Law, 79. Pick. 395. Rex v. Glandfield, 2 2 East P. C. 1033. East P. C. 1034. Rex v. Rickman, 2 These statutes refer to the 2 East P. C. 1034. Rex v. Ball, 1 dwelling-house strictly, and no Moody C. C. 30. 1 Gabbett Crim. other building can be the subject Law, 79, 80. 3 Greenl. Ev. § 54. of burglary or arson. Common- Gen. Sts. ch. 172, § 12. Ante, wealth V. Buzzell, 16 Pick. 153. pp. 34, 35. Commonwealth v. Barney, 10 Cush. ^ Commonwealth v. Hamilton, 478, 479. 15 Gray, 480, 482. Ante, p. 87. 8 1 Gabbett Crim. Law, 75. 3 « 1 Gabbett Crim. Law, 78. 2 Greenl. Ev. § 52. East P. C. 1034. 3 Greenl. Ev. § 56. 25 CRIMINAL LAW. 1. Indictment for Arson at Common La^v.' The jurors &c. upon their oath present, that C. D. of B. in the county of S., laborer, on the first day of June in the year of our Lord ^ with force and arms, at B. aforesaid in the county aforesaid, feloniously, wilfully, and maliciously did set fire to and burn a certain dwelling-house of one J. N., there situate ; against the peace &c. The Gen. Sts. ch. 161, § 1, enacts that " Whoever wilfully and maliciously burns the dwelling-house of another, or any building adjoining such dwelling-house, or wilfully and ma- liciously sets fire to any building by the burning whereof such dwelling-house is burnt, shall be punished by imprison- ment in the state prison for life," " or for any term of years." St. 1871, ch. 76. 2. Indictment for Burning a DTiT-elling-house. — Gen. Sts. ch. 161, § 1. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the dwelling-house of one E. F. there situate,^ feloniously, wil- fully and maliciously did burn ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 3. For Setting Fire to a Building whereby a D-welling-house -was Burnt. — Gen. Sts. ch. 161, § 1. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain building, to wit, a barn, of one E. F.* there situate, feloniously, wilfully and maliciously did 1 Matthews Crim. Law, 436. » Not necessary. Commonwealth 2 If the offence is charged to v. Lamb, 1 Gray, 493. have been done in the niyht-^vae, * In the case of Commonwealth this allegation need not be proved, v. Wade, 17 Pick. 895, which was if the indictment is al; common law ; an indictment under St. 1804, ch. for it is not material, unless made 131, it was queried whether it was so by statute. Rex v. Minton, 2 necessary to allege who was the East P. C. 1021. owner or occupant of such building, AESON AND OTHER BURNING. 387 set fire to, and by the burning of said building the dwelling- house of the said E. F. there situate was then and there burnt; against the' peace of said Commonwealth and con- trary to the form of the statute in such case made and provided. 4. For Burning a Building adjoining a D-grelling-house -whereby a Dwelling-house vras Burnt. — Gen. Sts. ch. 161, § 1. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the countj'' aforesaid, a certain building, to wit, a wood-house, of one E. F. adjoining to the dwelling-house of the said E. F. there situate, feloniously, wilfully and maliciously did set fire to ; and by the burning of said building the said dwelling- house of the said E. F. was then and there burnt ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 5. For Burning in the Night-time a Stable -within the Curtilage of a Dwelling-house. — Gen. Sts. ch. 161, § 2} That C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of said day, at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously did burn a certain stable of one E. F. then and there being within the curtilage of the or -whether it was the building of held to include the out-houses, another. But if the allegation is though not under the same roof or made, being descriptive of the of- joining contiguous to the dwelling- fence, it must be strictly proved, house, provided they were parcel Two indictments charging the de- thereof. And any out-house within fendant with setting fire to a bam, the curtilage, or same common fence, whereby a dwelling-house was as the mansion itself, was consid- bumed in the night, one alleging ered to be parcel of the mansion, it to be the barn of A and B", the upon the ground that the capital other alleging it to be the bam of house protected and privileged all A and C, were held not to be for its branches and appurtenants, if the same offence. Commonwealth within the curtilage or homestall. V. Wade, 17 Pick. 395. Rex v. Garland, 1 Leach C. C. 144. 1 At. common law, the mansion Commonwealth v. Barney, 10 Cush. or dwelling-house in which arson or 480. 4 Stephen Comm. 106. 2 burglary might be committed is Kussell on Crimes, 15, 5th ed. 388 CRIMINAL LAW. dwelling-house of the said E. F. there situate ; against the peace &c., and contrary to the form of the statute in such case made and provided. 6. For Burning a City Hall in the ITighttime. — Gen. Sts. ch. 161,'§ 2.1 That C. D. of W. in the County of W. on the first day of June in the year of our Lord in the night-time of said day, at W. in the County of W. the city hall of the city of W. in the County of W., there situate and erected for public use, to wit, the transaction of the municipal business of said City of W., which said building with the property therein contained was of the value of onfe thousand dollars, which said building and property was then and there owned by the said City of W., then and there, in the night-time of said day, feloniously, wilfully and maliciously did burn ; against the peace &c. 7. For Burning a Meeting-house in the Daytime. — Gen. Sts. ch. 161, § 3. That C. D. of F. in the County of M. on the first day of June in the year of our Lord in the daytime of said day, at F. aforesaid in the county aforesaid, a certain meet- ing-house there situate of the property of the First Baptist 1 If any other building erected signed and occupied exposed it to for public use, as town-houses, the peculiar dangers attending pub- court-houses, academies, &c., the lie property, and thus brought it public use for which it is designed within the spirit as well as the let- must be set forth. ter of the statute. Such a building An indictment for burning in the is not protected by the watchfulness night-time a building erected for which private interest excites, and pubUc use, under Gen. Sts. ch. 161, the reckless and mischievous are § 2, is sustained by proof of bum- not deterred from its destruction by ing in the night-time a building any sense of sympathy with individ- removed by a city, and afterwards ual loss. Some of our school-houses fitted up as a school-house and are among the finest of our pubUc engine-house. Hoar, J.: "The use buildings; and among the buildings was a public use. The building which the statute especially enu- was provided by the city in the dis- merates are ' colleges ' and ' acade- charge of a public duty, and was mies.' Noscitur a sociis."- Com- under the control of public officers, monwealth v. Horrigan, 2 Allen, The purpose for which it was de- 159. ARSON AND OTHER BURNING. 389 Society in Framingham,i in said county, and erected for pub- lic use, to wit, for the public worship of Almighty God, then and there in the daytime, feloniously, wilfully and maliciously did burn ; against the peace &c. 8. For Burning in the Night-time a Building erected for a Dwel- ling-house and not Completed or Inhabited. — Gen. Sts. oh. 161, § 4.2 That J. S. of E. in the County of B. on the fifth day of October in the year of our Lord in the night-time of said day, at E. in the County of B. a building of one P. U. there situate, and erected by the said P. U., for a dwelling- house, and not completed or inhabited,^ feloniously, wUfuUy and maliciously did burn ; against the peace &c. 9. For Burning a Vessel. — Gen. Sts. ch. 161, § 4. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain vessel called the Rattler, of the property of one A. B. and of E. F., G. H. &c., feloniously, wilfully and maliciously did burn ; against the peace &c. 10. For Burning a D'welling-house with Intent to Injure an Insur- ance Company. — Gen. Sts. ch. 161, § 7.* That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. in the County 1 In an indictment for burning a this section, without this allegation, public building, it is not necessary is a bar to a second indictment on to allege who is the owner or occu- the third section for the same burn- pant; and any such allegation, if ing. Commonwealth w. Squire, 1 made, is immaterial. Public build- Met. 258. Commonwealth v. Ham- ings do not fall within the principle, ilton, 15 Gray, 480. and cannot follow the rule of plead- ' This allegation sufficiently and ing applicable to private buildings, properly describes the oif euce. Com- State B. Roe, 12 Vt. 93, 112. monwealth v. Squire, 1 Met. 258. 2 It is not necessaiy to aver, in * In Commonwealth v. Goldstein, an indictment on this section, for 114 Mass. 272, which was an indict- burning a building, that the build- ment under this section of the stat- ing alleged to have been burnt was ute, several important points were " other than is mentioned" in the decided: 1. An indictment alleging second section. And a conviction that the defendant, at a time and or acquittal upon an indictment on place, burned certain goods, "be- 390 CRIMINAL LAW. of S. feloniously, wilfully and maliciously did burn a cer- tain building, to wit, the dwelling-house there situate of the property of one J. N., which dwelling-house aforesaid was then, to wit, at the time of committing the felony aforesaid insured against loss and damage by fire by the Massachusetts Mutual Fire Insurance Company, the same then and there being an insurance company legally established, with intent of him the said C. D. thereby then and there to injure said insurance company ; against the peace &c. 12. For Burning a Stack of Hay. — Gen. Sts. ch. 161, § 5. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously did burn and consume a certain stack of hay of the property of one J. N., then and there being ; against the peace &c. ing then and there insured" in a gation of an intent to injure the corporation " theretofore duly es- insurer is a sufficient allegation of tahlished," sufficiently alleges an the defendant's knowledge that the insurance by a corporation legally property was insured. 5. Though existing and bound by the policy at different insurance companies may the time of the fire. 2. An indict- have issued policies upon the same ment alleging that the defendant articles of property, the burning of on a day named burned certain ar- the property by a single act with tides of merchandise, separately intent to injure the insurers is but a specified in the indictment, charges single crime. 6. It is not neces- a single act of burning, and not as sary to allege or prove that the many separate acts as there are insurer, a foreign corporation, has different articles named. 3. It is complied with the laws of this Com- not necessary to set forth the policy monwealth relating to such corpo- according to its tenor. 4. An alle- rations. ASSAULT AND BATTERY. 391 CHAPTER XXIV. ASSAULT AND BATTBKY. Transactions may be cognizable both by civil and by criminal tribunals, being the subject of a remedial as well as of a vindictive proceeding. An assault and battery is at once actionable and indictable.^ The Gen. Sts. ch. 171, § 34, en- acts that " No proceedings against a person for a criminal ofPence shall prevent or bar any civil action which might oth- erwise be maintained by a party aggrieved by the commission of the offence." In Stephen's Digest of the Criminal Law, pp. 162, 163, Assault and Assault and Battery are thus defined and illus- trated : — An assault is (a.) An attempt unlawfully to apply any the least actual force to the person of another directly or indirectly, (b.) The act of using a gesture towards .another giving him reasonable grounds to believe that the person using that gesture meant to apply such actual force to his person as aforesaid, (c.) The act of depriving another of his liberty, in either case without the consent of the person assaulted, or with such consent if it is obtained by fraud. A battery is an assault whereby any the least actual force is actually applied to the person of another, or to the dress worn by him, directly or indirectly .^ 1 Arg. in Attorney-General v. sault. Regina v. Button, 8 C. & Brown, 1 Swanst. 285. P. 660. Arabin, Sergt., after con- 2 Where a defendant put can- suiting the Recorder. Common- tharides into coffee, in order that wealth v. Stratton, 114 Mass. 303. a female might take it, and she But Mr. Greaves queries whether did take it, and was made ill this be correct, as there was no by it, it was held to be an as- force either directly or indirectly 392 CRIMINAL LAW. Provided that such acts as are reasonably necessary for the common intercourse of life, are not assaults or batteries, if they are done for the pui-pose of such intercourse only and with no greater force than the occasion requires. No mere words can in any case amount to an assault. ILLUSTRATIONS. The following are cases of assault and battery : — A cuts B's dress whilst B is wearing it, but without touch- ing or intending to touch any part of B's person.^ A sets a dog at B, which bites B.^ A man professing to act as a medical adviser fraudulently induces a girl to allow him to undress her, by falsely alleging that it is necessary for medical reasons to do so.^ used by the defendant, and the act which caused the injury was the act of the party taking the coffee. 1 Russell on Crimes, 958 note, 7th ed. Regina v. Button is said to have been overruled in England. Regina v. Dilworth, 2 M. & Rob. 531. Regina v. Walkden, 1 Cox C. C. 282. Regina v. Hanson, 2 C. & K. 912. 1 Russell on Crimes, 958 note. Archb. Grim. PI. 693, 18th ed. Commonwealth v. Strat- ton, 114 Mass. 306. 1 Regina v. Day, 1 Cox C. C. 207. 2 1 Russell on Crimes, 958. ^ Rex V. Rosinski, 1 Moody C. C. 19. Where a medical man had con- nection with a girl fourteen years of age, under the pretence that he was thereby treating her, she making no resistance, solely from the bona fide belief that such was the ,case, this was held to be certainly an assault, and probably a rape, (a) Wilde, C. J. : " She consented to one thing, he did another materially different, on which she had been prevented by his fraud from exercising her judg- ment and will." Regina v. Case, 1 Denison C. C. 580, 582; Temple & Mew C. C. 318. The case of Regina v. Case is an illustration of the law laid down by Willes, J., in Regina v. Bennett, 4 F. & F. 1105, that assault is within the rule that fraud vitiates consent. Where, therefore, the prisoner, who had venereal disease, induced a girl of thirteen years of age, who was ignorant of his condition, to have connection with him, and he in- fected her, it was held that he was guilty of an indecent assault. Re- gina V. Bennett, ubi supra. Where the defendant induced two youths above the age of fourteen years to go with him to a place where they mutually indulged in indecent prac- tices on each other's persons, the youths being wiUing and assenting parties to what was done, it was held that the defendant could not be convicted of an assault, upon the ground that the youths con- sented to what was done by him. Regina v. Wollaston, 12 Cox, 180, C. C. R. If any thing is done by (o) And since decided to be a rape. Kegina v. Flattery, 2 Q. B. D. 410, 413. ASSAULT AND BATTERY. 393 A touches B, a boy of eight, in a grossly indecent manner, B acquiescing in ignorance of the nature of the act.^ A induces B to permit him to have connection with her, by pretending to be her husband.^ The following are cases of assault without battery : — A strikes at B with a stick without hitting him.^ A aims a pistol at B which A knows is not loaded, but which B believes to be loaded.* In the following cases no assault or battery is committed : — A lays his hand on B, to attract his attention. A, falling down, catches hold of B to save himseK. A crowd of people, going into a theatre, push and are pushed against each other. A complaint or an indictment alleges that the defendant at a certain time and place, " in and upon one C. D. did make an assault, and the said C. D. did then and there beat, bruise, wound, and ill treat, and other wrongs to the said C. D. then one upon the person of another, to make the act an assault, it must be done without the consent of the person upon whom it is done. Mere submission, however, is not con- sent; for there may be submission without consent, and while the feel- ings are repugnant to the act being done. See the judgment of Kelly, C. B., in Regina v. WoUaston, ubi supra. 1 Regina v. Lock, L. R. 2 C. C. 10. 2 Regina v. Williams, 8 C. & P. 286. Regina v. Clarke, Dearsly C. C. 397; S. C. 2 Lead. Crim. Cas. 255 and note. 8 1 Hawk. P. C. 110. * Regina v. St. George, 9 C. & P. 483, Parke, B. Commonwealth V. White, 110 Mass. 407. Blake V. Barnard, 9 C. & P. 626. "It seems," writes Mr. Greaves, "that a very reasonable distinction might he made in cases of this kind. If a person presents a gun at another, knowing it not to be loaded, there can be no intent to injure in any event, and therefore he ought not to be criminally responsible ; but if the person at whom such an un- loaded gun was presented, did any thing in self-defence, his justifica- tion, whether in a civil or criminal proceeding, ought to be just the same as if the gun was loaded; for the act of the party presenting the gun led to the natural consequence that the party at whom it was pre- sented should defend himself, and the party presenting the gun ought not to be permitted to show the facts to be otherwise than he had himself held them out to be." 1 Russell on Crimes, 957, 5th ed. With the exception of nuisance, manslaughter, and libel, a criminal intention is a necessary ingredient of every offence at common law. It may well be doubted whether a threat of bodily harm, without the intent or the means to inflict it, constitutes an indictable offence. 394 CRIMINAL LAW. and there did ; against the peace " &c. The word " assault '' is technical, and necessarily includes illegality.^ If there are circumstances of aggravation, not amounting to a distinct offence," they may be alleged before the alia enormia. An assault upon two persons at the same time may be charged in a single count, and supported by proof of an as- sault upon one.^ Separate assaults upon different persons may be joined in separate counts, and the government is not under any necessity to elect to stand on one count only.* Where a count charged that the defendant made an as- sault upon " one Henry Benett," and " him the said Wil- liam Benett did beat," "and other wrongs to the said William Benett did " &c., the Court of Queen's Bench held that the count was good.^ As an assault is merely a misdemeanor, it is competent for the pleader to insert several counts in the same indictment for different assaults ; and it has long been the constant prac- tice to receive evidence of several assaults upon the same indictment ; for in offences inferior to felony the practice of quashing the indictment, or calling upon the prosecutor to elect on which charge he will proceed, does not exist.^ Trial justices may punish by fine not exceeding thirty dol- lars,'' or imprisonment in the jail or house of correction not exceeding ninety days, all assaults and batteries, and other breaches of the peace, when the offence is not of a high and aggravated nature.^ The Legislature of the Commonwealth has defined the ^ United States ». Lunt, 1 Commonwealth v. White, 110 Mass. Sprague, 311. 408, 409. 2 Attorney-General v. Macpher- ' Commonwealth v. O'Brien, son, L. R. 3 P. C. 268. Matters of 107 Mass. 208. aggravation are not essential to a * Commonwealth v. Malone, 114 conviction ; neither are averments Mass. 295. as to the mode of commission, or ^ Regina v. Crespin, 11 Q. B. the implement used; and allegations 913. Commonwealth b. Randall, 4 of such incidents need not be Gray, 36. Commonwealth v. Hunt, strictly proved, unless they are de- 4 Pick. 252. Rex v. Morris, 1 Leach scriptive, and therefore necessary C. C. 109. to the identification of the act ^ 1 Russell on Crimes, 966, 5th ed. charged as an offence. Common- ' St. 1871, ch. 115, § 1. wealth V. Burke, 14 Gray, 100. 8 Gen. Sts. ch. 120, § 28. ASSAULT AND BATTERY. 395 cases and circumstances in which the compromise of a prose- cution shall be allowed. Gen. Sts. ch. 170, § 33. The Gen. Sts. ch. 171, § 28, enacts : — "When an indictment is found against a person for an assault and battery or other misdemeanor for which the party injured may have a remedy by civil action, except where the offence was committed by or upon a sheriff or other officer of justice, or riotously, or with intent to commit a felony, or is punishable by imprisonment in the state prison, if the party injured appears in court where the indictment is pending, and acknowledges satisfaction for the injury sustained, the court may, on payment of the costs accrued, order all further pro- ceedings to be stayed, and discharge the defendant from the indictment, which shall for ever bar all remedy for such in- jury by civil 'action." An acknowledgment of satisfaction by the party injured does not entitle the defendant to be discharged under this section. It is within the discretion of the magistrate or court, and not within the power of any private person, to determine whether it is consistent with the ends of justice to suspend or terminate the prosecution.^ The court will not pass judgment for an assault during the pendency of an action for the same assault.^ 1. For an Assault not Accompanied 'with a Battery. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid ^ in the county aforesaid, in and upon one E. F.* did make an assault, and other wrongs to the said E. F. then and there did and committed ; against the peace &c. 1 Commonwealth v. Dowdican's wealth v. Tolliver, 8 Gray, 386. Bail, 115 Mass. 133. Partridge v. Commonwealth v. Creed, 8 Gray, Hood, 120 Mass. 407, 408. 387. 2 Rex V. Mahon, 4 Ad. & El. 575. ^ It is a sufficient description of ° An indictment for an assault the party injured to allege that the in one town is supported by proof ofience was committed "in and of an assault in another town in the upon the body of Mary R. , wife of same county and within the juris- the complainant. " Commonwealth diction of the court. Common- v. Gray, 2 Cush. 535. 396 CRIMINAL LAW. 2. For an Assault and Battery. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one E. F. did make an assault, and the said E. F. then and there ^ did beat, bruise, wound and ill treat, and other wrongs to the said E. F. then and there did ; against the peace &c. 3. For an Assault smd False Imprisonment.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord in and upon one J. N. did make an assault, and him the said J. N. did then and there beat, wound and ill treat, and him the said J. N. then and there unlawfully and injuriously and against the will of the said J. N., and also against the laws of this Commonwealth, and without any legal warrant, authority or reasonable or justifiable cause whatsoever, did imprison and detain so imprisoned for a long space of time, to wit, for the space of ten hours then next following,** and other wrongs to the said J. N. then and there did; to the great damage of the said J. N., and against the peace of said Commonwealth. If any money were extorted from the prosecutor for setting him at liberty, add an averment of it immediately after the asterisks, thus : and until the said J. N. had paid the said C. D. the sum of one hundred dollars of the moneys of the said J. N., for his enlargement; and other wrongs &c., as above. Add a count for a common assault. 1 In indictments for assaults, Crim. PI. 77. 2 Hale P. C. 178. there need not be either a repetition 1 Stark. Crim. PL 58, 59. And of the time, or a reference to it by see Baude's Case, Cro. Jac. 41 ; the word adtunc, as the time first Stout v. Commonwealth, 11 S. & laid will be connected with all the R. 177, 178. However, there is no subsequent facts. But in indictments reason for the distinction, and, in for felony it is otherwise; and es- practice, time and place are added pecially where the crime consists of to every material fact, as well in a combination of facts; as a murder indictments for misdemeanors as in which consists of the assault and indictments for felony, stroke; and in robbery from the ^ Archb. Crim. PI. 728, 18th person, and other cases. Purcell ed. ASSAULT AND BATTERY. 397 4. For Throwing Corrosive Fluid with Intent &c. at Common Law. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one A. B. did make an assault, and then and there unlawfully and maliciously did cast and throw upon the said A. B. a certain corrosive fluid, to wit, one pint of oil of vitriol, with intent in so doing then and there and thereby the said A. B. to burn, and him the said A. B. thereby then and there did grievously bum ; against the peace of said Commonwealth. 5. For an Assault upon a Woman Pregnant -with Child. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. in the County of S., in and upon A. B. the wife of one E. F., the said A. B. being then and there pregnant and quick with child, did make an assault, and the said A. B. did then and there beat, wound and iU treat, so that her life was then and there and thereby greatly endan- gered, by reason whereof the said A. B. afterwards, to wit, on the first day of July in the year of our Lord at B. afore- said, in the county did bring forth the said chUd dead, and other wrongs to the said A. B. then and there did ; against the peace &c. 6. For an Indecent Assault.^ That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully and indecently did make an assault in and upon one A. B., and did then and there unlaw- fully, indecently and against the will of the said A. B. pull up the clothes of the said A. B., and did then and there un- lawfully, indecently and against the will of her the said A. B., put and place the hands of the said C. D. upon and against the private parts of the said A. B., stating the indecent acts which will he proved by the evidence, and other wrongs to the said A. B. then and there did ; against the peace &c. 1 Lord Campbell's Acts, ed. Greaves, p. 87. 898 CRIMINAL LAW. 7. For an Indecent Assault with Intent to have an Improper Con- nection.^ That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. in the County of S., did unlawfully and indecently assault one A. B., and did then and there unlawfully, and indecently and against the will of her the said A. B., put and" place the private parts of him the said C. D. against the private parts of the said A. B., and did then and there otherwise ill treat and ill use her. 8. For an Indecent Assault by Other Means.^ That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. in the County of S., did unlawfully and indecently assault one A. B., and did then and there unlawfully, and indecently and against the will of the said A. B., pull and strip the clothes of her the said A. B. from and off the body of the said A. B., and did then and there otherwise ill treat and iU use her. 9. For a Felonious Assault with Intent to Maim. — G-en. Sts. ch. 160, § 20. That C. D. of B. in the county aforesaid on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the said C. D. being then and there armed with a certain dangerous weapon, to wit, a knife, in and upon one A. B. feloniously did make an assault, with the malicious 1 6 Cox C. C, Appendix, p. any legal assault, but no higher xliii. See Regina v. Stanton, 1 C. offence. See Regina v. Case, 1 & K. 415, and the distinction Denison C. C. 580; 4 Cox C. C. pointed out in that case by Mr. Jus- 220 ; Temple & Mew C. C. 318. tice Coleridge, between an assault ^ 6 Cox C. C. Appendix, p. xliii. with intent to commit a rape, and " This indictment is framed with an assault with intent to have an reference to the case of Rex ». Ro- improper connection. And see Re- sinski, 1 Moody C. C. 19 ; 1 Lewin gina V. Sauuders, 8 C. & P. 265; C. C. 11, where it was held, that a Regina v. Williams, 8 C. & P. 286. medical man making a female pa- The act being done fraudulently tient strip naked, under the pretence will support the averment that it that he could not otherwise judge was against the will of the prosecu- of her illness, is an assault, if he trix. This form seems applicable himself assisted to take off the where actual connection has taken clothes." place under circumstances involving ASSAtJLT AND BATTERY. 399 intent him the said A. B. then and there to maim and disfig- ure, by then and there feloniously and maliciously cutting off the left ear of the said A. B. ; against the peace &c. 10. For a Felonious Assault 'with Intent to Murder. — Gen. Sts. oh. 160, § 20.1 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one J. N. with a certain dangerous weapon, to wit, with a knife, with which the said C. D. was then and there armed, feloniously, wilfully and of his malice aforethought did make an assault,^ with intent the said J. N. then and there, with the knife aforesaid, feloniously, wilfully and of his malice aforethought to kill and murder. **And so the jurors aforesaid, upon their oath aforesaid, do say and present, that the said C. D., at B. aforesaid in the county aforesaid, on the said first day of June in the year aforesaid, feloniously assaulted the said J. N. in manner and form afore- said,** ^ against the peace &c. 11. For a Felonious Assault with Intent to Commit a Rape. — Gen. Sts. oh. 160, § 27.^ That C. D. of B. in the County of S. on the first day of June in the year of ovx Lord at B. aforesaid in the 1 Commonwealth v. Lang, 10 other like ofEences, made puuisha- Gray, 11. For a precedent for a ble solely under a description of felonious assault with a gun, see the offence under its technical term. Commonwealth v. Creed, 8 Gray, Commonwealthu.Sanborn, 14 Gray, 387. 393. RyaUs v. The Queen, 11 Q. B.' 2 Where the offence amounts to 781 ; 3 Cox C. C. 36. felony, the indictment should aver ^ Where the jury returned a ver- that the assault was feloniously diet that the defendant was "not made, and will be defective if the guilty of an assault with an attempt averment be omitted. 1 Stark, to commit a rape in manner and Crim. PI. 91. Rex v. PeKryman, 2 form " &c., but that he was " guilty Leach C. C. 563. And see Com- of an assault upon, and improper monwealth v. Chapman, 11 Cush. and unlawful intercourse with, the 422. said J. N., at the time and place 5 The allegation between the alleged," it was held that this was asterisks, "And so the jurors afore- not a special verdict, but that the said" &c., is surplusage and may defendant might be sentenced for a be rejected. This case differs from simple assault. Commonwealth v. those of indictments for murder and Fischblatt, 4 Met. 354. 400 CRIMINAL LAW. county aforesaid, in and upon one J. N. feloniously did make an assault, with intent her the said J. N. then and there felo- niously to ravish and carnally know, by force and against her will ; against the peace &c. 12. For a Felonious Assault with Intent to Abuse a Child under the Age of Ten Tears. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one A. B., the said A. B. then and there being a female child under the age of ten years, to wit, of the age of eight years, feloniously did make an as- sault, with intent her the said A. B. then and there felo- niously to unlawfully and carnally know and abuse ; against the peace &c. 13. For a Felonious Assault upon a Boy with Intent to Commit the Crime against Nature. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one J. N., the said J. N. being then and there a male child of the age of eight years, felo- niously did make an assault, **with intent then and there feloniously and against the order of nature, to commit the abominable and detestable crime against nature, with the said J. N., by then and there having carnal knowledge of the body of the said J. N. ; ^ against the peace &c. 14. For a Felonious Assault with Intent to Rob being Armed with a Dangerous Weapon. — Gen. Sts. ch. 160, § 23. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the said C. D. being then and there armed with a cer- tain dangerous weapon,^ to wit, an axe, in and upon one J. N. 1 From the asterisks the count may and against the order of nature to he varied as follows : With intent do and commit. Matthews Crim. that detestable and abominable Law, 423. crime, not to be named among ^ By omitting this allegation. Christians, called sodomy, with the this count will be sufficient under said J. N. then and there feloniously the Gen. Sts. ch. 160, § 25, for an ASSAULT AND BATTERY. 401 feloniously and with force and violence, did make an assault, with intent the moneys, goods and chattels of the said J. N. from the person and against the will of the said J. N. then and there feloniously and by force and violence, and by as- sault and putting in fear, to rob, steal, take and carry away ; against the peace &c. 15. For Assaulting and Obstructing an Officer in the Discharge of his Duties.-^ That on the first day of June in the year of our Lord at B. in the County of S., J. S. then and there being one of the constables of B. aforesaid in the county aforesaid,^ legally authorized and duly qualified to perform and discharge the duties of said oflSce, brought one J. N. before A. C, Es- quire, then and yet being one of the trial justices within and for said County of M., legally authorized and duly qualified to perform and discharge the duties of said office ; and the said J. N. was then and there charged before the said A. C, by one E. F., upon the oath of the said E. F., that the said J. N. had then lately before, by force and against her will, feloniously ravished and carnally known the said E. F., and the said J. N. was then and there examined before the said A. C. the justice aforesaid, touching the said offence so to him charged as aforesaid ; upon which the said A. C. 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 first day of June in the year aforesaid, directed to the keeper, or his deputy of the Commonwealth's jail, situate at B. aforesaid in the county aforesaid, commanding the said keeper or his deputy, that he should receive into his custody the said J. N., brought before the said A. C, and charged assault with intent to rob, not being not a ground for arresting the judg- armed. See Lamed v. Common- ment, but only for sentencing the wealth, 12 Met. 240; Common- defendant for a simple assault, wealth V. Squire, 1 Met. 258. Commonwealth v. Kirby, 2 Cush. 1 If the indictment does not tech- 577. nically charge an assault on an ^ xhis is a sufficient allegation officer while in the discharge of the that he was a constable. 2 Stark, duties of his office, and obstructing Crim. PI. 407 note (n). and hindering him therein, this is 26 402 CRIMINAL LAW. upon the, oath of the said E. F., with the premises above specified ; and the said Justice, by the said warrant, did com- mand the said keeper or his deputy of the said jail, to safely keep the said J. N. there until he, by due course of law, should be discharged ; which said warrant afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, was delivered to the said J. S., then being one of the constables of said B. as aforesaid, and then and there having the said J. N. in his custody for the cause aforesaid ; and the said J. S. was then and there commanded by the said A. C. the justice aforesaid, to convey the said J. N. forthwith to the said jail, and to deliver the said J. N. to the keepei* of the said jail or his deputy, together with the warrant aforesaid. And the jurors aforesaid, upon their oath afore- said, do further present, that G. H. of B. aforesaid in the county aforesaid, and M. N. of the same place, both then and there well knowing the premises, afterwards, and while the said J. N. was in the custody of the said J. S., under the said warrant as aforesaid, and while the said J. S. was con- veying the said J. N., under and by virtue of said warrant, to the said Commonwealth's jail situate at B. aforesaid, to wit, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, in and upon the said J. S., then and there being a constable as aforesaid, in the due and legal exercise and performance of the duties of said office then and there being, and then and there lawfully having the said J. N. in his custody by virtue of the said warrant for the cause aforesaid, did make an assault, and the said J. S. then and there did beat, wound and ill treat, and then and there while the said J. N. was in the due and law- ful execution of his said office, the said J. N. unlawfully, knowingly and designedly ^ did obstruct, hinder and oppose, by then and there assaulting, beating and threatening the said J. N., then and there being in the due and lawful exer- cise and performance of his said office as aforesaid ; against the peace &c. 1 This is a sufficient allegation Commonwealth v. Kirby, 2 Cush. that the defendant knew that the 277. person assaulted was an officer. ASSAULT AND BATTERY. , 403 16. Assault and Battery on an Officer while in Discharge of his Duties. That C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon E. F. did make an assault, the said E. F. being then and there a police-officer of said B., legally authorized and duly qualified to discharge and per- form the duties of said office, and being then and there in the due and lawful execution of the same, and him the said E. F. did then and there beat, bruise, wound and evil treat, and other wrongs and injuries to the said E. F. then and there did, he the said E. F. then and there well knowing ^ the said E. F. to be a police-officer of said B. in the due and lawful execution of the duties of said office as aforesaid ; against the peace &c. 17. Assault and Battery on a Police-officer of the City of Boston 'While in Discharge of his Duties. That C. D. of the City of Boston in the County of Suffolk, on the first day of June in the year of Our Lord at Boston aforesaid in the county aforesaid, in and upon one E. F. did make an assault, the said E. F. being then and there a police-officer of said city, legally authorized and duly qualified to discharge and perform the duties of said office, and being then and there in the due and lawful execution of the same, and him the said E. F. did then and there beat, bruise, wound and evil treat, he, the said C. D., then and there well knowing the said E. F. to be a police-officer of said City of B. in the due and lawful execution of the duties of said office as aforesaid, and that the said assault and battery was not committed with intent to commit any other offence nor with a weapon dangerous to life, and that the life of the said E. F. was not endangered thereby, and that the said E. F. was not maimed thereby, and other wrongs 1 A man was held liable for as- because the act was wrong in itself, saulting a police-officer in the exe- Kegina v. Forbes, 10 Cox C. C. cution of his duty, though he did 862. Regina v. Prince, L. R. 2 C. C. not know he was a police-officer, 176. 404 CRIMINAL LAW, and injuries to said E. F. then and there did ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. The Municipal Court of the city of Boston has jurisdiction, concurrently with the superior court, of cases of assault and battery, except where committed with intent to commit some other offence, or with a weapon dangerous to life, or where the life of the person assaulted is in danger, or such person is maimed. St. 1866, ch. 270, § 8. Gen. Sts. ch. 116, § 13. A complaint charging an assault and battery on a police-officer while in the discharge of the duties of his office does not fall within either of the excepted cases.^ 1 Commonwealth v. Hirsch, 116 Mass. 349. ATTEMPTS TO COMMIT CRIMES. 405 CHAPTER XXV. ATTEMPTS TO COMMIT CRIMES. An attempt to commit a crime is an act done with intent to commit that crime, and forming, part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each par- ticular case. An act done with intent to commit a crime the commis- sion of which in the manner proposed was in fact impossible, is not an attempt to commit that crime. The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself.^ Lord Mansfield, C. J., thus stated this principle : " So long as an act rests in bare intention, it is not punishable ; but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done ; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable." ^ The word " attempt " has a very distinct meaning from "intent." An attempt is that which, if it had succeeded, would be the offence in question.^ The mere intention to 1 Stephen Dig. Crim. Law, 29. ing a block of wood to be a man 2 Rex V. Sohofield, Cald. 403, who was his deadly enemy, struck quoted by Pollock, B., in Regina ». it a blow intending to murder, Ransford, 13 Cox C. C. 16. could he be convicted of attempting ' Regina v. M'Pherson, Dearsly to murder the man he took it to & Bell C. C. 197, 201. In the be?" course of the argument, Bramwell, " The attempt and not the deed B., asked, ".Suppose a man, beUev- Confounds us." ^^^^^,_ ^^^ ^^ g^ ^ 406 CRIMINAL LAW. commit a crime is not criminal. The law will not take notice of an intent without an act. Acts directly approxi- mating to the commission of an offence are considered as attempts to commit it.^ In Massachusetts, the whole matter of punishments for all attempts to commit an offence prohibited by law, when no express provision is otherwise made, has been subject to revision by statute. By a well-established rule of construc- tion of statutes, the common law is held to be repealed by implication, when the whole subject has been revised by the Legislature.^ The Gen. Sts. ch. 168, enact : — Sect. 8. Whoever attempts to commit an offence pro- hibited by law, and in such attempt does any act towards the commission of such offence, but fails in the perpetration, or is intercepted or prevented in the execution, of the same, where no express provision is made by law for the punish- ment of such attempt, shall be punished as follows :^ — First. If the offence attempted to be committed is punish- able with death, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceed- ing ten years : Second. If the offence so attempted to be committed is punishable by imprisonment in the state prison for life, or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding five years, or in the jail not exceeding one year : Third. If the offence attempted to be committed is pun- ishable by imprisonment in the state prison for a term less * Regina v. Eagleton, Dearsly land to be punishable as a misde- C. C. 538. Begina v. Roberts, meanor. Regina v. Doody, 6 Cox Dearsly C. C. 551, per Parke, B. C. C. 463, Wightman, J. Begina 2 Commonwealth v. Dennis, 105 v. Burgess, Leigh & Care C. C. 258; Mass. 162. 9 Cox C. C. 247. By the law of ' An attempt to commit suicide Massachusetts, suicide is deemed is thus left without punishment, criminal as malum in se, and al- because the act itself could never though an attempt to commit it is be punished by any of the modes not punishable, yet a person who, in stated in the statute. Common- attempting to commit it, acciden- wealth V. Dennis, 105 Mass. 162, tally kills another who is trying to distinguishing Commonwealth v. prevent its accomplishment, is guilty Bowen, 13 Mass. 856. An attempt of criminal homicide. Common- to commit suicide is held in Eng- wealth v. Mink, 123 Mass. 422. ATTEMPTS TO COMMIT CRIMES. 407 than five years, or by imprisonment in the jail, or by fine, the offender convicted of such attempt shall be punished by im- prisonment in the jail not exceeding one year, or by fine not exceeding three hundred dollars ; but in no case shall the punishment by imprisonment exceed one-half of the greatest punishment which might have been inflicted if the offence attempted had been committed.' It is not necessary that it should be strictly charged in the indictment, that the act attempted was a crime punishable by law, provided it appears so from the facts alleged.^ Neither is it necessary to charge the offence with as much exactness as in an indictment for the crime itself.^ 1. For Attempting to Steal in a Dwelling-house. — Gen. Sts. ch. 168, § 8. That C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the goods, chattels and personal property* of one E. P., in the dwelling-house of the said E. F., then and there being, then and there did attempt feloniously to steal, take and carry away ; but the said E. F. was then and there intercepted and prevented in the execution of the said offence ; against the peace &c. 2. Indictment for an Attempt to Burn a. Dwelling-house. — Gen. Sts. oh. 168, § 8° That C. D. of &c., on the first day of June in the year of our Lord at B. in the County of S., did feloniously, ^ As to the punishment, see Mc- It would be necessary to prove that Laughlin's Case, 107 Mass. 225. there were goods in the house which ^ Commonwealth v. Flynn, 3 he could steal." Kegina v. John- Cush. 529. son, 34 L. J. M. C. 24 ; Leigh & 8 Rex V. Higgins, 2 East, 5. See Cave C. C. 489. Kegina v. Marsh, 1 Denison C. C. ' It is not necessary to describe 505 ; Temple & Mew C. C. 192. the combustible materials used for ■* Pollock, C. B. : "Where the the purpose; Commonwealth v. charge is of actually stealing goods, Flynn, 3 Cush. 529 ; nor the par- the goods must be specified ; but ticular manner in which the attempt where there is only an attempt to was made. People v. Bush, 4 Hill, steal, it cannot be said beforehand 133. what the prisoner intended to steal. 408 CRIMINAL LAW, ' wilfully and maliciously attempt to burn a certain dwelling- house of one H. S. there in presence of i BASTARD CHILDREN, MAINTENANCE OP. 421 5. Mittimus for not Giving Bond to Appear and Ans-wer at the next Term of the Superior Court. COMMONWEALTH OE MASSACHUSETTS. SUITOLK, 88. To the Sheriff of our County of Suffolk, his Depu- ties, the Constables of our City of Boston, in [l. s.j said County, and to the Keeper of the Jail in our said County, and to the Constable of the Commonwealth, or either of his Deputies, Greeting : Whereas is brought before our Justices of our Municipal Court of the City of Boston holden at said Bos- ton for the transaction of criminal business within and for the County of Suffolk, on this day of upon a warrant issued on the complaint, examination and accusation, under oath, of setting forth that she is pregnant with a child, — has been delivered of a child and that the said child — was — if born alive, — and was — is likely to be born a bastard, and accusing the said of being the father of said child, and that he did beget her with child in said on or about the of last past, And on a hearing in the premises it is considered by said Court, that the said give bond with suf&cient sure- ties, in the sum of four hundred dollars, to appear and answer to said complaint, at the Superior Court to be holden at said Boston for the transaction of civil business within and for the County of Suffolk on the first Tuesday of next, and to abide the order of Court thereon ; and that he the said be committed until he give such bonds. With which order the said refuses to comply. We therefore command you, the said sheriff, deputies, constables, and each of you forthwith to convey the said to the common jail in said county, and to de- liver him to said keeper; and make return of this precept with your doings thereon. — And you the said keeper are hereby commanded to receive the said into your 422 CRIMINAL LAW. custody in said jail, and him there safely to keep until he give such bonds, or be otherwise discharged in due course of law. Witness, M. C, Esq., at Boston aforesaid, this day of in the year of our Lord Clerk. 6. Judgment 'where a Woman is Pregnant with a Child. commonwealth op massachusetts. Suffolk, ss. At the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within and for the County of Suffolk, on this day of in the year of our Lord one thousand eight hundred and seventy- of said Boston, is brought before said Court by virtue of a warrant in due form of law issued by said Court, under its seal, on the day of in the year of our Lord on the voluntary complaint, examination and accusation of of in the county of in said Commonwealth, single woman, taken on oath before said Court on the day of in the year of our Lord who complains and saith that she is pregnant ■>vith a child, and that the said child, if born alive, is likely to be born a bastard, and accuses of in said County of Suffolk against whom she desires to institute a prosecution, of being the father of said child, and that he did beget her with child in said on or about the day of in the year of our Lord at And the said complaint is read to the said and after a hearing in the premises the said is ordered by said Court to give bond with sufficient sureties in the sum of four hundred dollars to appear and answer to said complaint and accusation at the Superior Court to be holden at said Boston for the transaction of civil business within and for BASTARD CHILDREN, MAINTENANCE OF. 423 the County of Suffolk on the first Tuesday of next, and to abide the order of the Court thereon, and that he stand committed until he give such bond. Clerk. 7. Judgment -vtrhere the Woman has been Delivered of a Bastard Child. commonwealth of massachusetts. Suffolk, bs. At the Municipal Court of the City of Boston holden at said Boston for the transaction of criminal business within the County of Suffolk, on this day of in the year of our Lord one thousand eight hundred and seventy- of said Boston, is brought before said Court, by virtue of a warrant in due form of law issued by said Court under its seal on the day of in the year of our Lord on the voluntary complaint, examination and accusation of of in the county of in said Commonwealth, living within the Judicial District of said Court, single woman, taken on oath before said Court, holden as aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- who complains and says that on the day of in the year of our Lord at she was delivered of a child, which said child was born alive, is still living, and was born a bastard, and accuses the said of in the County of in said Common- wealth, living and having his usual place of business within the Judicial District of said Court, against whom she desires to institute a prosecution, of being the father of said child, and that he did beget her with child in on or about the day of in the year of our Lord at And the said complainant says that in the time of her travail she did accuse the said of being the father of said child of which she was then about to be delivered, and has remained constant in such accusation. 424 CRIMINAL LAW. And the said complaint is read to the said and, after a hearing in the premises, the said is ordered by said Court to give bond with sufficient sureties in the sum of four hundred dollars to appear and answer to said com- plaint and accusation at the Superior Court to be holden at said Boston for the transaction of civil business within and for the County of Suffolk on the first Tuesday of next, and to abide the order of the Court thereon, and that he stand committed until he give such bond. Clerh. BILLIARD TABLES AND B0WLING-ALLET8. 425 CHAPTER XXVIII. BILLLAUD TABLES AND BOWLING-ALLEYS. 1. For Keeping a BUUard Table. — Gen. Sts. oh. 88, § 70.^ That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., the said C. D. not being then and there first duly licensed according to law, for hire, gain and reward, did unlawfully keep and suffer to be kept in a certain building there situate and by him the said C. D. then and there actually used and occupied,^ ** a certain billiard table for the purpose of playing at a certain game called billiards ; contrary to the form of the statute in such case made and provided. 2. For Keeping a Building Furnished 1)71111 Bowling-alleys and Suffering Persons to Resort there for Hire for the Purpose of Playing at Bowls. — Gen. Sts. oh. 88, § 70.^ Proceed as far as the asteriskg in the above precedent, then as follows : A certain bowling-alley for the purpose of play- 1 Commonwealth v. Adams, 109 ' The game of bowls and nine- Mass. 344. Simpson v. Wood, 105 pins is an unlawful game, within the Mass. 263. Commonwealth v. Rev. Sts. ch. 50, § 17. Gen. Sts. Crawford, 9 Gray, 128. Common- ch. 85, § 5. Commonwealth v. wealth V. Sylvester, 13 Allen, 247. Goding, 3 Met. 130. But it is not Commonwealth v. Emmons, 98 necessary that there should be gam- Mass. 6. ing or betting in order to render 2 Where the defendant let a shed the game an unlawful game in the contiguous to a passage-way be- cases mentioned in this section of tween the shed and the defend- the statute. A person, not licensed ant's store, and received the rent, as an innholder &c., who for hire, knowing that the shed was used in gain or reward, suffers persons, gaming, it was held that he did from time to time, to resort to a not "actually occupy" the shed, house &c., by him used or oocu- within the meaning of the St. 1798, pied, for the purpose of playing at ch. 20, § 2. Commonwealth v. any unlawful game, does not com- Dean, 1 Pick. 386. mit a single continuing offence, but 426 CRIMINAL LAW. ing at bowls, and for hire, gain and reward, unlawfully did suffer certain persons whose names to the complainant afore- said are unknown, to resort thereto for the purpose of play- ing at a certain game called bowls ; contrary to the form of the statute in such case made and provided. several distinct offences, and is lia- ble to a penalty for each of them. In an indictment for this offence, it is sufficient to allege that the de- fendant did, for hire, gain and reward, permit persons to resort &c. , for the purpose of playing at a certain unlawful game mentioned, without alleging that persons actu- ally did resort there for the purpose of playing, or did there play, at any unlawful game. Common- wealth V. Stowell, 9 Met. 572. It is an offence within the statute, whether the person keeping the same does so of his own will, or by the procurement or as the agent or hired man of another, and whether for his own emolument or that of another. Commonwealth ti. Drew, 3 Cush. 279. Commonwealth v. Adams, 109 Mass. 344. See Com- monwealth V. Bolkom, 3 Pick. 280; Commonwealth v. Colton, 8 Gray, 488. BLASPHEMY. 427 CHAPTER XXIX. BLASPHEMY. "In general, blasphemy may be described," says Chief Justice Shaw, " as consisting in speaking evil of the Deity with an impious purpose, to derogate from the divine majesty, and to alienate the minds of others from the love and rever- ence of God." ^ And all contumelious reproaches of our Saviour Jesus Christ, all profane scoffing at the Holy Scrip- tures, or exposing any part of them to contempt and ridicule, and all writings against the Christian religion, are regarded by the common law as blasphemous.^ "In most of the United States," says Greenleaf, " statutes have been enacted against this offence ; but these statutes are not understood in all cases to have abrogated the common law ; the rule being, that where the statute does not vary the class and character of an offence, as, for example, by raising what was a misde- meanor into a felony, but only authorizes a particular mode of proceeding and of punishment, the sanction is cumulative, and the common law is not taken away." ^ Thus, it was held that, notwithstanding the provisions of the statute against blasphemy, a blasphemous libel might be prosecuted as a common-law offence.* 1 Commonwealth v. Kneeland, b. Hetherington, 5 Jurist, 529. 20 Pick. 206, 213. Cowan v. Milboarn, 2 L. R. Exch. 2 Folkard on Libel and Slander, 230. ch. 33, p. 593, 4tli Eng. ed. 3 83 Greenl. Ev. § 69. Common- Kussell on Crimes, 193, 5th ed. wealth v. Ayer, 3 Cush. 150. Com- 2 Bishop Crim. Law, §§ 76 et monwealth o. Farrell, 5 Allen, seq. 3 Greenl. Ev. § 68. Rex 130. V. Waddington, 1 B. & C. 26. * Rex ». Cariile, 3 B. ife Aid. Regina v. Gathercole, 2 Lewin 161. C. C. 251, Alderson, B. Regina 428 CRIMINAL LAW. 1. Indictment for a Blasphemous Libel. The jurors for &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, falsely, maliciously,^ wilfully and profanely did compose, print and publish and cause and procure to be composed, printed and published,^ a certain false, scandalous, impious, blasphemous and profane libel, of and concerning the Holy Scriptures and the Christian religion, in one part of which said libel there were and are contained, among other things, certain false, scandalous, impious, blasphemous and profane matters and things, of and concerning the Holy Scriptures and the Chris- tian religion, according to the tenor following, that is to say: here set out the libellous passage ; and if there he another such passage in another part of the libel, introduce it thus : and in another part of which said libel there were and are con- tained,^ among other things, certain other false, scandalous, impious, blasphemous and profane matters and things of and concerning the Holy Scriptures and the Christian religion, according to the tenor following, that is to say, &c. &c. ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 2. For Blasphemy, by Blaspheming the Holy Name of God. — Gen. Sts. oh. 165, § 19. That C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did wilfully blaspheme the holy name of God, by then and there denying, cursing and contumeliously reproaching God, his creation, government and final judging 1 These words seem to be neces- 234, cited in Commonwealth v. sary. See the able dissenting opin- Twitchell, 4 Cush. 74, 75. Rex v. ion of Morton, J., in Common- Home, Cowp. 672, cited in Corn- wealth V. Kneeland, 20 Pick. 206, monwealth v. Eaton, 15 Pick. 275. 244. 8 Tabart v. Tipper, 1 Campb. 2 This averment is not bad for 350, 353. duplicity. 2 Gabbett Crim. Law, BLASPHEMY. 429 of the world ; that is to say, the said C. D. then and there, in the presence and hearing of divers citizens of said Common- wealth, did wilfully, profanely and hlasphemously speak, pronounce, utter and publish the profane and blasphemous words following, to wit, here insert the words spoken and pub- lished, verbatim, and with proper innuendoes, if the words require it;'- against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 1 Ante, p. 81. 430 CRIMINAL LAW. CHAPTER XXX. BEIBBEY. Nothing can be of greater necessity to the proper admin- istration of the law, than to keep the streams of justice clear and pure, that parties may proceed with safety to themselves and their characters. " A greater offence than a person's attempt by private communication, without the knowledge of those to whom he is opposed, to influence, by private feel- ings, the conduct of any one invested with the duty of judi- cially disposing of matters pending in court, cannot well be stated." 1 The offence is complete by the offer of the bribe, so far as the offerer is concerned. If the offer is accepted, both parties are guilty .^ Indictment for Attempting to Bribe a Constable.^ The jurors &c. upon their oath present, that on the first day of June in the year of our Lord at B. in the County of S., one A. C, Esquire, then and yet being one of the Trial Justices within and for the said County of S., duly qualified to discharge and perform the duties of said office, did then and there under a certain warrant under his hand and seal, in due form of law, bearing date the day and year aforesaid, directed to all constables and other peace-officers of the said county, and especially to J. N., thereby commanding them, upon sight thereof, to take and bring before the said A. C, so being such Justice as aforesaid, or some other Trial Justice ^ Per Lord Cottenham, C, in Crimes, 318, 5th ed. Regina v. Lechmere Charlton's Case, 2 Mylne Gurney, 10 Cox C. C. 550. & Craig, 353. See also Spedding's " Archb. Crim. PL (Am. ed. Letters and Life of Lord Bacon, 1846), 545 a. Matthews Crim. Law, vii. 209-278. 432. 6 Cox C. C. Appendix, 2 3 Greenl. Ev. § 72. 1 Gabbett p. cxiv. Crim. Law, 163. 1 Russell on BRIBERY. 431 within and for the said County of S., the body of D. F. of B. aforesaid in the county aforesaid, to answer, ^o. ^o., as in the warrant ; and which said warrant afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, was delivered to the said J. N., then being one of the constables of said B., to be executed in due form of law. And the jurors aforesaid, upon their oath aforesaid, do further present, that J. S., well knowing the premises, afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully and corruptly did offer unto the said J. N., so being constable as aforesaid, and then and there having in his custody and possession the said warrant so delivered to him to be executed as aforesaid, the sum of fifty dollars, if the said J. N. would refrain from executing the said warrant, and from taking and arresting the said D. F. under and by virtue of the same, for and during fourteen days from that time, that is to say, from the time the said J. S. so offered the said sum of fifty dollars to the said J. N. as aforesaid. And so the jurors aforesaid, upon their oath afore- said, do say, that the said J. N. on the first day of June in the year aforesaid, at B. aforesaid in the county aforesaid, in manner and form aforesaid, did unlawfully attempt and endeavor to bribe the said J. N., so being constable as afore- said, to neglect and omit to do his duty as such constable, and to refrain from taking and arresting the said D. F. under and by virtue of the warrant aforesaid ; against the peace &c. 432 CRIMINAL LAW. CHAPTER XXXI. BONFIEBS AND FALSE ALARMS OP PIEE. The Gen. Sts. ch. 164, enacts : — Sect. 12. Whoever is concerned in causing or making a bonfire within ten rods of any house or building shall be pun- ished by fine not exceedii;ig twenty dollars, or imprisonment not exceeding one month. Sect. 13. "Whoever without reasonable cause, by outcry, or the ringing of bells, or otherwise, makes or circulates, or causes to be made or circulated, a false alarm of fire, shall be punished by fine not exceeding fifty dollars. 1. For Making a Bonfire. — Gen. Sts. ch. 164, § 12. That C. D. of &c. on the first day of June in the year of our Lord at S. in the County of H. was unlawfully concerned in making a certain bonfire, within ten rods of a certain house, to wit, the dwelling-house of one A. B. there situate ; contrary to the form of the statute in such case made and provided. 2. For Making a False Alarm of Fire. — Gen. Sts. ch. 164, § 13. That C. D. of &c. on the first day of June in the year of our Lord at F. in the County of M. without reason- able cause therefor, unlawfully did make and circulate a false alarm of fire, by then and there ringing certain bells and by then and there making divers outcries ; contrary to the form of the statute in such case made and provided. BURGLARY AND BREAKING ETC., BUILDINGS. 433 CHAPTER XXXII. BUB6LAEY AND BREAKING AND ENTERING BOTLDINGS. An indictment for burglary, either at common law or under the statute, in order to be valid to support a conviction, must comprise certain essential points in addition to the ordinary requisites to an indictment, and these essential points we shall now proceed to consider. In Hale's Pleas of the Crown is the following precedent : " Quod J. S. 1 die Julii anno &c., in nocte ejusdem diei vi et armis domum mansiohalem A. B. felonicd et burglaritdr fregit et intravit, ac ad tunc et ibidem unum scyphum argenteum &c., de bonis et catallis ejusdem A. B., in eadem domo inventis felonicfi et burglaritSr furatus fuit, cepit et asportavit ; " or, if no theft were actu- ally committed, then " ex intentione ad bona et catalla ejus- dem A. B. in e§.dem domo existentia felionicS et burglaritdr furandum, capiendum et asportandum, or, eS. intentione ad ipsum A. B., ibidem felonicd interficiendum contra pacem &c." ^ And upon this precedent he has the following re- marks, which he divides into five distinct clauses, each of them essential to the constitution of an indictment for burg- lary: 1. That it is said noctanter, in the night-time, or, nocte ejusdem diei, in the night of the same day; for if it be in the daytime it is not burglary. 2. That it be said burgla- ritdr, burglariously, for it is a legal word of art, without which burglary cannot be expressed with any kind of other word or circumlocution. And, therefore, where the indict- ment is burgalrit^r, instead of burglaritdr, it makes no indict- ment for burglary, — so if it be burgent&. 8. It must be fregit et intravit, broke and entered ; for it is held that breaking without entering, or entering without breaking, makes not burglary : yet an indictment quod felonicd et burg- 1 1 Hale P. C. 549, 550. 28 434 CRIMINAL LAW. laritSr, fregit domum mansionalem &c., was a good indict- ment for burglary, that the entry is sufficiently implied, even in an indictment, by the words burglaritdr fregit, but the saf- est and common way is to say fregit et intravit. 4. It must be said domum mansionalem, the dwelling or mansion-house, where burglary is committed, and not generally domum, for that is too uncertain and large. 5. It must be alleged that the prisoner committed a felony in the same house, or that he broke and entered the house to the intent to commit a felony. It is to be observed that Lord Hale does not make any men- tion of the particular dai/ as being essential in indictments for burglary. And it is not necessary to lay the precise day on which the offence was committed ; and the indictment is good, even if, at the day laid, no burglary had actually taken place. ^ The precedent furnished by Lord Hale does not specify the particular hour of the night at which the burglary took place. But elsewhere he says : " Where the time of the day is mate- rial to ascertain the nature of the offence, it must be expressed in the indictment, as in an indictment for burglary it ought to say, tali die circ&. horam decimum in nocte ejusdem diei felonic^ et burglariter fregit, yet by some opinions burglariter carries a sufficient expression that it was done in the night- time." ^ And it has been held sufficient to allege that the crime was committed " burglariously," without stating the time at which it was committed, or that it was done in the night-time.3 The Gen. Sts. ch. 172, § 13, enacts that " When an offence is alleged to have been committed in the night- time, the time called night-time shall be deemed to be the time between one hour after the sun-setting on one day and one hour before sun-rising on the next day ; and in all cases the time of sun-setting and sun-rising shall be ascertained ac- cording to mean time in the place where the offence is com- mitted." * 1 Syer's Case, 3 Inst. 230; Kel- v. State, 16 Conn. 32, 34, "is un- yng, 16 ; 19, 3d ed. derstood, in modern professional 2 2 Hale P. C. 179. language, to imply that the act was ' Regina v. Thompson, 2 Cox done in the night. " C. C. 4-15. The term '-burglari- " * It was held, in the case of ously," said Hinman, J., in Lewis Commonwealth u. Williams, 2 Gush. BURGLARY AND BREAKING ETC., BUILDINGS. 435 "With regard to the second essential qualification in an indictment for burglary, as above laid down by Hale, in the first place, eveiy indictment for felony must allege the fact to have been^one felonic^, feloniously.^ And without the in- sertion of such word an indictment for burglary would fail ; nor is the word " feloniously " sufiicient, unless the word " burglariously " be added. For it is a legal word of art, without which burglary cannot be expressed with anj' kind of other word or other circumlocution.^ But in Massachusetts it has been decided that the statute definition of housebreaking has done away with the common-law requisitions of the of- fence, so that burglaritdr no longer makes a part of the quo modo of the crime.^ 582, that since the passing of St. 1847, ch. 13, defining "the time of night-time in criminal prosecu- tions," it is sufficient to allege, gen- erally, that an offence was com- mitted in the night-time, without designating the particular hour of the night; and by such allegation is to be understood the period of night-time as defined in that stat- ute. In this case, Dewey, J., said: " The allegation in the indictment is, that the defendant broke and entered the city hall on the twelfth day of November, 1847, ' in the night-time of said day.' It has been considered proper and neces- sary, until the statute of 1847, ch. 13, and such are the usual prece- dents, to state some particular hour of the night in which the burglary was alleged to have been committed. The reason for this seems to have been that one might, with a felo- nious intent, have broken and en- tered a building at a time properly called, in popular language, night- time, and yet not have committed the crime of burglary; the time in which that offence can be com- mitted being not so far extended as to embrace the night-time, in the ordinary use of that word, but a period when the light of day had so far disappeared that the face of a person was not discernible by the light of the sun or twilight. But the statute just cited has defined ' night-time ' for all purposes of criminal proceedings. Wherever ' night-time ' is now used in an indictment, as descriptive of the time of the commission of the offence, it is to be understood of the night-time as defined by this statute. The allegation that the breaking and entering were in that night-time, is virtually an allega- tion that the offence was committed during the time between one hour after sun-setting on one day, and one hour before sun-rising on the next day." Commonwealth v. Lamb, 1 Gray, 493. 1 -2 Hale P. C. 184. Ante, p. 91. The word "burglariously" does not imply an intent to commit fel- ony. Jervis, C. J., in Regina v. Powell, 2 Denison C. C. 409. . 2 1 Hale P. C. 550. 2 East P. C. 512, ^ TuUy V. Commonwealth, 4 Met. 357. "We call this decision an important one," said the late George Bemis, Esq., in an interest- ing article in The Law Reporter, 436 CRIMINAL LAW. With regard to the third point mentioned by Lord Hale, the words fregit et intravit, — Anglic^, broke and entered, are both necessary to support an indictment for burglary ; for, as has already been seen, the breaking without the entry, and the entry without the breaking, are insufficient. With regard to the fourth point, the Gen. Sts. ch. 161, §§ 10, 11, refer to the dwelling-house strictly, and no other building can be the subject of burglary .^ The name of the owner of the dwelling-house or of the building which was broken and entered must be stated with accuracy ; ^ and evidence that C. D. occupied one room only in a building containing other rooms occupied by other per- sous, will support the allegation.^ In all cases of this de- scription, if there be any the slightest doubt whether the house broken and entered should be described as the dwell- ing-house q/"* A., B., or C, the pleader should obviate the vol. ix. p. 387, " because in connec- tion with a class of cases which have begun to form a line of prece- dents in the courts of Massachusetts, Josslyn V. Commonwealth, 6 Met. 236; Devoe v. Commonwealth, 3 Met. 316; Commonwealth u. Squire, 1 Met. 258, the old landmarks are fast vanishing in the jurisprudence of that respectable Commonwealth, before the supposed efficacy of stat- ute phraseology, — phraseology, too, which has hardly changed a whit for the last half century, and under which common-law technicalities have hitherto been deemed indis- pensable." See also an article by the same gentleman in The Law Reporter, N. S. vol. vi. p. 199. 1 Gen. Sts. ch. 161, §§ 10, 11. Commonwealth v. Buzzell, 16 Pick. 153. • Commonwealth v. Barney, 10 Gush. 478. 2 Commonwealth v. O'Brien, 12 Allen, 183. Commonwealth v. Fer- ris, 108 Mass. 1. Commonwealth V. Thompson, 9 Gray, 108. Rex v. White, 1 Leach C. C. 252. Rex v. Woodward, 1 Leach C. C. 253 note. Gen. Sts. ch. 172, § 12. Ante, pp. 34, 35. See Regina v. New- boult, L. R. 1 C. C. 344. ^ Commonwealth v. Bowden, 14 Gray, 103. 4 'The word "of" sufficiently alleges the ownership of the prop- erty. Commonwealth v. Williams, 2 Gush. 582. "The indictment charges," said Dewey, J., "that the defendants broke and entered the city hall of the city of Charles- town. The objection is, that there is no averment of property in the city of Charlestown. To sustain the objection, reference was made by the counsel for the defendants to the forms of indictments for larce- nies, and for other criminal offences afEecting personal property. If these were proper tests, the aver- ment in this indictment would be found to be defective. The owner- ship of personal chattels is stated more fully; the usual form being, that they are ' the goods and chat- tels of A. B.' But a reference to the best books of precedents in criminal pleading will fully sustain EUEGLAHT AND BREAKING ETC., BUILDINGS. 437 difficulty by inserting counts alleging it to be the dwelling- house of A., B., and C, respectively. Where an out-house having the same protection as the dwelling-house has been broken into, the offence may either be laid to have been committed in the dwelling-house, or in the building parcel thereof.^ The place in which the dwelling-house where the burglary has been committed must be stated in the indictment, and proved as laid ; a variance is fatal.^ But it has been held, that if it be not expressly stated where the dwelling-house is situated, it shall be taken to be situated at the place named in the indictment by way of special venue.^ Where an in- dictment alleges a dwelling-house to be situate " at the parish aforesaid," the parish last mentioned must be intended.* In all cases where any difficulty is likely to arise respecting the local description of the dwelling-house, different counts should be inserted in the indictment, varying it according to the circumstances. The allegation of place, as of time, must be repeated in the averment of every distinct material fact. But after the place has been once stated with certainty, it is sufficient afterwards, in subsequent allegations, to refer to it by the words " there," or " there situate " (ibidem, in ancient indictments), and the effect of these words is equivalent to an actual repetition of the distinction between the modes malicious burning of buildings, of describing real and personal The present indictment sufficiently property, in reference to the owner- alleges the ownership of the prop- ship of such property. While the erty, and that it was a public build- latter is described as has been ing." stated, a very general, if not uni- ' Rex v. Garland, 2 East P. C. versal, mode of describing the own- 493. In Dobbs's Case, 2 East P. ership of real estate is similar to C. 513, the prisoner was indicted that adopted in the present case, for burglary in the stable of J. B., This is peculiarly so in indictments part ofhU dwelling-house, for arson, burglary, and malicious ^ Commonwealth v. Wellington, mischief. This was the form of 7 Allen, 301, 302. Ante, p. 37. indictment in the case of Common- ' Rex v. Napper, 1 Moody C. C. wealth V. Taylor, 5 Binney, 277, 441. Commonwealth v. Lamb, 1 for breaking and entering a house ; Gray, 493. Commonwealth v. and in the cases of Commonwealth Crowther, 117 Mass. 116. V. Squire, 1 Met. 258, and Common- * Rex v. Richards, 1 M. & Rob. wealth V. Harney, 10 Met. 422, for 177. 438 CRIMINAL LAW. the place.i It is, however, usual, in modern practice, to re- peat the words, " in the said dwelling-house," or in the said dwelling-house then being," and " at B. aforesaid in the county aforesaid." ^ The fifth qualification given us by Lord Hale as essential to support an indictment for burglary is as follows : " It must be alleged that the prisoner committed a felony in the same house, or that he broke and entered the house to the intent to commit a felony."^ Here there are two allega- tions,* either of which is sufficient to support an indictment for burglary; for we may either say that the prisoner burgla- riously broke and entered with the intent to commit felony, or, if the evidence can support the charge of felony actually committed, it may be alleged that the prisoner actually com- mitted the felony, without laying the intent, for the intent may be inferred from the facts of the case. The commission of felony is sufficient evidence of the intention.^ It is here to be remarked, that the proof of a breaking and entering in the night, with intent to steal, will not support an indictment for burglariously breaking &c., and stealing 1 1 Stark. Crim. PI. 58. 2 Gab- I think the present indictment is bett Crim. Law, 223, 224. sufficient." Regina «. Andrews, 2 An indictment, after charging C. & Marsh. 121 (1841). See Ra- the prisoner with breaking and eh- gina v. Watkins, C. & Marsh. 264. tering the house in the usual form, ' 1 Hale P. C. 550. The break- charged that he, forty-two pieces of ing and entering a dwelling-house the current gold coin of this realm, in the night-time is not burglary, called sovereigns &c., in the same unless it be done with intent to dwelling-house then and there being commit a felony. Therefore, the found, then and there feloniously breaking and entering a dwelling- did steal, take and carry away &c. house with intent to cut off an ear of It was objected that the words an inhabitant, is not a felony: Com- "then and there " were insufficient, monwealth v. Newell, 7 Mass. 245; and there ought to have been added nor a breaking and entering with to them, "in the same dwelhng- intent to commit adultery: State house." But Coleridge, J., after v. Cooper, 16 Vt. 551. referring to the case of Regina v. * And both may be alleged; and, Smith, 2 M. & Rob. 115 (1838), in general, this is the better mode where Patteson, J., held a similar of statement, objection valid, said: " I had occa- ^ Rex o. Locost, Kelyng, 30; 3d sion to mention that case to my ed. 42. Commonwealth o. Hope, Brother Patteson, and he seemed 22 Pick. 1, 5. Commonwealth u. to think the decision was incorrect. Hersey, 2 Allen, 179. BURGLARY AND BBEAKINGf ETC., BUILDINGS. 439 goods ; though the converse of this proposition is not true ; the actual commission of the larceny comprehended in this latter charge being evidence of the entering with intent to commit it. In all cases where an actual felony has been com- mitted, it is sufficient to allege the commission thereof ; but it is the better course first to lay the intent, and then to state the particular felony which has been in fact committed. This was Lord Hale's advice ; and it has been sanctioned in the case of Rex v. Furnival, where a doubt occurred to the judge who tried the prisoner, whether the omission of the words " with intent to steal " would not vitiate the indictment, which charged tha prisoner only with burglariously breaking and entering the dwelling-house of one T. R., and then and there feloniously and burglariously stealing goods therein. But upon a case reserved the judges were of opinion that, on an indictment like this, the prisoner might well be con- victed of burglary, if the larceny was proved ; otherwise, if not. The reason of which appears to be, that where the in- dictment is confined to charging the burglary and felony, omitting the intent &c., then if the prisoner is acquitted of the felony, the indictment stands single, as a charge of burg- lary (or of burglariously and feloniously breaking and en- tering a dwelling-house in the night), and therefore defective, because it wants the direct allegation of the intent to commit a particular felonj- ; which intent is a necessary ingredient to complete the offence of burglary.^ In Commonwealth v. Hope,^ it was held that the charge of breaking and entering a house, and actually stealing there- from, though in effect charging two distinct offences, was to be punished only as one offence, of breaking and entering with an intent to steal. " That case," says Chief Justice Shaw, " was decided on the ground, that where breaking and enter- ing are averred, and an actual stealing at the same time, all 1 Rex V. Furnival, Russell & of indictments for burglary, both Ryan C. C. 445; S. C. 2 Lead, at common law and under the stat- Crim. Cas. 122. Jones v. State, utes, is fully stated. 11 N. H. 269 ; S. C. 2 Lead. Crim. ^ 22 Pick. 1. Commonwealth u. Cas. 12.3. In the note to these Tuck, 20 Pick. 356. Devoe v. cases, the law relating to the form Commonwealth, 3 Met. 316, 323. 440 CRIMINAL LAW. charged in one count, the charge of stealing is substituted for an averment of an intent to steal ; a mode of charging which is warranted by the precedents there cited. We think the distinction to be this : that where the breaking and en- tering and actual stealing are charged in one count, there is but one offence charged, and there can be but one penalty adjudged. But where they are averred in distinct counts, as distinct substantive offences, not alleged to have been com- mitted at the same time, and as one continued act ; if, in other respects, they are such offences as may be joined in the same indictment, the defendant may be convicted on both, and a judgment rendered, founded on both," ^ With regard to the first allegation above mentioned by Lord Hale, where the indictment lays the actual commission of felony, without laying the intent, the actual commission of felony must be proved. Where one was indicted for burg- lary and stealing, and it appeared that there were no goods stolen, but a burglary with intent to steal, and not being so laid, as it ought to have been, the prisoner was acquitted .^ So, also, if an indictment for burglary charge an actual rape, evidence of an assault with intent to ravish will not sup- port it.^ Even where an indictment for burglary charged the de- fendant with breaking and entering the house of J. D., with intent to steal the goods of J. W., and it appeared in evi- dence that no goods of any person of the name of J. W. were in the house, but that the name of J. W. had been inserted in the indictment by mistake, the judges held that the variance was fatal, and the defendant was accordingly ac- quitted.* But it has been held that where an indictment charges a^ burglarious breaking and entering a dwelling- house, with intent to steal, it need not be particularly stated whose goods they are which the indictment charges the 1 Josslyn V. Commonwealth, 6 ^ 2 East P. C. 514. Met. 236, 238. Lamed v. Com- ' Wilmot Law of Burglary, monwealth, 12 Met. 240, 244. 214. Crowley v. Commonwealth, 11 Met. * Eex v. Jenks, 2 Leach C. C. 575. Kite v. Commonwealth, 11 774; 2 East P. C. 514. Common- Met. 581. Jennings v. Common- wealth v. Shaw, 7 Met. 52. wealth, 105 Mass. 586. BURGLARY AND BREAKING ETC., BUILDINGS. 441 intent to steal.' It appears that if the name of the goods has once been correctly stated in the indictment, an error in the subsequent part will not vitiate it.^ A bailee may have such property in goods as to be considered the owner of them, if an indictment for burglary with intent to steal the goods, or an indictment alleging the actual stealing of them, lay the ownership in him.^ An indictment for burglary may allege an intent to commit felony, without alleging an actual felony committed. But in this case care must be taken that the actual felony done cor- respond with the felony laid, as intended to be done, other- wise the indictment will be bad.* But if in committing the felony laid in the indictment as intended to be committed, a person commit another felony, which results from, or is neces- sarily connected with, the felony intended, this will not vitiate the indictment. For it is a general rule, that a man who commits one sort of felony, in attempting to commit another, cannot excuse himself upon the ground that he did not intend the commission of that particular offence. Yet this, it seems, must be confined to cases where the offence intended is itself a felony.^ On an indictment against an accessory before the fact to the crime of breaking and entering a building in the night- time with intent to steal and stealing therein, it appeared that the breaking was through a thick brick wall into the vault of a bank. It was held that there was no variance, if there was any breaking and entering in the night-time, ' Regina o. Clarke, 1 C. & K. goods, allege the ownership of them 421, Coleridge, J., and Parke, B. exactly as in an indictment for burg- Regina v. Lawes, 1 C. & K. 62. lary at common law, and such al- 2 Wilmot Law of Burglary, 214. legation must be proved as laid. And see Regina v. Rudge, 1 Rus- Wilmot Law of Burglary, 217. So, sell on Crimes, 44 note ; Rex v. Ex- also, an indictment for burglary minster, 6 Ad. & El. 598; Regina with violence must state the per- V. Crespin, 11 Q. B. 913. Ante, son against whom violence has been p. 34. proved, and the proof must corre- ' Regina v. Bird, 9 C. & P. 44. spond with the allegation. Regina An indictment under the St. 7 & 8 v. Parfltt. 8 C. & P. 288. Geo. IV. ch. 29, § 11, for breaking * 2 East P. C. 514. 1 Russell out of a dwelling-house, having on Crimes, 43, 4th ed. committed felony therein, must, if ^ Wilmot Law of Burglary, 219. the felony be in having stolen 2 East P. C. 514. 442 CRIMINAL LAW. though the entry was not consummated till after daylight ; and that the defendant need not have known that the crime was to be committed in the night. If he procured or incited the commission of the offence, he cannot escape responsibility by leaving the time, place and manner of its execution to his associates.^ The Gen. Sts. ch. 161, § 10, enacts that " Whoever breaks and enters a dwelling-house in the night-time, with intent to commit the crime of murder, rape, robbery, larceny, or other felony, or after having entered with such intent, breaks such dwelling-house in the night-time, any person being then lawfully therein, and the offender being armed with a dan- gerous weapon at the time of such breaking or entry, or so arming himself in such house, or making an actual assault on any person being lawfully therein, shall be punished by imprisonment in the state prison for life," " or for any term of years." St. 1871, ch. 76. ' Commonwealth v. Glover, 111 Mass. 395. Mr. Justice Ames said: "If in the operation of making a practicable opening through the ■wall any one of the persons en- gaged in it had in the night-time passed through into the building, or thrust his hand or arm through, for the purpose of removing bricks, plastering or rubbish of any kind, in order to enlarge the opening or to make it more safe or convenient for use, it would be a breaking and entering in the night-time within the meaning of the indictment. Rex V. Bailey, Russell & Ryan C. C. 341. Rex V. Davis, Russell & Ryan C. C. 499. 2 East P. C. 487. It has been decided that the break- ing and entering need not be shown to have occurred 'on the same night. Thus in Rex v. Smith, Russell & Ryan C. C. 417, where the break- ing occurred on Friday night and the entry before sunrise on Monday morning, and both in pursuance of the same design, and separated only by what Mr. Justice Park called ' the natural accidents of the trans- action itself,' the indictment was sustained. It is well settled that it is a sufficient entry ' when the thief hreaketh the house, and his body, or any part thereof, as his foot or his arm, is within any part of the house.' 3 Inst. 64. 1 Hale P. C. 551. 2 East P. C. 490. In Gib- bons's Case, Fost. C. L. 107, reach- ing in the hand through a broken pane in order to unfasten a win- dow, was held sufficient. In this latter case, the immediate purpose of reaching in the hand was merely to open a passage, in order to have access to the goods which the thief intended to steal. It would have been none the less a burglarious entry if the purpose of the thief had been to wait for hours, or even until the dawn of day, before he should venture on the next step of actually opening the window, and climbing through it into the house." Ill Mass. 402, 403. BURGLARY AND BREAKING ETC., BUILDINGS. 443 1. Indictment for Burglary and Larceny. — Gen. Sts. oh. 161, § 10. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. aforesaid in the county aforesaid, the dwelling-house of E. F. there situate, feloniously and burglariously did break and enter, with intent * the goods and chattels ^ in the same dwelling-house then and there being, feloniously and burgla- riously to steal, take and carry away, and then and there, one teapot of the value of ten dollars, one sugar-basin of the value of fifteen dollars, and six teaspoons of the value of two dollars each, of the property, goods and chattels of one E. F.,^ in the same dwelling-house then and there being found, then and there feloniously and burglariously did steal, take and carry away ; contrary to the form of the statute in such case made and provided. 2. For Burglary by Breaking a Dwelling-house, the Offender being Armed -with a Dangerous Weapon. — Gen. Sts. oh. 161, § 10. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. afore- said in the county aforesaid, feloniously and burglariously did enter the dweUing-house of E. F. there situate, and one watch of the value of one hundred dollars, six table-spoons of the ' It is not necessary to lay the such were improperly described as intent with an ad tunc et ibidem, goods and chattels. Kegina v. Commonwealth v. Doherty, 10 Powell, 2 Denison C. C. 403; 5 Cox Cush. 52. C. C. .396. 2 The prisoner was indicted for * An acquittal on an indictment having burglariously broken and for breaking and entering a dwell- entered the house of the prosecutor ing-house and stealing therein the in the night-time, with intent to property of A, is no bar to a corn- steal the "goods and chattels" plaint for stealing in the same therein. The jury found that he dwelling-house, at the same time, broke and entered with intent to the property of B, without proof steal mortgage deeds. It was held, that A and B are the same persons, that, being subsisting securities for Commonwealth v. Hoffman, 121 the payment of money, mortgage Mass. 369. deeds are choses in action, and as 444 CRIMINAL LAW. value of four dollars each, and twelve teaspoons of the value of two dollars each, of the goods and chattels of the said E. F., in the same dwelling-house then and there being found, then and there feloniously did steal, take and carry away ; and that the said C. D. having so as aforesaid entered the said dwelling- house and having so committed the felony aforesaid, in man- ner and form aforesaid, therein afterwards in the night-time of the same day, at B. aforesaid in the county aforesaid, feloniously and burglariously did break the same dwelling- house, the said E. F. being then and there lawfully therein, and the said C. D. being then and there at the time of such entry armed with a dangerous weapon, to wit, ; con- trary to the form of the statute &c. 3. For Burglary, Larceny and Assault. — Gen. Sts. ch. 161, § 10. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. afore- said in the county aforesaid, the dwelling-house of one J. N. there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said J. N. in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away, and then and there in the said dwelling-house, two candle- sticks of the value of three dollars each, one silver tankard of the value of fifty dollars, and one silver pitcher of the value of one hundred dollars, of the property, goods and chattels of the said J. N. in the said dwelling-house then and there being found, then and there feloniously and burglariously did steal, take and carry away. And the jurors aforesaid upon their oath aforesaid do further present, that the said C. D. then and there in the said dwelling-house then being in the night-time aforesaid, in and upon the said J. N., in the said dwelling-house then and there lawfully being, feloniously, wilfully and maliciously did make an assault ; contrary to the form of the statute in such case &c. BURGLAEY AND BREAKING ETC., BUILDINGS. 445 4. For Burglary 'with Intent to Commit Felony and Assault. Gen. Sts. oh. 161, § 10. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. afore- said in the county aforesaid, the dwelling-house of one J. N. there situate, feloniously and burglariously did break and enter with intent to commit the crime of and that the said C. D. in the said dwelling-house then being, in and upon the said J. N., in the said dwelling-house then lawfully being, then and there maliciously and feloniously did make an assault, and the said C. D. in and upon the right thigh of the said C. D. then and there maliciously and feloniously did stab, cut and wound ; ^ contrary to the form of the statute in such cases made and provided. 5. For Burglary and Rape.2 — Gen. Sts. oh. 161, § 10. The jurors &c. upon their oath present, that John Bell of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. aforesaid in the county aforesaid, the dwelling-house of one Edward Styles there situate, feloniously and burglariously did break and enter, with intent then and there to commit the crime of rape, and then and there upon one Lucy Styles the wife of the said Edward Styles, violently and feloniously did make an assault and the said Lucy Styles then and there violently and against her will, feloniously did ravish and car- nally know ; ^ contrary to the form of the statute in such case made and provided. 1 It is not necessary to state the jury should be satisfied of the in- instrument or means by which the tent, the defendant could be con- injury was inflicted. Rex ». Briggs, victed of burglary. 1 Moody C. C. 318. Common- * The crime of rape need not be wealth V. Sowle, 9 Gray, 304. fully and technically set forth. 2 On this count, if the evidence Commonwealth v. Doherty, 10 of actual rape should fail, but the Cush. 52. 446 CRIMINAL LAW. 6. For Burglary and Larceny, the Offender being Armed 'vtrith a Dangerous Weapon. — Gen. Sts. oh. 161, § 10. That C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. aforesaid in the county aforesaid, the dwell- ing-house of one E. F. there situate, feloniously and burglari- ously did break and enter, with intent the goods and chattels of the said E. F., in the said dwelling-house then and there being, feloniously and burglariously to steal, take and carry away ; the said E. F. and divers other persons of his family being then and there lawfully in said dwelling-house, and the said C. D. being then and there, at the time of break- ing and entering said dwelling-house as aforesaid, armed with a certain dangerous weapon, to wit, a pistol, which was then and there capped and loaded with powder and leaden bullets ; and one silver tankard of the value of fifty dollars of the goods and chattels of the said E. F.,.in the dwell- ing-house aforesaid then and there being found, then and there feloniously and burglariously did steal, take and carry away ; contrary to the form of the statute in such case made and provided &c. 7. For having Entered a D-welling-house TO-ith Intent to Com- mit Felony Breaks such DTKrelling-house. — Gen. Sts. ch. 161, § 11. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. aforesaid in the county aforesaid, feloniously and burglariously did enter the dwelling-house of one E. F. there situate, with intent to commit the crime of And that the said C. D. being so as aforesaid in the said dwelling-house on the day and year aforesaid, in the night-time of the same day, then and there feloniously and burglariously did break ^ the said dwelling- house of the said E. F. ; contrary to the form of the statute in such case made and provided. 1 An indictment alleging that the if the words of the statute are prisoner " did break to get out," or " break out." Rex d. Compton, 7 " did break and get out," is bad, C. & P. 139. BURGLARY AND BREAKING ETC., BUILDINGS. 447 8. For Breaking and Entering a Building in the Night-time with Intent &c. — Gen. Sts. oh. 161, § 12.1 That C. D. of B. in the County of S. on the first day of Jane in the year of our Lord at B. aforesaid in the county aforesaid, in the daytime feloniously did break and enter a certain building, to wit, the shop of one E. F.^ there situate, with intent then and there in said shop to commit the crime of larceny ; and that the said C. D. then and there in the said shop, one silver pitcher of the value of one hundred dollars of the property, goods and chattels of the said E. F. in the said shop then and there being found, then and there feloniously did steal, take and carry away ; contrary to the form of the statute &c. 9. For Entering a Building in the Night-time without Breaking w^ith Intent &c., and Putting the Ow^ner in Fear. — Gen. Sts. ch. 161, § 13.3 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain building, to wit, of one E. F. there situate, in the night-time of the same day, feloniously did enter without breaking the same, with intent the goods and chattels of him the said E. F. in the building aforesaid then and there being, feloniously to steal, take and carry away, and him ^ This precedent may be adopted ceny. Commonwealth v. Hatha- in all other cases mentioned in the way, 14 Gray, 392. If it appears different sections of the statute, by that the larceny was not committed varying the allegations as to the in a building at the place men- time, and the description of the tioned, but was committed in a building broken and entered, ac- building at another place in the cording to the fact, and in the pre- same county, the defendant may be cise words of the statute. convicted of the larceny. Common- " This is a sufficient allegation, wealth v. Lavery, 101 Mass. 207. Commonwealth v. Bowden, 14 Gray, * If there was a breaking of the 103, and is supported by proof of dwelling-house in the daytime, this a larceny in a building called a precedent is to be adopted with "store." Commonwealth !). Riggs, only this alteration, that the words 14 Gray, 376. Commonwealth u. of the statute are to be used, to wit, Annis, 15 Gray, 197. If the build- " the dwelling-house of the said ing is insufficiently described, the E. F., there situate, in the daytime defendant may be sentenced for lar- did break and enter." 448 CRIMINAL LAW. the said E. F. then and there being lawfully in said building, then and there feloniously did put in fear ; contrary to the form of the statute in such case made and provided. 10. For Breaking and Entering a Vessel in the Daytime with Intent &c. — Gen. Sts. ch. 161, § 14. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain vessel of the property of one E. F., called the in the daytime, did break and enter with intent the goods, chattels and property of the said E. F., in the vessel aforesaid then and there being, feloniously to steal, take and carry away ; contrary to the form of the statute in such case made and provided. 11. For having in Possession Implements of Burglary -with Intent &c. — Gen. Sts. ch. 161, § 34.1 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, knowingly did have in his possession cer- tain implements, that is to say, ten skeleton keys adapted and designed for forcing and breaking open the dwelling- house of one E. F. there situate, with intent then and there in the night-time of the said day, the dwelling-house of the said E. P. there situate, feloniously and burglariously to break and enter, and then and there in the night-time as aforesaid, the property, goods and chattels of the said E. F., in the same dwelling-house then and there being, feloniously and burglariously to steal, take and carry away ; the said C. D. then and there well knowing the said implements to be adapted and designed for the purpose aforesaid, with intent then and there feloniously and burglariously to use and em- .ploy the said implements for the purpose aforesaid ; contrary to the form of the statute in such case made and provided. 1 Regina v. Oldham, 2 Denison monwealthw. Williams, 2 Cush. 582; C. C. 472 ; 5 Cox C. C. 551 ; 3 C. & K. Commonwealth v. Wilson, 2 Cash. 249. Regina u. Bailey, Dearsly C. C. 590; Commonwealth b. Choate, 108 244. As to the evidence, see Com- Mass. 458, 459. BURGLARY AND BREAKING ETC., BUILDINGS. 449 12. For being Pound by Night Armed with Intent to Break into a Dwelling-house and Commit a Felony therein.i That C. D. of B. in the County of S. on the first day of June in the year of our Lord in the night-time of the same day, at B. aforesaid in the county aforesaid, was found in the night-time as aforesaid then and there unlawfully armed with a dangerous weapon, to wit, a with intent of him the said C. D. then and there in the night-time as aforesaid, to break and enter the dwelling-house of one E. F. there situate, and then and there in the night-time as aforesaid in the said dwelling-house, feloniously to steal, take and carry away the goods, chattels and personal property of the said E.F., in the said dwelling-house then and there being ; against the peace &c., and contrary to the form of the statute in such case made and provided. 1 The indictment must, as in ton, J., also that it ought to allege burglary, allege the ownership and the particular felony intended to situation of the premises intended have been committed. Regina v. to be broken into; and per Cromp- Jarrald, Leigh & Cave C. C. 301. 29 450 CRIMINAL LAW. CHAPTER XXXIII. BY-LAWS AND ORDINANCES. Towns may make such necessary orders and by-laws, not repugnant to the laws of the State, for directing and manag- ing the prudential affairs, preserving the peace and good order, and maintaining the internal police thereof, as they may judge most conducive to the welfare of the town ; and may affix penalties for breaches of such orders and bj'^-laws not exceeding twenty dollars for one offence.^ The word "ordinance," as applied to cities, is synonymous with. the word "by-law."' 2 The ordinances and by-laws made in pur- suance of the authority thus conferred must not be repugnant to the laws of the State ; and must be reasonable, that is, not interfering with the liberty, property and business of the citizen more than is requisite to secure the lawful and proper object in view.^ It is no more true of by-laws than of statutes and con- tracts, that if one part is void the whole is necessarily void. If the part of a contract, statute or by-law, which is valid, can be separated from that which is void, and carried into effect, it may be done. And the principles by which it is decided whether such separation can be legally made, in cases of contracts and statutes, are well established.* The same principles are applicable to a by-law. Where a by-law is entire, each part having a general influence over the rest, if one part is void, the whole is void ; but where a by-law consists of several distinct and independent parts, though one or more of them is void, the rest are valid. And this rule 1 Gen. Sts. ch. 18, § 11. * Rand v. Mather, 11 Cush. 1. ^ Gen. Sts. ch. 3, § 7, cl. 21. Commonwealth u. Hitchings, 5 Gray, ' Commonwealth v. Patch, 97 485, 486. Warren v. Charlestown, Mass. 223. Commonwealth v. Cur- 2 Gray, 84. tis, 9 Allen, 266. BY-LAWS AND ORDINANCES. 451 is applicable to the different clauses of the same by- for where it consists of several particulars, it is, to all pur- poses, as several by-laws, though the , provisions are thrown together under the form of one.^ All penalties for breaches of the orders and by-laws of a town may be recovered on .complaint before a police court or a trial justice, and shall inure to the town, or to such uses as the town may direct.^ In a complaint, prosecution, or other process, founded on a special act of the Legislature, an ordi- nance or by-law of any city or town, or an order of the mayor and aldermen, it shall be sufficient to set forth the ofPence fully, plainly, substantially and formally ; and no part of such law, ordinance, by-law or order need be set forth.^ In all prosecutions before a police court or trial justice, under the by-laws of a city or town, the city solicitor, or other person appointed by the board of aldermen or select- man of such city or town, may enter a nolle prosequi, or do any other matter or thing which may be done by a district- attornej' in criminal prosecutions.* 1 Judgment in Amesburyu. Bow- the conclusion of the complaint, see ditch Mutual Fire Ins. Co. 6 Gray, Commonwealth v. Gay, 5 Pick. 44 ; 607. Commonwealth v. Worcester, 3 ^ Gen. Sts. ch. 18, § 12; oh. 120, Pick. 462. § 40. 4 Gen. Sts. ch. 172, § 20. 3 Gen. Sts. ch. 171, § 16. As to 452 CRIMINAL LAW. CHAPTER XXXIV. CEMETERIES AND BUEIALS.^ The Gen. Sts. ch. 28, § 12, enacts that, " Whoever wrong- fully destroys, impairs, injures, or removes, a tomb, grave- stone, building, fence, railing, or other thing, lawfully erected in or around a place of burial or cemetery, or a tree, shrub, orplant, situate within its limits ; or wrongfully injures a walk or path therein, or places rubbish or offensive matter within a place of burial or cemetery, or commits any nuisance therein, or in any way desecrates or disfigures the same, shall forfeit for every such offence not less than five nor more than one hundred dollars. Upon the trial of a prosecution for the recovery of such penalty, use and occupation for the pur- poses of burial shall be deemed sufficient evidence of title." In the case of Commonwealth v. ViaU,^ it was decided that cutting down trees upon a public burial-ground for purposes of private profit, without the consent of the public authori- ties having charge of it, is a violation of this section of the statute, although the person cutting down the trees is the owner of the fee of the land, and honestly believes that his acts are lawful. Mr. Justice Hoar, in delivering the opinion of the court, said : " We think the devotion of a piece of ground to the purposes of burial includes much more than the mere inter- ment of the remains of the dead. ' To bury our dead out of our sight,' a suitable provision for the pressing claims of decency and health, is the first, but not the only consid- eration. ' Christians,' says Sir Thomas Browne,^ ' have hand- 1 The law respecting monuments v. Wellington, 7 Allen, 299. Bates to the dead is stated in 2 Russell on v. Smith, 100 Mass. 181. Crimes, 965 note, 5th ed^ » " Urn Burial." 2 2 Allen, 512. Commonwealth CEMETERIES AND BURIALS. 453 somely glossed the deformity of death by careful considera- tion of the body, and civil rites which take off brutal ter- minations ; and though they conceived all reparable by a resurrection, cast not off all care of interment. . . . Since they acknowledged their bodies to be the lodging of Christ, and temples of the Holy Ghost, they devolved not all upon the sufficiency of soul-existence ; and therefore with long services and full solemnities concluded their last exequies.'^ With some religious denominations, the burial of the dead is a sacrament ; and church-yards and cemeteries are conse- crated by religious rites. . . . The fallen leaf and withered branch are emblems of mortality ; and in the opinion of many a tree is a more natural and fitting decoration of a cemetery than a costly monument." Complaint for Cuttmg down a Tree Growing in a Place of Burial.2 Gen. Sts. ch. 28, § 12. That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S. one willow-tree of the value of fifteen dollars of the property of one E. F. then situate and growing within the limits of a certain place of burial there, wrongfully, wUfully and maliciously did injure and destroy ; contrary to the form of the statute in such case made and provided. 1 We will quote in addition the to prove that a part of the lot splendid conclusion of the " Urn described was a public hurying- Burial : " " 'Tis all one to lie in St. ground, although the acts cora- Innocent's Church-yard as in the plained of were committed upon sands of Egypt; ready to be any that part. All the authorities af- thing in the ecstasy of being ever; firm that where place is stated, not as content with six foot as the as venue but as matter of local de- Moles of Adrianus." scription, the slightest variance be- ^ If an indictment contains an tween the description of it in the accurate description of a place of indictment and the evidence offered burial by metes and bounds, the concerning it will be fatal. Com- evidence must correspond with the monwealth ». Wellington, 7 Allen, averment; and it is not sufficient 299, 301. Ante, p. 37. 454 CRIMINAL LAW. CHAPTER XXXV. COMPOUNDING OFFENCES.^ Indictment at Common Law for Compounding a Felony. The jurors &e. upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord at B. in the County of S., one A. the wife of one J. N. feloniously stole, took and carried away one silver tankard of the value of fifty dollars of the goods and chattels of one J. S. ; contrary to the form of the statute in such case made and provided. And that the said J. S. of B. aforesaid in the county aforesaid, well knowing the said felony to have been by the said A. so as aforesaid done and committed, but contriving and intending unlawfully and unjustly to pervert the due course of law and justice in that behalf, and to cause and procure the said A., for the felony aforesaid, to escape with impunity, afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully did compound the said felony with the said J. N. the husband of the said A., and then and there did exact, take, receive and have of the said J. N. the sum of fifty dollars, for and as a reward for compounding the said felony, and desisting from all further prosecution against 1 The Gen. Sts. oh. 170, § 33 ; 200. Regina v. Roxburgh, 12 Cox ch. 171, § 28, define the cases in C. C. 8. Metcalf on Contracts, 226, which the compromise of a prosecu- 227. In re Mapleback, 4 Ch. D. tion shall be allowed. Keir v. Lee- 150; 13 Cox C. C. 374. Ante, pp. man, 6 Q. B. 308 ; in Exch. Cham. 6, 7. Blackstone expresses a disap- 9 Q. B. 371 ; S. C. 2 Lead. Crim. probation of this practice, as con- Cas. 216, 221. Cannon v. Rands, trary to the true poUcy of criminal 11 Cox C. C. 631. Rawlings v. Coal jurisprudence. Even a voluntary Consumers' Association, 43 L. J. forgiveness by the party injured M. C. 111. Jones u. Rice, 18 Pick, "ought not," he says, "in true 440; S. C. 2 Lead. Crim. Cas. 239. policy to intercept the stroke of jus- Partridge ». Hood, 120 Mass. 403. tice." 4 Bl. Comm. 364. 4 Stephen Commonwealth v. Pease, 16 Mass. Comm. 235 note. 91. Williams u. Bayley, L. R. 1 H. L. COMPOUNDING OFFENCES. 455 the said A. for the felony aforesaid ; and that the said J. S. on the day and year aforesaid, at B. aforesaid in the county aforesaid, did thereupon desist and from that time hitherto hath desisted, from all further prosecution of the said A. for the felony aforesaid ; ^ to the great hinderance of justice and against the peace of said Commonwealth. ' Where, after an alleged com- pounding, it appeared that the party charged had afterwards prosecuted for the felony to conviction, Mr. Justice Bosanquet directed an ac- quittal. Rex V. Stone, 4 C. & P. 379. " In some of the precedents, the allegation that the party has not prosecuted the offender is omitted ; but it may be a question, whether an indictment so framed would be good; because the offence against the public is not the taking of money from a thief, but the letting such thief escape without punish- ment. Indeed, if this allegation had been mere surplusage, and put in as matter of aggravation, as is sometimes done in indictments for misdemeanor, the learned judge would not have stopped the case on this objection." Reporters' note to Rex B. Stone. 456 CRIMINAL LAW. CHAPTER XXXVI. CONSPIRACY. A CONSPIEACY consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indict- able. But where two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, pro- mise against promise, actus contra actum, capable of being enforced if lawful ; punishable, if for a criminal object or for the use of unlawful means. ^ Conspiracy is generally a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.2 1 Mulcahy v. The Queen, L. R. 3 H. L. 306, 317. Regina ». Aspin- all, 2 Q. B. D. 58; 13 Cox C. C. 231. For the law relating to conspiracy, reference is made to the following cases: Commonwealth v. Eastman, 1 Cush. 180; Commonwealth v. Hunt, 4 Met. Ill; Commonwealth V. O'Brien, 12 Cush. 84; Common- wealth V. Prius, 9 Gray, 127; Com- monwealth II. Wallace, 16 Gray, 221; Commonwealth ». Waterman, 122 Mass. 43; United States v. Boyden, 1 Lowell, 266; White v. The Queen, Irish Rep. 10 Com. Law, 532; 13 Cox C. C. 318; Hey- mann ». The Queen, L. R. 8 Q. B. 102; 12 Cox C. C. 883; Regina v. Warburton, L. R. 1 C. C. 274; O'Connell v. The Queen, 11 Clark & Finnelly, 155 ; Burns v. Pennell, 2 House of Lords Cases, 497; King V. The Queen, 7 Q. B. 782; in Exch. Cham. 985. " I will venture to say that the case of King v. The Queen would have been differently decided if it had been tried at the present day." Brett, J. A., in Regina v. Aspinall, 46 L. J. M. C. 147. " The case of King v. The Queen is a very valuable case ; more even for the principles laid down than for the precise decision. It was argued with great precision in the Exchequer Chamber. The whole case is valu- able as overruling the Queen's Bench, who held that the conspiracy was stated with sufficient distinct- ness." Whiteside, C. J., in White V. The Queen, Irish Rep. 10 Com. Law, 529, 530. ^ Per Grose, J., in Rex v. Brisac, CONSPIRACY. 457 Conspiracy has been frequentlj- said to consist either of an agreement for an unlawful purpose, or to effect a lawful pur- pose by unlawful means. ^ But the correctness of the an- tithesis has been questioned on high authority ; ^ and it is clear that the terms lawful and unlawful, as here used, themselves require a definition. In many cases, too, it is difi&cult to dis- tinguish precisely between the purpose and the means, in cases of conspiracy.^ Where the act is in itself illegal, it is not necessary to state the means by which the conspiracy was effected. But where the act only becomes illegal from the means used to effect it, the illegality of it should be explained by proper statements.* It is usual to set out the overt acts ; that is to say, those acts which may have been done by any one or more of the conspirators, in order to effect the common purpose of the conspiracy. But this is not essentially necessary ; the con- spiracy itself is the offence ; and whether any thing have been done in pursuance of it or not is immaterial.^ Every pleading, civil or criminal, must contain allegations of the existence of all the facts necessary to support the charge or defence set up by such pleading. An indictment must, therefore, contain an allegation of every fact necessary ' to constitute the criminal charge preferred by it. As in order to make acts criminal they must always be done with a criminal mind, the existence of that criminality of mind must always be alleged. If, in order to support the charge, it is necessary to show that certain acts have been committed, it is necessary to allege that those acts were in fact com- mitted. If it is necessary to show that those acts, when they were committed, were done with a particular intent, it is 4 East, 171, cited with approval by 7th ed. White v. The Queen, 13 Mr. Justice Willes, in dehvering the Cox C. C. 318. opinion of the judges in Mulcahy * 3 Russell on Crimes, 131, 5th ed. V. The Queen, L. R. 3 H. L. 306, ^ Commonwealth v. Eastman, 1 317. Cush. 189. Commonwealth v. 1 Rex B.Seward, 1 Ad. & El. 713. Shedd, 7 Cush. 514. Regina v. Rex V. Jones, 4 B. & Adol. 349. Kenrick, 5 Q. B. 49 ; Dav. & Mer. 2 Rex V. Peck, 9 Ad. & El. 208. Rex v. Seward, 1 Ad. & El. 686. 