QJorttfU ICam ^rl|0fll ICthraty Cornell University Library KF9219.B62 1892 3 1924 020 147 447 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020147447 NEW COMMENTARIES ON THE CRIMINAL LAW UPON A NEW SYSTEM OF LEGAL EXPOSITION BY JOEL PRENTISS BISHOP HONOBABT DOCTOR JOKIS UTBIUSQnE OF THE UNIVEKSITT OF BBBNB EIGHTH EDITION I BEING A NEW WOKK BASED ON FOEMEB EDITIONS IN TWO VOLUMES Vol. I. GENERAL AND ELEMENTARY COMPLETE IN ITSELF CHICAGO T. H, FLOOD AND COMPANY 1892 ^/^'4m Entered according to Act of Congress, in the year 1865, by JOEL FBESTISS BISHOP, In the Clerk's Office of tlie District Court of the District of Massachusetts: Entered according to Act of Congress, in the year 1868, hy aOEL FBEHTISS BISHOP, In the Clerk's Office of the District Court of the District of Massachusetts; Entered according to Act of Congress, in the year 1872, by JOEL PBENTISS BISHOP, In the Office of the Librarian of Congress, at 'WasUngton; Entered according to Act of Congress, in the year 1877, by JOEL FBEKTISS BISHOP, In the Office of the librarian of Congress, at Washington; Entered according to Act of Congress, in the year 1882, by JOEL FBENTISS BIBHOP, In the Office of the Librarian of Congress, at Wasliington; Copyright, 189S, By Joel Fbentiss Bishop. KF TJniveiisitt Pkess : John Wilsok and Son, Cambbidqe. PREFACE. In 1856 was published the first instalment of my writings on the law of crime. It consisted of the first volume of this work on the " Criminal Law," to which a second was afterward added. There were indexes of the cited cases and of the subjects, and in other respects it was, as said on the title-page, " complete in itself." It was intended to serve the double purpose of a book for students and the introductory volume of a fuller exposition for the courts and practitioners. Afterward I suffered myself to be persuaded into relinquishing my own judgment, and in a new edition of the finished work presenting this volume simply as " Volume I." In returning now to the original form, I but reassert the conviction of my entire life of authorship. Let me explain. It is impossible for the student to read in a proper manner every book which will be useful in practice. He must select, or read in a way doing him more harm than good. I do not mean that he cannot often, and with profit, look through a book which he has not time to read- Then, how shall he select his reading ? I cannot better answer this question than by stating the very case before us. The first vol- ume of this work, separately indexed and made to be sold separately, embraces substantially all the principles of the criminal law, con- sidered apart from the pleading, evidence, and practice, though many of them are repeated or refen-ed to in the second volume. That volume consists of the minuter expositions of forty-nine specific crimes, whereof a general view, with the leading principles governing them, appears in the first volume. If the practitioner is consulted on a criminal-law question, the chances are just one in forty-nine that it will involve matter stated in a given chapter of the second volume. VI PEEPACE. Then, though it would be highly convenient to be familiar with that volume, it is quite possible for him to get on by simply consulting for the occasion the particular chapter therein. But whatever the ques- tion, he cannot duly take any step toward its solution without having already in his mind the entire elements of the criminal law, whereof the first volume is an embodiment. It will matter not that in his State there are criminal-law statutes, or that they are called a Code. The statutes are everywhere, even in States where there are no common- law crimes, interpreted in connection with the unwritten law, without a knowledge of which it is impossible for any mortal practically to understand them. So that in each and every individual case he will be required to use the learning conveyed, not simply in one of the chapters of the first volume, but in nearly every one of them, and in almost every page. The practitioner who has not acquired this knowl- edge cannot get on by simply consulting here and there a passage found by help of the index. And to attempt it will be to inflict a wrong upon the client, who pays his money for fair and honest treat- ment. Herein we have an illustration of what every lawyer was compelled to learn before he became fit for practice ; namely, that he cannot carry the entire body of the law in his memory, yet that he must carry a part of it, and must know where to look for the rest. And, what is the special truth, he must select wisely the part to be carried. There are students who propose to limit their practice to civU causes, and who have the idea that therefore any study of the criminal law would be superfluous, and there are even instructors who will en- courage the delusion. Equally in the medical profession as in ours, there are specialists, but one would have to look into the very slums of quackery to find a doctor who deemed' himself competent to pre- scribe for one part of the human body while knowing nothing of the rest. Indeed, this sort of abnegation of common sen^e is the almost exclusive glory of the legal profession. As the same blood courses through every part of the human body, so does the same legal reason — in other words, the same law — through our entire legal System. And though a lawyer should resolve to take his practice in the criminal field, he must first learn the civil ; or in the civil field, he must first learn the criminal. True, in all the walks of life, and emphatically the legal is no exception, there are men who undertake, and are actually employed about, that for which PREFACE. Vii they are not qualified ; but the fact that one does a thing is never ac- cepted as proof that he is fit for it. "While this first volume presents the elements of criminal juris- prudence, it lays also the corresponding ones of the civil beside them, so that the learner is taught the latter with the former, and has a com- parison of the two. In this view, if there were no other, the time spent upon this volume by him who is to practise only on the civil side is wisely employed. The last forty-one pages of the first volume consist of matter properly belonging in the second, placed therein to balance the vol- umes in bulk. In other respects, it is condensed to the smallest di- mensions practicable. A smaller book for students could not well be made without omitting fundamentals essential to its usefulness. If attempts to this end have not succeeded, it was not from lack of ability in those who made them, but because in the nature of the case success was impossible. It is perceived that on the title-page of this edition I term these volumes, in departure from the words in the prior editions, " new commentaries" on " a new system of legal exposition." In the Preface and Introduction to " Marriage, Divorce, and Separation," published a little more than a year ago, in the title whereof the same words appear, I explain why I employ them. That was substantially a new work, based on my former " Marriage and Divorce," and was the culmination of the labors of more than forty years devoted to evolving and perfecting a system of legal writing more effective than before had commonly been employed by authors in our profession. The present edition of " Criminal Law " is likewise almost a new work ; I contemplated following the same course with it as with the other, but when I came to the preparation I found on a careful examination that the arrangement admitted of little or no improvement, therefore that it would be unwise to change its order or the numbering of the sections. Still it is, like the other work, the culmination of the " new system." And it is all written from the standpoint of to-day, pre- cisely as though the author had never before produced anything on the subject. It is an effort, which I believe to be final, in eliminating redundancies and inaccuracies in the style, and in perfecting the doc- trines and their forms. As to the cases,, it brings them down to as late a period as was consistent with accuracy. There are a few more than two and a half thousand added ones, but I have not deemed it VUl PREFACE. important accurately to count them. Some of them are cited to the old propositions, and I have based new enunciations of doctrine on others. What is this " new system," how it was evolved and perfected, and the demonstration of its reliability, and of the overwhelming necessity for it, are stated in the Preface and Introduction to " Mai-riage, Divorce, and Separation " ; and in the text of that work throughout it is in numerous passages explained and illustrated. Any reader who feels an interest in this matter will find it there, and I do not propose to encumber this Preface with it, except to repeat that a familiarity with it is fully as important to the practitioner as to the author ; in- deed, that no competent practitioner, duly and industriously following it, will fail of being a blessing to his clients, and of accumulating — what is impossible to any legal author — a pecuniary competency. To the reader of those explanations, it is obvious how completely I was aware that in the ranks of our profession there are men who, if we may trust their own consciousness of superiority, can see with a single flash of their understandings, and with no actual looking into the facts, further than another can penetrate in a lifetime devoted to the particular thing. So that, as I am told, though I have given no personal attention to this matter, there are those who, with the utmost profundity of sound, and without using their eyes or the thinking part, have pronounced what I set down in that work on the present subject arrogant and egotistical. It will be borne in mind that I said nothing in the way of opinion or theory. I simply stated facts, and demonstrated their correctness by other facts, open to the inspection of every man, and invited all to look. And I told the reader how to find still further facts carrying the same proofs. I had been inves- tigating this matter for over forty years, constantly in the light of the illuminating facts. I claimed nothing for myself, but all for truth ; and if I had lived and waited a thousand years before calling profes- sional attention so directly to this subject, and if the facts had been multiplied a thousandfold, I could have brought to vi6w nothing more conclusive than they presented. Now, if I had not lived many years in the world, and observed much and thought much, I should deem it blasphemy to accuse the Almighty of having created a single human being who could walk among his fellows with the reputation of sanity, and without looking though invited, and without knowing what was the real truth in a PREFACE. ix single instance, pronounce all a myth, — thus lifting up an egotism ponderous beyond conception, till it burst like a spent sky-rocket. Yet if the Almighty needed any vindication from man, it would be easy to make plain His wisdom and goodness in this very thing. His universe would be a stagnant pool, breeding pestilence throughout all the spaces, had He not made it in a wsiy to be perpetually in motion. Therefore, with us, action does and must precede looking and thinking. And this proposition implies, what is true, that all men have opinions upon all questions concerning which they have occasion to act, while yet tjiey have reasoned upon few or none of them, and their beliefs, whether right or wrong, are baseless. And they are fully as con- fident of a baseless belief as if they had a reason for it, — often more so. Balancing this, on the other side, there is upon every man the duty to look and think, and as rapidly as possible to reform or confirm beliefs, and place all on a basis of reason. And the man who, grown to maturity, refuses to do this, is the arrogant egotist. He does not necessarily break any one of the ten commandments ; they were given for those who remain men with all the human faculties, and who are in a condition to profit by them. But he is within another passage in the same Book with the ten commandments ; namely, " Seest thou a man wise in his own conceit, there is more hope of a fool than of him.'' He is sunk where reason cannot reach him, where commandments cannot, and where any unfolding of truth before him is simply vain, — even below the " fool." The Author of the Scrip- tures never did a thing so void as to address even a commandment to a man of this sort. I repeat the closing words of the Preface to the seventh edition of this work. " Let me here suggest, without the reasons, yet as the result of years of reflection, the following : — " First. Most of all is needed a disposition in the profession, not to take things on trust, but for every man to look and see for himself. Without it, no solid improvement in our law or its literature is pos- sible. Added to this should be, — " Secondly. The establishment, by the National Bar Association, or some other association or individual able and willing to bear the expense, of a bureau to investigate; by the help of trained experts, every book relating to the law, and especially every new one, and report in writing to the profession, simply and only as to its bona X PEEPACB. fides. If it is a reprint of a foreign work, is it correctly done, with name of author, dates, and the like, true to the fact? If it professes to be original, how far is it so ? Are due credits given ? Are the rules of our written language concerning quotation marks followed ? Are there concealed piracies ? Did the writer alter from other books any part of what he put forth as his own ? Was the work done personally by the ostensible author? If a book of reported cases, did the judges, in their opinions, deal fairly with counsel, text- writers, and one another ? And let all other questions, pertinent to the main in- quiry, be answered. "Thirdly. The copyright laws need amendment and extension. Among the rest, we should have more stringent rules against piracy as a civil wrong. And it should be made a crime for an author to ap- propriate knowingly, animo furandi, and with the omission of credit, either the thoughts or the words of another as his own. The copyright protection should be made to avail no one who wilfully, in his book, puts forward a claim to originality beyond the truth. And there should be established a governmental bureau, in a degree similar to the private one suggested, to make due examinations by experts of all books for which copyrights are taken out. Eesulting therefrom, in proper cases, the formal copyright should be withdrawn. " These suggestions, imperfect, and in outline incomplete, will suf- fice for this place. ' Where there is a will there is a way.' If the profession is satisfied with things as they now are, no one man can change them. If it wants a real reform, it lacks neither the under- standing nor the energy to supply all deficiencies, and put it through to the very daylight." There may be in our broad country some one man — there may be two, I have no means of proving that there are not more — of the opinion that stealing is not the honest thing in legal authorship. I do not know even one man concerning whose views I should dare to as- sert so much. We look to the press as the standard of public opinion, whether in law, in morals, in politics, or anything else. The legal press, without a' solitary exception, unless I overlooked something, either was silent upon the above propositions or ridiculed them. In the light of the actual facts of stealing, nothing could more con- clusively show the importance of the subject to which I thus called attention. When I consider the marked favor with which a kind profession has PREFACE. Xi ■received my writings, my pride is kept constantly in abeyance by the impossibility of knowing whether they are approved for the purpose for which they were made, or because they have furnished a thronged stealing-ground. Supplementing these general views, there are three particular heads, not relating specially to this edition, but to my criminal-law series, as contemplated from its inception downward, concerning which some- thing seems necessary. They are, I. The Need of the Work ; II. Sug- gestions for its Use ; III. What are the Hoped-for Results. I. The Need of the Worle. If the duties of authorship are ever duly pondered and settled, it will become an accepted truth that no author, especially no legal one, has the right to put forth any work for the gain of it, or the fame of it, where no public good is to be accomplished, and it has no mission special to itself. I never had a temptation to violate this rule, there- fore I ask no applause for having kept it. Still there are so many who look upon all legal treatises as alike, and every one of them as, of course^ a theft from the others, and every new one as a rival of its predecessors, that to" forestall or correct misapprehension it becomes my duty to state here plainly, yet briefly, what were and are the neces- sities for this work. We must go back to the time when it was undertaken. Looking a,t things from that starting-point, no reader who truly sees them will deny that the necessities were overwhelming. The criminal law is one of the large divisions of the law of the land ; it specially concerns personal rights and human liberty ; its constraints, and those alone, preserve the public peace, prevent daily assassinations in every city street and country road, and enable men to live, multiply, and pros- per. There was no American work on the subject, in any full sense the result of anybody's combined industry and brains. We had Eng- lish reprints with American notes, the notes in most standing separate from the English text; and one of them, called Wharton's ^^ Ameri- can Criminal Law," made chiefly by a mixing of the texts of different English authors, the leading one being Archbold, and the digest-fash- ioned American notes blended andkneaded into this mass. In England, the great work of Hawkins appeared in 1716. The later works were largely rehashes of one another,' — respectable, in a ^ In the words of Sir James Fitz James stract an immense number of reported Stephen, they " repeal each other and ab- cases, but add practically nothing to the xn PREFACE. certain way useful, yet almost destitute of original investigation, or any merit other than that of the digest and the book of reports.' history or to the theory of the subject " on which he was writing. 3 Steph. Hist. Crim. Law, 78. 