706. Wright v. The Queen, 14 Q. 8 4 Stephen Comm. 238 note, B. 148. 458 CRIMINAL LAW. necessary to aver that intention. If it is necessary, in order to support the charge, that the existence of a certain fact should be negatived, that negative must be alleged. The first allegation thus mentioned is always contained in the preliminary assertion that the accused did the thing or things complained of "fraudulently," "falsely," " unlawfully," or " feloniously," &c. And that is the whole effect of this pre- liminary allegation. The necessity and the form of the allegations may be exem- plified in an indictment for false pretences or perjury. To support a charge of obtaining money &c., by false pretences, it is necessary to show, and therefore to allege, that the prisoner, with a wicked or criminal mind, stated something which, if true, would be an existing fact ; that he did so with intent to procure the possession of money &c. ; that he knew his statement was — that is to say, that so far as his mind was concerned he intended that his statement should be — false ; that by the statement he did so act on the mind of the prosecutor as that he did thereby obtain money &c. ; that the statement was, in fact, untrue, in the sense of being incor- rect. And both the last allegations are necessary facts of the charge ; for although the accused had a criminal intent, and believed that his statement was false, yet if in fact either the prosecutor was not thereby persuaded, or by chance the statement was not incorrect, the charge is not supported, the crime is not committed. And it was for want of the allega- tion that the pretences relied on by the prosecutor as the material false ones were in fact untrue, that the indictment was held bad in The King v. Perrott.^ So in perjury it is a necessary allegation that the statement on oath relied upon as perjury was false in fact, in the sense of being incorrect in fact. Though the accused believed he was swearing a false- hood, and was thereby morally perjured, yet if by chance his statement were true in fact, he could not be convicted of perjury .2 There is another rule with regard to pleading which must be enunciated, — the rule with regard to the effect to be given 1 2 M. & Sel. 379. Common- " judgment of Brett, J. A., in Re- wealth V. Strain, 10 Met. 523. gina v. Aspinall, 2 Q. B. D. 56, 57. CONSPIRACY. 459 to pleadings after verdict. It is thus stated in , Heymann v. The Queen : ' " Where an averment which is necessary for the support of the pleading is imperfectly stated, and the ver- dict on an issue involving that averment is found, if it ap- pears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by the verdict." Upon this it should be observed that the averment spoken of is " an aver- ment imperfectly stated," i.e. an averment which is stated, but which is imperfectly stated. The rule is not applicable to the case of the total omission of an essential averment. If there be such a total omission, the verdict is no cure. And when it is said that the verdict could not have been found without proof of the averment, the meaning is, the verdict could not have been found without finding this imperfect averment to have been proved in a sense adverse to the accused.^ Another rule is, that in considering an indictment on a writ of error, and, therefore, after verdict, it is not necessary for, and it is not open to, the court to inquire what facts were proved at the trial. The question is, whether, assuming the facts which are accurately alleged in the indictment to have been proved as alleged, and the facts which are imperfectly alleged to have been proved in a sense adverse to the accused, the charge would be supported. If it could, the indictment, on error after verdict, is sufficient. But if, assuming both the above-mentioned allegations of facts, the perfect and imper- fect allegations, to be proved respectively as before stated, the charge would not be supported for want of the existence of some other allegation, affirmative or negative, which has been totally omitted, then the indictment is bad notwith- standing the verdict. The verdict is only to be taken as con- clusive evidence that the facts alleged in the indictment 1 L. R. 8 Q. B. 102, 105. Ante, charged; the charge must be ex- pp. 97, 98. plicit enough to support itself." Per '^ After verdict in a criminal case, Lord Mansfield, in Rex v. Wheatly, "there is no latitude of intention 2 Burr. 1127; S. C. 1 Lead. Crim. to include any thing more than is Cas. 1, 3. 460 CEIMINAL LAW. accurately and inaccurately were proved in a sense adverse to the accused. If those facts so proved would not support the charge, the indictment is bad on a writ of error. It is necessary to determine what are the essential facts to be alleged in order to support a charge of conspiracy. Now, first, the crime of conspiracy is completely committed, if it is committed at aU, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary, in order to complete the offence, that any one thing should be done beyond the agreement. The con- spirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless, the crime is complete : it was completed when they agreed. It is not, of course, every agreement which is a criminal conspiracy. It is difficult, perhaps, to enunciate an exhaustive or a complete definition ; but agreements may be described which are un- doubtedly criminal. An agreement to accomplish an end forbidden by law, though by means which would be harmless if used to accomplish an unforbidden end, is a criminal con- spiracy. An agreement to accomplish, by means which are, if done by themselves, forbidden by law, an end which is harmless if accomplished by unforbidden means, is a crimi- nal conspiracy. An agreement made with a fraudulent or wicked mind to do that which, if done, would give to the prosecutor a right of suit founded on fraud, or on violence exercised on or towards him, is a criminal conspiracy.^ There may be, and probably are, others.^ " It has been doubted, sometimes," said the Lord Chief Justice in a recent case,^ " whether the law of England does not go too far in treating as conspiracies agreements to do acts which, if done, would not be criminal offences. It is sufficient to constitute a conspiracy, if two or more persons combine by fraud and false pretences to injure another.* It is not neces- sary to constitute a conspiracy that the acts agreed to be done should be acts which, if done, would be criminal. It is 1 Regina v. Warburton, L. R. ^ Regina v. Warburton, L. R. 1 1 C. C. 274; 40 L. J. M. C. 22. C. C. 274; 40 L. J. M. C. 22, a.d. 2 Judgment of Brett, J. A., in 1870. Regina v. Aspinall, 2 Q. B. D. 58, 59. * 3 Russell on Crimes, 116, 4th ed. CONSPIRACY. 461 enough if the acts agreed to be done, although not crimi- nal, are wrongful, i.e. amount to a civil wrong.^ The rule is, that when two fraudulently combine, the agreement may be criminal ; although if the agreement were carried out no crime would be committed, but a civil wrong only would be inflicted on a third party." In Massachusetts, the proper mode of charging a conspir- acy, and the facts necessary to be alleged in the indictment, are settled by a line of precedents.^ One leading principle is that the unlawful agreement constitutes the gist of the offence. Any averment of the acts done in execution of such conspiracy does not aid the indictment, and the proof of them is not necessary to a conviction. The indictment must there- fore set out an offence complete in itself, without the aid of the averment of illegal acts done in pursuance of the conspir- acy. The charge of " cheating and defrauding " does not necessarily import the commission of any indictable offence, either at common law or by statute. Therefore, when the object of the conspiracy is to " cheat and defraud," the means proposed to be used must be set out, and set forth in such detail as to show a conspiracy to effect the intended purpose by illegal means, — thus enabling the court to see the charac- ter of the acts proposed to be done in the accomplishment of the purpose of the intended conspiracy, and also apprising the defendant of the facts relied upon to constitute the offence with which he is charged.^ An allegation of a conspiracy to cheat and defraud " by means of false pretences" does not sufficiently set out the unlawful means proposed to be used. In an indictment for cheating by false pretences, such a general allegation would be clearly insufficient. Where it is introduced as the only legal foundation for the indictment, and the validity of the indictment depends entirely upon the conspiracy to use ille- ^ In the course of the argument ^ Commonwealth v. Hunt,4 Met. his lordship observed: "Even as- 111. Commonwealth v. Eastman, suming that no action or indictment 1 Cush. 225. Commonwealth v. would lie for such acts, the acts are Shedd, 7 Cush. 514. Common- wrongful, nevertheless, and there wealth v. O'Brien, 12 Cush. 84. is a remedy, viz., by proceedings in ' Commonwealth v. Wallace, 16 equity." Gray, 222, 223. 462 CRIMINAL LAW. gal means to cheat and defraud, those means must be set forth with more particularity than by the general allegation " of false pretences." ^ The appropriate formula runs thus : " Did unlawfully conspire, combine and agree ^ together falsely and fraudulently to cheat and defraud the said C. D. of a certain sum of money, to wit, the sum of dollars, under the false pretence^ that," stating the false pretence. The technical averment of the agreement and conspiracy, generally used in the indictment, charges that the defendants "did conspire, combine, confederate, and agree together;" but it is said that other words of the same import seem to be equally proper. To the counts for a conspiracy may be joined such other counts as the circumstances of the case may seem to require (not charging a felony), though they do not include a charge of conspir9,cy.* • An indictment for obtaining money by false pretences must negative by special averment the truth of the pretences.^ The falsity of the pretence is necessary in a statutory indict- ment for obtaining money by false pretences, and if the pre- tence turned out to be true, the offence would not have been committed. But it is otherwise in case of a conspiracy.^ The Court of Queen's Bench held that an indictment for a conspiracy to obtain goods, which states that the goods were obtained; must state whose property the goods were, 1 Commonwealth ». Wallace, 16 ' There is an allegation that Gray, 221, distinguishing Common- they agreed to use " false pretences." wealth 11. Eastman, 1 Gush. 225, It was urged that this was too gen- and Commonwealth v. Shedd, 7 eral, and therefore unjust. The Cush. 514. same argument was used and over- 2 The wicked mind or intention ruled in Rex v. Gill, 2 B. & Aid. of the defendants is alleged in the 204, Regina v. Gompertz, 9 Q. B. usual form ; namely, that they " un- 824, and in Sydserff v. The Queen, lawfully agreed." Per Brett, J. A., 11 Q. B. 245. Per Brett, J. A., 2 2Q. B. D. 60. In Regina !). Hamp, Q. B. D. 60. 6 Cox C. C. 167, 172, the first * 3 Russell on Crimes, 142, 5th count contained only the word ed. See the judgment of Lord " agree" and not " conspire; " and Ellenborough, C. J., in Rex v. on its being objected that this count Johnson, 3 M. & Sel. 550. did not charge a conspiracy. Lord ^ Rex v. Perrott, 2 M. & Sel. Campbell, C. J., said: "Nothing 379. turns on that. Conspire is nothing: ^ Per Brett, J. A. , in Regina v. agreement is the thing." Ante, Aspinall, 46 L. J. 145, 148. p. 460. CONSPIRACY. 463 or it will be insufficient. That where the object charged was a conspiracy to obtain from certain persons named divers goods, and to cheat and defraud them of the same, and they were obtained, and the parties defrauded, no precedent was to be found to show that an indictment was good which omitted to state whose the goods were. The conspiracy charged was to obtain divers goods, and to cheat and defraud them of the same, though perhaps that would have made no difference ; and as there was no statement to whom the goods belonged, the charge did not, of necessity, import any offence, as it was consistent with an attempt by the defendants to obtain by some means their own goods unlawfully detained from them ; and to hold that the use of the words " to cheat and defraud " necessarily implied that the goods belonged to the parties who were stated to be defrauded,, would be letting in a gen- erality, which was not shown ever to be allowed.^ If the indictment is general, the court will order the prose- cutor to furnish a bill of particulars of the charges to be relied upon, and that bill of particulars should give the same information to the defendants that would be given by a special count ; but the court will not compel him to state the specific acts to be proved, and the time and place at which they are alleged to have occurred.^ 1. For a. Conspiracy to Obtain Money by False Pretences against the Form of the Statute. 3 The jurors &c. upon their oath present, that C. D., E. F., and G. H., all of B. in the County of S. on the first day of ' Regina v. Parker, 3 Q. B. 292; try what we may call shortly ' swin- 2 G. & D. 709. Regina v. Bullock, dling,' i.e. obtaining money by" Dearsly C. C. 653. false pretences with intent to de- 2 Rex V. Hamilton, 7 C. & P. fraud, and attempts to do so, 448. Regina v. Rycroft, 6 Cox C. that is not the offence charged here, C. 76. because it is not stated that the 8 This count was held to be suffi- conspiracy was to obtain money, cient on error, in Latham v. The but to defraud. We do not, how- Queen, 5 B. & S. 635; 83 L. J. M. ever, when looking at a charge of C. 197. Blackburn, J.: "The ob- conspiracy to commit an offence, ject of the conspiracy is to defraud, require it to be set forth with all contrary to the form of the statute, the precision requisite in describing Although the Quarter Sessions can the offence itself. Here, therefore , 464 CRIMINAL LAW. June in the year of our Lord at B. aforesaid in the county aforesaid, contriving and intending to defraud one R. B. of his money, unlawfully, knowingly, and designedly did among themselves, combine, conspire, confederate and agree together, by divers false pretences against the form of the statute in such case made and provided, the said R. B. of his moneys to defraud ; against the form of the statute in such case made and provided and against the peace of said Commonwealth. 2. For a Conspiracy by the Maker of Tvro Promissory Notes and Two other Persons fraudulently to Obtain the said Notes from the Holder.l Mrst Count. — The jurors &c. upon their oath present, that B. C. W.of B.inthe County of Middlesex, L. P. G.of the same place, and J. M. of the same place, devising and intending to cheat, deceive and defraud one E. L. H., on the twentieth day of March in the year of our Lord at B. aforesaid in the county aforesaid, did, among themselves, unlawfully conspire, combine, confederate and agree together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said E. L. H. divers valuable securities of the property of the said E. L. H. ; that is to say, a certain promissory note for the payment of six thousand doUars, made by the said J. M. ; and a certain other promissory note for the payment of five thousand dollars, made by the said J. M. And that, in pursuance of the aforesaid conspiracy, combination, confederacy and agreement among them as aforesaid, the said B. C. W., afterwards, to wit, on the twenty-sixth day of March in the year afore- said, at B. aforesaid in the county aforesaid, did falsely, fraud- ulently and deceitfully pretend to the said E. L. H. that the said B. C. W. had a friend who wished to invest twenty before the jury could convict of indictment, it has frequently been this conspiracy, they must be satis- decided that this is not necessary, fled that the parties had conspired Sydserff v. The Queen, in error, 11 to defraud by false pretences and Q. B. 245, may be taken as an ex- against the statute. As to the false ample." pretences not being set out in the ^ 1 Cox C. C. Appendix, p. xiii. CONSPIRACY. 465 thousand dollars in the said J. M.'s paper, meaning thereby that the said B. C. W. had a friend who was willing and desirous to discount bills, of exchange accepted by, or prom- issory notes made by, the said J. M. to the amount of twenty thousand dollars, and by which friend the said B. C. W. could and would procure the said promissory note of and belonging to E. L. H. to be discounted, by means of which said false pre- tences, in pursuance of the aforesaid conspiracy, combination, confederacy and agreement, the said B. C. W., L. P. G. and J. M., afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, did unlawfully, falsely, fraudulently and deceitfully obtain, acquire and get into their hands and possession the said promissory notes of and belong- ing to the said E. L. H. ; whereas, in truth and in fact, the said B. C. W. had not any friend or other person who wished to invest twenty thousand dollars, or any other sum of money, in the said J. M.'s paper, or by whom he could procure the said promissory notes of the said E. L. H. to be discounted ; and whereas, in truth and in fact, the said B. C. W. did not procure the said promissory notes to be discounted ; and whereas, in truth and in fact, the said B. C. W. did not intend to procure the said promissory notes to be discounted ; but, on the contrary thereof, withdrew himself with the said promissory notes ; to the great damage of the said E. L. H., and against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said B. C. W., L. P. G. and J. M., devising and intending to cheat, deceive and defraud the said E. L. H., afterwards, to wit, on the said twentieth day of March in the year aforesaid, at B. aforesaid in the county afore- said, did, amongst themselves, unlawfully conspire, combine, confederate and agree together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said E. L. H. divers valuable securities of the property of the said E. L. H. ; that is to say, a certain promis- sory note for the payment of six thousand dollars, made by the said J. M., and a certain other promissory note for the payment of five thousand dollars, made by the said J. M. And that, in pursuance of the aforesaid conspiracy, combination, confed- 30 466 CRIMINAL LAW. eracy and agreement among them so had as aforesaid, the said B. C. W. afterwards, to wit, on the twenty-sixth day of March in the year aforesaid, at B. aforesaid in the county aforesaid, did falsely, fraudulently and deceitfully pretend to the said E. L. H. that the said B. C. W. had a friend who was willing and desirous to discount any bills of exchange , accepted or promissory notes made by the said J. M. to the amount of twenty thousand dollars, and that he could and would procure the said promissory notes of the property of the said E. L. H., so made by the said J. M. as aforesaid, to be dis- counted by the said friend of the said B. C. W. ; by means of which false pretences, in pursuance of the aforesaid con- spiracy, combination, confederacy and agreement, the said B. C. W., L. P. G. and J. M., afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county afore- said, did falsely, fraudulently and deceitfully obtain, acquire and get into their hands and possession the said promissory notes of the said E. L. H. ; whereas, in truth and in fact, the said B. C. W. had not any friend or other person who was willing or desirous to discount bills of exchange accepted, or promissory notes made by the said J. M. to the amount of twenty thousand dollars, or any amount whatever ; and whereas, in truth and in fact, the said B. C. W. did not pro- cure the said promissory notes to be discounted ; and whereas, in truth and in fact, the said B. C. W. did not intend to procure the said promissory notes to be discounted, but on the contrary thereof, withdrew himself with the said promissory notes ; to the great damage of the said E. L. H., and against the peace &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said B. C. W., L. P. G. and J. M., devising and intending to cheat, deceive and defraud the said E. L. H., afterwards, to wit, on the said twentieth day of March in the year of our Lord at B. aforesaid in the county aforesaid, did, among themselves, un- lawfully' conspire, combine, confederate and agree together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said E. L. H. divers valuable securities of the property of said E. L. H., CONSPIRACY. 467 that is to say, a certain promissory note for the payment of six thousand dollars and of the value of six thousand dollars, and a certain other promissory note for the payment of five thousand dollars and of the value of five thousand dollars ; to the great damage of the said E. L. H., and against the peace &c. 3. For a Conspiracy to Procure the Defilement of a Female. 1 The jurors &c. upon their oath present, that Mary Ann Mears of B. in the County of S., and Amelia Chalk of the same place, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did between themselves conspire, combine, confederate and agree together knowingly and designedly to procure, by false pretences, false representations and other fraudulent means, one Jo- hanna Carroll, then being a child under the age of twenty- one years, to wit, of the age of fifteen years, to have illicit carnal connection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown; against the peace &c. 4. For a Conspiracy to Charge a Man with a Rape with Intent to obtain Money.^ That C. D. and E. F., wife of the said C. D., and G. H., all of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, falsely, unlawfully and maliciously did conspire, combine, confederate and agree together, to charge and accuse him the said A. B., that he had then lately before feloniously ravished- and carnally known the said E. F., by force and against her will ; with intent thereby then and there unjustly 1 This count was held to suffi- ^ In an indictment for a conspir- ciently charge an indictable offence acy to accuse one of a crime, it is at common law, in Reginau. Mears, not necessary to allege that the de- Temple & Mew C. C. 414; 2 Deni- fendants procured, or intended to son C. C. 79; 4 Cox C. C. 423. procure, an indictment or other legal For a precedent for a conspiracy to process. Commonwealth v. Tib- induce a girl to become a common betts, 2 Mass. 535. prostitute, see Regina v. Howells, 4 F. & F. 160. 468 CRIMINAL LAW. and unlawfully to obtain and acquire to them the said C. D., E. F. and G. H., of and from him the said A. B. divers sums of money, for compounding the said pretended felony and rape so falsely and maliciouslj' charged on him as aforesaid ; against the peace of said Commonwealth. 5. Indictment for a Conspiracy to Procure by False Means the Rec- ognition upon the Stock Exchange of Stock in a Company not Genuine.i Second Count. — And the jurors aforesaid &c. do further present, that at the time of committing the offence herein- after in this count mentioned, the said Joseph Aspinall and William Whyte were directors, and the said George Parkyns Knocker was secretary, of a certain public company, to wit, 1 The defendants were indicted, as directors and promoters of a cer- tain company called the Eupion Fuel and Gas Company, Limited, for conspiring to induce the com- mittee of the Stock Exchange to order a quotation of the shares of the company in their official list, and thereby to induce and persuade divers of the liege subjects of our Lady the Queen, -who should there- after buy and sell the shares of the said company, to believe that the said company was duly formed and constituted, and had in all respects complied with the rules and regu- lations of the . . . said Stock Ex- change, so as to entitle the said company to have their shares quoted in the official list of the said Stock Exchange. Held, that the indict- ment disclosed an indictable offence. Regina o. Aspinall, 2 Q. B. D. 48, A.D. 1876. The case of Rex v. Berenger, 3 M. & Sel. 67 ; 2 Town- send State Trials, 1, was discussed and followed. On error it was held, affirming the judgment of the Queen's Bench Division, that this count was good after verdict, and sufficiently alleged a criminal con- spiracy; for that it contained alle- gations, some accurately and some inaccurately stated, which, as- suming them to have been proved in a sense adverse to the defend- ants, showed that there was an agreement by them to cheat and defraud by means of false pretences, those subjects who might buy shares in the company. That the court would take judicial notice of the fact that the shares were intended to be bought and sold on the Stock Exchange, and it was a necessary inference from the indictment and verdict that the intention of the conspirators was to induce the pub- lic to act on the belief that the company had been duly constituted &c. , and to deal in the shares of the company; and consequently that the intention of the conspirators was to defraud and cheat the buyers and sellers of shares. The case of King V. The Queen, 7 Q. B. 782, was distinguished by Brett, J. A. The case of Regina v. Aspinall was " carefully and laboriously consid- ered." Per Brett, L. J., in Re- gina V. Bradlaugh, 38 L. T. N. S. 118, 123 ; 3 Q. B. D. 626. CONSPIRACY. 469 the "Eupion Fuel and Gas Company, Limited," and the said Samuel Gurney Fry, John Saunders Muir and Charles Knocker were persons aiding and assisting in the establish- ment of the said company, and application had been made on behalf of the said company to the committee for general purposes of the said Stock Exchange, being the undertaking in the first count of this indictment mentioned, to order the quotation of the shares of the said new company in the offi- cial list of the said Stock Exchange, under and in pursuance of a certain rule duly issued and published by the said com- mittee, and which rule ^ is as follows, that is to say : The rule is here set out. And the jurors aforesaid upon their oath aforesaid do fur- ther present, that the said Joseph Aspinall, William Whyte, George Parkyns Knocker, John Saunders Muir, Charles Knocker and Samuel Gurney Fry had applied to and requested one Sir Robert Walter Garden and others, then being a firm of stock-brokers and members of the said Stock Exchange, and au- thorized the said Sir Robert Walter Garden and others to give the information hereinbefore mentioned, and to apply to the said committee to order the said quotation of the shares of the said company in the official list of the said Stock Ex- change, and the said George Parkyns Knocker had employed the said Sir Robert Walter Garden and others to sell divers shares on behalf of certain alleged vendors of patents, and the said Sir Robert Walter Garden and others had bargained for the sale of three hundred of the said shares. And the jurors aforesaid upon their oath aforesaid do fur- ther present, that the said Joseph Aspinall, William Whyte, George Parkyns Knocker, John Saunders Muir, Charles Knocker and Samuel Gurney Fry did heretofore, to wit, on the third day of February in the 5'ear of our Lord 1874, in 1 It was objected that the court notice that the public frauds were could not take judicial notice that a vendible commodities. But judges non-compliance with the rule set out are entitled and bound to take judi- in the count would, if known, depre- cial notice of that which is the com- ciate the price of shares. That is mon knowledge of the great major- like suggesting that the judges in ity of mankind and of the great Rex V. De Berenger, 3 M. & Sel. 67, majority of men of business. Per ought not to have taken judicial Brett, J. A., 2 Q. B. D. 61, 62. 470 CEIMINAL LAW. tlie City of London and within the jurisdiction of the said Central Criminal Court, unlawfully conspire, combine, con- federate and agree together and with divers other persons, whose names are to the jurors aforesaid unknown, by divers false pretences and artful and subtle means, devices and stratagems to injure and deceive the said members of the said committee, and to induce them, contrary to the true intent and meaning of the said rules hereinbefore in this count and in the first count of this indictment mentioned, to order a quotation of the shares of the said company in the official list of the said Stock Exchange, and thereby to induce and persuade divers of the liege subjects of our said Lady the Queen, who should thereafter buy and sell the shares of the said company, to believe that the said company was duly formed and constituted, and had in all respects complied with the rules and regulations of the said undertaking in the first count of this in- dictment described and mentioned, to wit, the said Stock Ex- change,' so as to entitle the said company to have their shares quoted in the official list of the said StocTc Exchange. And that the said Joseph Aspinall, William Whyte, George Parkyns Knocker, John Saunders Muir, Charles Knocker and Samuel Gurney Fry, and the said other persons whose names are to the jurors aforesaid unknown, in pursuance of the said un- lawful conspiracy, combination, confederacy and agreement, unlawfully and knowingly did falsely pretend to Samuel Herman de Zoete, Thomas Fenn and others, being members of the said committee for general purposes of the said Stock Exchange, that the number of shares of the said company applied for by the public was then 34,365, that the number of shares of the said company allotted unconditionally was then 34,365, and that the amount received by the said com- pany thereon was on application 10s. per share, amounting to the sum of £17,182 10s., that 15,000 of the said shares had then been allotted to the patentee, that no shares had been conditionally allotted ; and did thereby induce the said com- mittee for general purposes of the said shares to be quoted on the official list of the said Stock Exchange on and after the twenty-eighth day of May in the year aforesaid ; against the peace &c. CONSPIRACY. 471 6 . Conspiracy to Cause a Marriage Talsely to Appear of Record. 1 The jurors &c. on their oath present, that Edgar R. But- terworth, Maud M. Waterman, Lizzie Douglass, Henry M. Ingraham and Moses S. Marshall, all of Boston in the County of Suffolk, on the sixteenth day of March in the year one thousand eight hundred and seventy-five, at Boston aforesaid, with intent to cause it falsely to appear of record that one Roderick D. Richardson was lawfully married to said Maud, and with intent to injure said Richardson thereby, and to prevent said Richardson, he, said Richardson, then and ever since being an unmarried man, from contracting any marriage, except with said Maud, and with intent to cheat and defraud, unlawfully and wickedly did combine, conspire, confederate and agree together that said Marshall should then and there apply in person to Nicholas A. ApoUonio, the registrar of births, deaths and marriages, duly appointed and qualified, in said City of Boston, to record all facts concerning marriages, and should falsely represent to said registrar, that he, said Marshall, was said Roderick D. Richardson, said Richardson then being a citizen of said Boston, other than said Marshall, and should, in the ofi&ce of said registrar in said Boston, give notice and state that said Richardson and said Maud were both then res- idents of said Boston, and that said Richardson and Maud then intended shortly to be joined in marriage at said Boston, and should request and obtain from said registrar the certificate of said notice in such case required by law to be given by said registrar ; that thereafter at said Boston, said Butterworth, he, said Butterworth being then and there a justice of the peace for said County of Suffolk, duly commissioned and qualified, should falsely, and before, and without any marriage between said Maud and said Richardson, write a certain certificate and writing under the hand of and signed by him, said But- terworth, as such justice, purporting to be a copy of a truth- 1 A conspiracy to cause a mar- vent a person from contracting an- riage falsely to appear of record, and other marriage, is an indictable to obtain for that purpose from a offence. Commonwealth v. Water- justice of the peace a false certificate man, 122 Mass. 43. In this case, thereof, and from other parties false this indictment was held to b assertions that they were witnesses sufficient, to the ceremony, with intent to pre- 472 CRIMINAL LAW. ful and genuine record of a marriage, therein falsely to be alleged to have been solemnized by said Butterworth, as such justice at said Boston, between said Richardson and said Maud, pursuant to said notice, and said certificate to be obtained from said registrar in manner and form as aforesaid ; and that said Douglass and Ingraham should thereupon falsely and publicly pretend to have been present at such marriage as witnesses thereto ; and that said Maud should thereupon, without the knowledge of said Richardson, cause to be de- livered such copy of record of marriage, signed by said But- terworth, as aforesaid, to said registrar, at his said office, for record, as and for a true and genuine copy of a truthful and genuine record of marriage, and that thereafter said Maud should publicly assume to be the wife of said Richardson, and that the said Butterworth, Douglass, Ingraham and Marshall should declare such assumption to be just and true within their own knowledge.; and the jurors aforesaid upon their oath aforesaid do further present, that then and there, in pursu- ance of said conspiracy and agreement, said Marshall did then and there apply to said registrar and give said notice, and then and there pretend to be said Richardson, and did then and there receive such certificate of said notice from said registrar ; and said Butterworth did thereafter, to wit, on said day, at said Boston, as such justice, write and sign such false copy of record as and for a true certificate and copy of a truthful record of marriage, and said Douglass and Ingraham did then and there publicly declare themselves to have been witnesses of such marriage, and said Maud did thereafter cause said writing, signed by said Butterworth, to be duly entered and recorded in the office of said registrar, at said Boston ; and said Maud did thereafter publicly say and aver falsely, that she, said Maud, was the lawful wife of said Richardson, and said Butterworth, Douglass, Ingraham and Marshall did declare the same to be true as of their own knowledge. Whereas, in truth and in fact, said Marshall then and there was not Roderick D. Richardson, but said Richardson was a man other than said Marshall ; and said Roderick did not then and there, nor did he at any time, intend to be joined in CONSPIRACY. 473 marriage with said Maud ; nor did said Richardson desire said notice to be given to said registrar by said Marshall, or by any other person, or by himself, said Richardson ; nor did he, said Richardson, at any time before said notice was given as aforesaid, know that the same was to be given ; and whereas, in truth and fact, said Richardson was never joined in marriage by said Butter worth to said Maud, nor was he, said Richardson, ever married to any person whomsoever, nor was there any truthful record of any marriage between said Maud and said Richardson, all of which said Butter- worth, Douglass, Waterman, Ingraham and Marshall, at the time they so combined, confederated and agreed together as aforesaid, and at the time they committed the acts herein- before set forth, then and there all well knew. And so the jurors aforesaid upon their oath aforesaid do say, that said Butterworth, Marshall, Ingraham, Douglass and Waterman, at said Boston in said county on said sixteenth day of March in the year aforesaid, did unlawfully combine, conspire, con- federate and agree together, by the means and in form afore- said, to cause said Richardson falsely to appear of record to be married to said Maud; against the peace of said Com- monwealth. 7. For a Conspiracy to Indict Prosecutors for Keeping a House of 111 Fame and Extorting Money from them on Condition that such Prosecution should be Abandoned. The jurors &c. upon their oath present, that W. H. of B. in the County of Middlesex, and J. P. of the same place, devising and intending to injure one T. T., one J. W., and one G. Gr., and to extort and obtain from them divers moneys, heretofore, to wit, on the twenty-third day of April in the year of our Lord at B. aforesaid in the county afore- said, did among themselves, unlawfully and corruptly con- spire, combine, confederate and agree together to accuse, charge and indict the said T. T., J. W. and G. G., together with one M. T., one S. W., and one M. L., for keeping a house of ill fame, and by means of such charge, accusation and indictment, to obtain and acquire to themselves from the said T. T., J. W. and G. G., divers of the moneys of the said 474 CRIMINAL LAW. T. T., J. W. and G. Gr. respectively, and to deprive them thereof. And the jurors aforesaid upon their oath aforesaid do further present, that, in pursuance of the said conspiracy, the said W. H. and J. P. did afterwards, to wit, on the day and year aforesaid, in the Superior Court then holden at B, in the County of Middlesex, prefer a complaint to a certain grand jury then sworn and charged to inquire for the body of the County of Middlesex, against the said T. T., J. W., G. G., M. T., S. W. and M. L., for keeping a house of ill fame, and did then and there cause the said grand jury to find and pre- sent an indictment against the said T. T., J. W., G. G., M. T., S. W. and M. L. ; to the great damage of the said T. T., J. W. and G. G., and each of them, and against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. H. and J. P., devising and intending as aforesaid, heretofore, to wit, on the day and year aforesaid, at B. aforesaid in the county afore- said, did again unlawfully and corruptly conspire, combine, confederate and agree together falsely to charge, accuse and indict, and procure to be indicted, the said T. T., J. W. and G. G., for keeping a house of ill fame, and by means of such charge, accusation and indictment, to obtain and acquire to themselves of and from the said T. T., J. W. and G. G., and each of them, divers of the moneys of the said T. T., J. W. and G. G., respectively ; to the great damage of the said T. T., J. W. and G. G., and each of them, and against the peace &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. H. and J. P., devising and intending as aforesaid, heretofore, to wit, on the day and year aforesaid, at B. aforesaid in the county afore- said, did again unlawfully and corruptly conspire, combine, confederate and agree together falsely to charge, accuse and indict, and procure to be indicted, the said T. T., J. W. and G. G., for keeping a house of ill fame ; to tfce great damage of the said T. T., J. W. and G. G., and each of them, and against the peace &c. Fourth Count. — And the jurors aforesaid upon their oath CONSPIRACY. 475 aforesaid do further present, that the said W. H. and J. P., contriving and intending as aforesaid, heretofore, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, did again unlawfully and corruptly conspire, com- bine, confederate and agree together, by means of divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from the said T. T., J. W. and G. G., and each of them, divers of the moneys of the said T. T., J. W. and G. G. respectively, and to cheat, deprive and defraud them thereof; to the great damage of the said T. T., J. W. and G. G., and each of them, and against the peace &c. Fifth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. H. and J. P., contriving and intending to injure one J. W., and to extort and obtain from him divers moneys, heretofore, to wit, on the sixteenth day of July in the year of our Lord at B. in the County of Middlesex, did, between themselves, unlaw- fully and corruptly conspire, combine, confederate and agree together, to charge, accuse and indict the said J. W., to- gether with one F. A., one E. J., one M. S., and S. G., for keeping a house of ill fame, and also a common, ill-governed and disorderly house, and by means of such charge, accusa- tion and indictment, to obtain and to acquire to themselves from the same J. W., divers of the moneys of the said J. W., and to deprive him thereof. And the jurors aforesaid upon their oath aforesaid do further present, that, in pursuance of the said conspiracy, the said W. H. and J. P. did afterwards, to wit, on the day and year last aforesaid, at the Superior Court begun and holden at B. aforesaid within and for the said County of Middlesex, at B. in the said County of Mid- dlesex, prefer a complaint to the grand jury then and there sworn and charged to inquire for the body of the said County of Middlesex, against the said F. A., J. W., R. J., M. S. and S. G., for keeping a house of ill fame, and also for keeping a common, ill-governed and disorderly house, and did then and there cause the said grand jury to find and present an indict- ment against the said F. A., J. W., R. J., M. S. and S. G. ; to the great damage of the said J. W., against the peace &c. 476 CRIMINAL LAW. Sixth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W.-H. and J. P., contriving and intending as last aforesaid, heretofore, to wit, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, did again unlawfully and corruptly con- spire, combine, confederate and agree together to charge, accuse and indict, and procure to be indicted, the said J. W. for keeping a house of ill fame, and also a common, ill-gov- erned and disorderly house, and by means of such charge, accusation and indictment, to obtain, extort and acquire to themselves of and from the said J. W. divers of the moneys of the said J. W., and to deprive him thereof; to the great damage of the said J. W., and against the peace &c. Seventh Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. H. and J. P., contriving and intending as last aforesaid, heretofore, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, did again unlawfully and corruptly conspire, com- bine, confederate and agree together, by means of divers false pretences and subtle means and devices, to extort, obtain and acquire to themselves of and from the said J. W. divers of the moneys of the said J. W., and to cheat, deprive and defraud him thereof; to the great damage of the said J. W., and against the peace &c. Eighth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. H. and J. P., not regarding the laws of this Commonwealth, and corruptly devising and intending to pervert the same laws to unjust, oppressive and extortionate ends and purposes, heretofore, to wit, on the twenty-third day of April in the year of our Lord at B. in the County of Middlesex, unlawfully did conspire, combine, confederate and agree together to cause it to be presented, upon the prosecution of the said W. H. and J. P., upon the oath of a certain grand jury, to wit, a certain grand jury then sworn and charged to inquire for &c., for the body of the said County of Middlesex, in the Superior Court &c., that one T. T., one J. W., and one G. G. had kept, and then were keeping, within the said County of Middlesex, a certain house of ill fame, and a cer- CONSPIRACY. 477 tain common, ill-governed and disorderly house, to the com- mon nuisance of the citizens of &c., and having caused the said indictment to be presented, as in this count aforesaid, afterwards, for money, lucre and gain, to be paid, made and given by the said T. T., J. W. and G. G., to the said W. H. and J. P., corruptly, unlawfully and contrary to the due course of law, to forego and altogether abandon the prose- cution of the said indictment ; to the gain and profit of the said W. H. and J. P., to the great hinderance and perversion of public justice and against the peace &c. Ninth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. H. and J. P., not regarding the laws of this Commonwealth, and corruptly devising and intending to pervert the same laws to unjust, oppressive and extortionate ends and purposes, heretofore, to wit, on the sixteenth day of July in the year of our Lord at B. in the County of Middlesex, unlawfully did con- spire, combine, confederate and agree together to cause it to be presented by a certain grand jury, to wit &c., then sworn and charged to inquire for the said Commonwealth at the &c., for the County of Middlesex, holden in and for the said County of Middlesex at B. in the said County of Middlesex, that one J. W. had kept, and then was keeping, at B. in the said County of Middlesex, a certain house of ill fame, and a certain common, ill-governed and disorderly house, to the common nuisance of the citizens of said Commonwealth, and having caused the said last-mentioned indictment so to be presented and found afterwards, for money, lucre and gain, to be paid and given by the said J. W. to the said W. H. and J. P., corruptly, unlawfully and contrary to the due course of law, to forego and altogether to abandon the prosecution of the said indictment; to the gain and profit of the said W. H. and J. P., to the great hinderance and perversion of public justice and against the peace &c. 478 CRIMINAL LAW. 8. For a Conspiracy to Defraud a Railway Company, by Travelling without a Ticket on some Portion of the Line, Obtaining a Ticket at an Intermediate Station and then Delivering it up at the Terminus, as if no Greater Distance had been Travelled over by the Passenger than from such Intermediate Station to the Terminus.^ The jurors &c. upon their oath present, that heretofore and before and at the time of the committing of the offence hereinafter next mentioned, the London and North-Western Railway Company used, worked and employed a certain rail- way called the London and North-Western Railway, for the purpose of conveying passengers and goods thereon for hire, part of which said railway runs from a certain railway station at Birmingham in the County of Warwick, to a certain other railway station, called the Willesden Station, to wit, at Wil- lesden in the County of Middlesex, thence to a certain other railway station, called the Camden Station, to wit, at Saint Pancras in the said County of Middlesex, and thence to a cer- tain other railwa}"- station, called the Euston Station, to wit, at S. P. aforesaid in the county last aforesaid. That at the time of the committing of the offence hereinafter next men- tioned, the said company were lawfully entitled to have, demand and receive of and from every person conveyed by the said company as a third-class passenger over that part of the said railway which runs from the said station at Birming- ham to the said Willesden Station, the sum of two dollars, and of and from every person conveyed as a third-class pas- senger over that part of the said railway which runs from the' said Willesden Station to the said Euston Station, and no further or greater distance, the sum of twenty-five cents. That before and at the time of the committing of the offence hereinafter next mentioned, the said company, upon payment of the proper charges in that behalf, had been and were in the habit of granting to persons requiring to be conveyed by the said company, as passengers upon the said railway, cer- tain tickets denoting the railway stations from and to which such persons respectively might require to be conveyed, 1 4 Cox C. C. Appendix, p. xxxviii. CONSPIRACY. 479 which said tickets, when delivered up to the said company at the said stations, denoted thereupon as the station to which such persons required to be conveyed, or at any other station between such last-mentioned stations and the station from which such persons respectively required to be conveyed, were vouchers in favor of such persons delivering the same, and denoted and were accepted and received by the said company, in the absence of notice to the said company, as vouchers denoting that such persons had paid and discharged all the proper charges due to the said company in respect to their conveyance as passengers upon the said railway. That heretofore and before and at the time of the committing of the offence hereinafter next mentioned, to wit, on the fourth day of January in the year of our Lord one William Williams, at his own request and instance, had been con- veyed by the said company as a third-class passenger over that part of the said railway which runs from the said sta- tion at Birmingham to the said Willesden Station, where- upon the said William Williams then and there became and was justly and truly indebted to the said company in the said sum of two dollars, and which said sum of two dollars the said company were then and there lawfully entitled to have, demand and receive of and from the said William Williams for and in respect of such his conveyance as aforesaid. And that the said William Williams of Willesden in the County of Middlesex, and William Brown, of the same place, .laborer, and divers other evil-disposed persons whose names to the jurors aforesaid are as yet unknown, devising and intending to cheat, deceive, injure and defraud the said company in the premises, afterwards, to wit, on the day and year aforesaid, and whUe the said William Williams was so justly and truly indebted to the said company as aforesaid, and while the said company were so entitled to have, demand and receive of and from the said Wil- liam Williams the said sum of two dollars as aforesaid, at Willesden aforesaid in the County of Middlesex aforesaid, unlawfully did conspire, combine, confederate and agree together to purchase and procure of the said company, at 480 CRIMINAL LAW. the said Willesden Station, for the sum of twentj'^-five cents, one of the said tickets, so granted by them as aforesaid, denoting that the person to whom such ticket had been granted, had required to be conveyed from the said Willes- den Station to the said Euston Station, and no further or greater distance upon the said railway, and that all the proper moneys due to the said company in respect of such last-mentioned conveyance, had been paid and discharged. And afterwards that the said William Williams and William Brown should travel together on the said railway from the said Willesden Station to the Camden Station, and thence to the said Euston Station, the said Camden Station being a railway station between the said Willesden Station and the said Euston Station, and should at the said Camden Station fraudulently and deceitfully produce such ticket to the said company and their servants as a ticket granted to the said William Williams at the commencement of his journey upon the said railway, as a voucher that the said William Williams had paid and discharged all the proper charges due to the said company in respect of the conveyance of the said Wil- liam Williams upon the said railway, and as well by means of the said ticket as by divers false pretences, unlawfully, deceitfully and fraudulently to cause it falsely to appear to the said company that the said William Williams had not been conveyed as a passenger any greater or other distance upon the said railway than from the Willesden Station afore- said to the said Camden Station : and that the said William Williams had paid to the said company aU the proper charges for his conveyance as a passenger upon the said railway, and fraudulently and deceitfully to induce and persuade the said company and their servants to accept and receive the said ticket in satisfaction and discharge of all and every the charges to which the said William Williams was then and there liable in respect of such his conveyance as aforesaid, and as a voucher to the effect that such charges had been fully paid and satisfied to the said company by the said William Williams, and in manner aforesaid to deceive, injure and prejudice the said company, and to defraud the said company of the said sum of two dollars, in which the said CONSPIRACY. 481 William Williams was so indebted as aforesaid, and mutually to aid and assist one another in perfecting and putting in execution the said unlawful and wicked conspiracy, combina- tion, confederation and agreement. That the said William Williams and William Brown, in fraudulent collusion with the said other evil-disposed persons in prosecution and pursu- ance of the said unlawful combination, conspiracy, confed- eracy and agreement, did, on the fourth day of January in the year of our Lord and while the said William Wil- liams was indebted as aforesaid, purchase and procure of the said company, at the said Willesden Station, for the sum of twenty-five cents, a certain ticket denoting that the person to whom such ticket had been granted had required to be conveyed from the said Willesden Station to the said Euston Station, and no further or greater distance on the said rail- way, and had paid all the proper charges for such convey- ances, and afterwards did travel again on the said railway to the said Camden Station, being a railway station between the said WUlesden Station and the said Euston Station, and there at the said Camden Station did produce and deliver the said ticket to one William Ludlow Penson, then and there being a servant of the said company, as a ticket granted to the said WiUiam Williams at the commencement of his journey as a passenger on the said railway, and unlawfully, fraudulently, deceitfully and injuriously offer the said ticket to the said William Ludlow Penson as a voucher to the effect that all the charges lawfully to be made by the said company upon the said William Williams in respect of his conveyance upon the said railway had been paid and discharged by the said William Williams, and did thereby then and there endeavor to cheat and defraud the said company of the said sum of two dollars, so due to them from the said William Williams for such conveyance of the said William Williams to the said Willesden Station as aforesaid ; to the great injury and deception of the said company and against the peace &c. Second Count. — That heretofore, and before and at the time of the committing of the offence hereinafter next mentioned, the said William WUliams was justly and truly indebted to the said London and North-Western Railway Company in 31 482 CRIMINAL LAW. the sum of two dollars, for the conveyance of the said Wil- liam Williams as a passenger on a certain part of the said London and North-Western Railway Company, that is to say, from Birmingham in the County of Warwick, to Willes- den in the said County of Middlesex. That the said William Williams and William Brown, afterwards, to wit, on the day and year aforesaid, being possessed of a certain ticket of no value to the said company, granted by the said company, and denoting that the person having possession thereof was enti- tled to be conveyed by the said company on a certain other part of the said railway, that is to say, from Willesden afore- said to the said railway station called the Camden Station, and thence to the said station called the Euston Station, free of all charge for and in respect of such conveyance ; after- wards, to wit, on the day and year aforesaid, and while the said William Williams was so justly and truly indebted as last aforesaid, at S. P. aforesaid in the County of Middlesex aforesaid, unlawfully did conspire, combine, confederate and agree together, and with divers other evil-disposed persons, whose names to the jurors aforesaid are as yet unknown, unlawfully, knowingly, fraudulently and deceitfully falsely to pretend and to cause it falsely to appear to the said Company and their servants that the said William Williams had been conveyed by the said company no further or other distance on the said railway than from Willesden aforesaid to the said station called the Camden Station, and that the said William Williams was not indebted to the said Railway Company, or liable to pay them any sum of money for his conveyance upon the said railway, and by the false pretences and appear- ances iii this count aforesaid, to induce and persuade the said company and their said servants to accept and receive the said ticket in this count mentioned, as a voucher to the effect that all claims, charges and demands of the said com- pany on the said William Williams, in respect of such con- veyance as a passenger on the said railway, had been fully paid and discharged, and for and in full satisfaction of all claims, charges and demands whatsoever of the said company upon the said William Williams, for his conveyance as a passenger on the said railway, and thereby unlawfully, CONSPIRACY. 483 wrongfully, unjustly and fraudulently to enable the said William Williams to avoid, escape, evade, and elude and with intent then and there that the said William Williams should thereby unlawfully, wrongfully, injuriously and fraudulently avoid, escape, evade and elude the payment of the said sum of two dollars, so due to the said company as in this count aforesaid, and to hurt, injure, deceive, prejudice and defraud the said company in manner in this' count men- tioned ; to the great injury &c., and against the peace &c. Third Count. — That heretofore, and before and at the time of the committing of the offence hereinafter next mentioned, the said William Williams was indebted to the said London and North- Western Railway Company in a certain sum of money, to wit, the sum of two dollars, and that the said Wil- liam Williams and WUliam Brown, being evil-disposed per- sons, afterwards, to wit, on the day and year aforesaid, at Willesden aforesaid in the County of Middlesex aforesaid, unlawfully did conspire, combine, confederate and agree together, and with divers other evil-disposed persons whose names to the jurors aforesaid are as yet unknown, by divers false pretences and by divers crafty, indirect, false, fraudu- lent and deceitful acts, ways, means, devices, stratagems and contrivances, to enable the said William Williams to avoid, escape, evade, elude and withhold the payment of the said sum of two dollars to the said company and to cheat, defraud and altogether deprive the said company of the said debt in this count mentioned, and of all profit, benefit and advan- tage to the said company arising and to arise from the same ; to the great injury and deception of the said company and against the peace &c. 9. For a Conspiracy to Induce a Person of Unsound Mind to Sign a Paper authorizing the Defendants to take Possession of his Goods.l The jurors &c. upon their oath present, that E. C. of B. in the County of S., and J. C. the elder, of B. aforesaid and county aforesaid, and S. his wife of the same place, J. C. the younger of B. aforesaid and county aforesaid, and J. S. of 1 1 Cox C. C. Appendix, p. xxvii. 484 CRIMINAL LAW. B. aforesaid and county aforesaid, and W. K. of B. aforesaid and county aforesaid, and C. C, otherwise called C. F., of B. aforesaid and county aforesaid, on the twentieth day of November in the year of our Lord at B. in the County of S., unlawfully and maliciously did conspire, combine, confederate and agree together, to defraud one J. R. of certain cattle, goods and chattels, of great value, to wit, of the value of five hundred dollars, and then and there to obtain and acquire the same to themselves. And the jurors aforesaid upon their oath aforesaid do further pre- sent, that the said E. C, J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., in pursuance of the said conspiracy, did on the day and year aforesaid, at B. aforesaid and county aforesaid, fraudulently induce and procure the said J. R. to sign a paper writing purporting to authorize them to take possession of and sell the said cattle, goods and chattels, the said J. R. then and there being of unsound mind and weak and diseased in body and wholly incapable of understanding and not understand- ing the meaning and effect of the said paper writing. And the jurors aforesaid upon their oath aforesaid do further present, that the said E. C, J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., in further pursuance of the said conspiracy, did, on the day and year aforesaid, at &c., and under color and pretence of the said paper writing so signed by the said J. R. as afore- said, seize and take possession of divers cattle, goods and chattels, to wit, one horse, one cart, five chairs, five tables, of the said J. R., of great value, to wit, of the value of five hundred dollars, and did then and there carry away, sell, dispose of and convert/ the same to their own use ; to the great damage of the said J. R., and against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said E. C, and J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., contriving to injure the said J. R., and as much as in them lay, unlawfully to ruin him in his trade and business of a which he then and there used, exer- cised and carried on, and to prevent and hinder him from CONSPIRACY. 485 using, exercising and carrying on the said trade and business in as full, ample and beneficial a manner as he was used and accustomed to do, on the twentieth day of November in the year of our Lord at B. aforesaid in the county afore- said, unlawfully and maliciously did conspire, combine, con- federate and agree together, with divers indirect, subtle and fraudulent means and devices, to injure, oppress and impov- erish the said J. R., and wholly to prevent and hinder him from using, exercising and carrying on his said trade and business of to the great damage of the said J. R., and against the peace &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said E. C, J. C. the elder, and S. his wife, J. C. the younger, J. S., W. K., and C. C, otherwise called C. F., on the day and year last afore- said, at B. aforesaid and county aforesaid, at &c., unlawfully and maliciously did again conspire, combine, confederate and agree together, by divers indirect, subtle and fraudulent means and devices, to injure, oppress, impoverish and wholly ruin R. R., and wholly to prevent and hinder him from carry- ing on his trade and business of which he then and there exercised and carried on ; to the great damage of the said R. R., and against the peace &c. 10. For Conspiracy to Defeat the Course of Public Justice by- giving False Evidence and Suppressing Facts on an Inquiry into a Charge of Felony before a Magistrate.! The jurors &c. upon their oath present, that before the commission of the offence by W. C. and R. C, hereinafter mentioned to have been committed by them, one F. S. had been charged before J. T., Esquire, one of the magistrates of the Police Courts of the metropolis sitting at the Police Court, Greenwich in the County of Kent and within the Metropolitan Police District, on suspicion of having commit- ted a certain felony, to wit, of having feloniously broken and entered the dwelling-house of one J. M., and stolen therein divers goods, chattels and moneys of the said J. M. And the 1 5 Cox C. C. Appendix, p. ix. 486 CRIMINAL LAW.. jurors aforesaid upon their oath aforesaid do further present, that at the time of the commission of the offence hereinafter alleged to have been committed by the said W. C. and R. C, to wit, on the thirtieth day of September in the year of our Lord at Greenwich in the County of Kent, the said W. C. and R. C. knew and were acquainted with divers matters, facts, circumstances and things material to be inquired into by the said J. T., as such magistrate as afore- said, and touching and concerning the said charge and the said subject-matter thereof, all and every of which said mat- ters, facts, circumstances and things it then and there was the duty of the said W. C. and R. C. to make known and reveal to the said J. T., as such magistrate as aforesaid, and which the said W. C. and R. C. were then and there required in behalf of said Commonwealth by the said J. T., as such magistrate as aforesaid, to make known, discover and reveal to the said J. T., as such magistrate as aforesaid. And the jurors aforesaid upon their oath aforesaid do further present that the said W. C. of Greenwich in the County of Kent, and R. C. of the same place, being evil-disposed persons, and con- triving and intending as much as in them lay to pervert the due course of law and justice, and not regarding their said duty in that behalf, on the said thirtieth day of September in the year aforesaid, at G. aforesaid in the county aforesaid, unlawfully did conspire, combine, confederate and agree together to deceive the said J. T., so being such magistrate as aforesaid, in the premises, and to withhold and conceal from the said J. T. the said matters, facts, circumstances and things, and falsely to represent to the said J. T., so being such magistrate as aforesaid, that they and each of them the said W. C. and R. C. were ignorant of all the said several matters, facts, circumstances and things, and falsely to swear before the said J. T., to the effect last aforesaid, and by such false swearing and divers deceitful, false and indirect means, ways and methods, to perfect and put into effect the said conspiracy, combination, confederacy and agreement, and to procure the said J. T., as such magistrate as afore- said, to dismiss the said charge, and mutually to aid and assist one another in perfecting and putting in execution the CONSPIRACY. 487 said conspiracy, combination, confederacy and agreement ; against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. C, on the said thirtieth day of September in the year aforesaid, at Greenwich aforesaid in the County of Kent aforesaid, unlaw- fully did conspire, combine, confederate and agree together, and with divers other persons, whose names to the jurors aforesaid are unknown, wilfully and corruptly to give false evidence, and wilfully and corruptly to swear that which was false, upon the examinations upon oath of the said W. C. and R. C, before the said J. T., Esquire, then being one of the magistrates of the Police Courts of the metropolis, acting at one of the said Courts, to wit, at the Greenwich Police Court in the County of Kent, touching and concerning a cer- tain charge then depending before the said J. T., to wit, a charge against one F. S., of having feloniously broken and entered a certain dwelling-house of one J. M., and stolen therein divers goods, chattels and moneys of the said J. M. ; against the peace &e. 11. For Conspiring Wrongfully to Charge the Inhabitants of a To-wn with the Maintenance of a Child.l The jurors &c. upon their oath present, that J. P. of B. in the County of Middlesex, and Caroline his wife, and divers other persons whose names are to the jurors aforesaid unknown, wrongfully, fraudulently and unjustly devising and intending to charge the inhabitants of the town of B. in said county with the maintenance of a certain male child, of very tender years, to wit, of the age of one day, whose name is to the jurors afore- said unknown ; and also wrongfully, fraudulently and unjustly devising and intending to obstruct and hinder the overseers of the poor of the town of B. in said county from discover- ing the person legally liable to maintain the said child ; and also wrongfully, fraudulently and unjustly devising and in- tending to obstruct and hinder any legal proceedings which the overseers of the poor of the said town might desire to adopt 1 1 Cox C. C. Appendix, p. xi. 488 CRIMINAL LAW, against the person legally liable as aforesaid, for the purpose of compelling such person to maintain the said child when the same should become chargeable to the said town, on the elev- enth day of February in the year of our Lord at B. in said county did among themselves conspire, combine, confed- erate and agree together, to cause the said child to be left at and in the workhouse of B. aforesaid, to be there maintained at the expense of the inhabitants of the said town of B., and so and in such manner that the overseers of the said town might not be able to ascertain or discover the person legally liable to maintain the said child, nor to adopt any legal pro- ceedings against such person so liable as aforesaid, for the purpose of compelling such person to maintain the said child. And the jurors aforesaid upon their oath aforesaid do fur- ther present, that the said J. P. and Caroline his wife, after- wards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, in pursuance of and according to the said conspiracy, combination, confederacy and agreement had as aforesaid among themselves and the said other persons whose names are to the jurors aforesaid unknown, and with the view and object of carrying the same into effect, did hire and employ one M. J., wife of W. J., of B. aforesaid, for a certain reward to her in that behalf, to wit, for the sum of one hundred dollars, to take the said child into the care and custody of the said M. J., and to keep the same, to wit, at said B., for a few days, to wit, three days, and at the expira- tion thereof, to deliver and leave the said child at and in the workhouse of B. situate as aforesaid, in order that the said child might then and there be maintained in the said work- house at the expense of the inhabitants of B. aforesaid. And the jurors aforesaid upon their oath aforesaid do further present, that the said J. P. and Caroline his wife, afterwards, to wit, on the day and year aforesaid, at B. in the County of Middlesex, in pursuance of and according to the said con- spiracy, combination, confederacy and agreement had as aforesaid among themselves and the said other persons whose names are to the jurors aforesaid" unknown, and with the view and object of carrying the same into effect, did deliver the said child to the said M. J. for the purpose aforesaid, the CONSPIRACY. 489 said M. J. being then and there wholly ignorant of the re- spective names and addresses of the said J. P. and Caroline his wife, and of the said other persons so conspiring and in- tending as aforesaid, whose names are to the jurors aforesaid unknown, as the said J. P. and Caroline his wife then and there well knew, and the said M. J. then and there being wholly ignorant of the name and address of the said person legally liable to maintain the said child, and not herself being such person as the said J. P. and Caroline his wife then and there well knew ; against the peace &c. 12. For Conspiracy to Defraud Intending Emigrants of their Pass- age-money by Pretending to have an Interest in Certain Ships.l The jurors &c. upon their oath present, that C. J. T. of B. in the County of S., and H. G. M., of the same place, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, together with divers other evil-disposed persons, whose names are to the jurors aforesaid unknown, unlawfully, fraudulently and deceitfully did com- bine, conspire, confederate and agree together to open a cer- tain office, as and for the office of a pretended company, called the " Australian Gold and General Mining Company," and by falsely and fraudulently representing to J. J., J. G. and T. B., that the said company had chartered divers ves- sels for the purpose of conveying passengers to Port Philip in Australia, and that the said C. J. T. and the said H. G. M. were authorized by the said company to sell and dispose of berths to persons contracting to become passengers on board the said vessels, to obtain of and from the said J. J., J. G. and T. B. divers large sums of money of the moneys of the said J. J., J. G. and T. B. respectively, and to cheat and defraud them thereof. And the jurors aforesaid upon their oath aforesaid do further present, that afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, the said C. J. T. and the said H. G. M., together with the other evil-disposed persons whose names are to the jurors aforesaid unknown, in pursuance of the said conspiracy, 1 6 Cox C. C. Appendix, p. Ixxxi. 490 CRIMINAL LAW. combination and agreement so had by and among them as afore- said, did then and there open a certain office at B. aforesaid in the county aforesaid, and did then and there falsely and fraudulently pretend and advertise that the said office was the office of a certain company then and there established for the purpose of promoting the emigration of certain citizens to parts beyond the seas, called the " Australian Gold and General Mining Company," to wit, at B. aforesaid in the county aforesaid. And the jurors aforesaid upon their oath aforesaid do further present, that afterwards, to wit, on the same day gjtd year aforesaid, at B. aforesaid in the county aforesaid, the said C. J. T. and the said H. G. M., in pur- suance of the said conspiracy, combination and agreement so had and made between themselves and the other evil- disposed persons aforesaid, did falsely pretend to the said J. J., J. G. and T. B. that divers vessels, and, amongst oth- ers, certain vessels called respectively the " Camilla," the " Medicis," and the " Janet Mitchell," had been chartered by the said company to convey passengers from the port of B. to Port Philip in Australia, and that the said C. J. T. and H. G. M. had full and legal power and authority to secure and provide for the conveyance of the said J. J., J. G. and T. B. as passengers on board the said vessels or some or one of them ; by means of which said false pretences and of the premises in this count mentioned, and in pursuance of the conspiracy, combination, and agreement aforesaid, the said C. J. T. and H. G. M. did then and there unlawfully and fraudulently obtain of and from the said J. J. the sum of five hundred dollars in money of the moneys of the said J. J., of the said J. G. the sum of three hundred dollars of the moneys of the said J. G., and of the said T. B. the sum of one thou- sand dollars of the moneys of the said T. B., with intent then and there to cheat and defraud the said J. J., the said J. G. and the said T. B., of the said sums of money of the moneys of the said J. J., the said J. G. and the said T. B. respectively ; to the great damage, injury and deception of the said J. J., the said J. G. and the said T. B., and against the peace &c. Second Count. — And the jurors aforesaid, upon their oath aforesaid do further present, that the said C. J. T. and CONSPIRACY. 491 H. G. M. afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, together with divers other evil-disposed persons whose names are to the jurors aforesaid unknown, unlawfully, fraudulently and deceitfully did combine, conspire, confederate and agree together by divers false pretences and subtle means and devices to cause it to be believed that a certain company was established at a certain office in the said city, to wit, for the purpose of pro- moting the emigration of divers citizens to parts beyond the seas, and that the said C. J. T. and H. G. M. were the agents of and for the said company, and that the said company had then chartered certain ships to sail from B. to a place beyond the seas, to wit, Australia, and that the said C. J. T. and H. G. M. then could, as such agents of and for the said company, contract for the carrying of passengers; and pro- vide that passengers should be carried by the said ships, chartered by the said company, from B. to Australia as afore- said, and by means of the said belief to obtain from divers citizens, to wit, J. J., J. G. and T. B., divers large sums of money of the moneys of the said J. J., of the moneys of the said J. G., and of the moneys of the said T. B., and to cheat and defraud the said J. J., J. G. and T. B. of their said moneys respectively ; and in pursuance of the said last-men- tioned conspiracy, the said C. J. T. and H. G. M. did then and there open an office at B. aforesaid, and falsely pretend that it was the office of the said company, and the said C. J. T. and H. G. M., at the said office, in pursuance of the said last-mentioned conspiracy, then and there falsely and deceit- fully pretended that they were the agents of and for the said company, that the said company had then chartered certain ships to sail from said B. to a place beyond the seas, to wit, Australia, and that the said C. J. T. and H. G. M. then could, as such agents of and for the said company, lawfully contract for the carrying of passengers, and provide that passengers should be carried by the said ships chartered by the said company from said B. to Australia as aforesaid ; and the said G. J. T. and H. G. M., by means of the said false pretences and in further pursuance of the said last-mentioned conspir- acy, did then and there unlawfully obtain from the said J. J. 492 CRIMINAL LAW. five hundred dollars of the moneys of the said J. J., and from the said J. G. three hundred dollars of the moneys of the said J. G., and from the said T. B. one thousand dol- lars of the moneys of the said T. B., with intent then and there to cheat and defraud the said J. J., J. G. and T. B. of their said moneys respectively ; to the great damage of the said J. J., J. G. and T. B. respectively, and against the peace &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said C. J. T. and H. G. M., on the day and year aforesaid, at B. aforesaid in the county aforesaid, together with divers other evil-disposed per- sons whose names are to the jurors aforesaid unknown, un- lawfully, fraudulently and deceitfully did combine, conspire, confederate and agree together, by divers false pretences and subtle means and devices, to cause it to be believed that a certain company, called the " Australian Gold Mining and Emigration Company," had an office in B. aforesaid for the transaction of its business, and that the said C. J. T. was the agent of and for the said company; and that the said company had then chartered a certain ship, called the " Medicis," to sail from B. to a place beyond the seas, to wit, Australia, and that the said C. J. T. then could, as such agent of and for the said company, contract for the carrying of passengers and provide that passengers should be carried by the said ship, called the "Medicis," from B. to Australia aforesaid, and by means of the said belief to obtain from one J. G. a large sum of money, to wit, five hundred dollars, of the moneys of the said J. G., and to cheat and defraud him thereof; and in pursuance of the said last-mentioned con- spiracy, the said C. J. T. and H. G. M., on the day and year aforesaid, at B. aforesaid in the county aforesaid, did open an office at said B., and did falsely pretend that it was the office of the said " Australian Gold Mining and Emigration Com- pany," and that the said company had then chartered the said ship, called the " Medicis," to sail from said B. to a place beyond the seas, to wit, Australia, and that the said C. J. T. then could contract for the carrying of passengers, and pro- vide that passengers should be carried by the said ship. CONSPIRACY. 493 called the " Medicis," from B. to Australia aforesaid ; by means of which said false pretences and in further pursu- ance of the said last-mentioned conspiracy, the said C. J. T. and the said H. G. M., did then and there unlawfully obtain from the said J. G. five hundred dollars of the moneys of the said J. G., with intent then and there to cheat and defraud him thereof; to the great damage of the said J. G., and against the peace &c. Fourth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said C. J. T. and the said H. G. M. afterwards, to wit, on the day and year afore- said, at B. aforesaid in the county aforesaid, together with divers other evil-disposed persons whose names are to the jurors aforesaid unknown, unlawfully, fraudulently and de- ceitfully did combine, conspire, confederate and agree to- gether, by divers false pretences and subtle means and devices, to cheat and defraud one J. G. of a large sum of money of the moneys of the said J. G., and that, in pursuance of the said last-mentioned conspiracy, the said C. J. T. and H. G. M., afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, did falsely pretend that a certain company, called the " Australian Gold Mining and Emigration Company," had then chartered a certain ship, called the " Medicis," to sail from B. to a certain place beyond the seas, to wit. Port PhDip in Australia, and that the said C. J. T. and H. G. M. then could, on behalf of the said com- pany, provide that one H. H. should be carried as a passen- ger on board the said ship from B. to Port Philip aforesaid ; by means of which said false pretences and in pursuance of the said last-mentioned conspiracy, the said C. J. T. and H. G. M., did then and there unlawfully obtain from the said J. G. five hundred dollars of the moneys of the said J. G., with intent then and there to cheat and defraud him thereof. Whereas in truth and in fact the said company had not then chartered the said ship, called the " Medicis," to sail from B. to Port Philip aforesaid, nor could the said C. J. T. and H. G. M., or either of them, then on behalf of the said company, or in any other right, provide that the said H. H. should be carried as a passenger on board the said ship from B. to Port 494 CRIMINAL LAW. Philip as aforesaid ; to the great damage of the said J. G., and against the peace &c. Fifth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said C. J. T. and H. G. M., afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, together with divers other evil-disposed persons whose names are to the jurors aforesaid unknown, unlawfully, fraudulently and deceitfully did com- bine, conspire, confederate and agree together, by divers false pretences and subtle means and devices, to cheat and defraud one J. G. of a large sum of money, of the moneys of the said J. G., and that, in pursuance of the said last-mentioned conspiracy, the said C. J. T. afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, did falsely pretend to the said J. G. that a certain, company, called the " Australian Gold Mining and Emigration Company," had then chartered a certain ship, called the " Medicis," to sail from B. to a certain place be- yond the seas, to wit. Port Philip in Australia, and that the said C. J. T. then could, on behalf of the said company, law- fully contract and agree that one H. H. should be carried as a passenger on board the said ship from B. to Port Philip afore- said; by means of which said false pretences, and in pursu- ance of the said last-mentioned conspiracy, the said C. J. T. and H. G. M. did then and there unlawfully obtain from the said J. G. three hundred dollars in money, of the moneys of the said J. G, with intent then and there to cheat and defraud him thereof. Whereas in truth and in fact no company called the " Australian Gold and General Mining Company " had then chartered the said ship, called the " Medicis," to sail from B. to Port Philip aforesaid, nor could the said C. J. T. then, on behalf of the said company, or in any other right, contract or agree that the said H. H. should be carried as a passenger on board the said ship, from B. to Port Philip aforesaid ; to the great damage of the said J. G., and against the peace &c. Sixth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said C. J. T. and H. G. M., afterwards, to wit, on the same day and year aforesaid, at B. aforesaid in the county aforesaid, together with the said CONSPIRACY. 495 divers other evil-disposed persons, whose names are to the jurors aforesaid unknown, unlawfully, fraudulently and de- ceitfully did conspire, combine, confederate and agree to- gether, by divers false pretences and subtle means and devices, to obtain of and from one J. J. divers large sums of money, of the moneys of the said J. J., and then and there to cheat and defraud him thereof ; to the great damage of the said J. J., and against the peace &e. 13. For a Conspiracy by False Representation, to Induce a Party to Abandon a Claim.! The jurors &c. upon their oath present, that before the time of the committing of the offence hereinafter mentioned, to wit, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, one T. S. sold to W. B. a certain mare, at and for the price, to ,wit, of one hundred dollars, to be paid for the said mare by the said W. B. to the said T. S., which said price at the time of the committing the offence hereinafter mentioned was still due and unpaid. And the jurors aforesaid upon their oath afore- said do further present, that the said W. C, of &c., and the said W. B., of &c., then and there well knowing all and several the premises, but contriving and intending to cheat and defraud the said T. S., did, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully conspire, contrive, confed- erate and agree together by false and fraudulent representa- tions to the said T. S. that the said mare was unsound of her wind, and that she had been examined by a veterinary sur- geon, who had pronounced her a roarer ; and that the said W. B. had sold her for seventy-five dollars, to induce and persuade the said T. S. to accept and receive from the said W. B. a much less sum of money in payment for the said mare than the said W. B. had agreed to pay the said T. S. for the same, and thereby then and there to cheat and defraud the said T. S. of a large sum, to wit, twenty-five dollars, of the price so agreed by the said W. B. to be paid to the said T. S. for the said mare ; against the peace &c. ' This count was held good in Kegina v. Carlisle, Dearsly C. C. 337; 6 Cox C. C. 386. 496 CRIMINAL LAW. 14. An Indictment for Conspiracy between Bankrupt and Others, Feloniously and Cleindestinely to Remove and Conceal Goods of said Bankrupt, -ro-ith Intent to Defeat Creditors ; -with Counts for Conspiring Fraudulently to Procure Goods from Tradesmen with the Intent Eventually of so Removing and Concealing tbem.l The jurors &c. upon their oath present, that before the committing of the offence hereinafter mentioned, J. M., of B. in the County of Middlesex, was a trader within the meaning of thelawsthen in force relating to bankrupts and to persons liable to become bankrupts, and for six calendar months next immedi- ately preceding the filing the petition hereinafter mentioned, had resided and carried on business at B. in the County of M. ; and that the said J. M., being and while he was such trader as aforesaid, was justly and truly indebted unto one S. S. in the sum of one thousand dollars and upwards, to wit, in the sum of ten thousand dollars, and to divers other cred- itors in divers other sums of money ; and that the said J. M., being such trader, and while he was so indebted as aforesaid, did afterwards commit an act of bankruptcy within the true intent and meaning of the law then in force relating to bank- rupts, by filing, to wit, on the twenty-eighth day of May in the year of our Lord a declaration in writing in the form contained in Schedule D to the Bankrupt Law Consoli- dation Act, A.D. annexed, signed by him the said J. M., and attested by an attorney, that he was unable to meet his engagements. And the jurors aforesaid upon their oath aforesaid do further present, that thereupon and afterwards, and within two months after the filing of such declaration as aforesaid, to wit, on the said twenty-eighth day of May in the year of our Lord the said S. S., according to the form of the statute in such case made and provided, and in the form specified in Schedule M to the said Bankrupt Law Consolidation Act, A.D. annexed, did present his petition for adjudication of bankruptcy against the said J. M., to the Court of Bankruptcy for London district, such court being the court for the district within which the said 1 8 Cox C. C. Appendix, p. xiv. See Gen. Sts. ch. 118, § 106. CONSPIRACY. 497 J. M. had resided and carried on business, within six months next immediately preceding the said time of filing the said petition, to wit, at Basinghall Street in the City of London ; which said petition was then and there filed of record in the said Court of Bankruptcy, in the ofiice of the Chief Registrar of the said Court. And the said S. S. did then and there, to wit, on the said twenty-eighth day of May in the year of our Lord duly verify the truth of the said petition, and the several allegations therein contained, upon his oath, by an affidavit in the form specified in Schedule N to the said Bankrupt Law Consolidation Act, a.d. annexed. And the jurors aforesaid upon their oath aforesaid do fur- ther present, that afterwards, and before the commission of the offence hereinafter in this count mentioned, to wit, on the twenty-eighth day of May in the year of our Lord the said Court of Bankruptcy did, under the said petition, proceed to receive, and did receive, proof of the said J. M. as aforesaid ; and then and there, to wit, on the said twenty- eighth day of May in the year of our Lord upon good proof upon oath, made to and before the said Court of Bank- ruptcy, of the said debt, and of the said debt having accrued and been due to the said S. S. previous to the said act of bankruptcy, and of the said act of bankruptcy committed as aforesaid, and of the several matters required to be proved in that behalf, the said Court of Bankruptcy did duly declare and adjudge the said J. M. bankrupt, within the true intent and meaning of the Law of Bankruptcy, according to the form of the statute in that behalf, which said adjudication hath never been reversed, annulled or made void. And the jurors aforesaid upon their oath aforesaid do further present, that at the time when the said J. M. was so adjudged and declared bankrupt as hereinbefore is mentioned, and at the time of the commission of the offence hereinafter mentioned, he, the said J. M., was possessed of divers goods and chattels then being and forming part of the personal estate of the said J. M., and of the value of and upwards, to wit, six piano-fortes, fifteen hundred yards of woollen cloth, ten dozen carriage-lamps, ninety-four saddles, and two thousand gal- 32 498 CRIMINAL LAW. Ions of varnish, of great value, to wit, of the value of five thou- sand dollars, all which goods and chattels it then became and was the duty of the said J. M., as such bankrupt as aforesaid, to disclose, discover and yield up to the said Court of Bank- ruptcy, for the benefit of the creditors of him the said J. M., in accordance with the provisions of the law then in force relating to bankruptcy. And the jurors aforesaid upoii their oath aforesaid do further present, that afterwards and whilst the said J. M. was so adjudged bankrupt as aforesaid, and whilst the said J. M. was so as aforesaid possessed of the said goods and chattels as hereinbefore mentioned, the said J. M., S. M. and A. S., both of B. in the County of M., well know- ing the premises, and wilfully intending to convert the said goods and chattels to their own use and benefit, and to de- fraud and deprive the said S. S., and all others the creditors of the said J. M. of the same, and of the benefit thereof, did, among themselves, to wit, on the said twenty-eighth day of May in the year of our Lord at B. in the County of Middlesex, unlawfully conspire, combine, confederate and agree together, feloniously and clandestinely to remove and conceal, and to aid and assist one another in removing and con- cealing the said goods, chattels and effects hereinafter speci- fied, to and in divers secret places unknown to the said Court of Bankruptcy and to the creditors of the said J. M., to the end that the said J. M., in collusion with the said S. M. and A. S., on his examination as such bankrupt before the said Court of Bankruptcy, touching his trade dealings and estate, and as to what had been done with the said estate, might be enabled to conceal and make default in discovering, and should feloniously conceal and omit to discover the said goods, chattels and effects, part of the estate of the said J. M. as aforesaid, and how the same should have been dis- posed of, and in fraud of the creditors of the said J. M., wrongfully to convert the same goods, chattels and effects to the use of the said J. M., S. M. and A. S., and by the sev- eral means aforesaid, as well to deceive the said Court of Bankruptcy in the premises, as to defraud the said S. S. and other the creditors of the said J. M., of the said goods, chat- tels and effects ; against the peace &c. CONSPIRACY. 499 Second Count. — And the jurors &c. upon their oath afore- said further present, that the said J. M., S. M. and A. S., did, at B. in the County of Middlesex, among themselves un- lawfully conspire, combine, confederate and agree together to ascertain and discover divers merchants and traders in London and elsewhere who should or might be ready and willing to sell, deliver and supply goods, chattels and mer- chandise, on credit to the said J. M. as a trader and for the purpose of his trade, and by divers false pretences, and by divers unlawful, deceitful and fraudulent ways, means, de- vices, artifices, stratagems and contrivances, to be resorted to by the said J. M., and the said S. M. and A. S. in collusion with him, that he, the said J. M. required the same in carry- ing on business as a trader and in dealing with and supply- ing his customers in the ordinary course of business, to obtain and procure from such merchants and traders divers goods, chattels and merchandise sold and dealt in by such mer- chants and traders respectively, and belonging to such mer- chants and traders respectively, and to cheat and defraud such merchants and traders of such goods, chattels and merchandise, and of the price and value thereof; to the damage of such merchants and traders, and against the peace &c. Third Count. — And the jurors &c. upon their oath afore- said further present, that the said J. M., S. M. and A. S., did, at B. in the County of Middlesex, among themselves un- lawfully conspire, combine, confederate and agree together to ascertain and discover divers merchants and traders in London and elsewhere who should or might be ready and willing to sell, deliver and supply goods, chattels and mer- chandise, on credit to the said J. M. as a trader and for the purpose of his trade, and by divers false pretences, and by divers unlawful, deceitful and fraudulent ways, means, de- vices, artifices, stratagems and contrivances, to be resorted to by the said J. M., and the said S. M. and A. S. in collusion with him, to obtain and acquire to themselves from such mer- chants and traders, and to aid and assist one another in so obtaining and acquiring divers goods, chattels and merchan- 500 CRIMINAL LAW. dise, of and belonging to such merchants and traders re- spectively, and to cheat and defraud them of the same and the price and value thereof; to the great damage of such merchants and traders respectively, and against the peace &c. Fourth Count. — And the jurors &c. upon their oath afore- said do further present, that the said J. M., S. M. and A. S., did, at B. in the County of Middlesex, among themselves unlawfully conspire, combine, confederate and agree together, by divers false pretences to be made by the said J. M., and by the said S. M. and A. S. in collusion with him, that he the said J. M. required the same in carrying on business as a trader and in dealing with his customers in the ordinary course of business, to obtain and procure from B. E,. divers goods and chattels of him the said B. R., with intent to cheat and defraud him the said B. R. of the same, and of the price and value thereof; to the great damage of the said B. R., and against the peace &c. Fifth Count. — And the jurors &c. upon their oath afore- said further present, that the said J. M., S. M. and A. S., did, at B. in the said County of Middlesex, among themselves un- lawfully conspire, combine, confederate and agree together by divers false pretences, and by divers unlawful, deceitful and fraudulent ways, means, devices, artifices, stratagems and contrivances, to obtain and procure from B. R. divers goods and chattels of him the said J. M., with intent to cheat and defraud the said B. R. of the same, and of the price and value thereof; to the great damage of the said B. R., and against the peace &c. For a precedent for a conspiracy among workmen to raise wages, see Regina v. Dufiield, 5 Cox C. C. 404 ; Regina v. Rowlands, 17 Q. B. 671 ; 2 Denison C. C. 364 ; 5 Cox C. C. 436 ; 21 L. J. M. C. 81. The law relating to combinations by workmen for the purpose of raising wages, shortening the hours of labor, dictating to masters what workmen they shall employ, and for other purposes, interfering with the free course of CONSPIRACY. 501 trade, has been much modified by 34 and 35 Vict. ch. 31 and ch. 32.i 1 Eegina v. Bnnn, 12 Cox C. C. 316, 339, 340, Brett, J. For the law as it existed before the passing of these statutes the reader is re- ferred to the following oases: Rex V. Bykerdike, 1 M. & Rob. 179, Patteson, J. ; Regina ». Rowlands, 17 Q. B. 671 ; 2 Denison C. C. 364; Regina v. Duffield, 5 Cox C. C. 404; Walsby v. Anley, 30 L. J. M. C. 121 ; O'Neill u. Longman, 4 B. & S. 376; O'Neill v. Kruger, 4 B. & S. 389 ; Regina v. Druitt, 10 Cox C. C. 592, 601,602, Bramwell,B.; Regina V. Shepherd, 11 Cox C. C. 325, Lush, J. ; 3 Russell on Crimes, 133- 144, 4th ed. ; 159 et seq., 5th ed. ; Archb. Crim. PI. 986, 18th ed. 502 CRIMINAL LAW. CHAPTER XXXVII. CBUELTY TO A N I M A L S.^ 1. For Beating a Horse. — Gen. Sts. ch. 165, § 41. St. 1869, oh. 344, § 1. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did cruelly beat a certain horse ; ^ contrary to the form of the statute in such case made and provided. 2. For Driving a Horse when Unfit for Labor. — St. 1869, oh. 344, § 2.3 That C. D. in the County of S. on the first day of June in the year of our Lord one thousand eight hundred and sev- enty- at B. aforesaid in the county aforesaid, then and there had the charge and custody of a certain animal, to wit, a horse, and that the said horse was then and there unfit for 1 Gen. Sts. ch. 165, § 41. St. 1869, ch. 344, entitled " An Act for the more effectual prevention of cruelty to animals." St. 1877, ch. 60, § 1. As to the evidence, see Commonwealth v. Wood, 111 Mass. 408. In their note to Rev. Sts. ch. 130, § 22, the Commissioners appointed to revise the General Statutes of the Commonwealth remark as fol- lows : — " It probably is not generally known to the community that ex- treme cruelty to animals, even when inflicted by the owner, is an offence punishable by the common law. Almost every one must have wit- nessed very revolting instances of such cruelty, particularly with re- gard to horses. There seems to be less excuse for the commission of this offence than most others." By the proper construction of this section of the Revised Statutes, it extends to "any living creature," the property of any one. Report of the Criminal Law Commissioners, Malicious Injuries and Mischiefs, pi. 5 note (g). ^ This is a sufficient description of the offence and of the horse. Commonwealth v. MoClellan, 101 Mass. 34. " The brevity of the indictment has raised a question as to its sufficiency," observed Chap- man, C. J. Commonwealth v. Luf- kin, 7 Allen, 579. Commonwealth V. Whitman, 118 Mass. 458. Com- monwealth V. Brigham, 108 Mass. 457. " This precedent can readily be adapted to other cases within the spirit and letter of the statute. CRUELTY TO ANIMALS. 503 labor by reason of, set forth the cause, as the said C. D. then and there well knew, and that the said C. D. did then and there cruelly drive the said horse when unfit for labor as aforesaid ; against the peace of said Commonwealth and con- trary to the form of the statute in such case made and pro- vided. 3. For Torture or Cruelty of any Kind. —St. 1869, ch. 344, § 2.1 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, had the charge and custody of a certain animal, to wit, a dog, and did then and there knowingly and wilfully authorize and permit said dog to be subjected to un- necessary torture, suffering and cruelty, by then and there knowingly and wilfuUy authorizing and permitting said dog to be bitten, mangled and cruelly tortured by a certain other dog ; contrary to the form of the statute in such case made and provided. 1 Commonwealth v. Thornton, 113 Mass. 457. 504 CRIMINAL LAW. CHAPTER XXXVIII. DISOEDBELY HOUSE.^ This offence consists in keeping the house. If the defend- ant keeps only a single room, the offence is complete.^ But particular facts need not be stated ; and though the charge is thus general, yet at the trial evidence may be given of par- ticular facts, and of the particular time of doing them. It is not necessary to prove who frequents the house, for that may be impossible ; but if any unknown persons are proved to be there behaving disorderly, it is sufficient to support the indictment.* The defendants, as master and mistress, resided in a house to which men and women resorted for the purpose of prosti- tution, but no indecency or disorderly conduct was percepti- ble from the exterior of the house. Held, that the defendants were guilty of keeping a disorderly house.* An indictment alleging that the defendant kept a " disor- derly tenement " charges no offence known to the common or statute law. The word " tenement," though it includes a house or building, has a much more enlarged signification. It signifies land or any corporeal inheritance, or any thing of a permanent nature which may be holden.^ 1 For the law relating to this C. B., in Reginai;. Stannard, Leigh offence, see Commonwealth v. Kim- & Cave C. C. 352. Commonwealth ball, 7 Gray, 328. Commonwealth v. Bulman, 118 Mass. 456. V. O'Brien, 8 Gray, 487. Common- ' 1 Russell on Crimes, 431, 5th wealth V. Davenport, 2 Allen, 299. ed. Commonwealth v. Cobb, 120 Mass. * Regina v. Rice, L. R. 1 C. C. 356. 2 Bishop Grim. Proced. ch. 17, 21 ; 35 L. J. M. C. 93. p. 141. ' Commonwealth v. Wise, 110 2 Regina «. Pierson, 2 Ld. Raym. Mass. 181. The decision in Com- 1197; 1 Salk. 382. Per Pollock, monwealth u. McCaughey, 9 Gray, DISORDERLY HOUSE. 605 The defendant was the owner of a house, the whole of which he let in parts to women as weekly tenants, who with his knowledge and assent used their respective rooms for pur- poses of prostitution. The defendant retained no part of the house for himself, and had no control over it, nor did he de- rive any advantage from the use made of the house, except in so far as the ability of the tenants to pay their rent was thereby increased. Held, that he was not the keeper of a dis- orderly house, and could not be convicted as such.^ Pollock, C. B. : " In this case, the prisoner is the owner of a house, the whole of which he lets in parts to young women of not the most moral character. He retains no part himself, and has no control over the house. There is no doubt that the persons to whom it is let use it for purposes of prostitution. Under these circumstances, the defendant is indicted for keeping a disorderly house. We are, however, of opinion that, what- ever offence against morality or law he may have committed, he did not keep a disorderly house. The house was not kept by him. He had no power to admit any one whom he desired to enter the house, or to exclude any one whom he wished not to enter. In fact, he was not the keeper of the house ; and the conviction must be quashed." 296, was under a statute which pro- hibited the keeping of " all build- ings, places or tenements," used for certain unlawful purposes, and was thereby held to have made a dis- tinction between "buildings" and "tenements." Gen. Sts. ch. 87, § 6. Commonwealth v. Godley, 11 Gray, 454. Commonwealth v. Shat- tuck, 14 Gray, 23. Commonwealth V. Bulman, 118 Mass. 457. In Com- monwealth v. Bossidy, 112 Mass. 277, evidence that the defendant aided in maintaining an apartment or tenement in the building, leased and held separately from the rest of the building, was held to be a vari- ance. The case of Commonwealth V. McCaughey, 9 Gray, 296, is de- cisive of this point. In Common- wealth V. Shattiick, 14 Gray, 23, it was held that an indictment for keeping a building used for the ille- gal sale of intoxicating liquor was sustained by proof that the defend- ant occupied the whole building, and used any portion of it for the illegal purpose alleged. The case of Commonwealth v. Bossidy, 112 Mass. 277, is different. The alle- gation was that the defendant let to C. D. a building; the evidence was that he let a tenement in the building, the rest of the building being leased to and held by other tenants. This was held a fatal variance. ' Regina w. Stannard, Leigh & Cave C. C. 349. 506 CRIMINAL LAW. 1. For Keeping a Disorderly House. That C. D. of B. in the County of S. on the first day of June in the year of our Lord and on divers other days and times, between that day and the first day of September in the year aforesaid, at B. aforesaid in the county aforesaid, * * a certain common, ill-governed and disorderly house unlaw- fully did keep and maintain, and in the said house certain evil-disposed and dissolute persons, as well men as women of evil name, fame and conversation, to come together on the days and times aforesaid, there unlawfully did cause and pro- cure, and the said persons in the said house at unlawful times as well in the night as in the day, on the days and times aforesaid, there to be and remain drinking, tippling, cursing, swearing, quarrelling and otherwise misbehaving themselves, unlawfully did permit and suffer ; thereby then on the days and times aforesaid there endangering and disturbing the pub- lic peace and corrupting good morals ; to the great injury and common nuisance of all the citizens of said Commonwealth there being, residing, inhabiting and passing, and against the peace of said Commonwealth. 2. For Keeping a Ba'vtrdy-Iioase.l Proceed as in precedent No. 1 to the asterisks ; and then as follows : Unlawfully did keep and maintain a certain com- mon bawdy-house and in the said house, for the lucre and gain of him the said Samuel Stannard, certain persons, as well men as women of evil name and fame, then and there and on the said other days and times there unlawfully and wilfully did cause and procure to frequent and come together, and the said men and women and whores in the said house of the said Samuel Stannard at unlawful times as well in the night as in the day then and there and on the said other days and times there to be and remain drinking, tippling, whoring and otherwise misbehaving themselves, unlawfully and wilfully did permit and yet doth permit ; to the great damage and common nuisance &c. 1 Regina ». Stannard, Leigh & Cave C. C. 349. DISORDERLY HOUSE. 507 Second Count for Keeping a Disorderly House. — Unlaw- fully did keep and maintain a certain common, ill-governed and disorderly house and in the said last-mentioned house) for the lucre and gain of him the said Samuel Stannard, cer- tain persons as well men as women of evil name and fame and of dishonest conversation, then and there and on the said other days and times there unlawfully and wilfully did cause and procure to frequent and come together, and the said men and women in the said house of him the said Samuel Stannard at unlawful times as well in the night as in the day then and there and on the said other days and times there to be and remain drinking, tippling, whoring and otherwise misbehaving themselves, unlawfully and wilfully did permit ; to the great damage and common nuisance &c. 508 CRIMINAL LAW. CHAPTER XXXIX. DISTUEBANCE OF PUBLIC MBETIKGS ETC. 1. For Disturbing a School. — Gen. Sts. ch. 165, § 23.1 The jurors &c. upon their oath present, that on the first day of June in the year of our Lord a certain school was met and assembled for a lawful purpose, to wit, for the purpose of public instruction in a school-house known as the school-house in ward number seven at B. in the County of S. And the jurors aforesaid upon their oath aforesaid do further present, that C. D. of B. aforesaid in the county aforesaid, on the day and year aforesaid, at B. aforesaid in the county aforesaid, while the said school was so assembled as aforesaid within the said school-house and during the per- formance of the exercises of said school, did enter the said school-house and did then and there wilfully interrupt and disturb the said school by then and there, here set forth the facts according to the evidence ; contrary to the form of the statute in such case made and provided. 2. For Disturbing a Funeral Procession by Fast Driving. Gen. Sts. ch. 165, § 24. The jurors &c. upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord at B. in the County of S., a certain funeral proces- sion was assembled to solemnize the burial of one J. N. then lately deceased and was then being and passing along and through a certain street there called Main Street. And the jurors aforesaid upon their oath aforesaid do further present, that C. D. of B. aforesaid in the county aforesaid, afterwards, 1 This section enacts that ' ' Who- assembled for the discussion of tem- ever wilfully interrupts or disturbs perance, and, it seems, all public any school or other assembly of meetings held for lawful purposes, people met for a lawful purpose " Commonwealth v. Porter, 1 Gray, &c. The statute includes meetings 476. DISTURBANCE OP PUBLIC MEETINGS ETC. 509 to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, then and there having charge of a certain horse and carriage, did then and there fast and furiously drive the same along and through said Main Street, and by reason of such fast and furious driving of the same, did then and there unlawfully and wilfully interrupt and disturb the said funeral procession then and there being and passing along and through said Main Street as aforesaid ; contrary to the form of the statute in such case made and provided. 3. For Disturbing Religious 'Worship. — Gen. Sts. ch. 165, § 21.1 The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did wilfully interrupt and disturb a certain assembly of peo- ple there met for the worship of God, within the place of such meeting, to wit, within the meeting-house of the First Parish in B. aforesaid in the county aforesaid, and during the per- formance of divine service in said meeting-house, by then and there, here set out the facts according to the evidence ; con- trary to the form of the statute in such case made and pro- vided. 4. For Disorderly Conduct at an Election.^ — Gen. Sts. ch. 7, § 33. The jurors &c. upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord at B. in the County of S., a town meeting of the inhabitants of said B., for the election of, state the officers to be chosen, was then and there duly holden. And the jurors aforesaid upon their oath aforesaid do further present, that C. D. of B. in the County of S., afterwards, on the day and year aforesaid, at B. aforesaid in the county aforesaid, in the town meeting aforesaid, did behave himself disorderly, by then and there, here set out the facts according to the evidence ; against the peace &c. and contrary to the form of the statute in such case made and provided. ^ Commonwealth v. Symonds, 2 law. Commonwealth v. Hoxey, 16 Mass. 162. Ante, p. 55 note. Mass. 384. 2 This is an ofience at common 510 CBIMINAL LAW. CHAPTER XL. DUELLING AND CHALLENGING TO FIGHT. As deliberate duelling is, if death ensue, murder, and is also an offence, though the deed should not prove fatal to either party, so the sending a challenge to fight is a misde- meanor, by reason of its direct and immediate tendencj'' to a breach of the peace, and as leading to the crime of murder. And it is not only an offence to challenge another, either by word or letter, to fight a duel, but also to be the messenger of such a challenge. And to provoke another to send a chal- lenge has been likewise held to be a misdemeanor.^ 1. For Murder in a Duel Fought Without the State. — Gen. Sts. oh. 160, § 9. The jurors &c. upon their oath present, that A. B. being an inhabitant of this State, to wit, of B. in the County of S. and Commonwealth aforesaid, by a previous appointment and engagement made within this State, to wit, at B. in the County of S. and Commonwealth aforesaid, on the first day of May in the year of our Lord with one C. D. to fight a duel without the jurisdiction of this State, to wit, at T. in the County of S. and State of M., did afterwards, to wit, on the first day of June in the year aforesaid, at T. in the County of S. and State of M., fight a duel with the said C. D., and on the first day of June in the year aforesaid, at T. aforesaid in the county aforesaid in the State of M., in and upon the said C.^^D., feloniously, wilfully and of his malice aforethought, make an assault ; and that the said A. B. a certain pistol, then and there capped and charged with gun- 1 1 Gabbett Grim. Law, 66. 1 464. Kegina v. Cuddy, 1 G. & K. Hawk. P. C. ch. 28, § 3. 1 Deacon 210. Regina v. Young, 8 G. & P. Grim. Law, 219. Rex v. Rice, 3 644. Rex «. Murphy, 6 C. & P. 103. East, 581. Rex v. Phillips, 6 East, 1 Russell on Crimes, 695, 5th ed. DtJELLING AND CHALLENGING TO FIGHT. 511 powder and one leaden bullet, then and there feloniously, wil- fully and of his malice aforethought, did discharge and shoot off, to, against and upon the said C. D. ; and that the said A. B., with the leaden bullet aforesaid, out of the pistol afore- said, then and there, by force of the gunpowder aforesaid, by the said A. B. discharged and shot out of the said pistol as aforesaid, then and there feloniously, wilfully and of his mal- ice aforethought, did strike, penetrate and wound the said C. D., then and there giving to the said C. D., with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said A. B., in and upon the right side of the belly of the said C. D., one mortal wound, of the depth of four inches, and of the breadth of one inch .: of which mor- tal wound the said C. D. on and from the said first day of June in the year aforesaid, until the first day of July in the year aforesaid, within this State, to wit, at B. in the County of S. and Commonwealth aforesaid, did suffer and languish, and languishing did live ; and afterwards, to wit, on the first day of July in the year aforesaid, at B. in the County of S. and Commonwealth aforesaid, of the mortal wound aforesaid, died. And so the jurors aforesaid upon their oath aforesaid do say, that the said A. B., him the said C. D. then and there, by the manner and means aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder ; against the peace &c. and contrary to the form of the statute in such case made and provided. 2. For Sending a 'Written Message to a Person to Fight a Duel. Gen. Sts. oh. 160, § 12. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, wilfully and maliciously did send a certain written message to one E. F., purporting and intended to be a challenge to the said E. F., to fight a duel with the said C. D., with a deadly weapon, to wit, a pistol, which written message is of the tenor following, that is to say ; here set out a copy of the message ; against the peace of said Commonwealth and con- trary to the form of the statute in such case made and pro- yided. 