1 Archbold. — A partial qualification of this statement is required in respect of Archbold's first work on this subject, and perhaps of his second one also. This writer appesirs to have been honest and conscientious, and I find no difficulty in believing what is said in his Prefaces. The criminal-law work principally known by his name is his first one, published in 1822. "In the year 1812," he states, "I collected all the authorities upon the Pleas of the Crown to be found in the text-books, the books of reports, &c. ; all that could elucidate the subject in Bracton, Britton, Fleta, and the Mirror; the substance of Hale, Hawkins, the Third Institute, Dal- ton, Poster, and East , all the cases upon the subject in the Year Books, the old reports, and in the modern and recent reports; and all the statutes upon the subject, down to the period at which I made the collection. Of these materials I framed, with infinite pains, a Digest in three volumes, one of which was actually published in the year 1813." But, upon this, other works were announced and duly appeared, namely, Starkie in 1814, Chifty in 1816, and Russell in 1819. These turned him from his original pur- pose. He adds : •' As the subject of Evi- dence in criminal cases, however, had not been treated of by any of these writers, and as some book upon the subject was extremely desirable, I thought I might select from the Work I originally com- piled such part of it as related to evidence in criminal cases, and publish it, without subjecting myself to the imputation of wishing to enter into any competition with the learned writers of the Works already extant upon the Pleas of the Crown. I have made this compilation ; I have added to it all the cases since decided, and the statutes since enacted, upon the subject; and I have compressed the whole into the smallest compass that appeared to me to be practicable, consistent with perspicu- ity." The term "Evidence," as descrip- tive of the scope of this work, was a nlisnomer; for it covered practically the fuU criminal-law field. Turning now to the nisi prius case of Archbold v. Sweet, 5 Car. & P. 219, we learn that after the second edition of this work was published he sold the copyright. From some cause not distinct, he declined to edit the third edition, and the publishers procured it to be done by one " grossly ignorant of criminal law," who had the good sense to refuse to let his name appear upon the title-page. Thereupon the author claimed that this omission was equivalent to 'a declaration that he was the editor, and he sued the publisher for the damage to his reputation ; the defendant denied this meaning. Lord Tenterden, C. J., sub- mitted the question to the jury, who ren- dered a small verdict of £5 for ,th'e plaintiff, and so the case ended. This misadventure by publishers seems to have proved instructive to them. Succeeding editions were put into the hands of able editors, and the work still remains the leading one in England. It has been several times reprinted in this country. The last reprint was the " fifth American from the tenth London edition, much en- larged and improved." New York, 1846. For the reputation of the book called the "American Criminal Law," it was the latter's good fortune that it was addressed to a profession that trustfully, and with- out looking, thinking, or seeing, accepts its literature and whatever pertains to educational questions from surface ap- pearances, and, as of course, all right. So most American lawyers believe that we have three later American editions of this book of Archbold^s; namely, a re- print, with notes, which appeared in 1853, termed on the title-page the " sixth edi- tion," and two later editions numbered the " seventh " and " eighth." But these reprints were from another book of Arch- bold's, which was published in England in 1852. It was written to illustrate, as said on the title-page, "The New System of Criminal Procedure, Pleading, and Evi- dence in Indictable Cases, as founded on Lord Campbell's Act, 14 & 15 Vict. c. 100, and other recent Statutes." It seems to have fallen dead from the English press, it never reached a second edition in Eng- PREFACE. xiii 1 Now, those who have any apprehension, however inadequate, of the true functions of the text-book in our system of jurisprudence, will assent to the proposition that from 1716, when Hawkins's work was published, to 1856, when the first volume of my criminal-law writings appeared, being one hundred and forty years, during which time Eng- land had enormously grown, and our country had sprung up in this western wilderness and become great and powerful, is fully long enough to elapse between text-books. To this class of readers, there- fore, the necessity of a text-book later than that of Hawkins will be obvious. To the other class, it must also be equally plain that it was time for the production of something new to be stolen from. Such in brief was the condition of things when, in answer to the imperative demand, I undertook my Criminal- Law Series. I do not think it necessary here to descend further into the particu- lars of things as they then stood. If I assume that the reader is already, instructed, he has no need to learn the lesson over again. If I assume that he is not, I know that he will either look or refuse to look into the facts which I point out to him. But he can look now, with no further guidance. If he is one of the men who know every- thing without looking, he does not belong to any class for whom I write, and he will profit by nothing which I say. Descending from our starting-point toward the present, we find things greatly changed. My work has wrought a revolution. It would gratify what I fear is vanity in me to state the facts on this subject, if I had a tribunal to decide and report thereon. But I have already explained that the sentiment of our profession does not favor any means whereby any independent author can establish the fact of his own authorship. We have copyright laws, available in extreme cases, for the protection of the non-essentials — namely, the mere words, land, and I have no remembrance of ever nal-Iaw Archbolds, though doubtless there seeing a single reference to it, mention of are such. Any one can ascertain about it it, or other indication that the fact of its by "looking and seeing." But this thing existence was known, in any English law has worked admirably. If, since 1853, book. In the volumes here presented I any emissary of Satan has appeared de have now and then referred to it ; the daring that Wharton's book was origi- abbreviation being " Archb. New Crim. nally a soup composed of odds and ends Pro,," while that for the other work is stirred into Archbold's, it has been easy to " Archb, Crim. PI. & Ev." Our American confront him by taking " Archbold " from judges constantly refer to this new book the library shelf, and by a comparison of in its American reprint as though it were texts pointing out that he is a base slan- the old one, and give no sign of under- derer The mysteries of our legal litera- Btanding that it is not. I never conversed ture, as seen in its practical developments, on the subject with an American lawyer are a great subject, but I have no room who w'as aware that there are two crimi- here for further unfoldings. xiv PREFACE. and the order of the arrangement — of the scientific author's work; but as commonly interpreted, they permit anybody to steal and claim as his own everything in it which is dripping with the sweat of his brains, which embodies the chief labors of a life of struggle and toil, everything meritorious as an intellectual achievement, everything of practical value, everything adapted to bring pecuniary compensation for the labor and especially for the skill expended, all of which one who has learned the use of words can steal as rapidly as a type-writer can follow his dictation. That I dissent from this interpretation, and why, is explained in another connection.' Still, in the present state of legal enlightenment, I should have no more confidence than any other lawyer that I could take a case before our highest tribunal and procure from it an interpretation in advance of what I have stated to be the common opinion. And I pray that no one will try the experi- ment until the time arrives, which I think I foresee, when it may be successful. On the other hand, if professional opinion keeps in its present path, and if all that I have done in the legal field is claimed by others and accepted by the profession as theirs, — if I am the Shakespeare sunk by the Bacon, — I shall not be here to complain. Let me call to mind how this sort of thing has been done. The book known as Wharton's "Precedents of Indictments and Pleas" I assume to be just as original as any book with which it is connected, though I have not made such comparisons as would enable me to speak with exactness. The Preface to the first edition is dated in 1848. After I had contracted with publishers for my own books, Messrs. Train and Heard undertook to supply the professional want by a book of " Precedents of Indictments and Special Pleas." By diligence they were able to lay it before the public in 1855, before my first vol- ume appeared. It was not a case of conflict with my work, but it occupied this ground of Wharton's. One year and nine months after- ward appeared a second edition of Wharton's Precedents, while yet there had not been sufficient time for Train and Heard's book to be- come much known. So this second edition, to which, as said in its Preface, " a large number of new precedents have been added," absorbed one hundred and seven of Train and Heard's Precedents, and sixty-one from Warren's Ohio Criminal Law, published a year before, and added three other new ones from sources which do not appear. This was. all. Limiting the inquiry now to Train and Heard's book, and looking for the one hundred and seven precedents taken 1 Bishop Non-Con. Law, § 1335 and note. PREFACE. XV from it with their attached notes, this second edition credited thirty one to " Th. & H Free." ; one, to " Th. & H. Rec." ; ten (under one reference), to "Th. & Heard's Free"; one, in another place, to the same; six, to "Tr. & H. Free"; forty-two to various sources whence, with alterations and adaptations, in some instances slight, and in others considerable, yet in all sufficient to distinguish them, they had been extracted by Train and Heard ; and sixteen, being among those which stood as original — that is, without credit — in Train and Heard's book, were set down as original — that is, without credit — in Wharton's. Also, as thus original in Wharton's book, appeared Train and Heard's adaptations of the forty-two extracted precedents, and various notes of theirs. This is an exceedingly able specimen of the legal writings of its class. After the one hundred and seven precedents with their notes had been embowelled from the rival, it may be assumed to have been pretty thoroughly killed. And such proved to be the fact. Nobody knew the meaning of the abbreviation » Th. & H. Free." or the " Th. & H. Rec," or even of the fuller " Th. & Heard's Free." which appeared simply in two references ; for even a reader acquainted with the names would not understand that " Th." was an abbreviation of Train. True, among the one hundred and seven extracted precedents, there were six credited to " Tr. & H. Free." And this part of the work was equally able with the rest; for it showed, though indistinctly, what was the book meant, and any reader predetermined to accept all as right could in an emer- gency declare that the imperfections and omissions in the credit for the other one hundred and one precedents, with their notes, were all blunders of the printer. . And still such predetermined person could affirm that a book' so inaccurately printed as, out of one hundred and seven words in the manuscript, to utterly omit fifty-eight, being more than half, to substitute others for forty-three, and to follow copy only as to six, was so accurate as to be a safe guide for professional use. As already stated, this rival died with the embowelling. Certainly no admirer of Wharton's book could say that it was from any weak- ness of its own ; for any work must be deemed meritorious from which it was necessary to abstract so large a part of its contents, and take so much pains to conceal the transaction.'' * I have written this paragraph as the future editions the hands that did the result of a comparison of Wharton's book embowelling were washed after the rival in its first and second editions with Train book had died. There is generally a and Heard's. I have not looked or in- washing after a murder, but how it was quired to ascertain whether or not in in the present instance I do not know. Xvi PREFACE. Here was a case which to appearance, and I presume in fact, was within the protection of the copyright laws. I have no special in- formation why they were not resorted to. Speaking, therefore, with- out reference to the particular instance, there are obstructions to employing them which do not often occur to persons not connected with authorship, or always to those who are. The violation of a copy- right is a joint harm to the publisher and the author. The publisher has many books, and he has reason to fear that if he becomes plaintiff in one case of violation, he will be made defendant in another by way of reprisal. Therefore practically his hands are tied, and we seldom hear of a publisher bringing this sort of suit. But the author is grappled to him. Not inquiring what is the strict law, he cannot in the ordi- nary circumstances prosecute a pirate effectively without his publish- er's consent, and this cannot be given except under too great a peril to assume. I do not think it judicious to state more plainly how this is. If Train and Heard's book had not been killed, and if these authors had made an exceptional sort of contract with publishers, they might perhaps have become masters of the situation when a second edition was called for, not before ; but, as I have just said, it will not be wise for me to be more explicit. Whether or not poverty in the authors was a further obstruction in this case I do not know, but it often is. I will simply say that, plain as this case probably was, I know of no way, though I have given much attention to the subject, whereby the author of a book thus killed can maintain in a court any proceeding with a freedom which will render its institution judicious. And thus is explained the admirable judgment with which the older book of pre- cedents was managed. Like the hunter of a wild beast, it escaped personal danger by making the embowelling effectual. Mr. Heard is said to have been an excellent classical scholar, so he bad read the famous maxim. Fas est ah hoste doceri. And he under- stood it. It was all that was left to lift him up from his overthrow. It will specially illustrate my subject to state how in a particular in- stance this was done. The late Judge Metcalf , while at the bar, had written a much admired article in a periodical called " The American Jurist." Mr. Heard, in conjunction with Mr. Bennett, edited a "Se- lection of Leading Cases in Criminal Law, with Notes," published in 1856 in two volumes. This article, " with a few additions," and with credit to its source, was inserted as Mr. Heard's note to one of the cases.* On a call for a second edition, in 1869, the note was retained, ' 1 Bennett & Heard Lead Caa., 1st ed. 255. PREFACE. Xvii yet the credit was omitted.^ Next, in Mr. Green's "Criminal Law Eeports," the article appears as a note a third time, headed as fol- lows: "This note by Mr. F. F. Heard is taken from 2 Bennett & Heard's Leading Criminal Cases, p. 7, and by the permission of the author is here inserted." ^ I do not propose further to say how fared these two " babes in the wood," namely, Train & Heard's book and my book, except as fol- lows. If the one died and was covered by the birds with leaves, the other has somehow survived. The part of my labors which consisted ■of the precedents — namely,the book termed " Directions and Forms " — was many years delayed, and during its delay nothing fresh ap- peared from which the older "Precedents" could be much enlarged. Editions have been published in two volumes instead of the original one, but the apparent enlargement consisted chiefly in alterations of the type, dimensions of the page, and thickness of the paper. There has been no edition since my " Directions and Forms " was published. But the book called " American Criminal Law" has been transmuted from one volume to several, and so changed in appearance as to leave no discernible likeness to the old book, and on a cursory looking into it is scarcely distingishable from mine. Whether or not the courts would have held that there was any violation of my copyrights, which, we have seen, under the commonly accepted interpretations protect only tlie husk and not the kernel, I never inquired or considered. This was from reasons with which I need not here trouble the reader. Aside from works local to particular States^ there has been no new book covering the field of the criminal law since mine was published. How it is that the book older than mine, having dropped all semblance to its former self, so closely imitates the newer, while the book of' pirecedents remains unchanged, and is utterly dissimilar to the later appearing " Directions and Forms," those who wish to know can find out on an easy investigation. Being denied a tribunal before which anything can be established, I propose to add nothing further here, except a single caution to the inquirer, as follows. If one takes from a more accurate book what, as he presents it, appears erroneous, the fact that he took it is not reversed. For ex- ample, he may have blundered in copying, or the printer may have blundered in setting up his manuscript, or he may have added somcr thing foolish or wrong to cover up his tracks and appear original, 1 2 Bennett & Heard Lead. Cas., 2d ed. 7. * 2 Green Grim. Law Rep. 252. vol. I. — b XVUl PEEFACE. or otherwise he may have mingled what he took with what was too weak to exist anywhere except on his own page, and still the taking is just as real a thing as if it was unceremoniously done. I have before me illustrations of all this, but I do not feel justified in en- cumbering this already too long preface with them. , II. Suggestions for the Use of this Work. This work is addressed equally to the student, the practitioner, and the judge. The Student — who is pursuing his studies under supervision, will, of course, be guided by his instructor. But for independent students, and incidentally as suggestive to teachers, I submit the following. Opening to the preface of one of our annual digests I read : "About 21,000 cases are digested in 52,448 paragraphs, each con- taining a distinct point of law." I have no reason to doubt the cor- rectness of this statement. Assuming, therefore, that our books of the common law contain 1,000 points for every week, or 167 for every day excluding Sunday, so that it will take less than twenty years to produce a million points, — then considering how many years these points have been forming, — we have the result that no man can read them all, or, if this were done, that no memory could retain a scarcely appreciable part of them. Or if we assume the impossible fact that a man has read and remembers all, the case he advises upon may not involve any one of the points, for human affairs are as varying as the colors in a kaleidoscope. So that if he has not learned to practise the law without the points, he has acquired nothing available. The way out of this difficulty is plain to one who considers that the law is not composed of " points," but of reason. It is not the reason of one who is ignorant of it, but it is its own reason, its cultured reason, the reason that rolls in the grooves which through the ages it has formed. And the work of the student is- not to acquire points, but the ability to put himself en rapport with the law, and, bringing into contemplation the facts of his particular case, evolve and follow the law's reasonings and conclusion thereon. A book to be useful to the student must furnish help in the acquiring of this faculty. Now, our law books differ herein. The present volumes are written in a manner adapting them to this service. They embody the law — that is, the legal reason — of their subject. They contain multitudes of points, the larger part of them such that a person finding one of them by help PREFACE. xix of the index, and looking at it alone, would see only a point. But if he examines further, he will find its reason sufficiently proximate ■ thereto, and will find the point to be either an illustration or a bound of the reason. Not always is the reason one Tfhich will address itself to what we term the reasoning faculty of man, or natural reason, but sometimes it will be a mere technical rule, established by usage and decisions. Possibly I should have made this book more serviceable to extremely immature minds if I had swelled these two volumes to ten by distinguishing at each step the technical from the unconventional in the doctrines, and presenting at each point the full evolution of the law's thought leading to its enunciation. But I could not afford to write a book which I could not sell ; and, what is more to the purpose, the maturity of mind which would render these superfluities needless must be acquired by the student before he becomes a practitioner, and it is doubtful whether so much help in his early walking would either strengthen his intellectual muscles or give him facility in their use. The reader anticipates me in the application to be here made of these truths. It is that the thing for the student to learn in this book is the reasoning therein, its exact limits, and the manner of its ap- plications to varying and diverse facts. For it teaches the law's reasonings and methods, and it carefully excludes all personal reason- ings of the author. The points stand along the course as dots to. show precisely where it lies. If no points were given, no learner could acquire the reasoning with due exactness, or remember and have it ready for application in practice. But by the means here em- ployed, the reasoning becomes incorporated into the mind as part of itself, and there it abides, whether consciously to its possessor or not. The points will largely slip away from the memory, bat, like the de- molished scaffolding of a building, they will have done their work. If the student races through this book as through a novel or a sermon, he will find something useful adhering to his understanding. If the quantity is less than he expects, or the quality seems not quite of the first class, the fault is his, not mine, for he is forewarned. Immense advantage will come to the student if, while he reads, he will consult in the books of reports some of the cases which are cited. ' If his mind is growing, it will not be easy to restrain him from doing this. He will struggle to obtain wider views, to see how the judges talk about those presented in the book, to see how one case ,is made up of loose and inaccurate dicta, how clear and precise the doctrines XX PREFACE. in another case, how the court wholly overlooks the true reasoning in another, how neither the counsel nor the judge thought of some im- portant thing in another ; how, where a multitude of cases together sustain a particular doctrine of the text, each one alone may be as fragmentary and ineffectual as a single stick in a bundle, which, in its combined form, is rounded, compact, and strong ; and so on through an endless succession of similar things. If he will not suffer himself simply to float on this disturbed current, but if he will look, will think, and then will row with his own hands, he will find himself day by day nearing the goal of his hopes. For, among other reasons, hereafter as a practitioner he will be compelled to deal both with text-books and with reported decisions, not simply as separate things, but combined. And he can duly qualify himself to become a practitioner only by the study and u^e of the two things together. This is a part of the stu- dent's life which he must live himself. If I am to tell him what cases to read, and how many cases, and how many hours a day to spend in this way, I am an obstruction, not a help, to his own walking. What 1 have thus said is but a small part of what might be said, yet it is the most important part, so I here close this topic. I am aware that some students will read otherwise in spite of all advice, and that their only serviceable teacher will be the one who makes higher charges than I, — Experience. The Practitioner — cannot be expected to use this book before a court in maintaining views contrary to its teachings. Yet he will find it serviceable as a digest, because of its references to the contrary cases ; for they are even more scrupulously collected than those on the side which it deems right. And he will need no suggestions from me as to the methods of employing them. , But where he seeks to procure from a court an adoption of its views, it will not always be safe simply to cite the cases referred to in connection with them. Our books of reports contain multitudes of cases correctly decided, yet for which wrong, or incomplete, or imper- fect reasons are assigned, or from which the better or more convincing , reasons are omitted. Simply to cite those cases, or read to the court the opinions therein, or add a mere reference to my book, or read from the book its conclusion without its reasoning leading thereto, would be an inadequate performance. And the book itself does not always give, or claim to give, the whole reasoning for a doctrine in the same section, or chapter, or even in the same volume wherein it is PREFACE. XXi stated. The practitioner,it}ierefore, should make the doctrine and the reasoning his own, and duly present all to the tribunal. There is believed to be no judge who will not assent to every — at least to nearly every — proposition laid down in these volumes if his mind is duly enlightened on the subject. But where the make-up of a judicial mind ik not compact- and strong, where the mind is preju- diced, or where it is asked to look into what it believes to have been already duly considered and settled by others, while yet in fact the prejudice is unfounded and the decisions are mere blunders, the task of the practitioner who endeavors to enlighten the bench is delicate and difficult. The judge may refuse even seemingly to hear, or he may open his external ears and shut his inner understanding. Per- haps he has already considered and passed upon what he was told was " . real end or object of the proceeding is Rollins, 8 N. H. 550 ; S. v. Counsil, Har- punishment or reparation. See Mirror per, 53 ; C. v. Newell, 7 Mass. 245 ; S. c. of Justices, c. 11, § 3; 3 Inst, and 1 Bosse, 8 Rich. 276; Brockway v. P. 2 Reeves Hist. Eng. Law, 32. The mere Hill, N. Y. 558, 562 ; S. ». Twogood, 7 fact of a Jim no more shows that an in- Iowa, 252; Smith v. P. 25 111. 17, 76 Am. dictment is a criminal proceeding than D. 780 ; Thompson v. Reynolds, 73 111. 1 1 ; the ancient fine in trespass. Vide Reg. Barlow v. Lambert, 28 Ala. 704, 65 Am. V. Chorley, 12 Q. B. 515; new trial al- B. 374 ; S. w. Cawood, 2 Stew. 360; S. v. lowed on such indictments. And see Reg. Pj jlle, 12 Minn. 16 4 ; Ex parte Blanch ard, V. Russell, 3 E. & B. 942, where, semble, 9 Wev. 101 ; Uhamller v. S. 2 Tex. 305, the dictum of ■ Coleridge, J. is the better -309; Qrinder v. S. 2 Tex. 338; S. ti. Odum, 16 CHAP. III.] THE CRIMINAL LAW. §36 Exceptional States. — We have a few States in Vhich either judicial decisions or statutes have made it otherwise. Thus, in Ohio, it was early held that though the common law was of force in all civil causes, it "could not be resorted to for the punishment of crimes and misdemeanors. " i Still in most things, not all, it controls the courts in interpreting and giving effect to the statutes. 2 Statutory provisions in Indiana ^ and a few other States 4 have with greater or less completeness accom- plished the like result as the Ohio decisions; Of course, an enactment of this sort is, like any other, subject to modification or repeal.^ § 36. In Scotland, — the doctrine that the common law of the country extends as well to crime as to civil wrong is held in a very clear and just light. The courts will not listen to a defend- ant's objection that the thing alleged against him is not laid down either in any statute or in any judicial decision as a crime. As once expressed by the Lord Justice-Clerk: "It is of no con- II Tex. 12. But in Texas it is so by statute. Hartley Dig. Laws, 120. 1 Key V. Vattier, 1 Ohio, 132, 150; Vanvalkenburg v. S. 11 Ohio, 404; Allen v.S. 10 Ohio St. 287, 301 ; Smith v. S. 12 Ohio St. 466, 80 Am. D. 355. See Young V. S. 6 Ohio, 435, 438 ; Bloom o. Richards, 2 Ohio St. 387. This Ohio doctrine seems to be partly, at least, adopted in Iowa. Estes V. Carter, 10 Iowa, 400. ^ Consult, for a fuller exposition of this matter, Mitchell v. S. 42 Ohio St. 383. And see S. v. Gaunt, 13 Or. 115. 8 Ind. R. S. of 1852, p. 352; Hackney V. S. 8 Ind. 494; McJunkins v. S. 10 Ind. 140, 144; Malone u. S. 14 Ind. 219; Beal V. S.'15 Ind. 378; Marvin t. S. 19 Ind. 181 ; Jennings v. S. 16 Ind. 335; Jones v. S. 59 Ind. 229. * Thompson Dig. Fla. Laws, 21 ; Mis- souri R. S. of 1845, c. 100, § 2; Ex parte Meyers, 44 Mo. 279 ; William v. S. 18 Ga. 356 ; In re Lamphere, 61 Mich. 105 ; S. v. Smith, 30 La. An. 846 ; S. v. Gaunt, 13 Or. 115. And see Territory d. Ye Wan, 2 Mont. 478; Territory v. Flowers,- 2 Mont. 531. ^ Indiana Interpretations. — This palpable truth was overlooked by the court in Jennings v. S. supra, which case has since been modified or overruled. voi,. I. — 2 After the legislative declaration that "crimes and misdemeanors shall be de- fined and the punishment thereof fixed by statutes of this State and not other- wise," a later statute "specifically made " notorious lewdness or other public indc' cency criminal." But as it did not " de- fine " " public indecency," it was held to be void because in conflict with the earlier provision. Plainly it is an inadmissible novelty to hold any statute void because of its lack of harmony with a prior one. Subsequently it was enacted iu Indiana that " every person who shall perpetrate an assault or assault and battery, with intent, &c., shall," &c. ; and the court held the provision valid. Referring to the above cases, and some others of the like kind, Frazer, J. said : " Upon careful con- sideration, we are of opinion that these cases are not good law, as applicable to the question now in hand. That the legis- lature cannot, in such a matter, impose limits and restrictions upon its own future action, and that ,when two statutes are inconsistent the last enactment stands as the law, are very plain propositions, which, we presume, will never be controverted." Wall V. S. 23 Ind. 150, 153 ; Hood v. S. 56 Ind.- 263, 26 Am. R. 21. And see Stat. Crimes, § 31. 17 I 38 OUTLINES AND INTRODUCTORY VIEWS. [BOOK I. sequence tliat the charge is now made for the. first time. For there are numerous instances in which crimes which had never before been the subject of prosecution have been found cognizable by the common law of this country." And Lord Moncreiff: "It cannot, in my apprehension, be maintained that nothing is an indictable offence, by the common law of Scotland, which has not been indicted before. Indeed, to hold this to be law seems to me to be impossible, without running the whole theory of the criminal system into absurdity. For the common law itself must have had a beginning. " ^ ' § 37. How it should be. — It is noticeable that while some States, wherein the common law originally prevailed, and still prevails in other things, have abolished all common-law crimes, punishing only what is defined — or, at least, mentioned — by legislative enactment, Louisiana 2 and Texas,^ not originally governed by the common law, have expressly introduced it, all least in part, as to crimes. That the latter is the wiser legisla- tion, few who carefully study this subject will doubt.* Nc well-founded reason can be given why, if we are to have a com- mon law, it should not be applied to acts injurious to the entire community, as well as to those violative only of individual rights. 5 If a difference must be made, rather let the civil part be abrogated, but preserve the criminal. § 38. View of the Common-law Field : — How Wide. — The common law which our forefathers brought to this country from England includes the principles, not only administered there in what are technically termed the courts of common law, but also in all the other judicial tribunals. Thus, though we have no ecclesiastical judicatories, yet so much of their law as relates to the civil affairs of men,* and is applicable to our situation, has come to us as a part of our common law ; and, by legislative enactments, it is variously distributed among our courts. But — 1 Greenhuff's Case, 2 Swinton, 236, 259, nnder ten years of age when she consents. 264, 265. See Stat. Crimes, § 499. Not without evi- 2 S. 0. Mullen, 14 La. An. 570, 572; dent mortification the judge added: "In S. V. Davis, 22 La. An. 77. this respect our little ones are not so well 3 Ante, § 35, note. " protected from demoralizing influences as * In Ohio, under the rule which ex- are the children of the country from which eludes crimes not statutory from punish- we mainly derive our laws." Smith v, S. ment, the court was compelled to hold 12 Ohio St. 466, 474, 80 Am. D. 355. that it was no offence for a man to at- ^ And see Bishop First Boolt, § 59. tempt to have carnal knowledge of a girl " 1 Bishop Mar. Div. & S. § 116-148. 18 CHAP. III.] THE CRIMINAL LAW. §40 The Criminal Law of the Boolesiastical Courts — is different. Though an ecclesiastical offence may be termed criminal, it is not such in precisely the sense of the general common law, but rather as injuring the souls of men. The punishment is ordina- rily to pay the costs of prosecution, i and do penance, — the usual penance being to make confession in the vestry of the church, ^ unless the judge consents to receive, in commutation, " an obla- tion of a sum of money for pious uses, " ^ or unless the pen- alty is remitted on account of his ill health, or for some other cause.* But obviously, in the absence both of ecclesiastical courts and an established religion, these offences and punish- ments do not exist in this country. Therefore — Fornication and Adultery, — though in England cognizable criminally under the ecclesiastical law,^ are, in the absence of legislation, not crimes with us, unless, indeed, they are open and notorious, amounting to a public nuisance.^ Still, — § 39. Possible Qualification. — Though we have not, in form, the ecclesiastical crimes and punishments, perhaps, in principle, our courts ought to hold indictable some of the wrongs which in England are pursuable only in the ecclesiastical. Those tribu- nals sit under authority of law ; and though their procedure and punishments differ from those in the common-law courts, the latter might well decline jurisdiction of light offences over which the former exercised a correcting power. This view leaves open the question concerning each particular offence which in England is cognizable only ecclesiastically ; the offence may, if this view is accepted, be indictable or not with us, ac- cording as it falls within or without the boundaries of crime drawn by our general criminal law. § 40. Nature of the Authorities : — The Principal — law authorities, therefore, which we shall have occasion to consult in the following pages, are our own judicial decisions, and, from England, the reports of decisions 1 Palmer v. Tijou, 2 Add. Ec. 196, 203 ; dale, 1 Curt. Ec. 34, 37 ; Woods v. Woods, Griffiths V. Reed, 1 Hag. Ec. 195, 210; 2 Curt. Ec. 516, 529; Burgess ii. Burgess, Newbery v. Goodwin, 1 Phillira. 282, 286. 1 Hag. Con. 384, 393. 2 Coote Ec. Pract. 269, 272; Courtail * 2 Burn Ec. Law, Phillim. ed. title V. Homfray, 2 Hag. Ec. 1 ; Blackmore v. Lewdness, 401 ; Wheatley v. Fowler, 2 Brider, 2 Phillim. 359, 362, note. Lee, 376 ; Coote Ec. Pract. 145.- ' 3 Burn Ec. Law, Phillim. ed. title ' S. v. Moore, 1 Swan, Tenn. 136; S. Penance, 101 ; 2 Inst. 489. v. Smith, 32 Tex. 167 ; post, § 501 ; Stat. * Coote Ec. Pract. 274 ; Chick i-. Rams- Crimes, § 625, 654, 655. 19 §42 OUTLINES AND INTRODUCTORY VIEWS. [BOOK I. in criminal causes at common law, and some old text-books which have acquired a standard reputation. As to which, the reader is referred to a chapter further on.' §41. Foreign Laws. — Occasionally we shall look into the Scotch and other foreign laws, yet not often ; for, as a Scotch judge once said, " In considering this question, I pay very little regard to what may be the law of other countries in similar cases. The laws of different nations, and especially the crimi- nal laws, must always depend on the character and habits of the people, and other circumstances. " ^ The CivU Law. — Especially, in this field, can no advantage be derived from comparisons of the civil law with ours. Though that was a cultivated jurisprudence, and it has left its impress in no slight degree upon the common law as to civil affairs, and though even the claim is not quite unfounded that some resem- blances to the civil law may be seen in our criminal laws, still, happily for the cause of true liberty, and for the administration of criminal justice in those countries where the common law pre- vails, the civil law of crimes is in no proper sense the parent of ours, and it has no authority in our criminal courts. Nor, aside from the question of authority, can ^e accord to it any wisdom to illumine the understanding superior to the rays of natural light which God has given. § 42. Reason and Conscience. — Besides these authorities, there is another, sometimes apparently disregarded, but never in fact ; derided, it may be, but as certainly bowed before as the forest tree bows before the whirlwind ; namely, the force of the combined reason and conscience of mankind. No judge ever did or could stand perpetually in direct opposition to this power. Before it bend the precedents, the statutes, the judicial judg- ment, and even the private opinion of the incumbent of the bench. Therefore, in preparing «. legal treatise, it is an author's duty to consider, step by step, what is the reason which really controls each decision and formula of doctrine, and whether it accords with fundamental principle, original justice, and natural right, — whether, in other words, the conscience of mankind will hereafter pronounce it just. For a law-book is written, not for the past, but for the future, — not to impart I Post, § 70-98. " Lord Justice-General, in Alston's Case, 1 Swiuton, 433, 473. 