512 CRIMINAL LAW. 3. For Posting Another for not Fighting a Duel. — Gen. Sts. oh. 160, § 14. The jurors &c. upou their oath present, that A. B. of &c. on the first day of June in the year of our Lord at W. in the County of W., wilfully and maliciously did challenge one C. D. to fight a duel with the said A. B., with deadly weapons, to wit, with pistols ; and that the said C. D. hav- ing then and there refused to fight the duel aforesaid with the said A. B., in pursuance of the challenge aforesaid, the said A. B. afterwards, to wit, on the same day and year aforesaid, at W. in the county aforesaid, did maliciously post and expose the said C. D. to public reproach, by then and there placing and exposing to public view, to wit, on the City Hall in W. aforesaid in the county aforesaid, a certain writing, with the name of the said A. B. thereunto subscribed, containing reproachful and contemptuous language to and concerning the said C. D., which writing is of the tenor follow- ing, that is to say ; here insert a copy ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. DOGS. 513 CHAPTER XLL DOGS. The chief purpose of the statutes regulating the keeping of dogs is to prevent sudden and dangerous assaults upon persons, the worrying, wounding and killing of neat cattle, sheep and lambs, and other injuries occasioned by dogs, as well as to afford means for ascertaining the owners and making them liable for the mischief done by their dogs, and for ridding society of a nuisance by providing for the killing of unli- censed dogs.^ In order that the statute should not fail to accomplish this purpose in full, it is important that the de- scription which the owner is required by the St. of 1867, ch. 130, § 1, to give to the clerk of the town should be so defi- nite and accurate as to furnish the means of identifying the dog which the license protects. As the statute requires the owner or keeper to cause his dog to be described, as well as licensed and registered, it would not be complied with by a license to keep a " male dog," without any description as to color, marks, name or other characteristics by which the dog intended could be distinguished from other male dogs. Still less can a license to keep a yeUow and white dog named " Dime " give authority to keep a black Newfoundland dog named " Nigg." To hold otherwise would be to make the statute nugatory, so far as it requires the dog to be described, and would make it necessary to hold that a license for a span- iel or a lapdog would authorize the keeping of a mastiff or a bloodhound. It is the duty of the owner of the dog, whether acting in person or by an agent, to see that the animal is properly described to the town clerk, and in the license, so that no difficulty should arise in identifying it.^ ' Blair v. Forehand, 100 Mass. ^ Judgment in Commonwealth v. 136. Cummings v. Perham, 1 Met. Brahany, 123 Mass. 245, 247. 555. 33 514 CRIMINAL LAW. The effect of the provisions of the St. 1867, oh, 130, §§ 1, 2, and 5, is that the duty of causing the dog to be registered or licensed may be performed by either the owner or the keeper ; but if this is not done by either, the penalty falls upon the keeper only. The insertion of both words, " owner " and " keeper," elsewhere throughout the statute adds significance to the omission of the one in the fifth section.^ A complaint for keeping or owning an unlicensed dog may allege that the unlawful act extended over many successive days, and the evidence must be confined within the time covered by the allegation.^ The fact that a man applied to the clerk of a town for a license to keep a dog is competent evidence that he was the owner or keeper of a dog, on the trial of a complaint against him for keeping a dog without a license.^ For Keeping an Unlicensed Dog. — St. 1867, ch. 130, § 5. St. 1872 ch. 330, § 1.4 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did keep a certain male dog, which said dog was not then and there duly licensed according to law, and was then and there more than three months old ; con- trary to the form of the statute in such case made and pro- vided. ^ Commonwealth o. Canada, 107 so it has always been regarded. Mass. 405. Jones u. Commonwealth, The court deemed this "objection 15 Gray, 193. Commonwealth v. groundless, as well on the rules of Brimblecom, 4 Allen, 584. pleading as upon the precedents." " Commonwealth v. Canada, 107 Commonwealth v. Thompson, 2 Mass. 405. Allen, 507. In this case it was also ' Commonwealth v. Gorman, 16 held that it was enough to allege Gray, 601. that the defendant kept a dog not * In a complaint under St. 1859, licensed. If he had caused the dog ch. 225, § 9, an allegation that the to be registered, numbered and de- defendant " did keep a certain dog scribed, but not to be licensed, he without said dog being then and would have incurred the statute there licensed according to law," is a forfeiture. Neither is it necessary sufficient allegation that the dog was to allege that he was not licensed not licensed as the statute requires, in any town other than that named The word " without " is a word of in the complaint, sufficiently positive negation; and DRUNKENNESS. 515 CHAPTER XLII. DBTJNKENITESS.^ Mere private intoxication, unaccompanied with any act, is not indictable at common law.^ Evidence of habitual intoxi- cation will support an indictment for being a common drunk- ard, without evidence of any disturbance of the public peace and good order. The statute does not make a disturbance of the peace a constituent part of the offence, nor does it distinguish between the different effects of drunkenness. Though a person may keep himself so excessively intoxicated as to be unable to disturb the public peace, this would be no defence ; for the statute makes it an offence simply to be a common drunkard, without any thing more.^ The crime of drunkenness is a purely statute offence, and no authority exists to arrest a person who may be guilty of it, without a warrant, except that which is expressly conferred by statute. No such authority is given to arrest for the mere crime of drunkenness. It exists only in the cases enumer- ated in the statutes, where a person is intoxicated in a public place, or while intoxicated commits a breach of the peace,* or disturbs others by noise.® By St. 1869, ch. 415, § 42, " If a person is found in any place in a state of intoxication committing a breach of the peace, or disturbing others by noise," any constable or police- officer " shall without a warrant take him into custody, and detain him in some proper place until, in the opinion of such officer, he is so far recovered from his intoxication as to ren- der it proper to carry him before a court of justice ; " and 1 Gen. Sts. ch. 165, §§ 25 et seq. * Any affray or assault is a dis- St. 1869, ch. 452. turbance of the peace. Common- 2 1 Bishop Crim. Law, § 399. monwealth v. Tobin, 108 Mass. 426. ' Commonwealth v. Conley, 1 ^ Commonwealth v. O'Connor, Allen, 6, 7. 7 Allen, 584, 585. 516 CRIMINAL LAW. " the officer shall then take him before some justice of the peace or police court in the city or town where he has been found, and shall make a complaint against him for the crime of drunkenness." If the defendant was arrested by the offi- cer as directed by the first clause of this section, his assault upon the officer while thus lawfully under arrest was not ren- dered less criminal by the subsequent failure of the officer to comply with the second clause of the statute.^ The doctrine of trespass ab initio has no application to criminal cases. The degree of a crime, once completed, cannot be aggravated by the subsequent act of the criminal, or lessened by that of a third person. In State v. Moore,^ it was held that a person who had lawfully entered a house could not be made a burg- lar by afterwards stealing therein.^ The St. 1876, ch. 17, enacts that " Whoever is found in a state of intoxication in a public place, or is found in any place in a state of intoxication committing a breach of the peace, or disturbing others by noise, may be apprehended by any sheriff, deputy-sheriff, constable, watchman or police-officer, without a warrant, and kept in custody in some suitable place until he is so far recovered from his intoxication as to render it proper to carry him before a court of justice. The officer may then make a complaint against him for the crime of drunkenness." The crime of drunkenness, as set forth in the Gen. Sts. cli. 165, § 25, is " drunkenness by the voluntary use of intoxi- cating liquor." It is possible, therefore, that one may be drunk without being guilty of the offence described. Ar- rested in a public place, kept in custody till sober, and then brought before a court of justice, he may be able to show that the intoxication, which he admits existed, was produced by some other cause or means than the voluntary use of intoxi- cating liquor. If he does this, he is entitled to acquittal and 1 Commonwealth v. Tobin, 108 the party arrested must be taken Mass. 426, 430. A substantial before him. Papineau v. Bacon, compliance with the statute is suffi- 110 Mass. 319. cient. Gainey v. Parkman, 100 Mass. ^ 12 N. H. 42. 316. If there is a magistrate in the ' Judgment in Commonwealth v. town where the arrest was made, Tobin, 108 Mass. 429, 430. DRUNKENNESS. 617 discharge. The right of an officer to arrest without a war- rant reaches, by the St. of 1876, ch. 17, the case of any per- son found in a public place in a state of intoxication, and does not depend on the intoxication having been produced by means which render the intoxicated person guilty of the crime of drunkenness. The mere fact therefore, that one arrested, by an officer without a warrant, for drunkenness, was acquitted at the trial of the complaint, is not conclusiTC evidence that he was not drunk when arrested, nor that the officer was not in the discharge of his duty in making the arrest and keeping him in custody afterward, as a preliminary to making complaint against him.^ In 1 Hale's Pleas of the Crown, 15, the general doctrine is stated, that " where there is no will to commit an offence, there can be no transgression." ^ This principle is recognized by all the best authorities upon criminal law. And by aU of them, ignorance of fact, unaccompanied by any criminal neg- ligence, is enumerated as one of the causes of exemption from criminal responsibility. It has, therefore, been held that a police-officer arresting a person without a warrant, under St. 1855, ch. 215, § 23, for being intoxicated in a public street, is not liable criminally for an assault, if he had reasonable cause to believe such person to be intoxicated, although he was not in fact intoxicated.^ The criminal purpose or intent must always be proved. It is usually inferred from the char- acter and circumstances of the offence, or proved by preceding threats, accompanying declarations, or subsequent conduct or admissions.* The conductor of a street-railway car may exclude or expel therefrom a person who, by reason of intoxication or other- 1 Commonwealth v. Coughlin, pardoned. . . . These principles are 123 Mass. 436. not only to be found in Codes, they 2 In Demosthenes De Corona is are laid down by Nature herself in this passage: " According to my un- her unwritten laws, and in the con- derstanding, the following are prin- stitution of man." Sir Robert ciples defined and established by the Collier's Translation, p. 106. consent of all mankind. Does a ^ Commonwealth v. Presby, 14 man offend wilfully? He is the Gray, 65. See Commonwealth v. object of indignation and' punish- Rigney, 4 Allen, 316, 317. ment. Has he erred unintention- * Commonwealth v. Woodward, aUy ? He is not to be punished but 102 Mass. 161. 618 CRIMINAL LAW. wise, is in such a condition as to render it reasonably certain that by act or speech he will become offensive or annoying to other passengers therein, although he has not committed any act of offence or annoyance.^ A person in a state of intoxication cannot be examined as a witness. The incapacity, however, is only coextensive with the defect. The return of sobriety renders the witness com- petent.^ It is settled law that intoxication is not an excuse or justi- fication or extenuation of a crime.^ The fact that a person is intoxicated is often very material where the question is as to the intent with which an act was done.* On an indictment for in- flicting a bodily injury dangerous to life, with intent to murder, it appeared that the prisoners were both very drunk at the time, and Patteson, J., told the jury that " although drunken- ness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great vio- lence." ^ So where a prisoner was indicted for shooting with intent to murder, and he was shown to have been intoxicated shortly before he fired the shot,"- Coleridge, J., told the jury that "drunkenness is ordinarily neither a defence, nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining him- self from committing the act in question, or to take away from him the power of forming any specific intention." ^ The St. 1872, ch. 301, enacts : " "Whoever is convicted of the crime of drunkenness for the first offence, under the pro- visions of section twenty-five of chapter one hundred and 1 Vinton v. Middlesex Railroad Alderson, B. Rex v. Thomas, 7 C. Company, 11 Allen, 304. & P. 817, Parke, B. 1 Russell on ^ Hartford v. Palmer, 16 Johns. Crimes, 115, 5th ed. 153. 1 Greenl. Ev. § 365. « Regina v. Cruse, 8 C. & P. ° Commonwealth v. Hawkins, 3 541, 546. Gray, 463, 466. Commonwealth w. ^ Regina «. Monkhouse, 4 Cox Malone, 114 Mass. 295. C. C. 55. Regina a. Moore, 3 C. & 1 Rex ». Meakin, 7 C. & P. 297, K. 319. DRUNKENNESS. 519 sixty-five of the General Statutes, and becomes liable to im- prisonment for non-payment of the fine and costs imposed, may be committed to the workhouse, if any, in the town or city where the offence was committed." The being a "common drunkard" is expressly made an offence by statute ; and the words by which the offence is created and defined are fully descriptive of it. They are therefore technical; and because they are so, a party may well be charged in the general words of the statute.^ Evi- dence of habitual intoxication from the use of chloroform will not sustain a complaint for this offence under the statute.^ 1. Complaint for Drunkenness. — G-en. Sts. ch. 165, § 25.3 That C. D. of B. in the County of S. on the .first day of June in the year of our Lord at B. aforesaid in the county aforesaid, was drunk by the voluntary and excessive use of intoxicating liquor ; contrary to the form of the statute in such case made and provided. 2. Common Drunkard. — Gen. Sts. ch. 165, § 28.^ That C. D. of B. in the County of S. on the first day of June in the year of our Lord and on divers other days and times between that day and the first day of August in the year aforesaid, at B. aforesaid in the county aforesaid, was a common drunkard ; contrary to the form of the statute in such case made and provided. 3, Common Drunkard.^ That C. D. of Boston in the County of Suffolk, on the first day of June in the year of our Lord one thousand eight ' Commonwealth v. Boon, 2 ^ This is the form used in the Gray, 74. Municipal Court of the city of " Commonwealth v. Whitney, 11 Boston. Cush. 477. ' Persons convicted in the city of s Commonwealth v. McNamara, Boston of drunkenness, or as com- 116 Mass. 340. Commonwealth v. mon drunkards, and senteuced to Miller, 8 Gray, 484. imprisonment, shall have their sen- * Commonwealth v. Boon, 2 tences executed in the House of Gray, 74. Commonwealth v. Whit- Industry in said city. St. 1864, ney, 5 Gray, 86, 87, distinguishing ch. 258, § 1. Commonwealth v. Boon. Common- wealth V. Foley, 99 Mass. 499. 520 CRIMINAL LAW. hundred and seventy and on divers other da '• 1 1 times between that day and the first day o£ August in the year of our Lord one thousand eight hundred and seventy- at said Boston and within the Judicial District of said Court, was and now is a common drunkard ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. ELECTIONS. 621 CHAPTER XLIII. ELECTIONS.^ It is essential to the existence and functions of the gov- ernment, writes Mr. Bishop, that persons be designated to conduct its several departments, and important that the choice be free and wise. Therefore any act tending to defeat these objects — as forcibly or unlawfully preventing an election from being held, bribing or corruptly influencing an elector, receiving as an elector a bribe, casting more than one vote, " the taking or giving of a reward for offices of a public nature," and the like — is punishable at common law as a crime. ^ An indictment for illegal voting alleged that " a meeting of the qualified voters of the various wards " of a city was holden on a certain day for the annual election of municipal officers, and that the defendant, " at Ward One " in said city on that day " at the election aforesaid," committed the offence charged. Held, that the indictment sufficiently described the meeting. As a matter of literal exactness, it would have been more correct to have alleged that " meetings " of the voters of the various wards were held on that day, instead of describing it as " a meeting " in the singular number. The expression " at Ward One in said Salem, at the election afore- said," is a sufficient averment that Ward One was one of the " various wards " that had already been mentioned.* In some few cases connected with the administration of 1 Gen. Sts. ch. 7, §§ 28 et seq. 52 ; Hughes v. Marshall, 2 Tyrw. St. 1876, ch. 172. Commonwealth 134; 2 C. & J. 118; 5 C. & P. 150; B. Bradford, 9 Met. 268. Kegina Cooper v. Slade, 6 House of Lords V. Bent, 1 Denison C. C. 157 ; 2 C. Cases, 746 ; 1 Russell on Crimes, & K. 179. 318, 5th ed. ^ 1 Bishop Crim. Law, § 471. ' Commonwealth v. Desmond,. See Commonwealth v. Shaw, 7 Met. 122 Mass. 12. 522 CRIMINAL LAW. public justicfe and of government, admissions are held con- clusive on grounds of public policy.^ Thus, in an action for penalties for election bribery, a man who has given money to another for his vote will not be permitted to say that such other person had no right to vote.^ The law, in regard to the admissions of persons who are not parties to the record, looks chiefly to the real parties in interest, and gives to their admissions the same weight as though they were parties to the record.^ In short, the ad- missions of any persons who are represented in the cause by other parties are receivable in evidence against their respective representatives. On this ground, it has been re- peatedly held on the trial of election petitions that the dec- larations of voters against their own votes, whether made before or after the votes were given, and even though in- validating their votes on the ground of their having received bribes, are admissible in evidence.* 1. Against a Person for Voting, knowing Himself not to be a. Qualified Voter. — Gen. Sts. oh. 7, § 28.5 The jurors &c. upon their oath present, that on the first day of June in the year of our Lord at B. in the County of S. a town meeting of the inhabitants of said B. in the county aforesaid, for the election of, state the officers to he chosen, was then and there duly holden.* * And the jurors aforesaid upon their oath aforesaid do further pre- sent, that C. D. of B. in the County of S., then and there well knowing himself not to be a qualified voter in said B., did then and there, at the said election, knowingly and wilfully 1 1 Greenl. Ev. § 210. 1 Taylor the election, it is equivalent to an Ev. § 856, 7th ed. admission that he voted wilfully. ^ Combe v. Pitt, 3 Burr. 1586, Evidence that a party consalted 1590 ; 1 Wm. Bl. 524. Rigg o. counsel as to his right to vote, and Curgenven, 2 Wils. 395. submitted to them the facts of his ' 1 Greenl. Ev. § 180. case, and was advised by them that ^ 1 Taylor Ev. § 756, 7th ed. he had the right, is admissible in * If a party who is indicted on his favor, but is not conclusive this section, for wilfully giving in evidence that he did not know a vote at an election, knowing him- that he was not a qualified voter. self not to be a qualified voter, ad- Commonwealth u. Bradford, 9 Met. mits, on his trial, that he voted at 268. ELKCTIONS. 523 vote for the officers aforesaid, being the officers then and there to be chosen at the election aforesaid ; contrary to the form of the statute in such case made and provided. 2. Against a Person for Giving in more than One Ballot at One Time of Balloting. — St. 1876, oh. 172, § 1.1 Proceed as in the preceding precedent, to the asterisks, and then as follows : And the jurors aforesaid upon their oath aforesaid do further present, that C. D. of B. in the County of S. did then and there, at the election aforesaid, wilfully, fraudulently, knowingly and designedly, give in more than one ballot and list of persons then and there to be elected and chosen into the said offices, at one time of balloting at the election aforesaid ; against the peace &c. and contrary to the form of the statute in such case made and provided. 3. For Attempting to Influence a Voter by Threatening to Dis- charge him from Employment. — Gen. Sts. ch. 8, § 31. Proceed as in precedent No. 1 to the asterisks, and then as follows : And the jurors aforesaid upon their oath afore- said do further present, that one J. N., the said J. N. being then and there a qualified voter in this Commonwealth, to wit, at B. aforesaid in the county aforesaid, was then and there in the employment of one C. D. of B. aforesaid in the county aforesaid. And the jurors aforesaid upon their oath aforesaid do further present, that the said C. D. did then and there, at the said election, unlawfully attempt to influence the said J. N., so being a qualified voter in this Common- wealth as aforesaid, to give his the said J. N.'s ballot in said election, then and there duly holden, by then and there threatening to discharge the said J. N. from the said C. D.'s employment; contrary to the form of the statute in such case made and provided. 1 This is a misdemeanor at common law. Commonwealth v. Silsbee, 9 Mass. 416. 524 CRIMINAL LAW. CHAPTER XLIV. EMBEZZLEMENT. A TAKING is requisite to constitute larceny ; an embezzle- ment is in. substance and essentially a larceny, aggravated rather than palliated by the violation of a trust or contract, instead of being, like larceny, a trespass. The administra- tion of the common law has been not a little embarrassed in discriminating the two offences. The object of the statutes is to embrace, as criminal offences punishable by law, certain cases where, although the moral guilt was quite as great as in lar- ceny, yet the technical objection, arising from the fact of a pos- session lawfully acquired by the party, screened him from punishment. The statutes do not apply to cases where the element of a breach of trust or confidence in the fraudulent conversion of money or property is not shown to exist. This is the distin- guishing feature of the provisions in the Gen. Sts. ch. 161, and of the subsequent statutes,^ creating and punishing the crime of embezzlement, which carefully enumerate the per- sons that may be subject to the penalties therein provided. Those provisions have been strictly construed, and the opera- tion of the statute has been confined to persons having in their possession, by virtue of their occupation or employment, the money or property of another, which has been fraudu- lently converted in violation of a trust reposed in them.* 1 St. 1874, ch. 79. St. 1877, oh. Ben-y, 99 Mass. 428 ; Common- 231. St. 1878, ch. 166, § 2. St. wealth v. WilUams, 3 Gray, 461 ; 1878, ch. 265, § 76. Commonwealth v. Smart, 6 Gray, 2 For the law relating to this 15 ; Commonwealth v. Young, 9 offence, see the following cases: Gray, 5; Commonwealth ». Tucker- Commonwealth V. Stearns, 2 Met. man, 10 Gray, 173; Commonwealth 343 ; Commonwealth v. Libbey, 11 v. Hays, 14 Gray, 62 ; Common- Met. 64; Commonwealth v. King, wealth v. Tenney, 97 Mass. 50; 9 Cush. 284 ; Commonwealth v. Commonwealth v. Concannon, 5 EMBEZZLEMENT. 525 An indictment for embezzlement must contain, in addition to all the requisites of an indictment for larceny at common law, allegations setting forth the fiduciary relation, or the capacity in which the defendant acted, and by means of which the property came into his possession, and also charg- ing the fraudulent conversion. But the two offences of lar- ceny and embezzlement are so far distinct in their character, that, under an indictment charging merely a larceny, evidence of embezzlement will not authorize a conviction. Although the party, in the language of the statute, " shall be deemed to have committed the crime of simple larceny," yet it is a larceny of a peculiar and distinctive character, and must be so set forth in the indictment.^ Embezzlement did not con- stitute larceny at common law, and therefore allegations to bring the case within the statute are necessary. In the case of Commonwealth v. King,^ Dewey, J., said that "The offences are by us considered so far distinct as to require them to be charged in such terms as will indicate the precise offence intended to be charged. If the goods are not in the actual or constructive possession of the master at the time they are taken, the offence of the servant will be embez- zlement, and not larceny." The converse of the proposition is true, that, if the property is in the actual or constructive possession of the master at the time it is taken, the offence will be larceny, and not embezzlement. And it has been so held in England. Where the prisoner was the clerk of A., Allen, 502 ; Commonwealth v. 5 Allen, 502. Commonwealth o. Foster, 107 Mass. 221 ; Common- Berry, 99 Mass. 428. Common- wealth V. O'Malley, 97 Mass. 584; wealth v. Butterick, 100 Mass. 1. Commonwealth v. Butterick, 100 Commonwealth w. Smith, 116 Mass. Mass. 1 ; Commonwealth v. Ben- 40. Commonwealth v. Bennett, nett, 118 Mass. 443 ; Common- 118 Mass. 443. Commonwealth v. wealth V. O'Keefe, 121 Mass. 59 ; Hussey, 111 Mass. 432. Common- Commonwealth V. Green, 122 Mass. wealth v. Green, 122 Mass. 333. 333. • ^ Commonwealth v. Simpson, 9 As to the form of the indictment, Met. 188. Commonwealth v. King, see Commonwealth v. Stearns, 2 9 Cush. 284. Commonwealth v. Met. 343. Commonwealth v. Mer- Collins, 12 Allen, 182. Common- rifield, 4 Met. 468. Commonwealth wealth v. Berry, 99 Mass. 428. V. Smart, 6 Gray, 15. Common- Regina v. Gorbutt, Dearsly & Bell wealth V. Tuckerman, 10 Gray, C. C. 166. 173. Commonwealth v. Concannon, 2 9 Cush. 284. 526 CRIMINAL LAW. and received money from the hands of another clerk of A., to pay for an advertisement, and kept part of the money, falsely representing that the advertisement had cost more than it had ; it was held that this was larceny and not embezzlement, because A. had had possession of the money by the hands of the other clerk.i The distinction is between custody and possession. A servant who receives from his master goods or money to use for a specific purpose has the custody of them, but the possession remains in the master. In Commonwealth v. Berry ,2 the defendant, who was employed as a servant, was directed by one member of the firm who employed him to take a sum of money from him to another member of the firm. He had the custody of the money, but not any legal or separate possession of it. The possession remained in his master. His fraudulent and felonious appro- priation of it was therefore larceny, and not embezzlement. It is not necessary, in order to constitute embezzlement, that there should be a demand of the money alleged to have been embezzled, or a denial of its receipt, or any false account given of it, or false statement or entry concerning it, or refu- sal to account for it.^ The statute, in its words, does not necessarily imply that the defendant should embezzle whilst clerk or servant ; and if it does so imply it, the indictment, which pursues the same terms, also implies it.* " If we were to hold," said Lord Ten- terden, C. J., " that the allegation that on such a day the prisoner, being the servant of J. H., did on the same day steal the goods of J. H., did not import that she stole his goods at the time when she was his servant, we should ex- pose ourselves to that reproof expressed by a very learned and very humane judge ; viz., that it is a disgrace to the law that criminals should be allowed to escape by nice and cap- tious objection of form." ^ It is not necessary to state from whom the property was received.^ But as this may operate 1 Rex V. Murray, 1 Moody C. C. * Regina v. Lovell, 2 M. & Rob. 276; 5 C. & P. 145. 236, 238, Coleridge, J. 2 99 Mass. 428. ' Rex v. Somerton, 7 B. & C. ' Commonwealth v. Tuckerman, 463, 466. 10 Gray, 173. Commonwealth v. « Rex v. Beacall, 1 C. & P. 454, llussey, 111 Mass. 432. by the Twelve Judges. EMBEZZLEMENT. 627 as a hardship upon the defendant, the presiding judge will, upon application, order the prosecutor to furnish the prisoner with a bill of particulars of the charge.^ No greater particularity of description is requisite in an in- dictment for embezzlement than in one for larceny. An indictment which charges an embezzlement of " certain money to the amount and value of twenty-five thousand dollars," is sufiScient.^ So an allegation in an indictment for embezzling " sundry bonds of the United States of America, for the pay- ment of money, issued by authority of law, and of the aggre- gate value of one thousand dollars," is sufficient.^ The words " any property of another " in the statute mean the property of any person except such clerk, agent or servant who em- bezzles it.* The indictment must allege the owner of the property embezzled. It is not sufficient to allege that the defendant took it into his possession by virtue of his employ- ment or on account of his master.^ An indictment for embez- zlement, which charges that the defendant did receive and take "certain money of A.," sufficiently alleges that the money was the property of A.^ In Eastman v. Commonwealth,^ the indictment charged the defendant with stealing a bank-bill " of the goods and chattels of one Daniel Carter ; " and it was held that, while a bank-bill might not be properly termed goods and chattels, yet those words might be rejected as sur- plusage, and the indictment stand as properly charging a larceny of the property of Carter. The Gen. Sts. ch. 161, § 42, enacts that, " In prosecutions for the offence of embezzling, fraudulently converting to one's own use, or fraudulently taking and secreting with intent so to embezzle or convert, the bullion, money, notes, bank-notes, 1 Rex V. Bootyman, 5 C. & P. ^ Kex o. M'Gregor, 3 B. & 300. Rex V. Hodgson, 3 C. & P. P. 106; Russell & Ryan C. C. 28; 422. Commonwealth v. Bennett, 2 Leach C. C. 932. Rex !>. Beaoall, 118 Mass. 443, 452. 1 Moody C. C. 15. 2 Commonwealth v. Bennett, ^ Commonwealths. Bennett, 118 118 Mass. 443. Mass. 443. ' Commonwealth v. Butterick, ' 4 Gray, 416. Commonwealth 100 Mass. 1, 8. V. Stebbins, 8 Gray, 495. * Gen. Sts. ch. 161, § 38. Com- monwealth V. Stearns, 2 Met. 343. 528 CRIMINAL LAW. checks, drafts, bills of exchange, obligations, or other securi- ties for money, of any person, bank, incorporated company, or copartnership, by a cashier, or other officer, clerk, agent, or servant, of such person, bank, incorporated company, or copartnership, it shall be svffieient to allege generally in the in- dictment an embezzlement, fraudulent conversion, or taking with such intent, of money to a certain amount, without specifying any particulars of such embezzlement; and on the trial evi- dence may be given of any such embezzlement, fraudulent conversion, or taking with such intent, committed within six months next after the time stated in the indictment ; and it shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it is proved, that any bullion, money, notes, bank-note, cheeky draft, bill of ex- change, or other security for money, of such person, bank, incorporated company, or copartnership, of whatever amount, -was fraudulently embezzled, converted, or takeu with such intent, by such cashier, or other officer, clerk, agent, or ser- vant, within said period of six months."^ The St. 1878, ch. 186, enacts that the provisions of this section shall apply to indictments for embezzlement by town, city, or county officers under section thirty-seven of the same chapter. The provision in this section of the statute that " it shall be sufficient to allege generally in the indictment " " of money to a certain amount, without specifying any particulars of such embezzlement," is not open to the objection, that the offence is not set forth "fully and plainly, substantially and for- mally," as required by the Declaration of Rights, art. 12. The defendant, if he desires, is entitled to a specification of the particular acts relied on by the government.^ A person who steals or embezzles several articles of prop- er tj'' at one time may be indicted and convicted for the lar- ceny or the embezzlement of each article separately.^ The St. 1878, ch. 105, enacts that " A person charged with 1 Commonwealth ». Butteiick, ' Commonwealth v. Butterick, 100 Mass. 1, 8. Commonwealth v. 100 Mass. 1, 9. Commonwealth ». Bennett, 118 Mass. 443. Sullivan, 104 Mass. 552. See 114 2 Commonwealth v. Bennett, Mass. 278. 118 Mass. 443, 452. EMBEZZLEMENT. 629 embezzlement may be complained of or indicte^d, tried and sentenced, in any county in which he had possession of the property alleged to have been embezzled." It was the duty of a clerk, as a country traveller, to collect moneys and remit them at once to his employers. On the 18th day of April he received money in the County of York ; on the 19th and 20th he wrote to his employers from York, not mentioning that he had received the money ; on the 21st day of April he wrote to them again from York, by that let- ter intending them to believe that he had not received the money. The letters were addressed to and received by his employers in the County of Middlesex, and posted in the County of York. It was held that the receipt of the letter of the 21st of April in Middlesex was sufficient to give jurisdic- tion to try the defendant in Middlesex. Field, J. : " There is a strong authority to be found as to the effect to be given to the sending of the letter to Middlesex. In the case of Evans v. Nicholson i the court regarded a letter as speaking continuously from the moment of its being posted until its receipt by the addressee for the purpose of giving jurisdic- tion ; and the reasoning is in this way : A letter is intended to act on the mind of the recipient ; its action upon his mind takes place when it is received. It is like the case of the firing of a shot or the throwing of a spear. If a shot is fired or a spear thrown from a place outside the boundary of a county into another county, with intent to injure a person in that county, the ofPence is committed in the county within which the blow is given. So with a letter. There may in this case have been evidence on which a Yorkshire jury might have convicted the prisoner ; but I think there was also clearly evidence which justified his conviction by a Middle- sex jury. I arrive at this upon principle, and I do not find that the authorities compel me to come to any other conclu- sion. No doubt there is a distinction between that which is mere evidence of a crime, and that which is the crime or is part of the crime itself. I quite agree that it is not sufficient that there 1 32 L. T. N. S. 778; 45 L. J. C. P. Ill note 4; cited in Taylor v. Jones, 1 C. P. D. 87. 34 630 CRIMINAL LAW. should be nothing more than evidence of the crime in the county in order to give jurisdiction. H^e a letter amount- ing to a false accounting is the first act from which, as the case is presented to us, it is possible to say with certainty that the prisoner intended to embezzle the money. That letter was a continuing act until its receipt, and was received in the County of Middlesex. I therefore hold that the offence was completed when the prisoner by letter made the false state- ment to his employers as to the receipt of the money, and that he was rightly tried in Middlesex." ^ 1 Regina v. Rogers, 3 Q. B. D. 28, 34, 35 ; 14 Cox C. C. 22. Hud- dleston, B., dissenting. In the case of Rex V. Taylor, 3 B. & P. 596, 597, Lord Alvanley, C. J., said : " In the present case no doubt can be entertained. The prisoner, being sent over Blackfriar's Bridge into the county of Surry, there received ten shillings for his master. The receipt of that money was perfectly legal, and there was no evidence that he ever came to the determina- tion of appropriating the money to his own use until after he had re- turned into the county of Middle- sex. It was not proved that the money ever was embezzled until the prisoner was in the county of Mid- dlesex. In cases of this sort the nature of the thing embezzled ought not to be laid out of the question. The receipt of money is not like the receipt of an individual thing, where the receipt may be attended with circumstances which plainly indicate an intention to steal, by showing an intention in the receiver to appropriate the thing to his own use. Thus, if a servant receive a horse for his master, and sell it be- fore he gets out of the county where he first received it, it might be said that he is guilty of the whole oflence in that county. But with respect to money, it is not necessary that the servant should deliver over to his master the identical pieces of money which he receives, if he should have lawful occasion to pay them away. In such a case as this, therefore, even if there had been evidence of the prisoner having spent the money on the other side of Blackfriar's Bridge, it would not necessarily con- fine the trial of the offence to the county of Surry. But here there is no evidence of any act to bring the prisoner within the statute until he is called upon by his master to account. When called upon by his master to af.count for the money, the prisoner denied that he had ever received it. This was the first act from which the jury could with cer- tainty say that the prisoner intended to embezzle the money. In this case there was no evidence of the pris- oner having done any act to embez- zle in the county of Surry, nor could the offence be complete nor the prisoner be guilty within the act, until he refused to account to his master. We are therefore of opin- ion that the prisoner was properly indicted in the county of Middle- sex." See also Regina v. Murdock, 2 Denison C. C. 298. In the case of Rex v. Burdett, 4 B. & Aid. 95, which has been EMBEZZLEMENT. ' 531 The general principle is, that all the evidence admitted must be pertinent to the point in issue. But if it is pertinent to this point, and tends to prove the crime alleged, it is not to be rejected, though it also tends to prove the commission of other crimes, or to establish collateral facts. Thus, in Commonwealth v. Tuckerman,i the defendant had prepared a paper in which he stated a large number of embezzlements which he had committed, and which were other than those alleged ; but one of the items was one of the alleged embez- zlements ; and it was held that the whole paper was admis- sible. It was also held that other embezzlements than those alleged might be proved, as tending to establish the motive with which the defendant took the money alleged ; the acts being so connected that the jury might find that the same intent applied to all of them. 1. Indictment against a Clerk for Embezzlement.^ — Gen. Sts. ch. 161, § 38. The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. in the County of S., being then and there the clerk of one J. N., the said C. D. not being then and there an apprentice to the said J. N., nor a person under the age of sixteen years, did then and there by virtue of his said employment have, receive and take into his possession cer- tain money, to a large amount, to wit, to the amount of one thousand dollars^ and of the value of one thousand dollars of followed universally, the libel was Bennett, 118 Mass. 443, 453. Corn- contained in a letter written in monwealth v. McCarthy, 119 Mass. county L. but received in county 354, 355. M. , and it was held that the de- ^ Whether the defendant is clerk fendant might be indicted in either or servant is a question of fact for county. Commonwealth v. Bland- the jury. Regina v. Negus, L. R, ing, 3 Pick. 311. Commonwealth 2 C. C. 34. Regina v. Bailey, 12 1). Macloon, 101 Mass. 6. Common- Cox C. C. 56, C. C. R. Regina v. wealth V. Costley, 118 Mass. 27. Bowers, L. R. 1 C. C. 41. ^ 10 Gray, 173, 197. Common- ^ A variance between the in- wealth V. Shepard, 1 Allen, 575. dictment and the amount received Commonwealth J). JefEries, 7 Allen, is immaterial. Rex u. Carson, Rus- 567. Commonwealth v. Choate, sell & Ryan C. C. 303. An indict- 105 Mass. 458. Commonwealth v. ment alleging the embezzlement of 532 CRIMINAL LAW. the property of the said J. N., the said C. D.'s said employer, and the said C. D. the said money then and there feloniously did embezzle and fraudulently convert to his own use with- out the consent of the said J. N. the said C. D.'s employer ; whereby and by force of the statute in such case made and provided the said C. D. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid upon their oath aforesaid do say, that the said C. D. then and there, in manner and form aforesaid, the said money of the prop- erty of the said J. N., the said C. D.'s said employer, from the said J. N. feloniously did steal, take and carry away ; ^ contrary to the form of the statute in such case made and provided. 2. Against the President and Cashier of a Bank for Embeszlement. Gen. Sts. ch. 161, § 39.2 The jurors &c. upon their oath present, that William AVyman of Charlestown in the County of Middlesex, and Thomas Brown the younger of that name of the same place, at Charlestown aforesaid in the county aforesaid, on the first day of April in the year of our Lord the said Wyman then and there being one of the directors and president of the PhcBnix Bank, a corporation then and there duly and legally established, organized, and existing under and by vir- money is not sustained by evidence embezzle, steal, take and carry of the embezzlement of a check, away&c, — objection was made that unless it is also proved that the de- in the introductory part of the in- fendant cashed the check and so dictment it was not alleged that he converted it into money. Regina did feloniously embezzle &c., and u. Keena, L. R. 1 C. C. 113. Re- that therefore the indictment failed gina V. Gale, 2 Q. B. D. 141. to show that he had committed a 1 Where an indictment charged felony, and that, unless it was so that the prisoner was employed as shown in the body of the indictment, a clerk to A., and that, by virtue of it was not enough that it was so his employment, he received from alleged in the conclusion of it. The B. on account of his master £9 18s. judges, however, held it to be suffi- 9(i., without showing of what mon- cient that it was stated in the con- eys that sum was made up, and elusion. Rex v. Crighton, Russell that he fraudulently embezzled the & Ryan C. C. 62. See Common- same, omitting the word " f eloni- wealth v. Dean, 110 Mass. 64. ously;" and concluded, and so the ^ Commonwealth r. Wyman, 8 jurors say that he ^'■feloniously" did Met. 247. EMBEZZLEMENT. 533 tue of the laws of the Commonwealth as an incorporated bank, and the said Brown being then and there cashier of the said bank, did, by virtue of their said respective offices and employments, and whilst the said Wyman and Brown were severally employed in their said respective offices, have, receive and take into their possession certain money to a large amount, to wit, to the amount and sum of two hundred and twenty thou- sand dollars and of the value of two hundred and twenty thou- sand dollars, divers bills called bank-bills amounting in the whole to the sum of one hundred and twenty thousand dollars and of the value of one hundred and twenty thousand dollars, divers notes called treasury notes, amounting in the whole to the sum of seventy-five thousand dollars and of the value of seventy-five thousand dollars of the goods and chattels, prop- erty and moneys of the said President, Directors and Com- pany of the Phoenix Bank, in their banking-house there situate, being ; and the said money, bills and notes then and there unlawfully, fraudulently and feloniously did embezzle in the banking-house aforesaid. And so the jurors aforesaid upon their oath aforesaid do say, that the said Wyman and Brown then and there, in manner and form aforesaid, the aforesaid money, bills and notes, of the goods, chattels, prop- erty and moneys of the said President, Directors and Com- pany of the Phoenix Bank, feloniously did steal, take and carry away, in the banking-house af6resaid ; against the peace of the Commonwealth aforesaid and contrary to the form of the statute in such case made and provided. 3. Against a Carrier for Embezzlement. — Gen. Sts. ch. 161, § 41.1 The jurors &c. upon their oath present, that one J. N. on the first day of June in the year of our Lord at F. in the County of M., did deliver to one J. S. of &c., the said J. S. being then and there a carrier, a certain large sum of ^ Carriers for hire could not, by 3 Gray, 461. Commonwealth v. the common law, commit larceny. Smart, 6 Gray, 15. Commonwealth Commonwealth ». Brown, 4 Mass. v. Berry, 99 Mass. 428. 580. Commonwealth v. Williams, 634 CRIMINAL LAW. money, to wit, the sum of one thousand dollars and of the value of one thousand dollars of the property of the said J. N., to be carried by the said J. S., for hire, to wit, for the sum of two dollars, and to be delivered by the said J. S., for the said J. N., and by the said J. N. sent and directed to one C. D. at B. in the County of S. ; and that the said J. S. did, by virtue of his said employment as a carrier, at F. aforesaid in the county aforesaid and while he was so employed as afore- said, take into his possession said money to be carried and delivered as aforesaid, and that the said J. S. carrier as afore- said, afterwards, to wit, on the first day of June in the year of our Lord at F. in the County of M., and before the money so delivered to him as aforesaid was by the said J. S. delivered to the said C. D. at B. in the County of S., feloniously did embezzle and fraudulently convert the same to his own use ; whereby, and by force of the statute in such case made and provided, the said J. S. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid upon their oath aforesaid do say, that the said J. S. on the said first day of June in the year of our Lord at F. in the County of M., in manner and form aforesaid, the said money, the property of the said J. N., from the said J. N. feloniously did steal, take and carry away ; contrary to the form of the statute in such case made and provided. 4. Against a Carrier for Embezzlement. — Gen. Sts. ch. 161, § 41.^ That one Isaac Howe of Dedham in the County of Nor- folk, on the fifth day of April in the year of our Lord one thousand eight hundred and sixty-two, at Dedham in the County of Norfolk, did deliver to one Michael Concannon a certain paper writing containing a conveyance of land, the same being then and there a deed of mortgage of certain land situate in Roxbury in the County of Norfolk, before then made and executed by the said Michael Concannon to one Henry G. Denny, and delivered to said Henry G. Denny 1 Commonwealth v. Concannon, 5 Allen, 502. EMBEZZLEMENT. 535 by said Michael Concannon, of the property, goods and chattels of the said Henry G. Denny, and of the value of four hundred and fifty dollars, to be carried by the said Mi- chael Concannon to the said Henry G. Denny, and to be delivered by the said Michael Concannon to the said Henry G. Denny at Boston in the County of Suffolk, the said paper writing being then and there the subject of larceny ; and that the said Michael Concannon did then and there take and receive into his possession the aforesaid paper writing, so as aforesaid delivered to him by the said Isaac Howe, to be by him the said Michael Concannon carried and delivered as aforesaid, and that the said Michael Concannon afterwards, to wit, on the said fifth day of April, at Dedham in the County of Norfolk, and before the said paper writing so de- livered to him as aforesaid was by the said Michael Concan- non delivered to the said Henry G. Denny at Boston in the County of Suffolk, feloniously did embezzle and fraudulently convert the same to his own use &c.i 5. Against the Treasurer of an Incorporated Company. The jurors &c. upon their oath present, that George T. Hathaway of Fall River in the County of Bristol, at Fall River in the County of Bristol, on the first day of June in the year eighteen hundred and seventy- was, and for the space of six months next following said first day of June continued to be an officer, to wit, the treas- 1 Bigelow, C. J. :" The objections fraudulent conversioa by him. The to the indictment are not tenable, nature of the offence was fully dis- The mortgage is described suffi- closed by apt and proper allegations, ciently to identify it. No greater Commonwealth v. Simpson, 9 Met. particularity in this respect is nee- 142. There is a distinct averment essary than in an ordinary indict- that the deed was delivered to the ment for larceny. The mortgage defendant, and that he took and deed, being a subject of larceny received it for the purpose of carry- under Gen. Sts. ch. 161, § 18, might ing and delivering it to the prose- also be the subject of embezzlement cutor. We cannot see that this under Gen. Sts. ch. 161, § 35. The does not" fully and formally set out indictment sets forth distinctly and the agreement or trust on which with due precision the manner in the deed was received by the defend- which the mortgage came into the ant." possession of the defendant, and its 536 CRIMINAL LAW. urer of the Border City Mills, which was then and there an incorporated company, duly and legally established, or- ganized and existing as a corporation under and by virtue of the laws of said Commonwealth, he the said George T. Hathaway not being during any part of the time aforesaid an apprentice of said Border City Mills, and not being during any part of the time aforesaid a person under the age of sixteen years ; and that said George T. Hathaway, on the first day of June in the year eighteen hundred and seventy- at Fall River aforesaid in the comity aforesaid, did, by virtue of his said office as treasurer as aforesaid, and while he con- tinued and was employed in his said office as treasurer as aforesaid, have, receive and take into his possession certain money to a large amount, to wit, to the amount of one hun- dred thousand dollars and of the value of one hundred thousand dollars ; sundry bank-bills amounting in the whole to one hundred thousand dollars and of the value of one hundred thousand dollars ; sundry bank-checks for money amounting in the whole to one hundred thousand dollars and of the value of one hundred thousand dollars ; sundry prom- issory notes amounting in the whole to one hundred thousand dollars and of the value of one hundred thousand dollars ; sundry bills of exchange amounting in the whole to one hun- dred thousand dollars and of the value of one hundred thousand dollars ; sundry drafts for money amounting in the whole to one hundred thousand dollars and of the value of one hundred thousand dollars; and one hundred pieces of paper, each of the value of one thousand dollars of the goods, property and money of said Border City Mills, a more particular description of which money, bank bills, checks, promissory notes, bills of exchange, drafts and pieces of paper is to the jurors aforesaid unknown ; and the said money, bank bills, cheeks, promissory notes, bills of exchange, drafts and pieces of paper then and there unlawfully, fraudu- lently and feloniously did embezzle and convert to his own use, without the consent of said Border City Mills. Whereby and by force of the statute in such case made and provided, the said George T. Hathaway is deemed to have committed the crime of simple larceny. EMBEZZLEMENT. 537 And so the jurors aforesaid upon their oath aforesaid do say, that the said George T. Hathaway on said first day of June in the year eighteen hundred and seventy- at Fall River in the County of Bristol, in manner and form aforesaid, the said money, bank bills, checks, promissory notes, bills of exchange, drafts and pieces of paper, the prop- erty of said Border City Mills, from the said Border City Mills feloniously did steal, take and carry away ; contrary to the form of the statute in such case made and provided. 538 CRIMINAL LAW. CHAPTER XLV. EMBEACBRY. EvEEY one commits the misdemeanor called embracery ■who by any means whatever, except the production of evi- dence and argument in open court, attempts to influence or instruct any juryman, or to incline him to be more favor- able to the one side than to the other in any judicial proceed- ing, whether any verdict is given or not, and whether such verdict, if given, is true or false.-^ 1. Indictment for Embracery by Persuading a Juror to give his Verdict in Favor of the Defendant, and for Soliciting the other Jurors to do the Like.^ That Anthony Brooks of &c. &c., on the day and year &c., then knowing that a certain jury of the said County of W. was empanelled and returned to try the said issue, joined in the court of the said Lord the King of the Common Bench, at Westminster in the County of Middlesex, between P. S. plaintiff, and R. F. defendant, in a plea of trespass upon the case ; and then knowing that a trial was to be had upon the said issue, on the said day of and in the year aforesaid, before &c., then justices of the said lord the king, assigned to take assizes for the County of Worcester aforesaid, the said Anthony Brooks, then being a common embracer of jurors, and devising and unlawfully intending to hinder the due and lawful trial of the said issue, by the jurors aforesaid empanelled and returned to try the said issue, on the said day and year &c., at &c., in the county &c., unlawfully and unjustly, on behalf of the said R. F. defendant in the said cause, did solicit and persuade one 1 Stephen Dig. Crim. Law, 77. " Rex V. Brooks, 1 Tremaine P. C. 175. EMBRACERY. 639 B. S. of &c., one of the jurors of the said jury empanelled and returned for the trial of the said issue, at the trial afore- said upon the jury aforesaid to appear and attend in favor of the said R. F., the said Anthony Brooks then well knowing that the said B. S. was one of the jurors returned and em- panelled to try the said issue ; and then and there did say and utter to the said B. S., one of the jurors aforesaid, divers words and discourses by way of commendation, on behalf of the said R. F. the defendant, and then and there did say and utter to the said B. S. divers words and discourses by way of dispraise of the said P. S. the plaintiff; and that the said Anthony Brooks then and there unlawfully and corruptly did move and desire the said B. S. to solicit and persuade the other jurors, empanelled and returned to try the said issue, to give a verdict for the said R. F. the defendant in the said cause. And that 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 R. F. the defendant, did give their verdict for the said R. F. the defendant ; against the peace &c. 2. Indictment for Embracery by Persuading a Juror to give his Verdict in Favor of the Defendant, and for Soliciting the other Jurors to do the Iiike.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, knowing that a jury of the said County of S. was then duly returned, empanelled and sworn to try a certain issue joined in the Supreme Judicial Court, then held and in session according to law, at B. aforesaid within and for the County of S., be- ' tween E. F. plaintiff, and G. H. defendant, in an action of contract ; and then also knowing that a trial was to be had upon the said issue, on the first day of June in the year afore- said, before the said Supreme Judicial Court, then and there held for the said County of S., the said C. D. unlawfully in- ^ This precedent is taken in Crown, vol. i. pp. 175, 176. Davis substance from the preceding prec- Criminal Justice, 433, 434, Heard's edent. Tremaine's Pleas of the ed. Davis Precedents, 113. 540 CRIMINAL LAW, tending and devising to hinder a just and lawful trial of the said issue by the jurors aforesaid, returned, empanelled and sworn as aforesaid, to try the said issue, on the first day of June in the year aforesaid, at B. in the county aforesaid, un- lawfully and unjustly, on behalf of the said G. H. the defend- ant in the said cause, did solicit and persuade one I. J., one of the jurors of the said jury, returned, empanelled and sworn according to law for the trial of said issue, to appear and at- tend in favor of the said G. H., the said defendant in the said cause ; and then and there did say and utter to the said I. J., one of the jurors as aforesaid, divers words and discourses by way of commendation, on behalf of the said G. H. the said defendant, and in disparagement of the said E . F. the plaintiff; and that the said C. D. did then and there unlawfully and corruptly move and desire the said I. J. to solicit and persuade the other jurors returned, empanelled and sworn to try the said issue, to give a verdict for the said G. H. the defendant in the said cause, the said C. D. then ■ and there well knowing that the said I. J. was one of the jurqrs returned, empanelled and sworn to try the said issue ; and that the jurors of the said jury, by reason of speaking and uttering the words and discourses aforesaid, did give their verdict for the said G. H., the said defendant in the cause aforesaid ; ^ against the peace of the Commonwealth aforesaid. 1 The last allegation in this in- is complete by the attempt, whether dictment, namely, that the jury it succeed or not. 1 Hawk. P. C. gave their verdict for the defendant, ch. 27, § 1, p. 466, fed. Curwood. by reason of the words, discourses 1 Deacon Crim. Law, 378. &c., is not necessary. The crime ESCAPE. 541 CHAPTER XLVI. ESCAPE. An escape of a person, lawfully arrested for crime, by gaining his liberty before he is delivered by course of law, is also an offence against public justice.-' And the officer permitting such escape, either by negligence or connivance, is much more culpable than the prisoner, — the natural de- sire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to cus- tody, till cleared by the due course of justice. Officers, therefore, who after arrest negligently permit a felon to escape are punishable ; but voluntary escapes, by consent and connivance of the officer, are a much more serious offence ; for it is generally agreed that such escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guUty, and for which he is in custody; whether treason, felony, or trespass. And this whether he were actually committed to jail, or only under a bare arrest. But the officer cannot be thus punished as for felony till the original delinquent hath .actually re- ceived judgment ; otherwise it might happen that the officer might be punished for felony, and the person arrested and escaping might turn out to be an innocent man. But before the conviction of the principal party, the officer thus neglect- ing his duty may be punished for a misdemeanor. We may add here, that an escape permitted by a private person is an offence of the same description as one permitted by an officer. For if any person has another in his lawful custody, as for crime committed, and suffers him to escape before he is deliv- ered over to the proper authority, such person is liable to the same punishment as already stated in the case of a jailer or other officer.^ 1 Commonwealth v. Farrell, 5 ^ 4 Stephen Comm. 227, 228, 7th Allen, 130. ed. 542 CRIMINAL LAW. An escape by a convict from the custody of an officer who is conducting him on a mittimus to the House of Correction is ,an offence at common law.' By Gen. Sts. ch. 178, § 46, the escape of any one " lawfully imprisoned in any place of con- finement established by law, other than the state prison," is recognized as a criminal offence. By Gen. Sts. ch. 179, §§ 53, 54, punishment is also provided in cases where persons convicted under sentence escape from the prisons where they are confined. These statutes apply exclusively to escapes from confinement in prisons, and "places established by law." 2 The Gen. Sts. ch. 163, § 12, enacts that " Whoever aids or assists a prisoner in escaping, or attempting to escape, from an officer or person who has the lawful custody of such pris- oner, shall be punished by imprisonment in the jail not ex- ceeding two years, or by fine not exceeding five hundred dollars." It is clear that it was not the purpose of this stat- ute merely to prescribe a punishment for a common-law offence. The intent of the Legislature was to define and describe the offence intended to be punished. It is not within that class of statutes as to which it has been held that an indictment is sufficient which follows the words of the statute. The language used does not, ex vi termini, describe all the ingredients of the offence intended to be punished with the certaiuty required in criminal pleading. An indict- ment under it, therefore, must allege all the facts necessary to bring the case within the intent and meaning of the statute.^ The indictment must allege the acts done by the defendant. If they are unlawful in their nature, or if they are in their nature innocent, a guilty knowledge of the de- fendant that the prisoner was in lawful custody and was escaping therefrom when the acts were committed, should be alleged, otherwise the indictment fails to show any unlawful act or criminal intent within the spirit of the statute.'* There- 1 Commonwealth v. Farrell, 5 Mass. 302. United States v. Sim- Allen, 130. mons, 96 U. S. 360. ' 2 Commonwealth v. FarreU, 5 * Commonwealth v. Filburn, 119 Allen, 131. Mass. 297. * Commonwealth v. Barrett, 108 ESCAPE. 643 fore an indictment on the Gen. Sts. eh. 163, § 12, alleging the arrest for drunkenness of A., at a time and place men- tioned, by B., a constable of the town, and that the defendant " did then and there unlawfully aid and assist the said A. in then and there unlawfully escaping from the said lawful cus- tody of the said B.," is insufficient, although it follows the words of the statute. It does not allege what acts were done by the defendants, nor that they knew that the pris- oner was in custody,^ and therefore does not allege any unlawful act or criminal intent which brings the case within the statute.^ 1. Indictment against a Constable for a Negligent Escape.^ The jurors &c. upon their oath present, that on the first day of June in the year of our Lord at B. in the County of M., J. S., then being one of the constables of said B., brought one J. N. before A. C, Esquire, then and yet being one of the trial justices within and for the county aforesaid, legally authorized and duly qualified to perform and discharge the duties of said office ; and the said J. N. was then and there charged before the said A. C. by one Catherine Hope, upon the oath of the said Catherine, that the said J. N. had then lately before, violently and against her will, feloniously ravished and carnally known the said Catherine ; and the said J. N. was then and there examined before the said A. C, the justice aforesaid, touching the said offence so to him charged as aforesaid ; upon which the said A. C, the justice aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the first day of June in the year aforesaid, directed to the keeper of the jail in said county, commanding the said keeper that he should receive into his custody the said J. N., brought before him and charged upon the oath of the said Catherine Hope, with the premises above specified ; and the said justice, by the said ^ It, must be distinctly alleged ^ Commonwealth v. Filburn, 119 that the prisoner was in the custody Mass. 297. of the officer when the acts were = Archb. Crim. PI. 832, 18th committed. Commonwealth v. Fil- ed. burn, 119 Mass. 299. 544 CRIMINAL LAW. warrant, did command the said keeper of the said jail in said county, to safely keep the said J. N. there until he by due course of law should be discharged ; which said warrant after- wards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, was delivered to the said J. S., then being one of the constables of B. as aforesaid, and then and there having the said J. N. in his custody for the cause afore- said ; and the said J. S. was then and there commanded by the said A. C, the justice aforesaid, to convey the said J. N, without delay to the said jail in said county, and to deliver the said J. N. to the keeper of the said jail, together with the warrant aforesaid.** And the jurors aforesaid upon their oath aforesaid do further present, that the said J. S. of B. aforesaid in the county aforesaid, afterwards, to wit, on the day and year last aforesaid, then being one of the constables of said B. as aforesaid, and then having the said J. N. in his custody for the cause aforesaid, at B. aforesaid in the county aforesaid, the said J. N. out of the custody of the said J. S. unlawfully and negligently did permit to escape, and go at large whithersoever he would, whereby the said J. N. did then and there escape, and go at large whithersoever he would; to the great hinderance of justice and against the peace &c. 2. Another Precedent for the Same.^ The jurors &c. upon their oath present, that on the first day of June in the year of our Lord at B. in the County of M., one R. T. of &c. came before J. B., then and yet being one of the trial justices &c., as in the preceding precedent; and the said R. T. did then and there on his oath before the same justice, complain that one A. B. of &c., for a certain felony [or, misdemeanor, as the case may he'] in having feloniously [or, if it he a misdemeanor, unlawfully] stolen, taken and carried away one silver tankard, of the value of fifty dollars, of the goods and chattels of the said R. T. Whereupon the said J. B., the justice aforesaid, did then and there, at B. afore- said in the county aforesaid, make a certain warrant under his hand and seal in due form of law directed to the consta- 1 Matthews Crim. Law, 465. ESCAPE. 545 ble of B. aforesaid in the county aforesaid, thereby requiring the said constable to take the body of the said A. B. and bring him before the said J. B., the justice aforesaid, to an- swer such matters and things as should be alleged against him touching the said felony [or, misdemeanor] ; which said warrant afterwards, to wit, on the same day and year afore- said, at B. aforesaid in the county aforesaid, was delivered to one A. C, then being constable of B. aforesaid, in due form of law to be executed ; by virtue of which said warrant the said A. C. afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, did take and arrest the body of the said A. B., and the said A. B. had in the cus- tody of the said A. C. for the cause aforesaid.* * Neverthe- less the said A. C, the constable of B. aforesaid, the duty of his office in that respect not regarding, afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully [feloniously] and negligently did per- mit the said A. B. to escape and go at large out of the cus- tody of the said A. C. whithersoever he would, and the said A. B. did then and there escape and go at large out of the custody of the said A. C. whithersoever he would ; to the great hinderance of justice and against the peace &c. 3. For not Conveying an Offender to Prison.^ The jurors, as in the preceding precedent to the asterisks, and then proceed thus : before the said J. B., the justice aforesaid, and the said A. B. was then and there examined before the said J. B., the justice aforesaid, touching the said offence so to him charged as aforesaid ; upon which the said J. B., 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 first day of June in the year aforesaid, directed to R. O., the keeper of the jail of the said county, or his deputy, com- manding the said keeper or his depaty, that he should receive into his custody the said A. B., brought before him and charged upon the oath of the said R. T. with the premises above specified ; and the said justice, by the said warrant, did 1 Matthews Crim. Law, 466. 35 546 CRIMINAL LAW. command the said keeper of the said jail or his deputy to safely keep the said A. B. there until he, by due course of law, should be discharged ; * * which said warrant, after- wards, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, was delivered to the said A. C, then being one of the constables of B. as aforesaid, and then and there having the said A. B. in his custody for the cause afore- said : and the said A. C. was then and there commanded by the said J. B., the justice aforesaid, to convey the said A. B., without delay, to the said jail, and to deliver the said A. B. to the keeper of the said jail or his deputy, together with the warrant aforesaid, f f And the jurors aforesaid upon their oath aforesaid do further present, that the said A. C. of B. aforesaid in the county aforesaid, afterwards, to wit, on the day and year last aforesaid, then being one of the constables of B. as aforesaid, and then having the said A. B. in his cus- tody for the cause aforesaid, at B. aforesaid in the county aforesaid, J J unlawfully and wilfully neglecting his duty in that behalf, did not convey the said A. B. without delay to the said jail, and deliver the said A. B. to the keeper of the said jail or his deputy, together with the warrant as afore- said ; to the great hinderance of justice and against the peace &c. To use this precedent for a negligent escape, proceed to the % X, and then, as follows: the said A. B. out of the custody of the said A. C. unlawfully and negligently did permit to escape and go at large whithersoever he would, whereby the said A. C. did then and there escape and go at large whither- soever he would ; to the great hinderance of justice &c., con- cluding as above. 4. Indictment for Escaping out of the Custody of a Constable.-^ State the charge before the magistrate, the warrant of commit- ment, and the defendant'' s being in the custody of J. S., as in precedent No. 1, to the asterisks, and then proceed thus: And the jurors aforesaid upon their oath aforesaid do fur- ther present, that the said J. N. of B. aforesaid in the county 1 Archb. Crim. PI. 833, 18th ed. ESCAPE. 547 aforesaid, so being in the custody of the said J. S., under and by virtue of the warrant aforesaid, afterwards, and whilst he continued in such custody, and before he was delivered by the said J. S. to the said keeper of the jail in said county, to wit, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, out of the custody of the said J. S. unlaw- fully did escape, and go at large whithersoever he would ; to the great hinderance of justice and against the peace &c. 5. Indictment against a Jailer for a Voluntary Escape. — Gen. Sts. ch. 163, § 14. The jurors &c. upon their oath present, that heretofore, to wit, at the Superior Court begun and holden at so continuing the record of the conviction of the party who escaped, stating it, however, in the past and not in the present tense, then proceed thus : as by the record thereof in said court remain- ing more fully and at large appears ; which said judgment still remains in full force and effect, and not in the least re- versed, annulled or made void. And the jurors first afore- said upon their oath aforesaid do further present, that afterwards, to wit, at the said term of the Superior Court above mentioned, the said J. N. was then and there com- mitted to the care and custody of J. S., the said J. S. then and still being keeper of the common jail in and for the said County of B., there to be kept and imprisoned in the jaU aforesaid, according to and in pursuance of the judgment and sentence aforesaid; and the said J. S. the said J. N. then and there had in the custody of the said J. S. for the cause aforesaid, in the jail aforesaid. And the jurors first aforesaid upon their oath aforesaid do further present, that the said J. S. of L. in the said County of B. afterwards, and before the expiration of the six calendar months for which the said J. N. was so ordered to be imprisoned as aforesaid, and whilst the said J. N. was so in the custody of the said J. S. as such keeper of the said common jaU. as aforesaid, to wit, on the first day of June in the year last aforesaid, at B. aforesaid in the county aforesaid, feloniously, if the offence for which J. W. was convicted were a felony, unlawfullj% voluntarily and contemptuously did permit and suffer the said J. N. to escape. 548 CRIMINAL LAW. and go at large whithersoever he would ; whereby the said J. N. did then and there escape out of the said prison, and go at large whithersoever he would ; contrary to the duty of the said J. S., so being keeper of the jail aforesaid, in manifest hinderance of justice and against the peace &c. 6. Indictment for Breaking Prison.^ The jurors &c. upon their oath present, that on the first day of June in the year of our Lord J. S. then and yet being one of the trial justices within and for the County of M., legally authorized and duly qualified to discharge and perform the duties of that office, one J. N. was then and there charged before the said J. S., by one Catherine Hope, spin- ster, upon the oath of the said Catherine, that the said J. N. had then lately before, violently and against her will, feloni- ously ravished and carnally known the said Catherine ; and the said J. N. was then and there examined before the said J. S., the trial justice aforesaid, touching the said offence so to him charged as aforesaid ; upon which the said J. S., trial justice as aforesaid, did then and there make a cer- tain warrant of commitment under his hand and seal, in due form of law, bearing date the said first day of June in the year aforesaid, directed to the keeper of the jail situ- ated at C. in said county, commanding the said keeper that he should receive into his custody the said J. N., brought before him and charged, upon the oath of the said Catherine Hope, with the premises above specified ; and the said trial justice, by the said warrant, did command the said keeper of the jail situated at C, in the County of M., to safely keep the said J. N. there until he by due course of law should be discharged ; by virtue of which said warrant, afterwards, to wit, on the day and year aforesaid, the said J. N. was taken and conveyed to the said jail at C. aforesaid, and then and there delivered to one W. S., the keeper of the said jail; and the said W. S., keeper of the said jail, then and there received the said J. N. in his custody in the jail at C. aforesaid.** And the jurors aforesaid upon their oath afore- 1 Archb. Crim. PI. 835, 18th ed. ESCAPE. 549 said do further present, that the said J. N. afterwards, and whilst he so remained in custody of the said W. S., keeper of the said jail, under and by virtue of the warrant aforesaid, to wit, on the third day of September in the year last aforesaid, feloniously, if he was committed for felony, unlawfully, wil- fully and injuriously did break the jail situated at C. afore- said, by then and there cutting and sawing two iron bars of the said jail, and by then and there breaking, cutting and removing a great quantity of stone parcel of the wall of the jail aforesaid ; by means whereof the said J. N. did then and there escape and go at large whithersoever he would ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 7. For Conveying Instruments to a Prisoner in Jail to Enable him to Escape. — Gen. Sts. oh. 163, § 11.^ The jurors, proceed as in No. 6 to the asterisks, and then thus : And the jurors aforesaid upon their oath aforesaid do further present, that C. D. of B. in the County of S., after- wards, and while the said J. N. was and remained in the custody of the said W. S., in the jail of said County of S. aforesaid, namely, on the first day of June in the year last aforesaid, at B. aforesaid in the county aforesaid, feloniously and unlawfully did convey and cause to be conveyed into the said jail of the said county two steel files, being instru- ments proper to facilitate the escape of prisoners; and the same files, being such instruments as aforesaid, then and there feloniously did deliver and cause to be delivered, to the said J. N., without the consent or privity of the keeper or underkeeper of the said jail of the said county, the said 1 In an indictment on St. Geo. assist a party in prison to escape IV. ch. 64, § 43, which enacts, that without the employment of some " If any person shall, by any means means. This is not like an indict- whatever, aid and assist any prisoner ment for obtaining goods by false to escape " &c., it is not necessary pretences, in which the false pre- to set forth the means employed by tences must be set out, in order that the defendants for that purpose, the court may see whether they are Lord Campbell, C. J. : "The person within the statute." HoUoway v. charged with aiding the attempt to The Queen, 2 Denison C. C. 287; 17 escape is equally guilty, whatever Q. B. 317. means he may have used ; he cannot 550 CRIMINAL LAW. J. N. then and there being a prisoner in the said jail, and then and there lawfully committed and detained for the felony and larceny aforesaid in the said warrant of commit- ment above mentioned and expressed, and that the said files being such instruments as aforesaid, were then and there so conveyed into the said jail and delivered to the said J. N. by the said C. D. as aforesaid, with the felonious intent then and there to aid and assist the said J. N. so being such prisoner and in custody as aforesaid, to escape and attempt to escape ^ from and out of the said jail ; against the peace &c. and con- trary to the form &c. 1 It was held in Eex v. Tilley, 2 been aided if no such attempt had Leach C. C. 662, that there was no been made. Per Lord Campbell, necessity for alleging that the party C. J., in Regina v. HoUoway, 2 in prison aided did attempt to es- Denison C. C. 293. cape, for that he could not have EXTORTION. 551 CHAPTER XLVII. EXTOETION. It is a general principle that each count in an indictment ought to charge one single crime. A count for extortion ought to charge a single offence only. The reason given for this by Lord Chief Justice Holt is that " a single offence ought to be laid and ascertained, because every extortion from every particular person is a separate and distinct offence ; and therefore they ought not to be accumulated under a general charge, because each offence requires a separate and distinct punishment according to the quantity of the offence ; and it is not possible for the court to proportion the fine or other punishment to it, unless it is singly and certainly laid."^ This reason thus lucidly stated is of general application. In an indictment under the Gen. Sts. ch. 160, § 28, for verbally threatening to accuse another of a crime, with intent thereby to extort money, it is sufficient to charge the defend- ant with verbally threatening to accuse of a specified crime, and the charge will be supported by evidence of such a threat in words used by the defendant. The gist of the offence is the attempt to extort money ; the words used do not alone constitute the crime, which is distinguishable from those where words alone are the gist of the offence ; as in prosecu- tions for scandalous words spoken to a magistrate, or for seditious or blasphemous words as above specified. In such cases the words must be set out with particularity .^ An indictment for extortion must allege that the defend- ant took so much extorsive and colore officii, which are words as essential as proditorie or felonice in indictments for ' Kex V. Roberts, Carth. 226, 227. wealth v. Moulton, 108 Mass. 307. " Commonwealth i>. Murphy, 12 Commonwealth v. Goodwin, 122 Allen, 449. Commonwealth v. Mass. 19, 33. Ante, p. 81. Dorus, 108 Mass. 488. Common- 552 CRIMINAL LAW. treason and felony. The sum which the defendant received must be stated ; but it is not material to prove the exact sum as laid. Where nothing was due, that fact ought to be averred ; and where any thing was due, the sum that might have been lawfully taken must be averred.^ It is not necessary that the thing extorted should be said to be the property of any person. The word " extort " has a certain technical mean- ing, and when a person is charged with " extorsively " taking, the very import of the word shows that he is not acquiring possession of his own.^ Indictment against a Constable for Eztortion.^ The jurors &c. upon their oath present, that J. S. of B. in the County of M. on the first day of June in the year of our Lord then being one of the constables of said B., at B. aforesaid in the county aforesaid, did take and arrest one J. N., by color of a certain warrant commonly called a bench warrant, which the said J. S. then and there alleged to be in his possession ; and that the said J. S. afterwards, and while the said J. N. so remained in his custody as aforesaid, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully, wilfully, corruptly, deceitfully, extor- sively and by color of his said office, did extort, receive and take of and from the said J. N. the sum of fifty dollars, as and for a fee due to the said J. S. as such constable as afore- said, for the obtaining and discharging of the said warrant, as the said J. S. then and there alleged ; whereas, in truth and in fact, no fee whatever was then due from the said J.N. to the said J. S. as such constable as aforesaid in that behalf; against the peace &c. 1 Com. Dig. tit. Extortion. Per v. Badger, 6 El. & Bl. 137. Com- Littledale, J., in Rex v. Hollingberry, monwealth v. Bagley, 7 Pick. 279. 6 D. &R. 345. 1 Deacon Crim. Law, 2 Bishop Crim. Law, ch. 18. 475. 1 Gabbett Crim. Law, 784. 1 ^ Regina v. Tiddeman, 4 Cox C. Russell on Crimes, 306, 807, 5th ed. C. 387, Piatt, B. Rexu. Gillham, 6 T. R. 265. Rex v. " Archb. Crim. PI. 871, 18th ed. Burdett, 1 Ld. Raym. 149. Regina Dickenson Q. S. 433, 6th ed. ti. Douglas, 13 Q. B. 74. Regina FALSE PERSONATION. 553 CHAPTER XLVIII. FALSE PERSONATION. The Gen. Sts. ch. 161, § 53, enacts that " Whoever falsely personates or represents another, and in such assumed charac- ter receives any property intended to be delivered to the party so personated, with intent to convert the same to his own use, shall be deemed to have committed simple larceny." In the case of Commonwealth v. Collins,^ it was held that an indictment for larceny is sustained by evidence that the defendant, with a felonious intent, obtained the property of another by falsely personating the owner. Chapman, J. : " The defendant is indicted for larceny of a gold watch, the prop- erty of one Sanderson. The evidence was that Sanderson had left his watch at a watch-maker's to be repaired, and that the defendant went to the shop, pretending to be San- derson, asked for the watch, paid for the repairing and took the watch, with a felonious intent. These acts constitute larceny at common law. The case is like that of Rex v, Longstreeth.^ The defendant in that case went to a carri- er's servant and obtained from him a parcel by falsely pre- tending to be the person to whom it was directed. It was held to be a larceny, because the servant had no authority to deliver it to him, so that no property passed to him, but the mere possession feloniously obtained. So in this case the watch-maker had no authority to deliver the watch to the de- fendant, and the latter obtained no property in it, not even the qualified property of a bailee, but a mere felonious posses- sion, which is the essence of the crime of larceny. 1 12 Allen, 181. M. C. 97. Regina v. Prince, L. R. 2 1 Moody C. C. 137. There 1 C. C. 155; 38 L. J. M. C. 11. are a great number of other cases Regina ». Middleton, L. R. 2 C. C. to the same effect. Regina v. Mc- 38; 42 L. J. M. C. 73. 2 Russell Kale, L. R. 1 C. C. 125; 37 L. J. on Crimes, 149, 150, 5th ed. 554 CRIMINAL LAW. " But by Gen. Sts. ch. 161, § 53, it is enacted that ' Who- ever falsely personates or represents another, and in such assumed character receives any property intended to be delivered to the party so personated, with intent to convert the same to his own use, shall be deemed to have committed simple larceny.' The defendant contends that the indict- ment is bad because it does not set forth the false pretences, and allege that the crime was committed against the statute. To sustain this position he cites cases ^ where it is held that though embezzlement is declared by the statute to be larceny, yet a count for larceny will not be sustained by evidence of embezzlement. But it was so decided because embezzle- ment did not constitute larceny at common law, so that allegations to bring the case within the statute were neces- sary ; but in the present case the acts proved did constitute larceny at common law." The Gen. Sts. ch. 163, § 18, enacts that " Whoever falsely assutnes or pretends to be a justice of the peace, sheriff, deputy-sheriff, coroner, constable, police-ofi&cer or watchman, and takes upon himself to act as such, or to require any per- son to aid or assist him in a matter pertaining to the duty of any such officer, shall be punished by imprisonment in the jail not exceeding one year, or by fine not exceeding four hundred dollars." The offence described by that section is the false personation of a sheriff or other officer of this Com- monwealth. An indictment is insufficient which follows the words of the statute, and charges that the defendant did falsely assume and pretend to be a sheriff, without also averring that he assumed and pretended to be a sheriff of this Common- wealth.^ 1. For Obt2iining Goods by Falsely Personating Another. — Gen. Sts. oh. 161, § 53. That C. D. of &c. on the first day of June in the year of our Lord at L. in the County of B. feloniously did falsely and deceitfully personate one A. B. to one. J. N., by 1 Commonwealth v. Simpson? 9 ^ Commonwealth v. Woloott, 10 Met. 138. Commonwealth v. King, Cash. 61. 9 Cush. 284. FALSE PERSONATION. 655 means of which said false personation and in such assumed character, the said C. D. did then and there feloniously, fraudulently and deceitfully receive from and of the said J. N. five yards of superfine woollen cloth of the value of five dollars each yard of the property of him the said J. N., with intent then and there to convert the same to his the said C. D.'s own use, he the said J. N. then and there intending to deliver the said goods and chattels to the said A. B. And so the jurors aforesaid upon their oath aforesaid do say, that the said C. D., then and there in manner and form aforesaid, the said cloth of the property of the said J. N., from the said J. N. feloniously did steal, take and carry away ; contrary to the form of the statute in such case made and provided. 2. For Falsely Assuming to be a Justice of the Peace. — Gen. Sts. ch. 163, § 18. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully did falsely assume and pretend to be one of the justices of the peace within and for the County of S., in this Commonwealth, duly qualified and empowered to perform the duties of that office, and then and there did take upon himself to act as a justice of the peace as aforesaid, by then and there taking the acknowledgment of one J. N. as grantor in a certain conveyance of lands situated at B. in the county aforesaid to one J. S. as grantee ; the said C. D. then and there well knowing that he was not qualified and empowered to perform the said duties of said office ; contrary to the form of the statute in such case made and provided. 3. For Falsely Assuming to be an Officer. — Gen. Sts. ch. 163, § 18. That C. D. of Boston in the County of Suffolk on the first day of June in the year of our Lord at Boston in the county aforesaid, unlawfully did falsely assume and pretend to one E. F., that he the said C. D. was then and there a police-officer of the City of Boston (or, a constable of the' Commonwealth of Massachusetts) in said county, and 556 CRIMINAL LAW. did then and there unlawfully take upon himself to act as such officer, and in so falsely assuming and pretending and unlawfully taking upon himself to act, did then and there declare himself to the said E. P. to be such officer, and did then and there as such officer, set forth the acts ; the said C. D. while so declaring himself and while so, repeat the acts, as aforesaid, then and there acting in his said assumed and pretended capacity as such officer ; contrary to the form of the statute in such case made and provided. 4. Indictment for Personating Bail. That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., before one J. W. B., Esquire, then one of the justices of the Superior Court of this Commonwealth, the said J. W. B. then and there having law- ful authority to take any recognizance of bail in any suit then depending in the said court, then and there feloniously, knowingly and wilfully did, without lawful authority or ex- cuse, acknowledge a certain recognizance of bail in the name of one G. H., in a certain suit then and there depending in said court, to wit, an indictment then and there depending in said court in which the Commonwealth of M. was plaintiff and one J. H. was defendant, the said G. H. not being then and there privy or consenting to the said C. D. so acknowledg- ing such recognizance in his name as aforesaid ; against the peace &c. and contrary to the form of the statute &c. FALSE PRETENCES. 557 CHAPTER XLIX. FALSE PBBTENCES. The offences of embezzlement and obtaining goods by false pretences should be and be treated as larceny for all intents and purposes. The question whether an offence is larceny, embezzlement, or false pretences, must be decided ; and if the decision is wrong, justice wUl be defeated. If a judge directs a jury to convict of embezzlement, if they convict at all, when in fact the man has committed larceny, or if he is indicted for larceny when he ought to have been indicted for obtaining goods by false pretences, the conviction is quashed. In England a very large proportion of the questions which come before the Court for Crown Cases Reserved turn upon the distinction between these three offences, which are reaUy distinctions without a difference, and the whole, or nearly the whole, learning of possession turns upon the distinction between larceny and embezzlement. Besides this, indict- ments for obtaining goods by false pretences are extremely long and intricate, and in many cases miscarriages of justice have occurred from a defect in the statement or proof of the false pretence by which the goods &c. were obtained. If the distinction was entirely removed, as it would be by adopting the principle of making the fraudulent conversion, and not the fraudulent taking, the offence, a great mass of cases and much useless nicety and intricacy might be forgotten.^ Between the crime of false pretences and that of larceny the most intelligible distinction seems to be this : In larceny, the owner of the thing stolen has no intention to part with his property therein to the person taking it, although he may intend to part with the possession ; in false pretences, the owner does intend to part with his property in the money or 1 Stephen Dig. Crim. Law, xli., xlii. 558 CRIMINAL LAW. chattel, but it is obtained from him by fraud.^ " If," says Parke, B., " a person, through the fraudulent representations of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretences." ^ The Gen. Sts. ch. 161, § 54, enacts that " "Whoever de- signedly, by a false pretence, or by a privy or false token, and with intent to defraud, obtains from another person any property, or obtains, with such intent, the signature of any person to a written instrument, the false making whereof would be punishable as forgery, shall be punished by im- prisonment in the state prison not exceeding ten years, or by fine not exceeding five hundred dollars and imprisonment in the jail not more than two years ; but the provisions of this section shall not apply to any purchase of property by means of a false pretence relating to the purchaser's means or ability to pay, when by the terms of the purchase, payment for the same is not to be made upon or before the delivery of the property purchased, unless such pretence is made in writing, and signed by the party to be charged." The St. 1863, ch. 248, enacts : — Sect. 1. The offence described in the fifty-fourth section of chapter one hundred and sixty-one of the General Stat- utes, may be alleged in the indictment, and may be prose- cuted and punished in any county in which the false pretence, or the privy or false token was made, written, or used, or in or through which any of the property obtained is carried, sent, transported, or received, by the party charged. Sect. 2. Whoever, under false color and pretence of car- rying on business, and dealing in the ordinary course of trade, obtains from any person goods or chattels, with intent to defraud, shall be punished by imprisonment in the state prison not exceeding five years, or by fine not exceeding five hundred dollars and imprisonment in the jail not more than two years. 1 Per Talfourd, J., in White v. ^ Powell v. Hoyland, 6Exch. 70. Garden, 10 C. B. 927. Regina v. Kex v. Adams, Kussell & Ryan C. Barnes, 2 Denison C. C. 59 ; 20 C. 225. Regina v. Thompson, L. J. M. C. 34. Broom Comm. Leigh & Cave C. C. 233. Regina 952, 953, 3d ed. v. Cooke, L. R. 1 C. C. 295. FALSE PRETENCES. 559 The definition of a false pretence, in Commonwealth v. Drew,i is " a representation of some fact or circumstance calcu- lated to mislead, which is not true." The Gen. Sts. eh. 161, § 54, uses the phrase " by a false pretence." The St. 1863, ch. 248, § 2, uses the phrase " under false color and pretence." Both of these phrases are substantially equivalent to the words " by means of a false pretence." The two expressions are synonymous.^ It was said by the court in Commonwealth v. Drew,^ that " although the language of the statute * is very broad, and in a loose and general sense would extend to every misrepresentation, however absurd or irrational, or however easily detected, yet the true principles of construction ren- der some restriction indispensable to its proper application. ... It may be difficult to draw a precise line of discrimina- tion applicable to every possible contingency, and it is safer to leave it to be fixed in each case as it may occur." This rule of construction applies to Gen. Sts. ch. 161, § 54. And it has accordingly been held that the naked case of a wilfully false affirmation, made to a party who had like means of knowledge whether the affirmation was true or false as the party who made it is not within the meaning of the statute. Thus, the obtaining money of another by falsely representing to him that on a previous occasion he had omitted to return the proper change to the person making the representation, and thereby inducing him to correct the supposed mistake, is not punishable under the statute.® It is well ascertained law that the pretence, in order to justify 9, conviction, must be of present or past existing facts ; a promissory pretence will not suffice. The pretence may be made either by words or by acts. It is sufficient if it can be reasonably and naturally inferred from the words, or from the acts, in order to raise a question for the decision of the jury. It is not necessary that the words or that the acts should be capable only of the meaning charged by the indictment.^ 1 19 Pick. 184, A.D. 1837. Allen, 266, a.d. 1865. Common- ^ Commonwealth v. Walker, 108 wealth v. Lincoln, 11 Allen, 237. Mass. 309, 313. « Regina v. Giles, Leigh & Cave « 19 Pick. 184, A.D. 1837. C. C. 502. Regina v. Cooper, 2 Q. * St. 1815, ch. 136. B. D. 510. 5 Commonwealth 0. Norton, 11 560 CRIMINAL LAW. " The true principle to be applied to cases of this kind," said Lord Coleridge, C. J., " is that laid down by Lord Blackburn in the case of Regina v. Giles,^ where he says that it is neces- sary to consider what is the idea intended to be conveyed. The question is, what was intended to be conveyed by the particular words used, or by the particular conduct ? If the words can reasonably convey that which is charged as the false pretence in the indictment, and if they were meant by the prisoner to convey that which is so charged, and if, in fact, they did convey that which is charged, the offence is as com- plete as though the false pretence had been made in express words." ^ y It is to be observed that a promise to do a thing in futuro may involve a false pretence that the promisor has the power to do that thing ; for which false pretence the promisor may be indictable. Thus a person who obtained goods by send- ing by post half notes in payment, but sent the corresponding halves to another person in payment for other goods, was held to have obtained the first-mentioned goods by false pre- tences. The sending of the half notes implied that the pris- oner had the corresponding halves.^ A false representation of what is mere matter of opinion, falling within the category of untrue praise in the course of a contract for sale, is not indictable. In the leading case of Regina v. Bryan,* the defendant was convicted on an indict- ment for obtaining money by false pretences, the pretences charged being that certain spoons were of the best quality, that they were equal to Elkington's A (meaning spoons made by Messrs. Elkington, and stamped by them with the letter A) ; that the foundations were of the best material, and that they had as much silver on them as Elkington's A. The rep- resentations were made to a pawnbroker for the purpose of obtaining, and the defendant did thereby obtain, advances of money on the spoons, which were in fact of inferior quality, and were of less value than the money advanced on them, 1 34 L. J. M. C. at p. 53; Leigh 298. Kegina v. Giles, Leigh & & Cave C. C. 502. Cave C. C. 502. 2 Kegina v. Cooper, 2 Q. B. D. 513. * Dearaly & Bell C. C. 265; 26 L. ' Kegina v. Murphy, Irish Kep. J. M. C. 84. See also Kegina v. 10 Com. Law, 508; 13 Cox C. C. Levine, 10 Cox C. C. 374. FALSE PRETENCES. 561 and the pawnbroker stated that he was induced by the de- fendant's misrepresentations alone to advance the money, and that if he had known the real quality of the spoons he would have advanced no money on them. The jury found the defendant guilty of fiaudulently and falsely representing that the spoons had as much silver on them as Elkington's A, and that the foundations were of the best material, &c., and that he thereby obtained the money. It was nevertheless held by a large majority of the judges that the conviction could not be sustained. The decision in Regina v. Bryan is said by Erie, C. J., to have gone " upon the sound principle that indefinite praise upon a matter of indefinite opinion can- not be made the ground of an indictment for false pre- tences ; " ' and by Byles, J., to have been governed by the maxim " simplex commendatio non obligat." ^ But a false representation respecting an alleged matter of definite fact, knowingly made, is a false pretence, within the statute ; and that, too, although the representation is merely as to the quality of goods sold or pledged. Therefore, when the defendant induced the prosecutor to purchase a chain from him by fraudulently representing that it was fifteen carat gold, when in fact it was only of a quality a trifle better than six carats, knowing at the time that he was falsely representing the quality of the chain as fifteen carat gold, it was held that the statement that the chain was fifteen carat gold not being mere exaggerated praise, nor relating to a mere matter of opin- ion, but a statement as to a specific fact within the defendant's knowledge, was a sufficient false pretence to sustain an indict- ment for obtaining money under false pretences.^ And where the defendant induced a purchaser to buy and pay for a cheese of a very inferior description, by the wilfully false statement that a taster of a different and superior cheese, produced as a sample, had formed part of and been taken out of the cheese sold, it was held that he might be convicted of obtaining money by false pretences.* So where the defendant sold 1 Regina v. Goss, 29 L. J. M. C. » Regina v. Ardley, L. R. 1 C. 90. C. 301; 40 L. J. M. C. 85. " Regina v. Ardley, L. R. 1 C. * Regina o. Goss, Bell C. C. 208: C. 306 ; 40 L. J. M. C. 88. 29 L. J. M. C. 90. 36 562 CRIMINAL LAW. spurious blacking as " Everett's Blacking," he was held to be indictable for false pretence.^ The assistant judge of the Middlesex Sessions having directed a jury that the decisions of the judges were to the effect that a mere representation of an article as gold, however small the proportion of gold it contained, amounted only to an exaggeration of its quality, and would not support a criminal charge. Willes, J., said that he must except to this direction.^ A travelling hawker, representing himself to be a tea- dealer of Leicester, induced the wife of a licensed victualler to purchase some one-pound packages, by representing them to be good tea, and producing samples of good tea and com- paring it with some taken from the packages. The packages contained, in fact, only one-quarter in weight of tea, the rest being sand, quartz, earth, oxide of iron, unfit to drink and injurious to health. The mixture was known in the trade as lie tea, and had been purchased by the defendant at a much less price than that for which he sold it. The jury found that the prisoner knew the real nature of the packages, and that they contained not tea, but a mixture of articles unfit for drink, and that he knowingly and falsely pretended that they contained good tea. Held, that the conviction was right. Kelly, C. B. : " This case admits of no doubt. The packages did not contain tea at all. Three-fourths in weight of each package was composed of deleterious matter not tea. The mixture is said to be known in the trade as lie tea, a name derived from the French word signifying dregs. Merely to call it good might be commendation only ; but he accom- panied that statement with an assertion that he was a tea- dealer, residing in Leicester ; but he was a hawker, and there was nothing to show that he had ever been in Leicester. The question was properly left with the jury, for it assumed the package not to be tea, when three-fourths of it was other compounds. It is discreditable to the trade to deal in lie tea at all. The prisoner's guilty knowledge that he was not selling good tea is shown by his statement to the policeman. 1 Regina v. Dundas, 6 Cox C. C. " Regina v. Suter, 10 Cox C. C. 380. 577, 578. FALSE PEETENCES. 563 A misrepresentation of the quality of an article, as in the case of Elkington's spoons,^ is a different matter." ^ In this class of cases the question is between simple exag- geration or commendation and misrepresentation of a fact specific to the contract, with intention to defraud. The law is lucidly stated and discussed by Mr. Greaves in a note in Ms edition of Russell on Crimes.^ The indictment must state what the false pretences are.* They must be set out, in order that the court may see what they are, and whether they come within the statute. It must clearly appear that there was a false pretence of an existing fact. An inference that there was such a false pretence, drawn from the allegations in the indictment, is not enough. The language must be plain and clear, without any uncer- tainty. But it does not appear to be necessary to describe the false pretences more particularly than they were shown or described to the party at the time, and in consequence of which he was imposed upon." A special averment that the pretences, or some of them, are false, cannot be dispensed with. It is not necessary that the whole of what is stated in order to obtain the property should be false : it is sufficient if part is false ; provided that part had a material effect in in- ducing the party defrauded to part with his property, and is properly laid and negatived in the indictment.^ 1 Regina v. Bryan, Dearsly & smith, L. R. 2 C. C. 79, on the Bell C. C. 265 ; 26 L. J. M. C. 84. ground that although an indictment Ante, pp. 560, 561. for obtaining money by false pre- ^ Regina v. Foster, 46 L. J. M. tences, without specifying them, is C. 128; 2 Q. B. D. 301. bad on demurrer, or on motion to ' 2 Russell on Crimes, 664, 665, quash, yet that the defect is cured 4th ed. ; 566, 567, 5th ed. by verdict. ■* Rex V. Mason, 2 T. R. 581. « Regina v. Henshaw, Leigh & In this case, which has been re- Cave C. C. 444. Regina v. Gates, peatedly cited, the indictment al- Dearsly C. C. 459. Commonwealth leged the money to have been oh- v. Drew, 19 Pick. 179. Common- tained by "false pretences, "without wealth ». Call, 21 Pick. 515. Re- specifying them ; it was held to be gina v. Lee, Leigh & Cave C. C. 309 ; error, and the judgment was re- 9 Cox C. C. 304. Regina «. Fry, versed. This decision was disap- Dearsly & Bell C. C. 449. Regina proved of in Heymann u. The Queen, v. West, Dearsly & Bell C. C. 575. L. R. Q. B. 103, by Mellor, J., and ^ Rex v. Perrott, 2 M. & S. 379, by Bramwell, B., in Regina ». Gold- 386. Regina e. Aspinall, 2 Q. B. 564 CRIMINAL LAW. The indictment, as has already been said, must state what the false pretences are. And it has been further held, that when money or other property is obtained by a sale or ex- change of property, effected by means of false pretences, such sale or exchange ought to be set forth in the indictment, and that the false pretences should be alleged to have been made with a view to effect such sale or exchange, and by reason thereof the party was induced to buy or exchange, as the case may be.^ As every attempt to commit a crime is itself an indictable misdemeanor at common law,^ wherever the intention to ob- tain money or goods by false pretences is manifested by any overt act, the party may be indicted for the attempt to com- mit the statutable misdemeanor.^ Where the indictment charges an attempt only, the nature of the attempt must be set forth with reasonable certainty. Where the indictment D. 57, 66. Hamilton v. The Queen, 9 Q. B. 271. Rex v. Hill, Russell 6 Ryan C. C. 190. Rex v. Ady, 7 C. & P. 140, Pattesou, J. Re- gina V. Dent, 1 C. & K. 249, Rolfe, B. Kegina v. Lince, 12 Cox C. C. 451, Bovill, C. J. Commonwealth V. Morrill, 8 Cush. 571. Common- wealth V. Parmenter, 121 Mass. 354. Per Denman, J. , in Regina v. Cooper, 2 Q. B. D. 515. 2 Russell on Crimes, 584, 585, 5th ed. 1 Commonwealth v. Strain, 10 Met. 521. In this case, Dewey, J., said : "Although the language of the Rev. Sts. ch. 126, § 32 (Gen. Sts. ch. 161, § 54), is very broad, yet all will agj^e that, in its practical application, the false declaration must be made to a party who has an interest in the matter, and is affected injuriously by the false- hood. We go further, however, and hold, that in a case like the present, where the alleged false pre- tences were injurious only by in- ducing another person to buy the article as to which such false rep- resentations were made, such sale. or offer for sale, must be set out as a part of the facts relied upon, and as a material allegation in the de- scription of the offence. ' ' Common- wealth V. Nason, 9 Gray, 125. Commonwealth v. Lannan, 1 Allen, 590. Commonwealth v. Goddard, 2 Allen, 148. Commonwealth v. Lincoln, 11 Allen, 236, 237. For the law relating to the form of the indictment see Commonwealth V. Hurlbert, 12 Met. 446 ; Common- wealth V. Davidson, 1 Cush. 83; Commonwealth v. Morrill, 8 Cush. 571; Commonwealth v. Jeffries, 7 Allen, 548, and Jeffries v. Com- monwealth, 12 Allen, 145. Com- monwealth V. Lincoln, 11 Allen, 233. Commonwealth v. Butterick, 100 Mass. 12. Commonwealth v. Hoop- er, 104 Mass. 549. Commonwealth V. Coe, 115 Mass. 481. Regina v. Giles, Leigh & Cave C. C. 502. •* 1 Gabbett Crim. Law, 19, 215. Archb. Crim. PI. 2, 18th ed. ' Regina v. Hensler, 11 Cox C. C. 570, C. C. R. Regina v. Roebuck, Dearsly & Bell C. C. 24. Regina V. Garrett, Dearsly C. C. 232. FALSE PRETENCES. 565 stated that the defendant " did unlawfully attempt and endeavor fraudulently, falsely and unlawfully to obtain from an insurance company a large sum of money, to wit, the sum of £22 10s., with intent thereby then and there to cheat and defraud the said company " &c., it was held that the nature of the attempt was not sufficiently specified.^ The proper course is to allege the false pretences, and to deny their truth, in the same manner as in an indictment for obtaining property by false pretences, and then to allege that by means of the false pretences the prisoner attempted to obtain the property.^ The indictment should not only charge that the defendant " unlawfully, knowingly ^ and designedly did falsely pretend " &c., but it should proceed to charge, also, that the defendant did " unlawfully, knowingly and designedly obtain " &c. ; and the allegation of the intent to cheat and defraud should follow the charge of obtaining the property.* The intent to defraud is an essential element of the crime, and must be distinctly averred by a distinct affirmative allega- tion, and not by way of inference and argument merely.^ An indictment is bad if it contains no allegation of an intent to defraud, other than the allegation in the concluding clause. " And so the jurors aforesaid on their oath aforesaid do say and present, that the said C. D., in the manner aforesaid, designedly, by a false pretence and with intent to defraud, obtain " &c. This is a statement of a legal conclusion from 1 Regina v. Marsh, 1 Denison C. words of the statute ; and for this C. 505; 3 Cox C. C. 570; Temple reason, as the word " knowingly " & Mew C. C. 192. is not in the English statute, an in- 2 2 Russell on Crimes, 594, note dictment which does not contain by Mr. Greaves, 4th ed. that word, but follows the words of * An indictment on a statute the statute, is sufficient after verdict, which does not contain the word Regina «. Bowen, 13 Q. B. 790. "knowingly," but follows the * Rex v. Rushworth, Russell & words of the statute, is sufficient Ryan C. C. 317. 1 Gabbett Crim. on motion in arrest of judgment. Law, 212. Hamilton v. The Queen, Commonwealth v. Hulbert, 12 Met. 9 Q. B. 271. 446. Bat insufficient on demurrer. ^ Regina v. James, 12 Cox C. C. Regina v. Henderson, 2 Moody C. 127, Lush, J. Commonwealth v. C. 192; C. & M. 328. The St. 7 Lincoln, 11 Allen, 233, 238. Com- Geo. IV. ch. 64, § 21, provides that monwealth v. Jeffries, 7 Allen, 548, a count shall after verdict be suffi- 568. cient if it describe the offence in the 566 CEIMINAL LAW. the facts previously charged. The conclusion does not fol- low from the premises. The only allegation of an intent to defraud is made argumentatively, and as a legal inference from facts stated, and that inference is unsound.^ It is necessary to allege who was the owner of the property alleged to have been obtained by false pretences ; and an omis- sion to make the allegation is not a mere formal defect. The reason is, that if an indictment for obtaining money or goods by false pretences omits to state to whom the money or goods be- long, it would be impossible to plead an acquittal or convic- tion on such indictment in bar to a subsequent prosecution in respect of the same matter.^ A false pretence to an agent, who communicates it to his principal, and who is influenced by it to act, is a false pretence to the principal, and may be so laid in an indictment.^ A false pretence actually made to A. in B.'s hearing, whereby money is obtained from B., may be laid as made to B.* Where two persons are jointly indicted, evidence that one of them, with the knowledge, approbation, concurrence and direction of the other, made the false pre- tences charged, warrants the conviction of both.^ All parties who have concurred and assisted in the fraud may be con- victed as principals, though not present at the time of making the pretence and obtaining the money and goods.^ One who obtains goods by false pretences in one county, and afterwards brings them into another county, where he is appre- hended with them, cannot be indicted for the offence in the latter county, but must be indicted in the county where the goods were obtained. ''^ The offence is complete by the ob- taining of the money ; and, therefore, where it was transmitted 1 Commonwealth v. Dean, 110 ^ Commonwealth v. Call, 21 Mass. 64. Commonwealth v. Boyn- Pick. 515. Commonwealth v. Har- ton, 12 Cush. 500. ley, 7 Met. 462. Regina v. Butcher, 2 Regina v. Moss, Dearsly & Bell C. C. 15. Bell C. C. 104, 108, per Pollock, C. * Regina v. Dent, 1 C. & K. B. Sill M. The Queen, Dearsly C. C. 249, Rolf e, B. 132. Rex V. Martin, 8 Ad. & El. ^ Commonwealth v. Harley, 7 481 ; 3 Nev. & Per. 472. Rex v. Met. 462. Norton, 8 C. & P. 196. Regina v. « Regina v. Moland, 2 Moody C. Marsh, 1 Denison C. C. 505. Re- C. 276. gina V. Ward, Irish Rep. 7 Com. ' Regina ». Stanbury, Leigh & Law, 324. Cave C. C. 128; 31 L. J. M. C. 88. FALSE PRETENCES. 567 in a letter, posted by the defendant's request in the county of A., but which reached him in the county of B., it was held that this was an obtaining of the money in the county of A., and that the venue was rightly laid there. ^ And it is a general doctrine that this offence may be committed by an agent, innocent or otherwise, in a locality in which the prin- cipal is not present personally.^ It seems clear upon principle that when the fact of the defendant having done the thing charged is proved, and the only remaining question is, whether at the time he did it he had guilty knowledge of the quality of his act, or acted under a mistake, evidence of previous specific acts must be admissible. It tends to show that he was pursuing a course of similar acts, and thereby it raises a presumption that he was not act- ing under a mistake. It is not conclusive ; for a man may be many times under a similar mistake, or may be many times the dupe of another ; but it is less likely he should be so often, than once, and every circumstance which shows he was not under a mistake on any one of these occasions strengthens the presumption that he was not on the last, and this is amply borne out by authority. In the case of The King v. Tatter- sall, mentioned by Lord EUenborough, C. J., in The King v. Wylie,* the question reserved by Chambre, J., was whether the prisoner had not furnished pregnant evidence, and whether the jury, from his conduct on one occasion, might not infer his knowledge on another. The opinion of the judges was that the jury were at liberty to make such an in- ference. The cases in which this has been acted on are most commonly cases of uttering forged documents or base coins, but they are not confined to those cases.* Although the non-production of the article may afford ground for observation more or less weighty, according to circumstances, it only goes to the weight, not to the admissi- bility, of the evidence. Where the question is as to the effect ^ Regina v. Jones, 1 Denison C. Regina v. Garrett, 6 Cox C. C. C. 551; Temple & Mew C. C. 270; 526. 