20 GHAP. XII.J , THE CRIMINAL LAW.. §42 mere historical knowledge, but to help practitioners advise their clients aud win their caiises in matters not yet transpired. Therefore it is — to make his books practically useful — that the author of these volumes continually directs attention to the reasons which underlie the decided points of the law. More- over, the legal reason is the law ; ^ and the adjudged points are always wrong — never law — when counter to the legal reason. 1 Bishop First Book, § 80 et seq., and the accompanying chapters. And gee the Introduction to Bishop on Mai. Div. & S. 21 § 44 OUTLINES AND INTBODUCTOBY VIEWS. [BOOK I. CHAPTER IV. MILITAEY AND MARTIAL LAW. § 43. What here, and why. — Though military and martial law are not criminal law, yet sometimes in the apprehensions of men they are blended with it. Therefore, and to assist in giving bounds to the criminal, and for some other reasons of convenience and instruction, the present chapter becomes important. Still, — §44. Military Law — : is deemed in some sense criminal,^ yet properly i]b is not such. It is " a body of rules and ordinances prescribed by competent authority for the government of the military state, considered as a distinct community. " ^ Written or unwritten. — With US, it is chiefly statutory.^ But to some extent it has an unwritten law derived from th£ mother country, being the law which was there anciently administered in the Court of Chivalry,* or of the constable and marshal. This tribunal, like the chancery and admiralty courts, proceeded after the manner of the civil law ; which, as Hawkins observes, " is as much the law of the land in such cases wherein it has been always used, as the common law is in others. " ^ Courts-Martial. — At present, both in England and the United States, the military law is administered chiefly in courts- martial.* • 3 Greenl. Et. § 469. ^ « Concerning conrts-martial, see Bell '■' O'Brien Courts-Martial, 26 ; S. v. o. Tooley, 1 1 Ire. 605 ; Brooks v. Adams, Davis, 1 Southard, 311.; In re Esmond, 11 Pick. 441 ; Mills v. Martin, 19 Johns. 5 Mackeyi 64. 7 ; Wise v. Withers, 3 Cranch, 331 ; Con- 8 For specimen statutes and their in- tested Election of Brigadier-General, 1 terpretation and effect, see Presser v. lUi- Strob. 190 ; Coffin v. Wilbour, 7 Pick. 149 ; nois, 116U. S. 252; InreElint, 15 Q. B. Opinion of the Justices, 3 Cnsh. 586*; D. 488; U. S. V. Clark, 31 Fed. Bep. 710; White v. McBride, 4 Bibb, 61 ; Alden o. S. V. Harrison, 34 Minn. 526. Fitts, 25 Me. 488 ; Hall v. Howd, 10 Conn. * 1 McArthnrCourts-Martial,3ded. 13, 514, 27 Am. D. 696 ; Wilkes v. Dinsman, 18, 20. 7 How. U. S. 89, 123 ; S. v. Davis, 1 South- 6 2 Hawk. P.O. 6th ed. c. 4, § 7, 11. ard, 311 ; 3 Greenl. Ev. § 470. MiUtary 22 CHAP. IV.J MILITARY AND MARTIAL LAW. § 45 § 45. Distinguished from Martial. — Military law is distinct from martial law, with which it is sometimes inconsiderately blended. ^ Martial Law — is the law of necessity, the ordinary law, and the law of nature intermingled in such manner and proportions "as the military power deems to be required by the particular emergency, when it supersedes or otherwise takes a- control su- perior to the civil power. Some even deny that it is law, — regarding it as a mere despotism, and its abode the breast of the military commander. One writer, after expressing this idea, proceeds : " Despotic in its character, and tyrannical in its appli- cation, it is only suited to those moments of extreme peril when the safety and even existence of a nation depend on the prompt adoption and unhesitating execution of measures of the most energetic character. . . . The Constitution of the United States has wisely, and indeed necessarily, permitted the proclamation of martial law in certain specified cases of public danger, when no other alternative is left to preserve the State from foreign in- vasion or domestic insurrection. " ^ Now, we have seen that no community can exist without law. ^ And there is no more occa- sion for a militarj"^ officer to rule by his uncontrolled whim than for a judge. Truly viewed, martial law can only change the ad- ministration of the laws, give them a rapid force, and make their penalties certain and effectual, not abrogate what was the justice of the community before. The civil courts are in part * or fully suspended ; but, in reason, the new summary tribunals should govern themselves in their proceedings, as far as circum- stances admit, by established principles of justice, the same which had before been recognized in the courts.^ Jurisdiction — Courts. — " Military ju- martial ; while cases which do not come risdiction is of two kinds : first, that which within the ' Kules and Articles of War,' or is conferred and defined by statute; sec- the jurisdiction conferred by statute on ond, that which is derived from the com- courts-martial, are tried by military com- mon law of war. Military offences tinder missions." Lieber Instruct, pi. 13. And the statute law must be tried in the man- see Ex parte Vallandigham, 1 Wal. 243. ner therein directed ; but military offences ^ 1 McArthur Courts-Martial, 3d ed. which do not come within the statute must 32 ; 3 Greenl. Ev. § 468 ; Ex parte Bright, be tried and punished under the common I Utah, 145. law of war. The character of the courts ^ O'Brien Courts-Martial, 26. which exercise these jurisdictions depends ^ Ante, § 5 et seq. upon the local laws of each particular * T)ow r. Johnson, 100 U. S. 158. country. In the armies of the United ^ And see Luther v. Borden, 7 How. States, the first is exercised by courts- U.S.I; C. . Borden, 7 How. U. S. 1,45; Vander- 31 § 63 OUTLINES AND INTRODUCTORY VIEWS. [BOOK I. or by causing the weight of it to fall too heavily ; but, under our Constitution, the judicial power is not the one to restrain 'him. The question is not in its nature " judicial ; " and the courts have, under our Constitution, only "judicial power." If the judges should attempt it, they could not execute their decree without calling upon the military power; but it, by the Constitution an^ laws, is controlled in these circumstances — that is, when used for purposes of war — by the President, and he cannot com- mand it to operate against himself. When, in a time of peace, a judge asks for a military force to aid in carrying out some decree he has made, or to protect the officers of his tribunal, the case is entirely different ; there, the President is not requested to employ the military force against himself. § 63. Suspension of the Habeas Corpus : — To the foregoing Views — should, for completeness, be added something concerning a clause of the Constitution often quoted in this connection. It is, — Constitutional Provision. — " The privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it. " ^ Now, — Is Judicial "Writ. — Habeas Corpus is a judicial proceeding to test summarily the lawfulness of an imprisonment, and set free one restrained unlawfully, without awaiting the other and slower processes of the law. It can be used only where the judicial power has jurisdiction. Thus, — Prisoner of War. — One held by military arrest under the law-martial — that is, as a prisoner of war ^ — is not a subject for the habeas-oorpus writ, the movements of the war power not being within the judicial jurisdiction. According to the author's understanding of the question, it is so even by the common law as brought to this country -from England;^ much less has the 1 Const. U. S. art. 1, § 9. the words in the text are used in the " This expression, "prisoner of war," larger and trne legal sense. See post, is loosely used by some to diatingnish § 64, note. those persons who, on being arrested by '1. Consult and compare Rex v. the military power, are treated in a certain Schiever, 2 Bur. 765 ; Anonymous, 2 W. Bl. way and held for exchange, from those 1324; Furly v. Newnham, 2 Doug.419. In who are put on trial for military offences, the first of these cases, the man who asked or are otherwise restrained for purposes for his discharge on habeas corpus was, ac- inconsistent with a redelivery to the cording to the facts before the court, held enemy on cartel. But the distinction is wrongfully as a prisoner. But the writ immaterial to the present argument, and was denied. In the second, faith had been 82 CHAP. IV.J MILITARY AND MABTIAL LAW. §64 " judicial power " any such authority under our Constitution, wherein the different functions of the government- are intrusted to separate departments with accurately defined jurisdictions, acting independently of one another. ^ § 64. Who suspend Habeas Corpus — (President — Congress). — The broken with the parties applying for ihe writ, yet it was refnsed them. Said the court : " If they can show they have been ill-used, it is probable they may find some relief from the Board of Admiralty." In the third case, the application was for a habeas corpus ad testificandum. This was denied. " The court thought there could be no habeas corpus to bring up a prisoner of war; and the solicitor-general men- tioned a case where Aston, J. had deliv- ered an opinion to that effect. Lord Mansfield said the presence of witnesses under like circumstances was generally obtained by an order from the Secretary of State. But it seems \application had been made for such an order in this case without success." Still the court could not interfere. 2. If in none of these cases habeas carpus would lie, it is difficult to see how such a process could ever be available in favor of a man held by the military power in a time of war. And see, on this sub- ject, Vallandigham's Trial, published in a volume in Cincinnati, 1 863 ; Ex parte Vallandigham, 1 "Wal, 243 ; Bishop Se- cession and Slavery, 13 et seq. I know that in Ex parte Merryman, 24 Law Eep. 78, and some others, there is a doctrine apparently adverse to that of the text; but those cases were placed by the govern- ment upon the assumed right of the Presi- dent to suspend the writ of habeas corpus ; and I, for one, should agree with Taney, C. J. and some others, that he has no such right. Yet the authority of a judicial tribunal to interfere, by habeas corpus, with the custody of a person held by the military power under military guard, in a time of civil war, is an entirely different thing. That such interference never, in our late Civil War, unbarred a prison shows that at least it does no good. The Presi- dent controls the army at such a time, and " the judicial power " has in the Constitu- tion no jurisdiction to control him, or as- sume indirectly the command in his stead. VOL. I. — 3 3. But, it may be suggested that the writ of habeas corpus could be obtained from a State judge, and he could call upon the militia of the State to assist in its ex- ecution. To this suggestion there are two objections : first, it is held by the Supreme Court of the United States that the State tribunals have no jurisdiction to interfere, by habeas corpus, with the custody of any person confined by United State? author- ity. "No State," said Taney, C. J. "can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent government. And although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States. And the powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye." Ableman V. Booth, 21 How. U. S. 506, 515^6. In the second place, if this obstacle were not in the way, still, should the militia of a State, under whatever pretext, just or un- just, make an attack with implements of war upon a camp, fortification, or other position held in a time of war by the forces of the United States, this would be an act of war committed by the State, which, as we have seen, ante, § 48, is ex- pressly forbidden by the national Consti- tution to engage in war without first ob- taining the consent of Congress. 1 This doctrine seems to be admitted in Ex parte Milligan, 4 Wal. 2, as to which case see post, § 64, note. 33 § 64 OUTLINES AND INTRODUCTORY VIEWS. [BOOK I. habeas corpus, therefore, is a judicial process, — an arm of " the judicial power," not a war arm. It is not controllable by the President ; but only by Congress, and in the way of legisla- tion. In pursuance of a plain implication in the clause of the Constitution above quoted, Congress by legislation has author- ized the courts to employ the habeas corpus as one of its writs. And it is not easy to see how the President, who has no legisla- tive authority, can suspend an act of Congress. Nor, as we have seen, is this necessary, or in any degree desirable, in any case where the martial power of 'war is called into action. Effect and Uses of Suspension. — The suspension contemplated by the Constitution may be useful in circumstances or localities where the full martial power is not called out, and arrests for crimes are authorized in a way not martial, yet a public exami- nation of the transaction before the case comes on regularly for trial, or before the pressure of some emergency is over, would be imprudent. But — Not justify Arrest. — The bare suggestion that to suspend the writ of habeas corpus, even by an act of Congress, will justify an arrest which would not otherwise be lawful, is a monstrosity in jurisprudence ; and, in morals, it is of the ethics of the thief, who holds himself justifiable if he can but escape the pursuing constable. '' 1 I. Views suggested by Ex parte wherever .the said privilege shall he sns- Milligan. — Since this exposition origi- peuded as aforesaid, no military or other nally appeared in the third edition of the officer shall be compelled, in answer to present work, the subject has been before any writ of habeas corpus, to return the the Supreme Court of the United States, body of any person or persons detained by Ex parte Milligan, 4 Wal. 2. In the re- him by authority of the President ; but port ofJiis case there are various expres- upon the certificate, under oath, of the sions, even from the bench, not in accord- officer having charge of any one so de- ance with the doctrine of my text. Still I tained, that such person is detained by do not think the text needs to be modified, him as a prisoner under authority of the while yet it is important to examine the President, further proceedings under the case somewhat in this note. writ of habeas corpus shall he suspended 2. It came before the Supreme Court by the judge or court having issued the from the Indiana circuit, on a division of said writ, so long as said suspension by opinion between the judges, sitting to hear the President shall remain in force and an application for the discharge of a pris- said Rebellion continue." Then, in § 2, it oner from military custody, under St. 1 863, enacts " that the Secretary of State and c. 81, 12 Stats, at Large, 755. This stat- the Secretary of War be, and they are ute provides, in § 1, for the suspension, hereby directed, as soon as may be practi- during the then-existing Rebellion, of the cable, to furnish to the judges of the cir- privilege of the writ of habeas corpus, " in cuit and district courts of the United any case throughout the United States or States and of the District of Columbia a any part thereof. And whenever and list of the names of all persona, citizens of 34 CHAP. IV.] MILITARY AND MARTIAL LAW. §65 § 65. Concluding Observations as to Martial Law: — As to Foregoing. — Thus carefully we have traced the thread of juridical argument through the various constitutional provis- States in which the administration of the laws has continued unimpaired in the said Federal courts, who are now, or may here- after be, held as prisoners of the United States, by order or authority of the Presi- dent of the United States or either of said secretaries, in any fort, arsenal, or other place,- as State or political prisoners, or otherwise than as prisoners of war," And thereupon the statute directs that if a prisoner who is thus described as a " State or political prisoner," held "otherwise than as a prisoner of war," shall not be indicted within a specified time, he may be discharged by the judicial power in a manner pointed out. 3. Under these circumstances, Milligan, who was a " prisoner," — but whether he was a " State or political prisoner," or was a '' prisoner of war," was the question on which the whole case really hinged, — made, as I have said, his application under the statute to be discharged. In fact he was, according to the papers appearing in the case, as I trust I shall be able to make plain in this note, a " prisoner of war," for whose discharge by the judicial power the statute made no provision. Whether he was rightfully or wrongfully held as a prisoner of war is another question, upon which there is perhaps room for some dif- ferences of opinion. But if the military power had wrongfully made him a prisoner of war, this, according to the doctrines of the English common law, as already shown (ante, § 63 and note), was a wrong which the civil courts had no jurisdiction to inquire into, and no authority to re- dress. And if this is so in England, much more is it so in the United States, the jurisdiction of whose civil courts is, by . express constitutional provision, as we have already seen (ante, § 56), limited to the exercise of " judicial power." And it can never be a function of a "judicial power " to control the movements of an army in the act of war. 4. " Prisoner of War " — " State Prisoner." — Contrary to the foregoing view, however, it was rather assumed than decided that Milligan was detained, not as a prisoner of war, but as a State prisoner. The judges all held him to be entitled to his discharge, but they differed in their reasoning. Chase, C. J. delivering the opinion of the minority, merely said on this point : " Milligan was imprisoned under the authority of the President, and was not a prisoner of war." p. 134. Davis, J. delivering the opinion of the majority, elaborated the point a little more, as follows : " But it is insisted that Milligan was a prisoner of war, and there- fore excluded from the privileges of the statute It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been dur- ing the late troubles a resident of any of the States in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana ; but when tried for the offence, he cannot plead the rights of war ; for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prison- ers of war. If he cannot enjoy the immu- nities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties ? " p. 131. 