4 CoxC. C. 198. Regina v. Leech, s i jj. R. 92, 93; 2 Leach C. C. Dearsly C. C. 642. See Regina v. 983; S. C. 2 Leach. Crim. Cas. 26, 27. Cooke, 1 F. & F. 64. * Judgment in Regina v. Francis, 2 2 Bishop Crim. Proced. § 197. L. R. 2 C. C..129, 130. 568 CRIMINAL LAW. of a written instrument, the instrument itself is primary evi- dence of its contents ; and until it is produced, or the non- production is excused, no secondary evidence can be received. But there is no case whatever deciding that, when the issue is as to the state of a chattel, e.g. the soundness of a horse, or the equality of the bulk of the goods to the sample, the production of the chattel is primary evidence, and that no other evidence can be given till the chattel is produced in court for the inspection of the jurJ^ The law of evidence is the same in criminal and civil suits} And therefore, on the trial of an indictment for obtaining money by false pretences, evidence was allowed to be given that the prisoner had on a previous occasion endeavored to obtain money by pretending that a ring, which was not produced at the trial, was a dia- mond ring, which it was not.^ The Gen. Sts. ch. 161, § 58, enacts that "Whoever is con- victed of any gross fraud or cheat at common law shall be punished by imprisonment in the state prison not exceeding ten years, or in the jail not exceeding two years, or by fine not exceeding four hundred dollars." 1. Indictment at Common La-w for Selling by False Scales.^ The jurors &c. upon their oath present, that heretofore, to wit, on the first day of June in the year of our Lord and from thence until the first day of September in the same year at B. in the County of S., C. D. of B. aforesaid in the county aforesaid did use and exercise the trade and business of a shopkeeper, and during that time did deal in the buy- ^ Judgment in Regina v. Francis, whether the prisoner had the author- L. R. 2 C. C. 133. ity or not which he said he had. 2 Regina v. Francis, L. R. 2 C. The piece of evidence objected to C. 192. On a charge of obtaining seemstometobequiteimmaterialon goods by a false pretence, evidence that point ;. and how the reception of a subsequent obtaining of other of a perfectly immaterial piece of evi- goods from a different person by a dence caused the court to quash the similar false pretence was held in- conviction, I confess I do not under- admissible. Regina v. Holt, Bell stand." C. C. 280; 30 L. J. M. C. 11. In « Matthews Crim. Law, 472. the course of the argument in Re- An indictment for selling by false gina V. Francis, 43 L. J. M. C. 99, weights and measures may readily Blackburn, J., observed: "The be framed from this precedent, question in Regina v. Holt was FALSE PRETENCES. 569 ing and selling by weight of clivers goods, wares and mer- chandises, to wit, at B. aforesaid in the county aforesaid, and that while the said C. D. used and exercised his said trade and business, to wit, on the said first day of June in the year of our Lord and on divers other days and times between that day and the first day of September in the year aforesaid, at B. aforesaid in the county aforesaid, did knowingly, un- lawfully, wilfully and publicly keep in a certain shop there, wherein the said C. D. 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 dis- posed 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 C. D. 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 C. D. on the said first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the said C. D. then and there well knowing the said scales to be false as aforesaid, did know- ingly, wilfully and fraudulently sell and utter to one J. N.' certain goods in the way of the said trade of the said C. D., to wit, a large quantity 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 B. afore- said in the county aforesaid ; against the peace of said Com- monwealth. 2. Obtaining Goods by False Pretences. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county afore- said, feloniously, unlawfully, knowingly and designedly did ' Alleging the sale to have been unknown," has been held to be made to "divers citizens whose sufficient. Rex u. Gibbs, 1 Strange, names are to the jurors aforesaid 497. 570 CRIMINAL LAW. falsely 1 pretend to one E. F. that the said C. D. was then sent by one J. N. to the said E. F. for a silver tankard, by means of which said false pretence the said C. D. did then and there unlawfully, knowingly and designedly, fraudulently obtain from the said E. F. one silver tankard of the value of one hundred dollars of the property, goods and chattels of the said E. F., with intent then and there to cheat and defraud the said E. F. of the same. Whereas, in truth and in fact, the said C. D. was not then and there sent by the said J. N. to the said E. F. for a silver tankard, as the said C. D. then and there well knew ; contrary to the form of the statute in such case made and provided. 3. Indictment for Presenting a False Check. The jurors &c. on their oath present, that B. F. P. of &c. on &c. at &c. did unlawfully, knowingly and designedly, falsely pretend to H. H. and C. H. carrying on business in partnership as tailors, under the name and style of Messrs. H. Brothers, that he the said B. F. P. had then authority to draw a certain check, to wit, a check for the sum of one hundred dollars upon the Wilts and Dorset Banking Com- pany in the City of Bath in the County of Somerset, and that a sum of one hundred dollars belonging to him the said B. F. P. was then in the possession of the said Banking Com- pany, and that a sum of one hundred dollars was then payable and could be paid by the said Banking Company on the credit and on the account of the said B. F. P. as soon as an order in writing signed by the said B. F. P., authorizing the said Banking Company to make such payment, should be presented at the place of business of the said Banking Com- pany at Bath in the said County of Somerset ; and that a certain paper writing in the proper handwriting of the said B. F. P. was a good and valid order for the payment of one hundred dollars and of the value of one hundred dollars, and that a certain banker's check, bearing a stamp of one cent and filled up for a sum of one hundred dollars was a good and valid security for the sum of one hundred dollars and of the 1 An indictment which alleged niottsly pretend &c. was held bad. that the defendant unlawfully, Kex v. Walker, 6 C. & P. 657. knowingly and designedly did felo- FALSE PRETENCES. 571 value of one hundred dollars ; and that a certain check which was then written and made by the said B. F. P. upon one of the printed and stamped forms of the Wilts and Dorset Banking Company and which said check was then addressed to the said Banking Company, at their place of business in the City of Bath in the said County of Somerset, and which said check purported to be an order npon the said Banking Company to pay to him, the said B. F. P., and any indorsee of him, the said B. F. P., the sum of one hun- dred dollars, and which said check was indorsed by the proper signature of him, the said B. F. P., was a valuable security, to wit, an order for the payment of one hundred dollars and of the value of one hundred dollars, bj"^ means of which said false pretences the said B. F. P. did then and there unlawfully obtain from the said firm of Messrs. H. Brothers, the sum of one hundred dollars in money, of the moneys of the said Messrs. H. Brothers, with intent thereby then and there to defraud. Whereas, in truth and in fact, the said B. F. P. had not any authority to draw the said check upon the said Banking Company for the sum of one hundred dollars or any other check for any sum of money whatsoever ; and whereas, in truth and in fact, the said Banking Company had not then in their possession a sum of one hundred dol- lars belonging to the said B. F. P., or any other sum of money whatsoever ; and whereas, in truth and in fact, a sum of one hundred dollars was not then payable by the said Banking Company upon the order of the said B. F. P., or any other sum of money whatsoever ; nor could one hundred dollars, or any other sum of money, be paid by the said Bank- ing Company upon the credit and account of said B. F. P. when any written order of the said B. F. P. was presented to the said Banking Company ; and whereas, in truth and in fact, the said paper writing was not a good and valid order for the payment of one hundred doUars, and was not of the value of one hundred dollars, but, on the contrary, was invalid, and not of any value whatsoever ; and whereas, in truth and in fact, the said banker's check was not a good and valid security for the sum of one hundred dollars, or any other sum whatsoever, and was not of the value of one hun- 572 CRIMINAL LAW. dred dollars, or of any other sum whatsoever ; and whereas, in truth and in fact, the said check so written, made and indorsed by the said B. F. P. was not a valuable security, and was not of the value of one hundred dollars, but, on the con- trary, was not of any value whatsoever, as he, the said B. F. P. then and there well knew, to the great damage of the said Messrs. H. Brothers ; against the form of the statute in such case made and provided and against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that afterwards, to wit, on the day and year aforesaid, the said B. F. P. unlawfully, know- ingly and designedly, did falsely pretend to one T. R. N., that he, the said B. F. P., had then authority to draw a cer- tain check, to wit, a check for the sum of one hundred dollars upon the Wilts and Dorset Banking Company, in the City of Bath in the County of Somerset, and that a sum of one hundred dollars belonging to him, the said B. F. P., was then in the possession of the said Banking Company, and that a sum of one hundred dollars was -then payable and could be paid by the said Banking Company on the credit and on the account of said B. F. P. as soon as an order in writing signed by the said B. F. P., authorizing the said Banking Company to make such payment, should be presented at the place of business of the said Banking Company at Bath in the said County of Somerset ; and that a certain paper writing in the proper handwriting of the said B. F. P., was a good and valid order for the payment of one hundred dollars and of the value of one hundred dollars, and that a certain banker's check, bearing a stamp of one cent, and filled up for a sum of one hundred dollars, was a good and valid security for the sum of one hundred dollars, and of the value of one hundred dollars ; and that a certain check which was then written and made by the said B. F. P. upon one of the printed and stamped forms of the Wilts and Dor- set Banking Company, and which said check was then addressed to the said Banking Company at their place of business, in the City of Bath in the said County of Somerset, and which said check purported to be an order upon the said Banking Company to pay to him, the said B. F. P., and FALSE PRETENCES. 573 any indorsee of him the said B. F. P., the sum of one hun- dred dollars, and which said check was indorsed by the proper signature of him, the said B. F. P., was a valuable security, to wit, an order for the payment of one hundred dollars and of the value of one hundred dollars, by means of which said false pretences the said B. F. P. did then and there unlawfully obtain from T. R. N. one hundred dollars of the moneys of the said T. R. N., with intent thereby then and there to defraud. Whereas, in truth and in fact, the said B. F. P. had not any authority to draw the said check upon the said Banking Company for the sum of one hundred dollars, or any other check for any sum of money whatsoever ; and whereas, in truth and in fact, the said Banking Company had not then in their possession a sum of one hundred dollars belonging to the said B. F. P., or any other sum of money whatsoever ; and whereas, in truth and in fact, a sum of one hundred dollars was not then payable by the said Banking Company upon the order of said B. F. P., or any other sum of money whatsoever ; nor could one hundred dollars, or any other sum of money be paid by the said Banking Company upon the credit and account of the said B. F. P. when any written order of the said B. F. P. was presented to the said Banking Company ; and whereas, in truth and in fact, the said paper writing was not a good and valid order for the payment of one hundred dollars and was not of the value of one hundred dollars, but on the contrary was invalid and not of any value whatsoever ; and whereas, in truth and in fact, the said banker's check was not a good and valid security for the sum of one hundred dollars, or any other sum what- soever, and was not of the value of one hundred dollars or of any other sum whatsoever ; and whereas, in truth and in fact, the said check so written, made and indorsed by the said B. F. P. was not a valuable security and was not of the value of one hundred dollars, but on the contrary was not of any value whatsoever, as he the said B. F. P. then and there well knew, to the great damage of the said T. R. N. ; against the form of the statute in such case made and pro- vided and against the peace &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that afterwards, to wit, on the 574 CRIMINAL LAW. day and year aforesaid, the said D. F. P. unlawfully, know- ingly and designedly, did falsely pretend to one J. H. that he, the said B. F. P., had then authority to draw a certain check, to wit, a check for the sum of one hundred dollars upon the Wilts and Dorset Banking Company, in the City of Bath in the County of Somerset, and that a sum of one hundred dollars belonging to him the said B. F. P., was then in the possession of the said Banking Company, and that a sum of one hundred dollars was then payable and could be paid by the said Banking Company on the credit and on the account of the said B. F. P. as soon as an order in writing signed by the said B. F. P., authorizing the said Banking Company to make such payment,' should be pre- sented at the place of business of the said Banking Company at Bath in the said County of Somerset ; and that a certain paper writing in the proper handwriting of the said B. F. P. was a good and valid order for the payment of one hundred dollars and of the value of one hundred dollars, and that a certain banker's check, bearing a stamp of one cent, and filled up for a sum of one hundred dollars was a good and valid security for the sum of one hundred dollars and of the value of one hundred dollars ; and that a certain check which was then written and made by the said B. F. P. upon one of the printed and stamped forms of the Wilts and Dorset Banking Company, and which said check was then ad- dressed to the said Banking Company, at their place of busi- ness in the City of Bath in the said County of Somerset, and which said check purported to be an order upon the said Banking Company to pay to him the said B. F. P., and any indorsee of him the said B. F. P., the sum of one hundred dollars, and which said check was indorsed by the proper signature of him the said B. F. P., was a valuable security, to wit, an order for the payment of one hundred dollars and of the value of one hundred dollars, by means of which said false pretences the said B. F. P. did then and there unlawfully obtain from J. H. the sum of one hundred dollars in money, of the moneys of the said J. H. with intent thereby then and there to defraud. Whereas, in truth and in fact, the said B. F. P. had not any authority to draw the said check upon the said Banking Company for the sum of one hundred dollars FALSE PBETENCES. 575 or any other check for any sum of money whatsoever ; and whereas, in truth and in fact, the said Banking Company had not then in their possession a sum of one hundred dollars belonging to the said B. F. P., or any other sum of money whatsoever ; and whereas, in truth and in fact, a sum of one hundred dollars was not then payable by the said Banking Company upon the order of the said B. F. P., or any other sum of money whatsoever ; nor could one hundred dollars, or any other sum of money be paid by the said Bank- ing Company upon the credit and account of said B. F. P. when any written order of the said B. F. P. was presented to the said Banking Company ; and whereas, in truth and in fact, the said paper writing was not a good and vaHd order for the payment of one hundred dollars, and was not of the value of one hundred dollars, but on the contrary was invalid and not of any value whatsoever ; and whereas, in truth and in fact, the said banker's check was not a good and valid security for the sum of one hundred dollars or any other sum whatsoever and was not of the value of one hundred dollars or of any other sum whatsoever ; and whereas, in truth and in fact, the said check so written, made and indorsed by the said B. F. P. was not a valuable security, and was not of the value of one hundred dollars, but on the contrary was not of any value whatsoever as he the said B. F. P. then and there well knew, to the great damage of the said J. H. ; against the form of the statute in such case made and pro- vided and against the peace &c. Fourth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that afterwards, to wit, on the day and year aforesaid, the said B. F. P. unlawfully, know- ingly and designedly, did falsely pretend to one C. H., that he the said B. F. P., had then authority to draw a certain check, to wit, a check for the sum of one hundred dollars, upon the Wilts and Dorset Banking Company in the City of Bath in the County of Somerset, and that a sum of one hun- dred dollars belonging to him the said B. F. P., was then in the possession of the said Banking Company, and that a sum of one hundred dollars was then payable and could be paid by the said Banking Company on the credit and on the account of the said B. F. P. as soon as an order in writing signed by 576 CRIMINAL LAW. the said B. F. P. authorizing the said Banking Company to make such payment, should be presented at the place of business of the said Banking Company at Bath in the said County of Somerset ; and that a certain paper writing in the proper handwriting of the said B. F. P., was a good and valid order for the payment of one hundred dollars and of the value of one hundred dollars, and that a certain banker's check bearing a stamp of one cent, and filled up for a sum of one hun- dred dollars, was a good and valid securitj' for the sum of one hundred dollars and of the value of one hundred dollars ; and that a certain check which was then written and made by the said B. F. P. upon one of the printed and stamped forms of the Wilts and Dorset Banking Company and which said check was then addressed to the said Banking Com- pany, at their place of business in the City of Bath in the said County of Somerset, and which said check purported to be an order upon the said Banking Company to pay to him the said B. F. P., and any indorsee of him the said B. F. P., the sum of one hundred dollars, and which said check was indorsed by the proper signature of him the said B. F. P., was a valuable security, to wit, an order for the payment of one hundred dollars and of the value of one hundred dollars, by means of which said false pretences the said B. F. P. did then and there unlawfully obtain from C. H. the sum of one hundred dollars in money of the moneys of the said C. H., with intent thereby then and there to defraud. Whereas, in truth and in fact, the said B. F. P. had not any authority to draw the said check upon the said Banking Company for the sum of one hun- dred dollars or any other check for any sum of money what- soever ; and whereas, in truth and in fact, the said Banking Company had not then in their possession a sum of one hundred dollars belonging to the said B.. F. P., or any other sum of money whatsoever ; and whereas, in truth and in fact, a sum of one hundred dollars was not then payable by the said Banking Company upon the order of said B. F. P., or any other sum of money whatsoever ; nor could one hun- dred dollars, or any other sum of money, be paid by the said Banking Company upon the credit and account of the said B. F. P., when any written order of the said B. F. P. was FALSE PRETENCES. 577 presented to the said Banking Company ; and wiiereas, in truth and in fact, the said paper writing was not a good and valid order for the payment of one hundred dollars and was not of the value of one hundred dollars ; but on the contrary, was invalid and not of any value whatsoever ; and whereas, in truth and in fact, the said banker's check was not a good and valid security for the sum of one hundred dollars, or any other sum whatsoever, and was not of the value of one hun- dred dollars, or of any other sum whatsoever ; and whereas, in truth and in fact, the said check, so written, made and indorsed by the said B. F. P. was not a valuable security, and was not of the value of one hundred dollars, but on the contrary, was not of any value whatsoever, as he the said B. F. P. then and there well knew, to the great damage of the said C. H. ; against the form of the statute in such case made and provided, and against the peace &c. 4. Indictment against Two Defendants for Obtaining Goods by Falsely Pretending that One of them -was of a Certain Trade and a Respectable and Responsible Person ; with Counts for Conspiracy. The jurors &c. on their oath present, that heretofore, and before and at the time of the commission of the offence hereinafter next mentioned, J. H. G. of B. in the County of Middlesex, had, under the assumed name of L. made ap- plication to E. R., to be supplied by him with goods upon credit, and that the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., of the same place, devising and contriving fraudulently to induce and persuade the said E. R. to advance to the said J. H. G. the said goods on the faith of his respectability and ability to pay for the same, on the fifteenth day of October in the year of our Lord at B. aforesaid in the county aforesaid, unlawfullv, knowingly and designedly did falsely pretend to the said E. R. that the surname of him the said J. H. G. then was L., that the said J. H. G. then was a painter, and had recently come from the country to reside in London ; and that he the said J. H. G. then was a respectable and responsible person, to whom credit might then safely be given for the said goods ; 37 578 CRIMINAL LAW. by means of which said false pretences, they, the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., did then and there, unlawfully, knowingly and designedly, fraudulently obtain of and from the said E. R. four and a half barrels of ale of the value of dollars ; one barrel of stout of the value of dollars ; four barrels of porter of the value of dollars ; thirty-six bottles of ale of the value of dollars ; and. eighty-four bottles of stout of the value of dollars ; of the goods and chattels of the' said E. R., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the surname of the said J. H. G. was not then L., nor was he then a painter, nor had he then recently come from the country to reside in London, as the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., so falsely pretended as aforesaid ; and whereas, in truth and in fact, the said J. H. G. was not then a respectable and responsible person to whom credit might then safely be given for the said goods or any goods whatever ; and whereas, on the contrary thereof, the said J. H. G. then was a person in very impoverished circum- stances and of very disreputable character, and had so assumed the said false name of L. ; and the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., so falsely pretended that the said J. H. G. had then recently come from the country to reside in London as aforesaid, the better to disguise and conceal his impoverished circumstances and disreputable character aforesaid, and thereby deceive, cheat and defraud the said E. R. as aforesaid ; against the form of the statute in such case made and provided, and against the peace &c. Second Count. — And the jurors aforesaid on their oath aforesaid do further present, that heretofore and before the commission of the offence hereinafter next mentioned, the said J. H. G. had made application to the said E. R. to be supplied by him with goods upon credit, and that the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., devising, contriving and intending to deceive the said E. R., and to de- fraud him of such goods, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully, knowingly and FALSE PRETENCES. 579 designedly did falsely pretend to the said E. R. that the said J. H. G. then was a respectable and responsible man, to whom credit might be safely given for such goods ; by means of which said false pretences, they, the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., did then and there unlawfully, knowingly and designedly, fraudu- lently obtain of and from the said E. R. four and a half bar- rels of ale &c., of the goods and chattels of the said E. R., with intent to cheat and defraud him of the same ; whereas, in truth and in fact, the said J. H. G. was not then a respec- table and responsible man, to whom credit might be safely given for the said goods, as they the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., so falsely pre- tended as aforesaid, as they then and there well knew ; against the form of the statute in such case made and pro- vided, and against the peace &c. Third Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., devis- ing and intending to defraud the said E. R., and to induce and persuade him to advance to the said J. H. G. the sum of dollars on the promissory note of them the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., upon the faith of their being persons of respectability, and able and willing to repay the said sum of money, on the twentieth day of October in the year of our Lord at B. aforesaid in the county aforesaid, did, under assumed names, make the said promissory note, and deliver the same to the said E. R., and did then and there, unlawfully, know- ingly and designedly, falsely pretend to the said E. R. that the surname of him the said J. H. G. then was L., that the said J. H. G. then was a painter, and had recently come from the country to reside in London ; that the surname of him the said M. H., otherwise called J. S., otherwise called T. B., then was S., that he then was a tailor, and that he the said J. H. G. then was a respectable and responsible person, to whom credit might then be safely given by the said E. R. ; by means of which said false pretences, they, the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., did 580 CRIMINAL LAW. then and there, unlawfully, knowingly and designedly, fraud- ulently obtain of and from the said E. R. divers of his mon- eys, amounting to the sum of dollars, with intent to cheat and defraud him of the same ; whereas, in truth and in fact, the surname of him the said J. H. G. was not then L., nor was he then a painter, nor had he then recently come from the country to reside in London, as the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., falsely pretended as aforesaid ; and whereas, in truth and in fact, the surname of him the said M. H., otherwise called J. S., otherwise called T. B., was not S., nor was he then a tailor, as they the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., so falsely pretended as afore- said ; and whereas, in truth and in fact, the said J. H. G. ' was not then a respectable and responsible person, to whom credit might then be safely given by the said E. R., as the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., so falsely pretended as aforesaid; and whereas, on the contrary thereof, the said J. H. G. then was in very impoverished circumstances and of disreputable character, and had then so assumed the false name of L., and they the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., so falsely pretended that the said J. H. G. was a painter, and had then recently come from the country to re- side in London as aforesaid, the better to disguise and conceal his impoverished circumstances and disreputable character aforesaid, and thereby deceive, cheat and defraud the said E. R. ; against the form of the statute in such case made and provided, and against the peace &c. Fourth Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., devising and intending to defraud the said E. R. and to induce and per- suade him to advance to the said J. H. G. the sum of dollars on the security of the promissory note of them the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., upon the faith of the said J. H. G. being a per- son of credit and respectability on the twentieth day of October in the year of our Lord at B. aforesaid in FALSE PRETENCES. 581 the county aforesaid, did make their promissory note, and deliver the same to the said E. R., and did then and there, unlawfully, knowingly and designedly, falsely pretend to the said E. R., that he the said J. H. G. then was a respectable and responsible person, to whom credit might then be safely given by the said E. R. ; by means of which said false pre- tences, they the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., did then and there, unlawfully, knowingly and designedly, fraudulently obtain of and from the said E. R. divers of their moneys, amounting to the supi of dollars, with intent to cheat and defraud him of the same; whereas, in truth and. in fact, the said J. H. G. was not then a respectable and responsible person, to whom credit might then be safely given by the said E. R., as they the said J. H. G. and M. H. then and there, and at the time they so falsely pretended as aforesaid, well knew ; against the form of the statute in such case made and provided, and against the peace &c. Fifth Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., heretofore, to wit, on the fourteenth day of October in the year of our Lord at B. in the county aforesaid, unlawfully did con- spire, combine, confederate and agree together, and with divers evil-disposed persons, whose names to the jurors afore- said as yet are unknown, by divers false pretences, and by divers unlawful, fraudulent and indirect ways, means, de- vices, contrivances, stratagems and representations, to obtain and acquire of and from the said E. R. divers large quanti- ties of ale, beer, stout and other goods and chattels, of and belonging to the said E. R., of great value, to wit, of the value of dollars, and wrongfully to deprive, cheat and defraud the said E. R. of the same, and of the price and value thereof ; against the peace &c. Sixth Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said J. H. G. and M. H., otherwise called J. S., otherwise called T. B., heretofore, to wit, on the twentieth day of October in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully 682 CRIMINAL LAW. did conspire, combine, confederate and agree together and with divers evil-disposed persons, whose names to the jurors aforesaid as yet are unknown, by divers false pretences and by divers unlawful, fraudulent and indirect ways, means, devices, contrivances, stratagems and representations, to ob- tain and acquire of and from the said E. R. divers of the moneys of the said E. R., to wit, to the amount of dollars, and to cheat and defraud him of the same ; against the peace &c. 5. Indictment against a Defendant for Obtaining Money by Falsely Pretending that he had Authority from a Creditor to Receive a Sum of Money from a Debtor ; -w^ith Counts for Soliciting the Debtor to Conspire -v^ith him Falsely to Pretend to the Creditor that the Debt had been Discharged. The jurors &c. on their oath present, that heretofore, and at the time of the committing of the offence hereafter in the first, second, third, fourth and fifth counts of this indict- ment respectively mentioned, T. F. W. was indebted to G. B. in a certain sum of money for a just and lawful debt, to- wit, to the amount of dollars ; and that H. T. of B. in the County of Middlesex, well knowing the premises, on the first day of April in the year of our Lord at B. afore- said in the County of Middlesex aforesaid, unlawfully, know- ingly and designedly, did falsely pretend to the said T. F. W. that he the said H. T. then had full and lawful power and authority to compromise the said debt, and to accept and receive a sum of money less in amount than the said debt, in lieu and in satisfaction thereof, and to discharge the said T. F. W. from the same ; by means of which said false pre- tences he the said H. T. did then and there, unlawfully, know- ingly and designedly, fraudulently obtain of and from the said T. F. W. divers of the moneys of the said T. F. W., to wit, to the amount of dollars, and one piece of paper, of the value of cents, of the goods and chattels, of the said T. F. W., with intent then and there to cheat and defraud him of the same money, goods and chattels ; whereas, in truth and in fact, the said H. T. had not then any lawful power or authority to compromise the said debt, nor to accept or receive FALSE PRETENCES. 583 any money whatever in lieu or in satisfaction thereof, nor to discharge the said T. F. W. from the same, as the said H. T. so falsely pretended as aforesaid ; against the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said H. T., well know- ing the premises in the first count of this indictment men- tioned, heretofore, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, unlawfully, knowingly and designedly, did falsely pretend to the said T. F. W. that he the said H. T. then had full and lawful power and au- thority to receive the said debt so due to the said G. B., and to give a receipt and discharge for the same ; by means of which said false pretences, he the said H. T. did then and there unlawfully, knowingly and designedly, fraudulentlj'- obtain of and from the said T. F. W. divers of the moneys of the said T. F. W., to wit, to the amount of dollars, and one piece of paper, of the value of cents, of the goods and chattels of the said T. F. W., with intent then and there to cheat and defraud of the same moneys, goods and chattels ; whereas, in truth and in fact, the said H. T. had not then any power or authority whatever to receive the said debt due to the said G. B., or to give a receipt or discharge for the said debt, as the said H. T. so falsely pretended as aforesaid ; against the form of the statute in such case made and provided. Third Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said H. T. well knowing the premises in the first count of this indictment mentioned, heretofore, to wit, on the twenty-eighth day of March in the year of our Lord at B. in the county aforesaid, un- lawfully, knowingly and designedly, did falsely pretend to the said T. F. W. that he the said H. T. then was the agent of the said G. B., and as such agent then had full and lawful power and authority to receive the said debt so due to the said G. B., as in the first count of this indictment mentioned, and to give a receipt and discharge for the same, with intent then and there, and by means of the said last mentioned false pretences, fraudulently to obtain of and from the said T. F. W. divers of the moneys of the said T. F. W., to wit, 584: CRIMINAL LAW. as and for and by way of payment and in discharge and satisfaction of the said debt, and to cheat and defraud the said T. F. W. of the said moneys ; whereas, in truth and in fact, the said H. T. was not then the agent of the said G. B. ; and whereas, in truth and in fact, the said H. T. had not then any power or authority whatever to receive the said debt, or to give any receipt or discharge for the same. And so the jurors aforesaid on their oath aforesaid do say, that the said H. T. on the day and year aforesaid, at B. aforesaid in the county aforesaid, by the false pretences in this count afore- said, unlawfully, knowingly and designedly, and in contempt of the statute in that behalf, did attempt and endeavor to obtain from the said T. F. W. his moneys aforesaid, and to cheat and defraud him of the same ; contrary to the form of the statute in such case made and provided. Fourth Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said H. T. afterwards, and at the time the said debt was lawfully and justly due from the said T. F. W. to the said G. B., to wit, on the first day of April in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully and wilfully did solicit and endeavor to persuade the said T. F. W. to concur and join with him the said H. T. in a certain unlawful and fraud- ulent conspiracy, combination, confederacy and agreement, to impoverish the said G. B., and to defraud the said G. B. of the said debt, to wit, by fabricating and putting in use, and bj'' maintaining and upholding as true and genuine, certain fraudulent writings, whereby it should be made falsely to appear that the said debt had been discharged by payment ; against the peace &c. Fifth Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said H. T. afterwards, and at the time the said debt was lawfully and justly due from the said T. F. W. to the said G. B., to wit, on the first day of April in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully and wilfully did solicit and endeavor to persuade the said T. F. W. to concur and join with him the said H. T. in a certain unlawful con- spiracy, combination, confederacy and agreement, by divers FALSE PRETENCES. 685 unlawful and deceitful, wilful and fraudulent ways, devices, stratagems and means to be determined upon and contrived by and between them, unjustly to avoid and excuse the pay- ment of the said debt, and to hinder, impede, delay and altogether defeat and prevent the said G. B. in and from lawfully recovering the same, and thereby to impoverish the said G. B. ; against the peace &c. Sixth Count. — And the jurors aforesaid on their oath aforesai,d do further present, that heretofore and before the commission of the offence hereinafter mentioned, the said H. T. had been the agent and servant of the said G. B. with authority to collect debts due to the said G. B. and to give receipts and acquittances for the same, which said authority, at the time of the committing of the offence hereinafter next mentioned was, and from thence hitherto had been altogether, annulled and made void. And the jurors aforesaid on their oath aforesaid do further present, that heretofore and at the time of committing of the offence hereinafter mentioned, the said T. F. W. was indebted to the said G. B. in a certain sum of money for a just and lawful debt, to wit, to the amount of dollars. And the jurors aforesaid on their oath aforesaid do further present, that the said H. T. heretofore, to wit, on the first day of April in the year of our Lord and at the time the said T. F. W. was so indebted as aforesaid at B. aforesaid in the county afore- said, unlawfully and wilfully did solicit and endeavor to per- suade the said T. F. W. to concur and join with him the said H. T. in a certain unlawful and fraudulent conspiracy, combination, confederacy and agreement, in manner and to the effect following, that is to say, that he the said H. T. for reward to him in that behalf should give to the said T. F. W. and that the said T. F. W. in fraudulent collusion with the said H. T. should receive from him divers writings so to be made and fabricated as to purport to be receipts given by him the said H. T. to the said T. F. W. evidencing and acknowledging the payment of money by him the said T. F. W. to the said H. T. for and on behalf of the said G. B., to the intent, that afterwards and while the said debt should remain due and owing from the said H. T. to the said G. B., 586 CRIMINAL LAW. the said writings should be maintained and upheld by him the said T. F. "W. in fraudulent collusion with the said H. T. as receipts, vouchers and acquittances, bonS, fide received by him the said T. F. W. from the said H. T. as the agent of the said G. W. in that behalf, and without any fraudulent collusion whatever with the said H. T., evidencing and ac- knowledging the payment and discharge of the said debt, and thereby to excuse and avoid payment of the same debt to the said G. B. ; and to hinder, delay, impede and altogether defeat and prevent the said G. B. from lawfully recovering the said debt, and thereby to impoverish the said G. B. ; against the peace &c. 6. Indictment for Obtaining Goods by False Pretences, the Pre- tence being that the Defendant -was Bona Fide Carrying on a Business in a Particular Shop, and that he Required Goods in the Regular Course of such Business ; 'whereas, in Fact, the Shop was Taken with no other Object than Fraudulently to Obtain Credit. First Count. — The jurors &c. on their oath present, that heretofore, and before and at the time of the commission of the offence hereinafter next mentioned, W. J., hereinafter mentioned, had opened a certain shop as and for the purpose of there carrjdng on the business of a baker, to wit, at a cer- tain house in a certain street called Southampton Street, in B. in the County of Surrey, and the said W. J. of C. in the County of Middlesex, and H. K. of the same place, intend- ing to cheat and defraud W. P., on the sixth day of August in the year of our Lord at C. last aforesaid in the County of Middlesex aforesaid did require the said W. P. to supply to the said W. J., on credit, fifty barrels of flour, and did then and there unlawfully, knowingly and designedly, falsely pretend to the said W. P. that he the said W. J. was then really and in truth carrying on the business of a baker at the said shop, and that the said W. J. then required the said flour for the purposes of the said business ; by means of which said false pretences they the said W. J. and H. K. did then and there unlawfully, knowingly and designedly, fraud- ulently obtain of and from the said W. P. fifty barrels of FALSE PRETENCES. 587 flour of the value of dollars, of the goods and chat- tels of the said W. P., with intent then and there to cheat and defraud him of the same ; and whereas, in truth and in fact, the said W. S. was not then really and in truth cann- ing on the business of a baker at the said shop, nor did the said W. J. require the said flour, or any flour whatever for the purposes of the said alleged business, as the said W. J. and H. K. so falsely pretended as aforesaid ; and whereas the fact really was and is, that the said W. J. was then colorably, and not in reality, carrying on the said business at the said shop, and was so colorably carrying on the said busi- ness, and so pretending to require the said flour as aforesaid for the purposes of fraud and deceit, and for no lawful or honest purpose whatever ; contrary to the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said W. J. and H. K., fraudulently devising and intending as aforesaid, afterwards, to wit, on the said sixth day of August in the year of our Lord at C. aforesaid in the county aforesaid, did request the said W. P. to supply to the said W. J. and H. K. fifty barrels of flour and fifty bushels of oats, upon credit ; and the said W. J. and H. K. did then and there unlaw- fully, knowingly and designedly, falsely pretend to the said W. P. that he the said W. J. then was a person of credit and responsibility, and then was a baker carrying on his business at Southampton Street, at B. in the County of Surrey, by means of which said false pretences they the said W. J. and H. K. did then and there unlawfully, knowingly and designedly, fraudulently obtain of and from the said W. P. fifty barrels of flour of the value of dollars, and fifty bushels of oats of the value of dollars, of the goods and chattels of the said W. P., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said W. J. was not then a person of credit and responsibility, nor was he a baker then carrying on his business at number ten Southamp- ton Street aforesaid, or elsewhere, as the said W. J. and H. K. so falsely pretended as aforesaid ; contrary to the form of the statute in such case made and provided. 588 CRIMINAL LAW. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that heretofore, and before and at the time of the commission of the offence hereinafter next mentioned, the said W. J. had opened a certain shop as for the purpose of there carrying on the trade and business of a baker, to wit, at Southampton Street aforesaid, at B. aforesaid in the county aforesaid ; and the said W. J. and H. K. devising and intending as aforesaid, afterwards, to wit, on the twenty-sixth day of August in the year of our Lord at C. aforesaid in the County of Middlesex aforesaid, did request the saidW. P. to supply to the said W. J., on credit, fifty bushels of oats ; and the said W. J. and H. K. did then and there unlawfully, know- ingly and designedly, falsely pretend to the said W. P. that he the said W. J. was then really and in truth carrying on business at the said shop, and was. then a person of credit and respon- sibility, and to whom credit might be safely given for the said oats ; by means of which said false pretences they the said W. J. and H. K. did then and there unlawfully, knowingly and designedly, fraudulently obtain of and from the said W. P. fifty bushels of oats of the value of dollars, of the goods and chattels of the said W. P., with intent to cheat and defraud him of the same ; whereas, in truth and in fact, the said W. J. was not then really and in truth carrying on any business at the said shop or elsewhere. And whereas the truth really was and is, that the said W. J. was colorably and not in reality carrying on such alleged business as aforesaid for the pur- poses of fraud and deceit, and for no honest purpose what^ ever. And whereas, in truth and in fact, the said W. J. was not a person of credit and responsibility, nor to whom credit might be safely given for the said oats, as the said W. J. and H. K. so falsely pretended as aforesaid ; contrary to the form of the statute in such case made and provided. Fourth Count. — And the jurors aforesaid on their oath aforesaid do further present, that the said W. J. and H. K. heretofore, to wit, on the first day of September in the year of our Lord at C. aforesaid in the County of Middle- sex aforesaid, unlawfully did conspire, combine, confederate and agree together, and with divers evil-disposed persons, by divers false pretences and by divers unlawful and fraudulent FALSE PRETENCES. 589 devices, arts, means, stratagems and contrivances, to acquire and get into their hands and possession, of and from the said W. P., divers large quantities of flour, corn and other property, of great value, of and belonging to the said W. P., and to cheat and defraud him of the same ; against the peace &c. 7. For Obtaining Money on a False Representation respecting the Value and History of a Horse which the Prisoners Sold to the Prosecutor.^ The jurors &c. upon their oath present, that heretofore, to wit, at the time of the commission of the ofPence hereinafter in this count mentioned, one R. J. T. was desirous of pur- chasing and providing himself with a horse which should be sound and quiet in harness, and that J. P. B. of B. in the County of M., and J. P. of the same place, well knowing the premises, and that the said R. J. T. would be ready to pur- chase of and from any respectable and responsible person such horse as aforesaid ; and the said J. P. B. and J. P. having in their possession a certain horse, much under the value of three hundred dollars, to wit, of the value of one hundred dollars and no more, and then being unsound, and the said J. P. B. and J. P. wickedly and fraudulently intending to persuade the said R. J. T. to deposit with them, the said J. P. B. and J. P., a large sum of money upon the delivery of the said horse to the said R. J. T. for trial and approval thereof, and under color of their readiness and willingness to return the said money, subject to the deduction of fifty dol- lars, in case the said horse should not be approved of by the said R. J. T., to cheat and defraud the said R. J. T. of the same money so to be deposited as aforesaid, on the sev- enth day of September in the year of our Lord at B. aforesaid in the county aforesaid, did produce the said horse to the said R. J. T., and did then and there unlawfully, knowingly and designedly, falsely pretend to the said R. J. T. that the said J. P. B. then was in the wool business in the City of London ; that the said horse then belonged to a brother of the said J. P. B. then abroad ; that the said J. P. B. 1 3 Cox C. C. Appendix, p. xlix. 590 CRIMINAL LAW. then had to sell the said horse for his said brother ; that the said horse was then perfectly sound and quiet in harness, and had then been used to run with another horse in har- ness, which had been sold to a colonel. By means of which said false pretences the said J. P. B. and J. P. did then and there unlawfully, knowingly and designedly, fraudulently obtain of and from the said R. J. T. one piece of paper of the value of one cent, of the goods and chattels of the said R. J. T., and one order for the paj^ment of money, to wit, for the payment of the sum of three hundred dollars, and of the value of three hundred dollars, then being the property of the said R. J. T., with intent then and there to cheat and defraud him of the said goods, chattels and order respec- tively, the said sum of money payable and secured by and upon the said order being then due and unsatisfied to the said R. J. T., the proprietor of the said order ; whereas, in truth and in fact, the said J. P. B. was not then in the wool trade in the City of London ; and whereas, in truth and in fact, the said horse did not belong to a brother of the said J. P. B. who was abroad ; and whereas, in truth and in fact, the said J. P. B. had not then to sell the said horse for his said supposed brother ; and whereas, in truth and in fact, the said horse was not then sound or quiet in harness, and had not then been used to run with another horse which had been sold to a colonel ; all of which said false pretences the said J. P. B. and J. P. at the time of making thereof as aforesaid well knew to be false ; contrary to the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said J. P. B. and J. P., well knowing as in the first count mentioned, and having in their possession the said horse in the first count mentioned, and being persons of no credit or responsibility, and intending to cause it to appear to, and be believed by, the said R. J. T. that the said J. P. B. was a person of substance and of good credit, and was a bon^ fide seller of the said horse for another, and a respectable party, and was a responsible person, whose warranty of the said horse was of value, and would be available to any purchaser of the said horse, and to induce the said FALSE PRETENCES. 591 R. J. T. to purchase the said horse of the said J. P. B. and J. P. upon the faith and credit of the warranty of the said horse by the said J. P. B. as such responsible party, for a large sum of money, to wit, the sum of three hundred dollars, and to cheat and defraud the said R. J. T. of the same, and afterwards, to wit, on the same day and year aforesaid, at B. aforesaid in the county aforesaid, did produce the said horse to the said R. J. T. and offer to sell the same to the said R. J. T., to wit, for the sum of three hundred dollars, with a warranty by the said J. P. B. of the said horse being then sound and quiet in harness ; and the said J. P. B. and J. P. did then and there deliver such warranty as aforesaid to the said R. J. T., and did then and there unlawfully, knowingly and de- signedly, falsely pretend to the said R. J. T. that the said J. P. B. then was in the wool business in the City of Lon- don, that the said horse then belonged to a brother of the said J. P. B. who was then abroad, and that the said J. P. B. then had to sell the said horse for his said brother, by means of which said false pretences, in this count mentioned, the said J. P. B. and J. P. did then and there unlawfully, knowingly and designedly, fraudulently obtain of and from the said R. J. T. one piece of paper of the value of one cent, of the goods and chattels of the said R. J. T., and one order for the payment of money, to wit, for the payment of the sum of three hundred dollars, then being the property of the said R. J. T., with intent then and there to cheat and de- fraud the said R. J. T. of the said last-mentioned goods, chattels and order respectively, the said sum of money pay- able and secured by and upon the said last-mentioned order, being then due and unsatisfied to the said R. J. T., the pro- prietor thereof ; whereas, in truth and in fact, the said J. P. B. was not then in the wool business in the City of London, nor did the said horse belong to a brother of the said J. P. B. who was then abroad ; and whereas, in truth and in fact, the said J. P. B. had not then to sell the said horse for his said supposed brother ; all of which said several false pre- tences, in this count mentioned, the said J. P. B. and J. P. at the time of the making thereof as aforesaid knew to be false ; contrary to the form of the statute in such case made and provided. 592 CRIMINAL LAW. 8. For Obtaining Money by Falsely Pretending that Certain Prop- erty of the Defendant w^as Unincumbered and that he him- self was Free from Debts and Liabilities.^ The jurors &c. upon their oath present, that before the commission of the offence hereinafter mentioned, one R. H. C. was possessed of and entitled to a certain reversionary interest, to wit, a certain reversionary interest of and in and to one-third of a certain sum of ten thousand dollars, three per cent annuities, expectant on the death of one R. C, and that the said R. H. C. before the commission of the offence hereinafter mentioned, to wit, on the first day of November in the year of our Lord duly executed a certain mortgage of the said reversionary interest to one R. S. H. H., as and for and by the way of security to the said R. S. H. H., for the repayment to him of a certain sum of money, to wit, the sum of one thousand dollars and interest, and that the said R. H. C. afterwards, and before the commission of the said offence, to wit, on the twenty-fifth day of October in the year of our Lord charged the said reversionary interest, to which he was so entitled as aforesaid, with the payment of a certain other sum of money, to wit, the sum of five hundred dollars and interest. And the jurors aforesaid upon their oath aforesaid do further present, that the said R. H. C. of B. in the County of M., well knowing the premises, and contriving and intending to cheat and defraud, on the thirteenth day of March in the year of our Lord at B. aforesaid, did apply to and request one J. P. to advance and lend to him the said R. H. C. a certain sum of money, to wit, the sum of two hundred dollars, and did then and there unlawfully and knowingly falsely pretend to the said J. P. that the said R. H. C. had not then incumbered his said reversionary interest, and that the said R. H. C. had not bor- rowed any money from any other person on the security of the said reversionary interest of the said R. H. C. ; by means of which said false pretences the said R. H. C. did then and there unlawfully, knowingly and designedly, fraudulently ob- tain of and from the said J. P. one order for the payment of 1 5 Cox C. C. Appendix, p. xc. FALSE PRETENCES. 593 money, to wit, for the payment and of the value of two hundred dollars, and one piece of paper of the value of one cent, and the sum of two hundred dollars in money, of the property, goods, chattels and moneys of the said J. P., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said R. H. C, at the time he so falsely pretended as aforesaid, had incumbered, and well knew that he had incumbered, his said reversionary interest ; and whereas, in truth and in fact, the said R. H. C, at the time he so falsely pretended as aforesaid, had bor- rowed and well knew that he had borrowed, certain money from certain persons, other than the said J. P., upon the security of the said reversionary interest, to wit, the said sum of one thousand dollars, of and from the said R. S. H. H., and the said other sum of five hundred dollars of and from one J. J. ; contrary to the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said R. H. C. being possessed of and entitled to a reversionary interest in a cer- tain sum of ten thousand dollars, three per cent annuities, expectant upon the decease of one R. C, did apply to and request the said J. P. to advance and lend money to him the said R. H. C, to wit, on the thirty-first day of May in the year of our Lord at B. aforesaid in the county afore- said, and did then and there unlawfully, knowingly and de- signedly, falsely pretend to the said J. P. that the said R. H. C. had never in any manner theretofore mortgaged, assigned or incumbered his reversionary interest in the said ten thou- sand dollars, three per cent annuities, or any part thereof ; that the said R. H. C. had never been a party to any deed or instrument whereby his interest in the said stock had or could have been in any manner affected ; that the said R. H. C. was not then liable on any deed or instrument as surety for any person whomsoever ; that the said R. H. C. had not then borrowed any money whatsoever, except from the said J. P., and that the said R. H. C. did not then owe, and was not then liable for a greater amount of debts, exclusive of a 594 CRIMINAL LAW. sum of four hundred dollars, which he then owed to the said J. P., than the sum of three hundred dollars ; by means of which said false pretences, in this count mentioned, the said R. H. C. did then and there unlawfully, knowingly and de- signedly, fraudulently obtain of and from the said J. P. one order for the payment of money, to wit, for the payment and of the value of the sum of fifty dollars, and one piece of paper of the value of one cent, and the sum of fifty dollars in money of the property, goods, chattels and moneys of the said J. P., with intent to cheat and defraud him of the same ; whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as last aforesaid, he had mortgaged, assigned and incumbered his said reversionary interest in the said sum of ten thousand dollars, three per cent annuities, to wit, the said R. S. H. H. and J. J., for the purpose of secur- ing to them respectively the repayment of the said sums of one thousand dollars and five hundred dollars hereinbefore mentioned ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as last aforesaid, the said R. H. C. had been, and then was, a party to certain deeds, by which his said reversionary interest in the said sum of ten thousand dollars had been and was then affected, to wit, the said deeds by which the repayment of the said sums of one thousand dollars and five hundred dollars was charged upon his said reversionary interest ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as in this count aforesaid, the said R. H. C. was liable on certain bonds as surety for certain persons, to wit, one M. S. and one E. J., to wit, in two several sums of fifteen thousand dollars ; and whereas, in truth and in fact, at the time the said R. H. C. so falselj' pretended as in this count mentioned, the said R. H. C. had borrowed certain sums of money from certain persons other than the said J. P., to wit, the sum of five thousand dollars from the said R. S. H. H. and the sum of three thousand dollars from the said J. J. ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as aforesaid, the said R. H. C. did owe, and was then liable for a greater amount of debts than the sum of FALSE PRETENCES. 595 three hundred dollars, exclusive of any money which he then owed to said J. P., that is to say, the said R. H. C. then owed to the said R. S. H. H. a greater sum of money than the sum of three hundred dollars, to wit, the sum of six hundred dollars, and the said R. H. C. then owed to the said J. J. a greater sum of money than the said sum of three hundred dollars, to wit, the sum of six hundred dollars, all which said several premises the said R. H. C. at the time he so falsely pretended as aforesaid well knew ; contrary to the form of the statute in such case made and provided. 9. Against a Defendant for Obtaining Money by Falsely Pretend- ing that he had then Purchased Certain Property which it vras Necessary he should Immediately Fay for.i The jurors &c. upon their oath present, that W. J. of B. in the County of M. on the first day of March in the year of our Lord at B. aforesaid in the county aforesaid, did unlawfully, fraudulently, knowingly and designedly, falsely pretend to one S. N. that the said W. J. then and there had one hundred and eight sheep, which the said W. J. had then purchased, and for which said one hundred and eight sheep the said W. J. had then and there to pay on the said first day of March, to wit, on the day and year aforesaid, by means of which said false pretences the said W. J. did then and there unlawfully, knowingly and designedly, fraudulently obtain of and from the said S. N. of the goods, chattels, moneys and valuable securities of the said S. N. ten pieces of the current gold coin of this Commonwealth, called sovereigns, one valuable security, to wit, an order for the payment of, and of the value of one hundred dollars ; one other valuable security, to wit, one other order for the pay- ment of, and of the value of five hundred dollars ; one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of four hundred dollars ; one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of three "■ 4 Cox C. C. Appendix, p. xxxiii. 696 CRIMINAL LAW. hundred dollars ; and one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of six hundred dollars ; with intent then and there to cheat and defraud the said S. N. of the same goods, chattels, moneys, valuable se- curities and orders for the payment of money respectively, the said sums of money payable and secured by and upon the said valuable securities and orders for the payment of money, being then and there due and unsatisfied to the said S. N., the proprietor and owner of the said several valuable securities and orders for the payment of money respectively ; whereas, in truth and in fact, the said W. J. had not at the time when the said W. J. so obtained the said moneys, and the said several valuable securities and orders for the pay- ment of money from the said S. N. as aforesaid, and when the said W. J. made the said false pretences as aforesaid, one hundred and eight sheep at B. in the County of Middle- sex ; and whereas, in truth and in fact, the said W. J. had not then purchased the said one hundred and eight sheep ; and whereas, in truth and in fact, the said W. J. had not then to pay for the said one hundred and eight sheep, to Avit, on the said first day of March ; all of which said false pre- tences the said W. J. at the time of the making thereof well knew to be false ; contrary to the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. N. heretofore, to wit, on the day and year aforesaid, was accustomed to, and from time to time and at various times did, at the request of the said W. J. advance and intrust divers sums of moneys to the said W. J. for the purpose of, and to enable the said W. J. to pay for sheep, after the said W. J. had, in the way of his trade, purchased the same. And the jurors aforesaid on their oath aforesaid do further present, that the said W. J. heretofore, to wit, on the said first daj' of March in the year aforesaid, at B. aforesaid in the County of M., well knowing the premises, did unlawfully, fraudulently, knowingly and designedly, falsely pretend to the said S. N. that the said W. J. had theretofore and before the making the false pretences FALSE PRETENCES. 597 by the said W. J. hereinafter in this count mentioned, pur- chased for himself a certain number of sheep, of a certain value, to wit, of the value of five hundred dollars, for which the said W. J. had to pay at the bank of Messieurs Pocking- ton and Company on the day and year last aforesaid, a cer- tain sum of money, to wit, the sum of five hundred dollars, by means of which last-mentioned false pretences in this count mentioned, the said W. J. did then and there unlaw- fully, knowingly and designedly, fraudulently obtain of and from the said S. N. of the goods and chattels, moneys and valuable securities of the said S. N. one valuable security, to wit, one order for the payment of money, to wit, one order for the payment of and of the value of five hundred dollars, with intent then and there, at the time of the making of the said false pretences by the said W. J. in this count men- tioned, to cheat and defraud the said S. N. of the said val- uable security and order for payment of money in this count mentioned, the said sums of money in this count pay- able, and secured by and upon the said valuable security and order for the payment of money in this count mentioned, being then and there, to wit, at the time of the making of the said last-mentioned false pretences, due and unsatisfied to the said S. N. the proprietor and owner of the same ; whereas, in truth and in fact, the said W. J. had not there- tofore, and before the making of the said false pretences by the said W. J. in this count mentioned, purchased for him- self a certain number of sheep, of the value of five hundred dollars, for which the said W. J. had to pay at the bank of Messieurs Pockington and Company on the day and year last aforesaid, and in this count mentioned, the said sum of five hundred dollars, which said last-mentioned false pre- tences the said W. J. at the time of the making thereof well knew to be false ; contrary to the statute in that case made and provided. 598 CRIMINAL LAW. 10. Obtaining Money by Means of a Promissory Note of a Bank 'which has Stopped Payment.^ The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to CD. that a certain paper writing, partly printed and partly writ- ten, purporting to be a bank-note for the payment of twenty dollars, and to have been issued by a certain firm carrying on business as bankers, under the name and style of The Bank, which said paper writing is of the tenor following, that is to say, &c. ; then produced by the said A. B. and offered by him to the said C. D., in exchange for two eagles, was then and there of the value of twenty dollars, and was then and there a promissory note of a bank the notes of which were then in circulation, and that there was a firm then car- rying on business under the name and style of The Bank, and that the said bank-note was then and there a good, valid and available security for the payment of twenty dol- lars, by means of which said false pretences the said A. B. did then and there unlawfuUj', knowingly and designedly obtain from the said CD. certain moneys, to wit, the sum of twenty dollars, of the moneys of the said C D., with intent then and there to defraud the said C. D. of the same. Whereas, in truth and in fact, the said paper writing was not then of the value of twenty dollars; and whereas, in truth and in fact, the said printed paper was not then a promissory note of a bank the notes of which were then in circulation, and whereas, in truth and in fact, there was not any firm then carrying on business under the name and style of The Bank, and whereas, in truth and in fact, the said printed paper was not then a good, valid and available security for the payment of twenty dollars, or for the pay- ment of any sum whatever; all of which said several false pretences the said A. B. then at the time of the making thereof there well knew to be false ; contrary to the form of the statute in such case made and provided. 1 See observations of BoUand, B. , see also Rex v. Spencer, 3 C. & P- in Rex v. Barnard, 7 C. & P. 784; 420. FALSE PRETENCES. 599 11. Obtaining Goods by Check on a Bank vrhere the Defendant had no Effects.^ The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to C. D. that a certain paper writing produced by the said A. B. to the said C. D., and purporting to be a check drawn by the said A. B. upon E. F. and Company, bankers, for the pay- ment to the bearer of the sum of one hundred dollars, was then and there a good, genuine and available order for pay- ment of the sum of one hundred dollars, and was then and there of the value of one hundred dollars, which said check is of the tenor following, that is to say &c. ; and that the said A. B. kept an account with the said E. F. and Company, and that the said A. B. had money in the hands of the said E. F. and Company for the payment of the said check, and that the said A. B. had full power, right and authority to draw checks upon the said E. F. and Company, by means of which said false pretences the said A. B. did then ^nd there unlawfully, knowingly and designedly obtain from the said C. D. one gold watch, of the value of seventy-five dollars, and one gold chain, of the value of twenty-five dollars, of the property, goods and chattels of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said paper writing was not then and there a good, genuine and available order for payment of the sum of one hundred dollars ; nor was the same then and there of the value of one hundred dollars ; and whereas, in truth and in fact, the said A. B. did not keep any account with the said E. F.and Company; and whereas, in truth and in fact, the said A. B. had not any money in the 1 Rex V. Jackson, 3 Campb. 370. Russell on Crimes, vol. ii. p. 300 6 Cox C. C. Appendix, page 1. note;" 4th ed. p. 642. See Regina "This indictment is framed with v. Hazelton, 44 L. J. M. C. 11; L. reference to Rexu. Parker, 2 Moody R. 2 C. C. 134, and per Quain, J., C. C. 1; 7 C. «E P. 825; and Mr. at p. 140; Regina v. Walne, 11 Cox Greaves's note in the 3d edition of C. C. 647. 600 CRIMINAL LAW. hands of the said E. F. and Company for the payment of the said check ; and whereas, in truth and in fact, the said A. B. had not any power, right or authority to draw checks upon the said E. F. and Company, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 12. Obtaining Money by False Pretences as to the Name and Cir- cumstances of the Defendant.^ The jurors aforesaid upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully, knowingly and designedly did falsely pretend to C. D. that the said A. B. was E. F., and that the said A. B. was a ruined merchant, and in ill health ; and that the said A. B. had been bred to mercantile pursuits ; and that the said A. B. lost a large sum of money by the upsetting of a vessel ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said C. D. the sum of fifty dollars, of the moneys of the said C. D., with intent then and there to cheat and to defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. was not E. F. ; and whereas, in truth and in fact, the said A. B. was not a ruined merchant, nor was the said A. B. in ill health ; and whereas, in truth and in fact, the said A. B. had not been bred to mercantile pursuits ; and whereas, in truth and in fact, the said A. B. had not lost a large sum of money, or any money whatever, by the upset- ting of a vessel, as the said A. B. then and there well knew; contrary to the form of the statute in such case made and provi4ed. 1 Obtaining money by means of gina v. Jones, 1 Denison C. C. 551; false statements of the name and 4 Cox C. C. 198 ; Temple & Mew circumstances of the defendant, or C. C. 270. If the money were ob- of a third person, either in a beg- tained by the medium of a letter, a ging letter or by personal represen- count should be added, setting it tations, is within the statute. Re- out according to its tenor. FALSE PRETENCES, 601 13. Obtaining Money by False Representations as to the Employ- ment and Condition of the Defendant.1 The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to C. D. that the said A. B. was then and there employed by one E. F. to drive some cattle from Wales to London for the said E. F., and that the said A. B. had been detained by the weather and the state of the roads until all his money was gone, and that the said A. B. was without any money to enable him to proceed on his journey ; by means of which said false pre- tences the said A. B. did then and there unlawfully, know- ingly and designedly obtain from the said C. D. the sum of fifty dollars of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same ; whereas, in truth and in fact, the said A. B. was not then and there employed by the said E. F. to drive some cattle from Wales to London ; and whereas, in truth and in fact, the said A. B. was not then employed to drive any cattle whatever ; and whereas, in truth and in fact, the said A. B. had not been detained by the weather and the state of the roads, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 14. Procuring the Defilement of a Girl under the Age of Tvrenty- one Tears by False Pretences.^ That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did unlawfully, knowingly and designedly, falsely pretend and represent to one A. B., a girl under the age of twenty-one years, to wit, of the age of eighteen years, that the said C. D. was acquainted with the parents of the said A. B., and that the said C. D. knew a lady in want of a 1 Rex V. Villeneuvc, 2 East P. ==6 Cox C. C. Appendix, p. C. 830, cited in Young v. The King, Ixxviii. Ante, p. 467 note. 3 T. R. 104, 105. Regina v. Willot, 12 Cox C. C. 88, C. C. K. 602 CRIMINAL LAW. servant, and that the said C. D. was employed by a lady to hire a servant ; by means of which false pretences and repre- sentations the said CD. did then and there unlawfully pro- cure the said A. B., then and there being under the age of twenty-one years as aforesaid, to have illicit carnal connec- tion with a certain person, whose name is to the jurors afore- said unknown. Wherests, in truth and in fact, the said C. D. was not then and there acquainted with the parents of the said A. B. ; and whereas, in truth and in fact, the said C. D. did not then and there know a lady in want of a servant ; and whereas, in truth and in fact, the said C. D. was not then and there employed by any lady to hire a servant, as the said C. D. then and there well knew ; against the peace &c. 15. Obtaining a Horse by False Representation.^ The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid unlawfully, knowingly and designedly did falsely pretend to C. D. that the said A. B. was then the servant of a gentle- man, living at and that the said A. B. was then em- ployed to purchase horses for his master, and that the said A. B. had purchased several horses at fair for his mas- ter ; by means of which said false pretence the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said C. D. a filly, of the Value of fifty dollars, of the property of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. was not then the servant of any gentleman living at ; and whereas, in truth and in fact, the said A. B. was not then employed to purchase horses for his master ; and whereas, in truth and in fact, the said A. B. had not purchased any horses at fair for his master, as the said A. B. then well knew ; contrary to the form of the statute in such case made and provided. 1 Kex V. Dale, 7 C. & P. 352. Regina v. Hunt, 8 Cox C. C. 495. FALSE PRETENCES. 603 16. Obtaining Goods by Talsely Pretending that the Defendant 'was a Trader in Solvent Circumstances. The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully, knowingly and designedly did falsely pretend to C. D. that the said A. B. was a member of a certain firm car- rying on business at B. aforesaid in the county aforesaid, by and under the name, style and firm of E. F. and Company, and that the said last-mentioned firm of E. F. and Company was then and there in solvent circumstances, and had then, to wit, on the said first day of June in the year aforesaid, at B. aforesaid in the county aforesaid, a balance in its favor of ten thousand dollars ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly and de- signedly obtain from the said C. D. one hundred China plates of the value of one dollar each ; fifty China dishes of the value of two dollars each, and fifty China dish covers of the value of one dollar each ; one hundred China tea-cups of the value of fifty cents each ; one hundred China tea saucers of the value of fifty cents each ; twenty China jugs of the value of two dollars each, and five hundred pieces of China ware of the value of one dollar each, and two crates of the value of five dollars each, of the property of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the firm of E. F. and Company was not then and there in solvent circumstances ; and whereas, in truth and in fact, the said firm of E. F. and Company had not at the time the said A. B. so falsely pretended as aforesaid a balance in their favor of ten thou- sand dollars, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 604 CRIMINAL LAW. 17. Obtaining Money : by False Allegations of the Delivery of Goods.^ The jurors &e. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully, knowingly and designedly did falsely pretend to C. D. that the said A. B. had carried certain goods of the said C. D. from to and had delivered the said goods to E. F., and that the said E. F. had given the said A. B. a written receipt for the said goods, and that the said A. B. had either lost or mislaid the said receipt, or left it at home ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said C. D. the sum of five dollars, of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. had not carried the said goods of the said C. D., or any part thereof, from to ; and whereas, in truth and in fact, the said A. B. had not de- livered the said goods to E. F. ; and whereas, in truth and in fact, the said E. F. had not given the said A. B. any written receipt for the said goods or for any goods whatever ; and whereas, in truth and in fact, the said A. B. never had in his possession any receipt for the said goods from the said E. P. or from any other person, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 18. Obtaining Money by False Pretence as to the Amount Due for Carriage of a Parcel.^ The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to C. D. the servant of E. F., that the sum of three dollars had been charged, and was then due and payable for the carriage and porterage of a certain parcel then and there brought by the 1 Rex V. Airey, 2 East, 30. Regina v. Mills, Dearsly & Bell C. C. 205. 2 Rex V. Douglas, 1 Campb. 212. FALSE PRETENCES. 605 said A. B. for the said E. F., and then and there delivered to the said C. D. by the said A. B. ; and that the said A. B. was then and there authorized and directed to receive and take the sum of three dollars for the carriage and porterage of the said parcel ; by means of which said false pretences, the said A. B. did then and there unlawfully, knowingly and design- edly obtain from the said CD. the sum of two dollars, of the moneys of the said E. F., with intent then and there to cheat and defraud the said E. F. of the same. Whereas, in truth and in fact, the sum of three dollars had not been charged, nor was the said sum of three dollars then and there due and payable for the carriage and porterage of the said parcel ; and whereas, in truth and in fact, the said A. B. was not then and there authorized or directed to receive or take the sum of three dollars for the carriage and porterage of the said parcel ; and whereas, in truth and in fact, the sum of one dollar and no more was then and there due and payable for the carriage and porterage of the said parcel, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 19. Obtaining Money by Rendering a False Account of Work Done by Third Parties.^ The jurors &c. upon their oath present, that at the time of the making the false pretences hereinafter mentioned, A. B. of B. in the County of S. was the servant of one C. D., and that it was the duty of the said A. B. as such servant, to render a true and correct account of the work done by and money due to the workmen of the said C. D. And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to the said C. D. that a certain account kept by the said A. B., and then and there shown by him to the said C. D. was a true and correct account, and that the sum of one hundred dollars was then and there due in respect of work performed by the work- 1 Rex V. Witchell, 2 East P. C. & Cave C. C. 233. Regina ii. 830. Regina v. Thompson, Leigh Cooke, L. R. 1 C. C. 295. 606 CRIMINAL LAW., men of the said C. D., for and on account of the said C. D. ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said C. D. the sum of ten dollars, of the moneys, of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said account shown by the said A. B. to the said C. D. was not a true and correct account ; and whereas, in truth and in fact, the sum of fifty dollars was not then and there due in respect of work performed by the workmen of the said C. D. for and on account of the said C. D., as the said A. B. then and there well knew ; contrary to the form of the stat- ute in such case made and provided. 20. Obtaining Money by Falsely Pretending that a Member of a Friendly Society 'was Indebted to the Society.^ The jurors &c. upon their oath present, that at the time of making the false pretence hereinafter mentioned, A. B. of B. in the County of S. was secretary to the Earl of Uxbridge Lodge of Odd Fellows at B. aforesaid in the county afore- said, and that C. D. was a member of the said lodge. And that, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the said A. B. unlawfully, knowingly and designedly did falsely pretend to the said C. D. that the sum of five dollars was then due from the said C. D. to the said lodge ; by means of which said false pretence the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said C. D. the sum of five dollars, of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the sum of five dol- lars was not then due from the said C. D. to the said lodge ; and whereas, in truth and in fact, the sum of two dollars and no more was then due from the said C. D. to the said lodge, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 1 See Regina v. Woolley, 1 Den- & Bell C. C. 442; Regina v. Gates, ison C. C. 559; 3 C. & K. 98; 4 Dearsly C. C. 459; 2 Russell on Cox C. C. 193; Temple & Mew C. Crimes, 586 note, 5th ed. C. 279; Regina v. Jessop, Dearsly FALSE PRETENCES. 607 21. Obtaining Money by Means of a False Warranty of the Weight of Goods.^ The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the' first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully, knowingly and designedly did falsely pretend to C. D. that a certain quantity of coals, which the said A. B. then and there delivered to the said C. D., weighed one ton and ten hundred weight, and that the said coals were then and there worth the sum of fifteen dollars; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said C. D. the sum of fifteen dollars, of the money of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said coals did not weigh one ton and ten hundred weight ; and whereas, in truth and in fact, the said coals were not worth the sum of fifteen dollars ; and whereas, in truth and in fact, the said coals weighed only one ton and five hundred weight, and were not worth more than twelve dollars, as the said A. B. then and there well knew ; contrary to the form of the stat- ute in such case made and provided. 22. Falsely Pretending that Goods -were of a Particular Quality.^ The jurors &c. upon their oath present, that A. B. late of B. in the County of S., trader, at the time of the making of ^ " Although it was formerly for it never took place." " The supposed that such a case as this decisions when Rex v. Reed was was not a false pretence within the said to have been considered by the statute, it is quite clear that it is; judges were certainly not of so and there never was, in fact, any much weight as now, when these express decision to the contrary; cases are decided publicly, and coun- the supposed case of Rex v. Reed, sel heard on both sides." Pollock, 7 C. & P. 848, A.D. 1837, on which C. B., in Regina v. Gates, Dearsly such a notion was founded, never C. C. 468, a.d. 1855. But see having been considered by the Dearsly & Bell C. C. 35, 36 note, judges." In Hamilton v. The where it is said Rex u. Reed was in Queen, 9 Q. B. 279, Lord Denman, fact considered by the judges. C. J., said: " I am sure that Rex v. ^ Regina v. Abbott, 1 Denison Reed was not before the judges. C. C. 273; 2 Cox C. C. 430; 2 C. That decision is not overruled now ; & K. 630. 608 CRIMINAL LAW. the false pretences by him hereinafter mentioned, had in his possession and offered for sale, divers pounds weight of cheese of little value and of inferior quality ; and also had in his pos- session divers pieces of cheese called " tasters," of good flavor, taste and quality. And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B., being so thereof possessed, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlaw- fully, knowingly and designedly did falsely pretend to one C. D. that the said pieces of cheese called " tasters," which the said A. B. then and there delivered to the said C. D., were part of the cheese which the said A. B. then and there offered for sale, and that the said last-mentioned cheese was of good and excellent quality, flavor and taste, and that every pound weight of the said cheese so offered for sale by the said A. B. was of the value of twelve cents; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly and designedly obtain from the said CD. certain money, to wit, the sum of twenty dollars, of the moneys of the said C. D., with intent then and there to cheat and de- fraud the said C. D. of the same. Whereas, in truth and in fact, the said pieces of cheese called " tasters," which the said A. B. delivered to the said C. D., were not part of the cheese which the said A. B. offered for sale ; and whereas, in truth and in fact, the said cheese offered for sale was not of good and excellent quality, flavor and' taste ; and whereas, in truth and in fact, every pound weight of the said cheese offered for sale by the said A. B. was not of the value of twelve cents, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 23. Attempting to Obtain Money by Means of False Pretences. The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully, knowingly and designedly did falsely pretend to C. D. that the said A. B. was then and there sent to the said C. D. by one E. F. to request the loan of ten dollars, and that the said E. F. desired the said A. B. to say that FALSE PRETENCES. 609 the said E. F. would repay the same to the said C. D. on the next following day ; by means of which said false pre- tences the said A. B. did then and there unlawfully, know- ingly and designedly attempt and endeavor to obtain from the said C. D. certain money, to wit, the sum of ten dollars of the moneys of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said A. B. was not sent to the said C. D. by the said E. F. to request the loan of ten dollars, or any other sum of money ; and whereas, in truth and in fact, the said E. F. did not say or desire the said A. B. to say that the said E. F. would repay the same to the said C. D. on the next following day, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. 89 610 CRIMINAL LAW. CHAPTER L. FORCIBLE ENTRY AND DETAINEE. An offence against the peace is that of a forcible entry or detainer ; which is committed by violently taking — or, after an unlawful taking, violently keeping possession of — lands and tenements, with menaces, force and arms, and without the authority of law.^ The remedies for forcible entries or detainers are either by action, by complaint to magistrates, or by indictment which will lie at common law, although it is generally brought on the statutes.^ When a person having the legal title to land is in actual possession of it, the attempt to eject him by force brings the person who makes it within the provisions of the statute against forcible entry. It will do so though the possession of the person having such legal title has only just commenced, though he may himself have obtained it by forcing open a lock, though his ejection has not been made by a " multitude " of men, nor attended with any great use of violence, and though the person who attempts to eject him may even set up a claim to the possession of the land.^ 1. For Forcible Entry and Detainer at Common Law.* The jurors &c. upon their oath present, that A. B. of B. in the County of M., C. D. of the same place, and E. F. of the 1 4 Stephen Comm. 256, 7th ed. 411 etseq. 5th ed. ; 1 Gahhett Grim. Rex V. Oakley, 4 B. & Adol. 307. Law, 327; Train & Heard Prece- Rex V. Wilson, 3 Ad. & El. 817. dents of Indictments, 205. ^ 1 Russell on Crimes, 411, 5th ' Lows v. Telford, 1 App. Cas. ed. Gen. Sts. eh. 137. Common- 414; 13 Cox C. C. 226, in the House ■wealth V. Shattuck, 4 Cush. 141. of Lords. The cases which have been deter- * Commonwealth v. Shattuck, mined with respect to the form of 4 Cush. 141. Matthews Crim. Law, an indictment for these offences are 475. Archb. Crim. PI. 889, 890, collected in 1 Russell on Crimes, 18th ed. Gen. Sts. ch. 137. FORCIBLE ENTBT AND DETAINER. 611 same place, together with divers other persons to the number of or more, whose names to the jurors aforesaid are unknown, on the first day of June in the year of our Lord with force and arms, to wit, with pistols, swords, sticks, staves and other offensive weapons, at B. aforesaid in the county aforesaid, into a certain messuage with the appur- tenances, and a certain orchard there situate and being, and then and there in the possession of one R. T., unlawfully, violently, forcibly, injuriously and with a strong hand ^ did enter ; and the said A. B., C. D. and E. F., together with the said other persons, whose names to the jurors aforesaid are unknown, as aforesaid, then and there with force and arms, to wit, with pistols, swords, sticks, staves and other offensive weapons, unlawfully, violently, forcibly, injuriously and with a strong hand, the said A. B. from the possession of the said messuage with the appurtenances, and from the possession of the said orchard, did expel, amove and put out ; and the said A. B., so as aforesaid expelled, amoved and put out from the possession of the said messuage with the appurtenances and orchard, then and there with force and arms, to wit, with pistols, swords, sticks, staves and other offensive weapons, unlawfully, violently, forcibly, injuriously and with a strong hand, did keep out, and still do keep out, and other wrongs to the said A. B. then and there did ; against the peace &c. 2. For a Forcible Entry into a Freehold on Stat. 5 Rich. U. ch. 8? The jurors &c. upon their oath present, that one J. N. of B. in the County of M., on the first day of June in the year of our Lord in B. aforesaid in the county aforesaid, was seised in his demesne as of fee of and in a certain messuage, with the appurtenances there situate and being ; and the said J. N., being so seised thereof as aforesaid, J. S. of B. afore- said in the county aforesaid, afterwards, to wit, on the day and year last aforesaid, in B. aforesaid in the county afore- 1 The words " with a strong wealth v. Shattuck, 4 Cash. 141, hand " are technical, and imply 145. that the entry was accompanied ^ Archb. Grim. PI. 887, 18th ed. with that terror and violence which Matthews Grim. Law, 474. constitute the ofEence. Common- 612 CRIMINAL LAW. said, into the said messuage and appurtenances aforesaid, with force and arms, and with a strong hand, unlawfully did enter, and the said J. N. from the peaceable possession of the said messuage, with the appurtenances aforesaid, then and there with force of arms, and with a strong hand, unlawfully did expel and put out ; and the said J. N. from the possession thereof so as aforesaid, with force and arms, and with a strong hand, being unlawfully expelled and put out, the said J. S. from the aforesaid first day of June in the year aforesaid, until the first day of September in the year aforesaid, from the possession of the said messuage, with the appurtenances aforesaid, with force and arms, and with a strong hand, then and there unlawfully and injuriously did keep out, and still doth keep out; contrary. to the form of the statute in such case made and provided, and against the peace &c. 3. Indictment for a Forcible Entry into a Leasehold &c. on Stat. 21 Jac. I. ch. 15.1 This may he the same as the last precedent, with such alter- ations only as are necessary to adapt it to a term for years ^c, as thus : that J. N. of &c. &c., was possessed of a certain messuage with the appurtenances there situate and being, for a certain term of years, whereof divers, to wit, ten years, were then to come, and are still unexpired ; and the said J. N. being so possessed thereof, &c. &c., as in the last precedent. 4. For a Forcible Detainer, on Stat. 8 Hen. VI. ch. 9, or 21 Jac. 1 ch. 15.2 The same as in the last two precedents respectively, to the end of the statement of the seisin or possession; then proceed thus : and the said J. N. being so seised [or, possessed] thereof, J. S. of B. aforesaid in the county aforesaid, afterwards, to wit, on the day and year aforesaid, at B. aforesaid iu the county aforesaid, into the said messuage, with the appurte- nances aforesaid, unlawfully did enter, 'and the said J. N. from the peaceable possession of the said messuage, with the ap- purtenances aforesaid, then and there unlawfully did expel 1 Archb. Crira. Pi. 889, 18th ed. Matthews Crim. Law, 475. " Archb. Criin. PI. 889, 18th ed. Matthews Crim. Law, 475. FORCIBLE ENTRY AND DETAINER. 613 and put out ; and the said J. N. from the possession thereof so as aforesaid being unlawfully expelled and put out, the said J. S., from the said first day of June in the year afore- said, until the first day of September in the year aforesaid, from the possession of the said messuage, with the appurte- nances aforesaid, with force and arms, and with a strong hand, unlawfully and injuriously then and there did keep out and the said messuage with the appurtenances and the pos- session thereof then and there unlawfully and forcibly did hold, and still doth hold, from the said J. N. ; contrary to the form of the statute in such case made and provided, and against the peace &c. 5. Indictment for Forcible Entry, Riot, Affray and Assault and Battery. The jurors &c. on their oath present, that a certain hotel or public-house, known as " The Prince of Wales House," together with the appurtenances, at B. in the County of M. was in the possession and occupation of I. G., and that H. I. S. of B. in the County of M., and E. K. of B. in the county aforesaid, with divers other persons whose names are to the jurors aforesaid unknown, to wit, on the first day of May in the year of our Lord unlawfully, forcibly and with strong hand, and with divers offensive weapons, did break and enter the said house and premises ; and that the said H. I. S. and E. K., with the said other per- sons, with force and arms, then and there unlawfully and forcibly did expel and put out the said I. G., and his wife and family from and out of the said house and premises and the said I. G. and his said wife and family, so as aforesaid unlawfully expelled and put out of the said house and premises, with force and arms, did then and there unlawfully and forcibly keep out, and still do keep out of the said house and premises ; against the peace &c. Second Count for a' Riot. — And the jurors aforesaid upon their oath aforesaid do further present, that the said H. I. S. and E. K., with divers other persons, to the number of ten or more, whose names are to the jurors aforesaid unknown, on the first day of May in the year of our Lord at B. 614 CRIMINAL LAW. in the County of M., unlawfully, riotouslj'- and routously did assemble and gather together with force and arms, to wit, with sticks and other weapons, to disturb the peace of said Commonwealth, and being so assembled together and armed, did then and there unlawfully, riotously and routously make a great noise, riot and disturbance ; to the great disturbance and terror of all the citizens of said Commonwealth and against the statute in such case made and provided, and against the peace &c. Add a count for an affray and counts for assault and battery. FORGERY AND COUNTERFEITING. 615 CHAPTER LI. FOEGEEY AND COUNTBRPBITING. Forgery at common law is defined by Mr. Justice Black- burn to be " the falsely making or altering a document to the prejudice of another, by making it appear as the document of that person. Telling a lie does not become forgery, be- cause it is reduced to writing." ^ " The making a false in- strument in the intent to deceive," is forgery at common law.2 Another definition is " the false making a note or other instrument, with intent to defraud." ^ In East's Pleas of the Crown, forgery at common law is defined as " a false making, malo animo, of any written instrument, for the purpose of fraud and deceit ; " the word " making " being construed as including every alteration of, or addition to, a true instrument.* Forgery " may be committed of any writing which, if genu- ine, would operate as the foundation of another person's lia- bility, or the evidence of his right." * In a recent crown case reserved, Kelly, C. B., said : " The definition of forgery is not, that every instrument containing false statements fraudulently made is a forgery ; but that every instrument which fraudulently purports to be that which it is not, is a forgery, whether the falseness of the in- strument consists in the fact that it is made in a false name, or that the pretended date, when that is a material portion of the deed, is not the date at which the deed was in fact exe- . 1 In re Windsor, 6 B. & S. 529, 2 Leach C. C. 785. Commonwealth 530; 10 Cox C. C. 123. " Forgery v. Foster, 114 Mass. 319. is a falsehood committed in or ^2 East P. C. 852, 965. 2 Rus- about some writing or deed." Star sell on Crimes, 618, 5th ed. Corn- Chamber Cases, 5. monwealth v. Ayer, 3 Cush. 153. ^ PerBuUer, J.,inRexi). Coogan, ^ 3 Greenl. Ev. § 103. Common- 2 East P..C. 853. wealth v. Ray, 3 Gray, 446. ^ Per Grose, J., in Rex v. Parkes, 616 CRIMINAL LAW. euted. In this case, it was held that a man may be guilty of forgery by making a false deed in his own name ; as where a person has made a conveyance in fee of land to A., and after- wards makes a lease for nine hundred and ninety-nine years of the same land to B., of a date prior to that of the con- veyance to A., for the purpose of defrauding A., the latter deed is a forgery." ^ The falsity of the instrument consists in its purporting to be the note of some party other than the one actually making the signature. The falsity of the act consists in the intent that it shall pass and be received as the note of some other party. If there be simulation, or any device in or upon the instrument itself, adopted to make it appear to be the note of such other party, so that the falsity and its proof are both borne upon it, the charge of forgery may be maintained, not- withstanding that the signature is of a name which might lawfully be used by the person who attached it to the note.^ Signing a promissory note in the name of a fictitious firm, with intent to defraud, and falsely representing that the firm consists of the writer and another person, are not forgery.^ In this case, the distinction is drawn between one who assumes to bind another, either jointly with himself, or by procura- tion, however groundless and false may be his pretence of authority so to do, and one who signs himself, in such man- ner that the instrument may purport to bear the actual signa- ture of another party having the same name, and intending that it shall be so received. It purports to be the instrument of such other party among those not familiar with his hand- writing, by bearing his name ; and it is a false instrument, and falsely made, if it was so intended.* ' Regina v. Kitson, L. R. 1 C. "I think," said Blackburn, J., C. 200; 39 L. J. M. C. 10. In this " that this gives it all the greater case, the judges adopted the defini- weight." tions of " the text- writers of the ^ Commonwealth v. Foster, 114 highest reputation ; " Comyns (Dig. Mass. 311, 319. tit. Forgery, A. I.), Bacon (Ab. tit. ^ Commonwealth v. Baldwin, 11 Forgery, A.), Coke (3 Inst. 169), Gray, 197. and Foster (Crown Cases, 116). It * Commonwealth v. Foster, 114 was suggested in the course of the Mass. 320. Commonwealth v. argument that the definition is old; Stephenson, 11 Cush. 481. FORGERY AND COUNTERFEITING. 617 The essential element of forgery consists in the intent when making the signature, or procuring it to be made, to pass it fraudulently as the signature of another party than the one who actually makes it. If this intent thus to personate another exists, the instrument is still a forgery, even if the name affixed is actually the same name with that borne by the party who signs it. So there may be a forgery by the use of a "fictitious name, as well as by the use of a person's own name, if the intent exists to commit a fraud by deception as to the identity of the person who uses the name.^ Where a party signs a name not his own, but one which he has adopted, using it without the intent to deceive as to the identity of the person signing, it is not a forgery .^ The Gen. Sts. ch. 162, § 1, enacts that " Whoever falsely makes " any of the written instruments therein enumerated, " with intent to injure or defraud any person," shall be pun- ished &c.^ It will readily be perceived that many things which may be the subjects of forgery do not come within this enumera- tion. Beyoncl the range of the statutes, the subject of forg- ery is taken iip by the common law, whereby the deceitful, false and fraudulent fabrication and use of all sorts of writ- ings is denounced and punished as criminal. The descrip- tions or denominations of the subjects of forgery in the statutes are, therefore, material principally in relation to the degree of punishment and the phraseology of the in- dictment.* In Commonwealth v. Ayer,^ it was said by the 1 Commonwealth v. Foster, 114 v. Kepper, 114 Mass. 279 ; Corn- Mass. 311. Commonwealth v. Cos- monwealth». Henry, 118 Mass. 460 ; tello, 120 Mass. 359, 370, 371. Commonwealth v. Costello, 120 2 Rex V. Bontien, Russell & Mass. 358. Ryan C. C. 260. Rex ». Peacock, * Commonwealth v. Ayer, 3 Russell & Ryan C. C. 278. Regina Cush. 150. Commonwealth v. Far- V. White, 5 Cox C. C. 290, Alder- rell, 5 Allen, 132. Commonwealth son, B., and Talfourd, J. v. Castles, 9 Gray, 123. Common- ' The following cases have been wealth v. Hinds, 101 Mass. 209. decided under this statute: Com- Regina o. Toshaek, 1 Denison C. C. monwealth v. Talbot, 2 Allen, 161 ; 492. Regina v. Sharman, Dearsly Commonwealth v. Butterick, 100 C. C. 285. Regina w. Moah, Dearsly Mass. 12; Commonwealth v. Law- & Bell, 550. less, 101 Mass. 32 ; Commonwealth * 3 Cush. 150, 153. 618 CRIMINAL LAW. court that "the object of the statute was to prescribe a pun- ishment different from that provided by the common law, leaving all cases not enumerated in the statute to the com- mon law." The common law contains a general definition of forgery ; but the statute law has specified so many varieties of forgery, that the offence at common law has been nearly superseded. Indeed, it would require great ingenuity to commit it with- out committing, at the same time, a statutory offence. The problem was, perhaps, solved by a man who painted the name of an eminent artist in the corner of a picture, in imitation of the original, in order to pass it off as an original picture by that artist. A case was reserved to determine whether the solution was sound. It was decided that he was not guilty of forgery.! The drawer of a check on a bank, which was duly honored and returned to him by the bank, after- wards altered his signature in order to give it the appearance of forgery, and to defraud the bank, and cause the payee of the check to be charged with forgery. The Court of Queen's * Regina v. Closs, Dearsly & Bell example daring the argument, if a C. C. 460. Cockburn, C. J.: "A man sold a gun with the mark of a forgery must be of some document particular manufacturer upon it, so or writing ; and this was merely in as to make it appear like the genu- the nature of a mark put upon the ine production of the manufacturer, painting with a view of identifying that would be a false mark or token , it, and was no more than if the and the party would be guilty of a painter put any other arbitrary cheat, and therefore liable to pun- mark as a recognition of the picture ishment, if the indictment were being his. As to the second count, fairly framed so as to meet the case; which charges a cheat at common and therefore, upon the second law, we have carefully examined count of this indictment, the pris- the authorities ; and the result is, oner would have been liable to have that we think if a person, in the been convicted, if that count had course of his trade openly and pub- been properly framed ; but that licly carried on, were to put a false count is faulty in this respect, that, mark or token upon an article, so although it sets out the false token, as to pass it off as a genuine one, it does not sufficiently show that it when in fact it was only a spurious was by means of such false token one, and the article was sold and the defendant was enabled to pass money obtained by means of that off the picture and obtain the money, false mark or token, that would be The conviction, therefore, cannot a cheat at common law. As, for be sustained." instance, in the case put by way of FORGERY AND COUNTERFEITING. 619 Bench were of opinion that, inasmuch as the alteration did not alter the legal effect of the document, it did not amount to a forgery.^ The indictment must state what the instrument is in re- spect of which the forgery was committed.^ And the instru- ment must be correctly described.* An inconsistency between the instrument set out and the description given to it consti- tutes a repugnancy which is fatal to the indictment.* In an indictment for forgery, the instrument which is the subject of the forgery must be set out in words and figures.^ But un- less the omission or addition of a letter so changes the word as to make it another word, the variance is not mate- rial.* The word " tenor " imports an exact copy ; that it is set forth in words and figures, — whereas the word " pur- port" means only the substance or general import of the instrument.'^ When the instrument is set out according to its tenor, no technical form of words is necessary for expressing that it is so set forth. And therefore the words "as follows, that is to say," or, " in the words and figures following, that is to say," are as certain as the words " according to the tenor following, that is to say." * Where the instrument on which the indictment rests is in the defendant's possession, or cannot be produced, and there is no laches on the part of the government, it is necessary to aver in the indictment such facts as are sufficient to excuse the non-description of the instrument, and then to proceed, either by stating its substance, or by describing it as an in- strument which cannot be set forth by reason of its loss, destruction, or detention, as the case may be.^ The instrument which the defendant is charged with forg- 1 Britiau v. Bank of London, 11 ' Rex v. Lyon, 2 Leach C. C. W. R. 569. 597, 608. 2 Rex V. Wilcox, Russell & Ryan « Regina v. Drake, 2 Salk. 660. C. C. 50. ' Commonwealth v. Wright, 1 ' Rex V. Hunter, Russell & Ryan Cush. 65. Ante, p. 78. C. C. 511. Rex V. Birkett, Russell » Rex v. Powell, 1 Leach C. C. &Ryan C. C. 251. Commonwealth 77, 78; 2 East P. C. 976. V. Clancy, 7 Allen, 537. ' Commonwealth v. Houghton, * Commonwealth v. Lawless, 101 8 Mass. 107. See Commonwealth Mass. 32. 0. Clancy, 7 Allen, 537. 620 CRIMINAL LAW. ing &c. is sometimes described as the instrument, and some- times as " purporting " to be the instrument, the counterfeiting of which is prohibited hy the statute on which the indict- ment is framed ; and the latter mode of describing it has been held to be equally good as the former. And it has been said that, in strictness of language, there may be more propriety in so laying it, considering that the purpose of the indict- ment is to disaffirm the reality of the instrument.^ The use of the words " false, forged and counterfeit " in the statute, im- ply, when applied to any of the instruments therein mentioned, that it purports to be such an instrument, but is not genuine or valid.^ Where the defendants were indicted and con- victed of publishing, as a true will, a certain false, forged and counterfeited paper writing purporting to be the last will of Sir A. C. &c., the tenor of which was set out, it was ob- jected that it should have been laid that they forged a certain will, and not a paper writing purporting &c., the words of the statute being " shall forge a will ; " but, after a variety of precedents were produced, the judges held it to be good either way.^ It is to be observed, that by the words " purporting to be " is to be understood the apparent, and not the legal, import of the instrument ; whereas the " tenor " of an instrument means the exact copy of it. And accordingly, where the in- strument was laid in some counts of the indictment to be a paper writing purporting to be a bank-note, it was held that as it did not purport, on the face of it, to be a bank-note, not having been signed, the conviction could not be supported ; though it was in evidence in this case that the bank fre- quently paid bank-notes which are filled by their officers, and entered by them, though they happen not to be signed ; but the case was decided upon the principle, that though there need not be an exact resemblance to the thing supposed to be forged, yet the forged instrument mast at least have the principal constituent parts of that which it is intended 1 2 East P. C. 980. 1 Gabbett " Rex v. Birch, 1 Leach C. C. Crim. Law, 371. 79; 2 East P. C. 980; 2 Wm. Bl. ^ United States v. Howell, 11 790. See the indictment, 2 Stark. Wall. 432, 437. Crim. PI. 508. FORGEKT AND COUNTERFEITING. 621 to represent; which was wanting in this case.^ And where the bill was directed to John Ring, and the acceptance was by John King, the indictment having stated that the bill pur- ported to be directed to John King by the name of John Ring, and that the prisoner forged the acceptance in the name of John King, the judgment was arrested, because the bill did not, in fact, purport to be drawn on or directed to John King, as laid in the indictment ; for the name and de- scription of one person or thing could not purport to be another.^ This blunder made the indictment absurd and repugnant to itself. Though it is in general sufficient to charge that the defend- ant forged such an instrument, naming it, or describing it as purporting to be such an instrument as is within the words and meaning of the statute &c., or setting forth the tenor of it ; yet if the instrument does not purport on the face of it, and without reference to some other subject-matter, to be the thing prohibited to be forged, then such other subject-matter must be referred to by the indictment, and connected with the forgery by proper averments.^ Thus, an indictment for forging an instrument of the tenor following : " Boston, Aug. 6, 1868. St. James Hotel. I hereby certify that L. W. Hinds & Co. have placed in my hotel a card of advertise- ments, as per their agreement by contract. J. P. M. Stetson, Proprietor," without any averment of extrinsic matter to show that the instrument is adapted to be used for the pur- pose of fraud otherwise than appears on its face, is insuffi- cient. If the fraudulent character of the instrument is not manifest on its face, this deficiency should be supplied by such averments as to extrinsic matter as would enable the court judicially to see that it has such a tendency.* Another general rule as to the manner in which the of- fence is to be laid in the indictment is, that if any material part of a true instrument be altered, the indictment may lay 1 Rex V. Jones, 1 Douglas, 300 ; 1 ^1 Gabbett Crim. Law, 374. Leach C. C. 204; 2 East P. C. 2 East P. C. 977. 883, 952. ■* Commonwealth v. Hinds, 101 2 Rex V. Reading, 2 Leach C. C. Mass. 209. Commonwealth u. 590; 2 East P. C. 952. Rex v. Costello, 120 Mass. 358, 369. Gilchrist, 2 Leach C. C. 657; 2 East P. C. 982. 622 CRIMINAL LAW. it to be a forgery of the whole instrument; although it is more usual, and indeed advisable, to charge forgeries of this sort by stating the particular alteration, at least in one set of counts.' But where the forgery is of something which is a mere addition or collateral to the instrument, and does not alter it, as when the indorsement or acceptance of a genuine bill of exchange is forged, then such forgery must be specially alleged, and must be proved as laid ; whereas, if the signa- ture of the drawer, which is a part of the bill itself, be forged, it may be laid as a forgery of the entire bill.^ In a very recent case,^ the indictment alleged that the de- fendant forged an indorsement in and upon a promissory note, by writing upon the back thereof the words " A. McQuesten." It was held that as the word "indorsement" has no technical meaning, it is necessary to show by express averment that the words alleged to have been forged had such a relation to the contract as to be the subject of forgery ; and that for the want of such averments the indictment was fatally defective. Mr. Justice Lord delivered the opinion : " This indict- ment is in various respects defective. The charge against the defendant is that of ' forging an indorsement in and upon a certain promissory note.' If by implication we could supply all that is necessary in order to constitute ' A. McQuesten ' an indorser of the note referred to, and to render him liable as a party to the contract in that ca- pacity, there would be the insuperable objection that upon such a note as is described, by the law of this Common- wealth, McQuesten is not an indorser, but an original prom- isor, his name not appearing on the face of the note, and the payee's name not appearing on the back of it. The note is thus fatally misdescribed, and the forgery alleged is the mak- ing of a note, and not the forgery of an indorsement. Or, the name thus written might have been so written as to au- thorize the holder to fill the blank with words which should 1 Rex V. Elsworth, 2 East P. C. ^ i Gabbett Crim. Law, 375. 986, 988. Rex v. Teague, Russell Commonwealth v. Woods, 10 Gray, & Ryan C. C. 33 ; 2 East P. C. 979. 480, 481. Rex V. Atkinson, 7 C. & P. 669. * Commonwealth v. Spillman, Commonwealth v. Butteriek, 100 124 Mass. 327, a.d. 1878. Mass. 12, 18. Commonwealth t'. Woods, 10 Gray, 477. FORGERY AND COUNTERFEITING. 