5. When the late Civil War. broke out, it found the loyal part of our politicians as ill prepared in respect of legal learning as of material accumulations. We had, therefore, from them all sorts of incon- gruous, not to say ridiculous, talk under the legal head. Thus, for example, they sometimes spake of prisoners of war as those, and those only, who were held for exchange by cartel. This sort of loose talk attended unthinking minds, and the minds of men who did not read, in some instances even to the end of the war. But that our whole Supreme Court should, without reflection, and without looking into the authorities, have accepted this as the true language of the law, seems at the first view surprising. Tet the loftiest mind, if it does not think, places itself on a level with the lowest; and the world never contained even one man from whom 35 §65 OUTLINES AND INTRODUCTORY VIEWS. [book i. ions upon which the question of martial law under our govern- ment depends. It was not deemed necessary to cite, in the thought was not on some occasion ab- sent. 6. According to this judicial defining, therefore, no persons are, when , captured, " prisoners of war," except those who were " engaged in legal acts of hostility against ' the government." Either the grand march of the late Rebellion was at the behest of law, and the government under which the court sat when it uttered this definition was guilty of the blackest crimes against law in suppressing the Rebellion, or, as- suming the defining to be correct, there was not so much as one " prisoner of war " taken by the military forces of the United States during the entire bloody period. But the judge certainly did not mean this ; for in other places he spake of the Rebel- lion in terms implying that it was unlaw- ful, and that there were prisoners of war taken, who, therefore, were not " engaged in legal acts of hostility against the gov- ernment." Perhaps he meant that "one to be a prisoner of war must have been a regularly enlisted soldier of the enemy's army, carrying on the fight according to the approved usages of military law. ' On this sripposition, a member of a guerilla band, for example, could not be a prisoner of war, though taken in battle. 7. Now, if we search for the true mean- ing of the terra "prisoner of war," we shall find it to be any person captured by a military force carrying on war, and held as an enemy prisoner. He may be wrong- fully or rightfully so captured and held, that is immaterial; just as one arrested and held by the civil power is a. prisoner, equally whether the proceedings against him were right or wrong. And that this is the true meaning, as legal language has been employed down to, the time when this opinion was delivered, I need only turn to Vattel to prove ; for his work is accepted everywhere as a legal classic on this subject. Under the title, as expressed in the margin, "The Right of making Prisoners of War," he says : " All those persons belonging to the opposite party (even the women and children) he [the prince carrying on a just war] may law- fully secure and make prisoners," when he 36 deems such a measure to be necessary." Vattel Law of Nations, b. 3, c. 8, § 148. Let it be observed that these persons, not enlisted in the enemy's military ranks, not even capable of bearing arms, are, when captured, termed by this classic author " prisoners of war." Again, under the title, as expressed, in the margin, " How Pris- oners of War are to be treated," he says : " Prisoners may be secured ; and for this purpose they may be put into confine- ment and even fettered, if there be reason to apprehend that they will rise on their captors, or make their escape. But they are not to be treated harshly, unless per- sonally guilty of some crime against him who has them in his power. In this case, he is at liberty to punish them." lb. b. 3, c. 8, § 1.50. Under this head, the case of a spy will occur to the reader. He is not usually taken in battle, or with arms in his hands, or in any way under the garb of an enemy, but more frequently he appears as a friend ; yet he is a prisoner of war, who is to be tried by a military commission, or other military court, and on conviction sentenced to suffer death. "If," said Davis, J. in the above-quoted passage from the opinion of the majority of the court in this Milligan case, "he cannot enjoy the immunities attaching to the character of a prisoner of, war, how can he be subject to their pains and penal- ties f " Assuming this expression to mean that, in the opinion of the learned judge, a person captured by the army, in a time of war, ceases to be a prisoner of war when he is made to suffer pains and penalties, and thereupon the judicial power is entitled to take him out of the war grasp, this exposition is as new as it is alarming. The doctrine was before, as Vattel tells us, that the infliction of pains and penalties on certain classes of prison- ers of war is right and just, and that nev- ertheless they remain prisoners of war until discharged, or relieved by death. Thus, still treating of prisoners of war, he says : " As soon as your enemy has laid down his arms or surrendered • his person, you have no longer any right over his life, unless he should give you such right by CHAP. IV.] MILITARY AND MAETIAL LAW. §65 notes, all the crude utterances of judges and legislators on this some new attempt, or had before committed against you a crime deserving death." lb. b. 3, c. 8, § 149. In this case, the captured person is still a prisoner of war, though the war arm inflicts upon him pains and penalties. And whether this is so as gen- eral truth or not, it is plaiuly so within the meaning of this particular statute. It ■ gives, as we have seen (ante, par. 2), to the judge or court authority to release from military custody, under the circum- stances specified, all persons who are con- fined "as State or political prisoners, or otherwise than as prisoners of war." The statute contemplates, it thus appears, two classes of prisoners, — those of the one class being termed " State or j)olitical pris- oners," and those of the other class " prisoners of war." Into the one or the other of these classes every prisoner ar- rested and detained by the military power must by construction be held to fall. But I shall now proceed to show that no prisoner detained, as Milligan was, for trial before a military tribunal, has been heretofore deemed to be a State prisoner. Therefore, as well as for the reasons already given, every such prisoner is, in the contemplation of the statute, a " pris- oner of war." 8. The expression "State prisoner,'' which occurs in the statute, has, therefore, a meaning equally well defined with the other. It means a prisoner held for some po- litical offence, or offence affecting the State, to be dealt ivith by the judicial power, and not by the military. The statute itself partly defines it when it says, " State, or political, prisoners." One need only look over the various collections of English " State Trials " to see that this is so. The offences are of a political nature, and the trial is before a civil court. The same thing will appear if one looks into the book known as Wharton's " State Trials of the United States." There is not, in that collection, any one of the numerous cases of spies and other prisoners of war who have been brought to trial before military tribunals. Such prisoners were never called " State prisoners," therefore their trials do not have place in a collec- tion of " State trials." 9. The Statute explained. — Now, the statute under consideration was drawn by some one, I know not by whom, pos- sessed of accurate ideas of legal language. It distinguishes, as I have said, between " State prisoners " and " prisoners of war," and it contemplates the arrest and tempo- rary detention of the former by the same power which should also make prisoners of war; and, especially, their arrest by order of the President, who, while he is commander-in-chief of the army and navy, is chief executive officer also of the civil department. It requires, therefore, that the two classes shall be distinguished the one from the other. For this purpose, lists of the State prisoners are to be made out and sent to the judges ; and jurisdic- tion is given them over these prisoners, not over the others. 10. The Case. — When Milligan was arrested, his name was not returned as a State prisoner. On the other hand, the military power proceeded to deal with him as a prisoner of war, trying him by a mili- tary commission for the following offences, of a military sort ; " Conspiracy against the government of the United States ; affording aid and comfort to rebels against the authority of the United States , incit- ing to insurrection ? disloyal practices , and violation of the laws of war." p. 6. That some of these were civil offences renders them no less military. Milligan was found, by the military commission, guilty of all. He was no less capable of being a rebel — in other words, an enemy — because he lived in Indiana, than if he had resided in South Carolina. Vattel says : " I account as associates of my en- emy those who assist him in his war with- out being obliged to it by any treaty. Since they freely and voluntarily declare against me, they, of their own accord, choose to become my enemies. If they go no further than furnishing a deter- mined succor, allowing some troops to be raised, or advancing money, — and, in other respects, preserve towards me the accustomed relations of friendship or neu- trality, — I may overlook that ground of complaint ; but still I have a right to call them to account for it." Vattel Law of Nations, b. 3, c. 6, § 97. Prima facie Milligan, living in a State the majority 37 §65 OUTLINES AND INTRODUCTORY VIEWS. [bode I. subject. But whatever seemed of special importance, or of weight in authority, has been referred to.^ of whose people adhered to the national cause, — a State, therefore, not declared in the mass to be in rebellion, — was to be deemed and treated, not as an enemy, but as a friend ; and this was one of the rea- sons, among others, why the military power should inquire int^ the case by commission, even to justify a continued imprisonment, as it would not have done if he had been arrested in South Carolina. II. Much more might be said of this case ; but the foregoing will point to the following conclusion concerning it. The court proceeded throughout upon a mis- apprehension of the meaning of those de- cisive statutory phrases which are a part of the fundamentals of our language, and of all languages spoken by people who claim a share in the law of nations. The decision, indeed, if accepted as sound and followed hereafter, overturns a part of the English language, and of the language of the universal law of nations, and with it a part of the law itself, which is the com- mon property of mankind. The court is our own supreme " judicial tribunal," and no more. If it were a " lexicographical tribunal," it would perhaps have jurisdic- tion of this question. As it is, I deny its jurisdiction. I deny that the decision is binding as law anywhere. See Bishop First Book, § 455, 456. Even if it had jurisdiction, the fact that this main point of the case was so evidently passed with- out a single real thought, and without so much as a glance into the authorities, would render it, on familiar principles, nearly valueless as a ffiture authority. These are the reasons which, among others, have determined me not to modify my text to conform to this case. My readers have it before them in the book of reports, and they can follow it as implicitly as they choose. 12. There are expressions, in this case, indicating that the duty of preserving the rights of the citizen unimpaired did not escape the thought of the tribunal. Let me add that, according to a view which seems to me tenable, liberty in a republic is best preserved by yielding implicit obe- dience to the Constitution and laws as we §8 find them, and correcting them, if wrong, not by usurpations of power, but by the means which themselves provide. If, for example, our Constitution has withheld from the judiciary all corrective jurisdic- tion over the war power as wielded in actual warfare, though a judge might deem that liberty would be better pre- served if he could put the judicial re- straints upon it and call it to answer to the summons of an aggrieved party, still he would best promote liberty on the whole, while yet he left the individual to suffer, by keeping the judicial action within the lines which the Constitution has drawn. There is wrong done every- where, in all the relations among us, — wrong in war, wrong in peace, — and wrong inflicted as well by the judicial powers as by the others. If war has its oppressions, so also do the courts take away a man's property or life to-day, and to-morrow overrule the doctrine of the decision, — thus themselves acknowledg- ing that they did wrong before. 13. For other views as to the interpre- tation of the statute considered in this note, see In re Blum, 2 Sprague, 73. 1 During the late Secession Vi^ar this subject was much discussed by legal gen- tlemen, as well as by men who were mere politicians. Whiting's War Powers. — The most voluminous and important of the legal discussions is perhaps the one by Hon. Wm. Whiting, who, besides giving much private investigation to the subject, had it constantly before him during a period in which he rendered gratuitous assistance to the government as solicitor to the War Department. The results of his inquiries are embodied in the enlarged editions of his work on the " War Powers." How far his views and those expressed in my text correspond I do not know ; at all events, his production is well worthy of an examination. VaUandigham's Trial. — An important point is also discussed on both sides by counsel in the Vallandigham trial, published in a thin 8vo volume at Cincinnati, 1863. Pamphlets, &o. — In various pamphlets, published speeches, and the like, much other matter, on the tJHAP. IV.] MILITARY AND MARTIAL LAW. § 67 § 66. Difficulties of Explaining this Subject. — Plain as are the constitutional provisions relating to this subject when fully examined, it is difficult to tell the truth upon it without sub- jecting one's self to being misunderstood. The question has been so bandied about, in politics that the ordinary reader is seeking to know, not the truth of the law, but whether the author belongs to his party or not, and is ready to approve or disapprove according to the result of this inquiry. Unhappily, in the present instance, the author is of the despised few who do not pierce their noses for rings, so wears his without a cord attached. He is not of the reader's party whichever it is ; but is of those who hold truth to be superior to party, and who seek it alone, without asking or caring whom it pleases or displeases. • Yet truth is a power within itself, wholly independent of the person from whose lips or pen it flows. § 67. Observations on Foregoing Views. — The reader, there- fore, may suppress his surprise at iinding that the foregoing are not the views of any political party, being, instead, the teach- ings of the Constitution. If the author is told that they accord to the President great power in a time of rebellion or of other war, his answer is that he did not make the Constitution. If told that assupiing these views to be correct, the government of this country is not the weak thing its enemies say it is, but, oji the contrary, is one of the strongest in the world, his reply is that not he, but the Higher Wisdom that inspired our fore- fathers when they framed the Constitution, ordained this result. If it is still objected that not even the Queen of England has such power of martial law as, according to the foregoing views, is pos- sessed by the President of the United States, the answer to this one side and on the other of particular ». Pilar, 35 Ind.402; Hatch v. Burroughs, points, may be found. I have not made 1 Woods, 439 ; Marsh v. Burroughs, I special reference to any of these in my Woods, 463; Ex parte Law, 35 Ga. 285; notes, because my own exposition is an S. v. Cook, Phillips, N. C. 535 ; C. v. independent one, presenting views which Palmer, 2 Bush, 570 ; McLaughlin v. certainly did not have their origin in any Green, 50 Missis. 453 ; Beck v. Ingram, of these productions, and because it would I Bush, 355 ; Gates v. Goodloe, 101 U. S. serve no useful end to encumber my notes 612 ; Plowman v. Thornton, 52 Ala. 559 ; with references of this nature. Decisions Coolidge r. Guthrie, 1 Plip. C. C. 97 ; S. v. relating to the KebeUion. — Possibly the Hibdom, 23 Fed. Rep. 795 ; C. v. Holland, following decisions, on questions connected 1 Duv. 182. And see Jim o. Territory, with the Secession War, may be useful to 1 Wash. 76 ; Allen v. Colby, 47 N. H. some reader: Hammond v. S. 3 Coldw. 544. 129; In re Egan, 5 Blatch. 319; Brooke 39 § 68 OUTLINES AND INTRODUCTOBY VIEWS. [BOOK I. objection is that it may be so, or may not ; but whatever be the power of the English- Queen, she derives it from the English Constitution, while our President derives his from the Ameri- can. It has, indeed, been assumed in this chapter that the common law of England is the common law of this country ; but where our Constitution is distinct, as it is on this subject of martial law, it, and not the common law, must prevail. More- over, we shall see in the proper place ^ that according to the highest judicial authority in this country, — an authority we are all bound to respect, though the doctrine probably requires some qualification, — there is no common law of the United States, in distinction from the several States. § 68. Further, — it should allay our apprehensions to reflect that the power of the President as to martial law is not higher than, in judicial affairs, is exercised by the courts of law throughout the country. If the President may proceed wrong- fully, so may a judge. If he may commit an error, so may the highest judges of the land. If a judge may be impeached, so equally may be the President. If the judge is bound to proceed, in civil affairs, according to judicial law, so is the President, in martial affairs, to proceed according to the law-martial. If it is in the power of the President to ruin a man by violating the law-martial, so also it is in that - of the judge to do the same thing by violating the judicial law. If from an inferior judge there lies an appeal to a superior, so also does there from an order of an inferior military officer to the President. If there are instances in which an inferior military officer may do a wrong which cannot find practical redress, so likewise there are, in which an inferior judge may do a wrong which cannot be redressed by application above. In short, the difference between martial law and the law of the civil tribunals is, that the one is adapted to suppress what the other cannot, in a time of rebel- lion or other war; while the other is adapted to a condition of pure peace. And let us not complain when we find our Consti- tution to have embodied a wisdom suited to all the emergencies of a nation. 1 Post, § 190 et seq. 40 CHAP, v.] AUTHORITIES AND THEIR EFFECT. § 71 CHAPTER V. THE AUTHORITIES AND SOMETHING OP THEIR COMPARATIVE WEIGHT AND EFFECT. § 69. Introduction. 70-85. Books of Reports. 86-90. Authoritative Text-Books. 91-98. Their Present Weight with us. § 69. -How Chapter divided. — We shall consider, I. The Books of Reports; II. The Authoritative Text-Books ; III. The Weight of the Books and Prior Decisions in Present Adjudication. I. The Books of Reports. § 70. English and Irish : — In General. — In the remoter periods of our law in England, the reports of criminal causes generally appear in the same vol- umes with those of the civil. Volumes of mere chancery decis- ions do not embrace them ; nor, in England, are they found in those devoted to the Court of Common Pleas and the Court of Exchequer. But throughout old volumes of miscellaneous causes, and those decided by the Court of King's or Queen's Bench, they are more or less distributed. And, on the criminal law, we have among the old reports that of — § 71. John Keiyng. — It is a thin folio entitled " A Report of divers Cases in Pleas of the Crown, adjudged and determined in the reign of King Charles II., with Directions for Justices of the Peace and others, collected by Sir John Keiyng, Knight, late Lord Chief-Justice of His "Majesty's Court of King's Bench." Keiyng died in 1671, and not until 1708 were these cases pub- lished by, it is said, one of his successors. Lord Holt.^ The col- i Wallace Reporters, 3d ed. 209 ; Foster, 204. 41 § 73 OUTLINES AND INTRODUCTORY VIEWS. [BOOK I. . lection is of considerable value, and it has the marks of greater accuracy than most of the old posthumous reports.^ § 72. Later Crown Cases. — There is nothing further impor- tant in this connection, until we come to something like a series of Qrown Cases, extending down to nearly the present time. This series, if such it may be called, commences with two vol- umes by Leach, never reprinted in the United States ; the stand- ard fourth edition of which contains cases from 1730 to 1815. The paging of the editions differs. . Then we have six volumes, reprinted in a series in Philadelphia ; one volume of the reprint, Jebb, consisting of Irish cases. The English five are Russell & Ryan's Crown Cases, 1799 to 1824, in one volume; Moody, two volumes, 1824 to 1844 ; and Denison, two volumes, 1844 to 1852. The later Crown Cases Reserved, not reprinted in this country, are Dearsly, one volume ; Dearsly & Bell, one volume ; Bell, one volume ; Leigh & Cave, one volume, — in all, four volumes, — extending down to 1865, when the Law Reports commence. And the Law Reports were at first so arranged that the Crown Cases Reserved were bound by themselves. There are of these two thin volumes, the second of but 186 pages, ex- tending to near the close of the year 1875. On the reorganiza- tion of the English courts, the make-up of the Law Reports was changed, and the Crown Cases Reserved are placed in the Queen's Bench Division. § 73. Irregular, and not in Bank. — Of reports not deemed regular, there is a volume by Temple & Mew, consisting of Crown Cases Reserved, from 1848 to 1851 ; but the same cases are also in the regular reports above mentioned. Among decisions by single judges, we have, of some value, two 12mo voluines of ' Kelyng was a very haughty and orei- make us laugh at some of the silly ego- bearing judge, who leaned to kingly power tisms with which they abound." 2 Campb. and trampled on popular rights; till at Lives Ch. Just. Am. ed. 170. I do not last he humbled himself and became as think any one would value Kelyng's ludi- abject as he had been arrogant, to escape vidual opinion on a question pertaining to impeachment. Lord Campbell had a mean the liberty of the citizen or to true per- opinion of everything proceeding from sonal dignity. Still, it seems to me, he him, even to this posthumous book. This has set down in this volume, which he did learned person's life of him closes as fol- not publish through vanity, for it was not lows : " I ought to mention, among his published by him, or any dependant of his, other vanities, that he had the ambition or in his lifetime, many useful things, to be an author; and he compiled a folio And its general standing in the profes- volume of decisions in criminal cases, sion is, for a posthumous work, quite which are of no value whatever except to respectable. And see 8 Am. Law liev. 45. 42 CHAP, v.] AUTHORITIES AND THEIR EFFECT. § 79 "Cases determined on the Crown Side of the Northern Circuit," by Lewin, 1822 to 1838 ; they are made up of short notes of rul- ings on trials. More important than these is a yet unfinished series, by Cox, of " Reports of Cases in Criminal Law argued and determined in all the Courts of England and Ireland, " .ex- tending from 1843 downward. The cases are of all sorts; before collective judges passing on questions of law alone, and before single judges presiding in jury trials. Unhappily, the Law Reports omit many appealed cases which ought to be found in them ; and, because of these, as well as the rest, there can be -no complete set of ^English criminal-law reports without Cox. '§ 74. Nisi Prius. — The English nisi-prius reports, of which there is a sort of series from 1820 to 1865, contain many rulings of value, but not of the highest authority, by single judges in jury trials; together with a few cases heard by the bench of judges on appeal. They are Peake, Espinasse, Campbell, Holt N. Pw, Starkie, Gow, Bowling & Ryland N. P., Ryan & Moody N. P., Carrington & Payne, Moody & Malkin, Moody & Robin- son, Carringtoh & Marshman, Carrington & Kirwan, and Foster '& Finlason. § 75. Irish. — In the Irish common-law reports, criminal cases are given, interspersed with civil. And we have seen that Cox contains Irish as well as English cases. § 76. state Trials. — The reports of " State Trials, " known as Howell's, or Hargrave's, &c., according to the edition, ^ con- tain much that is useful to one who discriminates ; but, viewed indiscriminately, they are of little worth. Townsend's "Modern State Trials," in two volumes, concerns advocacy more than pure law. § 77. American Reports : — In General. — In the United States, it is exceptional for any book of reports to consist of criminal cases alone ; but generally they are printed mingled with the other cases at common law. Of the exceptions we have — § 78. Virginia Cases. — These are chiefly criminal, decided by the General Court of Virginia from 1789 to 1826. § 79. Wheeler's Criminal Cases — are in three volumes. The first volume was originally called the " Criminal Recorder. " The 1 See Bishop First Book, § 575, " Howell," note. 43 § 84 OUTLINES AND INTEODtrCTOEY VIEWS. [BOOK I. principal part of it is occupied with cases before the Recorder of New York City. . The other two consist of cases, in- the main, before the inferior tribunals in New York City and State. It has some cases from other States, and some from the highest State and national courts. Of course, the value of the cases in it varies greatly. Principally, 1822 to 1825. § 80. City Hall Recorder. — This collection is by Daniel Rogers, in six volumes, usually bound in three. It consists chiefly of cases before juries " in the various courts " in the New York City Hall, 1816 to 1821. While these reports are not of high value, they are not exactly worthless. § 81. Parker's Reports of Becisions in Criminal Cases — are in six volumes, the dates ranging from 1845 to 1868, when the last volume was published. ■ They are decidedly respectable, averag- ing quite above those mentioned in the last two paragraphs. And they contain many valuable precedents. According to the titlepage the decisions were " made at Term, at Chambers, and in the Courts of Oyer and Terminer of the State of New York." §•82. Tbacher's Criminal Cases — is a single volume of decis- ions by the late Judge Thacher, who presided in the Municipal Court of the city of Boston, there sitting with a jury and having an extensive criminal jurisdiction. It was edited from his papers, after his death, by Horatio Woodman, 1823 to 1842. The judge was able, and many of the cases are interesting. But his court having been an inferior one, they are not deemed of mach value. § 83. Morris's State Trials — are reports of all sorts of crimi- nal causes before the highest courts of the State of Mississippi, collected from the regular reports by the attorney-general, pur- suant to legislative command. The period covered is from 1818 to 1872. They comprise two thick volumes. In the Second is an Appendix of " Precedents and Forms. " § 84. Texas Court of Appeals Reports. — By the Constitution of Texas, which went into effect in 1876, a new court termed the " Court of Appeals " was established. As a leading function, it has final appellate jurisdiction in all criminal causes, — the ordinary final jurisdiction in civil issues remaining in the "Supreme Court." Three judges, the concurrence of two of whom is necessary to a decision, constitute the tribunal. The result has been a new series of reports, occupied exclusively 44 CHAP. T.] AUTHORITIES AND THEIR EFFECT. § 88 with criminal causes. They are not only indispensable at home, but of great value in the other States, § 85. Houston's Criminal Reports — pertain to Delaware. They are exclusively of rulings at or connected with jury trials, of a sort not common elsewhere in this country. Two courts are reported,— the " Court of Oyer and Terminer," and the " Court of General Sessions of the Peace and Jail Delivery. " The former is presided over by three of the highest judges of the State, the latter by two; and the decisions of both are final. II. The Authoritative Text-Boohs. § 86. What. — It would serve no useful end to mention, among text-books, such as, not having attained the position of authori- ties, have substantially faded from view, and essays not of a practical sort. It is not customary, but it is sometimes desira- ble, to extend our legal investigations into the books which were written at a period earlier than those of Lord Coke.^ But — § 87. Coke. — The works of this great master, which ushered in a new era in legal science, should be consulted on every sub- ject to which they relate. His disquisitions upon criminal-law topics are in various places, but most prominently in the Third Institute, "concerning High Treason and other Pleas of the Crown, and Criminal Causes." This .is one of the books pub- lished after his death, not ranking, therefore, so high as his First Institute, or "Coke upon Littleton," published in his life- time, — though perhaps higher than his Fourth Institute, " con- cerning the Jurisdiction of Courts, " which was also posthumous. ^ Consequently, — § 88. Hale and Hawkins. — In this department of the law, the treatises of Lord Hale and Sergeant Hawkins stand pre-eminent. ^ " Hale and Hawkins, " said ap American judge of great criminal- law learning, " are justly regarded, not as respectable compilers, but as standard authorities. " * 1 Bishop First Book, § 282. • * Parke, J. in Eex v. Long, 4 Car. & 2 Holt said, " The 4 Inst, had not my P. 398, 405, 406 j Abbott, C. J. in Rex v. Lord Coke's last hand ; the judges have Eogier, 1 B. & C. 272, 274 ; Dallas, C. J. not allowed that so much as the other in Butt v. Conant, 1 Brod. & B. 548, 570 parts J though 2 Inst, be a posthumous et seq. ; Ram. Leg. Judgm. 88, 169. Tvork, yet it is more perfect." Eex v. * Gaston, J. in S. v. Johnson, 1 Ire. Pain, Holt, 294, 295. 354, 363. 45 § 90 OUTLINES AND INTRODUCTOKY VIEWS. [BOOK I. Hale. — The work of Lord Hale is entitled " The History of the Pleas of the Crown." It was published from his manuscript a considerable time after his death ; and it lacks the completeness, the compactness, and the finish which the very eminent author would doubtless have given it had he published it himself. Still it is of the highest value as containing a very considerable body of law, as distinguished from mere points, — mingled, how- ever, as most statements of law are, with points to illustrate them. This work, in its scope, is imperfect; treating only of treasons and felonies, not of misdemeanors. ^ Hawkins. — The fact last mentioned is the one which mainly prompted Hawkins to write his excellent "Pleas of the Crown." Coming after Hale, he stretches his researches back into the old law, and downward well into the new. His work is not of higher authority than Hale's, and perhaps by those who pay special deference to what comes from under the judicial robe, its authority may not be deemed so high ; but in intrinsic merit, and in practical adaptation to be useful, it is unsurpassed among the old books of the law. It renders unnecessary any consulta- tion of the Year Books, as to questions of criminal law; and, indeed, it presents in almost perfect outline and color the olden glories of the English criminal jurisprudence, while in the very act of blending with the new. This book contains, not mere points, but also law. § 89. Poster. — No other treatises on the criminal law are of reputation so high as those of Hale and Hawkins. There is, by Sir Michael Foster, a book entitled "A Report of some Pro- ceedings on the Commission for the Trial of the Rebels in the year 1746, in the county of Surry, and of other Crown Cases ; to which are added Discourses upon a few Branches of the Crown Law. " The preface to the first edition is dated in 1762. There were two subsequent editions by Michael Dodson. This is a valuable book; but, as the reader sees, it is incomplete as a treatise. Nor, though the reputation of the Discourses is con- siderable, are they of the very highest order. § 90. Modern English Books. — There are respectable English books on the criminal law, of dates subsequent to the above; some of which may, be deemed, in a modified sense, of authority. They are not, however, like the works of Coke, Hale, and 1 And see Bishop First Book, § 202, 513, 574, " Hale," note. 46 CHAP, v.] AUTHORITIES AND THEIR EFFECT. § 93 Hawkins, regarded as depositories of the old and the traditional criminal law, whatever may be our estimate of their intrinsic merits. So they do not require specification in the present connection. III. The Weight of the Boohs and Prior Decisions in Present Adjudication. § 91. As teaching our Common Law. --The old English text- books above mentioned, and such early reports as Kelyng's, explain the criminal common law of England as it stood when so much of it as was adapted to our situation and circumstances be- came common law with us. So that the law contained in them has, in each of our States, a weight of authority not belonging either to the modern English decisions or to those of the sister States. Still, — § 92. Adopted or not. — When such law is ascertained, the further question is always pertinent, whether or not it was adapted to the situation of our people, and therefore presump- tively adopted by them.^ Under this head, there is opportunity for our courts to shake off old absurdities and false notions. By reason of which there has come to be some difference between the common law of England and that of any one of our States, and in like manner there are some early as well as later differ ences in the common law of the respective States. But questions of greater importance relate to — § 93. The Doctrine of Stare Decisis in Criminal Oases : — ■ In General. — It is remarkable that the application of the doc trine of stare decisis in criminal cases, as distinguished from civil, has in modern times ^ been little considered. In a general way it may be said to prevail in the criminal department of our law as in the civil. In reason it does ; but, in the civil depart- ment, the doctrine is applied differently in different classes of cases. If, for example, the courts have announced a rule' of property, and the business community have accepted it as the guide in their transactions, and men have acquired rights in reliance upon it, a bench of judges would not act wisely to over- 1 Bishop First Book, § 51-59. well's Case, 10 How. St Tr. 147, 267; 2 For a sort of discussion of this ques- dim. Pro. I. § 18. tion by the notorious Jeffreys, sefe Rose- 47 § 96 OUTLINES AND INTRODUCTORY VIEWS. [BOOK I. turn the rule, and nullify transactions and divest vested rights, from the mere consideration that another rule would have been better or more harmonious with the general principles of the law. So, in cases of this sort, the doctrine of stare decisis has its full effect. ^ But not to all classes of litigation between pri- vate parties does this sort of consideration apply. And where no such reason prevails, what is intrinsically wrong, violative of just principle, and a blemish on the law, will, with greater or less freedom and certainty according to the circumstances, be, by enlightened judges, disregarded and overruled ; ^ though, of course, a mere established practice, which originally might have been better some other way, will be followed.^ And in various other cases the doctrine of stare decisis will and should prevail even against reasons of considerable weight.* Now, — § 94. In Criminal Law. — It is plain, in reason, that the decis- ions in the criminal law ought, in general, to stand among those particularly liable to be overruled when found to be wrong; but in reason, likewise, there are some exceptions to this proposi- tion. So let us look at particular classes of criminal cases. Thus,— § 95. Malum Prohibitum only. — When a statute forbids a thing not wrong in itself, one is in every view justified in doing it under circumstances which the highest courts of the State have held not to be within its restraints. Under such circumstances, to overrule the decisions, and punish a man for an act in itself innocent, and pronounced lawful by the tribunals, would be to inflict gross injustice; and, certainly unless in very special cases, it ought not to be done. Such overturning of established doctrine would be' too much in the nature of ex post facto judicial legislation. But — § 96. Malum in Se. — If what the man did was malum in se, so that he was conscious of wickedness in doing it, there would 1 Carver v. Louthain, 38 Ind. 530, 538, ' Bachman v. Sulzbacher, 5 S. C. 58, 539 ; Harrow v. Myers, 29 Ind, 469 ; Bar- 63 den u. Sontherland, 70 N. C. 528, 530-; * Jansen !