623 make him an original guarantor, which is an equally fatal misdescription. But there is a difficulty beyond this. " The statute for the punishment of forgeries includes ' in- dorsement' as a subject of forgery, but it does not thereby authorize the pleader simply to charge that an indorsement has been forged, any more than it would authorize the simple allegation that the party charged has forged a ' public record,' or a certificate of a public ofiBcer in relation to a matter wherein such ' certificate may be received as legal proof,' ' a wiU,' or ' a bond,' or ' a policy of insurance,' or ' a bill of exchange,' or ' an accountable receipt ; ' but such facts must be set forth in the indictment as show that the crime charged has been committed. In this case, such facts should have been set forth and such averments made as to show that the words put upon the back of the note were necessarily such as to make A. McQuesten a party to the instrument, and to de- clare the capacity in which he was a party. The only charge in this indictment is, that the defendant falsely and fraudu- lently wrote upon the back of a certain promissory note for the payment of money the words ' A. McQuesten.' Very many of the words used in the statute, such as ' deed,' ' promissory note,' ' public record,' ' bill of exchange,' and others, have a meaning well understood in law, but in these cases it is entirely insufficient to charge the forgery of such instrument merely by name. But the word 'indorsement' has not a definite technical meaning in law or in fact other than ' upon the back ; ' and its meaning is always deter- mined by the context if in writing, and its connection if by spoken words. It is as applicable to the receipt of a pay- ment upon the note as to a party to the note, and properly includes filing or any other memorandum which a person may place upon the back of the instrument. It includes not only such entries as pertain to the contract itself, but many entries which may have no relation to the contract. It may relate to things material to the subject of the contract, or to persons who are parties to the contract, or to such as are entirely im- material to either. It is therefore necessary to show affirma- tively that the words written, as written, became a part of an instrument which is a subject of forgery. Simply to write 624 CRIMINAL LAW. the words ' waiving demand and notice ' upon the back of a note, when they are wholly immaterial, is not forgery, while they may be so written as to be the subject of forgery. It is therefore necessary .that words alleged to be forged, be shown or averred to have such a relation to the contract as to be the subject of forgery." " The words, ' with intent thereby then and there to injure and defraud ' are words essential to the offence as charged, but do not enlarge the signification of the language which avers the facts necessary to be proved in order to constitute the offence. " The averment that the note is lost does not obviate the necessity of setting forth that which is necessary to show that the words alleged to be forged bore such relation to it as to be the subject of forgery." ^ -When the indictment, is founded upon a statute, it must, in general, according to the rule of pleading which is applicable to all offences, set forth the charge in the very words of the statute describing the offence ; equivalent words not being sufficient.^ But in an English case, it has been held that if the instrument be set out in hsec verba, a misdescription of it in the indictment will be immaterial, at least if any of the terms used to describe it be applicable. In this case, Parke, B., said : " The question may be very different if the indict- ment sets out the instrument, from what it would be if it merely described it in the terms of the statute. In the former case, the matter which it is contended is descriptive may be mere surplusage ; for when the instrument is set out on the record, the court are enabled to determine its character, and so a description is needless." ^ 1 124 Mass. 328, 329. port the indictment, which described 2 1 Gabbett Crira. Law, 376. it as a warrant, order and request. ' Regina v. Williams, 2 Denison But it was held that there was no C. C. 61; Temple & Mew C. C. variance, as the document being 382 ; 4 Cox C. C. 256. In this set out in full in the indictment, the case, the indictment charged the description of its legal character defendant with having forged "a became immaterial. Parke, B., certain warrant, order and request, suggested that the correct course in the words and figures following " would have been to have alleged &c. It was objected that the paper, the uttering of one warrant, one being only a request, did not sup- order and one request. "The FORGERY AND COUNTERFEITING. 625 It is usual to charge that the party " falsely " forged and counterfeited &c. But it is enough to allege only that he " forged," or " counterfeited," without adding " falsely," which is suflBciently implied in either of those terms ; but more particularly in the verb "to forge," which is always taken in an evil sense, in the law.^ Where an exception was taken to the indictment as being repugnant, for stating that the party /aZseZy counterfeited a, false writing, the indictment was held good.^ The intent to defraud, which is essential to constitute this crime, must be stated in the indictment, and, at common law, pointed at the particular person or persons against whom it is meditated.^ The word "pass," as used in the statute, and 'generally, as applied to bank-notes, is technical, and means to deliver them as money, or as a known and conventional substitute for principle of this decision seems to be," says the Reporter, " that where an instrument is described in an indictment by several designa- tions, and then set out according to its tenor, either with or without a videlicet, the court will treat as surplusage such of the designations as seem to be misdescriptions, and treat as material only such designa- tions as the tenor of the indictment shows to be really applicable. And where the indictment is so drawn as to enable the court to treat as material only the tenor of the in- dictment itself, all the descriptive averments may be treated as sur- plusage. The principal case seems reconcilable with Regina v. Newton, 2 Moody C. C. 59, but to overrule Regina v. Williams, 2 C. & K. 51." In Regina v. Charretie, 3 Cox C. C. 503, Davison, amicus curiae, men- tioned that Cresswell, J., in a sub- sequent case, had declined to act upon the authority of Regina u. Williams, 2 C. & K. 51. 1 2 East P. C. 985. 1 Stark. Crim. 1. 98. 1 Gabbett Crim. Law, 375. ^ Rex V. Goate, 1 Ld. Raym. 737. s The Gen. Sts. ch. 162, § 13, enacts that " Where an intent to de- fraud is required to constitute the offence of forgery, or any other of- fence, it shall be sufficient to allege in the indictment an intent to de- fraud, without naming therein the particular person or body corporate intended to be defrauded; and on the trial it shall be sufficient, and shall not be deemed a variance, if there appears to be an intent to defraud the United States, or any State, county, city, town or parish, or any body corporate, or any public officer in his official capacity, or any copartnership or members thereof, or any particular person." Com- monwealth V. Butterick, 100 Mass. 12, 17. Commonwealth v. Hulbert, 12 Met. 446. But if a special intent to defraud is alleged, the allegation is a material one, and must be es- tablished by proof. Commonwealth V. Harley, 7 Met. 506, 509. Com- monwealth V. Kellogg, 7 Gush. 473, 476. 40 626 CRIMINAL LAW. money.^ In order to pass a counterfeit bill or coin, it must be received by the person to whom it is offered. But a person may be guilty of uttering, by declaring or asserting, directly or indirectly, by words or actions, that a bill is good.^ The rule is, "that in order to make it an uttering, the instrument should be parted with, or tendered or used in some way to get money or credit by means of it." ^ The Gen. Sts. ch. 162, § 6, provides a punishment for " whoever utters or passes or ten- ders in payment as true " a counterfeit bank-bill. This lan- guage describes a single offence.* The leading case as to experts on the subject of hand- writing is Moody v. Rowell.^ It was there held that though the opinion of an expert is competent on the question whether a signature is in a genuine or an imitated hand, yet such evidence is in general deserving of but little considera- tion, and is often wholly immaterial. This, then, is the ex- treme limit to which this species of testimony should be carried. In Commonwealth v. Webster,^ the witness was permitted to state his opinion that the writing produced was in the disguised hand of the prisoner, though it did not resemble his usual hand ; but he was not permitted to state his opinion whether it was written with a certain instrument that had been found in the defendant's laboratory. In Bacon V. Williams,^ the witness testified to certain physical appear- ances of a folded paper where the writing was across the fold, he having examined it with a microscope, and gave his opin- ion from the spreading of the ink whether it was written sub- sequent to the folding. He also testified as to the difference in the ink used in different parts of the writing, and as to the characteristics of the letters. These were particulars as to which a person of skill might enlighten a jury. But in Jewett V. Draper,^ the question was not as to the genuineness of the writing, the similarity of ink, or the action of the ink upon the paper. It was alleged that the words " Boston Mortgage 1 Per Shaw, C. J., in Hopkins w. ' Begina v. Ion, 2 Denison C. C. Commonwealth, 3 Met. 464. Com- 475. monwealth v. Starr, 4 Allen, 801, * Commonwealth v. Hall, 4 Al- 304. Post, p. 632 note. len, 805. 2 3 Greenl. Ev. § 110. « 17 Pick. 490. « 5 Cush. 301. ' 13 Gray, 525. « 6 Allen, 434. FORGERY AND COUNTERFEITING. 627 " were interpolated after the signature ; and the only facts spoken of as bearing upon the question are, their not being written in the usual place above the signature, but by the side of it, and the crowded and huddled appearance of the words. A juror of ordinary intelligence was as competent to judge of these facts and draw proper inferences from them as the witness could be. Skill in the detection of counter- feits could give no aid in determining whether the words or the signature were written first.^ It may be laid down as a general rule, that the opinion of witnesses possessing peculiar skill is admissible, whenever the subject-matter of inquiry is such that inexperienced per- sons are unlikely to prove capable of forming a correct judg- ment upon it, without such assistance ; ^ in other words, when it so far partakes of the character of a science or art, as to require a course of previous habit or study, in order to obtain a competent knowledge of its nature.^ "Whenever a case is brought before a magistrate for passing, or being possessed with intent to pass, any counterfeit bank- bill or coin, every step ought to be immediately taken by the magistrate to identify all the bills or pieces of coin which are to be the subjects of the complaint and prosecution. In order to do this, the magistrate should direct the person in whose possession he first finds them to put his private mark on each bill and piece of coin, in his presence ; so that the wit- ness can swear to the identity of the bills or pieces of coin, at all times afterwards, into whosesoever hands they may sub- sequently pass. The trouble and expense of a number of witnesses may be frequently saved by this precaution. For if the bills or pieces of coin have no private mark upon them by which they can be identified on the trial, every person into whose hands they may have passed must be produced in court to swear to their identity. ^ Commonwealth v. Eastman, 1 " M'Fadden t'. Murdock, Irish Cush. 189, 217, 218. Demerritt v. Rep. 1 C. L. 211. Randall, 116 Mass. 331. Amherst ' Ante, p. 209. 2 Taylor Ev. Bank v. Root, 2 Met. 522, 532. § 1418, 7th ed. 628 CRIMINAL LAW. 1. Forgery at Common Law. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, knowingly, falsely and fraudulently did make, forge and counterfeit a cer- tain will,^ purporting to be the last will of one J. N., which will is of the tenor following, that is to say &c., with intent thereby then and there to cheat and defraud one E. F. ; against the peace &c. 2. For Forging a Promissory Note. — Gen. Sts. ch. 162, §1.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously did make, forge and counterfeit a certain prom- issory note, which false, forged and counterfeit promissory note is of the tenor following, that is to say &c., with intent thereby then and there to injure and defraud ; contrary to the form of the statute in such case made and provided. 3. For uttering and Publishing as True a Forged Promissory Note. — Gen. Sts. ch. 162, § 2.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, had 1 Or a certain writing purporting nection "indorsed" merely means to he, describing the instrument as the "written upon." Commonwealth case requires. v. Butfcerick, 100 Mass. 12, 16. 2 In an indictment for forging a Rex v. Biggs, 1 Strange, 18. Ante, promissory note, the indorsement p. 623. Commonwealth v. Dallin- need not be set out, though it be ger, 118 Mass. 439. forged. It is no part of the note. From this precedent a,n indictment Commonwealth v. Adams, 7 Met. may readily be framed for forging 50. Commonwealth v. Ward, 2 any of the instruments mentioned in Mass. 397. In an indictment for the first section of the statute, forging the name of an indorser on ' This precedent may be used the back of a bill of exchange, an and adapted to all the cases of allegation that the acceptance of uttering and publishing forged in- the bill was indorsed on the face of struments which may be prosecuted the bill is sufficient. In this con- upon the first section of the statute. FORGERY AND COUNTERFEITING. 629 in his custody and possession a certain false, forged and counterfeit promissory note, tlie said C. D. then and there knowing the same to be false, forged and counterfeit, which false, forged and counterfeit promissory note is of the tenor following, that is to say &c. ; and that the said C. D. did then and there feloniously utter and publish the same as true, with intent thereby then and there to injure and defraud ; the said C. D. then and there knowing the said promissory note to be false, forged and counterfeit ; contrary to the form of the statute in such case made and provided. 4. For Counterfeiting a Bank-bill. — Gen. Sts. oh. 162, § 4. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., feloniously did falsely make, forge and counterfeit a certain false, forged and counterfeit bank- bill,i payable to the bearer thereof, purporting to be issued by the President, Directors and Company of the Merchants National Bank of Boston, then being an incorporated ^ banking company established in this State, to wit, at B. in the County of S., which said false, forged and counter- feit bank-bill is of the tenor following, that is to say &c.,^ 1 Throughout the general stat- tion that the bank is " a banking utes, the words "bank-note" and company established in said Com- " bank-bill " are used indifEerently, monwealth." Commonwealth v. and have the same meaning. A Simonds, 11 Gray, 306. bank-bill, therefore, is a bank-note, * It is sufficient to set out what and may be so described in an indict- constitutes the contract of the bill ; ment. Eastman v. Commonwealth, and that must be done truly and 4 Gray, 416. When a bank-bill precisely. But the number and may be described as a " promissory check letter of a bill, and the words note," compare Commonwealth v. and figures at the top or in the Carey, 2 Pick. 47 ; Commonwealth margin, need not be set out, when V. Woods, 10 Gray, 477; Common- the contract is complete without wealth V. Castles, 9 Gray, 123; them. Commonwealth v. Bailey, Commonwealth 0. Thomas, 10 Gray, 1 Mass. 62. Commonwealth ». 483; Commonwealth v. Paulus, 11 Stevens, 1 Mass. 324. Common- Gray, 305; Commonwealth v. Sim- wealth v. Taylor, 5 Cush. 605. ends, 14 Gray, 59; Commonwealth Commonwealth v. Wilson, 2 Gray, V. Dole, 2 Allen, 165. 70. Commonwealth v. Henry, 118 * This is a material averment, Mass. 460. An indictment is in- and is not supplied by the allega- sufficient if, in setting out a copy 630 CRIMINAL LAW. with intent thereby then and there to injure and defraud; contrary to the form of the statute in such case made and provided. S. For having in Possession at the Same Time Ten or More Coun- terfeit Bank-bills with Intent to Utter and Pass the Same as True. — Gen. Sts. oh. 162, § 5.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June, at B. in the County of S., had in his possession at the same time,^ ten similar false, forged and counterfeit bank-bills, payable to the bearer thereof, purporting to be issued by the President, Directors and Company of the SufPolk National Bank, then being an in- corporated banking company established in this State, to wit, at B. in the County of S., one of which said false, forged and counterfeit bank-bills is of the following tenor, that is to say ; ^ here insert a true copy of all and each of the ten bills ; after inserting a true copy of the first, go on to say, one other of which said false, forged and counterfeit lank-lills is of the following tenor, and so on with the whole of them ; the said C. D. then and there knowing each and every one of said bank-bills to be false, forged and counterfeit as afore- said, with intent then and there to utter and pass the same of the bill, the names of the cashier ^ It is necessary to aver that the and president are omitted; and the defendant had the bills in his pos- defect is not aided by an allegation session at the same time. An aver- that the jurors cannot give a more ment that he had them in his pos- particular description of it. Com- session on the same day is not monwealth v. Clancy, 7 Allen, 537. sufficient. Edwards v. Common- 1 The mere possession of counter- wealth, 19 Pick. 124. Common- feit coin or bank-bills, with intent wealth v. Butterick, 100 Mass. 12. to utter as true, is not an indictable Commonwealth v. Goldstein, 114 offence at common law. But an Mass. 272, 276. And see Rex v. act done, coupled with the posses- Williams, 2 Leach C. C. 529. sion and the intent to utter, rendered * If the defendant has retained the offence indictable. Dugdale v. possession of the bills, allege as The Queen, Dearsly C. C. 64 ; 1 follows: " Each and every one of El. & Bl. 435. Regina v. Fulton, which said false, forged and coun- Jebb C. C. 48. Rex v. Heath, terfeit bank-bijls were then and Russell & Ryan C. C. 184. Rex there retained and kept by the said V. Fuller, Russell & Ryan C. C. C. D., so that the jurors aforesaid 308. cannot set forth the tenor thereof." FORGERY AND COUNTERFEITING. 631 as true and thereby then and there to injure and defraud ; contrary to the form of the statute in such case made and provided. 6. For Passing a Counterfeit Bank-bill, i — Gen. Sts. oh. 162, § 6. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did utter and pass to one E. F. a certain false, forged and counterfeit bank-bill, payable to the bearer thereof, purporting to be issued by the President, Directors and Company of the Suffolk National Bank, then being an incorporated banking company established in this State, to wit, at B. aforesaid in the county aforesaid, which said false, forged and counterfeit bank-bill is of the tenor follow- ing, that is to say &c., with intent thereby then and there to injure and defraud the said E. F., the said C. D. then and there knowing the said bank-bill to be false, forged and counter- feit ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 7. For having in Possession a Counterfeit Bank-bill -with Intent to Pass the Same. — Gen. Sts. ch. 162, § 8.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord 1 An indictment on St. 1804, ch. &c. The provision in the statute is 120, § 4, which alleged that the made in the alternative ; it is the defendant had in his possession a guilty possession of the counterfeit counterfeit bank-bill, " with intent note, with the guilty purpose of to pass the same," was held suffl- rendering the same current as true, cient, without the averment of an or with intent to pass the same. intent to pass the same " as true." The latter clause does not add the Hopkins J). Commonwealth, 3 Met. words, to pass the same 'as true.' 460, 464. In this case, Chief Jus- The argument for the prisoner, tice Shaw said : " This indictment however, assumes that this must was founded on St. 1804, ch. 120, have been intended by the Legisla- § 4, which enacts, that if any per- ture, and therefore must be so son shall have in his possession charged in the indictment. But within this State any counterfeit we cannot perceive that such was bank-bill &c. , for the purpose of the plain intent of the Legislature, rendering the same current as true, when the words do not express it. or with intent to pass the same, One object of the statute may have knowing the same to be counterfeit been to prevent one dealer in forged 632 CRIMINAL LAW. at B. in the County of S., had in his possession a certain false, forged and counterfeit bill, in the similitude of the bills payable to the bearer thereof, and issued by the President, Directors and Company of the Boylston National Bank; then being a banking company established in this State, to wit, at B. in the County of S., which said false, forged and counter- feit bank-bill ^ is of the tenor following, that is to say &c. ; with intent then and there to utter and pass the same, the said C. D. then and there knowing the said bank-biU to be false, forged and counterfeit ; contrary to the form of the statute in such case made and provided. paper from passing counterfeit notes to another, as false notes, to enable and assist liim in defrauding others. This is the more probable from the use of the alternative words. The intent to render the same current 'as true,' is provided for by the former clause. If the other clause ■was intended only to prohibit the intent to pass the same ' as true,' it would add nothing to the former provision; it would only describe the same oflence in other words. But the omission of the words ' as true ' strengthens the conclu- sion that the Legislature intended further to prohibit the passing of counterfeit bank-bills ' as money,' or to be used or passed as money, by any person, at any rate of dis- count, or otherwise, whether, as between him and the immediate receiver, they were passed as true or not. There is a case on another clause of the same statute which leads to the same construction. Commonwealth v. Cone, 2 Mass. 132. " But then, it is said, this would give a greater effect to the word ' pass,' than that intended by the Legislature, and would bring within the statute any person who innocently, and for any purpose, should hand over a counterfeit bill to another. But we think this would not be a just consequence. The word 'pass,' as used in this statute, and generally, as applied to bank-notes, is technical, and means to deliver them as money, or as a known and conventional substitute for money. The word must be construed to have the same meaning when used in the statute as in the indictment ; and therefore, to sustain such an indictment, it must be proved that the party who is charged passed the counterfeit bill to another, for some valuable consideration or otherwise, as for money, or to be used as money, with the guilty purpose of defraud- ing the community " 1 The having in possession and uttering five false, forged and coun- terfeit promissory notes may be charged as one offence in one count. Commonwealth ». Thomas, 10 Gray, 483. As to the evidence, see Com- monwealth V. Price, 10 Gray,' 472. Commonwealth v. Woods, 10 Gray, 477. Commonwealth v. Thomas, ubi supra. Commonwealth v. Edgerley, 10 Allen, 184. FORGERY AND COUNTERFEITING. 633 8. For Making a Tool to be ITsed in Counterfeiting Bank-notes. Gen. Sts. cb. 162, § 9. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did engrave and make a certain plate, the same being then and there an instrument and implement adapted and designed for the forging and mak- ing of false and counterfeit notes, in the similitude of the notes issued by the President, Directors and Company of the Suffolk National Bank, then being a banking company legally established in this State, to wit, at B. in the County of S. ; contrary to the form of the statute in such case made and provided. 9. For having in Possession u Tool to be Used in Counterfeiting Bank-notes vrith Intent to Use the Same. — Gen. Sts. ch. 162, §9- The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at C. in the County of M., feloniously had in his possession a certain engraved plate, the same being then and there an instru- ment adapted and designed for the forging and making false and counterfeit notes, in the similitude of the notes issued by the President, Directors and Company of the Mer- chants National Bank, then being a banking company estab- lished in this State, to wit, at B. in the County of S., with intent then and there to use the same in forging and mak- ing false and counterfeit notes in the similitude of the notes issued by the said President, Directors and Company of the said Merchants Bank ; contrary to the form of the statute in such case made and provided. 10. For Counterfeiting Current Coin. — Gen. Sts. oh. 162, § 14. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did counterfeit a certain piece of silver coin current within 634 CRIMINAL LAW. this State, by the laws and usages thereof, called a dollar ; contrarj'- to the form of the statute in such case made and provided. 11. For having Ten Counterfeit Pieces of Coin -with Intent to Pass the Same. — Gen. Sts. ch. 162, § 14.1 The jurors &c. upon their oath present, that David R. Fuller of &c. on the fifteenth day of April in the year of our Lord at Lowell in the County of Middlesex, had in his custody and possession at the same time, ten simi- lar pieces of false and counteifeit coin of the likeness and similitude of the silver coin current within this State by the laws and usages thereof, called Mexican dollars, with in- tent then and there the said pieces of false and counterfeit coin to utter and pass as true, the said David R. Fuller then and there well knowing the same to be false and counterfeit ; contrary to the form of the statute in such case made and provided. 12. For having Less than Ten Counterfeit Pieces of Coin VTith Intent to Pass the Same as True. — Gen. Sts. ch. 162, § 15.2 The jurors &c. upon their oath present, that Josiah Stearns of &c. on the twenty-fifth day of June in the year of our 1 The courts of Massachusetts this statute, charging the defendant have jurisdiction of the oSence of with having more than ten pieces, having false money, counterfeited proof of his having less than ten in the similitude of any gold or will warrant a conviction, and the silver coin current hy law or usage convict may be sentenced under the withiu the State, knowing the same fifteenth section of the statute, to be false and counterfeit. Com- Commonwealth v. Griffin, 21 Pick, monwealth v. Fuller, 8 Met. 213. 523. See Rex v. Ellins, Russell & Commonwealth v. Tenney, 97 Mass. Ryan C. C. 188. 50. Commonwealth ». Felton, 101 ^ In Commonwealth v. Stearns, Mass. 204. 10 Met. 256, this indictment was The substance of the crime is held sufficient, without giving any the possession of counterfeit coin, further description of the dollar, with the guilty knowledge and in- And it was held to be supported by tent indicated, and this is a substan- proof that the defendant had in his tive offence, whether the number possession a coin, counterfeited in of pieces be over or under ten. the similitude of a Mexican dollar, Therefore, upon an indictment on with such intent and knowledge. FOHGBRY AND COUNTERFEITING. 635 Lord at Charlestown in the County of Middlesex, had in his custody and possession a certain piece of false and counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin, current within said Common- wealth, by the laws and usages thereof, called a dollar, with intent then and there to pass the same as true, the said Stearns then and there well knowing the same to be false and counterfeit ; contrary to the form of the statute in such case made and provided. 13. For uttering and Passing Counterfeit Coin. — Gen. Sts. oh. 162, § 15. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., a certain piece of counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin current within this State by the laws and usages thereof, called a dollar, did utter and pass as true to one E. F., the said C. D. then and there' well knowing the same to be false and counterfeit ; contrary to the form of the statute in such case made and provided. 14. For having in Possession Tools for Coining with Intent to Use the Same. — Gen. Sts. oh. 162, § 17.2 The jurors &c. upon their oath present, that Ezekiel S. Kent of &c. on the first day of October in the year of our Lord at B. in the County of S., did knowingly have in his possession a certain mould, pattern, die, puncheon, tool and instrument, adapted and designed for coining and mak- ing one side of a counterfeit coin in the similitude of- one side or half part of a certain silver coin, called a half-dollar, to wit, that side or half part thereof which represents a spread ^ An indictment which charged wealth ». Doherty, 10 Cush. 52, the defendant with uttering a coun- 54.. terfeit half-crown to M. A. W., ^ Under this section a person is " knowing the same to he false and punishable for having in his pos- counterfeit," omitting the words session an instrument adapted and "then and there," was held suffi- designed to make one side only of a cient. Regina v. Page, 2 Moody C. counterfeit coin. Commonwealth C. 219; 9 C. & P. 756. Common- v. Kent, 6 Met. 221. 636 CRIMINAL LAW. eagle, and has the words " United States of America," " half- dollar ; " said coin, called a half-dollar, being current by law and usage in this State and Commonwealth aforesaid, with intent then and there to employ the same mould, pattern, die, puncheon, tool and instrument, and cause and permit the same to be used and employed in coining and making such false and counterfeit coin as aforesaid ; contrary to the form of the statute in such case made and provided. 15. For Counterfeiting Foreign Coin.1 The jurors &c. present, that William Roberts of &c., on the first day of June in the year of our Lord at B. in the County of W., unlawfully, knowingly and without any law- ful authority or excuse, did make and cause to be made, cut and engraved two certain dies, upon one of which there was then made and impressed the figure, stamp and apparent resem- blance of one of the sides (to wit, the obverse side), of a certain silver coin (not the proper coin of this realm nor per- mitted to be current within the same), called a half-dollar, being a silver coin of a certain foreign country, to wit, Peru in South America, in parts beyond the seas, and in and upon ^ Regina v. Roberts, Dearsly C. purpose, was the offence of making C. 539. In this case, the prisoner, counterfeit foreign coin within the with the intent to coin counterfeit statute ; and that even making a haK-dollars of Peru, caused to be few specimens to put in a cabinet made and procured in England dies would be so also ; and that the pro- necessary for the purpose of making curing the dies was an act in further- such counterfeit coin, but which ance of the criminal purpose suffi- would not alone produce it ; intend- ciently proximate to the offence, and ing to procure the rest of the nee- sufficiently showing the criminal essary apparatus for the purpose intent, to support an indictment for and with the intention of using the a misdemeanor. Affirming the law entire apparatus, when procured, in as laid down in Begina v. Eagleton, making the counterfeit coin. He Dearsly C. C. 537, 538, that the intended to make only a few of the mere intention to commit a misde- counterfeit coins in England, by meanor is not criminal. Some act way of trying whether the apparatus is required; but all acts towards would answer, before sending it out committing a misdemeanor are not to Peru, to be there used in making indictable. Acts remotely leading counterfeit coin. The court were towards the commission of the of opinion that the making a few offence are not to be considered as specimens in England, to ascertain attempts to commit it, but acts im- whether they would answer the mediately connected with it are. FORGERY AND COUNTERFEITING. 637 the other of which said dies there was then made and im- pressed the figure, stamp and apparent resemblance of the other side, to wit, the reverse side, of the said silver coin of the said foreign state, with intent in so doing to use the said dies, and by means of the said dies so made as aforesaid, fe- loniously and contrary to the form of the statute in such case made and provided to make, coin and counterfeit divers pieces of coin, not being the proper coin of this realm, nor permit- ted to be current within the same, but resembling and look- ing like, and intended to resemble and look like, the said silver coin called a half-dollar of the said foreign country. And so the jurors aforesaid upon their oath aforesaid do say, that the said William Roberts in manner and form aforesaid, unlawfully did attempt feloniously to make, coin and coun- terfeit certain coin not the proper coin of this realm nor per- mitted to be current within the same, but resembling silver coin of the said foreign country, to wit, Peru aforesaid ; against the peace &c. Second count like first count, only substituting the words scored under for those scored under in the first count. Un- lawfully &c. did make two certain dies, one of which would make and impress the figure, stamp and apparent resemblance of one side ^ &c., and the other of which &c. Third count same as first count, substituting the words " did obtain and procure " for the words " did make and cause to be made," referring to dies in the first count. Fourth count same as second, substituting the words " did obtain and procure " for the words " did make and cause to be made," referring to dies in second count. Fifth Count. — And the jurors &c., that the said William Roberts afterwards, to wit, on the day and year aforesaid, unlawfully did attempt and endeavor feloniously and against the form of the statute in that case made and provided, to make, coin and counterfeit certain coin not being the proper coin of this realm, nor permitted to be current within the same, but resembling and looking like, and intended to ^ The words scored under in the original case are here printed in italics. 638 CRIMINAL LAW. resemble and look like and pass as certain silver coin of a certain foreign state and country, to wit, Peru in South America, in parts beyond the seas, called half-dollars, by then and there, to wit, on the day and year aforesaid and at B. aforesaid, unlawfully and without any lawful author- ity or excuse, making and causing to be made, and obtain- ing and procuring and taking into the possession of him the said William Roberts, two certain dies (upon one of which there was made and impressed, and one of which would make and impress and was intended to make and impress the figure, stamp and apparent resemblance of one side of the said silver coin of the said foreign state and country, and upon the other of which said dies there was made and impressed, and the other of which said dies would make and impress and was intended to make and impress the figure, stamp and apparent resemblance of the other side of the said silver coin), he the said William Roberts then and there purposing and intending to use the said dies, and therewith feloniously to make, coin and counterfeit the said coin as aforesaid, and also by then and there procuring and obtaining and taking into the possession of him the said Wil- liam Roberts, divers, to wit, two galvanic batteries and other galvanic apparatus and other apparatus suitable and necessary for the purpose of making, coining and counterfeiting the said coin as aforesaid, and also by then and there procuring and obtaining and taking into the possession of him the said William Roberts, divers large quantities of acids and other chemical substances suitable and necessary for the purpose last aforesaid ; against the peace &c. Sixth Count. — Did attempt and endeavor feloniously to make, coin and counterfeit certain coin not the proper coin of this realm, nor permitted to be current within the same, but intended to resemble and look like the said silver coin, to wit, the coin called half-dollars of the said country, to wit, Peru aforesaid ; against the peace &c. FORGERY AND COUNTERFEITING. 639 16. Indictment for Forging and Uttering a Certificate of Character with a View to be Appointed a Constable in the Police Force of the City of London.^ The jurors &c. upon their oath present, that heretofore and before the committing of the offence hereafter in this count mentioned, a certain number of men had been duly- appointed to be a police force for the City of London, under and in pursuance of the provisions of an Act made and passed &c., entitled " An Act " &c., and that one James Fraser had been appointed, and at the time of the commit- ting the offence hereafter in this count mentioned, was the Commissioner of the said police force of the City of London, under and in pursuance of the said Act ; and that it was the duty of the said James Fraser, as such Com- missioner aforesaid, from time to time to appoint fit and proper men, and men of good character, to be and form part of the said police force of the City of London, and to be sworn in as constables. And the jurors aforesaid upon their oath aforesaid do further present, that one Mark Timony, on the twenty-sixth day of April in the year of our Lord at L. in the County of S., well knowing the premises, and that he the said Mark Timony was not a person of good character, and was not a fit and proper person to be appointed to form part of the said police force of the said city, and to be sworn in as a constable, and intending to deceive the said James Fraser, so being such Commissioner as aforesaid, and to cause him to believe that he the said Mark Timony was a person of good character, and that he the said Mark Timony had been in the service of one George Hookins in the capac- ity of porter, and that the conduct of the said Mark Timony had been good during the time he was in the service of the said George Hookins, and that he the said Mark Timony was a fit and proper person to be appointed to form part of the said police force of the said city and to be sworn in as con- stable, and to induce the said James Fraser to appoint him the said Mark Timony to be one of the said police force and to be sworn in as a constable as aforesaid, unlawfully, wil- 1 10 Cox C. C. Appendix, ii. 640 CRIMINAL LAW. fully, falsely, knowingly and maliciously did forge and coun- terfeit, and cause and procure to be forged and counterfeited, a certain certificate of the character of him the said Mark Timony, well knowing the same to be false and untrue, which said false, forged and counterfeited certificate is in the words and figures following, that is to say : here set out an exact copy. With intent then and there in so doing to injure, prejudice, deceive and defraud ; against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that heretofore, and before the time of the committing of the offence hereafter in this count mentioned, the said Mark Timony had applied to the Commis- sioner of the said City of London Police Force, and to one Joseph Duddy, one of the inspectors of the said City of Lon- don Police Force, to be appointed a constable of the police force, and at the time of the committing the said offence here- after in this count mentioned the said Mark Timony then was a candidate for the situation of constable of said police force. And the jurors aforesaid upon their oath aforesaid do further present, that before the said Mark Timony could obtain the said situation, it was necessary for him the said Mark Timony to obtain and to produce and show to James Fraser, the Commissioner of the said police force, a certificate of character from the last employer of him the said Mark Timony, as to the qualifications and character of the said Mark Timony, and as to his fitness for the situation of con- stable of the said police force. And the jurors aforesaid upon their oath aforesaid do further present, that the said Mark Timony heretofore, to wit, on the said twenty-sixth day of April in the year aforesaid, at L. aforesaid in the county aforesaid, intending by false, fraudulent and deceitful representations to procure himself to be appointed to the said situation of constable, and to obtain the pay and emoluments of the said ofiice, unlawfully, falsely, wilfully, knowingly and deceitfully did make, forge and counterfeit, and cause and procure to be made, forged and counterfeited, a certain writing and certifi- cate to the likeness and similitude of and as and for a genuine writing of and under the hand of one George Hookins of Croydon, with intent in so doing to injure, prejudice, deceive FORGERY AND COUNTERFEITING. 641 and defraud, which said forged writing and certificate is as follows, that is to say: set out an exact copy; against the peace &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that heretofore, and before the committing of the offence hereafter in this count mentioned, a certain number of men had been duly appointed to be a police force for the City of London, under and in pursuance of the provisions of an Act made and passed &c., entitled "An Act" &c., and that one James Fraser had been ap- pointed, and at the time of the committing the offence hereafter in this coiint mentioned, was the Commissioner of the said police force of the City of London, under and in pursuance of the said Act, and that it was the duty of the said James Fra- ser, as such Commissioner as aforesaid, from time to time to appoint fit and proper men, and men of good character, to be and form part of the said police force of the said City of Lon- don, and to be sworn in as consitables. And the jurors afore- said upon their oath aforesaid do further present, that the said Mark Timony, afterwards, to wit, on the eleventh day of May in the year aforesaid, at L. aforesaid in the county aforesaid, well knowing the premises, and that he the said Mark Timony was not a person of good character and was not a fit and proper person to be appointed to form part of the said police force of the said city, and to be sworn in as a candidate, and intending to deceive the said James Fraser, so being such Commissioner as aforesaid, and to cause him to believe that he the said Mark Timony was a person of good character, and that he the said Mark Timony had been in the service of the said George Hookins in the capacity of porter, and that the conduct of the said Mark Timony had been good during the time he was in the service of the said George Hookins, and that he the said Mark Timony was a fit and proper person to be appointed to form part of the said police force of the said city, and to be sworn in a constable, and to induce the said James Fraser to appoint him the said Mark Timony to be one of the said police force, and to be sworn as constable as aforesaid, a certain false, forged and counterfeited certificate of character of him the said Mark 41 642 CRIMINAL LAW. Timony, unlawfully, knowingly, wilfully and deceitfully did pronounce, publish and utter to the said James Fraser, so being such Commissioner as aforesaid, as a true genuine cer- tificate of the character of him the said Mark Timony, and which said false, forged and counterfeited certificate was and is in the words and figures following, that is to say : With intent then and there in so doing to injure, prejudice, deceiye and defraud, he the said Mark Timony, at the time he so pronounced, published and uttered the said last-mentioned false, forged and counterfeited certificate as aforesaid, well knowing the same to be false and untrue, to the evil exam- ple of all others in the like case offending, and against the peace &c. Fourth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that heretofore, and before the time of the committing of the offence hereafter in this count mentioned, the said Mark Timony had applied to the Com- missioner of the said City of London Police Force, and to the said Joseph Duddy, one of the inspectors of the City of Lon- don Police Force, as aforesaid, to be appointed a constable of the said police force, and at the time of the committing the said offence heretofore in this count mentioned, the said Mark Timony then was a candidate for the situation of constable of the said police force. And the jurors aforesaid upon their oath aforesaid do further present, that before the said Mark Timony could obtain the said situation it was necessary for him the said Mark Timony to obtain and to produce and show to James Fraser, the said Commissioner of the said police force, a certificate of character from the last employer of him the said Mark Timony as to the qualifications and character of the said Mark Timony, and as to his fitness for the situation of constable of the said police force. And the jurors aforesaid upon their oath aforesaid do further present, that the said Mark Timony, heretofore, to wit, on the said eleventh day of May in the year aforesaid, at L. aforesaid in the county aforesaid, intended by false, fraudulent and de- ceitful representations to procure himself to be appointed to the situation of constable, and to obtain the pay and emolu- ments of the said office a certain false, forged and counter- FORGfERT AND COUNTERFEITING. 643 feited writing and certificate to the likeness and similitude of and as and for a genuine writing of and under the hand of the said George Hookihs of Croydon, unlawfully, knowingly, wilfully and deceitfully did pronounce, publish and utter to the said James Eraser, so being such Commissioner as afore- said, as a true and genuine certificate of the character of him the said Mark Timony, which said false, forged and counter- feited certificate was and is in the words and figures follow- ing, that is to say : With intent then and there in so doing to injure, prejudice, deceive and defraud, he the said Mark Tim- ony, at tlie time he so pronounced, published and uttered the said last-mentioned false, forged and counterfeited certificate as aforesaid, well knowing the same to be forged and coun- terfeited, and well knowing the same to be false and untrue ; against the peace &c. 644 ■ CRIMINAL LAW. CHAPTER LII. FORNICATION. If there is an allegation in an indictment for rape that the woman of whom it is alleged that the man had carnal knowl- edge was not, at the time laid in the indictment, his wife, a conviction for fornication may be sustained. Such an aver- ment has uniformly been introduced into indictments for this offence, in this Commonwealth. The same reasons, on which it has been adjudged that an indictment for adultery is bad which does not allege that the persons who committed the offence were not married to each other, apply to the ofPence of fornication.^ Indictment for Fornication. — Gen. Sts. ch. 165, § 8. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did commit fornication with one J. N., by then and there hav- ing carnal knowledge o"f the body of the said J. N., the said C. D. being then and there a single and unmarried man, and the said J. N. being then and there a single and unmarried woman, and the said C. D. and J. N. not being then and there lawfully married to each other ; contrary to the form of the statute in such case made and provided. 1 Commonwealth v. Murphy, 2 243. Commonwealth v. Sqiuires, Allen, 163. Gen. Sts. ch. 172, § 16. 97 Mass. 61. Moore ». Commonwealth, 6 Met. FRAUDULENT CONVEYANCE OP PERSONAL PROPERTY. 645 CHAPTER LIII. FRAUDULENT CONVEYANCE OE REAL AND PERSONAL PROPERTY. Fraudulent Conveyance of Personal Property. . The Gen. Sts. ch. 161, enact : — Sect. 61. Whoever, with a fraudulent intent to place mort- gaged personal property beyond the control of the mortgagee, removes or conceals, or aids or abets in removing or conceal- ing, the same, and any mortgagor of such property who assents to such removal or concealment, shall be punished by fine not exceeding one thousand dollars, or by imprisonment in the jail not exceeding one year. Sect. 62. If a mortgagor of personal property sells or con- veys the same or any part thereof, without the written consent of the mortgagee, and without informing the person to whom he sells or conveys, that the same is mortgaged, he shall be punished by fine not exceeding one hundred dollars, or by imprisonment in the jail not exceeding one year. Sect. 63. If a hirer or lessee of personal property sells or conveys the same, or any part thereof, without the written consent of the owner or lessor, and without informing the person to whom the same is sold or conveyed, that it is so hired or leased, he shall be punished by fine not exceeding one hundred dollars, or by imprisonment in the jail not exceeding one year. Sect. 64. Whoever, holding any collateral security depos- ited with him for the payment of a debt which may be due him, sells, pledges, loans, or in any way disposes of, the same, before such debt becomes due and payable, and without the authority of the party depositing the same, shall be punished by fine not exceeding five hundred dollars, or imprisonment in the state prison or jail not exceeding two years. The St. 1870, ch. 261, entitled " An Act concerning con- ditional sales of personal property," enacts that " Whoever 646 CRIMINAL LAW. being in possession of any personal property, received upon a written and conditional contract of sale, shall, with intent to defraud (before performance of the conditions precedent to acquiring the title to such property), sell, convey, con- ceal, or aid in concealing the same, shall be punished by fine not exceeding one hundred dollars, or by imprisonment not exceeding one year." In Commonwealth v. Damon,^ which was an indictment on Gen. Sts. ch. 161, § 62, the ruling of the court below was, that the defendant might be convicted unless both requisi- tions of the statute had been complied with ; that is, that to justify such a sale, the mortgagor must not only have the writ- ten consent of the mortgagee, but must also inform the pur- chaser of the existence of the mortgage. But said the court, "this was contrary both to the language and to the reason of the statute. If the mortgagor has the written consent of the mortgagee, he may convey a perfect title to the purchaser ; and neither the mortgagee nor the purchaser will suffer injury from such a sale. If he has no such consent, but discloses to the purchaser the state of his title, the purchaser will not be deceived ; and that he may properly do, notwithstanding the existence of the mortgage." The disposal of collateral security by the holder, before the debt of which it was deposited with him to secure the pay- ment becomes due and payable to him, for which a punishment is provided in the Gen. Sts. ch. 161, § 64, is not indictable as embezzlement, the punishment of which is made the same as that for simple larceny.^ 1. Indictment for Concealing Mortgaged Personal Property. Gen. Sts. ch. 161, § 61? That Alexander Strangford of &c. and Andrew Strangford of &c. on the first day of June in the year of our Lord at Easthampton in the County of Hampshire, with a fraudu- lent intent to place mortgaged personal property beyond the control of the mortgagee, then and there from the shop there 1 105 Mass. 580. " Commonwealth v. Strangford, 2 Commonwealth v. Butterick, 112 Mass. 289. 100 Mass. 2, 10. Gen. Sts. ch. 161, §35. FRAUDULENT CONVEYANCE OF PERSONAL PROPERTY. 647 situate, occupied by the said Alexander and Andrew Strang- ford, a large quantity of ready-made clothing, the whole of the value of five hundred dollars, a large quantity of dry goods, the whole of the value of five hundred dollars, a large quantity of boots and shoes, the whole of the value of five hundred dollars, and a large quantity of hats and caps, the whole of the value of five hundred dollars, which said per- sonal property the jurors cannot more particularly describe, all of which property was of the goods and chattels of the said Alexander and Andrew, and had been mortgaged, and then and there stood mortgaged by the said Alexander and Andrew, to one Horace Matthews, by virtue of a mortgage dated the fifteenth day of July in the year of our Lord which said mortgage was then and is now unpaid and in full force, did fraudulently and unlawfully remove and conceal, fraudulently intending thereby to place the said personal property beyond the control of the said Horace Matthews, the mortgagee aforesaid, and him the said Horace Matthews to cheat and defraud ; contrary to the form &c.^ 2. Fraudulent Conveyance. — Property held upon Conditional Contract. — St. 1870, ch. 261.^ That C. D. of &c. on the first day of June in the year of oi;r Lord one thousand eight hundred and seventy- ^ Gray, C. J. : " In the present the want of greater particularity in case, the offence charged is a fraud- the description, if it would otherwise ulent removal and concealment of have heen required. Common- the defendant's own personal prop- wealth v. Webster, 5 Cush. 295, erty, with intent to place it beyond 323. Commonwealth v. Sawtelle, the control of the mortgagee. The 11 Cush. 142, 144. Commonwealth punishment does not depend on the v. Stoddard, 9 Allen, 280. Com- amount or value of the property, monwealth v. Sherman, 13 Allen, Gen. Sts. ch. 161, § 61. Beside the 248. People v. Kingsley, 2 Cowen, statement of quantity and value, 522. Taking the whole indictment which is objected to as too indefl- together, it clearly identifies the of- mte,theindictmentfurtherdescribes fence, and gives the defendants full the property as having been mort- notice of the charge which they gaged by the defendants to a person are required to meet." 112 Mass. named, and by a deed of a specified 292. date, and alleges that the jurors ^ Counts on other sections of the cannot more particularly describe statute can readily be framed from it. This last allegation excuses these precedents. 648 CRIMINAL LAW. at Boston aforesaid in the county aforesaid and within the judicial district 'of said court, was in possession of certain personal property, to wit, all of the value of dollars of the personal property of one E. F., and that the said personal property was before that time received by the said G. D. upon a certain written and conditional contract of sale, duly executed and delivered by the said E. F. to the said C. D., and that the said C. D. then and there held said personal property upon and by virtue of said written and con- ditional contract of sale, and that the said C. D. did then and there, with intent to defraud, sell and convey to one J. N. the said personal property so held as aforesaid, before per- formance of the conditions precedent to acquiring the title to said property ; contrary to the form of the statute in such case made and provided. Fraudulent Conveyance of Real Property. It has been deemed advisable to reprint the case of Regina V. Smith,! which is the only one founded on St. 13 Eliz. eh. 5, § 3, that has been reported. This statute is part of our common law.^ An indictment on the 13 Eliz. ch. 5, § 3, alleged that the prisoners devised' and prepared a certain feigned, covinous and fraudulent conveyance of certain lands, and unlawfully, fraudulently &c., did execute the said conveyance. It was urged in arrest of judgment that the section did not create an indictable offence ; and that, if it did, an indictment could not be preferred until after a recovery of damages in a civil action ; and that this indictment was bad for not stating in what respect the conveyance was fraudulent. Maulb, J., held that the Act created an indictable offence, and that an indictment might be preferred before an action was brought, and that it was not necessary to show in what respect the conveyance was fraudulent. 1 6 Cox C. C. 31, A.D. 1852, " 1 Bishop Crim. Law, § 572 a, before Mr. Justice Maule. 6th ed. FRAUDULENT CONVEYANCE OP REAL PROPERTY. 649 3. Indictment for a Fraudulent Conveyance. — 13 Eliz. ch. 5, § 3. The defendants were charged upon the following indict- ment under the third section of the 13 Eliz. ch. 6, for making a fraudulent conveyance.^ The jurors &c. upon their oath present, that heretofore and before the committing of the offence hereinafter next men- tioned, to wit, on the first day of January in the year of our Lord 1850, and on divers other days and times heretofore, William Smith hereinafter mentioned had committed and caused to be committed near to and in the neighborhood of certain, to wit, twenty-two messuages, of and belonging to one T. C. M., to wit, at West Hill Grove in the Parish of Bat- tersea in the County of Surrey, divers nuisances and injurious acts, matters and things, to the great damage and injury of the said T. C. M., to wit, to the amount of X300 and upwards. Wherefore the said T. C. M. heretofore, to wit, on the twenty- seventh day of January in the year of our Lord 1851, did commence a certain action on the case against the said W. S., to wit, in the court of our Lady the Queen, before the Queen herself, whereby to recover from the said W. S. the lawful damages sustained by the said T. C. M. for and in respect of the said nuisances and injurious acts, matters and things aforesaid. That thereupon such proceedings were had and taken in the said action, that afterwards, to wit, at the assizes holden at Kingston-on-Thames in and for the County of Surrey afore- said, the said action came on to be tried, and then and there, before the Right Honorable John Lord Campbell, and the Right Honorable Sir James Parke, Knight, then and there being her Majesty's justices assigned to take the assizes in and for the said county, was by a certain jury of the country in due form of law tried, upon which said trial the said jury ^ This indictment is set out at attempt has heen made to render some length, as it is the only form this section the basis of a criminal of the kind to he found in the books, prosecution, a fact somewhat re- It was drawn, after much considera- markable, considering the extensive tion, by the Deputy Clerk of Assize nature of its operation. The facts ontheHome Circuit, and is believed of the case are sufBoiently shown to be the only instance in which an by the indictment itself. 650 CRIMINAL LAW. did find and say upon their oaths, that the said W. S. was guilty of the grievances, nuisances and injurious acts, mat- ters and things aforesaid ; and assessed the damages of the said T. C. M. on occasion thereof, over and above his costs and charges by him about his said suit in that behalf ex- pended, to j£300, and assessed those costs and charges at forty shillings. That during the pendency of the said suit, to wit, from the commencement of the said suit until the twenty-eighth day of March in the year of our Lord 1851, the said W. S. was seised in his demesne as of fee of and in cer- tain lands, hereditaments and premises within the said county, to wit, at the Parish of Battersea in the County of Surrey.* * That the said W. S. of the Parish of Wandsworth in the county aforesaid, and S. Everett of the same place, devising, intending and contriving to injure, prejudice and aggrieve, the said T. C. M., and to defraud and deprive him of any damages and costs to be recovered in the said action while the same was so pending as aforesaid, and immediately before the same came on for trial as aforesaid, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, at the parish last aforesaid in the county aforesaid, did devise, contrive and prepare and caused to be prepared, a certain feigned, covinous and fraudulent alienation and conveyance, whereby the said W. S. expressed and declared to appoint and grant to the said S. E., the lands, tenements and here- ditaments aforesaid, to hold to him the said S. E. and his heirs forever. That the said W. S. and S. E., fraudulently devising, con- triving and intending as aforesaid, on the day and year afore- said, at the parish aforesaid in the county aforesaid, unlawfully, knowingly, wilfully, fraudulently, covinously and injuriously did execute and become parties to the said alienation and con- veyance, and then and there wittingly and willingly did put in ure, avow, maintain, justify and defend the same aliena- tion and conveyance, as true, simple, and done and made bonS, fide and upon good consideration, and as a conveyance and alienation whereby the said W. S. had really and bonS. fide FRAUDULENT CONVEYANCE OP EEAL PROPERTY. 651 appointed and granted to the said S. E. the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs forever. "Whereas, in truth and in fact, the said alienation and conveyance was not nor is it boni fide. And whereas the truth was and is, that the same was so devised, contrived and executed as aforesaid, of malice, fraud, collu- sion and guile, and to the end, purpose and intent to delay and hinder the said T. C. M. of and in his said just and law- ful action and the said damages by reason of the premises ; to the great let and hinderance of the due course and execution of law and justice, to the great injury of the said T. C. M., against the form of the statute in such case made and pro- vided and against the peace of our said Lady the Queen, her crown and dignity. Second Oount, as in the first count to the asterisks, and con- tinued thus: That the said W. S. and S. E., devising and intending and contriving to injure, prejudice and aggrieve the said T. C. M., and to defraud and deprive him of any damages and costs to be recovered in the said action while the same was so pending as aforesaid, and immediately before the same came on for trial as aforesaid, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, at the Parish of Wandsworth in the county aforesaid, did devise, contrive and prepare and cause to be prepared, a fraudulent alienation and conveyance of the lands, tenements and here- ditaments aforesaid. That the said W. S. and S. E., fraudu- lently devising, contriving and intending as aforesaid on the day and year aforesaid, at the parish last aforesaid in the county aforesaid, unlawfully, knowingly, wilfully, fraudu- lently, covinously and injuriously did execute and become parties to the said alienation and conveyance, and then and there wittingly and willingly did put in ure, avow, maintain, justify and defend the same alienation and conveyance, as true, simple, and done and made bonS, fide and upon good con- sideration, and as a conveyance and alienation, whereby the said W. S. had really and bonS, fide aliened and conveyed to the said S. E. the lands, tenements and hereditaments afore- said, to hold to him the said S. E. and his heirs forever ; whereas, in truth &c. as in first count. 652 CRIMINAL LAW. Third Count, as in the first count to the asterisks : That dur- ing the pendency of the said action, and in anticipation of the said verdict, to wit, on the day and year last aforesaid, a cer- tain feigned, covinous and fraudulent alienation and convey- ance had been devised, contrived, prepared and executed by and between the said W. S. and the said S. E., whereby the said W. S. was expressed and declared to appoint and grant and make over to the said S. E., the lands, tenements and hereditaments aforesaid, to the said S. E. and his heirs for- ever. That the said W. S. and S. E. devising, contriving and intending to injure, prejudice and aggrieve him, and to deprive him of the said damages and costs in the said action so found as aforesaid, afterwards, to wit, on the twenty-sixth day of April in the year of our Lord 1851, at the Parish of Wands- worth in the county aforesaid, unlawfully, wittingly and willingly did put in ure, avow, maintain, justify and defend the same alienation and conveyance, as true, simple, and done and made bonS, fide and upon good consideration, and as a conveyance and alienation, whereby the said W. S. had really and bon§, fide appointed, granted and made over to the said S. E. the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs forever ; whereas, in truth and in fact &c. Fourth Count, as in the first count to the asterisks : That dur- ing the pending of the said action and in anticipation of the said verdict, to wit, on the day and year last aforesaid, a cer- tain feigned, covinous and fraudulent alienation and convey- ance had been devised, contrived, prepared and executed by and between the said W. S. and the said S. E., of the lands, tenements and hereditaments aforesaid, to the said S. E. and his heirs forever. That the said W. S. and S. E., devising, contriving and intending to injure, prejudice and aggrieve the said T. C. M., and defraud and deprive him of the said dam- ages and costs in the said action so found as aforesaid, after- wards, to wit, on the twenty-sixth day of April in the year of our Lord 1851, at the Parish of Wandsworth aforesaid in the county aforesaid, unlawfully, wittingly and willingly did put in ure, avow, maintain, justify and defend the same aliena- tion and conveyance, as true, simple, and done and made bonS FRAUDULENT CONVEYANCE OF REAL PROPERTY. 653 fide and upon good consideration, and as a conveyance and alienation, whereby the said W. S. had really and bonS, fide granted, bargained, aliened, released, conveyed and made over to the said S. E. the lands, tenements and hereditaments aforesaid, to hold to him the said S. E. and his heirs for- ever &c. Fifth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. S. and the said S. E., and divers evil-disposed persons intending to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, at the Parish of Wandsworth in the county aforesaid, did amongst themselves conspire, combine, confed- erate and agree together, fraudulently, maliciously and covin- ously to delay, hinder and defraud the said T. C. M". of all such damages which he might thereafter recover against the said W. S. in a certain action which was then pending in the court of our said Lady the Queen, before the Queen herself, wherein the said T. C. M. was plaintiff, and the said W. S. was defendant, to the evil example of all others in the like case offending, against the peace &c. Sixth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. S. and the said S. E., and divers evil-disposed persons intending to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, at the Parish of Wandsworth in the county aforesaid, did amongst themselves conspire, combine, confed- erate and agree together, fraudulently, maliciously and covin- ously to delay, hinder and defraud the creditors of the said W. S. ; against the peace &c. Seventh Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. S. and the said S. E., and divers evil-disposed persons intending to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, at the Parish of Wandsworth in the county aforesaid, did amongst themselves conspire, combine, confed- erate and agree together, fraudulently, maliciously and covin- ously to cheat and defraud the said T. C. M. of the fruits, and of all benefits and advantages of any execution or executions which he might thereafter lawfully issue or cause to be issued 65J: CRIMINAL LAW. against the lands or tenements of the said W. S. ; against the peace &e. HigJith Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said W. S. and the said S. E., and divers evil-disposed persons intending to injure the said T. C. M., on the twenty-eighth day of March in the year of our Lord 1851, at the Parish of Wandsworth in the county aforesaid, did amongst themselves conspire, combine, confed- erate and agree together, fraudulently, maliciously and covin- ously to cheat, injure, impoverish, prejudice and defraud the said T. C. M. ; against the peace &c. Ninth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that heretofore and before and at the time of the commission of the offence hereinafter next mentioned, to wit, on the twenty-eighth day of March in the year of our Lord 1851, a certain action on the case was pend- ing between the said W. S. and the said T. C. M., to wit, in her Majesty's Court of Queen's Bench, at Westminster, whereby the said T. C. M. sought to recover from the said W. S. damages for certain nuisances and injurious acts, mat- ters and things alleged to have been done and committed to the injury of the said T. C. M. That the said W. S. and S. E., and divers evil-disposed persons, whilst the said action was so pending as aforesaid, to wit, on the day and year afore- said, at the parish last aforesaid, in the county aforesaid, un- lawfully did conspire, combine, confederate and agree together, by divers unlawful, false, fraudulent and indirect ways, means, devices, stratagems and contrivances, to impede, hinder, pre- vent and delay the said T. C. M. in the said action, and in the prosecution thereof, and in the recovery of damages for the nuisances and injurious acts, matters and things aforesaid, to the great injury of the said T. C. M. ; against the form of the statute in such case made and provided, and against the peace &c. Locke (for the defence) moved, after verdict, in arrest of judgment, on the ground that no proceeding by indictment was contemplated by the statute. The third section was in these words : " That all and every the parties to such feigned, covinous or fraudulent feoffment, gift, grant, alienation, bar- FRAUDULENT CONVEYANCE OP REAL PROPERTY. 655 gain, conveyance, bonds, suits, judgments, executions and other things before expressed, and being privy and knowing of the same or any of them, which at any time after the tenth day of June next coming, shall wittingly and willingly put in ure, avow, maintain, justify or defend the same or any of them, as true, simple, and done, had, or made bonS, fide, and upon good consideration ; or shall alien or assign any the lands, tenements, goods, leases or other things before men- tioned, to him or them conveyed as is aforesaid, or any part thereof, shall incur the penalty or forfeiture of one year's value of the said lands, tenements and hereditaments, leases, rents, commons or other profits, of or out of the same, and the whole value of the said goods and chattels, and also of so much moneys as are or shall be contained in any such covin- ous and feigned bond ; the one moiety whereof to be to the Queen's Majesty, her heirs and successors, and the other moiety to the party or parties grieved by such feigned and fraudulent feoffment, gift, grant, alienation, bargain, convey- ance, bonds, suits, judgments, executions, leases, rents, com- mons, profits, charges and other things aforesaid, to be recovered in any of the Queen's Courts of Record by action of debt, bill, plaint or information, wherein no essoign, protec- tion or wager of law shall be admitted to the defendant or defendants, and also being thereof lawfully convicted, shall suffer imprisonment for one half year, without bail or main- prise." The offence, if any, of which the defendants have been guilty, is entirely created by this statute, and the section, after stating what the offence is, declares that for committing it the offender shall incur a penalty or forfeiture of one year's value, to be recovered by action. There is no mention what- ever of indictment, but there is a reference to a civil proceeding. The rule with respect to the mode of proceeding where new offences are created by statute is laid down in Russell, on Crimes,! in the following terms : " Where the offence was punishable by a common-law proceeding, before the passing of a statute which prescribes a particular remedy by a summary proceeding, then either method may be pursued, as the par- 1 1 Russell on Crimes, 88, 4th ed. ; 194, 5th ed. 656 CRIMINAL LAW. ticular remedy is cumulative, and does not exclude the com- mon-law punishment; but where the statute creates a new offence by prohibiting and making unlawful, any thing which was lawful before, and appoints a particular remedy against such new offence by a particular sanction and particular method of proceeding, such method of proceeding must be pursued and no other. The mention of other methods of proceeding impliedly excludes that by indictment ; unless such methods of proceeding are given by a separate and sub- stantive clause." There is another objection to this indictment, that it only states generally that this deed was fraudulent, not stating why or in what respect it was so. In Peck v. The Queen,^ it was held that a count charging that the defend- ants unlawfully conspired to defraud divers persons who should bargain with them for the sale of merchandise, of great quantities of such merchandise without paying for the same, with intent to obtain to themselves money and other profit, was bad, for not showing by what means the parties were to be defrauded. James, Q. C. (with whom was Hawkins for the prosecution), was not called upon. Maule, J. As to the first point, that the section of the act of Parliament does not speak of indictment, I think it clear that that proceeding is the proper one. The section mentions the offence, and then with reference to the punishment de- clares that the " offender being thereof convicted, shall suffer imprisonment for one half year." That must mean "being convicted thereof" before some competent tribunal. If the statute had pointed out some other means, for instance, on conviction before a justice of the peace on a summary hearing, it would probably have restricted proceedings to that par- ticular course. It is true that the statute does mention a civil action; but that has nothing whatever to do with the half year's imprisonment, but merely has reference to the recovery of damages by action, in any of the courts at Westminster. It surely could never be contended that the meaning of the 1 9 Ad. & El. 686; 1 Per. & Dav. 598. Commonwealth v. Eastman, 1 Cush. 225. FRAUDULENT CONVEYANCE OP REAL PROPERTY. 657 statute is, that when such a court has given judgment for the damages, it should proceed to award to the defendant the punishment of imprisonment for half a year. The humanity of our law has established a clear distinction between civil and criminal proceedings, and this act of Parliament cannot be supposed to sanction so anomalous a course as that. It is obvious that, by some means or another, imprisonment is to be awarded after a proper conviction before a recognized tri- bunal. How, then, can that be done, otherwise than by indictment ? LocTce submitted, that, at all events, it was intended that no criminal proceeding should be resorted to until after the recovery of damages in a civil action ; the words " and also," near the end of the section, seemed to point to such a con- struction. Matjle, J. I do not think so ; those words do not neces- sarily so restrict the procedure, and there seems to be no reason why it should be so restricted. Then as to the second point. The case cited is one where persons were said to have conspired to do a thing not necessarily unlawful in itself, such as, for instance, preventing a person from having execution of a judgment. There is nothing unlawful in that. It is precisely what the learned counsel, and those who in- struct him, are doing at this moment, — seeking to prevent the operation of a judgment by arresting it. In the present case, the very words of the statute are adopted. What is charged, therefore, is necessarily unlawful, for the statute has made it so. Judgment for the Crown. The Gen. Sts. ch. 161, § 59, enacts that, " Whoever con- veys any real estate, knowing that any incumbrance exists thereon, without, before the consideration is paid, informing the grantee or grantees of the existence and nature of such an incumbrance, so far as he has knowledge thereof, shall be punished by imprisonment in the jail not exceeding one year, or by fine not exceeding one thousand dollars." In Commonwealth v. Brown,i the indictment was for fraudulently conveying real estate, without giving notice of 1 15 Gray, 189. 42 658 CRIMINAL LAW. an incumbrance, merely describing it as " a certain parcel of real estate situated in Salem in the county of Essex." Bigelow, C. J.: " This indictment contains no description or allegation by which the parcel of land can be known or iden- tified, which the defendant is charged with having conveyed without disclosing an existing incumbrance thereon. This is a fatal defect. Under St. 1855, ch. 177, on which this indict- ment is founded, the substance of the offence cannot be alleged without such description or allegation. As, in the case of larceny, it would be wholly insufficient to allege that a person stole certain articles of personal property in a certain town or city, without enumerating or describing them in any way ; so, in this case, an averment that the defendant conveyed a cer- tain parcel of land in the city of Salem, without any other terms of description, is bad for uncertainty. There is nothing by which to fix the identity of the offence. The indictment lacks certainty to a common intent. The defendant may have owned other parcels of land in the city of Salem, which he conveyed to the prosecutor on the day alleged. From the indictment alone, therefore, it is impossible to say with cer- tainty to what parcel of land the charge relates, or to know that the conveyance proved at the trial was of the same par- cel as that on which the indictment was founded. Whenever, in charging an offence, it is necessary to describe a house or land, the premises must be set out in terms sufficiently cer- tain to identify them. Thus, in an indictment for forcible entry and detainer, to allege that the defendant entered two closes of meadow or pasture, a house, a rood of land, or cer- tain lands belonging to a house, is bad ; for the same certainty is required as in a declaration in ejectment." ^ 1 1 Hawk. P. C. ch. 64, § 37. 3 Chit. Crim. Law, 1122. GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS. 659 CHAPTER LIV. GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS. A COMMON gaming-house is a house kept or used for playing therein at any game of chance, or any mixed game of chance and skill, in which — 1. A bank is kept by one or more of the players, exclu- sively of the others ; or 2. In which any game is played the chances of which are not alike favorable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play or bet.i All gaming is unlawful by the law of this Commonwealth. To play at any game of chance or skill, on the issue of which money or property having any value depends, is illegal gaming.^ A constable has no authority at common law or by statute, without a warrant and demanding entrance, to break open a house or shop, and to arrest persons engaged in the unlawful sale of intoxicating liquors and in gaming, although he uses no more force than is necessary.^ The Municipal Court of the city of Boston has jurisdic- tion to forfeit and order to be sold the furniture, fixtures or personal property seized in a gaming-house on a search- warrant issued from and returned to that court, under the Gen. Sts. ch. 170, §§ 1-5, and the St. of 1869, eh. 364, at 1 Stephen Dig. Crim. Law, 110. Buss, 3 Cush. 448. Low v. Blanch- 2 Commonwealth «. Taylor, 14 ard, 116 Mass. 272. Soollans v. Gray, 26. Commonwealth b. Gour- Flynn, 120 Mass. 271, 274. Grace dier, 14 Gray, 390. Commonwealth v. M'Elroy, 1 Allen, 563. V. Edds, 14 Gray, 406. Common- ' McLennon v. Richardson, 15 wealth V. Pattee, 12 Cush. 501. Gray, 74. Gen. Sts. ch. 85, § 1. White v. 660 CRIMINAL LAW. a time when persons were there found playing an unlawful game.^ In the case of Commonwealth v. Gaming Implements, 119 Mass. 332, the following objections taken by the claimant of the personal property seized on a complaint and warrant issued under the St. 1869, ch. 264, and under the Gen. Sts. ch. 170, §§ 1-5, of which it was an amendment, were passed upon and overruled : — Devens, J. : 1. The complaint described with suiEcient precision the premises intended to be searched. It alleges that the articles are " in certain rooms " in a building defi- nitely described, " that is to say, in the rooms in the second, third and fourth stories of said building," which said " rooms " are further averred to be occupied by some person whose name is unknown to the complainant ; and a warrant is prayed to search " there " for the articles complained against. The warrant authorizes a search of the rooms described in the complaint. The words, " the rooms in the second, third and fourth stories," distinguish them sufficiently from the other rooms in the building in which they are situated, and include all the rooms which answer this description. 2. The complaint, also, and the warrant, in the description of the articles intended to be seized, other than gambling apparatus or implements, follow the words of the St. of 1869, ch. 364, § 2, which authorizes the search for and seizure of " all the furniture, fixtures and personal property found in such gaming-house." Section 3 renders liable to condemna- tion and sale all such property so found which was " used as the furniture, fixtures or personal property of such gaming- house," it being intended thereby to subject to forfeiture ar- ticles convenient and useful in themselves, which have been put to the improper use of making a gaming-house more com- fortable or agreeable. But the officer is not limited, in his right to seize, merely to the personal property thus liable to cond-emnation. As one of the objects of the seizure is to obtain evidence of the unlawful business conducted in such house, he may also seize the other personal property there, ' Attorney- General v. Justices of Commonwealth v. Gaming Imple- the Municipal Court, 103 Mass. 456. ments, 119 Mass. 332. GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS. 661 even if it should not be found afterwards subject to condem- nation as the personal property of the gaming-house, as it may be of importance in furnishing evidence of the business there transacted. Even if this were not so, a complaint and warrant which were too broad in their terms as including articles which would not properly be liable to seizure, would not be so far defective that the claimant of property properly described therein, and which was liable to seizure, could take advantage of such defect to quash the proceedings. 3. The objection that the information, filed after the re- turn of the search-warrant against the property here claimed, does not show that this property had been seized under the authority of the warrant, cannot avail. The information, after alleging the previous steps and the terms of the war- rant, contains a recital of 4he acts done by the ofiicer who had served it, and the words, " bj' virtue of said warrant," with which this recital commences, apply to and qualify the whole of it, the sentence which states the seizure of the " furniture, fixtures and personal property " by the officer, as well as that which precedes it, which states his entry into the premises and the seizure of the gambling apparatus. 4. Neither is the objection tenable that there was no suffi- cient notice of the information against the articles sought to be condemned. No notice is provided for by the statute in express terms ; but as it would be contrary to the general spirit of our law to decree that property should be destroyed or declared forfeit without a suitable effort to notify, the owner thereof, thus affording him an opportunity to be heard in relation thereto, it has been held that notice should be given.^ It should be such notice as in the judgment of the court would be reasonable and likely to convey information of the facts and proposed proceedings to the party in interest. While service of the notice, where parties are unknown, by advertisement in the public papers may often be proper, yet it is not the only mode, and often not the most effectual. The order issued by the clerk, " in accordance with the order 1 Attorney- General I!. Justices of the Municipal Court, 103 Mass. 456. 662 CRIMINAL LAV. of the court," directed a service by copy of the information and order upon the persons in whose possession the articles were found, and by posting up a copy of the order and infor- mation on the building where the seizure was made, fourteen days previous to the hearing. The return of the officer shows that after diligent search he could not find the parties named, and that their usual places of abode were unknown to him, and that the notice was served by posting a copy as directed on the building. This was a reasonable notice, and one which the court before whom the proceedings were hafl might well deem quite as likely to convey the information intended to the parties interested as any which could be adopted. 1. For Keeping a Common Gaming-house. — Gen. Sts. ch. 85, .§ 7. That C. D. of, &c. on the first ^ay of June in the year of our Lord and on divers other daj-s and times between that day and the first day of September in the same year, at B. aforesaid in the county aforesaid, did keep and maintain a certain common gaming-house ; ^ contrary to the form of the statute in such case made and provided. 2. For Keeping a Common Gaming-house. — Gen. Sts. oh. 87, §§ 6, 7. St. 1866, ch. 280, § 3. That C. D. of B. in the County of S. on the first day of June in the year of our Lord and on divers other days and times between that day and the first day of Septem- ber in the same year, at B. aforesaid in the county aforesaid, unlawfully did keep and maintain a certain building, to wit, a common gaming-house, then and on said divers other days and times there resorted to^ for the purpose of illegal gaming ; 1 In Rex V. Rogier, 2D. & R. person kept and maintained a ten- 43, 1 B. & C. 272, that eminent eraent "used" for illegal gaming pleader, Mr. Justice Holroyd, ex- does not charge an offence either at pressed an opinion that an indict- common law or under Gen. Sts. ch. ment charging the keeping of "a 87, §§ 6, 7. Commonwealth v. common gaming-house " is suffi- Stahl, 7 Allen, 304. Common- cient. Rex v. Taylor, 3 B. & C. wealth v. Lambert, 12 Allen, 177, 502. Commonwealth v. Stahl, 7 179. Commonwealth v. Intoxicat- Allen, 304, 305. ing Liquors, 97 Mass. 332. ' An indictment charging that a GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS. 663 to the common nuisance of all the citizens of this Common- wealth there inhahiting, residing, being, passing and repass- ing, and contrary to the form of the statute in such case made and provided. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said C. D. afterwards, to wit, on the said first day of June in the year aforesaid, and on divers other days and times between that day and the first day of September in the same year, at B. in the county aforesaid, unlawfully did keep and maintain a certain common gaming-room in the house of one E. ¥. there situate ; and in the said common gaming-room &c. &c., as in the last count, only substituting " gaming-room " for " gaming-house." 3. Against an Innholder for Suffering Persons to Resort to his Prem- ises to TTse the Game or Sport of Cock-fighting. — Gen. Sts. oh. 85, § 5.1 That J. T. of &c. at W. in the County of M. on the first day of June in the year of our Lord did have in his the said T.'s house in W. aforesaid in the county aforesaid certain game- cocks, the said game-cocks being then and there implements used in gaming, the said T. being then and there duly licensed according to law as an innholder, and the said house being the same in which the said T. was so licensed as an innholder as aforesaid, and he the said T. being then and there in said house in the occupation of an innholder as aforesaid, under said license ; and he the said T. did then and there suffer certain persons then and there resorting to said house, to wit, here state the names of the persons, if known, then and there to use and exercise, within his the said T.'s said house, the game of cock-fighting, the same being then and there an unlawful game, to wit, with the game-cocks aforesaid; contrary to the form of the statute in such case made and provided. 1 Cock-fighting is an unlawful game or sport there is indictable game or sport ; and an innholder under the Rev. Sts. ch. 47, § 9. who suffers any person resorting to Gen. Sts. ch. 85, § 5. Common- his premises to use or exercise that wealth v. Tilton, 8 Met. 232. 664 CRIMINAL LAW. 4. For being Present at an Unlawful Game. — Gen. Sts. ch. 85, § 8. Sts. of 1869, ch. 364. To the justices of the Municipal Court of the City of Bos- ton holden at said Boston for the transaction of criminal business within and for the County of Suffolk, A. B. of the City of Boston in the County of Suffolk, state constable, in behalf of the Commonwealth of Massachusetts, on oath com- plains that he the said A. B. on the first day of June in the year of our Lord one thousand eight hundred and seventy- on oath informed the said justices that he suspected, and had probable cause to suspect, that a certain building situated and numbered twenty in Street in said Boston, that is to say, the robms in the second story of said building, which said rooms were occupied by some person whose name was to the complainant unknown, were unlawfully used as and for a common gaming-house, for the purpose of gaming for money or other property, and that idle and dissolute persons, whose names were unknown to your complainant, resorted to the same for that purpose, and were present at games and sports there played for money or other things of value, and prayed for a warrant to enter into said building, and to arrest all persons who were there found playing for money, or other- wise, and the keepers of the same, and all persons found present as aforesaid, and to take into custody all the imple- ments of gaming there to be found. And thereupon the said court issued a warrant, under the seal thereof, commanding the sheriff of our County of Suffolk, his deputies and the constables and police-ofl&cers of our City of Boston, and any constable of said Commonwealth, and each of them forthwith with necessary and proper assistants, to enter, in the day- time, or in the night-time, into the rooms mentioned in the above information, and there to arrest all persons who were there found playing for money, or otherwise, and also the keepers of the said rooms, and also all persons found present at any game or sport there played for money or other thing of value, and to take into their custody all the implements of gaming as aforesaid, and to keep the said persons and implements so that they might be forthcom- GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS. 665 ing before said court, to be disposed of and dealt with as to law and justice should appertain ; and that afterwards, to wit, on the second day of June in the year aforesaid, by virtue of said warrant, and in obedience to the commands and requirements therein contained, the said A. B. being then and there a constable of said Commonwealth and being then and there duly authorized to serve said warrant, with necessary and proper assistants, did enter into the rooms in said building described in the warrant aforesaid in the time of said day, and then and there found all of said Boston present at an unlawful game then and there played for money, to wit, severally present at a cer- tain unlawful game plajj-ed with and called and that the said A. B. did then and there arrest and take into his custody the said so found present at the playing as aforesaid, so that they might be forthcoming before said court, to be dealt with according to law. And so the said A. B. upon his oath aforesaid doth say, that the said rooms in the building aforesaid in manner and form aforesaid were unlawfully used as and for a common gaming-house, for the purpose of gaming for money and other property, and that idle and dissolute persons resorted to the same for that purpose, and that the said were then and there, and in manner and form aforesaid, severally present at said unlawful gaming for money as aforesaid ; contrary to the form of the statute in such case made and provided. S, For taking Part in an Unla-wful Game. — Gen. Sts. ch. 85, § 8. To the justices of the Municipal Court of the City of Bos- ton holden at said Boston for the transaction of criminal business within and for the County of Suffolk, A. B. of the City of Boston in the County of Suffolk, state constable, in behalf of the Commonwealth of Massachusetts, on oath com- plains that he the said A. B. on the first day of June in the year of our Lord one thousand eight hundred and seventy- on oath made complaint to and informed the said justices that he suspected, and had probable cause to suspect, that a certain building situated and numbered twenty in Street in said Boston, and within the judi- CRIMINAL LAW. cial district of said court, that is to say, the rooms in the second story of said building, which said rooms were occu- pied by some person whose name was to the complainant unknown, were unlawfully used as and for a common gam- ing-house, for the purpose of gaming for money or other property, and that idle and dissolute persons, whose names were unknown to your complainant, resorted to the same for that purpose, and were present at games and sports there played for money or other things of value, and prayed for a warrant to enter into said building, and to arrest all persons who were there found playing for money, or otherwise, and the keei)ers of the same, and all persons found present as aforesaid, and to take into custody all the implements of gaming there to be found. And thereupon the said court issued a warrant, under the seal thereof, commanding the sheriff of our County of Suffolk, his deputies and the con- stables and police-officers of our City of Boston, and any con- stable of said Commonwealth, and each of them forthwith with necessary and proper assistants, to enter, in the day- time, or in the night-time, into the rooms mentioned in the above information, and there to arrest all persons who were there found playing for money, or otherwise, and also the keepers of the said rooms, and also all persons found pi'esent at any game or sport there played for money or other thing of value, and to take into their custody all the implements of gaming as aforesaid, and to keep the said persons and implements so that they might be forth- coming before said court, to be disposed of and dealt with as to law and justice should appertain ; and that afterwards, to wit, on the second day of June in the year aforesaid, by virtue of said warrant, and in obedience to the commands and requirements therein contained, the said A. B. being then and there a constable of said Commonwealth and being then and there duly authorized to serve said warrant, with neces- sary and proper assistants, did enter into the rooms in said building described in the warrant aforesaid, in the time of said day, and then and there found all of said Boston, playing at an unlawful game for money, to wit, severally taking part in a certain unlawful game played GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS. 667 with and called and that the said A. B. did then and there arrest and take into his custody the said so found playing as aforesaid, so that they might be forthcoming before said court, to be dealt with according to law. And so the said A. B. upon his oath aforesaid doth say, that the said rooms in the building aforesaid in manner and form aforesaid were unlawfully used as and for a common gaming-house, for the purpose of gaming for money and other property, and that idle and dissolute persons resorted to the same for that purpose, and that the said for the pur- pose of gaming for money in said building, did then and there, and in manner and form aforesaid, take part in and play at said unlawful game as aforesaid ; contrary to the form of the statute in such case made and provided. The Gen. Sts. ch. 161, § 57, enacts that "Whoever by the game of three-card monte, so called, or any other game, de- vice, sleight of hand, pretensions to fortune-telling, trick, or other means whatever, by the use of cards, or other imple- ments or instruments, fraudulently obtains from another per- son property of any description, shall be punished as in case of larceny of property of like value." 6. For Fraudiilently Obtaining Property by a Game of Cards, on this Section of the Statute.-' That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., by means of a certain game then and there played by the use of cards bv the said C. D. with one E. F., feloniously and fraudulently did obtain from the said E. F. five hundred dollars of the money and property of the said E. F. ; contrary to the form of the statute in such case made and provided. 7. For 'Winning Money at Cards by Fraud. — St. 8 and 9 Vict. ch. 109, § 17.2 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the 1 Common-wealth v. Parker, 117 Regina o. Bailey, 4 Cox C. C. Mass. 112. 390. Regina v. Hudson, Bell C. C. 2 Archb. Crim. PI. 963, 18th ed. 263. 668 CRIMINAL LAW. County of S., by fraud, unlawful device and ill-practice in playing at and with cards (" cards, dice, tables or other game, or in bearing a part in the stakes, wagers or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime or exer- cise ") unlawfully did win from one H. F. B., to a certain person, whose name is to the jurors unknown (" to himself or any other or others ") a sum of money, to wit, fifty dollars (" any sum of money or valuable thing "") of the moneys of the said H. F. B.^ And so the jurors aforesaid upon their oath aforesaid do say, that the said W. M., then in manner and form aforesaid, unlawfully did obtain the said sum of money, to wit, fifty dollars, so being of the moneys of the said H. F. B., as aforesaid, from the said H. F. B. by a false pre- tence, with intent then and there to cheat and defraud the said H. F. B. of the said sum of money, to wit, fifty doUars; contrary to the form of the statute in such case made and provided. 1 In an indictment under this sec- by those cases if they were in point tion of the statute it is not neces- on the present occasion, but it seems sary to state to whom the money to me that the principle on which belonged. Erie, J. : " I agree that, those cases were decided does not as ^is indictment follows the words apply to the present indictment, of the statute, it is sufficient. It which follows the words of the was a most salutary statute (7 Geo. statute, and is therefore, I think, IV. ch. 64, § 21) that enacted that sufficient." Pollock, C. B.. "No where an offence has been created ambiguity can arise if the ofience by statute the indictment shall, is stated, as it is in this indictment, after verdict, be held sufficient if it in the very words of the statute ; describe the offence in the words of and it would create great difficulty the statute. No doubt there are in drawing indictments under this cases in which this enactment has act of Parliament if it were held been held not to be applicable, and necessary that it should be stated in which it has been decided that to whom the money which actually more is requisite in the indictment was won belonged." Regina v. than the description of the offence Moss, Dearsly & Bell C. C. 104, in the words of the statute creating 108 ; 26 L. J. M. C. 9. it ; and I should feel myself bound HIGHWAYS. 669 CHAPTER LV. HIGHWAyS. The St. 1876, ch. 227, § 1, enacts that " Municipal, district and police courts shall have concurrent jurisdiction with the superior court, of all nuisances and complaints for defective highways, and may in such cases punish by fine not exceed- ing one hundred dollars, or imprisonment in the jail or house of correction not exceeding one year, or by both said punish- ments." The indictment usually states the highway to have been so imniemorially, but this is unnecessary ; it is sufficient to allege that it is a common public highway, without show- ing how it became so ; ^ and it is prudent to plead it thus, particularly where it is not an ancient way. So, although usual, it is unnecessary to state the termini of the road, if it is otherwise described with sufficient certainty .^ But if the termini are stated they must be proved.^ If the way is de- scribed as leading /rom A. unto B., the termini A. and B. are excluded.* Where the highway was described as leading 1 Kegina v. Turweston, 16 Q. B. Rex v. Upton on Severn, 6 C. & 109. P. 133; 2 Wms. Notes to Saund. ^ Commonwealth ». Newbury, 465. In Rex v. Knight, 7 B. & C. 2 Pick. 51. Commonwealth v. 413,415, 1 M. & R. 217, Lord Ten- North Brookfield, 8 Pick. 463. Rex terden, C. J., said: " If we were to V. St. Weonards, 6 C. & P. 582, construe the words lo and frovi as Alderson, B., and Williams, J. exclusive in this case, we should Regina v. Waverton, 17 Q. B. 562 ; make the allegation inconsistent S. C. 2 Lead. Crim. Cas. 157. and insensible, which otherwise is 2 Rex V. Canfield, 6 Esp. 136. perfectly consistent and sensible. Rex V. St. Weonards, uhi supra. In common parlance, the words Zea(i- Rex V. Marchioness of Downshire, ing from a place include as well as 4 Ad. & El. 232; 5 Nev. & Man. exclude that place; and at present 662. my mind is not satisfied with the ^ Regina 1). Botfield, C. & Marsh, decision in the case of Rexu. Gam- 151. Rex V. Fisher, 8 C. & P. 612. lingay, 3 T. R. 513, 1 Leach C. C. 670 CRIMINAL LAW. from the village of T. to the village of E., and the evidence was that it led from the village of T. into a turnpike road from A. toB., and then, after passing along it for some dis- tance, branched off to the village of E., it was held well described.^ Indictment against a Town for not Repairing a Highway. The jurors &c. upon their oath present, that on the first day of June in the year of our Lord there was and yet is a common public highway leading from the town of B. in the county of M. to the town of C. in said county, used by and for all the citizens of said Commonwealth, M'ith their horses, coaches, carts and other carriages, to go, return, pass, repass, ride and labor, at their free will and pleasure. And the jurors aforesaid upon their oath aforesaid do further pre- sent, that a certain part^ of the said common public highway, situated at D. in the county aforesaid, extending from a cer- tain field there, called unto a certain bridge there, called bridge,^ on the first day of June in the year of our Lord and continually afterwards until the first 528, that the words _/rom and to are which he is to make his defence, necessarily exclusive." In the cal- nor will the court be able to judge culation of time, the word " from " what will be the proper fine to though prima facie, is not neces- assess. 1 Hawk. P. C. ch. 76, §§ 88, sarUy exclusive. Wilkinson ». Gas- 89 ; vol. i. p. 704, 8th ed. This ton, 9 Q. B. 137. statement has been repeatedly copied 1 Regina ». Turweston, 16 Q. B. by subsequent text-writers. " But 109. Regina v. Steventon, 1 C. & as the court does not at present K. 55. Regina v. Sturge, 3 El. & estimate the fine from the descrip- Bl. 734. tion of the length and breadth 2 If there be other parts of the of the road, as stated in the indict- highway out of repair, within the ment, perhaps the want of stating same town, insert other counts, it would not now be considered as a specifying them. fatal objection." 2 Saund. 158 d. ' It is said in Hawkins's Pleas of 2 Wms. Notes to Saund. 467. And the Crown, to be necessary to allege in an indictment for a nuisance in a to what part of the highway the highway, it has been held for nearly nuisance extends, as by showing a century that this particularity is how many feet in length, and how unnecessary. PerMetcalf, J,, Smith many feet in breadth it contains, v. Adams, 1 Cush. 448. Common- The reason assigned is, that, if it wealth v. Hall, 15 Mass. 240, 241. be not, the defendant will not know Commonwealth v. Allen, 11 Met. the certainty of the charge against 403, 405. HIGHWAYS. 671 day of October in the year aforesaid, in the county aforesaid, was and is yet very ruinous, miry, deep, broken and in great decay,! for ^ant of due reparation and amendment of the same, so that the citizens of said Commonwealth, during the time aforesaid, could not go, return, pass, repass, ride and labor with their horses, coaches, carts and other carriages, in, through and along the common public highway aforesaid, as they ought and were wont and accustomed to do, without great danger of their lives and the loss of their goods. And the jurors aforesaid upon their oath aforesaid do further pre- sent, that the inhabitants of the said town of D. in the county aforesaid during all the time aforesaid, in their corporate capacity, the said common highway ought to have kept in repair and amended when and so often as it should be neces- sary, but have neglected, and still neglect so to do ; to the great damage and common nuisance of all the citizens of said Commonwealth, then and there going, returning, passing, re- passing, riding and laboring in, through and along the com- mon public highway aforesaid, against the peace &c., and contrary to the form of the statute in such case made and provided. ^ This general allegation is suffi- Commonwealth ». Taunton, 16 cient. Per Morton, J., in Common- Gray, 228; Commonwealth ». Deer- wealth V. Pray, 13 Pick. 363. See field, 6 Allen, 449. 672 CRIMINAL LAW. CHAPTER LVI. HOISTWAY OPENINGS. The St. 1872, ch. 260, § 5, enacts : ^ "In any store or building in Boston, in which there shall exist or be placed any hoistway, elevator or well-hole, the openings thereof through and upon each floor of the said building shall be provided with and protected by a good and substantial rail- ing and such good and sufficient trap-doors with which to close the same, as may be- directed and approved by the in- spector of buildings ; and such trap-doors shall be kept closed at all times except when in actual use by the occupant or occupants of the building having the use and control of the same. For any neglect or violation of the provisions of this section, a penalty not exceeding one hundred dollars for each and every offence maj'^ be imposed upon the owner, lessee or occupant of said building." Ccmplaint under this Section of the Statute. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, and within the judicial district of said court, was the occupant of a certain building there situate and num- bered in Washington Street, and that there then and there existed in said building a hoistway having an opening through and upon the second floor of said building, which said opening was then and there provided with a trap-door with which to close the same upon said floor, and that the said C. D. had then and there the control of the said floor of said building and of said opening therein and of said trap- door, and that the said C. D. did not then and there keep said trap-door closed, the said trap-door and hoistway not being then and there in actual use by any occupant of said building having the use and control of the same ; contrary to the form of the statute in such case made and provided. 1 Kepealing St. 1871, ch. 280, § 59. HOMICIDE. 673 CHAPTER LVII. HOMICIDE. Homicide is the most important object of criminal justice, next to treason, on account of the magnitude of the injury which may be thereby inflicted on society. The private loss sustained in consequence of an act of homicide is often painfully afflicting, whilst the general alarm it occasions is frequently destructive of the peace of the commtinity. Homi- cide, however, is capable of a great variety of gradations, from absolute innocence to the most aggravated guilt. In Hale's Pleas of the Crown it is said that " Murder is a killing of a man ex malitiS. prsecogitatS.," ^ a definition os- tensibly short, simple and complete. A qualification is afterwards stated, that after a year and a day it " cannot be discussed, as the law presumes," whether the death was violent or natural. Murder is thus defined by Sir Edward Coke : " When a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." 2 Murder is the killing of any person in the peace of the Commonwealth, with malice aforethought, either ex- press or implied by law.^ The statute establishing different degrees of murder did not create any new offence, or change the definition of murder as it was understood at common law or the existing forms of indictment. The words "malice aforethought" do not imply delibera- tion or the lapse of considerable time * between the malicious 1 1 Hale P. C. 425. * As Hobbes observes, "It is " 3 Inst. 47. 4 Stephen Comm. malice forethought, though not ■57. long forethought." Dialogue of ^ Comnaonwealth v. Webster, 6 the Common Laws, " Works," vi. Cush. 304. 85. 43 674 CRIMINAL LAW. intent to take life and the actual execution of that intenT;, but rather denote purpose and design, in contradistinction to accident and mischance.^ The Gen. Sts. ch. 160, enact: — Sect. 1. Murder committed with deliberately premedi- tated malice aforethought, or in the commission of, or attempt to commit, any crime punishable with death or imprisonment for life ; or committed with extreme atrocity or cruelty, is murder in the first degree.^ Sect. 2. Murder not appearing to be in the first degree is murder in the second degree. Sect. 3. The degree of murder shall be found by the jury. Sect. 4. Whoever is guilty of murder in the first degree shall suffer the punishment of death. Sect. 5. Whoever is guilty of murder in the second de- gree shall be punished by imprisonment in the state prison for life. Sect. 6. Nothing herein shall be construed to require any modification of the existing forms of indictment. In the case of Commonwealth v. Desmarteau,^ it was dis- tinctly declared that the settled law of this Commonwealth must be taken to be that the provision of the statute, which enacts that the division of the crime of murder into two de- grees should not be construed to require any modification of the existing forms of indictments, was not inconsistent with the twelfth article of the Declaration of Rights. " No sub- ject shall be held to answer for any crimes or offence until the same is fully and plainly, substantially and formally, de- scribed to him." The reason on which these decisions were founded was this : that the statute establishing degrees of murder did not create any new offence, or change the defini- tion of murder as it was understood at common law ; that the forms of indictments previously in use descriptive of mur- der embodied every shade or degree of the crime, from that 1 Commonwealth v. Webster, 5 for Jife, is murder In the first de- Ciish. 306. gree," includes all ofEences that " The provision that " murder may be so punished. Common- committed in the commission of, or wealth v. Pemberton, 118 Mass. attempt to commit, any crime pun- 36. ishable with death or imprisonment ' 16 Gray, 1. HOMICIDE. 675 which was most aggravated, malicious and premeditated, down to that which had only the element of implied malice in its most mitigated form ; and that, as the offence was not changed, but only its punishment mitigated in certain cases, the indictment was sufficient to embrace every species of mur- der, whether it fell within one or the other of the degrees of homicide as defined by the statute. The logical and neces- sary conclusion from the decisions is, that an indictment for murder iu the common form charges murder in the first de- gree.^ And to an indictment for murder, in the usual form, a plea of guilty of murder in the first degree will authorize a sentence of death, although the plea does not set out the particular facts which show that the crime was murder in the first degree. The Gen. Sts. ch. 171, enact: — Sect. 17. An offence committed on the boundary of two counties, or within one hundred rods of the dividing line between them, may be alleged in the indictment to have been committed, and may be prosecuted and punished, in either county.^ An offence committed upon the sea within one league of the shore may be prosecuted and punished in the adjacent county. Sect. 18. If a mortal wound is given, or other violence or injury inflicted, or poison is administered, in one county, by means whereof death ensues in another county, the offence may be prosecuted and punished in either county. Sect. 19. If a mortal wound is given, or other violence or injury inflicted, or poison is administered, on the high seas, or on land either within or without the limits of this State, by means whereof death ensues iu any county thereof, such offence may be prosecuted and punished in the county where the death happens. The manifest intent and effect of section 17 are, that the boundary liue between two counties, and a strip one hundred ^ Green v. Commonwealth, 12 ment may allege that the ofience Allen, 170, 171. was committed within the county 2 The word -'indictment" in- in which the prosecution is insti- cludes prosecutions by complaint, tuted. Commonwealth ;;. Gillon, 2 And the complaint or the indict- Allen, 502. 676 CRIMINAL LAW. rods wide on each side of that line, may be treated, for the pur- poses of allegation, prosecution and punishment, as being in either county ; or, in other words, that each county, for these purposes, may be deemed to extend one hundred rods into the . county adjoining. And this definition of the extent of each county must apply to the next succeeding section, sect. 18, which provides that if a mortal wound is given in one county, by means whereof death ensues in another county, the offence may be prosecuted and punished in either county. Under these sections, a conviction maj' be had in one county, upon an indictment for murder, if the pistol causing the death was fired in an adjoining county more than one hundred rods from the dividing line between the two counties, and the death ensued in the county alleged in the indictment, within one hundred rods of that line.^ The thirteenth article of the Declaration of Rights declares that, " In criminal prosecutions, the verification of facts in the vicinity where they happen is one of the greatest securities of the life, liberty and property of the citizen." The St. of 1795, ch. 45, § 1 (which substantially re-enacted the St. of Edw. VI., adding to the cases of stroke or poisoning, " or injury "), was held, in Commonwealth v. Parker,^ not to be inconsistent with that article ; and Chief Justice Parker, in delivering judgment, said :. " Murder is a complex term, denoting several facts, of which the death of the party is one of the most essential. The mortal stroke, or the administering of poison, does not con- stitute the crime, unless the sufferer dies thereof within a year and a day." ^ That enactment has been embodied in the Rev. Sts. ch. 133, § 8, and Gen. Sts. ch. 171, § 18.