>. Atchison, 1 6 Kan. 358, 382 ; Day V. Munson, 14 Ohio St. 488 ; Emerson Usill v- Hales, 3 C. P I) 319, 327 ; Pugh V. Atwater, 7 Mich. 12, 23 ; Pisher v. Hori- v. Golden "Valley Ry. 15 Ch. D. 330, 334, con Iron, &c. Co. 10 Wis. 351, Relchert 335; Selby v. Bardons, 3 B & Ad. 2, 17; «. McClure, 23 111. 516. "Williams v. Germaine, ,7 B. & C. 468; 2 Willis I'. Owen, 43 Tex. 41, 48, 49 ; Goodtitle v. Otway, 7 T. R 399, 419 ; Wal- Kneeland v. Milwaukee, 15 Wis. 454, 691 ; ton v. Tryon, 1 Dickens, 244, 245. Magee v. White, 23 Tex. 180, 189. 48 CHAP, v.] AUTHORITIES AND THEIR EFFECT. § 98 be no very weighty objection to overruling the former doctrine if clearly wrong,! and especially if upheld only by a single case.^ Above all, — § 97. Wrong Decisions adverse to Defendants. — Where de- cisions palpably wrong in principle have been pronounced how- ever frequently, and during however extended a series of years, adverse to the parties indicted, the courts in reason ought, on the request of any defendant, if fully satisfied of the error, to overrule them. Here the private party consents to the reversal for which he prays. The government, which is the other party, has no interest to perpetuate an unjust doctrine, and the judge must therefore deem that it both consents and joins the private party in his prayer. There are no vested interests to be di- vested, no injury to any mortal is to follow. Even if the question is of procedure, and the result is to be the discharge of one who has violated the law, justice has not failed ; for he may be in- dicted over again, tried, convicted, and punished. Thus the ac- tion of the court in reversing the wrong doctrine is as beneficial to the community as fair to the prisoner. § 98. In Conclusion, — These are but general views. Somcr thing further of them will appear from time to time, and in their proper places, throughout these volumes and the others of the series. No considerate bench of judges will act upon them to the overruling of a case, except where the conclusion that it- is wrong is positive and distinct, and all reasonable doubt is ex- cluded. And the applications of the views will considerably vary with the cases. ' When, if ever, they fully control the tribunals, our criminal law will receive from the judicial hand an improve- ment which it is impossible for legislation to bestow. 1 Post, § 295, 296. " S. V. Williams, 13 S. C. 546. VOL. I. — 4 49 § 101 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II, BOOK 11. THE GOVEENMENTAL LOCALITY AND ITS EESTJLT- ING JURISDICTION. CHAPTER VI. JURISDICTION OP CRIME AS BETWEEN THE UNITED STATES AND FOR- EIGN NATIONS. § 99-101. Introduction. 102-108. Territorial Limits of United States. 109-123. Jurisdiction outside of those Limits. 124-135, Jurisdictional Exemptions within those Limits. 136-144. Wrongs against Two or more Governments. Compare — with Grim. Pro. I. § 45-67, where the locality for the criminal suit, within the country, is explained. § 99. The Gist — of this chapter is, that our territorial limits are fixed by usage and treaties ; that outside of those limits we have no governmental authority; that the oceans belong to no one power, but are the common highways of nations; that the ships upon them are deemed of the territory of the nation to which they are severally attached ; that to a limited degree they are such also while in the harbors and internal waters of a for- eign nation ; and that to these propositions there are a few special exceptions arising from agreement^or tacit consent. § 100. Our states, — though sovereign in their own territory and within their respective spheres, have no diplomatic authority and are not known abroad. ^ Therefore they are not considered in this chapter. § 101. How Chapter divided. — We shall consider, I. The Territorial Limits of the United States; IL The Jurisdiction 1 p. V. Curtis, 50 N. y. 321, 10 Am. R. 483 j Chinese Exclusion Case, 130 V. S. 581. 60 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 104 outside of those Limits ; III. Jurisdictional Exemptions of Per- sons within those Limits ; IV. "Wrongs severally against Two or More Governments. I. The Territorial Limits of the United States. § 102. How Determined. — To ascertain these limits, we re- sort to the law of nations, and to our treaties with those govern- ments whose possessions border on ours. § 103. On the Ocean : — The Law of Nations — fixes Our ocean bounds, there being no treaties concerning them. Sea Common. — The oceans are the common highways of na- tions, — in reason, therefore, not admitting of individual owner- ship. Attempts have sometimes been made by a particular power to exercise a sovereignty over portions of them ; but they have been resisted by other powers, and down to a recent period it was unsettled in international law whether this kind of domin- ion is possible. It may now be deemed established that no such general claim, by any one nation, will be allowed by any other. The reason, is twofold : first, no one can hold such an actual and constant possession of the billows and tides of the deep as is necessary to give either property or dominion; and, secondly, if this could be, it would not be right, because the oceans, like the air, were plainly intended by God for the common use of all men.i But — § 104. Territorial Line at Ocean. — There is no occasion for the common use of the sea to touch the water-margin. And a nation bordering on it can hold possession of it as far from the shore as cannon-balls will reach ; while dominion to this extent is necessary for the safety of the inhabitants, who might other- wise, being neutral, be cut down in war by the artillery of contending belligerents. So much of ocean, therefore, the authorities agree, is within the territorial sovereignty which controls the adjacent shores. A cannon-shot is for this purpose estimated at a marine league, ^ which is a little short of three ' Wheaton Int. Law, 6th ed. 248 ; Flan- the universal or the common use. Portions ders Maritime Law, § 38, 40 ; 1 Kent Com. of the sea are prescribed for." Yet even 26 ; The Twee Gebroeders, 3 Rob. Adm. if we admit this possible doctrine, we may 336, 339, in which case, however. Lord doubt its applicability to any part of our Stowell said : " There may, by legal possi- own coasts, bllity, exist a peculiar property, excluding ''■ The Ann, 1 Gallis. 62 ; The Twee 51 § 105 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. and a half of our English miles; or, exactly, 3.4517. But the rule of thus computing a cannon-shot at a marine league was established while it accorded with the fact, before the improve- ments in guns and gunnery; so that, in reason, the distance would seem now to require extending, though no sufficient authority is before the author showing the extension to have actually been made ; ^ and we find it often assumed in discussions of this sort of question that the old distance remains. The measurement appears to be from low-water mark, and from the actual shore, not from the shoals.^ But — Islands. — If there are islands, too near for the water between them and the mainland to be common sea, the measurement outward must be from them. They need not be inhabitable ; for though they are of sand and rock they come within the reason of the rule, especially if sufficient to sustain fortifications.^ § 105. Harbors, Bays, Coves, and other Arms of the Sea, — SO narrow that the naked eye may reasonably discern objects on the opposite shore, are, it will be shown further on,* within the bodies of counties. Hence they are parts of the territory of the country. Beyond which, if where a gulf or bay puts up from the sea the distance across it does not exceed two marine leagues, being one league from each of the opposite shores to the centre, it consequently is a part of the country wherein it lies; and, supposing the land girding it to belong to one nation, the whole of it, thus cut off from the main waters, whatever its breadth further up, is the proper territory of such nation.^ Also, for further reasons, it appears that we may have the same result where the measurement exceeds, though it is not set, down by how much, the two marine leagues. Thus, the Chesapeake Bay,® which is twelve miles across at the ocean, and the Delaware Bay,'^ which is a little more,* are claimed, no doubt justly, to Gebroeders, 3 Bob. Adm. 336 ; Rex v. and places there referred to ; C. u. Man- Forty-nine Casks of Brandy, 3 Hag. Adm. cfiester, 152 Mass. 230; Manchester «. 257, 289, 290;, The Anna, 5 Eob. Adm. Massachusetts, 139 U. S. 240. 373 ; 1 Kent Qom. 29 ; Wheaton Int. Law, " The Anna, 5 Bob. Adm. 373, 385 c. 6th ed. 233, 234, 245, 496. 4 Post, § 146. 1 See Wheaton Int. Law, 2d annotated 6 Wheaton Int. Law, 6th ed. 248, 249, ed. by Lawrence, 321, note, 715, note. 252 ; Flanders Maritime Law, § 42. 2 Soult V. L'Africaine, Bee, 204; Rex 6 c. v. Gaines, 2 Va. Cas. 172; S. ». V. Forty-nine Casks of Brandy, 3 Hag. Hoofman, 9 Md. 28. Adm. 257, 289. As to the entire para- ' 1 Kent Com. 29. graph, see Reg. v. Keyn, 2 Ex. D. 63 ; b xhe distance is stated differently in 1 Bishop Mar. & Diy. 6th ed. Introduction the books which I have consulted; some 52 CHAP. VI. j UNITED STATES AND FOREIGN NATIONS. § 106 be within the territorial limits of the United States. * Though vessels may pass up such places beyond reach of cannon-balls, they cannot enter the harbors without leave ; nor, through them, can they reach the ports of other powers. Consequently there cannot be pleaded for such places that common necessity which renders the outer ocean the highway of nations. In this par- ticular, and in the fact that the repose of the adjacent country may be more menaced within those localities than on the open ocean at equal distance from the shore, we see a difference, well justifying a departure from the general rule. § 106. Vessels in Foreign 'Waters. — What we have thus been considering is that perfect territorial sovereignty which, in the language of Marshall, C. J. , " is necessarily exclusive and abso- lute, susceptible of no limitation not imposed by itself. " Over waters within this sovereignty, though the vessels of all nations are in the habit of passing under an implied license, they have no right to pass if the license is revoked.^ On the Ocean outside of these Lines, — there is sometimes exercised a sort of cautionary jurisdiction for the safety of the country, and for preventing the infraction of its laws, hardly allowable at points still further from the land. Thus, in the words of Kent : " The statute 9 Geo. 2, c. 35, prohibited foreign goods to be transshipped within four leagues of the coast without payment of duties; and the act of Congress of March 2, 1799, c. 128, § 25, 26, 27, 99, contained the same prohibition ; ^ and the exercise of jurisdiction to that distance, for the safety and pro- tection of the revenue laws, was declared by the Supreme Court in Church v. Hubbart * to be conformable to the laws and usages of nations."^ He adds: "Considering the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime juris- diction; and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and welfare the control of the waters on our coasts, though included within lines stretching from quite distant headlands; as, for putting it at but d fraction over twelve ^ Schooner Exchange v. McFaddon, 7 miles, others as high as eighteen; and I Cranch, 116, 136. have not at hand the means of settling » See R. S. of U. S. § 2760, 2811, 2812, the question. 2814, 2867, 2868. » And see Direct U. S. Cable Co. v. * Church v. Hubbart, 2 Cranch, 187. Anglo-American Tel. Co., 2 Ap. Cas. 394. ' 1 Kent Com. 31. 53 § 109 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Dela- ware, and from the south cape of Florida to the Mississippi. " i § 107. Our Land Boundaries: — By Treaties, &o. — These are established by treaties with Great Britain on the one side, with Spain and Mexico on the other, and with Russia as to Alaska ; and by the awards of commis- sioners to settle boundaries under the treaties. The treaties and awards are published with the laws of the United States, and they need not be set out here. § 108. Lines iiow run. — The rule of international law runs the dividing lines in the middle of rivers and other streams of water ; unless a treaty or a prescription otherwise provides in the par- ticular instance.^ And the treaties and awards of commission- ers have generally in express words followed this rule, including •with the rivers the great lakes, yet so varied as to leave the whole of each island in the territory of one or the other of the adjoining powers. Mutual Navigation. — Our treaties provide also for some mutual rights of navigation, by the vessels of the two nations, in each other's waters, along these lines. Our Northern Lakes. — Since the lakes between the British possessions and ours would if all in one country be parts of its territory,^ evidently any portion of them assigned by the treaties to either power becomes thereby, in the absence of a contrary clause, in the same complete way a part of such country ; no third government having the right, by reason of its possessions bor- dering upon or connecting with the lakes, to interfere.* II. The Jurisdiction outside of Territorial Limits. § 109. Laws not Extra-territorial. — In general and. prima facie, the government of one country has neither interests nor power to enforce its will within the limits of another country, or outside of its own territorial bounds ; therefore, in the absence of anything exceptional, neither a written nor unwritten law has any extra-territorial force. ^ And in our practical common-law 1 1 Kent Com, 30. See Wheaton Int. » Wheaton Int. Law, 6th ed. 252, 253. Law, eth ed. 496; The ApoUon, 9 Wheat. * And see Tyler v. P. 8 Mich. 320; P. 362. V. Tyler, 7 Mich. 161. 2 The Twee Gebroedera, 3 Rob. Adm. ' 1 Bishop Mar. Div. & S. § 828, 832, 336 ; Flanders Maritime Law, § 44. 835, 866, 873, 878 ; Stat. Crimes, § 141. 54 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § HI jurisprudence this rule, as to crime, is aided by the fact that a common-law court has jurisdiction only over transactions within its own county. 1 But a statute or the nature of a particular case may create a real or apparent exception, and it is chiefly after the exceptions we are inquiring in this sub-title. To re- turn to the general rule, — § 110. Act done out of Country. — Subject to exceptions to be stated as we proceed, no man is to suffer criminally for what he does out of the territorial limits of the country. ^ But not incon- sistently with this doctrine, — Taking Effect here. — If one personally out of the country puts in motion a force which takes effect in it, he is answerable where the evil is done, though his presence was elsewhere.^ Thus,— Murder — Libel — False Pretences, &c. — Where a man, stand- ing beyond the outer line of our territory, by discharging a ball over the line kills another within it ; * or, himself being abroad, circulates libels here ; ^ or in like manner obtains here goods by false pretences;^ or does any other crime in our own locality against our laws ; ' he is punishable^ though absent, the same as if he were present. But — §111. Technical Obstacles — Accessory Before. — Though, the principles of the law demand punishment, practically there can be none if the court has no jurisdiction. Therefore in some of our States, by reason of entanglements with common-law rules not overcome by statutes, if what is done is felony, and it pro- ceeds from the personal volition of a guilty agent here, who con- ' Crim. Pro. I. § 45 et seq. ' C. v. Blanding, 3 Pick. 304 ; Rex v. 2 Musgrave v. Medex, 19 Ves. 652; C. Johnson, 7 East, 65, 3 Smith, 94. V. Green, 17 Mass. 515, 540; Rex a. « Adams a. P. 1 Comst. 173; P. ». Ad- Hooker, 7 Mod. 193 ; Putnam v. Putnam, ams, 3 Denlo, 190, 610, 45 Am. D. 468. ' 8 Pick. 433 ; Adams v. P. 1 Comst. 173 ; 'Co. Gillespie, 7 S. & R. 469, 10 Am. Manley v. P. 3 Seld. 295. And see Gra- D. 475; Rexu. Munton, 1 Esp. 62; Bark- h?im V. Monsergh, 22 Vt. 543. hamsted v. Parsons, 3 Conn. 1, 8 ; Wooten 8 Grim. Pro. I. § 53. "■ Miller, 7 Sm. & M. 380; S. v. Chapm, * Adams v. P. 1 Comst. 173, 179 ; U. S. 17 Ark. 561, 65 Am. D. 452 ; Rogers v. S. B. Davis, 2 Sumner, 482, 485. In the latter 11 Tex Ap. 608. "If a man employ a case, one who by discharging a ball from conscious or unconscious agent in this a gun on an American ship killed a person country, he may be amenable to the laws in a foreign vessel in a foreign harbor was of England, although at the time he was held not punishable under the United livmg beyond the jurisdiction." Lord States laws, — the act, in legal contem- Campbell, C. J. in Reg. a. Garrett^ Dears. platiOD, being done on board the foreign 232, 241, 6 Cox C. C. 260, 22 Eng. L. & vessel ^1' ^^'^- ^SB In re Carr, 28 Kan. 1. 55 § 112 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. sequently is the principal felon, the procurer, being an accessory before the fact, can be indicted only in the foreign country, if at all;i because the common law requires' such participant to an- swer where, and only where, he does the procuring. ^ Yet with- out questioning the doubtful doctrine of the accessory being indictable only in the county in which he entices the principal, as applied to offences wholly in our own country or State, there is ground for another view, which seems more just; namely, that since we cannot take notice of any jurisdiction of the for- eign government over the procurer, or recognize his liability to answer in the place of the procurement, we must regard him as we do one who, in our own country, performs an act of crime through an innocent agent ; that is, punish him as principal ; the same reason of necessity existing in the one instance as in the other. 3 Again, — § 112. 1. Citizen or Vessel away from Home. — A ship on the. ocean or in foreign waters, or a citizen temporarily abroad, still remains partly or fully, according to the circumstances, attached to its or his own country. And at such a time, the ship or the man owes corresponding duties to the government at home, and is entitled to a just protection therefrom. So that an offence committed by or against the citizen abroad, or by or against anybody in the ship, is, on the principles of international juris- prudence, punishable by such government, subject to qualifica- tions under special circumstances more fully to appear further on.