* A citizen of another State, or of a foreign country, may be convicted, under section 19, of the manslaughter of a person who dies within the Commonwealth of injuries inflicted upon him by the accused in a foreign merchant vessel upon the high seas. Under this section a conviction may be had for causing death by starvation or exposure.^ 1 Commonwealth v. Costley, 118 * Commonwealth v. Macloon, Mass. 2, 26. 101 Mass. 10. " 2 Pick. 550. 5 Commonwealth v. Macloon, 8 2 Pick. 558. 101 Mass. 1. HOMICIDE. 677 It is necessary that the criminal act with which the de- fendant is charged should be set out and described in the indictment in clear, formal and distinct terms, and that the proof should correspond with, and support the allegations in, the indictment. This is necessary, in order that the prisoner may understand the precise nature and character of the crim- inal act with which he is charged, and be prepared to meet it at the trial. In indictments for homicide, it is always essen- tial to aver the mode or means by which life was taken, and to prove substantially that the criminal act was in fact committed as alleged. 1 In Hawkins's Pleas of the Crown it is said ^ that, " It being the strict rule of law in these cases to have the substance of the fact expressed with precise certainty, the judges will suffer no argumentative certainty whatsoever to induce them to dispense with it. For if they should once be prevailed with to do it in one case, the like indulgence would be ex- pected from them in others nearly resembling it, and then in others resembling those ; and no one could say where this might end, which could not but endanger the subverting of one of the most fundamental principles of the law, by giving room to judges, by arguments from what the jury have found, to convict a man of a fact which they have not found." ^ And Mr. Justice Coleridge : " I am always sorry when cases of this kind are disposed of on technical grounds ; but although ^ Commonwealth v. Fox, 7 Gray, there will be a point at which we 586. must stop at last. It is essential to 2 2 Hawk. P. C. ch. 2.3, § 82. The the correct administration of justice author is treating of the appeal of that some certain forms and methods death. But his observations are of proceeding should be observed, equally applicable to all crimes. And whatever alterations should be ' The following observations of made from the present forms, it Mr. Justice Jackson are worthy of would not afterwards be found more attention in this connection: " This easy to comply with them than with strict adherence to technical forms those which have been so long may be inconvenient in particular known and settled; nor would the cases, and may even appear at times inconvenience be less than is now to be beneath the dignity of the law experienced when indictments or and of the courts of justice. But other proceedings should be quashed if we felt ourselves authorized, and or reversed for a departure from should undertake to relax the rules such new forms." Commonwealth of pleading heretofore established, v. Stockbridge, 11 Mass. 281. 678 CRIMINAL LAW. at the first blush it appears both hard and unwise in the par- ticular instance so to dispose of the rights of parties, yet it is of very much importance to the public that legal principles should be maintained. It may sometimes happen that, in carrying out those principles, they may appear to press hard in certain individual cases, but by a contrary course the law would be frittered away by endless distinctions, and at last we should hardly know what the law was ; and that state of things would be more injurious to the public than a strict adherence to general principles. If I were to allow these words to be rejected as surplusage in this case, I should encourage a loose and negligent style of pleading ; and I know not how soon the same doctrine might be applied to cases affecting even the lives of our fellow-creatures, who might then be indicted for one thing and found guilty of another." ^ In all cases the death by the means stated must be clearly and positively alleged ; for it cannot be taken to be so by implication. The allegation that the deceased received the hurt &c. which is laid as the cause of his death, will not be sufficient ; and, therefore, if the death be caused by any stroke, the indictment should aver that the prisoner thereby gave the deceased a mortal wound or bruise, whereof he died ; or if by poison, then, after stating the particular mode of poisoning, it should be distinctly alleged that he died of the poison so taken, and the sickness thereby occasioned.^ The respective times of the death, and of the wound or other cause which produces it, are necessary to be stated, in order that it may appear that the deceased died within a year and a day from the stroke &c. And this may be done by stating that he died instantly of the wound, or that he lan- guished of the same till the day mentioned, when he died of the said mortal wound. But a mistake in these dates is not material, if it appear by the evidence that the death happened within the year and a day from the stroke or poison &c., with- 1 Reginai). Botfield, C. «e Marsh. PI. 93. Rex v. Lad, 1 Leach C. C. 153, 154. 96. But see Commonwealth v. 2 1 Gabbett Grim. Law. 504. 1 Macloon, 101 Mass. 1, 23. East P. C. 343. 1 Stark. Grim. HOMICIDE. 679 out which the law does not attribute the death to such cause. ^ It is also necessary in indictments for murder to allege the place of the wound &c. and of the death, in order that it may appear that the offence is properly triable in the county, or before the court where the indictment is preferred ; ^ but though the wound should, upon the evidence, appear to be at another place in the same county, it will be sufficient to main- tain the indictment.^ In Brooke's New Cases, pi. 61, it is said that " An indict- ment of death ought to comprehend the day of the stroke and day of the death ; and the same law of poisoning ; so that it may be known if he died of the same stroke or not." It is to be observed as to the respective times of the death, and of the stroke or cause which produces death, that though the wound be not in itself so mortal but that with skilful treatment the party might be cured,* yet if he dies within the year and a day, it is homicide, the degree of it, however, depending upon the circumstances of the case ; and if the unskilful or improper treatment of the wound, or the neg- lect of it, produces a disease which is the immediate cause of the death, yet the wound being the cause of the disease, and therefore the mediate cause of the death, the party striking shall answer for it. The real question is. Was the wound the cause of death ? ^ The well-established rule of the common law is, that if the wound was a dangerous wound, that is, calculated to en- danger or destroy life, and death ensued therefrom, it is sufficient proof of the offence of murder or manslaughter ; and that the person who inflicted it is responsible, though it may appear that the deceased might have recovered if he 1 2 East p. C. 343, 844. 1 Gab- = Rex v. Rew, Kelyng, 26; 32, bett Crim. Law, 504, 505. 3d ed. 1 Hale P. C. 428. 1 Hawk. 2 Commonwealth v. Barnard, 6 P. C. 93. 1 East P. C. 344. 1 Gab- Gray, 488. See Green v. Common- bett Crim. Law, 505. Regiua v. wealth. 111 Mass. 417. Holland, 2 M. & Rob. 351. Regina 8 2 Hawk. P. C.ch. 25, §84. 1 East ... Haines, 2 C. &K. 368 Common- P. C. 843 ; 3 Greenl. Ev. § 143. wealth ». Fox, 7 Gray, 585. Com- * " Though a wound may be mouwealth v. M'Pike, 3 Cush. 181. cured, yet i£ the party dieth there- Commonwealth v. Hackett, 2 Allen, of," it is murder. Rex v. Reading, 136. 1 Keb. 17. CRIMINAL LAW. had taken proper care of himself, or submitted to a surgical operation, or that unskilful or improper treatment aggravated the wound and contributed to the death, or that death was immediately caused by a surgical operation rendered neces- sary by the condition of the wound. The principle on which this rule is founded is one of universal application, and lies at the foundation of all our criminal jurisprudence.^ It is, that every person is to be held to contemplate and to be responsible for the natural consequences of his own acts. If a person inflicts a wound, with a deadly weapon in such manner as to put life in jeopardy, and death follows as a con- sequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes co-operated in producing the fatal result. Indeed, it may be said that neglect of the wound, or its unskilful and improper treatment, which were of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible.^ " As death is appointed to all the living, and must come to all sooner or later," said Mr. Justice Bigelow, " every act of homicide only hastens the inevitable event. The law, there- fore, does not permit a party charged with murder to speculate on the chances of the life of his victim, or to endeavor to appor- tion his own wicked act by dividing its effects with the opera- tion of natural causes on the body of the deceased. If, then, this indictment sets out in full and distinct terms the acts of the prisoner which hastened the death of the deceased, it alleges sufiBciently the means or mode in which the homicide was committed, without averring the state or condition of the body of the deceased at the time the assault and battery were committed, or the causes, merely natural, then existing, which tended to make the acts of the prisoner more dangerous and fatal. If it is left in doubt, on the testimony, whether 1 "That a man must be pre- well, J., in Graham v. Chapman, sumed to intend that which is the 12 C. B. 98. necessary consequence of his, acts, ^ Judgment in Commonwealth is one of the first principles of both ». Hackett, 2 Allen, 141, 142. civil and criminal law. " Per Cress- HOMICIDE. 681 death, when it happened, was caused by the disease, or the violence inflicted on the deceased by the prisoner, he is enti- tled to an acquittal." ^ An indictment for murder is sufficient which alleges that the death was caused by a series of beatings inflicted on different days and months of the same year.^ The same rule applies to cases of poisoning, starvation and exposure.^ Shaw, C. J. : " Take the case of poisoning referred to in Hawkins's Pleas of the Crown, where poison is administered at various times. Murder is the result, and it is proper to set forth in the indictment that it was committed by poison administered at various times. Take a case of starvation : a person may be deprived of food at various times, and so reduced as to produce death ; the proper mode of setting forth the offence would be, that the person came to his death by being de- prived of food at various times."* A variance is in some cases fatal. Thus, if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a totally different species of death, as by shooting, starving or strangling ; but it is an immaterial variance, if, where the death is occasioned by any weapon, it should appear by the evidence that the party was killed by one different from that stated in the indictment. And so, if the death be laid to be by one sort of poisoning, and it turn out to be another ; for if the means of death proved agree in substance with that charged, it is in all cases sufiicient.^ When the death is caused by any external ^ Judgment in Commonwealth 250. Rex v. Grounsell, 7 C. & P. V. Fox, 7 Gray, 586, 587. Rex v. 788. Rex v. Martin, 5 C. & P. 128. Webb, 1 M. & Rob. 405, and 2 Lewin Rex v. Thompson, 1 Moody C. C. C. C. 213. 139; 1 Lewin C. C. 194. Rex v. 2 Regina v. Bird, 2 Denison C. C. Kelly, 1 Moody C. C. 113 ; 1 Lewin 94 ; Temple & Mew C. C. 437. C. G. 193. Commonwealth v. Mc- ' Commonwealth v. Stafford, 12 Afee, 108 Mass. 458, 460. Rex v. Cush. 619. Commonwealth v. Mac- Culkin, 5 C. & P. 121. Regina v. loon, 101 Mass. 1. Warman, 1 Denison C. C. 183; 2 C. < 12 Cush. 620. & K. 195. Regina v. O'Brian, 1 « Rexu. Sharwin, 1 East P. C. Denison C. C. 9; 2 C. & K. 115. 341. Rex V. Mackally, 9 Rep. 65, Commonwealth v. Desmarteau, 16 67 a. State v. Smith, 22 Maine, Gray, 1, 13. Regina v. Bird, 2 369. Rex v. Waters, 7 C. & P. Denison C. C. 94. Commonwealth 682 CRIMINAL LAW. violence, coming under the nature of striking or bruising, it should expressly appear that a stroke was given.^ But it cannot, of course, be necessary in the case of poisoning, starving or the like, where no actual violence is offered, or assault made. It appears that, where the mean or primary cause of the death is truly and substantially set forth, it is not necessary to state the intermediate process by which that cause has produced the fatal effect.^ When the death is occasioned by any instrument held in the hand of the party killing the other, it is usual to state the hand in which it was held, whether the right or left hand ; but this is unnecessary. The value of the instrument is also gen- erally stated, or whether it be of no value ; but this state- ment also is not essential.^ The part of the body in which the deceased was struck or wounded, where the death is caused in that way, should always be particularly shown ; and therefore, if it be said to be on the arm, hand or side, without distinguishing whether it be right or left, or if it be only said to be about the breast, it will be insufficient.* But where there is a sufficient certainty in these respects, the addition of further uncertain description of the same wound will not vitiate it.^ The dimensions of the wound need not be stated. " We are of opinion," said the court in a very recent case, " that the tendency of modern jurisprudence and legislation is such as to justify, if not to require, a departure from the old rule of pleading, in a matter which is practica,lly so nearly one of mere form. We fail to discover any sound principle, on which the rule can stand, to justify its perpetuation." ® V. Macloon, 101 Mass. 1, 23.. Com- ' 2 Deacon Crim. Law, 927. 1 monwealth o. Stafford, 12 Cush. East P. C. 341. 1 Stark. Crim. PI. 619. Commonwealth v. Fox, 7 92. 1 Gabbett Crim. Law, 503. See Gray, 585. Commonwealth v. Mc- 2 Hale P. C. 185; 1 East P. C. 341. Afee, 108 Mass. 458. Common- « 2 Hale P. C. 185, 186. Long's wealth V. McLaughlin, 105 Mass. Case, 5 Kep. 122 a. 460. Commonwealth v. Fenno, 125 » 1 East P. C. 342. 1 Stark. Mass., not yet published. Crim. PI. 92. 1 1 Gabbett Crim. Law, 503. « Commonwealth v. Woodward, i* Rex V. Tye, Russell & Ryan C. 102 Mass. 155, 159, explaining C. 345. Regina v. Mclntyre, 2 Cox Commonwealth ». Chapman, 11 C. C. 379, Coleridge, J. Cush. 422. The leading case is HOMICIDE, 683 The statement of the general nature and locality of the wound, and the instrument or means by which it was in- flicted, are all that is required for the purpose of enabling the defendant to know for what injury he is called upon to answer.^ The christian name and surname of the party killed must be stated, if known. The name so stated must either be the real name of the party injured, or that by which he is usually called and known, although differing from his name of baptism.^ An indictment for the murder of a person de- scribed throughout as Augustine, except in alleging that of the bruises and wounds " the said Augustine^ died," is suf- ficient after verdict.^ Mr. Justice Coleridge seemed clearly of opinion that. an indictment for murder, which alleged an assault on Martha Sheddon, and that the prisoner " the said Margaret Sheddon, did strike " &c., was not, therefore, bad.* The practice of rendering a general verdict of guilty, with- out distinguishing between the particular counts in the in- dictment, where they charge only a single offence, and various counts are introduced to meet more accurately the precise circumstances of the transaction, has been general, and usually adopted in capital, as well as in all other cases.^ In the celebrated case of Commonwealth v. Webster,^ in which the defendant was cliarged with the murder of Dr. Paikman, there were four counts, charging the offence to have been perpetrated in different modes. One of the counts was of the most general character, charging the crime to have been perpetrated " in some way and manner, and by some means, instruments and weapons, to the jurors unknown." Rex». Mosley, 1 Moody C. C. 98; son, 1 Denison C. C. 284; 2 C. & S. C. 1 Lead. Crim. Cas. 58. The K. 527. cases are collected in the note, ^ Rex v. Rudge, 1 Russell on p. 63. Crimes, 44 note, 4th ed. ; 41 note, 1 Commonwealth v. Woodward, 5th ed. 102 Mass. 160. * Commonwealth v. Desmarteau, ^ Commonwealth v. Desmarteau, 16 Gray, 1, 12. Commonwealth v . 16 Gray, 1, 17. Fitchburg Railroad, 120 Mass. 372, * Commonwealth v. Desmarteau, 380. 16 Gray, 1, 14, 15. Regina v. Wil- « 5 Gush. 295, 321. 684 CRIMINAL LAW. The other counts varied thus : One charging a mortal wound by stabbing with a knife ; another by a blow on the head with a hammer ; and a third by striking, kicking, beating and throwing on the ground. And upon these a general verdict was rendered. The necessity for resorting to these various and somewhat inconsistent forms of alleging the mode in which the death was caused is well stated by Chief Justice Shaw : and the reason for their being introduced equally re- quires and justifies a general verdict upon all such as are legally formal, varying only in the statement of the means of death. In reference to such counts, it was there said by the court: " Take the instance 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. That 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." In the case supposed, it would be as impracticable for the jury of trials to find upon the evidence which actually caused the death, as it would be for the grand jury who presented the indictment. The form of the indictment in Commonwealth v. Desmarteau,' and the reasons for it, are strikingly like the case above supposed. In the conclusion of the indictment, the murder is there charged upon the prisoner as a consequence from the pre- vious allegations. The usual formula runs thus: "And so the jurors aforesaid upon their oath aforesaid do say, that the said C. D. the said E. F., in manner and form aforesaid, and by the means aforesaid, feloniously, wilfully and of his mal- ice aforethought, did kill and murder." " Murder" is a par- ticular term of art to which the law has annexed a clear and well-defined meaning, and for which an equivalent expression cannot be used.^ Where the stroke &c. is at one time or place, and the 1 16 Gray, 1, 12, 13. Q. B. 446. Per Shaw, C. J., in " Per Willes, J., in Regina v. Commonwealth «. Davis, 11 Pick. Harvey, 40 L. J. M. C. 66. Per 438. Ante, p. 90 note. Parke, B., in Holford v. Bailey, 13 HOMICIDE. 685 death at another, cave must be taken that the time or place assigned, in the conclusion,^ for the murder or manslaughter, shall be that at which the party dies ; as otherwise it would be repugnant and naught ; for it is not murder &c. until the death of the party .^ 1. Indictment for Murder. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one E. F. feloniously, wilfully and of his malice aforethought,^ did make an assault, and that, after stating the manner and means of committing the offence, allege the death thus : of which said mortal strokes, wounds and bruises, according to the fact, the said E. F. from the said first day of June in the year aforesaid until the first day of July in the year aforesaid, at B. aforesaid in the county aforesaid, did languish and lan- guishing did live, on which said first day of July in the year aforesaid, the said E. F. at B. aforesaid in the county afore- said, of the said mortal strokes, wounds and bruises, died. Or, if the parti/ died very soon after the stroke ^c, thus : of which said mortal strokes, wounds and bruises, the said E. F. then and there instantly died.* And so the jurors aforesaid ' In Eex I'. Nicholas, 7 C. & P. A., is vicious, for the murder was 538, 541, Littledale, J., said: " The completed at B., by the death of the common forms in murder and man- party there. ' ' slaughter do not aUege time and ^ 1 Gabbett Crira. Law, 507. 1 place at the end of the indictment. East P. C. Si7. 2 Deacon Grim. It is a mere conclusion, and I think Law, 930. it is more correct to leave them " It is not necessary to charge out." In Starkie's Criminal Plead- that the assault was made " feloni- ing (vol. i. p. 65) it is said: "la ously, wilfully and of malice afore- an indictment, though it is unneces- thought." Commonwealth k. Chap- sary to aver a mere conclusion of man, 11 Gush. 422. law with either time or place, yet if * la the case of Regina v. Brown- it be averred with time and place, low, 3 Per. & Dav. 52, 56, Lord and improperly, the indictment will Denman, C. J., in delivering the be defective. If, therefore, the judgmentof the court, said: "There stroke be laid al A., and the death are two defects in the finding, which at B., the indictment averring in though technical in their nature, conclusion that the defendant felo- must be held fatal, according to niously murdered the said C. D. at the known rules of pleading. 1st, 686 CRIMINAL LAW. upon their oath aforesaid do say, that the said C. D. him the said E. F. in manner and form aforesaid, or, last aforesaid, in concluding a second or subsequent count, feloniously, wilfully and of his malice aforethought did kill and murder ; against the peace &c. 2. Conclusion in an Indictment for Manslaughter. And so the jurors aforesaid upon their oath aforesaid do say, that the said C. D. him the said E. F. in manner and form aforesaid, feloniously did kill and slay ; against the peace &c. 3. Indictment for Manslaughter Charging that Death 'was Caused by Starvation and Exposure. — Gen. Sts. oh. 171, § 19.i The jurors &c. on their oath present, that Charles H. Mac- loon and Nicholas Kearney on the first day of December in There is no time stated for the ex- plosion of the boiler — ' on the day of A. B. being on board the steamer the boiler exploded.' Here is no averment of any day when that fact occurred, and we are bound by the authority of Cotton's Case, Cro. Eliz. 738, to hold that this form of averment refers the day to the cir- cumstance of the deceased being on board, and does not apply to the fact of explosion. 2d, ' Of which mortal blow &c., A. B. at the place aforesaid, instantly died.' It is contended that instantly is equiva- lent to then, which word was em- ployed immediately before in con- nection with the shock described, and that word is admitted to be sufficient. We think it not equiva- lent. Then, adtunc, means the very time at which the other event happened ; it therefore involves the same day; and such is the known sense of the term in pleading. But of instantly the more natural and usual sense is instantly after : we do not know what the pleader may mean by that allegation, — possibly five minutes or an hour, some time on the succeeding day, or even a longer time. By the course of pre- cedents such words as instanter and incontinenier do not dispense with a direct allegation of time; we re- peatedly find them associated with it." 1 An indictment under this sec- tion of the statute, which alleges that the death was caused by a wound- ing, an exposure, and a starving, is not bad for duplicity, nor for failure to allege that the wounding, expos- ure and starving were "mortal," or of a mortal nature; and is sus- tained by proof that the death was caused by all or any of the alleged means. The statute speaks of a mortal wound given, " or other vio- lence or injury inflicted," or poison administered. The word " inflict " does not necessarily imply direct violence. Any bodily harm which is caused to be suffered by the act of the accused is an "injury in- flicted," within the meaning of the statute Commonwealth v. Mac- loon, 101 Mass. 1, 23. HOMICIDE. 687 the year of our Lord and on divers other days and times between that day and the sixth day of February in the year of our Lord on the high seas, in and upon Charles E. Hooper, feloniously, wilfully and designedly did make divers, to wit, twenty assaults, and with a club and with a belaying-pin and with a rope and with an iron hook and with a heaver in and upon his head, chest, arms, shoul- ders and back at the several times aforesaid on the high seas aforesaid feloniously did strike and beat, then and there thereby giving to him in and upon his head, chest, arms, shoulders and back divers, to wit, twenty wounds ; and did then and at the several times aforesaid there inflict divers other injuries upon his body, by then and there wilfully, de- signedly and feloniously exposing him to the severities of the weather and to the wind, the rain, the frost and the cold, and by then and there wilfully, designedly and feloniously de- priving him of sufficient and suitable food and nourishment, the defendants being then and at said several times there legally obliged and bound to supply him with sufficient and suitable food and nourishment, and having sufficient and suit- able food and nourishment to give him, and he being unable to procure and provide for himself such suitable food and nour- ishment; that after the injuries aforesaid inflicted as afore- said upon him, he came to Chelsea in the County of Suffolk and this Commonwealth, and there, by means of the wounds and other injuries aforesaid, so as aforesaid inflicted by the defendants upon him, he, on the sixth day of February in the year of our Lord did die. And so the jurors &c. 4. For Murder by Striking 'with an Aze. The jurors &c. upon their oath present, that John L. Chapman, of Sherborn in the County of Middlesex, on the fourteenth day of September in the year of our Lord one thousand eight hundred and fifty-three, at Sherborn afore- said in the county aforesaid, with force and arms, in and upon one Reuben Cozzens, did make an assault,^ and that the 1 It is not necessary to allege that Commonwealth v. Chapman, 11 the assault was made " wilfully Cush. 422. and with malice aforethought." 688 CRIMINAL LAW. said John L. Chapman, with a certain axe, the said Reuben Cozzens, in and upon the back side of the head of the said Reuben Cozzens, then and there feloniously, wilfully and of his malice aforethought, did strike and bruise giving to the said Reuben Cozzens then and there with the axe aforesaid in and upon the said back side of the head of the said Reu- ben Cozzens, one mortal wound ^ of which said mortal wound the said Reuben Cozzens then and there instantly died. And so the jurors aforesaid upon their oath aforesaid do say, that the said John L. Chapman, the said Reuben Cozzens then and there, in manner and form aforesaid, feloniously, wilfully and of his malice aforethought, did kill and murder ; against the peace of said Commonwealth, and contrary to the form of the statute in such case made and provided. 5. For Murder by Poisoning. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and of his malice aforethought, did put, mix and mingle a cer- tain quantity of white arsenic, the same being a deadly poi- son, with a certain quantity of beer, the said C. D. then and there well knowing the said white arsenic to be a deadly poison, with intent then and there of him the said C. D. that the said beer so mixed and mingled with the arsenic as afore- said should be taken, drunk and swallowed by one E. F., and with intent of him the said C. D. then and there and thereby to poison, kill and murder the said E. F.^ And the jurors aforesaid upon their oath aforesaid do further present, that the said E. F. afterwards, to wit, on the same day and 1 This is a sufficient description by administering poison, it is not of the wound. The court distin- necessary to allege that it was ad- guished this from an incised wound, ministered with intent to kill and because the indictment alleged that murder. Commonwealth v. Hersey, the prisoner " did strike and 2 Allen, 173. The general rules of bruise " &c. Commonwealth v. criminal pleading applicable to this Chapman, 11 Cush. 422. But see and similar offences are tersely Commonwealth v. Woodward, 102 stated in the opinion. Ante, pp. 61, Mass. 159. Ante, p. 682, 683. 62. ° In an indictment for murder HOMICIDE. 689 j'ear aforesaid, at B. aforesaid in the county aforesaid, did take, drink and swallow down a great quantity of the said beer, with which the said white arsenic was mixed and min- gled by the said C. D. as aforesaid, the said E. F. not know- ing that there was any white arsenic or other poisonous ingredient, mixed or mingled with the said beer as aforesaid ; by means whereof the said E. F. then and there became sick and distempered in his body, and the said E. F., of the poison aforesaid, so by him taken, drank and swallowed down as aforesaid, and of the sickness occasioned thereby, from the said first day of June in the year aforesaid, until the twenty- eighth day of said June in the same year, at B. aforesaid in the county aforesaid, did languish, and languishing did lire, on which said twenty-eighth day of June in the year aforesaid, at B. aforesaid in the county aforesaid, the said E. F., of the poison aforesaid, and of the sickness and distemper occasioned thereby, died. And so the jurors aforesaid upon their oath aforesaid do say, Jhat the said C. D., in manner and form aforesaid, the said E. F. feloniously, wilfully and of his malice aforethought, did poison, kill and murder ; against the peace of the said Commonwealth, and contrary to the form of the statute in that case made and provided. 6. For Manslaughter against the Engineer of a Steamboat, for so Negligently Managing the Engine that the Boiler Burst, and thereby Caused the Death of a Fassenger.l The jurors &c. upon their oath present, that Henry Robert Heasman of B. in the County of M., engineer, on the twenty- seventh day of August in the year of our Lord at B. in the county aforesaid, was employed as an engineer in and on board a certain steamboat called the Cricket, then and there floating on the waters of a certain river called the Thames, there situate, in and on board which said steamboat there then were divers, to wit, one hundred citizens, as the said Henry Robert Pleasman then and there well knew ; and that the said Henry Robert Heasman, as such engineer as aforesaid, then and there had and took upon himself the care, charge, management and control of a certain 1 2 Cox C. C. Appendix, p. c. 44 690 CRIMINAL LAW. steam-engine and boiler, being then and there in and attached to the said steamboat, for the purpose of propelling the same, and in which said boiler there were then and there divers large quantities of boiling water, whereby to generate steam, whereby to work the said steam-engine, as the said Henry Robert Heasman then and there well knew ; and that it then and there became and was the duty of the said Henry Rob- ert Heasman, as such engineer as aforesaid, to regulate the quantity and amount of steam to be generated and retained within the said boiler, during the time the said boiler was used and employed for. the purpose aforesaid, according to the strength and within the capacity of the said boiler. And the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heasman, on the day aforesaid in the year aforesaid, at B. aforesaid in the county aforesaid, so having the care, charge, management and control of the said boiler as aforesaid, did wilfully and feloniously neglect and omit to regulate the quantity and amount of steajp then and there being generated and retained in the said boiler, according to the strength and within the capacity of the said boiler, and did then and there wilfully, negligently and feloniously per- mit and suffer a much larger amount of steam, to wit, ten thousand cubic feet of steam, to be generated and retained within the said boiler, than the said boiler was strong enough to contain and bear, and capable of containing and bearing, and that the said Henry Robert Heasman did then and there by his said negligence in so permitting and suffering the said generation and retention of steam within the said boiler more than the said boiler was strong enough to contain and bear, and capable of containing and bearing as aforesaid, unlaw- fully and feloniously cause the said boiler to burst, and did then and there by means of the said bursting of the said boiler, unlawfully and feloniously make an assault upon one Thomas Shed, the younger, on board the said steamboat then and there lawfully being, and the said Thomas Shed down upon and against the planks, iron and timbers of the said steamboat called the Cricket, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of HOMICIDE, 691 which said mortal fracture of his skull the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heasman, on the day aforesaid in the year aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed, in manner aforesaid, unlawfully and feloniously did kUl and slay ; against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid and in the year aforesaid, at B. aforesaid in the county aforesaid, being then and there the engineer in and ou board the said steam- boat called the Cricket, then and there floating on the waters of the said river called the Thames, there situate, and on board which said steamboat there were then. and there divers large numbers of citizens, as the said Henry Robert Heasman then and there well knew, had and took upon himself, as such engineer as aforesaid, the care, charge, management and control of a certain steam-engine and boiler, then and there being in and on board the said steamboat, and in which the said last-mentioned boiler there were then and there divers large quantities of .boiling water, for the purpose of generat- ing steam, and thereby working the said engine, and that it then and there became and was the duty of the said Henry Robert Heasman then and there so to regulate, manage and control the said last-mentioned boiler as that all the surplus quantity of steam generated and made within the said last- mentioned boiler, beyond such quantity of steam as the said last-mentioned boiler was capable of containing, bearing and retaining, might, from time to time, and at all times, so often as might be necessary, escape from and out of the said last- mentioned boiler, through and by means of certain, to wit, four safety-valves, which were then and there made and constructed in the said last-mentioned boiler, for such pur- pose as the said Henry Robert Heasman then and there well knew. And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, so then and there having the care, charge, manage- 692 CRIMINAL LAW. ment and control of the said last-mentioned boiler, as last aforesaid, did then and there wilfully and feloniously neglect to regulate the quantity and amount of steam then and there generated and contained within the said last-mentioned boiler as last aforesaid, and did then and there negligently, wilfully and feloniously permit and suffer a larger quantity and amount of steam to be accumulated, confined and retained within the said last-mentioned boil«r than the said last-mentioned boiler was capable of containing and bearing, whereby it then and there became and was necessary that the said last-mentioned steam should escape from and out of the said last-mentioned boiler, through and by means of the said safety-valves, or one of them. And the jurors aforesaid upon their oath afore- said do further present, that the said Henry Robert Heas- man, well knowing the premises, wilfully and feloniously did neglect so to regulate, manage and control the said last- mentioned boiler, as that the said last-mentioned steam could escape from and out of the said last-mentioned boiler, through and by means of the said four safety-valves, or one of them, and did then and there, by means of his said negli- gence, as in this count aforesaid, unlawfully and feloniously cause the said last-mentioned boiler to burst, and did then and there by means of the said last-mentioned bursting of the said boiler, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron and timbers of the said steamboat called the Cricket, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heas- man, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed, in manner last aforesaid, unlawfully and feloniousty did kill and slay ; against the peace &o. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid and in the HOMICIDE. 693 year aforesaid, at B. aforesaid in the county aforesaid, being then and there the engineer in and on board the said steam- boat called the Cricket, then and there floating on the waters of a certain riTer called the Thames, there situate, and in and on board which said steamboat there were then and there divers large numbers of citizens, as the said Henry Robert Heasman then and there well knew, was intrusted with, and then and there took upon himself, as such engineer as aforesaid, the care, charge, management and control of a certain steam-engine and boiler, then and there being in and on board the said steamboat, and in which said last-mentioned boiler there were then and there divers large quantities of water, by the boiling of which water divers large quantities of steam were then and there continually ascending and aris- ing, and being generated and made within the said last-men- tioned boiler, and that the said last-mentioned boiler was then and there made and constructed with, and then and there had certain, to wit, four safety-valves and openings, through which all such steam within the said last-mentioned boiler, so being generated and made as last aforesaid, beyond such steam as the said last-mentioned boiler was capable of holding and containing, and was strong enough to hold and contain, might and could and would, from time to time, escape and find vent from and out of the said last-mentioned boiler, without hurt or damage to any citizens ; all which premises the said Henry Robert Heasman then and there well knew. And the jurors aforesaid upon their oath aforesaid do further say, that, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, and while divers large quantities of steam were being generated and made in the said last-mentioned boiler, as in this count aforesaid, the said Henry Robert Heasman wilfully and feloniously did close, tie down, fasten, and keep closed, tied down and fastened, the said four safety-valves of the said last-mentioned boiler, and by such closing, tying down and fastening, and keeping closed, tied down and fastened the said safety-valves, did then and there binder and prevent the said steam, so being generated and made in the said last-mentioned boiler as last aforesaid, from then and there escaping and finding vent from 694 CRIMINAL LAW. and out of the said last-mentioned boiler, as it might and ought and otherwise would then and there have done, and thereby and by means of the premises in this count aforesaid, the said Henry Robert Heasman did then and there unlawfully and feloniously cause the said last-mentioned boiler to burst, and did then and there, and by the means last aforesaid, un- lawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron and timbers of the said steamboat called the Cricket, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed, in manner last afore- said, unlawfully and feloniously did kill and slay ; against the peace &c. Fourth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid and in the year aforesaid, at B. aforesaid in the county aforesaid, being such engineer as aforesaid, was intrusted with, and then and there took upon himself the care, management and control of a certain steam-engine and boiler, then and there being in the said steamboat called the Cricket, in which said last-men- tioned boiler there was then and there a large quantity, to wit, ten thousand cubic feet of steam, and it then and there became and was the duty of the said Henry Robert Heasman to provide for and secure the escape of a certain quantity, to wit, five thousand cubic feet of the said steam, from and out of the said last-mentioned boiler, in order to prevent the bursting of the said last-mentioned boiler from the pressure of the said steam. And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, well knowing the premises, but wilfully and felo- niously neglecting his duty in that behalf, did not then and there provide for or secure the escape of the said part of the HOMICIDE. 695 said steam from and out of the said last-mentioned boiler, but on the contrary thereof, wilfully, negligently and feloni- ously did permit and suffer the said quantity, to wit, ten thousand cubic feet of steam, to be and remain in the said last-mentioned boiler, by means of the retention of which said steam in the said last-mentioned boiler, and the pressure thereof, the said last-mentioned boiler did then and there burst and explode, and by force of the said bursting and explosion, the said Thomas Shed, then and there lawfully being on board of the said steamboat, was then and there thrown and cast down upon and against the planks, iron and timbers of the said steamboat, by which said throwing and casting of the said Thomas Shed down upon and against the planks, iron and timbers of the said steamboat, in manner last aforesaid, the said Henry Robert Heasman did then and there wilfully and feloniously give to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed, in manner last aforesaid, unlawfully and feloni- ously did kill and slay ; against the peace &c. Fifth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid in the year aforesaid, at B. aforesaid in the county aforesaid, did wilfully and feloniously close, tie down and fasten, and did keep closed, tied down and fastened, certain, to wit, four safety- valves of a certain boiler, in which said last-mentioned boiler divers large quantities, to wit, ten thousand cubic feet of steam, beyond such quantity of steam as the said last-men- tioned boiler was capable of bearing, were then and there accumulated, confined and retained, and that thereby, and by means of the premises in this count mentioned, the said Henry Robert Heasman did then and there unlawfully and feloni- ously cause the said last-mentioned boiler to burst, and did then and there, and by the means last aforesaid, unlawfully and feloniously make an assault upon the said Thomas Shed, 696 CRIMINAL LAW. and the said Thomas Shed, down upon and against the planks, iron and timbers of a certain steamboat called the Cricket, then and there being, then and there unlawfully and feloni- ously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heas- man, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed in manner last afore- said, unlawfully and feloniously did kill and slay ; against the peace &c. Sixth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid in the year aforesaid, at B. aforesaid in the county aforesaid, did wil- fully and feloniously, by causing to be made and generated within a certain boiler, and by keeping and retaining within the said last-mentioned boiler divers large quantities, to wit, ten thousand cubic feet of steam more than the said last- mentioned boiler was strong enough and able to contain and bear, cause the said last-mentioned boiler to burst, and did then and there, and by the means last aforesaid, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron and timbers of a certain steamboat called the Cricket, then and there being, then and there unlawfully and feloni- ously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heas- man, on the day and j'car last aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed, in manner last afore- said, unlawfully and feloniously did kill and slay ; against the peace &c. Seventh Count. — And the juroi-s' aforesaid upon their oath aforesaid do further present, that the said Henry Robert Heasman, afterwards, to wit, on the day aforesaid in the HOMICIDE. 697 year aforesaid, at B. aforesaid in the county aforesaid, in and upon one Thomas Shed, in and on board of a certain steamboat called the Cricket, then and there law- fully being, did make an assault, and a certain boiler, then fixed in the said steamboat, and then and there con- taining and having within it divers large quantities, to wit, ten thousand cubic feet of steam, and ten thousand cubic feet of vapor, wilfully and feloniously did cause to burst at, upon, and against the said Thomas Shed, and thereby and by means of the force and violence of the said steam and vapor, rushing and escaping from the said last- mentioned boiler, and by means of the broken parts of the boiler, so then and there burst as last aforesaid, the said Thomas Shed then and there unlawfully and feloniously did cast and throw down upon and against the planks, iron and timbers of the said steamboat called the Cricket, then and there being, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last-mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at B. aforesaid in the county aforesaid, the said Thomas Shed, in manner last afore- said, unlawfully and feloniously did kill and slay ; against the peace &e. 7. For Manslaughter, by Neglect to Give a Proper Signal to Denote the Obstruction of a Line of Rail'way, whereby a Collision took Place and a Passenger vras Killed.^ The jurors &c. upon their oath present, that before and at the time of committing the felony hereinafter mentioned, ' 1st. This indictment charges compatible ■with his duty there, that the prisoner's duty was to at- Held, that it was not necessary to tend to the proper working of the set forth all the other duties, and signals, according to the rules, then to negative that the prisoner Held, that it was not necessary to was employed at the time in the set out the rules. 2d. It appeared discharge of either of such other that the prisoner had many other duties. 3d. Held, that an averment duties, besides attending to the sig- that it was prisoner's duty to signal nal posts, some of them being in- an obstruction, and there was an CRIMINAL LAW. George Pargeter of Shrivenham in the County of Berks, on the eleventh day of May in the year of our Lord ' at S. aforesaid in the County of Berks aforesaid, was a servant and poHceman in the service and employ of a certain com- pany, to wit, the Great "Western Railway Company, in and upon a certain railway, to wit, the Great Western Railway. And the jurors aforesaid upon their oath aforesaid do further present, that before and at the time of committing the said felony, certain signal posts had been and were erected by the said company near to certain stations upon the said railway, for the purpose of making signals for the regulation, guidance and warning of the drivers of locomotive engines attached to and drawing the trains of carriages travelling upon and along the said railway, which said signals were sufficient a^nd proper for the purposes aforesaid, and were, at the time of the com- mitting of the said felony, in constant use and in full force and effect, and well known to the said G. P., to wit, at S. aforesaid in the County of Berks aforesaid. And the jurors aforesaid upon their oath aforesaid do further present, that one of such signals, in such use and so used as aforesaid, and known to the said G. P. as aforesaid, when made, denoted, and was intended to denote and give warning and notice to the said drivers, that the line of the said railway, at the station near unto which the said signal was made, was then free from obstruction ; and that the driver of any engine attached to and drawing any train of carriages then approaching the said station, might safely pass through the same, with the train, without stopping, and which said signal was then and there called and known by the name of the "all right" signal, and that one other of such signals so used as aforesaid, and known obstruction -which prisoner neglected scribing it. 5th. That a count to signal, was a sufficient description which charged hoth a neglect to give of the oiience, and that it was not the right signal, and the giving of necessary to aver that the prisoner's the wrong signal, is not bad for duty was, if there was an obstruc- duplicity. 6th. That it is sufficient tion and he saio i7, to signal it, and to charge "that the prisoner did that there was an obstruction which neglect and omit to alter the said he might have seen, but neglected signal," without stating more par- to see. 4th. That it is sufficient to ticularly what was the specific alter- aver the duty to be to make "a ation which he so neglected to make, proper signal," without further de- Begina v. Pargeter, 3 Cox C. C. 191. HOMICIDE. 699 to the said G. P. as aforesaid, when made, denoted, and was intended to denote and give warning and notice to the said drivers, that the line of the said railway near to which the said last-mentioned signal was made, was then obstructed ; and that the driver of any engine attached to and drawing any train of carriages then approaching the said station could not safely pass through the same, with the train, without stopping, and which said last-mentioned signal was then and there called and known by the name of the signal " to stop." And the jurors aforesaid upon their oath aforesaid do further present, that certain rules and directions had been and were, at the time of the committing of the said felony, established for the guidance of the conduct of the servants and policemen of the said company employed in and upon the said railway, and having the care and regulation of the said signals, and which said rules and regulations were suf&cient and proper for the purposes aforesaid, and were, at the time of committing the said felony, in full force and effect, and well known to the said G. P., to wit, at S. aforesaid in the said County of Berks. And the jurors aforesaid upon their oath aforesaid do further present, that the said G. P. on the day and year aforesaid, at S. aforesaid in the County of Berks aforesaid, in and upon one Arthur Augustus Lea feloniously did make an assault ; and that the said G. P. so being such servant and policeman in the service and employment of the said Great Western Rail- way Company as aforesaid, then and there had, by virtue of such his employment, the care and regulation of the said sig- nals, at a certain signal post erected and being near a certain station on the said line of the said railway, to wit, the Shriven- ham station, and near the line of the said railway there, and that before and on the said eleventh day of May in the year • aforesaid, at S. aforesaid in the County of Berks aforesaid, it became and was the duty of the said G. P. to attend to the due and proper righting, exhibiting and making of the said signals at the said last-mentioned station, and dul3' and prop- erly to work, exhibit and make the same, according to the rules and regulations there established for the guidance of the conduct of the servants and policemen of the said com- pany employed in and upon the said railway as aforesaid. 700 / CRIMINAL LAW. And the jurors aforesaid upon their oath aforesaid do further present, that on the day and year aforesaid, at S. aforesaid'in the County of. Berks aforesaid, a certain train of carriages drawn by a locomotive engine, under the care and guidance of a certain driver thereof, to wit, one Robert Roscoe, was travelling on the said railway, to wit, from Exeter to London, and was before and at the time of the committing of the felony by the said G. P. as hereinafter mentioned, due at the said Shrivenham station, to wit, at the hour of three of the clock in the afternoon of the said eleventh day of May, and was expected and intended, according to the time-table and regu- lations by the said company in that behalf established, to arrive and pass through the said Shrivenham station, at the time and hour last aforesaid, as the said G. P. then and there well knew ; and that the said G. P. had then and there, in expec- tation of the arrival of the said last-mentioned train of car- riages, made and turned on the signal called the " all right " signal. And the jurors aforesaid upon their oath aforesaid do further present, that afterwards and before the arrival of the said last-mentioned train of carriages at the Shrivenham Station, to wit, on the day and year aforesaid, at S. aforesaid in the County of Berks aforesaid, a certain carriage, to wit, a horse-box, was put and placed and continued, and was upon and across and obstructing the same line of rails of the said railway, near to the said Shrivenham station, as that on which the said last-mentioned train of carriages was then travelling, and it thereupon then and there, and in consequence of such last-mentioned obstruction, became and was the duty of the said G. P. to alter, remove and turn off the said signal called the " all right " signal, and to make, turn on, and keep made and turned on, the said signal called the signal " to stop." And the jurors aforesaid upon their oath aforesaid do farther present, that the said G. P. then and there being wholly un- mindful and neglectful of his duty in that behalf, at the time and place last aforesaid, on the day and year aforesaid, at S. aforesaid in the County of Berks aforesaid, unlawfully and feloniously did neglect and omit to alter, remove and turn off the said signal called the " all right " signal, and did then and there unlawfully and feloniously neglect and omit to make, HOMICIDE. 701 turn on, and keep made and turned on, the said signal called the signal " to stop." By means of which several premises, and of the said felonious omissions and neglect by the said G. P. as aforesaid, the driver of the engine attached to the said last-mentioned train of carriages, to wit, the said R R., was induced to believe, and did believe that the line of rails of the said railway, upon which the last-mentioned train of carriages was then travelling, was then all clear and without obstruction, and that the said driver, to wit, the said R. R., might then safely pass through the said Shrivenham station with the last-mentioned engine and train of carriages without stopping; and the said driver, to wit, the said R. R., acting upon such belief as aforesaid, did thereupon, on the day and year aforesaid, at S. aforesaid in the County of Berks afore- said, drive the said engine so attached to and drawing the last-mentioned train of carriages as aforesaid, through the said Shrivenham station, and in so drawing the said last- mentioned engine and train of carriages did then and there unavoidably, and without any fault or default of the said R. R., with great force come into violent contact and collision with the said carriage, called a horse-box, then being on, upon and across and obstructing the same line of rails of the said railway as that on which the said last-mentioned train of carriages was then travelling, near to the said Shrivenham station there, by means of which said contact and collision caused and occasioned as aforesaid, the said A. A. L. then lawfully being and travelling in one of the carriages of the said last-mentioned train of carriages, was then and there vio- lently and forcibly thrown on and against the back and sides of the said carriage in which he was so travelling as aforesaid, and was then and there violently and forcibly cast and thrown from and out of the said carriage in which he was so travel- ling as aforesaid, down to and upon the ground there ; by means of which said casting and throwing of the said A. A. L., as well to and against the sides and back of the said carriage in which he was so travelling as aforesaid, as from and out of the said carriage, down to and upon the ground there as aforesaid, the said A. A. L. then and there had and received, and the said G. P. then and there feloniously did give and 702 CRIMINAL LAW. cause to be given to the said A. A. L. divers mortal wounds, bruises and contusions in and upon the head, body, arms and legs of the said A. A. L., and divers mortal fractures of both the legs of the said A. A. L., and divers mortal ruptures of the blood-vessels in and upon the brain of the said A. A. L., of which said mortal wounds, bruises and contusions, mortal fractures and mortal ruptures of the said A. A. L. on and from the said eleventh day of May in the year aforesaid, as well at Shrivenham aforesaid in the County of Berks afore- said, as at Swindon in the County of Wilts, did languish, and languishing did live, and there, to wit, on the day and year last aforesaid, at Swindon aforesaid in the Countj^ of Wilts aforesaid, of the said mortal wounds, bruises and contusions, mortal fractures and mortal ruptures, did die. And so the jurors aforesaid upon their oath aforesaid do say, that the said G. P., in manner and form aforesaid, the said A. A. L., at Swindon aforesaid in the County of Wilts aforesaid, feloni- ously did kill and slay ; against the peace &c. Second Count. — The second count states that " It was the duty of the said G. P. as such servant and policeman as afore- said, to make certain signals to the drivers of locomotive engines attached to and drawing or propelling trains travel- ling upon and along the said railway, and passing along the same at a certain part thereof, to wit, near a certain station, to wit, the said Shrivenham station, to wit, at Shrivenham aforesaid in the County of Berks aforesaid, for the purpose of giving warning and notice to the said drivers, whether the line of rails of the said railway on and upon which any such locomotive engine and train of carriages as aforesaid should or might be passing at, near and through the said Shriven- ham station, was free of obstruction or not, of all which the said G. P. at the time of the committing of the said felony had full knowledge and notice, to wit, at the day and year last aforesaid, at S. last aforesaid in the County of Berks aforesaid." It then proceeds to aver that a train was travel- ling on the line, " on and along the part of the said railway which lies in the said parish &c., and up to, and towards the place where it was the duty of the said G. P. to make such signals as aforesaid," and that just before the time of its HOMICIDE. 703 arrival at the said place, " there was a certain obstruction on and upon the same line of rails as that upon which the said last-mentioned locomotive engine and train was travelling, to wit, a certain horse-box, standing and being upon and across the said last-mentioned line of rails, near to the place where it was the duty of the said G. P. to make such signals as last aforesaid, to wit, at the parish last aforesaid in the County of Berks. And the said G. P. could, and might and ought then and there, to wit, at S. last aforesaid in the County of Berks, on the said eleventh day of May in the year aforesaid, in the course of his duty, and in the exercise of reasonable and proper skill and diligence, to have given warning and notice by means of the proper signal to the driver of the said last- mentioned locomotive engine, attached to and drawing the last-mentioned train of carriages, to wit, the said R. R., that there was then such obstruction as last aforesaid, in and upon the said line of rails, to wit, the said horse-box. And the jurors &c. do further present, that the said G. P. then and there being wholly unmindful and neglectful of his duty in that behalf, on &c., at &c., unlawfully and feloniously did neglect and omit to give notice and warning, by means of the proper signal, to the driver of the last-mentioned locomotive engine attached to and drawing the said last-mentioned train of carriages, to wit, the said R. R., that then there was an obstruction upon the same line of rails as that on which the said last-mentioned train of carriages was then travelling, by means of which " &c. Third Count. — The third count states the averment of the signals, and of the prisoner's duty, thus : Reciting, that the said G. P. was in the employ &c., as a policeman, and that " for the safe and proper working and travelling of the several trains of carriages and locomotive engines proceeding along and upon the said railway, certain signals had been and were at the time of the committing of the offence by the said G. P. as hereinafter mentioned, established by the said company at and near a certain station upon the said railway, and at and near the said station, to wit, the Shrivenham station, at which the said G. P. was employed as aforesaid, and were 704 CRIMINAL LAW. well known to the said G. P., to wit, at S. last aforesaid in the County of Berks aforesaid. And the jurors &c. do further present, that on the said &c., at &c., the said G-. P. had the care and control of the said signals, at the said station, to wit, the Shrivenham station, at which the said G. P. was so employed as servant or policeman as aforesaid, and it then and there became and was the duty of the said G. P., by virtue of such his employment as aforesaid, from time to time, and at all times, as occasion might require, to make due and proper signals to the drivers of all locomotive engines travelling along and upon the said railway, and enter- ing the said station, to wit, the Shrivenham station." The count then proceeds to set forth that a train was travelling on the said line of railway, that a horse-box had been placed upon and across it so as to obstruct the passage of the train, " and that it thereupon then and there became the duty of the said G. P. to indicate by proper signals to the driver of the said last-mentioned train of carriages so due and about to enter and pass through the said last-mentioned station as aforesaid, that the line of rails of the said railway upon which the said last-mentioned train of carriages were then travel- ling, was there obstructed. And the jurors &c. do further present, that the said G. P. afterwards, to wit, on the day &c., at &c., wholly neglecting his duty in that behalf, with force and arms, unlawfully and feloniously did neglect and omit to indicate by proper signals to the driver of the said last-mentioned train of carriages so travelling upon the said railway as aforesaid, and so due, and about to enter and pass through the said last-mentioned station as aforesaid, that the line of rails of the said railway upon which the said last- mentioned train of carriages was then travelling, was then obstructed, but on the contrary thereof, the said G. P. then and there unlawfully and feloniously did indicate by signals to the driver of the said last-mentioned train of carriages, that the line of rails of the said railway, on which the said last-mentioned train of carriages was then travelling, at or near the said last-mentioned station, was then all clear and free from obstructions, by means of which several premises HOMICIDK. 705 and the said felonious omissions and neglects of the said G. P." &c. &c. The fourth count was a common count for manslaughter, by assaulting, beating and bruising &c. 8. For Manslaughter against the Driver and Fireman of a Rail- ■vray Engine for Negligently Driving against another Engine whereby the Deceased met his Death. ■* The jurors &c. upon their oath present, that S. H. of Richmond in the County of Surrey, and W. W. of the same place, on the seventeenth day of November in the year of our Lord at R. aforesaid in the county aforesaid, in and upon R. P. feloniously and wilfully did make an assault. And the jurors aforesaid upon their oath aforesaid do further present, that before and on the said seventeenth day of November, the said S. H. was employed by a certain body corporate, to wit, the London and South- Western Rail- way Company, for the purpose of conducting, driving, managing and controlling certain locomotive steam-engines belonging to the said London and South-Western Railway Company, and that the said W. W. before and on the day and year aforesaid, was employed by the said London and South-Western Railway Company, for the purpose of assist- ing the said S. H. in the conducting, driving, management and control of such locomotive steam-engines as aforesaid, and that, by virtue of such their respective employments, the said S. H. Avas, on the day and year aforesaid, at R. aforesaid in the county aforesaid, conducting and driving, and then and there had the management and control of a certain locomo- tive steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there the property of and belonging to the said London and South-Western Railway Company, and were then and there in and upon a certain side line of railway leading into and upon a certain main line, to wit, the Richmond Railway, and the said W. W. was then and there, the said S. H., in and about the said conducting, driving, 1 3 Cox C. C. Appendix, p. Ivii. 45 706 CEIMINAL LAW. management and control of the said locomotive steam-engine and tender, aiding and assisting, and that it then and there became and was the duty of the said S. H. and of the said W. W., by virtue of their said employment, not to conduct or drive, or suffer or permit to be conducted or driven, the said locomotive steam-engine and tender from and off the said side line of railway, into, upon or across the said main line of railway, in case any train or engine should be then due, and about to arrive at that part of the said main line of rail- way where the same was joined by the said side line of rail- way aforesaid ; yet the said S. H. and the said W. W., well knowing the premises, and well knowing that a certain train, to wit, a train consisting of a certain other locomotive steam- engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, was then and there lawfully travelling, and being propelled on and along the said main line of railway, and was then due and about to arrive at that part of the said main line of railway where the same was joined by the side line of railway aforesaid ; but disregarding their duty in that behalf, did, on the day and year aforesaid, at the parish aforesaid in the county aforesaid, and within the jurisdiction of the said court, wilfully and feloniously, and with great force and violence, and in a wan- ton, negligent and improper manner, and contrary to their said duty in that behalf, and while the said train was so then and there due, and about to arrive as aforesaid, conduct and drive, and suffer and permit to be conducted and driven, the said first-mentioned locomotive steam-engine and tender from and off the said line of railway, into, upon and across the said main line of railway, and into, upon and against the said train so then and there lawfully travelling and being pro- pelled on and along the said main line of railway as afore- said ; and that the said S. H. and the said W. W. did thereby, and by means of the said several premises, and by reason of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, then and there wilfully and feloniously, and with great force and vio- lence, push, force, dash, drive and jam, and cause to be pushed, forced, dashed, driven and jammed in, upon, over, against and between a certain part of the said first-men- HOMICIDE. 707 tioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing and being in and upon the said first-mentioned locomotive steam- engine, and did then and there, by means of the pushing, forcing, dashing, and driving and jamming aforesaid, wilfully and feloniously inflict and cause to be inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs and feet of the said R. P., divers mortal wounds, bruises, contusions, burns and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns and scalds, the said R. P., on the day and year aforesaid, at R. aforesaid in the county aforesaid, instantly died. And so the jurors afore- said upon their oath aforesaid do say, that the said S. H. and the said W. W., the said R. P., in the manner and by the means aforesaid, wilfully and feloniously did kill and slay ; against the peace &c. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. H. and the said W. W., on the day and year aforesaid, at Richmond in the County of Surrey, in and upon the said R. P., feloniously and wilfully did make an assault. And the jurors aforesaid upon their oath aforesaid do further present, that before and on the day and year aforesaid, the said S. H. was employed by a certain corporate body, to wit, the London and South- West- ern Railway Company, for the purpose of conducting, driving, managing and controlling certain locomotive steam-engines belonging to the said London and South- Western Railway Company, and the said W. W., before and on the day and year aforesaid, was employed by the said London and South- western Railway Company, for the purpose of assisting the said S. H. in the conducting, driving, management and con- trol of such locomotive steam-engines a»s aforesaid, and that by virtue of such their respective employments, the said S. H. was, on the day and year aforesaid, at the parish afore- said in the county aforesaid, and within the jurisdiction of the said court, conducting and driving, and then and there had the management and control of a certain locomotive 708 CRIMINAL LAW. steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said loco- motive steam-engine and tender were then and there the property of and belonging to the said London and South- western Railway Company, and were then and there in and upon a certain side line of railway, leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management and control of the said locomotive steam-engine and tender, aid- ing and assisting, and that it then and there became and was the duty of the said S. H. and of the said W. W., by virtue of their said employment, not to conduct or drive, or suffer or permit to be conducted or driven, the said locomotive steam- engine and tender from and off the said side line of railway, into, upon or across the said main line of railway, in case any train or engine should be then due and about to arrive at that part of the said main line of railway where the same was joined by the said side line of railway aforesaid ; yet the said S. H. and the said W. W., well knowing the premises, and well knowing that a certain train, consisting of another loco- motive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, was then and there lawfully travelling and being propelled on and along the said main line of railway, and was then due and about to arrive at that part of the said main line of rail- way where the same was joined by the side line of railway aforesaid, but disregarding their duty in that behalf, did, on the day and year aforesaid, at R. aforesaid in the county aforesaid, wilfully and feloniously, and with great force and violence, wilfully and in a wanton, negligent and improper manner, contrary to their said duty in that behalf, and while the said train was so then and there due and about to arrive as aforesaid, conduct and drive, and suffer and permit to be conducted and driven, the said first-mentioned locomotive steam-engine and tender from and off the said side line of railway, into, upon and across the said main line of railway, and thereby and by reason of the said premises, and of the several negligent and improper conduct of the said S. H. and HOMICIDE. 709 of the said W. W., the said train so then travelling and being propelled on and along the said main line of railwaj', did then and there unavoidably, with great force and violence, strike, rim and impinge against the said first-mentioned locomotive steam-engine ; and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, the said R. P., who was then and there standing and being in and upon the said first-mentioned locomotive steam-engine, was then and there, with great force and violence, pushed, forced, dashed, driven and jammed in, upon, over and between a cer- tain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., di- vers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs and feet of the said R. P., divers mortal wounds, bruises, contu- sions, burns and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns and scalds, the said R. P., on the day and year aforesaid, at R. aforesaid in the county aforesaid, instantly died. And so the jurors aforesaid &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. H., and the said W. W., on the day and year aforesaid, at Richmond aforesaid in the County of Surrey aforesaid, in and upon the said R. P., feloniously and wilfully did make an assault, and that the said S. H. was then and there conducting and driving, and then and there had the management and control of a certain locomotive steam-engine, to and behind which a certain car- riage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there in and upon a certain way, to wit, a certain side line of rail- way leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conduct- ing, driving, management and control of the said locomotive steam-engine and tender, aiding and assisting ; and that it 710 CRIMINAL LAW. then and there became and was the duty of the said S. H., and of the said W. W., to use all due and proper caution in and about the conducting and driving the said locomotive steam-engine and tender, from and off the said side line of railway in, upon or across the said main line of railway, yet the said S. H., and the said W. W., well knowing the prem- ises, and not regarding their duty in that behalf, did not, nor would use all due and proper caution in and about the con- ducting and driving of the said locomotive steam-engine and tender, from and off the said side line of railway, in, upon or across the said main line of railway; but on the contrary thereof, did then and there, wilfull}' and feloniously, and with great force and violence, and without due and proper caution, and in a negligent and improper manner, and contrary to their said duty in that behalf, conduct and drive the said locomotive steam-engine and tender from and off the said side line of railway, into, upon and across the said main line of railway, and into, upon and against a certain train, to wit, a train consisting of another locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto, and drawn thereby, which said train was then and there lawfully travelling and being propelled on and along the said main line of railway ; and that the said S. H. and W. W. did thereby and by means of the said sev- eral premises, and by reason of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam-engine, then and there wilfully and feloni- ously, and with great force and violence, push, force, dash, drive and jam and cause to be pushed, forced, dashed, driven and jammed in, upon, over and between a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing, and being in and upon the said first-mentioned loco- motive steam-engine, and did then and there, by means of the said pushing, forcing, dashing, driving and jamming, wilfully and feloniously inflict, and cause to be inflicted, in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides,, belly, HOMICIDE. 711 thighs, legs and feet, of the said R. P., divers mortal wounds, bruises, contusions, burns and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns and scalds, the said R. P., on the day and year aforesaid, at R. aforesaid in the county aforesaid, and within the jurisdic- tion of the said court, instantly died. And so the jurors aforesaid &c. Fourth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. H. and the said W. W., on the day and year aforesaid, at Richmond afore- said in the County of Surrey aforesaid, in and upon the said R. P., feloniously did make an assault, and that the said S. H. was then and there conducting and driving, and then and there had the management and control of a certain locomo- tive steam-engine, to and behind which a certain carriage called a tender was then and there attached, and which said locomotive steam-engine and tender were then and there in and upon a certain way, to wit, a certain side line of railway, leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driv- ing, management and control of the said locomotive steam- engine and tender, aiding and assisting, p,nd that it then and there became and was the duty of the said S. H. and of the said W. W., to use all due and proper caution in and about the conducting and driving the said locomotive steam-engine and tender from and off the said side line of railway, in, upon or across the said main line of railway ; j'et the said S. H. and the said W. W., well knowing the premises, and not regarding their duty in that behalf, did not, nor would use all due and proper caution in and about the conducting and driving of the said locomotive steam-engine and tender, from and off the said side line of railway, in, upon or across the said main line of railway, but on the- contrary thereof, did then and there wilfully and feloniously, and with great force and violence, and without due and proper caution, and in a negligent and improper manner, and contrary to their said duty in that behalf, conduct and drive the said locomotive steam-engine and tender, from and off the said side line of 712 CRIMINAL LAW. railway, into, upon and across the said main line of rail- way, and thereby and by reason of the said several prem- ises, and of the said negligent and improper conduct of the said S. H. and of the said W. W., a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty car- riages attached thereto, and drawn thereby, which said train was then and there lawfully travelling and being propelled on and along the said main line of railway, did then and there inadvertently, with great force and violence, strike, run and impinge upon and against the said first-mentioned locomotive steam-engine, and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam- engine, the said R. P., who was then and there standing and being in and upon the said first-mentioned locomotive steam- engine, was then and there with great force and violence pushed, forced, dashed, driven and jammed in, upon, against, over and between a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs and feet of the said R. P. divers mortal wounds, bruises, contusions, burns and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns and scalds, the said R. P., on the day and year aforesaid, at R. aforesaid in the county aforesaid, instantly died. And so the jurors aforesaid &c. Fifth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. H. and the said W. W., on the day and year aforesaid, at Richmond afore- said in the County of Surrey aforesaid, in and upon the said R. P., feloniously and wilfully did make an assault ; and that the said S. H. and the said W. W., a certain locomotive steam-engine, to and behind which a certain carriage called a tender, was then and there attached, and which said locomo- HOMICIDE. 713 tive steam-engine and tender were then and there being forced and propelled by the power of steam on and along a certain way, to wit, a railway ; and which said locomotive steam-engine and tender, the said S. H. was then and there managing, controlling, conducting and driving in and along the said railway, and in the managing, controlling, conduct- ing and driving whereof the said W. W. was then and there the said S. H. aiding and assisting, did then and there wil- fully and feloniously, by the wanton and felonious negligence of them and each of them respectively, and by the wilful and felonious disregard of the duties incumbent upon them, and each of them respectively, in that behalf, cause, occasion, permit and suffer to strike and run into, upon and against, and to be with great force and violence forced, driven and dashed into, upon and against a certain other locomotive steam-engine, to which said last-mentioned locomotive steam- engine a certain other tender and divers, to wit, twenty" carriages, were then and there attached, and which said last- mentioned locomotive steam-engine and tender and carriages were then and there lawfully travelling and being propelled on and along the said railway, and that the said S. H. and the said W. W. did thereby and by means of the said several premises, and by reason of the shock and concussion thereby caused and communicated to the said first-mentioned loco- motive steam-engine and tender, then and there wilfuUy and feloniously, and with great force and violence, push, force, dash, drive and jam, and cause to be pushed, forced, dashed, driven and jammed in, upon, over and between a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing and being in and upon the said first- mentioned locomotive steam-engine, and did then and there, and by means of the said pushing, forcing, dashing, driving and jamming, wilfully and feloniously inflict, and cause to be inflicted, in and upon the head, to wit, the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs and feet of the said R. P., divers mortal wounds, contusions, bruises, burns and scalds, of 714 CRIMINAL LAW. which said several wounds, fractures, contusions, bruises, burns and scalds, the said R. P., on the day and year afore- said, at R. aforesaid in the county aforesaid, instantly died. And so the jurors aforesaid &c. Sixth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. H. and the said W. W., on the day and year aforesaid, at Richmond afore- said in the County of Surrey aforesaid, in and upon the said R. P. feloniously and wilfully did make an assault, and that the said S. H. and the said W. W., a certain locomotive steam-engine, to and behind which a certain carriage called a tender was then and there attached, and which said locomo- tive steamt-engine and tender were then and there being forced and propelled by the power of steam on and along a certain way, to wit, a railway, and which said locomotive steam-engine and tender the said S. H. was then managing, controlling, conducting and driving in and along the said rail- way, and in the managing, controlling, conducting and driving whereof the said W. W. was then and there the said S. H. aiding and assisting, did then and there wilfully and feloni- ously, and by the wanton and felonious negligence of them and each of thera respectively, and by the wilful and feloni- ous disregard of the duties incumbent upon them and each of them respectively in that behalf, and with great force and violence, conduct, drive and propel, and cause and permit to be conducted, driven and propelled to, upon, along and across a certain other part of the railway aforesaid, and thereby and by reason of the said several premises and of the said wilful and felonious negligence of the said S. H. and of the said W. W., a certain train, to wit, a train con- sisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, and which said train was then and there lawfully travelling and being propelled on and along the said last-mentioned part of the said line of railway, did then and there unavoidably and with great force and violence strike, drive, dash and impinge upon and against the said first-mentioned locomotive steam-engine ; and by means of the said several premises, and of the shock and HOMICIDE. 715 concussion thereby given and communicated to the said first- mentioned locomotive steam-engine, the said R. P., who then and there was standing and being in and upon the said first- mentioned locomotive steam-engine, was then and there with great force and violence pushed, forced, dashed, driven and jammed in, upon, over and between a certain part of the said first-mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dash- ing, driving and jamming, then and there were inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs and feet of the said R. P., divers mortal wounds, bruises, contusions, burns and scalds, of which said mortal wounds, fractures, bruises, contusions, burns and scalds, the said R. P., on the day and year afore- said, at R. aforesaid in the county aforesaid, instantly died. And so the jurors &c. Seventh Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the Parish of Richmond aforesaid in the County of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P., feloniously and wilfully did make an assault, and that the said S. H. and W. W., a certain locomo- tive steam-engine, to and behind which a certain carriage called a tender was then and there attached, and which said locomotive steam-engine and tender were then and there the property of a certain corporate body, to wit, the London and South-Western Railway Company, and were then and there lawfully standing and being in and upon a certain railway, to wit, at and near a certain station belonging to the said railway, did then and there wilfully and feloniously and with- out any lawful authority in that behalf, and with great force and violence, conduct, drive and propel, and cause, permit and sufi'er to be conducted, driven and propelled, away from the said station, along, to, upon and across a certain other part of the railway aforesaid, and thereby and by reason of the said several premises a certain train, to wit, a train con- 716 CRIMINAL LAW. sisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty carriages attached thereto and drawn thereby, and which said train was then and there lawfully travelling and being propelled on and along the line of the said railway, did then and there unavoidably and with great force and violence strike, dash, drive and impinge upon and against the said first-mentioned locomotive steam-engine, and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first-mentioned locomotive steam- engine, the said R. P., who then and there was standing and being in and upon the said first-mentioned locomotive steam- engine, was then and there with great force and violence pushed, forced, dashed, driven and jammed in, upon, over and between a certain part of the said first-mentioned loco- motive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs and feet of the said R. P., divers mortal wounds, bruises, contusions, burns and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns and scalds, the said R. P., on the day and year aforesaid, at the parish afore- said in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid &c. 9. For Murder by Stabbing with a Knife.-' The jurors &c. upon their oath present, that John W. Webster of Cambridge in the County of Middlesex, on the twenty-third day of November in the year of our Lord at Boston in the County of Suffolk, in and upon one George Parkman, feloniously, wilfully and of his malice aforethought, did make an assault ; and that the said John W. Webster, with a certain knife, the said George Parkman, in and upon the left side of the breast of the said George Parkman, then and 1 Commonwealth v. Webster, Bemis's Report, 1 ; 5 Cush. 295. HOMICIDE. 717 there feloniously, wilfully and of his malice aforethought, did strike, cut, stab and thrust, giving to the said George Parkman, then and there with the knife aforesaid, in and upon the left side of the breast of the said George Parkman, one mortal wound of the length of one inch and of the depth of. three inches ; of which said mortal wound the said George Parkman then and there instantly died. And so the jurors aforesaid upon their oath aforesaid do say, that the said John W. Webster, the said George Parkman, in manner and form aforesaid, then and there feloniously, wilfully and of his malice aforethought, did kill and murder ; against the peace of the Commonwealth aforesaid and contrary to the form of the statute in such case made and provided. 10. For Murder by Inflicting a Blow on the Head 'with a Hammer. Second Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said John W. Webster, at Boston aforesaid in the county aforesaid, on the twenty- third day of November in the year of our Lord in and upon the said George Parkman, feloniously, wilfully and of his malice aforethought, did make an assault ; and that the said John W. Webster, then and there, with a certain hammer, the said George Parkman in and upon the head of the said George Parkman, then and there feloniously, wil- fully and of his malice aforethought, did strike, giving unto the said George Parkman, then and there with the hammer aforesaid, by the stroke aforesaid, in manner aforesaid, in and upon the head of the said George Parkman, one mortal wound ; of which said mortal wound the said George Park- man then and there instantly died. And so the jurors afore- said upon their oath aforesaid do say, that the said John W. Webster, the said George Parkman, in manner and form aforesaid, then and there feloniously, wilfully and of his mal- ice aforethought, did kill and murder ; against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 718 CRIMINAL, LAW. 11. For Murder by Striking, Kicking &c. Third Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said John W. Webster, at Boston aforesaid in the county aforesaid, on the twenty-third day of November in the year of our Lord in and upon the body of one George Parkman, feloniously, wilfully and of his malice aforethought, did make an assault ; and that the said John W. Webster, then and there, with his hands and feet, the said George Parkman, feloniously, wilfully and of his malice aforethought, did strike, beat and kick, in and upon the head, breast, back, belly, sides and .other parts of the body of the said George Parkman ; and did, then and there, feloniously, wilfully and of his malice aforethought, cast and throw the said George Parkman down, unto and upon the floor, with great force and violence there, giving unto the said George Parkman then and there, as well as by the beating, striking and kick- ing of the said George Parkman, in manner and form afore- said, as by the casting and throwing of the said George Parkman down as aforesaid, several mortal strokes, wounds and bruises, in and upon the head, breast, back, belly, sides and other parts of the body of the said George Parkman ; of which said mortal strokes, wounds and bruises the said George Parkman then and there instantly died. And so the jurors aforesaid upon their oath aforesaid do say, that the said John W. Webster, the said George Parkman, in manner and form aforesaid, then and there feloniously, wilfully and of his mal- ice aforethought, did kill and murder ; against the peace- of said Commonwealth and contrary to the form of the statute in such case made and provided. 12. For Murder in Some Way and Manner &c. Unkno-wn.^ Fourth Count. — And the jurors aforesaid upon their oath aforesaid do further present, that the said John W. Webster, at Boston aforesaid in the county aforesaid, in a certain building known as the Medical College, there situate, on the twenty-third day of November in the year of our Lord in and upon the said George Parkman, feloniously, 1 5 Cush. 296, 322, 323. HOMICIDE. 719 wilfully and of his malice aforethought, did make an assault ; and the said George Parkman, in some way and manner, and by some means, instruments and weapons, to the jurors un- known, did then and there feloniously, wilfully and of malice aforethought, deprive of life ; so that the said George Park- man then and there died. And so the jurors aforesaid upon their oath aforesaid do say, that the said John W. Webster, the said George Parkman, in the manner and by the means aforesaid, to them the said jurors unknown, then and there, feloniously, wilfully and of his malice aforethought, did kill and murder ; against the peace of the Commonwealth afore- said and contrary to the form of the statute in such case made and provided. 720 CBIMINAL LAW, CHAPTER LVIIL HOUSES OP ILL FAME. The keeping of a house of ill, fame is indictable as a pub- lic nuisance, or offence against the public order and ecouomi- cal regimen of the State.^ So the letting of a house to a woman of ill fame, knowing her to be such, with the intent that it should be used for the purposes of prostitution, is an indictable offence at common law.^ These offences are pun- ishable by statute.^ At common law and under the Gen. Sts. ch. 87, § 7, ch. 165, § 13, a married woman may be indicted, and upon appropriate evidence convicted, either separately or jointly with her husband, of keeping a house of ill fame, even if he resides with her in the house.* The permission by the keeper of a house of a single act of illicit intercourse within it, does not of itself constitute the offence described in Gen. Sts. ch. 165, § 18, or in ch. 87, §§ 6, 7. To hold that it did would be to leave out of view the meaning of the phrase " resorted to," as used in those sections of the statute.^ The word " lewdness " in those sections includes private illicit intercourse, as well as public indecency.^ The government must prove that the house in question, or a room or rooms in it, were let for the purposes mentioned in the indictment. If a lodger let her apartment for the pur- pose of indiscriminate prostitution, it is as much a house of ill fame as if she occupied the whole house.'^ It is not nec- 1 1 Gabbett Crim. Law, 289. 1 151. Commonwealth v. Cheney, Deacon Crim. Law, 136. 114 Mass. 281. 2 Commonwealth v. Harrington, ^ Commonwealth v. Lambert, 12 3 Pick. 26. Regina v. Barrett, Allen, 177. Leigh & Cave C. C. 263. Regina v. ^ Commonwealth v. Lambert, 12 Stannard, Leigh & Cave C. C. 349. Allen, 177. 8 Gen. Sts. ch. 87, §§ 7, 8, 9. ' Regina t-. Pierson, 1 Salk. 382; Gen. Sts, ch. 165, § 13. 2 Ld. Raym. 1197. Commonwealth ^ Commonwealth 0. Lewis, 1 Met. v. Bulman, 118 Mass. 456. HOUSES OP ILL FAME. 721 essary that there should be evidence of any indecency or disorderly conduct being perceptible from the exterior of the house.^ Evidence of conversations held by men, imme- diately after coming out of the house, and not in the presence of the defendant or any of the inmates, as to what had taken place in the house', is inadmissible ; it is purely hearsay evidence.^ Evidence of the bad character for chastity of the women who frequent the house is competent.^ All who par- ticipate in keeping the house are principals.* The Gen. Sts. ch. 165, § 13, enacts that " Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness," shall be punished &c. This is a distinct statu- tory offence ; and an indictment which sets forth that offence in the words of the statute is sufficient. It is not necessary, either at common law or under the statute, to allege that the house was kept for lucre.* In an indictment under Gen. Sts. ch. 87, § 6, which declares houses of ill fame to be common nuisances, it must be alleged in some form that such house was a common nuisance.^ An indictment for this offence which concludes in the usual form, " to the common nuisance of all good citizens " &c., is sufficient, without expressly aver- ring that the defendant kept a common nuisance.'^ The keeper of a house of ill fame may be proceeded against by indictment under the Gen. Sts. ch. 165, § 13, or by indict- ment or complaint under the Gen. Sts. ch. 87, §§ 6, 7.* Under the Gen. Sts. ch. 116, § 13, and the St. 1866, ch. 280, § 3, a police or municipal court has general jurisdiction and authority to pass sentence of offences against the Gen. Sts. ch. 87, §§ 6, 7.9 1 Regina v. Kiee, L. R. 1 C. C. 21. ' Commonwealth v. Davis, 11 ^ Commonwealth v. Harwood, 4 Gray, 48. Gray, 41. ' Wells v. Commonwealth, 12 ' Commonwealth v. Kimball, 7 Gray, 326. Gray, 328. Commonwealth v. Gan- ' Commonwealth v. Ballon, 124 nett, 1 Allen, 7. Mass. 26. See Commonwealth v. * Commonwealth v. Gannett, 1 Davis, 11 Gray, 48. Allen, 7. ' Commonwealth v. Ring, 111 5 Commonwealth v. Ashley, 2 Mass. 427, 428, distinguishing Corn- Gray, 356. Commonwealth v. monwealth v. Grifiin, 105 Mass. Wood, 97 Mass. 225. 185. 46 722 CRIMINAL LAW. 1. For Keeping a House of 111 Fame. — Gen. Sts. oh. 16S, § 13.^ That C. D. of &c. on the first day of June in the year of our Lord on divers other days and times between that day and the first day of September in the same year, at B. in the County of S., did keep and maintain a certain house of ill fame then and on said divers other days and times there resorted to for the purpose of prostitution and lewdness ; contrary to the form of the statute &c. 2. For Letting a House to be Kept for a House of 111 Fame. — G-en. Sts. oh. 87, § 9.2 That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., knowingly did lease and let a certain house there situate, by him the said C. D. then and there owned, to one J. N., the said J. N. then and there being a woman of ill fame, and the said C. D. then and there knowing her to be such, and that the said J. N. did then and there accept and receive said lease from him the said C. D. And the jurors aforesaid upon their oath afore- said do further present, that the said C. D. did then and there knowingly lease and let the said house to the said J. N. with intent that the said J. N. should then and thereafter there keep said house to be resorted to for the purpose of prostitution and lewdness ; against the peace &c. and con- trary to the form of the statute &c. 1 Commonwealth v. Kimball, 7 must allege a day certain as the time Gray, 328. Commonwealth d. Hart, of making the lease. Commonwealth 10 Gray, 465. Commonwealth v. «. Moore, H Cash. 600. But it need Keefe, 9 Gray, 290. not be proved as laid. Common- 2 The letting a house to a woman wealth v. Harrington, 3 Pick. 26. of ill fame, knowing her to be such. The indictment must also state the with the intent that it shall be used name of the lessee, or a sufficient for the purposes of prostitution, is reason for the omission, and that an indictable offence at common the lease was received and accepted law. Commonwealth v. Harring- by him. Commonwealth v. Moore, ton, 8 Pick. 26. An indictment for 11 Cush. 600. letting a house for such purposes INCEST. 723 CHAPTER LIX. INCEST. Indictment for Incest. — Gen. Sts. ch. 165, § 7.1 The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did commit the crime of fornication, by then and there hav- ing carnal knowledge of the body of one A. B., the said A. B. and the said C. D. each being then and there single and unmarried, and the said A. B. and C. D. not being then and there lawfully married to each other, and the said A. B. and the said C. D. each being then and there within the de- grees of consanguinity within which marriages are prohibited and declared by law to be incestuous and void, to wit, the said A. B. being then and there the sister of the said C. D., and the said C. D. being then and there the brother of the said A. B., and the said A. B. and C. D. both being then and there the children of one J. N. and of J. S., the wife of the said J. N. ; contrary to the form of the statute in such case made and provided. ^ In Commonwealth v. Goodhue, Thompson, 116 Mass. 346. Gen. 2 Met. 193, the defendant, who was Sts. ch. 172, § 16. " To the sugges- indicted for a rape alleged to have tion that this provision of the stat- been committed upon his own ute is unconstitutional, as in conflict daughter, was convicted of incest, with the twelfth article of the Bill the jury having returned a verdict of Rights, the answer is that the that the defendant was guilty of offence is fully and plainly, substan- having unlawfully had carnal knowl- tially and formally, described; that edge of the body of his daughter, the whole may include a distinct but not by force and against her part, and the greater the less." will. Commonwealth v. Squires, Commonwealth v. Lang, 10 Gray, 97 Mass. 59. Commonwealth v. 11, 14. 724 CRIMINAL LAW. CHAPTER LX. t INFANT, NEGLECT TO PROVIDE FOR. An indictment lies for all misdemeanors of a public nature at common law. Thus, it lies for a breach of duty which is not a mere private injury, but an outrage upon the moral duties of society ; as for the neglect to provide sufficient food or other necessaries for an infant of tender years, unable to provide for and take care of itself (whether child, apprentice or servant), whom the defendant is obliged hj duty or con- tract to provide for, so as thereby to injure its health.^ It has been held that a parent who wilfully withholds necessary food from his child, with the wilful determination by such withholding, to cause the death of the child, is guilty of murder, if the child dies ; and if he does so negligently, but not wilfully, and the child dies in consequence of the neglect, he is guilty of manslaughter.^ Indictment against a Parent for Neglecting to Provide for his Infant Child.8 The jurors &c. on their oath present, that before the time of committing of the offence hereinafter in this count men- tioned, Henry Blucher Ryland was the father of a certain male child of tender age, to wit, of the age of seven years, 1 Regina v. Hogan, 2 Denison C. C. 99. The prisoner was convicted C. 277; Temple & Mew C. C. 601. on this indictment which charged Regina v. Phillpot, Dearsly C. C. him with neglecting to provide food 179. Regina v. Chandler, Dearsly and clothing for his child, but C. C. 453. Regina v. Rugg, 12 omitted specifically to allege his Cox C. C. 16. C. C. R. Regina w. ability to do so. The majority of the Ryland, L. R. 1 C. C. 99. Archb. court were of opinion that the word Crim. PI. 1, 18th ed. "neglect" in the indictment suffi- 2 Regina v. Conde, 10 Cox C. C. ciently alleged the special matter of 547. ability to provide. ' Riegina v. Ryland, L. R. 1 C. INFANT, NEGLECT TO PROVIDE FOR. 725 called and known by the name of Frederick George Ryland, and that Hannah Ryland, before the time of the committing the offence, and during all the time hereinafter in this count mentioned, was the wife of the said Henry Blucher Ryland, and as such wife living with the said Henry Blucher Ryland, and during all that time the said child was living under the care and control of the said Henry Blucher Ryland and the said Hannah Ryland, and during all that time it was the duty of the said Henry Blucher Ryland and the said Hannah Ry- land to provide for, give and administer to the said child wholesome and sufficient meat, drink, food and clothing for the sustenance, support, nourishment and healthful preserva- tion of the said child, the said child, by reason of his tender age, being then wholly incapable of providing for himself. And the jurors aforesaid upon their oath aforesaid do further present, that the said Henry Blucher Ryland and the said Hannah Ryland, on the fifth day of March in the year of our Lord and on divers other daj-s and times between that day and the first day of October in the same year, and while the said child was of such tender age as aforesaid, and wholly incapable of providing for himself as aforesaid, at B. in the County of S., unlawfully and contrary to the said duty of the said Henry Blucher Ryland and the said Hannah Ryland in that behalf, did omit, neglect and refuse to pro- vide for, give and administer to the said child clothing, meat, drink and food in any sufficient quantity for the sustenance, support, nourishment and healthful preservation of the said child, by means whereof the said male child became and was weak and ill and greatly disordered and debilitated in his body ; to the great damage of the said child and against the peace &c. 726 CRIMINAL LAW. CHAPTER LXI. INNHOLDEES, BOAEDING-HOTJSE KEEPERS AND THEIR GUESTS. The St. 1870, ch. 338, § 2, entitled "An Act concern- ing innholders, boarding-house keepers and their guests," enacts : — " Any person who shall put up at any hotel or inn, and shall procure any food, entertainment or accommodation, without paying therefor, except where credit is given by express agreement, with intent to cheat or defraud the owner or keeper thereof out of the pay for the same ; or who, with intent to cheat or defraud such owner or keeper out of the pay therefor, shall obtain credit at any hotel or inn for such food, entertainment or accommodation, by means of any false show of baggage or effects brought thereto ; or who shall with such intent remove, or cause to be removed, any baggage or effects from any hotel, inn or boarding-house, while there is a lien existing thereon for the proper charges due from him for fare and board furnished therein, shall be punished by imprisonment not exceeding three months, or by fine not exceeding one hundred dollars." Fraudulently Obtaining Entertainment at a Hotel. — St. 1870, ch. 338, §2. That on the first day of June in the year of our Lord and from that day to the first day of October in the same year, one E. F. was the keeper of a certain hotel known as the American House, 'situate in Boston in the County of Suffolk. And that C. D. of &c. on the first day of June aforesaid in the year aforesaid, did put up at said hotel and did then and there in said hotel, and for the space and time of twenty days then next ensuing from the first day of June BOARDING-HOUSE KEKPEBS ETC. 727 aforesaid, procure for himself, food, entertainment and accom- modation from the said E. F. without paying him the said E. F. therefor, and with intent then and there to cheat and defraud the said E. F. out of the pay for the said food, en- tertainment and accommodation by him the said C. D. so had as aforesaid, there being no credit given to the said C. D. for the same by express agreement between the said E. F. and the said C. D. ; contrary to the form of the statute in such case made and provided. 728 CRIMINAL LAW. CHAPTER LXII. LAKCBNY. It is important that offences should be accurately defined.^ But it is safer to be guided by the cases than by the defini- tions given by text-writers.^ There are several definitions of larceny.* Bracton defines it thus: Furtum est contractatio rei aliense fraudulenta cum animo furandi invito illo cujus res ilia fuerit.* " The proper definition of larceny," said Bovill, C. J.,^ " according to the law of England, from the time of Bracton downwards, has been considered to be the wrongful or fraudulent taking and carrying away by any person of the personal goods of another, from any place, without any color of right, with a felonious intent to convert them to the taker's own use and make them his own property, without the consent and against the will of the owner." The Eng- lish Criminal Law Commissioners thus define larceny : " Theft is the wrongfully obtaining possession of any mova- ble thing which is the property of some other person, and of some value, with the fraudulent intent entirely to deprive him of such thing, and have or deal with it as the property of some person other than the owner." * The uniform course of the indictments for larceny from the earliest times has been to allege that the prisoner feloni- ously stole, took and carried away the goods of a named person.'^ 1 Per Erie, J., in Kegina v. C. C. 388. Per Grose, J., in Rex Poole, Dearsly & Bell C. C. 347. v. Hammon, 2 Leach C. C. 1089. ^ Per Coltman, J., in Regina v. * Lib. iii. oh. 32. Holloway, 1 Denison C. C. 375. ^ Regina v. Middleton, L. R. 2 » Per Lord Campbell, C. J., in C. C. 46. Regina v. Trebileock, Dearsly & « Third Report, 1845-1849. Bell C. C. 458. Per Parke, B., ' Regina v. Middleton, L. R. 2 in Regina v. Holloway, 1 Denison C. C. 41. Ante, p. 90 note. But C. C. 375; 2 C. & K. 942; and see Green v. Commonwealth, 111 in Regina v. Thurborn, 1 Denison Mass. 417. LARCENY. 729 To constitute larceny, there must be a taking and a carry- ing away of personal property, with an intent to steal it. Such intent, in all cases at common law, renders the taking and carrying away felonious. A taking without a carrying away, or a carrying away without a taking, is not larceny. For this reason it has always been held necessary that an indictment for larceny should allege both these acts. And this is not an arbitrary formulary ; for, unless both acts are alleged, the offence of larceny is not sufiSciently alleged. Those words of art, which the law has appropriated for the description of an offence, cannot be dispensed with in an indictment for the offence.^ It has been held from the earliest times that if a person steal goods in one county and bring them into another, he may be indicted for larceny in either county. His unlawful possession in' the second countj' is deemed to be a continu- ance of the original taking and asportation. And it has been settled in this Commonwealth, so as not now to be an open question, that if the thief bring into this State property stolen in another State, or in one of the British Provinces,^ it is a new taking and asportation in this State, and he may be here indicted for larceny of the property.^ And a thief who steals goods in another State and sends them into this Commonwealth by an agent, not an accomplice in the theft, may be indicted for larceny here.* Distinct larcenies may be presented in different counts of one indictment ; and whether the prosecuting officer shall be ordered to elect between them is within the discretion of the presiding judge, and not a subject of exception.^ The stealing at the same time and by one taking of several articles belonging to different persons is larceny of the whole and of each article, and may be indicted either in one aspect or the other, as one entire crime or as several distinct offences. 1 Judgment in Commonwealth o. Commonwealth ». Macloon, 101 Adams, 7 Gray, 44. Mass. 5, 6. 2 Commonwealth v. Uprichard, * Commonwealth v. White, 123 3 Gray, 434. Mass. 430, 431. 2 Commonwealth v. Hofler, 9 ^ Commonwealths. Sulhvan, 104 Gray, 7. Thomas, J., dissenting. Mass. 552, 553. Commonwealth v. Costello, 120 Mass. 366, 367. 730 CRIMINAL LAW. If indictments or counts for one taking of several articles are unreasonably multiplied, the court, in superintending the course of trial and in passing sentence, will see that justice is done and oppression prevented.^ The description of the property must be stated with accu- racy and certainty. The common and ordinary acceptation governs the description, and it is sufficient if it be one that is usual or well known.^ If an article has obtained in common parlance a particular name, it is erroneous to describe it by the name of the material of which it is composed.^ If, in an indictment for the larceny of several articles, one of them is insufficiently described, and there is a general verdict of guilty, judgment will not be arrested, but will be entered for the larceny of the articles which are sufficiently described.* It is sufficient proof of the value of the property alleged to be stolen, if the jury are satisfied by the evidence and by inspection of the property that it is of some value, though less than that alleged. Proof of the alleged value is not necessary. It is sufficient for conviction that the property should be shown to be of some value, at least to the owner, if to no one else, — things of no value not being the subject of larceny.^ By the Gen. Sts. ch. 172, § 13, it is sufficient to prove either the actual or constructive possession, or the general or special property, in stolen goods, to have been in the person alleged in the indictment to have been the owner thereof. Thus, a delivery of property to a common carrier is a deliv- ery to the consignee, in the absence of any agreement to the contrary, whether the carrier is or is not designated by the consignee ; and an indictment for larceny may allege the property to be in such consignee.® In order to constitute larceny in a dwelling-house or other 1 Commfuiwealth!). Sullivan, 104 Gray, 76. Eastman v. Common- Mass. 552,?j553. See 114 Mass. wealth, 4 Gray, 418. 278. I ' Commonwealth v. Eiggs, 14 2 Ante, pp. 82, 83. Gray, 376. Commonwealth ». « Commonwealth v. Clair, 7 Burke, 12 Allen, 182. 3 Greenl. Ev. Allen, 525. § 1.53. * Commonwealth v. Eastman, 2 " Commonwealth ». Sullivan, 104 Mass. 552. Ante, pp. 34, 35. LARCENY. 731 building, the property stolen must be under the protection of the house, and not under the eye or personal care of some one who happens to be in the house.^ But money of a lodger in his trunk, as well as the key of the trunk in a pocket of his clothes, is clearly, while he is in bed, undressed and asleep, not under his own protection, but under the protection of the house.^ As to the rule as to recent possession of stolen goods, many cases ha\ been decided on the subject ; * but they seem to come to nothing but this, that every case depends on its own circumstances, and that the nature of the thing stolen, the length of the interval between the theft and the possession, and the behavior of the accused, may all vary the force of the evidence indefinitely. The unexplained possession of a sin- gle stolen coin by a shopkeeper doing a large business, in whose till it was found ten minutes after the theft, would prove nothing. The finding of a lost will ten years after its loss, locked up in the strong box of a careful person deeply interested in its temporary concealment, and peculiarly jealous of his strong box, would prove a great deal. Between these extremes there may be infinite degrees in the weight of such evidence.* The Gen. Sts. ch. 161, § 31, enacts that " The officer who arrests a person charged as principal or accessory in any rob- bery or larceny, shall secure the property alleged to be stolen,^ annex a schedule thereof to his/ return, and be an- swerable for the same ; and upon conviction of the offender, the stolen property shall be restored to the owner." The right of the owner to a summary restitution of property stolen, upon conviction of the offender, under this section of the statute, is confined to the identical articles alleged to be 1 Rex V. Owen, 2 Leach C. C. ^ Under a warrant issued in the 572. Commonwealth v. Hartnett, usual form, upon a complaint for 3 Gray, 450, 452. Commonwealth larceny, the officer is authorized V. Pen-is, 108 Mass. 5. to break and enter the shop of ^ Commonwealth v. Smith, 111 the person accused, and seize the Mass. 429. property alleged to have been 8 2 Russell on Crimes, 337-342. stolen. Banks v. Farwell, 21 Pick. * Stephen Dig. Crim. Law, 218 156. note. Ante, p. 122 note. 732 CRIMINAL LAW. stolen, and cannot be extended so as to include other prop- erty found in the possession of the thief, or to money arising from the sale of the property stolen. Such is the import of the language of the statute, which is only that, " upon con- viction of the offender, the stolen property shall be restored to the owner." And there is very good reason for this re- striction. If there is no doubt or dispute as to the identity of the property alleged to be stolen, the conviction of the defendant necessarily determines the title of the property to be in the prosecutor, and not in the defendant. But if the property has been changed or converted into money, the de- fendant may be well convicted of the larceny, without any determination of the question as to his right to the property or money actually found in his possession. He might, there- fore, by an order for restitution in such case, be deprived of property, without any opportunity to try the question of title.i The prisoners were convicted of feloniously stealing certain property. The judges who presided at the trial made an order directing that property found in the possession of one of the prisoners (not part of the property stolen) should be disposed of in a particular manner. Held, that the order was bad, as a judge has no power, either at common law or by statute, to direct the disposal of chattels in the possession of a convicted felon, not belonging to the prosecutor.^ The Gen. Sts. ch. 161, enact : — Sect. 32. Upon a conviction of burglary, robbery or lar- ceny, the court may order a meet recompense to the prosecu- tor, and also to the officer who has secured and kept the stolen property, not exceeding their actual expenses with a reasonable allowance for their time and trouble ; which shall be paid by the county treasurer, and charged by him to the Commonwealth. Sect. 33. When a person arrested upon a charge of burg- lary, robbery or larceny, forfeits his recognizance, or escapes 1 Judgment in Commonwealth v. London, L. R. 4 Q. B. 371. Walker Boudrie, 4 Gray, 418, 419. v. London, 38 L. J. M. C. 107. 2 Eegina v. Pierce, Bell C. C. Regina' v. StanolifEe, 11 Cox C. C. 235; El. Bl. & El. 509. Regina v. 318. LARCENY. 733 from the custody of the law after being committed to jail for trial, the court before whom the case would have been tried shall have the same authority to order a recompense and allowance to the prosecutor, and to the officer who has secured and kept the property, as provided in the preceding section. 1. For Simple Larceny at Comiaon La'w. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, one sil- ver tankard of the value of fifty dollars of the goods and chattels of one E. F., then and there in the possession of the said E. F. being found, feloniously did steal, take and carry away ; against the peace of said Commonwealth. 2. For Larceny from the Person. — Gen. Sts. ch. 161, § Vj} The jurors &c. upon their oath present, that C. D. of L. in the County of M. on the first day of June in the year of our Lord at L. in the County of M., one gold watch of the value of five hundred dollars of the property, goods and chat- tels of one E. F., then and there from the person of the said E. F. feloniously did steal, take and carry away ; contrary to the form of the statute in such case made and provided. 3. For Unla'wfiilly Taking and Driving a Horse. — Gen. Sts. cIl 161, § 48. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did wilfully, mischievously and without right, take and drive a certain horse of the property of one E. F., without the consent of the said E. F. the owner of said horse, and who then and there had the legal custody, care and control of the said horse; contrary to the form of the statute in such case made and provided. 1 Commonwealth v. Dimond, 3 Ian, 5 Cush. 288. Commonwealth Cush. 235. Commonwealth v. No- v. Burke, 12 Allen, 182. 734 CRIMINAL LAW. 4. For Larceny of Property Annexed to the Realty. — Gen. Sts. ch. 161, § 25. That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., by trespass with intent to steal, feloniously did sever, take and carry away one hundred pounds weight of lead of the value of fifty cents each pound, of the property of one E. F. and against the will of the said E. F., which lead was, at the time the said trespass was committed by the said C. D. in manner and form aforesaid, parcel of the realty and annexed thereto, to wit, of the dwell- ing-house of the said E. F. there situate ; contrary to the form of the statute in such case made and provided. 5. For stealing in a Building that is on Fire. — Gen. Sts. ch. 161, § 16. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at S. in the County of E., one gold watch of the value of one hun- dred dollars, one gold ring of the value of ten dollars and one gold bracelet of the value of twenty dollars of the property, goods and chattels of one E. F., in a certain building, to wit, the dwelling-house of the said E. F., there situate then and there being, which said dwelling-house was then and there on fire, then and there feloniously did steal, take and carry away in the dwelling-house aforesaid ; contrary to the form of the statute in such case made and provided. 6. For Stealing Property Removed in Consequence of Alarm Caused by Fire. — Gen. Sts. ch. 161, § 16. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at S. in the County of E., one sofa of the value of fifty dollars of the goods and chattels of one E. F., the said sofa having been then and there removed from the dwelling-house of the said E. F. in consequence of an alarm caused by fire, feloniously did steal, take and carry away ; contrary to the form of the statute in such case made and provided. LARCENY. 735 7. For Larceny in a Building. — Gen. Sts. ch. 161, § 15.^ That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., one silver tank- ard of the value of one hundred dollars, of the property of one E. F., in a certain building, to wit, in the dwelling-house of the said E. F. there situate, then and there in said dwell- ing-house feloniously did steal, take and carry away ; con- trary to the form of the statute in such case made and provided. For Breaking and Entering Intent to Commit Larceny. a Building in the Daytime with Gen. Sts. ch. 161, § 14.^ That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the 1 Commonwealth v. Smith, 111 Mass. 429. Commonwealth y. Fer- ris, 108 Mass. 1, 5. Commonwealth V. Reynolds, 122 Mass. 454. Com- monwealth V. Williams, 2 Cush. 583. Commonwealth v. White, 6 Cush. 181. Commonwealth v. Hartnett, 3 Gray, 450. Jones v. Robbins, 8 Gray, 829. Common- wealth V. Byce, 8 Gray, 461. Com- monwealth V. Mahar, 8 Gray, 469. ^ It is provided in the Gen. Sts. ch. 161, § 12, that whoever breaks and enters a building in the night- time with intent to commit the crime of larceny shall be punished by imprisonment in the state prison not exceeding twenty years; and in § 14, that breaking and entering with like intent in the daytime shall be punished by imprisonment in the state prison not exceeding five years, or by fine and imprisonment in jail. These two sections impose different punishments for distinct species of the same general crime, according as the offence is com- mitted in the daytime or the night. The breaking and entering with intent to commit larceny must be alleged in an indictment found un- der either section. To convict under § 12, the indictment must al- lege that it was done in the night- time; for that being an aggravation of the crime, and subjecting the party to the severer penalty, the crime with the aggravation must be charged and established. But if the same general crime is charged without the aggravating circum- stances, it is a good indictment un- der § 14, and it is not necessary to negative the aggravating circum- stance by alleging that the crime was committed in the daytime. An indictment which sets forth the crime without the aggravation, clearly indicates the punishment to be awarded. The words " in the daytime," in § 14, are not intended merely to give character to the of- fence and to describe it, but to dis- tinguish it from the higher grade of the same offence committed in the night-time. It was therefore decided in Com- monwealth V. Reynolds, 122 Mass. 4.54, that an allegation that the offence was committed in the day- 736 CRIMINAL LAW. county aforesaid, a certain building, to wit, the dwelling- house of one E. F.^ there situate, feloniously did break and enter with intent to commit the crime of larceny therein, and divers promissory notes of the amount and of the value in all of five thousand dollars, a more particular description of which is to the jurors unknown,^ of the property of the said E. F. in the said dwelling-house then and there being found, then and there feloniously did steal, take and carry away ; contrary to the form of the statute &c. time is not essential, and that it is competent for the government to prove the breaking and entering with intent to commit larceny, whether in the daytime or night is immaterial ; the defendant can only be convicted and punished under § 14. If the jury are satisfied that it was done in the daytime, it comes within the language of the section ; if in the night-time, then proof of the aggravated offence would justify conviction for the offence of lower grade. The defendant cannot com- plain, if the offence was committed in the night-time, that he has been subjected to the lesser penalty ; and his cdnviction will be a bar to any subsequent indictment charging him with the same offence with the ag- gravating circumstance. Common- wealth V. Burke, 14 Gray, 100, and cases cited. Commonwealth v. Bakeman, 105 Mass. 53, 61. Judg- ment in Commonwealth v. Rey- nolds, 122 Mass. 456, 457. 1 This allegation is sustained by evidence of breaking and entering a dwelling-house owned by E. F., and unoccupied. The gist of the charge is that the defendant broke and entered a certain building, and for the purpose of identifica- tion merely, and not to give a legal character to it as a dwelling, it is alleged to be the dwelliug-house of E. F. Commonwealth v. Reynolds, 122 Mass. 454. ^ This is a sufficient allegation iu an indictment for larceny un- der the Gen. Sts. ch. 161, § 18, and is sustained by proof that the notes stolen were bank-notes. Where all the articles alleged to have been stolen are of one kind, the allegation may be "divers," " divers and sundry," or " a quan- tity," without stating any specific number, with an averment of the aggregate value of the whole. A bank-bill is a promissory note. And it has been repeatedly decided that, under statutes for counterfeiting or for uttering forged promissory notes, indictments are sustained by proof of counterfeiting or of utter- ing forged bank-bills. Common- wealth V. Simonds, 14 Gray, 59. Commonwealth v. Woods, 10 Gray, 477. Commonwealth v. Carey, 2 Pick. 47. The notes stolen might have been described in the indict- ment either as bank-notes or as promissory notes. The latter de- scription is the more general, and includes the former. The evidence would support the charge in either form of statement. Commonwealt.i V. Hussey, 111 Mass. 432. Com- monwealth V. Green, 122 Mass. 333. Judgment in Commonwealth V. Butts, 124 Mass. 449. 452, 453. LEWDNESS AND LASCIVIOUS COHABITATION. 737 CHAPTER LXIII. LEWDNESS AND LASCIVIOUS COHABITATION. An indecent exposure, though in a place of public resort, if visible only by one person, is not indictable as a common nuisance. 1 An omnibus is a public place sufficient to support the indictment.^ In Regina v. Harris^ it was held that a urinal open to the public, and approached by a gate opening from a public footpath, but built in compartments, is such a public place as to make an act of indecency committed in the urinal, and witnessed by two persons, an indictable nui- sance. It is not necessary that the exposure should be made in a place open to the public ; it is sufficient if it be made where a number of persons may be offended by it and several see it.* A conviction upon an indictment for lewd and lascivious cohabitation is no bar to the conviction and sentence upon an indictment for adultery, although proof of the same acts of unlawful intercourse is introduced on both trials. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence. A single act may be an offence against two statutes ; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction un- der either statute does not exempt the defendant from prose- cution and punishment under the other.® 1 Kegina v. Webb, 1 Denison s L. R. 1 C. C. 282, doubting C. C. 338; 2 C. & K. 933. Re- Regina v. Orchard, 3 Cox C. C. gina V. Watson, 2 Cox C. C. 376. 248. Regina v. Elliot, Leigh & Cave C. * Regina v. Thallman, Leigh & C. 103. Cave C. C. 326. ^ Regina c. Holmes, Dearsly C. ^ Morey v. Commonwealth, 108 C. 207 : 3 C. & K. 360. Common- Mass. 433. wealth V. Harris, 101 Mass. 30. 47 738 CRIMINAL LAW. The word "lewdness," in Gen. Sts. ch. 87, §§ 6, 7, includes illicit sexual intercourse, and the irregular indulgence of lust, whether public or private.^ 1. Indictment at Common Jiavr for Exposing the Person. The jurors &c. upon their oath present, that C. D. of B. in the County of S., devising and intending the morals of the citizens of said Commonwealth to debauch and corrupt,^ on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, on a certain common and public highway there situate, in the presence of divers citizens of said Commonwealth then and there being, and within sight and view of divers other citizens through and on the said highway then and there passing and repassing, unlawfully, publicly, wilfully, wantonly, scandalously and indecently did expose to the view of the said persons so present, and so pass- ing and repassing as aforesaid, the body and person of the said C. D. naked and uncovered, for a long space of time, to wit, for the space of one hour ; against the peace of said Commonwealth.^ 2. For Lewd and Lascivious Cohabitation. — Gen. Sts. ch. 165, § 6.* The jurors &c. upon their oath present, that C. D. of &c. and J. N. of &c., on the first day of June in the year of our 1 Commonwealth v. Lambert, 12 wealth «. Calef, 10 Mass. 153. Allen, 177. Moreyu. Commonwealth, 108 Mass. ^ This allegation sufficiently 435, 436. In Commonwealth v. charges a criminal intent. Com- Hunt, 4 Cush. 49, the husband had monwealth v. Haynes, 2 Gray, 72. obtained a divorce from the bond 2 It is not necessary that the in- of matrimony, for the cause of dictment should conclude ad com- utter and wilful desertion by the mune nocmnentum. Commonwealth wife for the term of five years con- V. Haynes, 2 Gray, 72. Common- secutively, without his consent, wealth «. Reynolds, 14 Gray, 91. The wife afterwards went into an- Ante, p. 415 note. other State, and was there married * This indictment requires proof to another man, with whom she, that the parties dwelt or lived to- returned to Massachusetts, and gether, and would not be supported there lived and cohabited. She was by proof of a single secret act of indicted for lewd and lascivious co- unlawful intercourse. Common- habitation, but it was held, that if LEWDNESS AND LASCIVIOUS COHABITATION. 739 Lord and on divers other days and times between that day and the first day of July in the year of our Lord at B. aforesaid in the county aforesaid, did lewdly and lasciviously associate and cohabit together ; the said C. D. being then and there an unmarried man, and the said J. N. being then and there an unmarried woman, and the said C. D. and the said J. N. not being then and there married to each other; against the peace &c., and contrary &c. she was guilty of any offence under amy, and not under the fourth the Rev. Sts. ch. 130, she was in- section, for lewd and lascivious dictable under the second section, behavior, which punishes the crime of polyg- 740 CRIMINAL LAW. CHAPTER LXIV. LIBEL. ■ The several species of this offence which are indictable at common law are indictable in the United States, either at common law or by virtue of particular statutes ; the common law being adopted in all the States, except so far as it may- have been altered by statutes or constitutional provisions.^ The most important part of the indictment is the setting forth of the matter charged as libellous. It must not only contain, but it must also profess to set out, the words of which the alleged libel is composed, that is to say, a tran- script of the libellous publicatron, or of that part of it, which is the subject of the indictment. The word " tenor " imports an exact copy, and that it is set out in words and figures. Marks of quotation, by themselves, are not sufficient.^ If paits of the publication are selected, they must be set forth thus : "In a certain part of which said there were and are contained certain- false, malicious, scandalous and libellous matters of and concerning the said C. D., accord- ing to the tenor following, that is to say," " And in a certain other part " &c. Besides 'setting out the libellous passages of the publica- tion, the indictment must also contain such averments and innuendoes as may be necessary to render it intelligible, and its application to the party libelled, evidetit. When the statement of an extrinsic fact is necessary in order to render the libel intelligible, or to show its libellous quality, such extrinsic fact must be averred in the introductory part of the 1 Commonwealth v. Chapman, 163. 3 Greenl. Ev. §§ 164, 165. 13 Met. 68. Commonwealth «. Folkard on Slander and Libel, ch. Kneeland, 20 Pick. 206, 232. Com- 32. monwealth v. Blanding, 3 Pick. 304. ". Commonwealth v. Wright, 1 Commonwealth v. Clap, 4 Mass. Cush. 46. Ante, pp. 77, 78. LIBEL. 741 indictment ; but where it is necessary merely to explain a word by reference to something which has preceded it, this is done by an innuendo. And an innuendo can explain only in cases where something has already appeared upon the record to found the explanation ; it cannot, of itself, change, add to or enlarge the sense of expressions beyond their usual acceptation and meaning.^ This rule of pleading may be thus stated : In an indict- ment, as well as in a declaration, the averment of extrinsic facts is unnecessary, where the criminal quality of the publi- cation may be collected from the contents. Such averments are essential where the terms of the libel are independently of particular extrinsic facts, innocent or unmeaning, but are in reality noxious and illegal, in connection with the facts to which they relate. The principle is, that when the words are ambiguous and equivocal, and require explanation by reference to some extrinsic matter to make them actionable or indictable, it must not only be predicated that such matter existed, but also that the words were spoken of and concern- ing that matter.^ With respect to the manner of putting upon the record those facts and circumstances which render the publication indictable, it must be by averments in oppo- sition to argument and inference, by way of introduction if it is new matter, and by way of innuendo if it is only matter of explanation. For an innuendo is only explanatory of some matter already expressed ; it serves to point out where there is precedent matter, but never for a new charge ; it may apply what is already expressed, but cannot add, (5r enlarge, or change the sense of the previous words.^ The indictment must charge a publication, for it is not perfectly clear that it is a criminal offence to compose and write libellous matter, if it be not published ; * and it is well 1 Commonwealth v. Snelling, 15 v. Long, 3 House of Lords Cases, Pick. 321, 335. 395. Solomon v. Lawson, 8 Q. B. 2 Heard on Libel and Slander, 825. Goodrich v. Hooper, 97 Mass. §351. 1,7. 8 Heard on Libel and Slander, ■* Rez v. Burdett, 3 B. & Aid. § 219. Le Fanu v. Malcolmson, 1 717. Although, if a party write a House of Lords Cases, 637. Barrett hbel in the county of A., with intent 742 CRIMINAL LAW. settled that the charge will be supported by proof of the publication alone.^ The indictment must expressly aver that the libel was " of and concerning " the party libelled, unless this is clearly and distinctly shown by the inevitable construction of the libel itself; and the omission of those words is not supplied by innuendoes pointing out the differ- ent parts of the libel to mean the party libelled.^ The question whether a bill of particulars should be re- quired is, in this case, as in all others, exclusively within the discretion of the presiding judge.^ A justice of the peace, before indictment found, may issue his warrant to apprehend a person charged on oath with having published a libel, and may hold him to bail, and com- mit him for trial if he cannot find bail. And a justice of the peace has jurisdiction to require sureties for good behav- ior in some cases of libel against private individuals.* In an English case it was decided that a justice of the peace has jurisdiction to require sureties for good behavior of a person charged before him, upon information, with having published a libel calculated to produce a breach of the peace ; and, in default of such sureties, to commit the party so charged to prison.^ to publish it, and afterwards pub- been guilty of all that is charged lish it in the county of B., he may against him. 2 Lead. Crim. Cas. be indicted for the misdemeanor in 38. Commonwealth v. O'Brien, either county. Rex v. Burdett, 107 Mass. 208. ubi supra. Ante, p. 530 note. ^ Kex v. Marsden; 4 M. & Sel. 1 Rex y.-Hunt, 2 Campb. 583. 164. Gregory v. The Queen, 15 Rex V. Williams, 2 Campb. 646. Q. B. 957. Rex V. Middlehurst, 1 Burr. 400. ' Commonwealth v. Snelling, 15 Commonwealth v. Morgan, 107 Pick. 321. Ante, p. 414. Mass. 199. It is an elementary * Butt v. Conant, 4 Moore, 195; and universal principle of criminal 1 B. & B. 548. 1 Saund. 132. 1 law, that it is enough to prove so Wms. Notes to Saund. 151. much of the indictment as shows ° Haylock v. Sparks, 1 El. & Bl. that the defendant has committed 471. Heard on Libel and Slander, a substantive crime therein specified, § 356. although he is not shown to have LIBEL. 743 1. Indictment for a Libel.^ The jurors &c. upon their oath prese;nt, that J. S. of B. in the County of M., contriving, and unlawfully and maliciously intending to injure, vilify and prejudice one J. N., and to deprive him of his good name, fame, credit and reputation, and to bring him into great contempt, scandal, infamy and disgrace, on the first day of August in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully and maliciously did write and publish, and cause and procure to be written and published,^ a false, scandalous, malicious and defamatory libel, in the form of a letter directed to the said J. N., or, if the publication were in any other manner, omit the words "in the form" &c., containing divers false, scandalous, malicious and defamatory matters and things of and concerning the said J. N., and of and concerning &c., here insert such of the subjects of the libel, as it may be neces- sary to refer to by the innuendoes, in setting out the libel; according to the tenor following, that is to say, here set out the libel, together with such innuendoes as may be necessary to render it intelligible ; the said J. S. then and there well know ing the said defamatory libel to be false ; to the great damage, scandal and disgrace of the said J. N., and against the peace &c. 2. Indictment for Slanderous Words Spoken to a Magistrate.^ The jurors &c. upon their oath present, that heretofore, to wit, on the third day of August in the year of our Lord at B. in the County of M., one J. S. was brought before J. N., Esquire, then and yet being one of the trial jus- tices within and for the said County of M., legally authorized and dulj' qualified to perform and discharge the duties of said office, and»the said J. S. was then and there charged before the said J. N., upon the oath of one A. C, that the said J. S. 1 Archb. Crim. PI. 895, 18th 4 Cush. 74, 75. Commonwealth v. ed. Folkard on Slander and Libel, Eaton, 1§ Pick. 273. Common- 774. wealth v. Harris, 13 Allen, 534, ^ This averment is not bad for 539. duplicity. 2 Gabbett Crim. Law, ^ Archb. Crim. PI. 878, 18th ed. 234. Commonwealth v. TwiteheU, Ante, p. 81. 744 CRIMINAL LAW. had then lately before feloniously stolen, taken and carried away divers goods and chattels of the said A. C. And the jurors aforesaid upon their oath aforesaid do further present, that the said J. S., maliciously intending and contriving to scandalize and vilify the said J. N. as such justice as aforesaid, and to bring the administration of justice in this Commonwealth into contempt, afterwards, and while the said J. N., as such justice as aforesaid, was examining and taking the depositions of divers witnesses against the said J. S. in that behalf, to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, maliciously, in the presence and hearing of divers good citizens of said Common- wealth, did publish, utter, pronounce, declare and say, with a loud voice, to the said J. N., and whilst the said J. N. was so acting as such justice as aforesaid, "You are a scoundrel and a liar : you would hang your own father if you could make a groat by his execution ; " to the great scandal and reproach of the administration of justice in this Common- wealth, and against the peace &c. 3. Flea to an Indictment for a Libel, Justifying the Publication on the Ground of its Truth and Benefit to the Public. And C. D. comes and says, that the alleged defamatory libel and matters charged against him the said C. D. in and by the said indictment, as written and published by him the said C. D. of and concerning the said E. F., are true in this, that &c., stating the facts relied on as justifying the libel on the ground of its truth. And the said CD. further says, that it was for the public benefit that the said alleged defamatory libel and matters charged in and by the said indictment, as written and published of and concerning the said W. R., should be written and published, because &c., stating the fact or facts relied on as excusing the publication on the ground of the benefit to the public, whereby and by reason whereof it was and is for the public benefit that all and every the said alleged defamatory libel and matters charged in and by the said indictment should be published. And this the said C. D. is ready to verify &c. lord's DAT, OBSERVANCE OF. 745 CHAPTER LXV. lord's day, observance op. The Gen. Sts. ch. 84, enact: — Sect. 1. Whoever keeps open his shop, warehouse or workhouse, or does any manner of labor, business or work, except works of necessity and charity, or is present at any dancing or public diversion, show or entertainment, or takes part in any sport, game or play, on the Lord's day, shall be punished by a fine not exceeding ten dollars for every of- fence. Sect. 2. Whoever travels on the Lord's day, except from necessity or charity, shall be punished by fine not exceed- ing ten dollars for every offence. The Gen. Sts. ch. 84, §§ 1, 2, provide for the punishment of five distinct offences as violations of the Lord's day. These are : 1. Keeping open a shop, warehouse or work- house.i 2. Doing atiy manner of labor, ' business or work,^ except works of necessity or charity. 3. Being present at any dancing or public diversion. 4. Taking part in any sport or play. 5. Travelling on the Lord's day, except from neces- sity or charity. The ninth seption of the same chapter pro- vides that " Whoever conscientiously believes that the seventh day of the week ought to be observed as the Sab- bath, and actually refrains from secular business, travel and labor on that day, shall not be liable to the penalties of this chapter for performing secular business, travel t)r labor on the Lord's day, or first day of the week : provided, that he disturbs no other person." Under these sections of the stat- 1 This provision of the statute is nature, a joint act ; and two defend- constitutional. Commonwealth v. ants may be joined in one corn- Has, 122 Mass. 40. plaint, and upon proof of a joint act 2 The act which the statute maybe jointly convicted. Common- makes an ofEence may be, in its wealth v. Sampson, 97 Mass. 407. 746 CRIMINAL LAW. ute, a person is punishable for keeping his shop open on the Lord's day, although he conscientiously believes that the seventh day of the week ought to be observed as the Sab- bath, and actually refrains from secular business on that day.i It is a mistake to suppose that the Legislature intended to forbid or restrain every act of a secular or temporal nature, not coming within the exception in the statute, so that on the day set apart for religious services and observances nothing else could be done, unless it might be properly desig- nated as a charitable or necessary act. The purpose of the statute is only to prevent the carrying on of the usual and ordinary callings and occupations of men, by which they gain a livelihood or acquire property, and the doing of acts such as usually belong to or are connected with worldly affairs and the common transactions of business. Previous to the St. of 1791, ch. 58, § 1, all the acts of the Province for the due observance of the Lord's day were framed, like the English statute 27 Car. II. ch. 7, § 1, so as to prohibit per- sons from doing only " any labor, business or work of their ordinary callings." Under these enactments, a person might lawfully do any act on the Sabbath, however secular or tem- poral, provided it was not included within the class of deal- ings or transactions which might properly be deemed to belong to his ordinary and usual employment on week-days. Such has been the judicial construction of the English stat- ute. Our present statute, however, was doubtless intended to have a broader application. By the omission of the clause confining the prohibitions to the exercise of the " ordinary callings " of persons, and extending it so as to include " any manner of labor, business or work," the intention of the Legislature, seems to have been to comprehend within the prohibition aU acts of a secular nature belonging to or con- nected with ordinary business or common worldly affairs, although they might not fall within the line of the daily busi- ness or occupation in which a person happened to be em- ployed.2 '■Commonwealth v. Has, 122 2 judgment in Bennett e. Brooks, Mass. 40. 9 Allen, 119, 120. In this case it lord's DAT, OBSERVANCE OP. 747 In a recent case,^ the work was gathering and carrying away sea-weed from a beach on which the tide had deposited it, and from which the next tide might sweep it away. The supposed necessity arose from the fact that the sea-weed was valuable, and that, if not then secured, it might be lost. " It is not easy to give a precise rule for cases of this kind," said Hoar, J., " some of which come very near the line. The definition which has been given of the phrase ' works of necessity or charity,' that ' it comprehends all acts which it is morally fit and proper should be done on the Sabbath,' may itself require some explanation. To save life, or pre- vent or relieve suffering, and this in the case of animals as well as men ; to prepare needful food for man and beast ; to save property, as in the case of fire, flood or tempest, or other unusual peril, — would unquestionably be acts which fall within the exception. But it is no sufficient excuse for work on the Lord's day that it is more convenient or profit- able if then done than it would be to defer or omit it. And we think that the ruling at the trial in this case was, on the whole, right, and that taking the sea-weed was not a work of necessity, within the meaning of the law." ^ The provision of the statute which prohibits travelling, like that which forbids the doing of any business, labor or work, excepts what is done from " necessity or charity." Gen. Sts. ch. 84, §§ 1, 2. It has often been said by the court that the exception of works of necessity or charity does not extend merely to works which are physically or absolutely necessary, but comprehends all acts which it is morally fit and proper should be done on the Sabbath, under the particular circum- stances pf the case.^ was decided that the execution of a 410. But it is settled that an aver- will is not within the general pro- ment that the defendant hoed "in hibition of the statute. his field " on the Lord's day is 1 Commonwealth v. Sampson, 97 supported by evidence that on that Mass. 407. day he hoed "in a field" in a part 2 It was left an open question, of his garden. Commonwealth v. whether, if a whale happened to be Josselyn, 97 Mass. 411. stranded on the shore on the Lord's ' Commonwealth v. Knox, 6 day, it would be lawful to work on Mass. 76, 77. Flagg v. Millbury, 4 that day to capture him. 97 Mass. Cush. 243, 244. Bennett v. Brooks, 748 CRIMINAL LAW, 1. For Keeping a Shop Open on the Lord's Day. — Gen. Sts. ch. 84, § 1.1 That C. D. of &c. on the first day of June in the year of our Lord that day being the Lord's day, at S. in the County of E., did keep open his shop there situate, for a long time, to wit, for the space of one hour, for the purpose of doing labor, business and work therein, to wit, selling goods and merchandise therein on the said Lord's day, the said labor, business and work not being then and there works of neces- sity and charity ; contrary to the form of the statute in such case made and provided. 2. For ^A^orking on the Lord's Day. — Gen. Sts. ch. 84, § 1.^ That C. D. of B. in the County of M. on the first day of June in the year of our Lord the same being the Lord's day, at B. aforesaid, did then and there do and per- form certain labor, business and work, to wit, state the facts, the said labor, business and work not being then and there works of necessity and charity ; contrary to the form of the statute in such case made and provided. 3. For being Present at Gaming on the Lord's Day. — Gen. Sts. ch. 84, § 1. St. 1862, ch. 152. That C. D., E. F. and G. H. all of B. in the County of S. on the first day of June in the year of our Lord that day being the Lord's day, at B. aforesaid in the county afore- 9 Allen, 118, 123. Commonwealth that the defendant kept open his V. Sampson, 97 Mass. 407, 409. shop for the purpose of transacting Doyle V. Lynn and Boston Rail- business, or for some other unlaw- road, 118 Mass. 195, 197. Connolly ful purpose. Commonwealth v. V. Boston, 117 Mass. 64. 112 Mass. Collins, 2 Gush. 556. Common- 467. wealth u. Wright, 12 Allen, 187. 1 The intent of the statute was Commonwealth v. Lynch, 8 Gray, to prohibit the opening of shops, 384. Commonwealth v. Harrison, warehouses and workhouses, for 11 Gray, 308. Commonwealth v. the purpose of work or the transao- Mason, 12 Allen, 185. Common- tion of business on the Lord's day, wealth v. Trickey, 18 Allen, 559. but not to prohibit the opening ^ Commonwealth v. Sampson, 97 them for any lawful purpose. The Mass. 407. Commonwealth v. Jos- complaint, therefore, must allege selyn, 97 Mass. 411. lord's DAT, OBSERVANCE OF. 749 said,* * were severally, voluntarily present at a certain game then and there played on the said Lord's day, to wit, a game called ; contrary to the form of the statute in such case made and provided. 4. For Gaming on the Lord's Day. — Gen. Sts. cb. 84, § 1. Proceed as in the last precedent to the asterisJcs : Did sever- ally take part in a certain game, to wit, a, game called ; contrary to the form of the statute in such case made and provided. 5. For Entertaining &c. on the Lord's Day. — Gen. Sts. oh. 84, § 3.^ That C. D. of Boston in the County of Suffolk on the first day of June in the year of our Lord that day being the Lord's day, at Boston aforesaid in the county aforesaid, and within the judicial district of said court, did keep a place of public entertainment and refreshment in a certain building situated and numbered in Court Street in said Bos- ton, and did then and there, without any appointment, au- thority or license therefor, at said Boston on said Lord's day, entertain in said place of entertainment and refreshment a certain person whose name is unknown to said complainant, the said person so entertained therein not being then and there a traveller, stranger or lodger in said place of entertain- ment and refreshment, and being then and there another and different person from any person described, set forth and re- ferred to in any other count of this complaint ; contrary to the form of the statute in such case made and provided. 1 Commonwealth v. Crowther, of persons entertained, and must 117 Mass. 116. Commonwealth v. negative that they were travellers Nagle, 117 Mass. 142. The com- &c. Commonwealth v. Maxwell, 2 plaint must state the precise number Pick. 138. 112 Mass. 292. 750 CRIMINAL LAW. CHAPTER LXVI. LOTTERY. An indictment under Gen. Sts. ch. 167, § 1, for setting up and promoting an illegal lottery, which follows the words of the statute, is sufficient.^ An indictment under Gen. Sts. ch. 167, § 6, for selling, or having in possession with intent to sell, a false and fictitious lottery ticket, which is described, need not set forth the nature of the lottery, or negative the existence of any lottery, or show in what respect the ticket is false or fictitious.^ This section applies to tickets in lot- teries set up in this Commonwealth as well as elsewhere.^ A person who has set up or promoted an illegal lottery in this Commonwealth, and sold tickets therein to different per- sons, may be convicted and sentenced for such setting up or promotion of the lottery, under Gen. Sts. ch. 167, § 1 ; for selling a ticket therein to one person, under Gen. Sts. ch. 167, § 3 ; and for selling a false and fictitious lottery ticket to another person, under Gen. Sts. ch. 167, § 6. The offences have nothing in common which is. essential to either.* No presumption arises, under Gen. Sts. ch. 167, § 7, that a lottery ticket is false or fictitious, unless the defendant has sold the same, or offered it for sale, or received a valuable consideration therefor.^ 1 Commonwealth v. Harris, 13 Allen, 534. In Commonwealth v. Allen, 534. Commonwealth v. Hor- Trickey, 13 Allen, 559, 560, it was ton, 2 Gray, 69. Commonwealth said that there are a great variety Thacher, 97 Mass. 583. of cases in which the same evidence 2 Commonwealth v. Harris, 13 may tend to prove that a person has Allen, 534. committed several distinct offences. « Commonwealth v. Harris, 13 105 Mass. 59. 97 Mass. 122. Allen, 534. St. 1869, ch. 112. « Commonwealth v. Harris, 13 * Commonwealth v. Harris, 13 Allen, 534. LOTTERY. 751 Indictment for Setting up and Promoting a Lottery. — Gen. Sts. ch. 167, § 1} That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did set up and promote a certain lottery, called the National Prize Distribu- tion, and which said lottery was then and there for money, to wit, for seventy thousand dollars ; contrary to the form of the statute in such case made and provided. 1 Commonwealtli v. Harris, 13 indictments on Gen. Sts. ch. 167, Allen, 534. In this case, two other §§ 3 and 6, were held to be good. 752 CRIMINAL LAW. CHAPTER LXVII. MAINTENANCE. "Both species of this crime are," says Greenleaf, "in some form or other, forbidden by statutes in nearly all of the United States ; but the common law is still conceived to be in force where it has not been abrogated by statute. The indictment charges, in substance, that the defendant unjustly and unlawfully maintained and upheld a certain suit, pend- ing in a certain court, describing it, to the manifest hinder- ance and disturbance of public justice." ^ Prosecutions for maintenance are now very rarely instituted ; for a number of persons are generally implicated in this offence, and then the common practice is to indict them for a conspiracy. Indictment for Maintenance. The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our ' Lord at B. aforesaid in the county aforesaid, did un- justly and unlawfully maintain and uphold a certain suit, which was then and there in the, here describe the court in which the action was then pending, between one E. F., plain- tiff, and one J. N., defendant, in an action of contract, on behalf of the said E. F., against the said J. N., and then and there in and for the maintenance of said suit did unjustly and unlawfully expend a large sum of money, to wit, the sum of one thousand dollars, on behalf of the said E. F. ; to the manifest hinderance and disturbance of justice, to the great damage of the said J. N., against the peace &c. 1 3 Greenl. Ev. §§ 180, 181. 1 Crim. PI. 158. Flight v. Leman, Russell OQ Crimes, 254, 4th ed. 4 Q. B. 883. PecheU ». Watson, 2 Deacon Crim. Law, 843. 1 Gab- 8 M. & W. 691. For a precedent, bett Crim. Law, 142. 1 Stark, see 2 Stark. Crim. PI. 704. MALICIOUS MISCHIEF ETC. 753 CHAPTER LXVIII. MAMCIOTTS MISCHIBP AND MALICIOUS INJUET TO REAL ESTATE. Malicious mischief, or damage amounting to a crime, is defined by Blackstone to be an injurj' done " either out of a spirit of wanton cruelty, or black and diabolical revenge." ^ This definition was approved and adopted in Commonwealth v. Walden.^ The defendant was there indicted for wilfully and maliciously destroying the personal property of another ; and it was held that the word " maliciously," as used in the statute relating to malicious mischief, was not sufficiently defined as the wilful doing of any act prohibited by law, for which the defendant has no lawful excuse, but the jury must be satis- fied that the injury was done out of a spirit of cruelty, hostility or revenge. This element must exist in all those injuries to real or personal property done wilfully and mali- ciously, which are enumerated and made criminal in the sev- eral statutes. The injury must not only be wilful, that is, intentional and by design, as distinguished from that which is thoughtless or accidental, but it must, in addition, be mali- cious in the sense above given. The wilful doing of an un- lawful act without excuse, which is ordinarily sufficient to establish criminal malice, is not alone sufficient under these statutes. The act, although intentional and unlawful, is nothing more than a civil injury, unless accompanied with that special malice which the words " wilful and malicious " imply.^ The Gen. Sts. ch. 161, § 85, enacts that " Whoever wil- fully and maliciously destroys or injures the personal property of another in any manner or by any means not particularly described or mentioned in this chapter, shall be punished by 1 4 Bl. Comm. 244. 4 Stephen ' Judgment in Commonwealth v. Comm. 138, 7th ed. Williams, 110 Mass. 400, 402. 2 3 Cush. 556, 561. 43 754 CRIMINAL LAW. imprisonment in the state prison not exceeding five years, or by fine not exceeding one thousand dollars and imprisonment in the jail not exceeding one year : provided, that when the value of the property so destroyed or injured is not alleged to exceed the sum of fifteen dollars, the punishment shall be by fine not exceeding fifteen dollars, or imprisonment in the jail not exceeding thirty days."^ This section appears to have been intended to provide generally for all cases of the wilful and malicious destruction or injury of the " personal property of another," not included in the specific provisions of the preceding sections of the same chapter.^ It has been decided that an indictment under the Gen. Sts. eh. 161, § 80, is sufficient, if it sets forth the offence in the words of the statute. Those words import all that is necessary to a legal description of the offence. The word " wilfully," as used in the statute, means intentionally; and the word " maliciously " imports a criminal motive, intent or purpose.* Indictments for malicious injuries to beasts, setting forth the offence in the words of the statutes on which they are framed, are sufficient, without any description of the maiming, wounding or manner of killing. And indictments at com- mon law have been drawn in the same manner.* 1. For Injuring a Dvrelling-House by the Explosion of Gronpo'wder. Gen. Sts. cb. 161, § 68. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously, by the explosion of gunpowder, the dwelling-house of one E. F. there situate, did unlawfully injure and destroy ; contrary to the form of the statute &c. 1 No allegation as to the value ' Commonwealth v. McLaughlin, or amount of the injury done to the 105 Mass. 460, 463. Commonwealth property is necessary. Common- v. Brooks, 9 Gray, 299, 303. Ante, wealth !). Cox, 7 Allen, 577. pp. 63, 64. 2 Commonwealth ». Falvey, 108 ^ Res v. Briggs, 1 Moody C. C. Mass. 304, 306. Commonwealth o. 318. Commonwealth v. Sowle,^ 9 Soule, 2 Met. 21, 22. Common- Gray, 804, 305. Commonwealth v. wealth V. Sullivan, 107 Mass. 218. Palvey, 108 Mass. 304, 307. MALICIOUS MISCHIEF ETC. 755 2. For Causing an Explosion in a D-welling-House ■with Intent &o. — Gen. Sta. ch. 161, § 69. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously did explode in the dwelling-house of one E. F. there situate, a certain explosive substance, that is to say with intent thereby then and there the property of one J. N., in the said dwelling-house then and there being, unlawfully to injure and destroy ; contrary to the form of the statute in such case made and provided. 3. For Defacing a D-welling-house by Thro-wing Filthy Substances into it. — Gen. Sts. ch. 161, § 70. That C. D. of B. in the County of M. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously did throw into the dwelling-house of one E. F. there situate, a large quantity of a certain filthy substance, that is to say, one barrel of coal-tar, with intent thereby then and there the said dwelling-house unlawfully to injure, deface and de- file ; contrary to the form of the statute in such case made and provided. 4. For Killing a Horse. — Gen. Sts. oh. 161, § 80. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain horse ("any horses, cattle or other beasts ") of the value of two hundred dollars of the property of one E. F., then and there wilfully and maliciously did kill ; contrary to the form of the statute in such case made and provided. 5. For Exposing a Poisonous Substance vrith Intent that it should be Taken and Swallowed by a Horse. — Gen. Sts. ch. 161, § 80. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, wilfully and maliciously did expose to a certain horse of the value of two hundred dollars, of the 756 CRIMINAL LAW. property of one E. F., a certain poisonous substance, that is to say, two drachms of arsenic, with intent of him the said C. D. that the said poisonous substance should be then and there taken and swallowed by the said horse ; contrary to the form of the statute in such case made and provided. 6. For Destroying the Machinery of a ■Water-mill. — Gen. Sta. ch. 161, § 72. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain belt of the value of fifty dollars, of the property of one E. F., the same then and there being a part of the machinery of a certain watei'-mill, of the prop- erty of the said E. F. there situate, then and there wilfully and maliciously did cut, injure and destroy ; contrary to the form of the statute in such case made and provided. 7. For Cutting Down an Ornamental Tree. — Gen. Sts. ch. 161, § 82. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain elm-tree not his own, of the value of fifty dollars of the property of one E. F., then and there standing and growing for shade and ornament on the land of the said E. F., then and there wilfully and maliciously, wan- tonly and without cause, did cut down and destroy ; contrary to the form of the statute in such case made and provided. 8. For Breaking Glass in a Building. — Gen. Sts. ch. 161, § 82.1 That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, wilfully, maliciously and wantonly did break and destroy the glass, to wit, ten panes of window glass each of the value of one dollar of the property of one E. F., in a certain building there situate, not his the said C. D.'s own, but which building then and there belonged to and was the property of the said E. F., the said glass then and there 1 Commonwealth v. Bean, 11 7 Allen, 578. Commonwealth v. Cush. 414. Commonwealth v. Cox, McCarron, 2 Allen, 158. MALICIOUS MISCHIEF ETC. 757 being parcel of the realty, to wit, of the building aforesaid ; contrary to the form of the statute in such case made and provided. 9. For Breaking Down a Fence. — GeiL Sta. ch. 161, § 82. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, maliciously did break down, injure, mar and deface a certain fence of the value of fifty dollars of the property of one E. F., then and there belonging to and en- closing a certain parcel of land there situate, not his the said C. D.'s own, but which land was then and there the property of the said E. F., the said fence then and there being parcel of the realty, to wit, of the land aforesaid ; contrary to the form of the statute in such case made and provided. 10. For Breaking Dow^n a Guideboard. — Gen. Sts. ch. 161, § 66. That C. D. of B: in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, a certain guideboard of the value of ten dollars, of the property of the inhabitants of the town of B. in the county aforesaid, erected upon a certain highway there, wilfully and maliciously did break down, injure and destroy ; contrary to the form of the statute in such case made and provided. 11. For Cutting Down a Timber Tree. — Gen. Sts. ch. 161, § 81. That C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, -v^^ilfuUy did commit a trespass by then and there unlawfully and wilfully cutting down certain timber, to wit, one oak-tree of the value of fifty dollars of the property of one J. N., then and there standing and growing on the land of the said J. N., the said C. D. then and there not hav- ing any interest or property in the said tree, and the said C. D. not being then and there first licensed by the said J. N. to cut the same as aforesaid ; contrary to the form of the statute in such case made and provided. 758 CRIMINAL LAW. 12. For Entering an Orchard on the Lord's Day with Intent &c. Gen. Sts. oh. 161, § 84. That C. D. of B. iii the County of S. on the first day of June in the year of our Lord the same being the Lord's day, at B. in the County of S., wilfully did commit a trespass, by then and there on the said Lord's day, unlawfully entering the orchard of one J. N., without the permission of the said J. N., the owner of the said orchard, with intent then and there the fruit, to wit, fifty pounds weight of grapes of the Yalue of fifty cents each pound of the property of the said J. N., then and there growing and being in the orchard aforesaid, unlawfully and maliciously to cut, take and carry away ; contrary to the form of the statute in such case made and provided. 13. For Malicious Injury to Ice Taken as an Article of Merchandise. Gen. Sts. ch. 161, § 73. That on the first day of January in the year of our Lord there was and yet is a certain pond of water called Fresh Pond, situate at C. in the County of M., of the prop- erty of one J. N., from the waters of which pond, on the said first day of January in the year aforesaid, ice was taken by the said J. N. as an article of merchandise. And the jurors aforesaid upon their oath aforesaid do further present, that C. D. of C. in the County of M., on the said first day of January in the j'ear aforesaid, at C. aforesaid in the county aforesaid, well knowing the premises, the ice then and there being upon the waters aforesaid, wilfully, maliciously and without right or license, did cut, injure^ mar and damage, whereby the taking of the ice aforesaid was then and there hindered and the value of the same was then and there diminished as an article of merchandise as aforesaid ; con- trary to the form of the statute in such case made and provided. MALICIOUS MISCHIEF ETC. 759 14. For Entering £in Orchard Eind Stealing Fruit. — Gen. Sts. oh. 161, § 83.1 That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did unlawfully, wilfully and maliciously enter the orchard of one E. F., and did then and there feloniously steal, take and carry away cer- tain fruit, to wit, of the value of dollars of the property of the said E. F. and without his consent ; con- trary to the form of the statute &c. 15. Malicious Injury to Keal Estate. — Sts. 1862, ch. 160.^ That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did unlawfully, wilfully and maliciously injure, deface, mar and destroy (" in whole or in part ") the dwelling-house of one E. F. (" upon the inside or outside "), by then and there wilfully and mali- ciously, state the facts; the said C. D. not being then and there the owner of said building, and not then and there having the right to injure the same as aforesaid by virtue of any contract with the said E. F., the owner thereof; contrary to the form of the statute in such case made and provided. 1 A complaint on St. 18.5.5, ch. unlawful entry is the gist of the 457 (Gen- Sts. ch. 161, § 8-3), for action, although the circumstances the malicious destruction of a tree, may aggravate the trespass. Com- shruh or vine on the land of an- monwealth v. Dougherty, 6 Gray, other, must aver an unlawful entry 349, 350. hy the defendant on the land. In " Commonwealth v. Williams, many cases, civil and criminal, the 1 10 Mass. 401. 760 CRIMINAL LAW. CHAPTER LXIX. MAYHEM. Indictment for Mayhem by Slitting the Nose. — Gen. Sts. oh. 160, § 19.1 The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, the said C. D. being then and there armed with a certain dangerous weapon, to wit, with malicious intent the said J. N. then and there to maim and disfigure, in and upon the said J. N. feloniously did make an assault ; and that the said C. D., with the said the nose of the said J. N. then and there feloniously and maliciously did cut and slit, with malicious intent then and there and thereby, in manner and form aforesaid, the said J. N. then and there to maim and disfigure ; contrary to the form of the statute in such case made and provided. 1 The Gen. Sts. ch. 160, § 20, assaults another with intent to maim provides a punishment for whoever or disfigure his person. NUISANCE. 761 CHAPTER LXX. NUISANCE. The indictment for this offence states the facts which form the subject of the charge, alleging it to be to the common nuisance of all the citizens of the State or Commonwealth. But if the subject be one which in its nature necessarily tends to the injury of all the citizens, such as obstructing a river described as a public navigable river, or a way described as a public highway, or the like, it is said to be sufficient, without any more particular allegation of common nuisance. ^ It is not necessary, in an indictment alleging matters that constitute a common nuisance, to conclude ad commune nocu- mentum, although it is usual so to do.^ 1. Nuisance for Carrying on an Offensive Trade.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord and on divers other days and times between that day and the first day of October in the year aforesaid, at B. in the County of S., unlawfully and injuriously did kill, and cause to be killed, divers large numbers of horses near to the dwelling-houses 1 3 Greenl. Ev. § 185. Bamford v. Tumley, 3 B. & S. 62. " Per Metoalf, J., in Common- Where works are so carried on as wealth V. Reynolds, 14 Gray, 91. to be a nuisance, it is no answer to Commonwealth v. Haynes, 2 Gray, an indictment against the master 72. Commonwealth v. Boon, 2 for the nuisance, that he did not Gray, 74, 75. Commonwealth v. personally superintend the works, Oaks, 113 Mass. 8, 9. Common- and that he had given express or- wealth V. Harris, 101 Mass. 29. ders to the workmen that they Ante, pp. 414, 415 note. should he carried on in a mode ' 6 Cox C. C. Appendix, p. Ixxvii. which, if followed, would have pre- Commonwealth u. Brown, 13 Met. vented their causing a nuisance. 365. Commonwealth v. Upton, 6 Kegina v. Stephens, L. R. 1 Q. B. Gray, 473. Commonwealth ». Rum- 702. ford Chemical Works, 16 Gray, 231. 762 CRIMINAL LAW. of divers persons then and there inhabiting the same houses, and also near to a certain public road and highway there ; and then and on the said other days and times, at B. afore- said in the county aforesaid, unlawfully and injuriously did cause and permit the skins, flesh, bones, blood, entrails, ex- crements and other filth of and from the said horses so killed as aforesaid, to lie and remain near to the said dwelling- houses and near to the said public road and highway for a long space of time, to wit, for the space of one week, whereby divers noisome and unwholesome smells did then and there arise from the said skins, flesh, bones, blood, entrails, excre- ments and other filth, so that the air was then and there greatly corrupted and infected thereby ; to the great damage and common nuisance of the inhabitants of the said houses, and of all other persons then and there passing upon and along the said public road and highway, and against the peace. 2. Indictment for Storing Large Quantities of Naphtha in such Places as to be Dangerous to Persons and Property.^ The jurors &c., that I. S. L. and B. B., severally of L. in the County of M., merchants, not having regard to the lives and security of the citizens of this Commonwealth, hereto- fore, to wit, on the first day of June in the year of our Lord at L. aforesaid, unlawfully, knowingly and wilfully did deposit, and cause to be deposited, in a certain warehouse and premises of them the said I. S. L. and B. B., and near to divers streets and ancient and common highways there, and also to divers dwelling-houses, to wit, in S. Street in L. afore- said, divers large and excessive quantities of a certain danger- ous, ignitable and explosive fluid called wood naphtha, to wit, I Regina v. Lister, Dearsly & Kidder, 107 Mass. 188. St. 1866, Bell C. C. 209. A nuisance at com- ch. 285. St. 1869, oh. 152. Guilty mon law may consist in the keep- knowledge is not one of the ingre- ing or manufacture of gunpowder, dients in the offence created by the naphtha, or other explosive or in- St. of 1869, ch. 152, § 4, imposing a flammable substances in such quan- penalty upon any person who shall tities and places, or in such a man- sell, or keep, or offer for sale, ner, as to be dangerous to the persons naphtha under any assumed name, and property of the inhabitants of Commonwealth v. Wentworth, 118 the neighborhood. Regina v. Lis- Mass. 441. ter, ubi supra. Commonwealth v. NUISANCE. 763 ten thousand gallons of the said fluid, and from the day and year aforesaid until the first day of September in the year aforesaid, at L. aforesaid, unlawfully, knowingly and wilfully did keep in the said warehouse and premises and near to the streets, highway and dwelling-houses aforesaid the said fluid, in such large, excessive and dangerous quantities as aforesaid, by reason of which said premises the citizens during the time aforesaid passing and proceeding in, through and along the said streets and highways, and the citizens near to the said warehouse and premises residing and being, were in great danger and peril of their lives and property, and were kept in great alarm, fear and terror, and were greatly impeded, dis- turbed and incommoded in the performance of their lawful occupations, and prevented and deterred from using the said streets and highways and from passing and repassing over, through and along the same as otherwise, and but for the premises aforesaid they could, might and ought to have done ; to the common nuisance &c., and against the peace &c. Second Count. — That the said I. S. L. and B. B. on the first day of June in the year of our Lord and on di- vers other days between that day and the first day of Sep- tember in the year aforesaid, that is to say, in and upon the said warehouse and premises, to wit, in S. Street in L. afore- said, and near to divers streets and common and public high- ways there, and also near to divers dwelling-houses of divers citizens there, unlawfully, knowingly and injuriously did put,- place and leave, and cause and procure to be put, placed and left divers large quantities of a certain offensive fluid and matter called wood naphtha, whereby and by reason whereof divers noxious, injurious and unwholesome smells, stinks and stenches from the said fluid and matter did then and there arise, and thereby the air there became and was greatly in- fected, tainted, contaminated and corrupted ; to the great and common nuisance of all the citizens, to the great prejudice and endangerment of public health, and against the peace &c. Third Count. — That heretofore, to wit," on the first day of June in the year of our Lord and from thence con- tinually to the first day of September in the year aforesaid, the said I. S. L. and B. B. were manufacturers of a certain 764 CRIMINAL LAW. fluid called wood naphtha, and during all the time aforesaid carried on their trade and business as such manufacturers as aforesaid within the City of L., to wit, in S. Street in the said city, and near to divers streets and ancient and common highways there, and also to the dwelling-houses of divers citizens in the said city. And the jurors &c. do further pre- sent, that the said I. S. L. and B. B., not regarding their duty in that behalf, nor the lives and health of the citizens during all the time aforesaid, unlawfully, knowingly, wilfully and injuriously did so carry on their trade and business afore- said, to wit, in the manufacture of wood naphtha aforesaid, in such a careless, negligent and improper manner that in the manufacture aforesaid divers noisome, noxious and unwhole- some stinks, smells and stenches were emitted, sent forth and issued from the said manufacture, and the air there in the streets and highways aforesaid, and in and about the dwell- ings aforesaid, was thereby greatly filled, impregnated and contaminated with the said noisome, noxious and unwhole- some stinks, smells and stenches, and by the procurement and wilful permission of the said I. S. L. and B. B. as aforesaid, during all the time aforesaid, was corrupted and rendered insalubrious and injurious to human life and health ; to the great and common nuisance of the citizens, to the great prejudice and endangerment of public health, and against the peace &c. 765 CHAPTER LXXI. OFFICEK, EEPTJSING TO AID. An indictment for refusing to aid a constable in the exe- cution of his duty, and to prevent an assault made upon him by persons in his custody, with intent to resist their lawful apprehension, need not show that the apprehension was law- ful, nor aver that the refusal was on the same day and year as the assault, or that the assault which the defendant refused to prevent was the same as that which the prisoners made upon the constable ; neither is it any objection that the assault is alleged to have been made with intent to resist their lawful apprehension by persons already in custody.^ Indictment at Common laavr for Refusing to Aid a Constable in the Execution of his Duty.^ The jurors &c. upon their oath present^ that heretofore and before the committing of the offence hereinafter mentioned, to wit, on the twenty-fifth day of May in the year of our Lord at B. in the County of S., Isaac Brown and James Brown were in the custody of James Newnham and George Parsons, constables of B. aforesaid in the county aforesaid, upon a charge of felony ; and the said Isaac Brown and James Brown then and there committed an assault upon the said constables and breach of the peace, with intent then and there to resist their lawful apprehension. And the jurors further present, that the said constables, there then being a reasonable necessity for them to do so, then and there required in the name of the Commonwealth, Caleb Sherlock of &c., 1 Keginar. Sherlock, L.R. ICC. C. C. 20. Counts under Gen. Sts. 20; 10 Cox C. C. 170. ch. 163, § 16, can readily be framed 2 Regina v. Sherlock, L. R. 1 from this precedent. 766 CRIMINAL LAW. he being then and there present, for assistance in the execu- tion of their said office in said criminal case, and in order to prevent the said assault and a breach of the peace. And the jurors aforesaid fuither present, that the defendant, the said Caleb Sherlock, did then and there, unlawfully, wilfully and knowingly neglect and refuse to aid and assist the said con- stables in the execution of their duty, and to prevent an assault and breach of the peace ; against the peace &c. OFFENCES AGAINST THE PUBLIC HEALTH. 767 CHAPTER LXXII. OFFENCES AGAINST THE PUBLIC HEALTH. 1. For Selling Unvrholesome Provisions. — Gen. Sts. oh. 166, § 1.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., knowingly did sell to one E. F. a cer- tain quantity of diseased, corrupted and unwholesome pro- visions, to wit, fifty pounds of diseased, corrupted and unwholesome beef, to be then and there used and eaten by the said E. F. for meat, the said C. D. not then and there making fully known to the said E. F. that the said beef was then and there diseased, corrupted and unwholesome, and the said C. D. then and there well knowing the said beef to be diseased, corrupted and unwholesome ; contrary to the form of the statute in such case made and provided. 2. For Adulterating Bread for- the Purpose of Sale. — Gen. Sts. 166, § 3. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did fraudulently adulterate a certain substance intended for food, to wit, fifty loaves of bread, with a certain substance injurious to health, to wit, with a certain substance called alum, with the intent then and there and for the purpose of selling the said bread ; contrary to the form of the statute in such case made and provided. 3. For Selling Adulterated Medicine. — Gen. Sts. oh. 166, § 5. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. 1 Commonwealth v. Boynton, 12 Cush. 499. Commonwealth v. Mer- riam, 7 Allen, 357. 768 CRIMINAL LAW. in the County of S., knowingly did sell to one E. F. a cer- tain quantity of a fraudulently adulterated drug, to wit, one pound of opium, the said C. D. then and there well knowing the same to be adulterated ; contrary to the form of the statute in such case made and provided. 4. For SelUng Adulterated MUk. — St. 1872, oh. 319, § 3.1 That C. D. of &c., on &c., at &c., knowingly did sell to one E. F. a certain quantity of adulterated milk, to wit, gallons, to which adulterated milk a certain foreign substance, to wit, had been added, which the said C. D. then and there well knew ; contrary to the form of the statute &c. i Commonwealth v. Farren, 9 Al- wealth v. Smith, 103 Mass. 444. len, 489. Commonwealth v. Nichols, Commonwealth v. Haynes, 107 Mass. 10 Allen, 199. Commonwealth v. 194. Waite, 11 Allen, 264. Common- OBSCENE BOOKS. 769 CHAPTER LXXIII. OBSCENE BOOKS. 1. For Printing, Publishing and Distributing an Obscene Paper. Gen. Sts. ch. 165, § 15.^ That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did print, pub- lish and distribute a certain printed paper, containing ob- scene language and descriptions manifestly tending to the corruption of the morals of youth, which printed paper was distributed and left at the doors of the dwelling-houses of many, to wit, of one hundred of the citizens of B. in the County of S., which printed paper, containing obscene lan- guage and manifestly tending to the corruption of the morals of the young, and distributed as aforesaid, is of the follow- ing tenor, that is to say : insert an exact copy of the alleged obscene publication ; contrary • to the form of the statute in such case made and provided. 2. For Selling an Obscene Book, Omitting to Describe it, and Averring the Reason of such Omission.^ That C. D. of &c. on the first day of July in the year of our Lord did sell to one C. D. a certain book con- taining obscene language and obscene prints and pictures ^ Commonwealth v. Tarbox, 1 the book by its title only, for the Cash. 66. words thereof alleged to be obscene ^ Commonwealth v. Holmes, 17 must he set out; and if they are Mass. 335. Commonwealth v. Tar- omitted, the defect will not be cured box, 1 Cush. 66. In Bradlaugh v. by a verdict of guilty; and the in- The Queen, 3 Q. B. D. 607, it was dictment will be bad either upon held by the Court of Appeal, re- arrest of judgment or upon error, versing the judgment of the Queen's The cases of Commonwealth v. Bench Division (2 Q. B. D. 569), Holmes and Commonwealth «. Tar- that it is not sufficient to describe box were reviewed. 49 770 CRIMINAL LAW. manifestly tending to the corruption of the morals of youth, entitled " Memoirs of a Woman of Pleasure ; " which said hook is so lewd and obscene, that the same would be offen- sive to the court here and improper to be placed on the rec- ords thereof ; wherefore the jurors aforesaid do not set forth the tenor of the same in this indictment ; contrary to the form of the statute in such case made and provided. 3. For having in Possession an Obscene Paper inrith Intent to Introduce it into Families. — Gen. Sts. ch. 165, § IS.^ That C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., did procure, re- ceive and have in his possession in great numbers, to wit, the number of one thousand, a certain printed paper containing obscene language and descriptions manifestly tending to the corruption of the morals of youth, for the purpose of exhi- bition and circulation and with the intent to introduce the same into the families of the citizens of B. in the County of S., which said printed paper is of the following tenor, that is to say &c. ; contrary to the form of the statute in such case made and provided. 1 Commonwealth v. Tarbox, 1 ac^ done, coupled with the posses- Cush. 66. It is not an indictable sion and intent to sell, is punisha- offence at common law to preserve ble as a misdemeanor. Dugdale v. and keep in possession obscene The Queen, Dearsly C. C. 64; 1 El. prints with the intent and for the & Bl. 435. purpose of seUing them. But any PERJURY. 771 CHAPTER LXXIV. PEE JURY. An indictment for perjury contains the following allega- tions, which are necessary to constitute the offence : 1. That the oath was taken in a judicial proceeding. 2. Before a competent jurisdiction. 3. And was material to the point in issue.' 4. The oath taken by the defendant. 5. Its wilful falsehood ; that is, some one or more of the affirmative asser- tions in it are negatived by particular averments (or, as they are technically termed, assignments of perjury), or the nega- tive assertions contradicted by the opposite affirmative. It is sufficient to allege, generally, that there was a certain cause pending, and that it came on to be tried in due form of law.^ And it is unnecessary to set out any part of the in- dictment, declaration, plea &c., on the issue to be tried at the time when the perjury is alleged to have been committed.* It must appear that the court administering the oath had competent jurisdiction.* The court must be correctly de- scribed ; but it is not necessary to set out its authority. It is sufficient to say, "the said A. B. &c., then and there having competent power and authority to administer " &c.^ 1 If false testimony is wilfully * Rex v. Dowlin, 5 T. K. 311, and corruptly given in a judicial 320. Regina o. Dunning, L. R. 1 proceeding before a tribunal having C. C. 290, 293. jurisdiction over the subject under ^ Rex v. Aylett, 1 T. R. 63. investigation, and in a point mate- * Commonwealth v. White, 8 rial to the issue, the witness is guilty Pick. 452. Lavey v. The Queen, of perjury, although the pleadings 2 Denison C. C 504 ; 17 Q. B. 496. may be so defective that no irre- Regina v. Hallett, 2 Denison C. C. versible judgment could he ren- 237; 3C. &K. 130. Rex u. Hanks, dered. Wood v. Southwick, 97 3 C. & P. 419. Regina v. Johnson, Mass. 357. Per Williams, J., in L. R. 2 C. C. 15. Regina v. Meek, 9 C. & P. 514. Re- ' 1 Stark. Crim. PI. 115, 2d ed. gina V. Cooke, 2 Denison C. C. 462. 772 CRIMINAL LAW. Although it is not necessary to set out the proceedings at length, but sufficient to set forth the substance of the offence, it is necessary to show that the point falsely sworn to was material to the question pending ; for if it were irrelevant, though false, no iudictment can be founded upon it.^ If it sufficiently appear from the oath itself that it was material to the matter then before the court, that fact need not be ex- pressly averred ; ^ otherwise the materiality of that part of the oath upon which perjury is assigned must be averred.' It seems to be sufficient to aver that it then and there became and was a material question upon the trial of the said cause, whether &c., without showing what issue was joined, or any other previous circumstances or evidence in the cause.* And in stating the question which is averred to be material, it is proper to mention those circumstances which must afterwards be connected with the terms of the defendant's oath, in order to assign perjury upon that meaning.^ It must be alleged that the defendant was upon oath ; and for this purpose it is sufficient to aver, generally, that he was duly sworn to speak the truth of and concerning &c. But this fact cannot be taken by intendment.^ In setting forth the matter sworn, it is not essential to pro- fess the same particularity as is necessary in indictments for forgery and libel, which must assume to set out an exact ^ Commonwealth v. Knight, 12 the defendant, by means of a false Mass. .37.S. Commonwealth v. Flynn, oath, endeavors to have a document 3 Cush. 525. Commonwealth v. Pol- received in evidence ; it is, therefore, lard, 12 Met. 229. Rex v. Pren- a false oath in a judicial proceeding, dergast, Jebb C. C. 64. Regina v. It is material to that judicial pro- Worley, 3 Cox C. C. 535. Regina ceeding, and it is not necessary that V. Owen, 6 Cox C. C. 105. Re- it should have been relevant and gina V. Overton, 2 Moody C. C. 263. material to the issue being tried." Regina v. Bennett, 2 Denison C. C. 2 Denison C. C. 306. 240. In Regina v. Phillpott, 5 Cox 2 1 stark. Crira. PI. 116. C. C. 329, 336, Mr. Justice Erie 8 Rex v. M'Keron, 5 T. R. 318, said: " My own opinion is, that the 319. law ought to be that whatever is * 1 Stark. Grim. PI. 116. sworn deliberately, and in open * 1 Stark. Crim. PI. 116. Rex court, should be the subject of per- v. Aylett, 1 T. R. 64. jury, but that undoubtedly is very ^ Rex v. Stevens, 5 B. & C. 246; different from the law as it exists." S. C. as Rex v. Richards, 7 D. & R. And Mr. Justice Maule : " Here 665. PERJURY. 773 copy. It is sufficient to say, that the defendant did falsely, knowingly, wilfully and corruptly say, depose and swear, that &c., or to the effect following, that &c.^ It is frequently necessary, with a view to the subsequent assignments of per- jury, to point the defendant's meaning, when it is too gener- ally expressed, to particular facts and circumstances. This is effected by means of an innuendo.^ When any one distinct assignment of perjury is well made, and the defendant is found guilty, he must be sentenced on his conviction, however defective the other assignments may be. This is the settled law.* The St. 1860, ch. 186, entitled » An Act concerning the form of indictmeut for perjury and subornation of perjury,"' was enacted for the purpose of obviating difficulties in draw- ing indictments for perjury and subornation of perjury.* The conclusion usually inserted in an indictment for per- jury, " that so the defendant did commit wilful and corrupt perjury," may be rejected as surplusage, if the perjury is sufficiently alleged in the preceding part of the indictment.^ " Perjury " is not a word of art, like " murder." And an indictment on a statute for a felonious assault, which sets forth all the facts necessarj' to constitute the offence made the subject of punishment by the statute, need not conclude in the words of the statute, that the defendant " is deemed a felonious assaulter." ^ This class of cases differ from those 1 It must be alleged that the Mass. 227, 230. Lord Kenyon, defendant swore wilfully and cor- C. J. : " We have occasion to la- ruptly. Rex v. Stevens, 5 B. & C. ment in almost all the trials for 246. And that he swore falsely, perjury that the prosecutor does not Regina v. Oxley, 3 C. & K. 317. avail himself of the excellent law ^ As to the proper office of an which was passed in the late reign innuendo, see ante, p. 741. to obviate difficulties in drawing ^ Commonwealth v. Johns, 6 indictments for this ofEence." Rex Gray, 274, 276. Commonwealth v. v. Dowlin, 5 T. R. 317. 23 Geo. U. Morrill, 8 Cush. 571. Common- ch. 11. wealth I). McLaughlin, 122 Mass. ^ Ryalls v. The Queen, 11 Q. B. 449,453. 781; 17 L. J. M. C. 92. Regina * Commonwealth v. Hughes, 5 v. Hodgkiss, L. R. 1 C. C. 212; 39 Allen, 499. Commonwealth v. But- L. J. M. C. 14. United States v. land, 119 Mass. 319, 321. Common- Elliot, 3 Mason, 156. wealth V. Carel, 105 Mass. 582. ° dbmmonwealth tf. Sanborn, 14 Commonwealth ». Hatfield, 107 Gray, 393. An indictment for per- 774 CRIMINAL LAW. of indictments for murder and other like offences, made pun- ishable solely under a description of the offence by its tech- nical term. 1. For Perjury against a Witness ■who, on a Former Trial, had Sworn that a Note was given to the Plaintiff for the Purpose of being Discounted merely, and not in Payment of a Debt.^ The jurors &c. upon their oath present, that heretofore, to wit, on the fourteenth day of January in the year of our Lord certain issues theretofore joined in a certain cause then lately depending in the court of our said Lady the Queen, before the barons of her Majesty's Exchequer, at Westminster, in which cause one A. H. was the plaintiff, and M. B. was defendant, to wit, at the sitting of nisi prius holden in Hilary term, for the County of Middlesex, to wit, on the fourteenth day of January in the year aforesaid, at West- minster aforesaid, in the great hall of pleas there, commonly called Westminster Hall, according to the form of the statute in such cases made and provided, before Sir Robert Mounsey Rolfe, Knight, then and there being one of the Barons of her Majesty's said Court of Exchequer, at West- minster, came on to be tried in due form of law, and were then and there tried by a jury of the said County of Middle- sex in that behalf duly taken and sworn between the parties aforesaid. And the jurors aforesaid upon their oath afore- said do further present, that upon the trial of the said issues jury, ■which charges that the defend- the word " kno^vringly." He might ant ^'feloniously, corruptly, know- swear "wilfully and maliciously," ingly, wilfully and maliciously " to gratify some malicious feeling, swore &c., omitting the word but yet it may not be "falsely." "falsely," but concluding, and so As to the formal conclusion, that the defendant "in manner and form the prisoner, "in manner and form aforesaid " did commit wilful and aforesaid, did commit wilful and corrupt perjury, is bad. Cresswell, corrupt perjury," the meaning of J., after consultation ■with Alder- that was, that the prisoner commit- son, B., held that the indictment ted the offence in the manner stated, was bad in substance, and must be and that statement being essentially quashed. His lordship said that a defective, the indictment must nec- man might swear " corruptly," un- essarily. be bad. Begina v. Oxley, der some corrupt influence, and yet 3 C. & K. 317. swear the truth ; so with respect to * 1 Cox C. C. Appendix, p. vii. PERJ0RT. 775 SO joined between the parties aforesaid, one T. P. of S. in the said County of Middlesex, did then and there, to wit, on the day and year aforesaid, at S. in the county aforesaid, appear and was produced as a witness for and on behalf of the said M. B., the defendant in the said cause, and that the said T. P. was then and there duly sworn, before the said Sir Robert Mounsey Rolfe, Knight, then and there being such baron as aforesaid, that the evidence which the said T. P. should give to the said court there, and to the said jury so sworn, between the parties as aforesaid, touching the matters then in question on the said issues, should be the truth, the whole truth, and nothing but the truth, the said Sir Robert Mounsey Rolfe, Knight, then and there having sufficient and competent power and authority to administer the said oath to the said T. P. in that behalf. And the jurors aforesaid upon their oath aforesaid do further present, that, at and before the several times in this count mentioned, the said M. B., the defendant in the said cause, had made his certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the first day of March in the year of our Lord and thereby promised to pay to the order of the said T. P. forty-nine pounds &c., ten shillings, three months after date thereof, and the said M. B. delivered the said note to the said T. P. ; and the said T. P., afterwards, to wit, on the first day of May in the year last aforesaid, indorsed the said promissory note to the said A. H. for a valuable consideration, to wit, for fifty pounds, money then due and owing from the said T. P. to the said A. H., for pro- fessional business theretofore done, performed -and transacted by the said A. H. for the said T. P. And the jurors afore- said upon their oath aforesaid do further present, that the said M. B. pleaded among other pleas to the said action so pending against him at the suit of the said A. H. and herein- before mentioned and referred to, that the said promissory note, to recover the amount whereof the said action was brought, was made by him, and that he delivered the same to the said T. P. for the joint accommodation of the said M. B. and the said T. P., and that there never was any value or consideration for the making the said note or for the delivery 776 CRIMINAL LAW. of the same to the said T. P. or for the said T. P., being the holder thereof or for the payment by i the said M. B. of the amount thereof, or of any part thereof, of all which the said A. H. before and at the time of the indorsement of the said note to him, had notice ; and that the said T. P. indorsed the said note to the said A. H., in consideration of a promise made by the said A. H. to the said T. P., that the said A. H. then would discount the said promissory note, and advance money thereon, and upon no other consideration ; and that the said A. H. never did discount the said promissory note, or advance any money thereon, but, on the contrary thereof, wholly neglected and refused so to do, and there never was any value or consideration for the indorsement of the said note by the said T. P. to the said A. H., and the said A. H. always held, and still holds, the said note, without value or considera- tion, and in violation of his said promise, and contrary to the terms and purpose for which the same was so indorsed to him as aforesaid ; and the said A. H., for replication to the said plea so pleaded as last aforesaid, said that the said M. B., of his own wrong, and without the cause by him in the said plea alleged, broke his promise in the said first count of the declaration mentioned, and to which the said plea was pleaded, and this the said A. H. prayed might be inquired of by the country ; and the said M. B. did the like, which was one of the issues which so then and there came on to be tried, and was then and there tried as aforesaid. And the jurors aforesaid upon their oath aforesaid do further present, that at and upon the said trial of the said issues so joined as aforesaid between the parties aforesaid, it then and there became and was a material question, whether the said A. H. ever did promise the said T. P. to discount the said promis- sory note ; and whether the said A. H. ever did promise the said T. P. to advance money upon the said promissory note ; and also whether the said T. P. indorsed and delivered the said promissory note to the said A. H. on the first day of March in the year of our Lord or thereabouts ; and also at what time and when the said T. P. did in fact indorse and deliver the said promissory note to the said A. H. ; and whether the said promissory note was not, in point of fact, PERJURY. 777 indorsed and delivered by the said T. P. to the said A. H. some time in the early part of the month of May in the year of our Lord ; and whether the said T. P. ever said that the said M. B. ought to pay the amount mentioned in the said note to the said A. H., and the said A. H. ought to make him ; and whether the said T. P. said that the said T. P. indorsed the said promissory note to the said A. H., on account of business done by the said A. H. for the said T. P. And the jurors aforesaid upon their oath aforesaid do further pre- sent, that thereupon, at and upon such trial as aforesaid, the said T. P. being so produced and sworn as aforesaid, devising and intending to cause and produce a verdict to pass against the said A. H., and for the said M. B., on the trial of the said issues, did then and there, to wit, on the said fourteenth day of January, at S. aforesaid in the county aforesaid, before the said Sir Robert Mounsey Rolfe, Knight, then and there being such baron as aforesaid, falsely, knowingly, maliciously, wilfully and corruptly, and by his own proper act and consent, upon his oath so taken as aforesaid, then and there say, depose, swear and give evidence, among other things, to the said court and to the jurors of the said jury so sworn, between the said parties as aforesaid, in substance and to the effect as follows, that is to say : That the said T. P. went to the said A. H. on the first day of March in the year of our Lord or thereabouts. That the said A. H. promised the said T. P. that if the said T. P. would get a bill from the said M. B., and bring it in the morning, the said A. H. would discount it. That the said T. P. took the said note (meaning the promissory note aforesaid) to the said A. H. That the said A. H. promised the said T. P. that the said A. H. would discount the said promissory note (meaning that at the time the said T. P. took the said promissory note to the said A. H., the said A. H. promised the said T. P. that the said A. H. would discount the said promissory note). That the said A. H. told the said T. P. that if the said T. P. would call in the morning, the said A. H. would give the said T. P. the cash (mean- ing the cash for and in respect of discounting the note). That the said T. P. took the said promissory note to the 778 CRIMINAL LAW. said A. H. on the first day of March in the year of our Lord or thereabouts, or within a day or two. That the said T. P. never said that the said M. B. ought to pay the said promissory note (meaning that he never said that the said M. B. ought to pay to the said A. H. the amount mentioned in the said note). That the said T. P. never said that the said A. H. ought to make him (meaning that the said T. P. never said that the said A. H. ought to make the said M. B. pay to the said A. H. the amount mentioned in the said note). That the said T: P. never said that the said T. P. gave the bill to the said A. H. on account of business done (meaning that the said T. P. never said that the said T. P. indorsed the said promissory note to the said A. H. on account of business done by the said A. H. for the said T. P.). And whereas, in. truth and in fact, the said A. H. did not promise the said T. P. that if the said T. P. would get a bill from the said M. B. and bring it in the morning, the said A. H. would discount it. And whereas, in truth and in fact, the said A. H. did not at the time the said T. P. took the said promissory note to the said A. H., or at any time promise the said T. P. that the said A. H. would discount the said promissory note aforesaid ; and whereas, in truth and in fact, the said A. H. did not tell the said T. P. that if the said T. P. would call in the morning, the said A. H. would give the said T. P. the cash for and in respect of discounting the said promissory note ; and whereas, in truth and in fact, the said T. P. did not indorse the said promissory note to the said A. H. on the first day of March in the year of our Lord or thereabouts, or within a day or two ; and whereas, I in truth and in fact, the said T. P. indorsed the said promissory note to the said A. H. some time in the early part of the month of May in the year of our Lord ; and whereas, in truth and in fact, the said T. P. did say, and had then said, that the said M. B. ought to pay the amount mentioned in the said note to the said A. H., and that the said A. H. ought to make him : arid whereas, in truth and in fact, the said T. P. did say, and had then said, that the said M. B. ought to pay to the said A. H. the amount mentioned in the said note ; PERJOEY. 779 and that the said A. H. ought to make the said M. B. pay to the said A. H. the amount mentioned in the said note ; and whereas, in truth and in fact, the said T. P. did say, and had then said, that the said T. P. gave the bill to the said A. H. on account of business done ; and whereas, in truth and in fact, tiie said T. P. did say, and had then said, that he the said T. P. indorsed the said promissory note to the said A. H. on account of business done by the said A. H. for the said T. P. And so the jurors first aforesaid upon their oath afore- said do say, that the said T. P., at and upon the said trial of the said issues, on the said day and year first aforesaid, at S. aforesaid in the county aforesaid, before the said Sir Robert Mounsey Rolfe, Knight, baron as aforesaid, so as aforesaid having sufficient power and authority to administer the said oath to the said T. P. in that behalf, by his own proper act and consent, and of his own most corrupt mind, in manner and form aforesaid, did falsely, knowingly, wilfully and cor- ruptly, upon his oath aforesaid, commit wilful and corrupt perjury ; and against the peace &c., and contrary to the form of the statute &e. 2. For Perjury before a Grand Jury.^ The jurors &c. upon their oath present, that heretofore, to wit, at the Court of Common Pleas begun and holden at Cambridge within and for the County of Middlesex, on the second Monday of February in the year of our Lord by Charles H. Warren, Esquire, then one of the justices of said court, before the grand jurors of said Commonwealth for the County of Middlesex aforesaid, which said grand jurors were then and there at said court duly and legally convened, having then and there been duly and legally empanelled and sworn according to the provisions of law in that behalf, a cer- tain complaint was then and there made and presented against ^ This count is taken from the tion by eminent counsel. See Com- indictment in the case of Common- monwealth v. Parker, 2 Cush. 212. wealth ». Parker, C. C. Pleas, Mid- For other precedents for perjury dlesex, June Term, a.d. 1849. It before a grand jury, see Regina v. is valuable as a precedent that has Hughes, 1 C. & K. 519 ; Common- been subjected to a severe examina- -wealth v. Kelly, 123 Mass. 417. 780 CRIMINAL LAW. one George F. Farley, for the crime of perjury, and that in the investigation and hearing of said complaint before said grand jurors so empanelled and sworn as aforesaid, Samuel Parker of Chelmsford in the County of Middlesex, Esquire, did then and there personally appear as a witness in behalf of said complaint; and that the said Samuel Parker being then and there before said grand jurors as such witness as aforesaid, was then and there duly and legally sworn before said grand jurors in their presence, and in the presence of the district-attorney then in attendance, by Rufus Fisk, fore- man of said grand jurors, the said Fisk, such foreman as aforesaid, being then and there duly and legally authorized and empowered to administer said oath, and that the said Samuel Parker did then and there take his corporal oath before said grand jurors, that the evidence the said Samuel Parker should give them in all matters and things which should come before them should be the truth, the whole truth and nothing but the truth ; and that then and there it became and was material in the investigation of said com- plaint by and before said grand jurors empanelled as aforesaid, whether before that time there was any agreement made by said Samuel Parker with said George F. Farley to pay or allow said Farley any bonus or extra interest, that is to say, any sum over and above the legal rate of interest, according to the laws of the said Commonwealth, for any money before that time loaned by said Farley to one Lemuel Parker, or to said Samuel Parker, or for any sum or sums of money before that time due and owing from said Samuel Parker to said Farley ; and that thereupon the said Samuel Parker, being so sworn and produced as a witness as aforesaid, to wit, on the seventeenth day of February in the year of our Lord at Cambridge aforesaid in the county aforesaid, and being then and there lawfully required to depose the truth in relation to said complaint, and in a proceeding in a course of justice, devising and intending to subvert the truth, and wrongfully devising and intending to cause the said George F. Farley to be indicted and presented for the crime of per- jury, then and there at and upon the hearing and investiga- tion of said complaint, by and before the said grand jurors PERJURY. 781 empanelled as aforesaid, and then and there in session at said term of the Court of Common Pleas aforesaid, did, as such witness as aforesaid, on his oath aforesaid, falsely, knowingly, maliciously, wilfully and corruptly, and by his own proper act and consent depose, swear and give evidence to and be- fore the said grand jurors so empanelled as aforesaid, and as such grand jurors so Jiearing the matter upon the complaint aforesaid, amongst other things, in substance and effect fol- lowing, that is to say, I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said George F. Farley) any extra interest whatever (meaning interest over and above the legal rate of interest), I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said Farley) any extra interest (meaning interest over and above the legal rate of interest) for any money before that time loaned by Mr. Farley (meaning said Farley) to Lemuel Parker (meaning said Lem- uel Parker) or to myself (meaning said Samuel Parker), or for any sum or sums of money due and owing from myself (mean- ing said Samuel Parker) to Mr. Farley (meaning said Far- ley), I (meaning said Samuel Parker) never agreed to pay Mr. Farley (meaning said Farley) any bonus (meaning any sum above the legal rate of interest) for or on account of any loan or loans of money to me (meaning said Samuel Parker) by Mr. Farley (meaning said Farley), or on account of any delay of payment of moneys due from me (meaning said Samuel Parker) to Mr. Farley (meaning said Farley), I (meaning said Samuel Parker) never agreed to pay Mr. Far- ley (meaning said Farley) any bonus or extra interest what- ever (meaning any sum or interest over and above the legal rate of interest) ; whereas, in truth and in fact, said Samuel Parker did agree before that time to pay said Farley extra interest, that is to say, interest over and above the legal rate of interest, said Samuel Parker had agreed to pay said Far- ley extra interest, that is to say, interest over and above the legal rate of interest, for certain, moneys before that time loaned by said Farley to said Lemuel Parker, to wit, on a certain note, for the sum of one thousand dollars, given by said Lemuel Parker as principal, and said Samuel Parker and others as sureties on a certain note for the sum of six hun- 782 CRIMINAL LAW. dred dollars, given by said Samuel Parker to said Farley, and for certain other sums of money due and owing from Samuel Parker to said Farley ; said Samuel Parker had agreed to pay said Farley a certain bonus, that is to say, a certain gum of money above the legal rate of interest for and on account of certain loans of money by said Farley to said Samuel Par- ker, and for and on account of delay of payment of moneys due from said Parker to said Farley ; and said Samuel Parker had agreed to pay to said Farley a bonus, that is to say, a sum above the legal rate of interest ; and had agreed to pay said Farley extra interest, that is to say, interest above the legal rate of interest. And so the jurors aforesaid upon their oath aforesaid do say, that the said Samuel Parker, in man- ner and form last aforesaid, and of his own most corrupt mind, did falsely, knowingly, wilfully and corruptly, commit wilful and corrupt perjury ; to the manifest perversion of public justice, against the peace of said Commonwealth and contrary to the form of the statute in such case made and provided. 3. Indictment for Perjury*^ The jurors &c. upon their oath present, that heretofore and at the time of the committing the offence hereinafter men- tioned, to wit, on the ninth day of April in the year of our Lord in the County Court of Middlesex, holden at &c. in the County of Middlesex, before James Manning, sergeant-at-law, then and there being^ the judge of the said court, a certain action of contract then pending in the said County Court, between Ann Lavey, suing as widow and ex- ecutrix of the last will and testament of Hyam Lavey, de- ceased, plaintiff, and Robert Hannah, defendant, came on to be tried, and was then and there, in due form of law, heard and tried by and before the said James Manning, then and there being judge of the said County Court as aforesaid, upon which said hearing and trial the said Ann Lavey of S. ^ Lavey v. The Queen, 17 Q. B. chequer Chamber. The ground of 496; 2 Denison C. C. 604; 3 C. & decision is explained in Regina t>. K. 26. This indictment was held to Dunning, L. R. 1 C. C. 294. be sufficient by the Court of Ex- PERJURY. 783 in the County of Middlesex, widow, appeared and tendered herself as a witness on her own behalf, and was then and there sworn before the said James Manning, then and there being judge of the said court as aforesaid, and then and there having sufficient and competent authority to adminis- ter the said oath to her the said Ann Lavey in that behalf, that the evidence which the said Ann Lavey should give to the court then and there touching the matter then and there in question between her the said Ann Lavey and the said Robert Hannah, should be the truth, the whole truth and nothing but the truth. And the jurors aforesaid upon their oath aforesaid do fur- ther present, that at and iipon the hearing and trial of the said action as aforesaid, it then and there became and was a material question in the said action, whether she the said Ann Lavey had ever been tried at the Central Criminal Court for any offence whatever, and whether the said Ann Lavey had ever been in custody at the Thames Police Station in Stepney in the said County of Middlesex, charged with any offence whatever. And the jurors aforesaid upon their oath aforesaid do fur- ther present, that the said Ann Lavey, being so duly sworn as aforesaid, and contriving and intending to prevent the due course of law and justice, and unjustly to oppress and ag- grieve the said Robert Hannah, and to subject him to the payment of divers large sums of money and sundry costs, charges and expenses, then and there, on the said hearing and trial of the said action, upon her oath aforesaid, falsely, corruptly, knowingly, wilfully and maliciously, before the said James Manning, then and there being such judge of the said County Court as aforesaid, did depose and swear, among other things, in substance and to the effect following, that is to say, that she the said Ann Lavey never had been tried at the said Central Criminal Court on an indictment for having feloniously uttered a forged indorsement to a certain bill of exchange, well knowing it to have been forged, and with in- tent to defraud one Adolphus Brandt, and that the said Ann Lavey had never been tried at the said Central Criminal Court for any offence whatever, and that she the said Ann 784 CRIMINAL LAW. Lavey had never been in custody at the Thames Police Station in Stepney in the said County of Middlesex, charged with having uttered the said forged indorsement as aforesaid, and that the said Ann Lavey had never been in custody at the said Thames Police Station charged with any offence what- ever. Whereas, in truth and in fact, the said Ann Lavey was, to wit, at a session of the Central Criminal Court, held on the twenty-first day of August in the year of our Lord . tried in due form of law for a certain offence on an indict- ment for having feloniously uttered a forged indorsement to a certain bill of exchange, well knowing it to have been forged, with intent to defraud one Adolphus Brandt and another ; and whereas, also, in truth and in fact, the said Ann Lavey was, to wit, on the twenty-first day of August in the year of our Lord in custody at the Thames Police Station aforesaid, charged with a certain offence, to wit, with having obtained, by means of a forged note, the sum of one hundred dollars, with intent to defraud one Thomas Yates. And so the jurors aforesaid upon their oath aforesaid do say, that the said Ann Lavey, on the said ninth day of April in the year of our Lord at the County Court of Mid- dlesex aforesaid, at S. aforesaid in the county aforesaid, before the said James Manning, then and there being such judge of the said County Court as aforesaid, and having such power and authority aforesaid, by her own act and consent, and of her own corrupt mind, in manner and form aforesaid, falsely, knowingly, wilfully and corruptly, did commit wilful and cor- rupt peijury ; against the peace &c. For a full collection of precedents of indictments for per- jury, see Train & Heard's Precedents of Indictments, pp. 408 et seq. POLYGAMY. 785 CHAPTER LXXV. POLYGAMY.' A MAN who has been lawfully married in this Common- wealth, and whose wife has here obtained a divorce from the bond of matrimony for his adultery (in which case he is prohibited by our statutes from marrying again without leave of the court), and who without having obtained leave of the court, and being still a resident of this Commonwealth, is married to another woman in another State, according to its laws, and afterwards cohabits with her in this Commonwealth, the first wife being still alive, is not liable to indictment for polygamy here under the Gen. Sts. ch. 165, § 4, without proof that the second wife was a resident of this Common- wealth, and that he and she went into the other State to evade the provisions of our statutes.^ 1 This offence consists in having a plurality of wives at the same time. It is often termed bigamy; which, in its proper signification, only means having had two wives in succession. 3 Greenl. Ev. § 203. * Commonwealth v. Lane, 113 Mass. 458. In a recent case in the House of Lords, the cases of Med- way 11. Needham, 16 Mass. 157, and Sutton V. Warren, 10 Met. 451, were severely criticised, and point- edly denied to be law. Brook v. Brook, 9 House of Lords Cases, 193. Gray, C. J., in delivering the opin- ion in Commonwealth v. Lane, ubi supra, criticises this decision and the reasons assigned for it, and con- cludes that " The judgment pro- ceeds upon the ground that an Act of Parliament is not merely an or- dinance of man, but a conclusive declaration of the law of God ; and the result is that the law of God, as declared by Act of Parliament and expounded by the House of Lords, varies according to time, place, length of life of parties, pecuniary interests of third persons, petitions to human tribunals and technical rules of statutory construction and judicial procedure. The case recalls the saying of Lord Holt, in London V. Wood, 12 Mod. 669, 687, 688, that ' an Act of Parliament can do no wrong, thongh it may do several things that look pretty odd,' and illustrates the effect of narrow views of policy, of the doctrine of ' the omnipotence of Parliament,' and of the consequent unfamiliarity with questions of general jurisprudence, upon judges of the greatest vigor of mind, and of the profoundest leam- 60 786 CRIMINAL LAW. 1. Indictment for Polygamy. — Gen. Sts. ch. 165, § 4. The jurors &c. upon their oath present, that C. D. of B, in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, was lawfully married to one J. N.,^ and the said J. N. then and there had for his wife ; and that the said C. D. after- wards, to wit, on the first day of July in the year of our Lord at B. aforesaid in the county aforesaid, feloni- ously and unlawfully did marry and take to wife one E. F., and to the said E. F. was then and there married, the said C. D. being then and there a married man and the lawful husband of the said J. N., and the said J. N., his former wife, being then^ alive,* and the said C. D., never having been legally divorced from the bonds of matrimony from the said J. N.* Whereby and by force of the statute in such case made and provided, the said C. D. is deemed to have committed the crime of polygamy. And so the jurors afore- said upon their oath aforesaid do say, that the said C. D., in manner and form' aforesaid, on the first day of July in the year of our Lord at B. aforesaid in the county afore- said, did commit the crime of polygamy ; contrary to the form of the statute in such case made and provided. ing in the municipal law and in the wife was (hen living, without laying forms and usages of the judicial any venue. 1 Stark. Crim. PI. 67. system of their own country. Such ^ An allegation that the defend- a decision, upon such reasons, from ant married again, " the said J. N., any tribunal, however eminent, can his former wife, being then alive," have no weight in inducing a court, sufficiently charges the oifence, with- not bound by it as authority, to out any further averment that he overrule or disregard its own deci- was still married to J. N. when the sions." 113 Mass. 467-471. offence was committed. Murray v. 1 The description of the person, The Queen, 7 Q. B. 700. though unnecessarily stated, must * The exceptions in § 5 need not be strictly proved as alleged. Thus, be negatived. Commonwealth v. where the person was described as Jennings, 121 Mass. 47. If the de- a "widow," but it appeared in evi- fendant relies upon a divorce as a dence that she was in fact and by justification of a second marriage, reputation a single woman, the vari- it is incumbent on him to prove it. ance was held fatal. Rex v. Dee- Commonwealth v. Boyer, 7 Allen, ley, 1 Moody C. C. 303; 4 C. & P. 306. Contra, Regina w. Curgerwen, 579. L. R. 1 C. C. 1. 1 Lead. Crim. Cas. 2 It is sufficient to allege that the 314. POLYGAMY. 787 2. For Polygamy, by Continuing to Cohabit with a Second Wife in this State. — Gen. Sts. oh. 165, § 4.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., was lawfully married to one A. B., and the said A. B. then and there had and took for his law- ful wife, and that afterwards, to wit, on the first day of July in the year of our Lord at B. in the County of S., the said C. D. feloniously and unlawfully did marry and take to wife one E. F., the said C. D. then and there being mar- ried and the lawful husband of the said A. B., the said A. B. then being his former wife and living ; and the said CD. never having been legally divorced from the said A. B. ; and that the said C. D. afterwards did cohabit and continue to cohabit with the said E. F., as his second wife in this State, to wit, at B. in the County of S., for a long space of time, to wit, for the space of six months.* Whereby and by force of the statute in such case made and provided, the said C. D. is deemed guilty of the crime of polygamy. And so the jurors aforesaid on their oath aforesaid do say, that the said C. D. in manner and form aforesaid, at &c., on &c., did com- mit the crime of polygamy ; contrary to the form of the statute in such case made and provided. 1 Under this section, if a woman acts are the marrying and cohabit- who has a husband living marry ing with a woman whose husband another person, she is punishable, had been absent more than seven though her husband has voluntarily years, and not known to the defend- withdrawu from her, and remained ant to have been alive during that absent and unheard of, for any term period. Commonwealth v. Thomp- of time less than seven years, and son, 6 Allen, 591, and 11 Allen, 23. though she honestly believes, at the See Commonwealth v. Johnson, 10 time of her second marriage, that he Allen, 196 ; Flynn v. Coffee, 12 Al- is dead. Commonwealth v. Mash, len, 133. 7 Met. 472. Ante, p. 380 note. ^ This is a sufficient statement of This statute, though not in terms the time when the offence was com- applicable to an indictment for adul- mitted. Commonwealth v. Brad- tery, recognizes a rule that operates ley, 2 Cush. 553. Commonwealth as a legal defence to the charge of ». Godsoe, 105 Mass. 464. adultery, when the alleged criminal 788 CRIMINAL LAW. CHAPTER LXXVI. PREVIOXTS CONVICTION. Wheee the penalty is aggravated by a previous conviction, such previous conviction must be alleged.^ Any number of previous convictions may be laid and proved.^ The court cannot notice a previous conviction, unless it is laid in the indictment, because the defendant is entitled to have his identity tried by the jury, which cannot be done unless the previous conviction is on the record.^ And in order to prove the identity, it is not essential to call a witness who was present at the former trial : it is sufficient to prove that the defendant is the person who underwent the sentence men- tioned in the former conviction.* Indictment for a Subsequent Ofience after a Previous Conviction. State the subsequent offence at length, and then proceed:^ And the jurors aforesaid upon their oath aforesaid, do further .present, that heretofore, and before the commission of the 1 Tuttle V. Commonwealth, 2 fence against that statute " is not Gray, 505. Commonwealth ». Hoi- a violation either of the letter or ley, 3 Gray, 459. Garvey v. Com- spirit of the salutary provision of monwealth, 8 Gray, 382. Flaherty the Declaration of Rights." Com- V. Thomas, 12 Allen, 432. Haynes monwealth v. HoUey, 3 Gray, 458. V. Commonwealth, 107 Mass. 198. Commonwealth v. Hall, 97 Mass. 2 Kegina v. Clark, Dearsly C. C. 573. 198. * Regina v. Crofts, 9 C. & P. 8 Regina ». Willis, L. R. 1 C. C. 219. Regina v. Levy, 1 F. & P. 363; 12 Cox C. C. 192. Regina v. 77; S. C. as Regina «. Levy, 8 Cox Deane, L. R. 2 Q. B. D. 305. Cure- C. C. 73. ton V. The Queen, 1 B. & S. 208. ^ It makes no difference whether Commonwealth v. Briggs, 5 Pick, the statement of a former conviction 429. The provision of St. 1852, ch. is at the commencement or at the 323, § 14, allowing the amendment end of an indictment. Regina v. of a former conviction on the trial Hilton, Bell C. C. 20. of an indictment for a second of- PREVIOUS CONVICTION. 789 offence hereinbefore charged, to wit, at &c., describing the court where the defendant was tried and convicted, on the day of in the year of our Lord the said C. D. was convicted of which said convic- tion ^ is still in force, strength and effect, and not in the least reversed, annulled or made void. 1 The record must state that royd, 1 C. & K. 158. Regina o. judgment was given for the previous Stonnell, 1 Cox C. C. 142. See oSence; it is not sufficient for it to Commonwealth v. Lockwood, 109 state a conviction. Begina v. Ack- Mass. 328 et seq. 790 CRIMINAL LAW. CHAPTER LXXVII. EAILROAD COKPOEATIONS. 1. For Attempting to Obstruct Ein Engine and Carriage Passing upon a Railroad. — St. 1874, ch. 372, § 157.1 The jurors &c. upon their oath present, that 0. D. of B. in the County of M. on the first day of June in the. year of our Lord at B. in the County of M., feloniously, wil- fully and maliciously contriving and intending the engines and carriages of the property of the Boston and Worcester Railroad Corporation, a corporation duly and legally estab- lished by the laws of this Commonwealth, then and there lawfully passing over and along the railroad of said corpora- tion, there located and situate, to obstruct, and with intent then and there the safety of divers persons then and there lawfully riding, passing and being conveyed over and along said railroad, at B. aforesaid in the county aforesaid, in and upon the engines and carriages aforesaid, to endanger, did, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously place and put upon and across said railroad there situate, one iron rail, with intent thereby then and there the said engines and carriages to obstruct, and the safety of divers persons then and there lawfully riding, passing and being con- veyed in and upon the said engines and carriages as aforesaid to endanger ; contrary to the form of the statute in such case made and provided. 2. For Obstructing Engines and Carriages &c. — St. 1874, ch. 372, § 156.2 The jurors &c. upon their oath present, that C. D. of B. in the County of M., on the first day of June in the year of ^ Commonwealth v. Bakeman, ^ Changing a signal so as to cause 105 Mass. 53. a train to go slower than it other- RAILROAD CORPORATIONS. 791 our Lord at B. aforesaid in the county aforesaid, feloniously, wilfully and maliciously, the engines and car- riages of the property of the Boston and Worcester Railroad Corporation, a corporation duly and legally, established by the laws of this Commonwealth, then and there lawfully passing over and along the railroad of said corporation, there located and situate, did obstruct, by then and there, state the made of obstruction, and the safety of divers persons then and ■ there lawfully ridmg, passing and being conveyed over and along said railroad, at B. aforesaid in the county aforesaid, in and upon the engines and carriages aforesaid, then and there did endanger : contrary to the form of the statute in such case made and provided. 3. For Throvring a Stone into a Railroad Carriage 'with Intent &c. St. 1874, oh. 372, § 157. That C. D. of &c. on the first day of June in the year of our Lord at F. in the County of M., wilfully and maliciously did cast and throw a stone into a certain carriage of the property of the Boston and Worcester Railroad Cor- poration, a corporation dul}'' and legally established by the laws of this Commonwealth, then and there lawfully passing over and along the railroad of said corporation, there located and situated, with intent thereby then and there the safety of divers persons then and there lawfully riding and passing and being conveyed over and along said railroad, at F. aforesaid in the county aforesaid in and upon the carriage aforesaid, to en- danger ; contrary to the form of the statute in such case made and provided. •wise would is an obstructing. Re- of the passengers, cannot be main- gina V. Hadfield, L. R. 1 C. C. 253. tained against a passenger who, So is stretching out the arms as a from whatever motive, pulled a sig- signal. Regina v. Hardy, L. R. 1 nal rope attached to a bell upon C.C. 278. A railway not opened for the engine, and thereby caused the public traffic may be obstructed, train to be stopped and the safety Regina i>. Bradford, Bell C. C. 269. of the passengers to be endangered. An indictment on the Gen. Sts. ch. Commonwealth v. Killian, 109 Mass. 63, § 107, for obstructing a railroad 34.5, distinguishing Regina v. Had- traiu and endangering the safety field, ubi supra. 792 CRIMINAL LAW. 4. Indictment against a Railroad Corporatioa for Causing the Death of a Passenger by Reason of the Gross Negligence of its Servants. — St 1874, ch. 372, § 163.^ The jurors &c. on their oath present, that the Boston and Worcester Railroad Corporation,* a corporation duly and legally established in and by the laws of said Commonwealth, were, on the first day of June in the year of our Lord the proprietors of a certain railroad leading and extending from Boston in the County of Suffolk, to Worcester in the County of Worcester, through the town of Brookline in the County of Norfolk, and were common carriers of passengers, for hire, over, upon and along said railroad, and being such proprietors and common carriers of passengers, for hire, did, by their agents and servants, on the first day of June in the year of our Lord at Brookline in the County of Nor- folk, run, conduct and drive a certain engine and train of cars, in one of which said cars one C. D. was then and there a passenger for hire, over, upon and along said railroad, and by their agents and servants, the said corporation then and there had the custody, care and management of said railroad, engine and cars, and by the gross negligence and carelessness of their said agents and servants, said railroad was suffered to be, and then and there was out of repair and defective, and the rails thereof uneven and in a condition unsuitable and dangerous for the passage of engines and cars upon, over and along the same, and the aforesaid engine and train of cars run, conducted and driven as aforesaid, were then and there, by the gross negligence and carelessness of the said agents and servants, run, conducted and driven with great unreasonable and improper speed, and in an unsafe and un- skilful manner, by means of all which the aforesaid car in which said C. D. was then and there a passenger for hire as aforesaid, was then and there thrown with great violence 1 Commonwealth ». Boston and ^ " Boston and Worcester Rail- Worcester Railroad Corporation, 11 road Company " is a fatal variance. Cush. 512. Commonwealth v. Fitch- Commonwealth v. Fope, 12 Gush, burg Railroad Company, 120 Mass. 272. 372. RAILROAD CORPORATIONS. 793 from the track of said railroad and broken in pieces ; ^ where- by divers injuries, bruises and wounds were then and there inflicted on the head, body and limbs of the said C. D., of which said injuries, bruises and wounds the said C. D. then and there instantly died. And so the jurors aforesaid on their oath aforesaid do say, that the life of the said C. D., being a passenger for hire as aforesaid, was then and there lost by reason of the gross negligence and carelessness of the aforesaid agents and servants^ of the said Boston and Wor- cester Railroad Corporation, in manner and form aforesaid. And the jurors aforesaid upon their oath aforesaid do present, that E. F. of B. in the County of S. has been duly appointed, and now is ad minis trator,^ of the goods and estate which were of said C. D., deceased, intestate ; and that there is no widow nor children of the said C. D., and that there are next of kin of said C. D., whose names are to the jurors aforesaid unknown ; * contrary to the form of the statute in such case made and provided. ^ The manner in which the neg- taken out in this Commonwealth, ligence was manifested, and the pre- Commonwealth v. East Boston Ferry cise acts of carelessness to which Company, 13 Allen, 589. If they the injury was attributable, are set were taken out in another State, the forth with all necessary particular- indictment must allege that ancil- ity. Commonwealth v. Boston and lary administration had been taken Worcester Railroad Corporation, 11 out in this Commonwealth. Com- Cush. 512. monwealth ». Sanford, 12 Gray, 2 It is not necessary to specify 174. their names. Commonwealth a. * It is not necessary to state their Boston and Worcester Railroad Cor- names, if it is alleged that they are poration, 11 Cush. 512. unknown. Commonwealth v. Bos- * This is a sufficient allegation ton and Worcester Railroad Corpo- that letters of administration were ration, 11 Cush. 512. 794 CRIMINAL LAW. CHAPTER LXXVIII. An indictment for this offence, in the first place, usually charges that the prisoner did " violently and feloniously as- sault " the party aggrieved ; but it is not necessary that there should be an express allegation of an assault.^ The main allegation is, that he did " against her will, feloniously ravish and carnally know her ; " the allegation of the act being done " against her will " is material and necessary for the purpose of negativing her consent to it. The word " ravish " is technical, and is indispensable for the purpose of denoting the particular offence, and the force' which is used in com- mitting it.^ The words " carnally know " are also an ap- propriate description of the crime, and imply sexual bodily connection.* If there is an allegation in an indictment for rape that the woman of whom it is alleged that the man had carnal knowl- edge was not, at the time laid in the indictment, his wife, a conviction for adultery or fornication may be sustained." Under the statute, a party indicted for a rape, alleged to have been committed upon his own daughter, may be convicted of incest, if the jury find the criminal connection, but that it was not by force and against the will of the daughter.® 1 Regina v. Fletcher, Bell C. C. phy, 2 Allen, 163. Gen. Sts. ch. 63. Regina v. Fletcher, L. R. 1 C. 172, § 16. Under this section of the C. 89. Regina v. Flattery, 2 Q. B. statute, a conviction may he had of D. 410, questioning Regina v. Bar- a simple assault, if connected with ratt, L. R. 2 C. C. 81. Common- the offence charged in the indict- ■wealth V. Burke, 105 Mass. 876. ment, but not of a distinct assault. 2 Regina v. Allen, 2 Moody C. C. Commonwealth r. Dean, 109 Mass. 179; 9 C. &P. 521. 349. Commonwealth v. Drum, 19 8 1 Russell on Crimes, 920, 4th ed. Pick. 479. Commonwealth w. Fiseh- * Commonwealth v. Squires, 97 blatt, 4 Met. 354. Commonwealth Mass. 59. V. Thompson, 116 Mass. 346. ' Commonwealth v. Squires, 97 ° Commonwealth ». Goodhue, 2 Mass. 59. Commonwealth v. Mur- Met. 198. Gen. Sts. ch. 172, § 16. RAPE. 795 1. Indictment for Rape. — Gen. Sts. ch. 160, § 26. The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. in the County of S., in and upon one E. F.,i violently and feloniously did make an assault ; and her, the said E. F., then and there, by force and against her will, violently and feloniously did ravish and carnally know ; contrary to the form of the statute in such case made and provided. 2. For Carnally Knoving and Abusing a Female Child under the Age of Ten Years. — Gen. Sts. ch. 160, § 26.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one E. F., a female child under the age of ten years, to wit, of the age of nine years, feloniously did make an assault, and her, the said E. F., then and there feloniously did unlaw- fully and carnally know and abuse ; contrary to the form of the statute in such case made and provided. * It is not necessary to state the ^ Commonwealth v. Sullivan, 6 age of the female. Commonwealth Gray, 477. Regina v. Martin, 9 C. V. Sugland, 4 Gray, 7. & P. 215. 796 CRIMINAL LAW. CHAPTER LXXIX. KBCEIVINQ STOLEK AND EMBEZZLED PROPERTY. 1. Indictment against a Receiver of Stolen Property as for a Substantive Felony. — Gen. Sts. ch. 161, § 43.^ The jurors &c. upon their oath present, that C. D. of B. in the County of S. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, one gold watch of the value of five hundred dollars of the property, goods and chattels of one J. N., before then feloniously stolen, taken and carried away, feloniously did buy, receive and have, and did then and there aid in the concealment of the same, the said C. D. then and there well knowing the said property, goods and chattels to have been feloniously stolen, taken and carried away ; contrary to the form of the statute in such case made and provided. 2. Against the Principal and Receiver of Stolen Goods. — Gen. Sts. ch. 161, § 43.^ The jurors &c. upon their oath present, that C. D. of &c., on the first day of June in the year of our Lord at B. 1 Commonwealth ti. Barry, 116 a f elonywhich may stand or be tried Mass. 1. Commonwealth v. King, alone, independently of the felony 9 Cush. 284. Commonwealth v. of the principal or of his oonvic- Slate, 11 Gray, 60. Regina v. Crad- tion. dock, 2 Denison C. C. 31; Tern- " Commonwealth v. Cohen, 120 pie & Mew C. C. 361. Regina v. Mass. 198. Commonwealth v. Lake- Hughes, Bell C. C. 242. Rex v. man, 5 Gray, 82. Stevens v. Com- Jervis, 6 C. & P. 156. Regina v. monwealth, 6 Met. 241. 9 Allen, 270. Caspar, 2 Moody C. C. 101; 9 C. & O'Connell v. Commonwealth, 7 Met. P. 289; S. C. 2 Lead. Crim. Caa. 460. Commonwealth v. Adams, 7 451 and note. In Carrington's Gray, 43. Commonwealth v. Camp- Supplement, p. 125, 3d ed. a.d. bell, 103 Mass. 436. Commonwealth 1828, it is said that the term " sub- v. Finn, 108 Mass. 466. Common- stantive felony " is new in the crimi- wealth v. Bean, 117 Mass. 141. nal law. The term is used to denote Commonwealth v. White, 123 Mass. RECEIVING STOLEN AND EMBEZZLED PROPERTY. 797 aforesaid in the county aforesaid, one silver tankard of the value of one hundred dollars, enumerate the articles and the value of each, of the property, goods and chattels of one E. F., then and there in the possession of the said E. F. being found, feloniously did steal, take and carry away. And the jurors aforesaid upon their oath aforesaid do further present, that G. H. of &c., afterwards, to wit, on the first day of July in the year of our Lord at B. aforesaid in the county aforesaid, the property, goods and chattels aforesaid, so as aforesaid feloniously stolen, taken and carried away, feloni- ously did buy, receive and have, and did then and there aid in the concealment of the same, the said G. H. then and there well knowing the said property, goods and chattels to have been feloniously stolen, taken and carried away ; contrary to the form of the statute in such case made and provided. 3. Against the Principal and Receiver of Embezzled Property. Gen. Sts. ch. 161, § 47. The jurors &c. upon their oath present, that G. D. of F. in the County of M. on the first day of June in the j'ear of our Lord at F. aforesaid in the county aforesaid, being then and there employed as clerk of one J. N., the said C. D. not being then and there an apprentice to the said J. N., nor a person under tlie age of sixteen years, did, by virtue of his said employment, then and there and while he was so em- ployed as aforesaid, take into his possession certain money, to a large amount, to wit, to the amount of five hundred dol- lars, of the moneys of the said J. N., his employer, and the said money then and there feloniously did embezzle and 430. Commonwealth v. Elisha, 3 the possession by the prisoner of Giay, 460. Commonwealth ». Hill, other goods stolen at other times 11 Gush. 137. Commonwealth v. from other persons was held not King, 9 Cush. 284. Commonwealth admissible on either count. " The V. Slate, 11 Gray, 60. Regina v. law of England," said Lord Camp- Dovey, 2 Denison C. C. 86. Re- bell, C. J., "does not allow one gina V. Deer, Leigh & Cave C. C. crime to be proved in order to raise 240. Regina v. Kenny, 2 Q. B. D. a probability that another crime has 307. On the trial of an indictment been committed by the. perpetrator containing counts for stealing and of the first." Regina v. Oddy, 20 for receiving the goods of A., know- L. J. M. C. 198; 2 Denison C. C. ing them to be stolen, evidence of 264. 2 Lead. Crim. Cas. 33, 34. 798 CRIMINAL LAW. fraudulently convert to his own use, without the consent of the said J. N. ; whereby and by force of the statute in such case made and provided, the said C. D. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid upon their oath aforesaid do further present, that the said C. D. then and there, in manner and form aforesaid, the said money, the property of the said J. N., his said em- ployer, from the said J. N. feloniously did steal, take and carry away. And the jurors aforesaid upon their oath afore- said do further present, that G. H. of F. aforesaid in the county aforesaid, afterwards, to wit, on the fiist day of July in the year of our Lord at F. aforesaid in the county aforesaid, the money aforesaid, so as aforesaid feloniously em- bezzled, feloniously did buy, receive and have, and did then ahd there aid in concealing the same, the said G. H. then and there well knowing the said money to have been embezzled as aforesaid; contrary to the form of the statute in such case made and provided. RESCUE. 799 CHAPTER LXXX. RESCUE. Indictment for the Rescue of a Felon from a Constable. — Gen. Sts. ch. 163, § 11.1 The jurors &c. upon their oath present, that on the first day of June in the j'ear of our Lord at B. in the County of M., J. S., then being one of the constables of said B., brought one J. N. before A. C, Esquire, then and yet being one of the trial justices within and for the county aforesaid, legally authorized and duly qualified to perform and discharge the duties of said ofiice ; and the said J. N. was then and there charged before the said A. C. by one Catherine Hope, upon the oath of the said Catherine, that the said J. N. had then lately before, violently and against her will, feloniously ravished and carnally known the said Catherine ; and the said J. N. was then and there examined before the said A. C, the justice aforesaid, touching the said offence so to him charged as aforesaid ; upon which the said A. C, the justice aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date the first day of June in the j'ear aforesaid, di- rected to the keeper of or his deputy, commanding the said keeper or his deputy, that he should receive into his custody the said J. N. brought before him and charged upon the oath of the said Catherine Hope, with the premises above specified ; and the said justice, by the said warrant, did com- mand the said keeper of or his deputy, to safely keep the said J. N. there until he by due course of law should be discharged ; which said warrant afterwards, to wit, on the day and year aforesaid, at B. aforesaid in the county afore- ' Commonwealth v. Malloy, 119 Mass. 347. Commonwealth v. Lee, 107 Mass. 207. 800 CRIMINAL LAW. was delivered to the said J. S., then being one of the constables of said B. as aforesaid, and then and there having the said J. N. in his custody for the cause afore- said ; and the said J. S. was then and there commanded by the said A. C, the justice aforesaid, to convey the said J- N. without delay to the said jail and to deliver the said J. N. 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 J. N. of B. aforesaid in the county aforesaid, and J. T. of the same place, afterwards, and while the said J. N. was in the custody of the said J. S., under the said warrant as aforesaid, and while the said J. S. was conveying the said J. N., under and by virtue of the warrant, to the said jail to wit, on the day and year aforesaid, at B. aforesaid in the county aforesaid, in and upon the said J. S., then and there being a constable as aforesaid, and then and there lawfully having the said J. N. in his custody by virtue of the said warrant, for the cause aforesaid, in the due execution of his said office then and there being, did make an assault, and the said J. S. then and there did beat, wound and ill-treat ; and that the said J. T., the said J. N. out of the custody of the said J. S. and against the will of the said J. S., then and there unlaw- fully and forcibly did rescue and put at large, to go whither- soever he would ; and that the said J. N. himself out of the custody of the said J. S. and against the will of the said J. S., then and there unlawfully and forcibly did rescue and put at large, to go whithersoever he would ; against the peace &c., and contrary to the form of the statute &c. KIOT. 801 CHAPTER LXXXI. RIOT. 1. For Riot and Assault.^ The jurors &c. upon their oath present, that A. B. of B. in the County of S., C. D. of the same place, E. F. of the same place, together with clivers other evil-disposed persons, to the number of twelve and more, whose names are to the jurors aforesaid unknown, on the fifth day of November in the year of our Lord with force and arms * * at B. aforesaid in the county aforesaid, unlawfully, riotously and routously did assemble and gather together, to the disturb- ance of the public peace, and being so then and there assem- bled and gathered together, in and upon one S., the wife of J. T., then and there unlawfully, riotously and routously did make an assault, and the said S. then and there unlawfully, riotously and routously did beat, wound and ill-treat, and other wrongs to the said S. then and there unlawfully, riot- ously and routously did ; against the peace &c. 2. For Riot and Tumult. The jurors, as in the last precedent, to the asterisJcs, then thus : to wit, with sticks, staves and other offensive weapons, ^ Regina v. Soley, 2 Salk. 594. may lawfully interfere to prevent an Commonwealth ». Runnels, 10 Mass. arrest under avoid warrant, doing 518. Commonwealth v. Gibney, 2 no more than is necessary for that Allen, 150. Commonwealth u. Camp- purpose. Persons, therefore, in re- bell, 7 Allen, 541. Regina v, Phil- sisting an officer under a warrant lips, 2 Moody C. C. 252 ; C. & Marsh, which is illegal and void, if they are 602. Regina v. Atkinson, 11 Cox guilty of no improper or excessive C. C. 330, per Kelly, C. B. An offi- force or violence, do not commit an cer who acts under a void precept, unlawful act by lawful means, or a and a person doing the same act lawful act by unlawful means, and so who is not an officer, stand on the cannot be convicted of a riot. Com- same footing; and any third person mon wealth v. Crotty, 10 Allen, 408. 51 802 * CRIMINAL LAW. at B. aforesaid in the county aforesaid, unlawfully, riotously and routously did assemble and gather together, to the dis- turbance of the public peace, and being so assembled and gathered together, armed as last aforesaid, did then and there unlawfully, riotously and routously make a great noise, riot and disturbance, and did then and there remain and continue armed as last aforesaid, making such noise, riot and disturb- ance, for the space of an hour and more then next following, to the great disturbance and terror ^ not only of the citizens of said Commonwealth then and there being and residing, but of all other the citizens of said Commonwealth then passing and repassing in and along the common highway there ; against the peace &c. 1 If an unlawful act is charged, monwealth v. Runnels, 10 Mass. this averment is unnecessary. Com- 518. ROBBERY. 803 CHAPTER LXXXII. EOBBEEY. RoBBEBT, by the common law, is larceny from the person, accompanied by violence, or by putting in fear ; and an in- dictment therefor must allege that the taking was from the person, and that it was by violence or by putting in fear, in addition to the averments that are necessary in indictments for other larcenies.^ It is necessary that the taking should be charged to be with violence from the person, and against the will of the party ; but it is not necessary that the indict- ment should also charge that he was put in fear.^ But no technical description of violence is necessary.^ It is obvious that the general principle, that the name of the party injured, if known, must be set forth in the indict- ment with accuracy, is equally applicable to the crime of robbery. The indictment must also allege that the money or other property were the property of the person robbed, or of some third person, and that they were carried away by the defendant.^ 1. Indictment for Robbery at Common La-w.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. in the County of S., in and upon one J. N., feloniously did 1 Commonwealth v. Clifford, 8 Cush. 215. See Rex v. Hall, 3 C. Cush. 215. Rex v. Rogan, Jebb & P. 409. C. C. 62. Rex v. DonoUy, 1 Leach « Matthews Crim. Law, 529. The C. C. 193; 2 East P. C. 715. Com- indictment may charge the defend- monwealth v. Caliill, 12 Allen, 540. ant with having assaulted several ■^ Commonwealth c. Humphries, persons, and stolen different sums 7 Mass. 242. Commonwealth o. from each, if the whole was one Clifford, 8 Cush. 215, 217. transaction. Regina i'. Giddins, C. ' Rex V. Smith, 2 East P. C. & Marsh. 634. Commonwealth v. 783. Sullivan, 104 Mass. 552. Common- * Conmionwealth r. Clifford, 8 wealth v. O'Brien, 107 Mass. 208. 804 CKIMINAL LAW. make an assault,' and the said J. N., in bodily fear and danger of his life, then and there feloniously did put, and one gold watch of the value of three hundred dollars of the goods and chattels of the said J. N. from the person and against the will of the said J. N. then and there feloniously and violently did steal, take and carry away ; against the peace &c. 2. For Robbery, the Prisoner being Armed with a Dangerous ■Weapon. — Gen. Sts. oh. 160, § 22.2 The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. in bodily fear and danger of his life, then and there feloniously did put, and one gold watch of the value of five hundred dollars of the property of the said J. N., from the person and against the will of the said J. N., then and there feloniously, and by force and violence, did rob,^ steal, take and carry away, the said C. D. being then and there armed with a dangerous weapon, to wit, with intent, if then and there re- sisted by the said J. N., him the said J. N. then and there to kill ; contrary to the form of the statute in such case made and provided. 3. For Robbery, the Prisoner being Armed -with a Dangerous Weapon, and Striking and Wounding the Person Robbed. — On the Latter Clause of the Twenty-second Section of the Gen. Sts. ch. 160."^ The jurors &c. upon their oath present, that A. B. of B. in the County of S. on the first day of June in the year of 1 It is an essential part of the ^ Commoawealth v. Martin, 17 indictment that the assault should Mass. 359. Commonwealth v. Gal- be alleged to be made feloniously, lagher, 6 Met. 565. Commonwealth And therefore, in Rex ». Pelfryman, v. Mowry, 11 Allen, 22. 2 Leach C. C. 563, 2 East P. C. 783, « The word "rob " is essential, the judgment was arrested for this Commonwealth v. Clifford, 8 Cush. omission, though it charged that the 217. prosecutor was feloniously put in * Commonwealth »;. Mowry, 11 fear and danger of his life. 1 Stark. Allen, 20. Crim. PI. 90. Ante, p. 687 note. ROBBERY. 805 our Lord at B. aforesaid, in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. in bodily fear and danger of his life, then and there feloniously did put, and sundry pieces of silver coin current within this Commonwealth by the laws and usages thereof, amounting together to the sum of five hundred dol- lars and of the value of five hundred dollars of the moneys and property of the said J. N. from the person and against the will of the said J. N., then and there feloniously, and by force and violence did rob, steal, take and carry away ; and that the said A. B. was then and there armed with a certain dangerous weapon, to wit, a and being then and there so armed as aforesaid, the said A. B., with the dangerous weapon aforesaid, the said J. N. in and upon the face and head of the said J. N., then and there feloniously did strike and wound ; contrary to the form of the statute in such case made and provided. 4. Tot Robbery, not being Armed ■with a Dangerous Weapon. Gen. Sts. ch. 160, § 24. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and upon one J. N. feloniously did make an assault, and the said J. N. then and there feloniously did put in fear, and one gold watch of the value of five hundred dollars, of the property of the said J. N., from the person and against the will of the said J. N. then and there feloniously and by force and violence, did rob, steal, take and carry away ; contrary to the form of the statute in such case made and provided. 806 CRIMINAL LAW. CHAPTER LXXXIII. SALE OF INTOXICATING LIQUOBS. 1. Complaint for a Single Sale. — St. 1875, ch. 99, § 1.1 That C. D. of F. in the County of M. on the first day of June in the year of our Lord at F. aforesaid in the county aforesaid, did sell (" or expose, or keep for sale ") to one E. F. intoxicating liquor, the said C. D. not having then and there any license, authority or appointment according to law to make such sale ; contrary to the form of the statute in such case made and provided. 2. For Keeping a Common Nuisance. — Gen. Sta. ch. 87, §§ 6, 7.2 That C. D. of B. in the County of S. on the first day of June in the year of our Lord and on divers other days and times between that day and the first day of Septem- ber in the same year, without then and on said other days and times there having any license, appointment or authority, first duly had and obtained according to law, to keep intoxi- cating liquors for sale, and without then and on said other days and times there having any license, appointment or authority, first duly had and obtained according to law, to sell intoxicating liquors, did then and on said other days and times, at B. aforesaid in the county aforesaid, keep and main- 1 Commonwealth v. Burke, 121 206. Commonwealth v. Fredericks, Mass. 39. Commonwealth v. Davis, 119 Mass. 199. 121 Mass. 352. Commonwealth a. ^ Commonwealth v. Dunn, 111 Dolan, 121 Mass. 374. Common- Mass. 425, 426. Commonwealth v. wealth 0. Hanley, 121 Mass. 377. Grady, 108 Mass. 412. Common- Commonwealth V. Jennings, 121 wealth v. Bacon, 108 Mass. 26. Mass. 47, 52. Commonwealth v. Commonwealth v. Bennett, 108 Hart, 11 Cush. 130; S. C. 2 Lead. Mass. 27. Commonwealth ». Kelly, Grim. Cas. 1. Commonwealth v. 12 Gray, 175. Commonwealth v. Lattinville, 120 Mass. 385. Com- Farrand, 12 Gray, 177. monwealth v. Curran, 119 Mass. SALE OF INTOXICATING LIQUORS. 807 tain a certain common nuisance, to wit, a building then and on said other days and times there used for the Ulegal sale and illegal keeping of intoxicating liquors ; to the common nuisance of all the citizens of said Commonwealth there residing, inhabiting and passing, and contrary to the form of the statute in such case made and provided. 3. For Keeping a Public Bar. — Sts. of 1875, ch. 99, §§ 6, 13. That C. D. of &c. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid and witfcin the judicial district of said court, had then and there a license under the provisions of chapter ninety-nine of the acts of the year one thousand eight hundred and seventj'-five of said Commonwealth, to sell, expose and keep for sale intoxicating liquors to be drunk on certain premises of the said C. D. there situate, and numbered in Street in said B., within the judicial district aforesaid, which said license was then and there of the class designated in said chapter ninety-nine of the arts aforesaid as the first class, and was then and there subject to the condition that the said C. D. should not keep a public bar, and that the said C. D. did then and there unlawfully keep a public bar on said premises for the purpose of selling said intoxicating liquors, the said C. D. not having then and there any license, authority or appointment according to law to keep a public bar on said premises for the purpose aforesaid ; contrary to the form of the statute in such case made and provided. 808 CRIMINAL LAW. CHAPTER LXXXIV. SEAECH-WAREANT.l ^In a complaint, for a search-warrant for stolen goods, it is necessary to describe the articles stolen, and for which search is to be made ; but it is apprehended that in such complaint, upon the statute, to obtain a warrant to search for counterfeit money or securities, or for tools, implements &c., used in forging them, it is not necessary to give a particular description of the money, securities, tools and implements, though it is always advisable to do it, when in the power of the complainant or prosecutor. In the former case, the prose- cutor is presumed to have knowledge of the articles which have been in his possession, and stolen from him ; but in the latter case, the forged and counterfeit money, securities &c., cannot be presumed to have ever been in the possession of the prosecutor, and therefore the law caimot require him to give a description of them in his complaint. Whenever the forged securities or money may be found and brought before a magistrate by virtue of a search-warrant issued upon the statute, he ouglit immediately to have a pri- vate mark put upon them, by which they can be identified in any future stage of the process. They ought to be kept sealed, after the examination is completed, and in that man- ner delivered to the grand jury or district-attorney. 1. Search-Warrant. — Stolen Goods. — Gen. Sts. oh. 170, § 1.2 To the Justices of the Municipal Court of the City of Bos- ton, holden at said Boston for the transaction of criminal business within and for the County of Suffolk, of 1 Ante, Chap. IV., Search- War- "stolen, embezzled or obtained by rants, p. 110. false tokens or pretences." Gen. 2 Personal property that has been Sts. ch. 170, § 1. SEAECH-WARRANT. 809 said Boston on oath informs the said justices, that the following personal property, to wit : of the value of dollars and cents, of the value of dollars and cents, of the value of dollars and cents, of the value of dollars and cents, all of the value of dollars, the property of have within days now last past, by some person or persons unknown to the said been feloniously taken, stolen and carried away out of the possession of the said at Boston aforesaid ; and that he believes that said property, or a part thereof, is concealed in in said Boston, and within the judicial district of said court, and prays a warrant ^ to search there for the same. Received and sworn to, before said court, this day of in the year of our Lord Clerk. COMMONWEALTH OF MASSACHUSETTS. SUFEOLK, SS. To the Sheriff of our County of Suffolk, his Deputies, r -] and the Constables and Police-officers of our City of Boston, and to either of the Constables of said Commonwealth, Gkeeting : We command you, and each of you, forthwith, with necessary and proper assistants, to enter in the daytime into the mentioned in the above information, and there diligently to search for said property, and if the same, or any part thereof, shall be found on such search, that you bring the property so found, together with the body of the person or persons in whose possession found, if they may be found in our said city, before said court, to be disposed of and dealt with as to law and justice shall appertain. You are also commanded, in like manner, to notify the informant to appear and give evidence touching the matter 1 It is not necessary to aver or Holland v. Seagrave, 11 Gray, 209. recite in the -warrant that there was Commonwealth v. Intoxicating Liq- " reasonable cause" for issuing it. uors, 108 Mass. 178, 179. 810 CRIMINAL LAW. contained in the above complaint, when and where you have the said property and person, or either of them. Witness, J. W. M., Esquire, at Boston, this day of in the year of our Lord aerk. 2. Search-Warrant. — Gaming Implements. To the Justices of the Municipal Court of the City of Bos- ton, holden at said Boston for the transaction of criminal business within the County of Suffolk, of the City of Boston, in the County of Suffolk, constable of the Common- wealth, on oath informs the said justices, that he believes that gaming apparatus and implements are used, kept and provided to be used in unlawful gaming in certain rooms resorted to for the purpose of unlawful gaming, in a certain building situated and numbered in Street, in said Boston, and within the judicial district of said court, that is to say, in the rooms in the story of said building, and also that furniture, fixtures and personal property are contained therein, and may be found therein at a time when persons may there be found playing at some unlawful game, which said rooms are occupied by some per- son whose name is to your complainant unknown, and prays for a warrant to search there for and to seize the same. Received and sworn to, before said court, this day of in the year of our Lord Clerk. commonwealth op massachusetts. Suffolk, ««. To the Sheriff of our County of Suffolk, his Deputies, P , and the Constables and Police-officers of our City of Boston, and to any Constable of said Common- wealth, Greeting : It now appearing to the said court that there is reasonable cause for the belief in the above complaint, we command you, and each of you, forthwith, with necessary and proper assist- ants, to enter in the daytime or in the night-time, into the SEARCH-WARRANT. 811 rooms mentioned in the above information, and there dili- gently to search for and to seize said gaming apparatus and implements, and if the same, or any part thereof, shall be found on such search, that you bring the said apparatus and implements so found, together with the body of the person or persons in whose possession found, if they may be found in our said city, before said court, to be disposed of and dealt with as to law and justice shall appertain. You are also commanded in like manner to search for and to seize all the fui-niture, fixtures and personal property found in the rooms described in the above complaint, at the time when any per- sons are there found playing at any unlawful game, and to bring said furniture, fixtures and personal property before said court, to be disposed of and dealt with as to law and justice shall appertain. You are also commanded, in like manner, to notify the informant to appear and give evidence touching the matter contained in the above complaint, when and where you have the said gaming apparatus and implements, furniture, fixtures, personal property and persons, or either of them. Witness, J. W. M., Esquire, at Boston aforesaid, this day of in the year of our Lord Glerh. 3. Search-'Warrant. — Gaming Implements and Persona. To the Justices of the Municipal Court of the City of Boston, holden at said Boston for the transaction of criminal business within the County of Suffolk, of the City of Boston, in the County of Suffolk, constable of the Com- monwealth on oath informs the said justices, that he suspects, and has probable cause to suspect, that a certain building situated and numbered in Street in said Boston and within the judicial district of said court, that is to say, the rooms in the story of said building, which said rooms are occupied by some person whose name is to your complainant unknown, are unlawfully used as and for a common gaming-house, for the purpose of gaming for money or other property, and that idle and dissolute persons, 812 CRIMINAL LAW. whose names are unknown to your complainant, resort to the same for that purpose, and are present at games and sports there played for money or other things of value, and prays for a warrant to enter into said building, and to arrest all persons who are there found playing for money, or otherwise, and the keepers of the same, and all persons found present as aforesaid, and to take into custody all the implements of gaming there to be found. Received and sworn to, before said court, this day of in the year of our Lord Clerk. COMMONWEALTH OF MASSACHUSETTS. Suffolk, sa. To the Sheriff of our County of Suffolk, his Deputies, Ft cs 1 ^"^ *'^^ Constables and Police-officers of our City of Boston, and to any Constable of said Common- wealth, Gbbeting : We command you, and each of you, forthwith, withnecessary and proper assistants, to enter, in the daytime or in the night- time, into the rooms mentioned in the above information, and there to arrest all persons who are there found playing for money or otherwise, and also the keepers of the said rooms, and also all persons found present at any game or sport there played for money or other thing of value, and to take into your custody all the implements of gaming as aforesaid, and to keep the said persons and implements so that they may be forthcoming before said court, to be disposed of and dealt with as to law and justice shall appertain. You are also commanded, in like manner, to notify the informant to appear and give evidence touching the matter contained in the above complaint, when and where you have the said implements and persons, or either of them. Witness, J. W. M., Esquire, at Boston aforesaid, this day of in the year of our Lord Clerk. SEPULCHRES OF THE DEAD. 813 CHAPTER LXXXV. SEPULCHRES OF THE DEAD. 1. For Digging Up and Carrying Away a Dead Body.l The jurors &c. upon their oath present, that J. S. of B. in the County of M. on the third day of August in the year of our Lord at B. aforesaid in the county aforesaid, the churehj^ard of and belonging to the parish church of said B. there situate, unlawfully and wilfully did break and enter, and the grave there in which one J. N., deceased, had lately before then been interred and then was, then and there un- lawfully, wilfully and indecently did dig open, and then and there the body of the said J. N. out of the grave aforesaid, unlawfully, wilfully and indecently did take and carry away ; against the peace &c. 2. For Disinterring and Removing a Dead Body -without Permis- sion. — Gen. Sts. ch. 165, § 37. The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at W. in the County of H., the common burying-ground there situate,^ unlawfully and wilfully did break and enter, and a grave there, in which a certain human body, to wit, the body of one J. N., had lately before been interred and then was, then and there unlawfully and wilfully did open, and the body of the said J. N. then and there in the grave aforesaid being, then and there unlawfully and wilfully did dig up, disinter, remove and convey away from and out of the grave aforesaid, the said C. D. and E. F. then and there intending 1 Arcbb. Crim. PI. 970. Begina to whom the burying-ground be- V. Sharpe, Dearsly & Bell C. C. longed. Commonwealth v. Cooley, 160. 10 Pick. 37. ^ It is not necessary to allege 814 CRIMINAL LAW. to use and dispose of the said body for the purpose of dissec- tion;! the said C. D. and E. F. not being then and there authorized so to do, either by the board of health, or the overseers of the poor, or the directors of the workhouse, or the selectmen of the said town of W., in which the said grave and the burying-ground aforesaid was and is situate ; ^ contrary to the form of the statute in such case made and provided. * This is a necessary averment, defendant -was not authorized by Commonwealth v. Slack, 19 Pick, the selectmen &c. of the town where 304. the body was buried. Common- ^ It is sufficient to aver that the wealth v. Loring, 8 Pick. 369. SHIPPING AND PILOTAGE. 815 CHAPTER LXXXVI. SHIPPING AND PILOTAGE. Complaint for Boarding a Vessel. — Gen. Sts. oh. 52, §§ 22, 23. To the Justices of the Municipal Court of the City of Bos- ton, holden at said Boston for the transaction of criminal business within and for the County of Suffolk, A. B. of the City of Boston in the County of Suffolk, police-officer, in be- half of the Commonwealth of Massachusetts, on oath cfom- plains, that C. D. of said Boston, on the first day of June in the year of our Lord at Boston aforesaid in the county aforesaid, and within the judicial district of said court, did board the a vessel then arriving in Boston Harbor, before said vessel had been made fast to the wharf there and without obtaining leave from E. F., the person then having charge of the said vessel, and without having obtained leave in writing from the owners or agent thereof so to do, the said C. D. then and there not being a pilot or public officer visiting said vessel in the discharge of his duty ; contrary to the form of the statute in such case made and provided. 816 CRIMINAL LAW, CHAPTER LXXlVII. SLTTNG SHOT. 1. For being Armed with Slung Shot when Arrested while Com- mitting a Burglary. — Gen. Sts. oh. 164, § 10.1 The jurors &c. upon their oath present, that C. D. of W. in the County of W. on the first day of June in the year of our Lord in the night-time of the same day, at W. in the County of W., the dwelling-house of one A. B. there situate, feloniously and burglariously did break and enter, with intent the property, goods and chattels of the said A. B., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take and carry away, in the dwelling-house aforesaid ; and that the said C. D., at the time said felony and burglary was committed, in manner and form aforesaid, to wit, on the said first day of June in the year aforesaid, in the night-time of the same day, at W. aforesaid in the county aforesaid, was arrested by one J. N., one of the constables of the said town of W., duly ap- pointed and qualified to discharge and perform the duties of that oiEce ; and that the said C. D., at the time said arrest was made, in manner and form aforesaid, was then and there armed with slung shot ; contrary to the form of the statute in such case made and provided. 2. For Selling Slung Shot. — Gen. Sts. oh. 164, § 11. The jurors &c. upon their oath present, that C. D. of W. in the County of W., on the first day of June in the year of our Lord at W. aforesaid in the county aforesaid, unlawfully did sell to one A. B. a certain weapon of the kind usually known as slung shot; contrary to the form of the statute in such case made and provided. 1 An indictment on this section monwealth v. Doherty, 103 Mass. of the statute must allege that the 443. Commonwealth v. Kane, 108 arrest was lawful. Commonwealth Mass. 425. V. O'Connor, 7 Allen, 583. Com- SODOMY AND BESTIALITY. 817 CHAPTER LXXXVIII. SODOMY AND BESTIALITY. 1. Indictment for Sodomy. — Gen. Sts. ch. 165, § 18. The jurors &c. upon their oath present, that C. D. of B. in the County of S., on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, in and npon one J. N. feloniously did make an assault ; and then and there feloniously and against the order of nature, did commit the abominable and detestable crime against nature with the said J. N., by then and there having carnal knowl- edge of the body of the said J. N. ; contrary to the form of the statute &c. 2. Indictment for Bestiality. — Gen. Sts. ch. 163, § 18.>^ The jurors &c. upon their oath present, that C. D. of W. in the County of W., on the first day of June in the year of our Lord at W. in the County of W., feloniously and against the order of nature, did commit the abominable and detestable crime against nature, with a certain beast, to wit, with a cow, by then and there having carnal knowledge of the body of the said cow ; contrary to the form of the statute in such case made and provided. 1 An indictment for bestiality, females of foxes and some other which describes the animal as " a animals are called bitches, as well certain animal called a bitch," is as the female of the dog. Regina sufficiently certain, although the v. Allen, 1 C. & E. 495. 52 818 CRIMINAL LAW. CHAPTER LXXXIX. STREET RAILWAY COEPOEATIONS. St. 1871, ch. 381, § 29, enacts that " Whoever wilfully and maliciously obstructs any corporation, its lessees or assigns, in the legal use of any railway tracks, or delays the passing of the cars or railway carriages thereon, such person, and all who shall be aiding and abetting therein, shall be punished by a fine not exceeding five hundred dollars, or may be imprisoned in the common jail for a period not exceeding three months." It was said by Chief Justice Shaw, in the leading case of Commonwealth v. Temple,' " the accommodation of travel- lers, of all who have occasion to use them, at certain rates of fare, is the leading object and public benefit, for which these special modes of using the highway are granted, and not the profit of the proprietors." ^ The intention of the defendant to obstruct a car is suifi- ciently alleged by charging in the words of the statute, that he did " wilfully and maliciously " obstruct it.^ In Common- wealth V. Temple,* it was settled that an actual purpose to obstruct the car is not necessary to constitute the offence ; •" that if a wilful intent to follow his own convenience, in violation of the equal rights of others exist, it is sufScient." 1. Complaint for Obstructing a Horse Railway. — St. 1871, ch. 381, § 29. St. 1874, ch. 372, § 2. That the Metropolitan Railroad Company, a corporation duly and legally established under the laws of this Common- 1 14 Gray, 69, 78. " This opin- 65,67. S. P. Metropolitan Railroad ion contains a thorough considera- v. Highland Railway, 118 Mass. tion of the rights' of travellers to the 290, 293. use of the highways, as affected and ' Commonwealth v. Brooks, 9 modified by the introduction and use Gray, 299. Commonwealth v. Hicks, of street railways." 7 Allen, 573, 576. 2 Richardson v. Sibley, 11 Allen, * 14 Gray, 69. STREET RAILWAY CORPORATIONS. 819 wealth, on the first day of June in the year of our Lord were a street railway corporation duly and legally established as such, and were at Boston in the County of Suf- folk then in the rightful possession and use of a certain street railway, constructed, located and maintained in and upon a certain street in said Boston called Washington Street, and were then and there rightfullj' running a certain car of the said corporation on, over and along said railway constructed and located in said street as aforesaid, and that on the said first day of June in the year aforesaid, one C. D. of &c., well Knowing all and singular the premises, and while said corporation were running said car on, over and along said railway in said street as aforesaid, wilfully and maliciously did drive a certain wagon with horses thereto attached, of the property of him the said C. D., in and upon said railway and in front of said car of said corporation so running as aforesaid, and did then and there and thereby for a long time, to wit, for the space of wilfully and maliciously delay, hinder and obstruct the running and passing of said car on the railway track on said street as aforesaid. And so the complainant aforesaid on his oath aforesaid complains and says, that the said C. D., on the first day of June in the year of our Lord at Boston aforesaid in the county aforesaid, in manner and form aforesaid and by the means aforesaid, wilfully and maliciously did obstruct the said railway of the said corporation, and did wilfully and maliciously delay, obstruct and hinder the passing of said car in, upon, over and along the same ; contrary to the form of the statute in such case made and provided. 2. For Evading the Payment of Pare. — St. 1871, ch. 381, § 37. Complains that C. D. of B. in the County of S. on the first day of June in the j'ear of our Lord at B. afore- said in the county aforesaid and within the judicial district of said court, did knowingly and fraudulently evade the pay- ment of a certain fare of the amount of cents, law- fully established by a certai,n street railway corporation, duly established by the laws of this Commonwealth, to wit, the by then and there leaving a certain 820 CRIMINAL LAW. car of said company, in which the said C. D. was then and there a passenger, without having paid said fare so established as aforesaid for the distance then and there travelled by the said C. D. in said car, to wit, from to in said B., the said fare having been then and there first law- fully demanded of said C. D. by the conductor of said car ; contrary to the form of the statute in such case made and provided. SURETY FOR THE PEACE AND GOOD BEHAVIOR. 821 CHAPTER XC. STTEETT FOE THE PEACE AND GOOD BEHATIOE. SuEETY for the peace is sometimes required by way of punishment, and sometimes by way of -prevention of crime. It is frequently required as part of the penalty inflicted upon such as have been guilty of crimes; but then, also, it must be understood rather as a caution against the repetition of the offence, than any immediate pain or punishment in itself. And when this security is intended merely for prevention, without any actual crime committed by the party, it is called for by the fact that some person has threatened to commit an offence against the person or property of another, and is not intended as any degree of punishment, unless, perhaps, for a person's imprudence in giving just ground of appre- hension.^ All persons under the protection of the government, being of sane memory, whether citizens or aliens, have a right to demand surety of the peace. A wife may demand it against her husband, and a husband (if necessary) against his wife. In the latter case, Burn says quaintly, " Master Cromptou observeth, that if the wife cannot find sureties, she shall be committed, and so a man may be rid of a shrew." ^ There is no doubt but that surety of the peace may be granted against any person whatsoever, being of sane mem- ory, whether he be a magistrate or private person, whether he be of full age or under age. But, at common law, infants under age, and married women,' must find security by their friends, and not be bound themselves ; for they are incapable of binding themselves to answer a debt, which is the nature of these recognizances.^ 1 2 Deacon Crim. Law, 1271. « 4 Bl. Comm. 251. 4 Stephen Gen. Sts. ch. 169, § 2. Comm. 293. Ante, pp. 244, 245 ^ Burn Justice, vol. v. p. 745, and note. 30th ed. Crompton, 133 1. 822 CRIMINAL LAW. A partner forced by the violence of his copartner out of the business premises, and threatened with violence and dan- ger to his life if he ventured again to enter the premises, was allowed to exhibit articles of the peace against such co- partner, on showing that it was necessary for the applicant to go to the premises for the purpose of carrying on his business.^ The Gen. Sts. ch. 169, authorize the binding to keep the peace, where it shall appear that there is just cause to fear that an offence may be committed against the person or property of another, for such a term of time as the magis- trate may order, not exceeding six months.^ The statute contains full and explicit directions for the magistrate in this branch of his duty. It is deemed unnecessary to transcribe it, as every magistrate is presumed to own a copj'^ of all the statutes. But it must be observed that the party must not be bound over to the next court, unless he is also charged with some other offence, for which he ought to be bound to answer at such court.^ Complaint for Sureties to Keep the Peace.^ A. B. of B. in the County of S., in behalf of the Com- monwealth of Massachusetts, on oath complains, that C. D. of B. aforesaid in the county aforesaid, on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, did threaten the said A. B. to commit an assault and battery upon him the said A. B., and that the said A. B. has reason to be afraid and is afraid that the said C. D. will do him said A. B. great bodily harm and mischief; wherefore he prays sureties of the peace and good behavior against the said C. D., not for any private malice, hatred or ill-will, but simply because he has reason to be afraid and is afraid as aforesaid. 1 Regina v. Malinson, 20 L. J. M. » Gen. Sts. ch. 169, § 4. C. 33. * The warrant may be issued in 2 Adams v. Adams, 100 Mass. the usual form. 371. THREATENING WITH INTENT ETC. 823 CHAPTER XCI. THEEATENING WITH INTENT ETC. 1. For Sending a Letter Threatening to Accuse a Person of a Crime. — Gen. Sts. oh. 160, § 28.^ The jurors &c. upon their oath present, that C. D. of F. in the County of M. on the first day of June in the year of our Lord at F. in the County of M., feloniously and maliciously did threaten one E. F., to accuse the said E. F. of having committed the crime of^ by then and there feloniously and maliciously sending to the said E. F. a cer- tain written communication, the said C. D. then and there well knowing the contents of said written communication, which said written communication is of the following tenor, that is to say, set out the letter correctly,^ with intent thereby then and there feloniously to extort* money from the said E. F. ; contrary to the form of the statute in such case made and provided. ^ An indictment is insufficient if C. C. 134. Commonwealth v. Mur- it contains no allegation that the phy, 12 Allen, 449. threats were made " either verbally ^ The letter must be set out cor- or by any written or printed com- rectly. Rex ». Lloyd, 2 East P. C. munication. " Robinson y. Common- 1123. wealth, 101 Mass. 27. Ante, p. 81. « The term "extort " has a tech- Where an indictment charged the nical meaning, and the very import prisoner in three several counts with of the word shows that the prisoner three felonies in sending three sep- is not acquiring possession of his own arate threatening letters, Byles, J., property; and whether any thing is compelled the prosecution to elect obtained or not, the crime is com- on which count they would proceed, plete, and therefore, whether the Regina v. Ward, 10 Cox C. C. 42. property belongs to the person ^ It is not necessary to describe threatened or not, is quite iramate- the crime in strict technical Ian- rial. Regina o. Tiddeman, 4 Cox guage. Rex v. Tucker, 1 Moody C. C. 387, Piatt, B. Ante, p. 552. 824 CRIMINAL LAW. 2. For Sending a Letter Threatening to Burn a Dvrelling-house. Gen. Sts. ch. 160, § 28. The jurors &c. upon their oath present, that C. D. of F. in the County of M. on the first day of June in the year of our Lord at F. in the County of M., feloniously and maliciously did threaten one E. F. to burn a certain dwelling- house of the property of the said E. F. there situate, by then and there feloniously and maliciously sending to the said E. F. a certain written communication, the said C. D. then and there well knowing the contents of said written commu- nication, which said written communication is of the follow- ing tenor, that is to say &c., with intent thereby then and there feloniously to extort money from the said E. F. ; contrary to the form of the statute in such case made and provided. 3. For Attempting to Eztort Money by Verbally Threatening to Accuse another of a Crime. — Gen. Sts. ch. 160, § 28.^ The jurors &c. upon their oath present, that C. D. of &c. on the first day of June in the year of our Lord at B. aforesaid in the county aforesaid, feloniously and mali- ciously did verbally threaten one J. N., in a certain conversa- tion which the said C. D. then and there had of and concerning the said J. N., to accuse the said J. N. of having, describe the accusation, with the intent thereby then and there feloniously to extort from the said J. N. a certain sum of money, to wit, the sum of dollars ; contrary to the form of the stat- ute in such case made and provided. 1 Commonwealth ». Murphy, 12 488. Commonwealth v. Goodwin, Allen, 4i9. Commonwealth v. Moul- 122 Mass. 19, 33. Commonwealth ton, 108 Mass. 308. Commonwealth v. O'Brien, 12 Gush. 84, 88. Ante, u. Carpentar, 108 Mass. 15. Com- pp. 81, 551. mouwealth v. Dorus, 108 Mass. WITNESS. 825 CHAPTER XCII. WITNESS. Indictment at Common IiaTxr for Dissuading a 'Witness from Ap- pearing before a Court Pursuant to a Summons.^ The jurors &c. on their oath present, that heretofore, to wit, on the first day of June in the year of our Lord George R. Hurlbut, a deputj' of the sheriff of the County of Bristol, duly authorized and legally qualified to perform the duties of said ofSce, by virtue of a warrant directed to him, and issued in due course of law by Morrill Robinson, Junior, a justice of the peace within and for the County of Bristol, did summon and give notice to one Culbert Reynolds to appear before the police court of the City of New Bedford 1 Commonwealth v. Reynolds, 14 Gray, 87. The summoning of the witness, being alleged only by way of inducement to the substance of the charge against the defend- ant, needed not to be alleged with the same certainty of time and place as the substance of the charge. Regina v. Wyatt, 2 Ld. Raym. 1191. Regina v. Bidwell, 1 Denison C. C. 222, and 2 Cox C. C. 298. Neither is it necessary to allege upon whose behalf the wit- ness was summoned. Nor is it nec- essary that the indictment should allege that the testimony of the witness, who was dissuaded and pre- vented by the defendant from at- tending at the police court, was material on the trial of the defend- ant there. It was not necessary, in order to convict the defendant, to prove that the testimony of the wit- ness would have been material ; and therefore it was unnecessary to al- lege that it was. It is the duty of a witness to obey a summons, though he cannot give any material testi- mony ; and it is a crime in him who dissuades and prevents the witness from obeying the summons. This indictment sufBciently alleges that the defendant's intent and purpose was to obstruct " the due course of justice." And the "due course of justice" means not only the due conviction and punishment, or the due acquittal and discharge, of an accused party, as justice may re- quire ; but it also means the due course of proceedings in the admin- istration of justice. By obstructing those proceedings, public justice is obstructed. It is not necessary that the indictment should conclude " to the obstruction and binderance of public justice." 826 CRIMINAL LAW. in said County of Bristol, to give evidence of what he^ said Culbert Reynolds, knew relating to the matter of a certain complaint of Gideon Reynolds, — charging that Jonathan Reynolds, on the thirtieth day of May in the year of our Lord in and upon the body of one Daniel Reynolds did make an assault, — when and where the said Jonathan Reynolds should be had for trial on said complaint; the matter of said complaint being, on said first day of June in the year aforesaid, within the jurisdiction of the said police court of said City of New Bedford. And the jurors aforesaid upon their oath aforesaid do further present, that Jonathan Reynolds of Freetown in the County of Bristol, at Freetown in the County of Bristol, on the second day of June in the year of our Lord then and there well knowing the premises, and that the said Culbert Reynolds had been summoned and notified as aforesaid, and then and there contriving and intending the due course of justice to obstruct and impede, did wil- fully, knowingly, unlawfully and unjustly dissuade, hinder and prevent the said Culbert Reynolds from appearing be- fore said police court of the City of New Bedford, when and where the said Jonathan Reynolds was had for trial on said complaint, as the said Culbert Reynolds had been then and there notified and summoned, and as the said Culbert Reynolds was then and there required by law to appear and give evidence of what he the said Culbert Reynolds knew relating to the matter stated in said complaint, by then and there threatening to cause the said Culbert Reynolds to be arrested and imprisoned if he appeared before said police court as he was then and there summoned, notified and re- quired by law to do ; and that by the threatening of the said Jonathan Reynolds as aforesaid the said Culbert Reynolds was then and there hindered, dissuaded and prevented from appearing, and did not appear before said police court, — when and where the said Jonathan Reynolds was had for trial before said police court on said complaint, — then and there to give evidence before said police court of what he the said Culbert Reynolds knew relating to the matter of said complaint ; against the peace &c. 827 CHAPTER XCIII. PLEAS, REPLICATIONS AND EEJOINDEES. Pleas in bar are general or special. The general issue is not guilty ; upon which the defendant is not merely con- fined to evidence in negation of the charge, but may offer any matter in justification or excuse. In short, the general issue goes to say that the prisoner, under the circumstances, has not been guilty of the crime imputed to him. For this reason a special plea in bar seldom occurs in practice, except the pleas of autrefois acquit &c. A plea of guilty before a magistrate cannot be withdrawn, and a special plea filed instead, after the case has been car- ried to the superior court on appeal, without leave of that court ; and if leave to withdraw that plea has been refused, and a jury empanelled in the case, they may be directed to return a verdict of guilty, without the introduction of any evidence on the part of the Commonwealth.^ 1. Plea to the Jurisdiotion.2 And the said J. S. comes into court here and says, that the Superior Court here ought not to take cognizance of the (burglary) in the said indictment above specified ; because, protesting that he is not guilty of the same, nevertheless the said J. S. says that &c., so proceeding to state the matter of the plea, and conclude thus: And this the said J. S. is ready to ^ Commonwealth v. Blake, 12 Al- out of the jurisdiction of the court, len, 188. Commonwealth v. Hagar- the defendant may take advantage man, 10 Allen, 401. Jaha v. Belleg, of this matter under the general 13 Allen, 81. issue. Rex v. Johnson, 6 East, 583. ^ There are but few instances in Or, if the objection appears on the which a defendant is obliged to have face of the record, he may demur, recourse to a plea to the jurisdic- or move in arrest of judgment,, or tionj If the offence were committed bring a writ of error. 828 CRIMINAL LAW. verify; wherefore he prays judgment if the said Superior Court now here will or ought to take cognizance of the in- dictment aforesaid ; and that by the court here he may be dismissed and discharged &c. 2. Replication to the Same. And hereupon J. N., the Attornej^-General of the said Com- monwealth, who prosecutes for the said Commonwealth in this behalf, says, that notwithstanding any thing by the said J. S. above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment afore- said ; because he says that &c., stating the matter of the rep- lication : And this the said J. N. prays may be inquired of by the country &c., or, if it conclude with a verification, then thus: And this the said J. N. is ready to verify; where- fore he prays judgment, and that the said J. S. may answer- to the said indictment. 3. Plea of Misnomer of the Christian ITame.l And James Long, who is indicted by the name of George Long, comes into court here and says, that by the Christian name of James he has always been called and known ; ^ to wit, at B. aforesaid in the county aforesaid, without this, that the said James Long now is or at any time has hitherto been called or known by the Christian name of George, as by the said indictment is supposed ; and this the said James Long is ready to verify ; wherefore he prays judgment of the said in- dictment, and that the same may be quashed &c.^ 1 Rex V. Shakespeare, 10 East, name he was always called and 83. A plea of misnomer of the sur- known, is sufficient. Common- name can easily be framed from this wealth v. Trainor, 123 Mass. 414. precedent. If the defendant pleads ' The law requires a plea in not guilty, he cannot afterwards abatement, which is a dilatory plea, plead in abatement. Turns ». Com- to be pleaded with certainty, or, as mon wealth, 6 Met. 235. Common- it is expressed, " with precise and wealth V. Dedham, 16 Mass. 141. strict exactness," or, as it is laid Ante, p. 30. down, " it ought to be certain to '^ It is not essential that the plea every intent ; " and as this is the rule should state that the defendant was in a civil action, at least the same baptized by such a name ; saying degree of precision and strict exact- that it is his name, and by that ness is necessary in a plea in abate- PLEAS, REPLICATIONS AND REJOINDERS. 829 4. Replication. And hereupon J. N., Attorney-General of said Common- wealth, who prosecutes for said Commonwealth in this be- half, says, that the said indictment, by reason of any thing by the said James Long in his said plea above alleged, ought not to be quashed ; because he says that the said James Long, long before and at the time of the preferring of the said in- dictment, was, and still is known as well by the name of George Long as by the name of James Long, to wit, at B. aforesaid in the county aforesaid ; and this the said J. N. prays may be inquired of by the country &c. 5. Demurrer to an Indictment. And the said J. S. comes into court here and says, that the said indictment and the matters therein contained, in man- ner and form as the same are above stated and set forth, are not suflScient in law, and that the said J. S. is not bound by the law of the land to answer the same ; and this he is ready to verify : wherefore, for want of a sufficient indictment in this behalf, the said J. S. prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment specified. 6. Joinder. And J. N., Attorney-General of said Commonwealth, who prosecutes for the said Commonwealth, 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 J. S. to answer the same ; and the said J. N., who prosecutes as aforesaid, is ment to any proceeding at the suit Gen. Sts. ch. 171, § 31. The affi- o£ the Crown. O'Connell v. The davit, entitled in the court and Queen, 11 Clark & Finnelly, 136, cause, is to this effect: "James 245. Ante, p. 16.5. Long of the defendant in When to an indictment a plea this prosecution, makes oath and in abatement or other dilatory plea says, that the plea hereto annexed is offered, the court may refuse to is true in substance and matter of receive such plea, until its truth is fact." proved by affidavit or other evidence. 830 CRIMINAL LAW. read}' to verify and prove the same, as the court here shall direct and award : wherefore, inasmuch as the said J. S. has not answered to the said indictment, nor hitherto in any man- ner denied the same, the said J. N., for the said Common- wealth, prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified. 7. Demurrer to a Plea in Bar. And J. N., Attorney-General of said Commonwealth, who prosecutes for the said Commonwealth in this behalf, as to the said plea of the said J. S. 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 Common- wealth from prosecuting the said indictment against the said J. S. ; and that the said Commonwealth is not bound by the law of the land to answer the same ; and this the said J. N., who prosecutes as aforesaid, is ready to verify : wherefore, for want of a sufficient plea in this behalf, the said J. N., for the said Commonwealth, praj's judgment, and that the said J. S. may be convicted of the premises in the said indictment specified. A demurrer to a plea in abatement is in the same form, except that it concludes with praying judgment, and that the said indictment may be adjudged good, and that the said J. S. may further answer thereto &c. 8. Joinder. And the said J. S. 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 suffi- cient in law to bar and preclude the said Commonwealth from prosecuting the said indictment against the said J. S. ; and the said J. S. is ready to verify and prove the same, as the said court here shall direct and award : wherefore, inas- much as the said J. N. for the said Commonwealth hath not answered the said plea, nor hitherto in any manner denied the same, the said J. S. prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment specified. The joinder is the PLEAS, REPLICATIONS AND REJOINDERS. 831 same, if the demurrer he to a plea in abatement, except that it concludes with praying judgment, and that the said indict- ment may be quashed &c. 9. Special Pleas. And the said J. S. comes into court here and says, that the said Commonwealth ought not further to prosecute the said indictment against the said J. S. ; because he says, that &e., so proceeding to state the matter of the plea; and concluding thus : And this the said J. S. is ready to verify ; wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment above specified. 10. Replication. And hereupon J. N., Attorney-General of the said Com- monwealth, who prosecutes for the said Commonwealth in this behalf, says, that, by reason of any thing in the said plea of the said J. S. above pleaded in bar alleged, the said Com- monwealth ought not to be precluded from prosecuting the said indictment against the said J. S. ; because he says, that &c., so proceeding to state the matter of the replication, and concluding thus : And this the said J. N. prays may be in- quired of by the country. Or, if it conclude with a verifica- tion, then thus : And this the said J. N. is readj' to verify ; wherefore he prays judgment, and that the said J. S. may be convicted of the premises in the said indictment above specified. If the replication conclude to the country, the similiter is then added, in making up the record: " And the said J. S. does the like. Therefore let a jury come " &c., so proceed- ing with the award of the venire. But if the replication con- clude with a verification, the defendant must then rejoin. 11. Rejoinder. And the said J. S., as to the said replication of the said J. N. to the said plea by the said J. S., says, that the Com- monwealth by reason of any thing by the said J. N. in that replication alleged, ought not further to prosecute the said 832 CRIMINAL LAW, indictment against the said J. S. ; because he says that &c., so proceeding to state the matter of the rejoinder, and concluding thus: And of the said S. puts himself upon the country. Or, if it be necessary to conclude with a verification, the conclusion may be in the same form as in a plea. The two issues of former conviction or former acquittal and not guilty are distinct, and both cannot rightly be sub- mitted to a jury at the same time. " Charging them with both issues at once," said the English judges, " would lead to this absurdity, that they would be obliged to find upon both ; and yet, if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar." ^ Former acquittal or conviction must be specially pleaded, and is not admissible under the general issue of not guilty .^ And issue should be taken on such plea, either in law or to the country, and be regularly tried by the court or by the jury, and the decision thereon be made a matter of record. And such has been the practice in this Commonwealth.^ The St. 1864, ch. 250, § 4, enacts that " In any plea of autrefois acquit or autrefois convict, it sh all be sufficient for the defendant to state that, at a certain term of a certain court, which he shall set forth, he was lawfully convicted or acquitted, as the case ma)' be, of the same offence with which he is now charged." * The plea of former acquittal is allowed and sustained on a maxim of the common law, that no one shall be brought into jeopardy more than once for the same offence. But when an original indictment is quashed, abated, or adjudged bad on demurrer, or when judgment thereon is arrested for a defect therein, it is held that the accused has not thereby been in jeopardy, within the meaning of that maxim.^ 1 Kex V. Koche, 1 Leach C. C. Allen, 545. Commonwealth v. Bos- 135. " -worth, 113 Mass. 200. 2 Commonwealth v. Chesley, 107 * Commonwealth v. Gould, 12 Mass. 223. Gray, 173. Commonwealth v. Roby, 8 Judgment in Commonwealth v. 12 Pick. 502. Commonwealth v. Merrill, 8 Allen, 547. Sholes, 13 Allen, 554. Common- * Commonwealth v. Merrill, 8 wealth v. Farrell, 105 Mass. 189. PLEAS, REPLICATIONS AND REJOINDERS. 833 12. Autrefois Acquit.^ And the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, now come into court here and say that they ought not to be put to answer the said indictment, they having been heretofore, in due manner of law, acquitted of the premises in and by the said indictment above specified and charged upon them ; and for plea to the said indictment they say, that the said Common- wealth ought not further to prosecute the said indictment against them, because they say that heretofore, to wit, at the, here set forth the caption of the court, verbatim, the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, stood indicted, and were duly arraigned upon a certain indictment which charged the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, by the names and descriptions of Rob- ert Courtice Bird of Buckland Brewer in the County of Devon, and Sarah, the wife of the said Robert Courtice Bird of the same place, for that the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird &c., setting out the indictment in full. And the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, further say, that the said fel- ony and murder so charged upon them in the said last-men- tioned indictment as aforesaid, included divers assaults therein supposed and alleged to have been made and committed by the said Robert Courtice Bird and the said Sarah, the wife of the said Robert Courtice Bird, against the person of the said Mary Ann Parsons, in the said indictment named. And the said Robert Courtice Bird and the said Sarah, the wife of the said Robert Courtice Bird, further say, that they did then and there respectively plead not guilty to the said last- mentioned indictment, and that they were thereupon then and there, in due form of law, respectively tried upon the 1 This plea is taken from the Mr. Kingdon, whose well-known celebrated case of Regina v. Bird, abilities as a special pleader give it 5 Cox C. C. 12; Temple & Mew a peculiar value as a precedent. C. C. 438 nole; and was drawn by 63 834 CRIMINAL LAW. said last-mentioned indictment by a jury of the said county then and there in due form of law summoned, empanelled and sworn to speak the truth of and concerning the premises in the said last-mentioned indictment mentioned, and to try the said issues so joined between the said Commonwealth and the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, respectively as afore- said, and which said jury upon their oaths did then and there say that the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, respectively were not guilty of the premises in the said last-mentioned indictment specified and charged on them respectively as aforesaid, as the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, by their pleas to the said last-mentioned indictment respectively alleged, whereupon it was then and there considered by the said last-mentioned court that the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, of the premises aforesaid, in the said last-mentioned indictment specified and charged on them respectively as aforesaid, should be discharged and go acquitted thereof with- out day, as by the record of the said proceedings now here appears. And the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, further say, that the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, now here pleading, and the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, in the indictment aforesaid named and thereof acquitted as afore- said, are respectively the same identical persons respectively, and not other or different persons respectively, and that the said Mary Ann Parsons, in the said last-mentioned indictment named, is the same identical Mary Ann Parsons as is named in the indictment to which the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, are now here pleading ; and that the said assaults so included in the said felony and murder so charged upon the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, are now here pleading ; and PLEAS, REPLICATIONS AND REJOINDERS. 835 that the said assaults so included in the said felony and mur- der so charged upon them, the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, in the said indictment in this plea mentioned in this behalf, and therein supposed and alleged to have been made and commit- ted by them against the person of the said Mary Ann Parsons as aforesaid, are the same identical assaults, beatings, ill-treat- ings and woundings respectively as in the said indictment to which the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, are now here pleading, are respectively supposed and alleged to have been made, done, given and committed respectively by the said Robert Courtice Bird and the said Sarah, the said wife of the said Robert Courtice Bird, respectively, and not other or different. Wherefore, they pray judgment of the court here, whether the said Commonwealth will or ought further to prosecate, impeach or charge them, on account of the prem- ises in the said indictment, to which they are now here plead- ing, contained and specified, and whether they ought to answer thereto respectively, and that they may be dismissed this court without delay. 13. Replication. That they were not acquitted of felon j' and murder, includ- ing the same identical assaults, beating, ill-treating and wounding as in the indictment to which the said R. C. Bird and Sarah his wife have now pleaded modo et forma. 14. Autrefois Acquit.^ And the said William Sheen the younger, being brought to the bar of this court, says that he ought not to be put to answer the said indictment, he having been heretofore, in due manner of law, acquitted of the premises in and by the said indictment above specified and charged upon him ; and for plea to the said indictment, he says, that heretofore, to wit, at the Supreme Judicial Court, begun and holden at 1 Kex V. Sheen, 2 C. & P. 634, 635. Mr. Cresswell for drawing this plea; Burrough, J. : " We are obliged to it was very properly done." 836 CRIMINAL LAW. &c., here set forth the caption of the court, verhatim, the said William Sheen the younger was duly arraigned upon a cer- tain indictment, which charged him, the said William Sheen the younger, by the name and description of William Sheen the younger, of B. in the County of M., here set out the former indictment verhatim, concluding with the words, against the peace &c., to which said last-mentioned indictment he did then and there plead not guilty, and thereupon a jury then and there duly summoned, empanelled and sworn to try the said issue so joined between the said Commonwealth and the said William Sheen the younger ; upon their oaths did say, that the said William Sheen the younger was not guilty of the said felony and murder by the said indictment sup- posed and laid to his charge ; whereupon it was then and there considered by the said court that the said William Sheen the younger should go thereof acquitted without day, as appears by the record of the said proceedings now here remaining in court. And the said William Sheen the younger avers that the said William Sheen the younger, mentioned in the former indictment, and the said William Sheen the younger, who is charged by this present indict- ment, are one and the same person, and not divers and different persons, and that the said infant mentioned in the said first indictment, and the male child in this present in- dictment mentioned, are one and the same male child, and not divers and different children ; and the said William Sheen the younger further avers, that the felony and murder in the said former mentioned indictment mentioned, and the felony and murder in this present uadictment mentioned, are one and the same felony and murder, and not divers and different felonies and murders. And the said William Sheen the yomiger further avers, that the said male child, described by the name of Charles William Beadle in the said former indictment mentioned, was as well known by the said name of Charles William Beadle, as by any of the several names and descriptions of Charles William, William, Billy, Charles, or William Sheen, or a certain male bastard child, as he is in and by the present indictment described ; and this he is ready to verify. Wherefore, the said William Sheen the PLEAS, REPLICATIONS AND REJOINDERS. 837 younger prays the judgment of the court here, if he ought to be put further to answer this present indictment. And whether the said Commonwealth will or ought further to prosecute or impeach hira, the said William Sheen the younger, on account of the premises in this present indict- ment contained. And that he may be dismissed the court and go without day. 15. Replication. And T. S., the Attorney-General of said Commonwealth, who prosecutes for said Commonwealth on this behalf, says that the said Commonwealth ought not to be barred from further prosecuting the said indictment, because he says that William Sheen the j'ounger was not heretofore acquitted of the premises, charged in and upon him by this present indict- ment ; for, although true it is, that the said William Sheen the younger was acquitted upon the said indictment in his said plea mentioned, and although true it is, that the said infant in the said former indictment mentioned, and the male child in this present indictment mentioned, is the same child, and not another and different child ; yet for replication in this behalf, he says, that the said male child was not known as well by the name of Charles William Beadle, as by any or either of the several names by which he is named in the present indictment ; and this the said T. S., on behalf of said Commonwealth, prays may be inquired of by the country. 16. Autrefois Convict. And the said C. D. comes into court here and says, that the said Commonwealth ought not further to prosecute the said indictment, against the said C. D. in respect of the offence in the said indictment mentioned, because he says, that here- tofore, to wit, at the Superior Court begun and holden at &c., set forth the former judgment and conviction, verbatim, and then proceed as follows : as by the record thereof, in the said court remaining, more fully and at large appears, which said judgment and conviction still remain in full force and effect, and not in the least reversed or made void. And the said C. D. further says, that the said C. D., and the said C. D. so 838 CRIMINAL LAW. indicted and convicted are one and the same person, and not other or different. And the said C. D. further says, that the (burglary) of which the said C. D. was so indicted and con- victed as aforesaid, and the (burglary) for which he is now indicted, are one and the same (burglary), and not other or different. And this the said C. D. is ready to verify ; where- fore he prays judgment if the said Commonwealth ought further to prosecute the said indictment against the said C. D. in respect of the said offence in the said indictment men- tioned, and that the said C. D. may be dismissed and dis- charged from the same. And as to the felony and (burglary) aforesaid in the said indictment mentioned, the said C. D. says he is not guilty thereof, and therefore puts himself upon the country &c. 17. Replication. And hereupon J. H. C, Attorney-General of said Com- monwealth, who prosecutes for said Commonwealth in this behalf, says that by reason of any thing in the said plea of the said C. D. above pleaded in bar 'alleged, the said Com- monwealth ought not to be precluded from prosecuting the said indictment against the said C. D. ; because he says, that ' there is not any record of the said supposed conviction in manner and form as the said C. D. hath above in his said plea alleged ; and this the said J. H. C. prays may be in- quired of by the country &c. INDEX TO FORMS. Page Complaint to a Trial Justice. — Commencement and Conclusion . . 300 Warrant 301 Complaint to the Municipal Court of the City of Boston. — Commence- ment and Conclusion 302 Warrant 303 Subpoena 303 Bill of Costs 304 Judgment. — Fine or Imprisonment 305 Recognizance for Appearance at the Superior Court 307 Recognizance to Keep the Peace 809 Recognizance for Appearance at the Municipal Court for Further Examination 310 Recognizance to Prosecute an Appeal 312 Recognizance of Witness to the Superior Court 315 Record of Default of Principal and Surety 316 Warrant on Default 317 Mittimus for not Recognizing to Appear at the Municipal Court . . 319 Mittimus to Jail for further Examination for an Offence not Bailable . 320 Mittimus for not Recognizing to Appear at the Superior Court in Cases beyond Jurisdiction 321 Mittimus for a Witness for not Recognizing to Appear at the Superior Court 322 Mittimus for not Finding Sureties to Keep the Peace 323 Mittimus for not Recognizing on Appeal 324 Mittimus to Common Jail for not Paying Fine and Costs .... 325 Mittimus to Common Jail for a Term of Months 326 Mittimus to the House of Correction 327 Mittimus to House of Correction for not Paying Fine and Costs . . 328 Mittimus to the House of Industry 329 Mittimus for not Paying Fine for Drunkenness and Former Conviction . 330 Mittimus for not Paying Fine for Drunkenness 331 Mittimus to House of Industry for- Drunkenness and Former Con- viction 332 Mittimus for not Paying Fine or House of Industry for Drunkenness and Former Conviction 333 840 INDEX TO FORMS. Mittimus for not Paying Fine or House of Industry for Drunkenness . 334 Mittimus to the House for Juvenile OfiFenders 335 Mittimus to State Workhouse at Bridgewater 336 Mittimus for Reformatory Prison for \Vomen 337 Order to bring up a Prisoner for Further Examination 338 Capias for a AVitness 338 Habeas Corpus to Testify 339 Habeas Corpus to Answer 340 Order for the Discharge from Jail of Poor Convicts 340 Affidavit of Surety to Municipal Court 341 Affidavit of Surety to Superior Court 342 Acknov^ledgment of Satisfaction by Complainant for the Injury com- plained of 343 Declaration on a Recognizance 344 Summons 345 Inqubsts in Cases of Death by Violence. St. 1877, oh. 200. Notice to District-Attorney 346 Summons to Witnesses 346 Judge's Report 347 INDEX TO PRECEDENTS. ABDUCTION, PAGE of an unmarried woman under the age of sixteen years, for the purpose of effecting a clandestine marriage 357 of an unmarried woman for the purpose of prostitution . . . 358 ABORTION, indictment for administering a certain noxious thing with intent to procure miscarriage 362 for using instruments with intent to procure miscarriage . . . 362 for circulating an advertisement relative to procuring miscarriage, 368 against the principal for using an instrument to procure miscar- riage and against an accessory before the fact 364 ACCESSORY, against the principal in the second degree 370 against the accessory before the fact together with the principal •. 371 against an accessory before the fact the principal being convicted, 371 against an accessory before the fact to murder 372 against an accessory before the fact as for a substantive felony . 374 against an accessory after the fact 374 for soliciting a person to commit an offence 375 ADMINISTERING CHLOROFORM &c., for administering chloroform with intent to commit a larceny from the person 376 ADULTERY, by a married man with an unmarried woman 379 against both parties jointly 380 by an unmarried man with a married woman 380 AFFRAY, indictment for an affray 382 ARSON AND OTHER BURNING, indictment for arson at common law 386 indictment for burning a dwelling-house 386 for setting fire to a building whereby a dwelling-house was burnt, 386 for burning a building adjoining a dwelling-house whereby a dwelling-house was burnt 387 842 INDEX TO PRECEDENTS. ARSON AND OTHER BURNING, — confmuecf. for burning in the night-time a stable within the curtilage of a dwelling-house 387 for burning a city hall in the night-time 888 for burning a meeting-house in the daytime ....'... 388 for burning in the night-time a building erected for a dwelling- house and not completed or inhabited 389 for burning a vessel 389 for burning a dwelling-house with intent to injure an insurance company 389 for burning a stack of hay 390 ASSAULT AND BATTERY, for an assault not accompanied with a battery 395 for an assault and battery . ; 396 for an assault and false imprisonment 396 for throwing corrosive fluid with intent &c., at common law . . 397 for an assault upon a woman pregnant with child 397 for an indecent assault 397 for an indecent assault with intent to have an improper con- nection 398 for an indecent assault by other means 398 for a felonious assault with intent to maim 398 for a felonious assault with intent to murder 399 for a felonious assault with intent to commit a rape 399 for a felonious assault with intent to abuse a child under the age of ten years 400 for" a felonious assault upon a boy with intent to commit the crime against nature 400 for a felonious assault with intent to rob, being armed with a dan- gerous weapon 400 for assaulting and obstructing an officer in the discharge of his duties 401 on an officer while in discharge of his duties 403 on a police-officer of the city of Boston while in discharge of his duties 403 ATTEMPTS TO COMMIT CRIMES, for attempting to steal in a dwelling-house 407 indictment for an attempt to burn a dwelling-house 407 for an attempt to burn a dwelling-house in the night-time by breaking and entering a building and setting fire to the same . 408 for an attempt to commit a larceny from the person of an individual by picking his pocket 409 for an attempt to murder by drowning 410 for an attempt to murder by poisoning 410 for attempting to commit suicide 411 BARRATRY, indictment for being a common barrator 415 INDEX TO PRECEDENTS. 843 BASTARD CHILDREN, MAINTENANCE OF, complaint of a woman who is pregnant with a child 417 complaint of a woman who has been delivered of a bastard child . 418 warrant 419 bond 420 mittimus for not giving bond to appear and answer at the next term of the superior court 421 judgment where a woman is pregnant with a child 422 judgment where the woman has been delivered of a bastard child, 423 BILLIARD TABLES AND BOWLING-ALLEYS, for keeping a billiard table 425 for keeping a building furnished with bowling-alleys and suffering persons to resort thire for hire for the purpose of playing at bowls 425 BLASPHEMY, indictment for a blasphemous libel 428 for blasphemy, by blaspheming the holy name of God .... 428 BONFIRES AND FALSE ALARMS OF FIRE, for making a bonfire 432 for making a false alarm of fire 432 BRIBERY, indictment for attempting to bribe a constable 430 BURGLARY AND BRE.AKING AND ENTERING BUILDINGS, indictment for burglary and larceny 443 for burglary by breaking a dwelling-house, the offender being armed with a dangerous weapon 443 for burglary, larceny and assault 444 for burglary with intent to commit felony and assault .... 445 for burglary and rape 445 for burglary and larceny, the offender being armed with a dan- gerous weapon 446 for having entered a dwelling-house with intent to commit felony breaks such dwelling-house 446 for breaking and entering a building in the night-time with intent &c 447 for entering a building in the night time without breaking with intent &c., and putting the owner in fear 447 for breaking and entering a vessel in the daytime with intent &c., 448 for having in possession implements of burglarj' with intent &c. . 448 for being found by night armed with intent to break into a dwelling- house and commit a felony therein 449 BY-LAWS AND ORDINANCES 450 CEMETERIES AND BURIALS, complaint for cutting down a tree growing in a place of burial . 453 COMPOUNDING OFFENCES. indictment at common law for compounding a felony .... 454 844 INDEX TO PEECEDENTS. CONSPIRACY, for a conspiracy to obtain money by false pretences against the form of the statute 463 for a conspiracy by the maker of two promissory notes and two other persons fraudulently to obtain the said notes from the holder 464 for a conspiracy to procure the defilement of a female .... 467 for a conspiracy to charge a man with a rape with intent to obtain money 467 indictment for a conspiracy to procure by false means the recogni- tion upon the Stock Exchange of stock in a company not genuine 468 onspiracy to cause a marriage falsely to appear of record . . . 471 for a conspiracy to indict prosecutors for keeping a house of ill fame, and extorting money from them on condition that such prosecution should be abandoned 473 for a conspiracy to defraud a railway company by travelling with- out a ticket on some portion of the line, obtaining a ticket at an intermediate station, and then delivering it up at the ter- minus, as if no greater distance had been travelled over by the passenger than from such intermediate station to the ter- minus 478 for a conspiracy to induce a person of unsound mind to sign a paper authorizing the defendants to take possession of his goods 483 for conspiracy to defeat the course of public justice by giving false evidence, and suppressing facts on an inquiry into a charge of felony before a magistrate 485 for conspiring wrongfully to charge the inhabitants of a town with the maintenance of a child 487 for conspiracy to defraud intending emigrants of their passage- money by pretending to have an interest in certain ships . . 489 for a conspiracy by false representation, to induce a party to abandon a claim , 495 an indictment for conspiracy between bankrupt and others, feloniously and clandestinely to remove and conceal goods of said bankrupt, with intent to defeat creditors ; with counts for conspiring fraudulently to procure goods from tradesmen with the intent eventually of so removing and concealing them 496 CRUELTY TO ANIMALS, for beating a horse 502 for driving a horse when unfit for labor 502 for torture or cruelty of any kind 503 DISORDERLY HOUSE, for keeping a disorderly house 506 for keeping a bawdy-house , . . . . 606 INDEX TO PRECEDENTS. 845 DISTURBANCE OF PUBLIC MEETINGS &c., for disturbing a school 508 for disturbing a funeral procession by fast driving 508 for disturbing religious worship 509 for disorderly conduct at an election 609 DOGS, for keeping an unlicensed dog 514 DRUNKENNESS, complaint for drunkenness 519 common drunkard 519 another precedent for the same 519 DUELLING AND CHALLENGING TO FIGHT, for murder in a duel fought without the State 510 for sending a written message to a person to fight a duel . . . 511 for posting another for not fighting a duel 612 ELECTIONS, against a person for voting, knowing himself not to be a qualified voter 622 against a person for giving in more than one ballot at one time of balloting 523 for attempting to influence a voter by threatening to discharge him from employment 623 EMBEZZLEMENT, indictment against a clerk for embezzlement 531 against the president and cashier of a bank for embezzlement . 532 against a carrier for embezzlement 683 another precedent for the same 534 against the treasurer of an incorporated company 635 EMBRACERY, indictment for embracery by persuading a juror to give his verdict in favor of the defendant, and for soliciting the other jurors to do the like 538, 539 ESCAPE, indictment against a constable for a negligent escape .... 543 another precedent for the same 544 for not conveying an offender to prison 645 indictment for escaping out of the custody of a constable . . . 546 indictment against a jailer for a voluntary escape 547 indictment for breaking prison 648 for conveying instruments to a prisoner in jail to enable him to escape 549 EXTORTION, indictment against a constable for extortion 652 FALSE PERSONATION, • for obtaining goods by falsely personating another 554 846 INDEX TO PRECEDENTS. FALSE PERSONATION, — conimuerf. for falsely assuming to be a justice of the peace 555 for falsely assuming to be an officer 555 indictment for personating bail 556 FALSE PRETENCES, indictment at common law for selling by false scales 568 obtaining goods by false pretences 569 indictment for presenting a false check 570 indictment against two defendants for obtaining goods by falsely pretending that one of them was of a certain trade and a respec- table and responsible person ; with counts for conspiracy . . 577 indictment against a defendant for obtaining money by falsely pre- tending that he had authority from a creditor to receive a sum of money from a debtor ; with counts for soliciting the debtor to conspire with him falsely to pretend to the creditor that the debt had been discharged 682 indictment for obtaining goods by false pretences, the pretence being that the defendant was bon& fide carrying on a business in a particular, shop, and that he required goods in the regular course of such business ; whereas, in fact, the shop was taken with no other object than fraudulently to obtain credit . . . 586 for obtaining money on a false representation respecting the value and history of a horse which the prisoners sold to the prose- cutor 589 for obtaining money by falsely pretending that certain property of the defendant was unincumbered and that he himself was free from debts and liabilities, 592 against a defendant for obtaining money by falsely pretending that he had then purchased certain property which it was necessary he should immediately pay for 595 obtaining money by means of a promissory note of a bank which has stopped payment 698 obtaining goods by check on a bank where the defendant had no eiTects 699 obtaining money by false pretences as to the name and circum- stances of the defendant 600 obtaining money by false representations as to the employment and condition of the defendant 601 procuring the defilement of a girl under the age of twenty-one years by false pretences 601 obtaining a horse by false representation 602 obtaining goods by falsely pretending that the defendant was a trader in solvent circumstances 603 obtaining money by false allegations of the delivery of goods . . 60i obtaining money by false pretence as to the amount due for car- riage of a parcel 604 obtaining money by rendering a false account of work done by third parties 605 INDEX TO PRECEDENTS. 847 FALSE PRETENCES, — continued. obtaining money by falsely pretending that a member of a friendly society was indebted to the society 606 obtaining money by means of a false warranty of the weight of goods 607 falsely pretending that goods were of a particular quality . . . 607 attempting to obtain money by means of false pretences . . . 608 FORCIBLE ENTRY AND DETAINER, for forcible entry and detainer at common law 610 for a forcible entry into a freehold on Stat. 5 Rich. II. ch. 8 . . 611 indictment for a forcible entry into a leasehold &c. on Stat. 21 Jac. I. ch. 15 612 for a forcible detainer on Stat. 8 Hen. VI. ch. 9, or 21 Jac. I. ch. 15, 612 indictment for forcible entry, riot, affray' and assault and battery . 613 FORGERY AND COUNTERFEITING, forgery at common law 628 for forging a promissory note 628 for uttering and publishing as true a forged promissory note . . 628 for counterfeiting a bank-bill 629 for having in possession at the same time ten or more counterfeit bank-bills with intent to utter and pass the same as true . . . 630 for passing a counterfeit bank-bill 631 for having in possession a counterfeit bank-bill with intent to pass the same 631 for making a tool to be used in counterfeiting bank-notes . . . 633 for having in possession a tool to be used in counterfeiting bank- notes with intent to use the same 633 for counterfeiting current coin 633 for having ten counterfeit pieces of coin with intent to pass the same 634 for having less than ten counterfeit pieces of coin with intent to pass the same as true 634 for uttering and passing counterfeit coin 635 for having in possession tools for coining with intent to use the same 635 for counterfeiting foreign coin . ." 636 indictment for forging and uttering a certificate of character with a view to be appointed a constable in the police force of the city of London T . . 639 FORNICATION, indictment for fornication 644 FRAUDULENT CONVEYANCE OF REAL AND PERSONAL PROPERTY, fraudulent conveyance of personal property 645 indictment for concealing mortgaged personal property . . . 646 fraudutent conveyance. — Property held upon conditional con- tract 647 848 INDEX TO PRECEDENTS. FRAUDULENT CONVEYANCE OF REAL AND PERSONAL PROPERTY, — continued. fraudulent conveyance of real property 648 indictment for a fraudulent conveyance 649 GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS, for keeping a common gaming-house 662 another precedent for the same 662 against an innholder for suffering persons to resort to his premises to use the game or sport of cock-fighting 663 for being present at an unlawful game 664 for taking part in an unlawful game 665 for fraudulently obtaining property by a game of cards .... 667 for winning money at cards by fraud 667 HIGHWAYS, indictment against a town for not repairing a highway .... 670 HOISIVVAY OPENINGS, complaint 672 HOMICIDE, indictment for murder 685 conclusion in an indictment for manslaughter 686 indictment for manslaughter charging that death was caused by starvation and exposure 686 for murder by striking with an axe ..." 687 for murder by poisoning 688 for manslaughter against the engineer of a steamboat, for so neg- ligently managing the engine that the boiler burst, and thereby caused the death of a passenger 689 for manslaughter, by neglect to give a proper signal to denote the obstruction of a line of railway, whereby a collision took place and a passenger was killed 697 for manslaughter against the driver and fireman of a railway en- gine for negligently driving against another engine whereby the deceased met his death 705 for murder by stabbing with a knife 716 for murder by inflicting a blow on the head with a hammer . . 717 for murder by striking, kicking &c 718 for murder in some way and manner &c. unknown 718 HOUSES OF ILL FAME, for keeping a house of ill fame 722 for letting a house to be kept for a house of ill fame .... 722 INCEST, indictment for incest 723 INFANT, NEGLECT TO PROVIDE FOR, indictment against a parent for neglecting to provide for his Infant child 724 INDEX TO PRECEDENTS. 849 INNHOLDERS, BOARDING-HOUSE KEEPERS AND THEIR GUESTS, fraudulently obtaining entertainment at a hotel 726 LARCENY, for simple larceny at common law 733 for larceny from the person 733 for unlawfully taking and driving a horse 733 for larceny of property annexed to the realty 734 for stealing in a building that is on fire 73J: for stealing property removed in consequence of alarm caused by fire 734 for larceny in a building 735 for breaking and entering a building in the daytime with intent to commit larceny 735 LEWDNESS AND LASCIVIOUS COHABITATION, indictment at common law for exposing the person 738 for lewd and lascivious cohabitation 738 LIBEL, indictment for a libel 743 indictment for slanderous words spoken to a magistrate .... 743 plea to an indictment for a libel, justifying the publication on the ground of its truth and benefit to the public 744 LORD'S DAY, OBSERVANCE OF, for keeping a shop open op the Lord's day 748 for working on the Lord's day 748 for being present at gaming on the Lord's day 748 for gaming on the Lord's day 749 for entertaining &c. on the Lord's day 749 LOTTERY, indictment for setting up and promoting a lottery 751 MAINTENANCE, indictment for maintenance 752 MALICIOUS MISCHIEF AND MALICIOUS INJURY TO REAL ESTATE, for injuring a dwelling-house by the explosion of gunpowder . _ . 754 for causing an explosion in a dwelling-house with intent &c. . . 755 for defacing a dwelling-house by throwing filthy substances into it, 755 for killing a horse 755 for exposing a poisonous substance with intent that it should be taken and swallowed by a horse 755 for destroying the machinery of a water-mill 756 for cutting down an ornamental tree 756 for breaking glass in a building 756 for breaking down a fence _ . . . 757 for b) eaking down a guideboard 757 for cutting down a timber tree 757 54 850 INDEX TO PEECEDBNTS. MALICIOUS MISCHIEF AND MALICIOUS INJURY TO REAL EST4TE, — continued. for entering an orchard on the Lord's day with intent &c. . . ■ 758 for malicious injury to ice taken as an article of merchandise . . 758 for entering an orchard and stealing fruit 759 malicious injury to real estate 759 MAYHEM, indictment for mayhem by slitting the nose 760 NUISANCE, for carrying on an offensive trade 761 indictment for storing large quantities of naphtha in such places as to be dangerous to persons and property 762 OBSCENE BOOKS, for printing, publishing and distributing an obscene paper . . . 769 for selling an obscene book, omitting to describe it, and averring the reason of such omission 769 for having in possession an obscene paper with intent to introduce it into families 770 OFFENCES AGAINST THE PUBLIC HEALTH, for selling unwholesome provisions 767 for adulterating bread for the purpose of sale 767 for selling adulterated medicine 767 for selling adulterated milk 768 OFFICER, REFUSING TO AID, indictment at common law for refusing to aid a constable in the execution of his duty 765 PERJURY, for jierjury against a witness who, on a former trial, had sworn that a note was given to the plaintiif for the purpose of being discounted merely, and not in payment of a debt 774 for perjury before a grand jury 779 indictment for perjury 782 POLYGAMY, indictment for polygamy 786 for,polygamy, by continuing to cohabit with a second wife in this State 787 PREVIOUS CONVICTION, indictment for a subsequent offence after a previous conviction . 788 RAILROAD CORPORATIONS, for attempting to obstruct an engine and carriage passing upon a railroad 790 for obstructing engines and carriages &c 790 for throwing a stone into a railroad carriage with intent &c. . .791 indictment against a railroad corporation for causing the death of a passenger by reason of the gross negligence of its servants . 792 INDEX TO PRECEDENTS. 851 RAPE, indictment for rape 795 for carnally knowing and abusing a female child under the age of ten years 795 RECEIVING STOLEN AND EMBEZZLED PROPERTY, indictment against a receiver of stolen property as for a substan- tive felony 796 against the principal and receiver of stolen goods 796 against the principal and receiver of embezzled property . . . 797 RESCUE, indictment for the rescue of a felon from a constable 799 RIOT, for riot and assault 801 for riot and tumult 801 ROBBERY, indictment for robbery at common law 803 for robbery, the prisoner being armed with a dangerous weapon . 804 for robbery, the prisoner being armed with a dangerous weapon, and striking and wounding the person robbed 804 for robbery, not being armed with a dangerous weapon .... 805 SALE OF INTOXICATING LIQUORS, complaint for a single sale 806 for keeping a common nuisance 806 for keeping a public bar 807 SEARCH-WARRANT, stolen goods 808 gaming implements 810 gaming implements and persons 811 SEPULCHRES OF THE DEAD, for digging up and carrying away a dead body 813 for disinterring and removing a dead body without permission . 813 SHIPPING AND PILOTAGE, complaint for boarding a vessel 815 SLUNG SHOT, for being armed with slung shot when arrested while committing a burglary 816 for selling slung shot 816 SODOMY AND BESTIALITY, indictment for sodomy 817 indictment for bestiality 817 STREET RAILWAY CORPORATIONS, complaint for obstructing a horse railway 818 for evading the payment of fare 819 SURETIES FOR THE PEACE AND GOOD BEHAVIOR, complaint for sureties to keep the peace 822 852 INDEX TO PRECEDENTS. THREATENING WITH INTENT &c., for sending a letter threatening to accuse a person of a crime . . 823 for sending a letter threatening to burn a dwelling-house . . . 824 for attempting to extort money by verbally threatening to accuse another of a crime 824 WITNESS, indictment at common law for dissuading a witness from appearing before a court pursuant to a summons 825 PLEAS, REPLICATIONS AND REJOINDERS, J^ plea to the jurisdiction 827 replication to the same 828 plea of misnomer of the christian name 828 replication 829 demurrer to an indictment 829 joinder 829 demurrer to a plea in bar 830 joinder 830 special pleas 831 replication 831 rejoinder 831 autrefois acquit 833 replication 835 autrefois acquit 835 replication 837 autrefois convict 837 replication 838 GENERAL INDEX. ABBREVIATIONS, Page not to be used 24 ABDUCTION 856 ABORTION 359 ACCESSORY 366 in manslaughter 368 ACCOMPLICES, the law and practice as to 185 ADDITION, of defendant 31 of person injured 34 ADULTERY 377 AFFRAY 382 ' ' AFORETHOUGHT," meaning of 673 "AFTERWARDS," use of, in pleading 94 AGGRAVATION, matters of, not essential to conviction 394 note AIDER BY VERDICT, rule of pleading at common law 97, 459 ALIAS DICTUS, in pleading 30 ALMANAC, when the judge will refer to 209 note ALTERNATIVE ALLEGATIONS, bad for uncertainty 49 when offences may be charged conjunctively 51 53 "AND," may be expressed by "& " 24 note 854 GENERAL INDEX. ANIMALS, CRUELTY TO 602 ANNE, STATUTE OF, does not apply to criminal cases 167 APPEALS 224 ARGUMENTATIVENESS, pleadings must not be argumentative 48 ARRAIGNMENT, formalities of 160 ARREST 128 cannot be made on mere suspicion 4 ARREST OF JUDGMENT 97 ARSOX 383 ASSAULT, meaning of 894 ■when it must be alleged to be made feloniously . 687 note, 804 note ASSAULT AND BATTERY 391 ATTEMPTS TO COMMIT CRIMES 405 AVERMENTS, HOW MADE 27 BACON, LORD quotation from 212 note BAIL AND RECOGNIZANCE 233 " BANK-BILL," meaning of 629 note "BANK-NOTE," meaning of 629 note BARRATRY 412 BASTARD CHILDREN, MAINTENANCE OF 417 BATTERY 391 BESTIALITY 817 BILL OF PARTICULARS, law and practice of 414, 463, 628 BILIIARD TABLES 426 BLASPHEMY 427 BONFIRES 432 BOOKS, when admissible in evidence 209 BOWLING-ALLEYS 425 BREAKING AND ENTERING BUILDINGS 433 BRIBERY 430 BROWNE, SIR THOMAS, quotation from 452, 453 note GENERAL INDEX. 855 "BUILDINGS," meaning of 605 note BUILDINGS, BREAKING AND ENTERING 433 BURGLARY 433 BURIALS 452 BURNING OF BUILDINGS 383 BY-LAWS AND ORDINANCES 450 "CARNALLY KNOW," meaning of 794 CEMETERIES 452 CERTAINTY, in pleading 23, 24, 41, 457-460, 677 CERTIFYING PROCESS AND RETURNING RECOGNI- ZANCES 286 CHALLENGING TO FIGHT 510 CHLOROFORM, ADMINISTERING WITH INTENT &c. . . 376 CHOATE-S EULOGY ON WEBSTER, quotation from 372 note CLERICAL ERRORS, do not vitiate 46 COLERIDGE, SIR JOHN TAYLOR, on the advantages of the viva voce examination of witnesses . . 203 COMMENCEMENT OF COMPLAINT 27 COMMITMENT 260 COMPETENCY OF WITNESSES 175 COMPLAINANT, right and duty of 4 COMPLAINT, defiiiiiion of . 25 issuing of 14 form of 23 COMPLAINTS AND INDICTMENTS ON STATUTES ... 65 how pleaded gg COMPOUNDING OFFENCES 6, 454 CONCLUSION OF COMPLAINT 96 CONCLUSIONS OF LAW, need not be pleaded gQ CONFESSIONS 189 CONJUNCTIVE ALLEGATIONS, ■when allowable 51 53 CONSPIRACY 4gg 856 GENERAL INDEX. CONSTABLE, right of, to arrest without a warrant 132, 138 Contempt, power to punish for 157 CONTINUANDO, rule of, in pleading 36 note " CONVICTION," meaning of • 171 " CORRUPTLY," in an inJictment for perjury 773 note COSTS, TAXATION OF 273 COUNT, each count a separate indictment 95 reference from one to another 95 COUNTERFEITING 615 COVERTURE, how far a protection from criminal prosecution 17 CRIME, definition of . 1 note CRIMINAL LAWS, object of ... . 5 " CROSS-EXAMINATION," meaning of 202 note CRUELTY TO ANIMALS 502 CUMULATIVE OFFENCE, how charged 51, 63 DEAF AND DUMB PERSONS, when competent witnesses 179 DEFENDANT, name and addition of 29 DEMOSTHENES DE CORONA, quotation from 617 note DEMURRER, no distinction between a general and a special ....... 166 DICTIONARIES, when admissible in evidence 209 DISJUNCTIVELY, an indictment charging a party disjunctively is void 49 DISORDERLY HOUSE 604 DISTURBANCE OF PUBLIC MEETINGS &c 508 "DIVERS," when a sufficient allegation 786 note GENERAL INDEX. 857 DOGS 513 DOUBLE PLEADING, not admissible 1"' DRUGS, ADMINISTERING WITH INTENT &c 376 DRUNKENNESS 515 " DUE PROCESS OF LAW," definition of 23 note DUELLING 510 "DULY," meaning of '^7 '"^^^ DUPLICITY 52 ELECTIONS 521 EMBEZZLEMENT 524 EMBRACERY 538 "ENACTING CLAUSE," meaning of 74 ERASURES, to be avoided 24 ESCAPE 541 EXAMINATION AND TRIAL 152 EXAMINATION OF WITNESSES 202 "EXAMINATION IN CHIEF," meaning of 202 note " EXCEPT," meaning of 75 EXISTING FACT, in false pretences 559 EXTORTION 561 FACTS, IGNORANCE OF, when a defence 358 note FACTS WITHIN THE KNOWLEDGE OF THE DEFENDANT, need not be pleaded 61 FALSE PERSONATION 558 FALSE PRETENCES 557 " FALSELY," in an indictment for perjury 773 note, 774 note " FELONIOUSLY," omission of, in an indictment 91, 163 FELONY, defined by statute 136 858 GENERAL INDEX. FIGURES, not to be used 24 exception to this rule 24 FIRE, FALSE ALARMS OF 432 FORCIBLE ENTRY AND DETAINER 610 FORGERY 615. FORMAL DEFECTS, in pleading 164, note, 853 FORNICATION 644 FRAUDULENT CONVEYANCE OF REAL AND PERSONAL PROPERTY 645 GAMING, GAMING-HOUSES AND GAMING IMPLEMENTS, 659 GENERAL ISSUE, the plea of 174, 827 GRAMMATICAL LANGUAGE, how regarded in pleading 46 GRAND JURY, number of 286 note GUILTY POSSESSION, of stolen property 122 note HIGHWAYS 669 HOISTWAY OPENINGS 672 HOMICIDE 673 HOUSES OF ILL FAME 720 IDEM SONANS, rule as to 33 a question for the jury 33 INDICTMENT, definition of 23 note when the word applies to complaints 40 note laying on file 252 " INDORSED," meaning of 623, 628 note INDUCEMENT, how pleaded 46 INFANTS, liability of, for crime 16 competency of, as witnesses 179 'cannot bind themselves 245 note IGNORANCE OF FACTS, when a defence 358 note GENERAL INDEX. 869 IGNORANTIA FACTI EXCUSAT 158 INNUENDO, the proper office of 741 "INSTANTLY," meaning of 39 note INTENT, allegation of 61 INTERLINEATIONS, to be avoided 24 INTOXICATING LIQUORS, SALE OP 806 JOINDER OF COUNTS 93 JOINDER OF DEFENDANTS 92 " JUDGMENT," meaning of 172 " JUNIOR," no part of the name 31 "JURISDICTION, WANT OF," meaning of 158 note KNOWLEDGE, averment of 64 LAW, IGNORANCE OF, no excuse for its violation 380 note, 787 note MACAULAY, quotation from 189 note MAGISTRATES, liability of, to an action 13 note MAINTENANCE OF BASTARD CHILDREN 417 " MALICE AFORETHOUGHT," meaning of 673 MARRIED WOMEN, liability of, for crime 17 cannot bind themselves 245 note MEDICAL JURISPRUDENCE, books on, cannot be read to the jury 209 MIDDLE NAME, how pleaded 30 MISDEMEANOR, in an indictment against several all are principals 267 MISNOMER, how taken advantage of 29 MOTION IN ARREST OF JUDGMENT 97 860 GENERAL INDEX. MOTION TO QUASH, may be made after plea pleaded 163 imperative on the court to entertain 164 NOLLE PROSEQUI, duplicity cured by 56 who may enter a nol. pros 174 NOLO CONTENDERE, plea of 161 "NOT GUILTY," the plea of 174,827 OATH, how administered 15 OMNIA RITE ACTA PRESUMUNTUR . . 240 note, 247 note, 271 " OR," meaning of, in pleading 60 ORDINANCES 460 " OTHER," use of, in pleading 94 "OTHER CRIME," meaning of 151 note PARDON, when it may be pleaded 174 PARTICIPLE, averment by 28 "PASS," meaning of 625 "PERJURY," not a word of art 773 PERSON INJURED, NAME OF 32 PERSONAL PROPERTY, description of, in an indictment 81 PERSONAL PROPERTY, FRAUDULENT CONVEYANCE OF, 645 PHRASES, construction of 354 PLEADING DOUBLE, not admissible '. . 167 PLEADING OF EXCEPTIONS AND PROVISOS IN STAT- UTES 72 PLEADINGS, how construed 25 qualities of 352 precision in 363 GENERAL INDEX. 861 PRECEDENTS, value of 352 note PRESUMPTIONS OF LAW, need not be pleaded 60 PRINCIPALS, in the first and second degree 366 PROCESS, APPLICATION FOR 1 PROCESS, CERTIFYING 286 PROCESS, EXECUTION OF 128 PUBLIC MEETINGS, DISTURBANCE OF 508 PUNCTUATION, not part of a statute 353 note "PURPORT," meaning of 78 "QUANTITY, A," when a sufficient allegation . 736 note QUI TAM INFORMATIONS, defined 129 note QUOTATION-MARKS 78 REAL AND PERSONAL PROPERTY, FRAUDULENT CON- VEYANCE OF . 645 RECOGNIZANCE 233 RECORD, definition of 295 a justice's court when a court of record 295 note REPUGNANCY 55 ROMAN CATHOLIC PRIESTS, whether compellable to disclose confessions 184 note " SAID," what it imports 32 SALE OF INTOXICATING LIQUORS 806 "SCILICET," use of, in pleading . , 60 SEAL, necessary to a warrant 106 SEARCH-WARRANT 110 "SENTENCE," meaning of 172 SHAKESPEARE, quotation from 405 note SODOxMY AND BESTIALITY 817 862 GENERAL INDEX. SPECIAL DEMURRER, no distinction between a general and a special 166 STATUTE, pleading, counting upon, and reciting a statute 65 note STATUTE OF LIMITATIONS, must appear in the indictment that the prosecution was com- menced within the statutory period 37 STOLEN PROPERTY, recent possession of 122 note SUBSTANTIAL DEFECTS, in pleading 161, note SUBSTANTIVE CRIME, sufficient to prove, without proving the entire charge .... 51 SUBSTANTIVE FELONY, meaning of the term 796 note SURPLUSAGE 66 TAXATION OF COSTS 273 TECHNICAL TERMS, in pleading 90 TECHNICAL WORDS, construction of 354 " TENEMENT," meaning of 504 "TENOR," meaning of 78 TERMES DE LA LEY, a work of high reputation 87 "THEN AND THERE" 35 TIME AND PLACE — "THEN AND THERE" 35 "TO" AND "FROM," construction of 669 note TRIAL 152 " UNLAWFULLY," meaning of 92 " UNLESS," meaning of 75 UNNECESSARY AVERMENTS 91 UNWHOLESOME FOOD 767 VENUE, in the margin of an indictment 27 VERBA RELATA IN ESSE VIDENTUR 75 GENERAL INDEX. 863 VERDICT, AIDER BY, rule of pleading at common law 97, 459 VIDELICET, effect of, in pleading . 60 WARRANT 99 "WHILST," averment by the word 29 WIFE, competency of, as a witness 182 "WITH A STRONG HAND," meaning of 611 note "WITH FORCE AND ARMS," unnecessary in an indictment 91 " WITHOUT," . meaning of 77 WITNESSES, competency of 5, 175 examination of 202 WORDS, construction of 354 WORDS SPOKEN, how pleaded 81 WOUND, dimensions of, need not be stated 682, 688 note WRIT OF ERROR, when it lies 45 WRITTEN INSTRUMENTS, how pleaded 77 Cambridge : Press of John Wilson & Son.