* Now, — 2. statutes — Jurisdiction. — Practically to punish such an offence, there must be a judicial tribunal having the jurisdic- tion ; and, with us, the tribunal' and the jurisdiction come only from statutes. Unhappily, as the statutes are at the time of the 1 S w. Moore, 6 Post. N. H. 448, 59 becomes accessory before the fact to a Am. D. 354, S. V Chapin, 17 Ark. 561, felony therein, — the construction being 65 Am D. 452 See P. v. Adams, 3 Denio, that it applies only to principals, not also 190, 45 Am. D. 468. A statute provided to accessories. Johns u. S. 19 Ind. 421, 81 that " every person, being without this Am. D. 408. State, committing or consummating an " And see Crim. Pro. I. § 52, 58, and offence by an agent or means within the some accompanying sections. State, is liable to be punished by the laws » See C.'v. Gillespie, 7 S. & R. 469, 478, thereof, in the same manner as if he were 10 Am. D. 475 ; S. v. Grady, 34 Conn. 118 ; present, and had commenced and consum- C. v. Pettes, 114 Mass. 307 ; Noyes v. S. 12 mated the offence within the State." And Vroom, 418. it was held not to authorize the punish- * Post, § 117-121. ment of one who, while out of the State, 56 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 112 present writing, there is under occasional facts an unfortunate lack of jurisdiction. 1 In form, our -statutes do not always or gen- erally descend to definings which preclude inquiries by the court as to whether or not it has authority over the particular act of wrong. And the true rule of interpretation is that, assuming the terms of the statute to be broad enough to cover the wrong, the jurisdiction extends to it or not, according as the law of nations allows or forbids the same, — the ordinary rules of statu- tory interpretation requiring such law to operate as a restriction upon the general statutory terms. ^ Thus, — 3. Blow and Death. — By the English 9 Geo. 4, c. 31, § 8, ''where any person, being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England, shall die of such stroke, &c., in England, &c., every offence committed in respect of any such case, &c. , may be dealt with, Ac, in the county or place in England in which such death, &c., shall happen, in the same manner in all respects as if such offence had been wholly committed in that county or place." Thereupon, where a person was beaten on board an American ship bound from New York to Liverpool, and died in Liverpool of the beating, none of the parties being English, the English tribunal declined the jurisdiction, though, it is seen, the case was completely within the statutory words. For the English legislature had no right to make what was done by foreigners, on board a foreign ship, a crime against English law.^ And the fact that the ship had, under false representations, been regis- tered as British, if it was not in truth such, could make no dif- ference.* This case, it is perceived, proceeds on the idea that — 4. The Blow, not the Death, makes the Murder — Conse- quences. — Within well-established principles, it is competent for legislation to make punishable the whole of any offence whereof a material part was committed within the jurisdiction. ^ 1 See, for example, expdsitions by nard, 1 Fost. & F. 240 ; Attorney-General Brown, J. in Ex parte Byers, 32 Fed. v. Kwok-a-Sing, supra ; Reg. v Anderson, Rep. 404. . Law Rep. 1 C. C. 161, 11 Cox C. C. 198 ; 2 See, as explaining the principle, Stat. Reg. ». Seberg, Law Rep 1 C. C. 264, 1 1 Crimes, § 75, 82, 88, 114, 123, 131-137. Cox CO.. 520; Hoongi). Reg. 7 CoxC.C. And see post, § 115, and note, par. 9; At- 489; Reg. v. Sattler, Dears. & B. 525, 7 torney-General f . Kwok-arSing, Law Rep. CoxC. C. 431. 5 P. C. 179, 8 Eng. Rep. 143, 159, 160. * Reg. v. Bjornsen, Leigh & 0. 545. 8 Reg. «. Lewis, Dears. &B. 182, 186, 6 Grim. Pro. 1 § 56. 7 Cox C. C. 277. And see Beg. «. Ber- 57 § 114 GOVERNMENTAL LOCALITY AND JURISDICTION. [bOOK II. But the true doctrine of the law, sometimes disputed, is that the death is no part of a murder, which is wholly committed at the time and place of the blow, though the death is subsequent and elsewhere. 1 And within this view, it is by most of our courts held to be even incompetent for legislation, by words however express, to punish a man having no adhesion to the country for murder by a blow inflicted out of it. In the words of a learned New Jersey judge : " An act, to be criminal, must be alleged to be an offence against the sovereignty of the government. This is the very essence of crime punishable by human law. How can an act done in one jurisdiction be an offence against the sovereignty of another ? " ^ This doctrine, that the death is no part of the murder, is the same which has sometimes arisen — § 113. As between Counties. — According to English author- ity, a homicide is committed in a county if the blow was in- flicted in it, though the death takes place elsewhere.^ So, in Tennessee, a statutory provision that " in all criminal cases the trial shall be had in the county in which the offence may have been committed, " was adjudged to require the trial to be in the county of the blow, though the death occurred in another county. "It would be doing violence to language," observed Green, J., " to say that the offence was committed in the county where the death happened, although the stroke were given in another county. " * And a California case holds that a homicide is com- mitted when the fatal blow is struck, and not afterward when the death occurs." There is other authority on the same side, yet there is still other that is contradictory.^ And — §. 114. Contrary, as between Nations. — From the majority of the Michigan Court, and from the undivided Massachusetts tribu- nal, we have decisions directly opposed to the foregoing views. Thus, by statute in Michigan, " if any such mortal wound shall 1 Crim. Pro. I. § 51. before the day, whereof the party died not 2 S. V. Carter, 3 Dntcher, 499, 501 ; S. till after the day ; because the stroke, V. Kelly, 76 Me. 331, 49 Am. U. 620 ; U. S. which is the cause of the death, being V. Guiteau, 1 Mackey, 498, 47 Am. R. 247 ; pardoned, all the effects of it are couae- Green v. S. 66 Ala. 40, 45, 41 Am. R. 744. quently pardoned." 2 Hawk. P. C. Curw. , 8 Grosvenor v. St. Augustine, 12 East, ed. c. 37, § 21. See also P. v. Gill, 6 Cal. 244. Blow pardoned. — "Also," says 637. Hawkins, " it hath been adjudged that if * Riley v. S. 9 Humph. 646, 657. a general act of pardon extend to all felo- ' P. o. Gill, 6 Cal. 637. nies, offences, injuries, misdemeanors, and ^ gee^ for authorities on both sides, other things done before such a day, it Crim. Pro. I. § 51, 52. Also Hunter v. S. pardons a homicide from a wound given 11 Vroom, 495, 547. 68 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 115 be given, or other violence or injury shall be inflicted, or poi- son administered, on the high seas, or on any other naviga- ble waters, or on land, either within or without the limits of this. State, by means whereof death shall ensue in any county thereof, such offence may be prosecuted and punished in the county where such death may happen ; " and it was adjudged, Campbell, J., dissenting, that where the mortal wound was given on a river within a county in Canada, and the death was in Michigan, the person inflicting the blow was indictable in Michigan, though he did not appear by any evidence to be a citizen of the State. Said Manning, J. : " The shooting itself, and the wound which was its immediate consequence, did not constitute the offence of which the prisoner is convicted. Had death not ensued, he would have been guilty of an assault and battery, not murder ; and would have been criminally accountable to the laws of Canada only. But the consequences of the shoot- ing were not confined to Canada. They followed Jones [the de- ceased] into Michigan, where they continued to operate until the crime was consummated in his death. If such a killing did not by the common law constitute murder in Michigan, we think it the clear intent of the statute to make it such, to the same ex- tent as if the wounding and the death had both occurred in the State. " ^ The Massachusetts statute is in substance the same with this one, and the court reached the like result by the like reasoning; holding that where blows and other injuries had been inflicted on a seaman in a British ship on the high seas, by persons not citizens of Massachusetts, and the seaman died of the injuries in Massachusetts, the offenders could be convicted and punished by the courts of the latter State. ^ Now, — § 115. In Reason, — and in accord with the more numerous authorities as above stated, it is no offence against a State for a man to die on its soil ; or, if it were, the murdered man and not the murderer would be the party to be hung for it. Nor is it an offence against the State for a well man to bring another who is mortally wounded to . die in it. And if it should be the fact that the well man was the one who inflicted the mortal wound outside of the State, the case would not thereby be 1 Tyler i. P. 8 Mich. 320, 334. See ^ C. v. Macloon, 101 Mass. 1. , also Bromley v. P. 7 Mich. 472; P. v. Tyler, 7 Midi. 161. 59 § 116 GOTEENMBNTAL LOCALITY AND JURISDICTION. [BOOK II.' changed; because no State has authority to punish a foreign wrong. A statute in the Massachusetts or Michigan terms could make no difference; since, as we have seeuj^ it must be inter- preted as limited by the law of nations. Of course, the case now in contemplation is neither one in which the blow was inflicted on board a ship belonging to the State, nor one wherein one of the parties was a citizen. Some further views, with observations on one of the cases, follow in a note.^ 1 Ante, § 112 (2). 2 1. C. «. Macloon, 101 Mass. 1, already cited, is perhaps the more fully considered of the two cases to which I am objecting, and it is the later. I shall make the doc- trines of the text more clear, and help the reader in various respects, if in a sort of review of it I point out some of the errors into which one not carefully considering the subject might fall. Let us look at two particulars in this case illustrating the liability to err, then pass to the main question. 2. First. The learned judge, in review- ing the dissenting opinion of Campbell, J. in the Michigan case, says : " It is further asserted that ' there are very high authori- ties for saying that at common law a trial might always be had in the county where the mortal blow was given, for that alone is the act of the party, and the death is but a consequence ; ' for which are cited 1 East P. C. 361, 1 Hale P. C. 426, and 1 Bishop's Crim. Law, § 454 [a misprint for § 554], But both Lord Hale and Mr. East are speaking only of the ' more com- mon opinion' before the Stat, of 2 & 3 Edw. 6, c. 24 ; and the words ' that alone is the act of the party ' are an addition of Mr. East, not to be found in Lord Hale, who immediately afterwards says,. ' On the other side, as to some respects, the law re- gards the death as the consummation of the crime, and not merely the stroke,' of which he gives several illustrations, be- sides some already mentioned in the earlier part of this opinion." p. 19. The learned judge then proceeds to other parts of his argument. What inference is the reader to draw with regard to the third citation made by Campbell, J. ? The inference of most men, and the one which the learned judge evidently intended, would be that Bishop merely followed Hale and East, 60 and added nothing further in authority. In fact, however, there is at the place thus referred to (Crim. Law I. § 554, 555, of the 1st and 2d editions, transferred after- ward to Crim. Pro. I. § 67, 68 of the 1st edition, and § 51, 52 of the 2d) a pretty full, though not perfect, collection of au- thorities on both sides. For example, the Tennessee case, cited to ante, § 113, is there ; in which it was held that the of- fence is committed at the place of the blow, though the death is elsewhere, within a statute requiring " all criminal cases " to be tried "in the county in which the offence may have been committed." Said Green, J. in delivering the opinion of the court : " The Statute of Edw. 6 was enacted to remove all doubt upon the subject, be- cause different opinions, growing out of the refinements of that period of the com- mon law, had been expressed. We 'find no decision in which it had been held that the murderer in such case could be indicted in neither county. On the contrary, East says, the common opinion was that he might be indicted where the stroke was given. That alone is the act of the party. He commits this act, and the death is only a consequence. Therefore, when the legis- lature enact that the party shall be tried in the county where the offence may have been committed, they intended where the active agency of the perpetrator was em- ployed." Eiley v. S. 9 Humph. 646, 658. 3. Secondly. Two objections had been made to the indictment, one that it was multifarious, and the other that it did not charge the injuries to have been " mortal." The former was clearly not well taken; but the court dispose of the two together, thus : " In such a case it is abundantly es- tablished by precedents that it is sufficient to allege that the death resulted from all these means, without otherwise alleging OHAP. VI.] UNITED STATES AND FOREIGN NATIONS. 116 § 116. In Brief, — and in conclusion of this question, if a material part of any crime is committed on our soil, though it either of them to have been mortal, and to prove that it resulted from all or any of them. 2 West's Simb. § 301, 308; Wes- ton's Case, 3 Inst. 50, 135 ; Jackson's Case, 18 How. St. Tr. 1069, 107.5, 1111; 2 Hawk. P. C. c. 23, § 83 ; Rex v. Clark, 1 Brod. .&B. 473; C. <., Stafford, 12 Cnsh. 619." p. 23, 24. Now, on the question whether or not the word " mortal " should be em- ployed, there is nothing in any one of the places referred to affording any real light whatever. I'he brief forms in West's Sim- boleography, however, do not happen to contain the word ; but even if this were a book of authority, the omission would amount to nothing as against actual adju- dication ; for it is common to see forms taken from books of high standing pro- nounced ill for some cause which did not occur to the compiler. But weak as this - reference is, it is the strongest in the col- lection, — in no one is it said, or by any words except as just stated is it intimated, that the presence of the word " mortal " is unnecessary. In the cases thus referred to generally, the indictment is not given in full, this question was not raised, and whether it contained the word " mortal " or not we cannot know. The passage re- ferred to in Hawkins does not relate to this point, but the other. Now, in fact, from early times to the present day, the law, as actually adjudged and adminis- tered, has required the word "mortal." Thus, if the death proceeds from a wound inflicted by the defendant, the allegation is that it was "mortal" (Crim. Pro. II. § 521 ) ; if from the defendant's neglect, the indictment charges that by reason of it the deceased " sickened and languished with a mortal sickness," &c. (Crim. Pro. II. § 538) ; if death proceeded from starva- tion, the charge is that the deceased be- came "mortally emaciated and consumed " (Crim. Pro. II. § 557) ; or if from poison- ing, the indictment alleges that the de- ceased was made " mortally sick and dis- tempered in his body" (Crim. Pro. II. § 553). The doctrine is laid down by Hale thus: "As well in the indictment o£ manslaughter as murder, the stroke is to be alleged to be mortalis plaga, and given felonice, and in both cases interfecit." 2 Hale P. C. 186. And in 1773, while our original States were English colonies, this question came for solemn adjudication be- fore all the judges of England, De Grey, C. J. only being absent, and they "unani- mously agreed " that the word " mortal " is essential,' and adjudged the indictment in controversy bad for omitting it. Hex u. Lad, 1 Leach, 96. This doctrine, to which the practice has conformed, is laid down in all the text-books, to the present day. For example, it is in 1 East P. C. 343 ; 1 Stark. Crim. PL 2d ed. 93 ; 3 Chit. Crim. Law, 752 ; 2 Deac. Crim. Law, 928 ; 2 Gab. Crim. Law, 241 ; 1 Riiss. Crimes, 3d Eng. ed. 561 ; Train & Heard Prec. 250. This is the general doctrine. And it is in terms affirmed in a subsequent case in Massachusetts, reported in the very next volume of reports. C. v. Woodward, 102 Mass. 155, 160. Some of the text-books speak of it in connection merely with cases in which the death proceeded from a stroke or wound ; and in Lad's case the fact was that the death was caused by ravishment. Whether the doctrine does really extend to every kind of felonious killing — or, if not, what are its limits — is a question which seems not to be settled by adjudica- tion. In this Macloon's case, blows pro- ducing wounds were charged as one of the means of the killing, the wounds were not alleged to be mortal either alone or in combination with the rest ; and so, even if we should admit that the injury suffered from the neglect need not be charged as mortal (and certainly no reason appears, in principle why it need not be), the part alleging the blows and wounds must, in principle, at least be rejected as surplusage. A good count might perhaps still remain ; but irrelevant testimony had, in this view, been admitted at the trial to the prejudice of the defendants. I do not say what the consequence would be. The learned judge observed : " It is sufficient to allege that the death resulted from aU these means, without otherwise alleging either of them to have been mortal, and to prove that it resulted from all or any of them." In this case, therefore, if blows alone were proved (what was the fact, I do not know), then the defendants were certainly con- 61 § 116 GOVERNMENTAL LOCALITY AND JUEISDICTION. [BOOK 11; is the lighter part, legislation with us may properly provide for the punishment of the whole of it here, at least where no juris- victed on an allegation uniformly held to be inadequate. If the learned judge was aware of this state of the law, it was ex- traordinary to turn off the point thus. If he looked into any of those books to which lawyers seeking information on questions of this sort go iirst, he saw how it stood. If he did not, but, avoiding them, and avoiding the digests, went direct to "West's Simboleography, to Coke's posthumous Third Institute, to the State Trials, and, as we see in other parts of the opinion, to the Year Books, to Selden's Fortescue, and to the Hargrave Manuscripts, together with various other ancient books, which, however worthy of regard, are not the first to be consulted, still we are conducted to the same conclusion. It is that for some reason, and it is immaterial what, the judicial mind was not, when this de- cision was pronounced, in a condition of such enlightenment as to render it of weight in the scale of general judicial authority. 4. We come now to consider a few of the questions involved in the general dis- cussion. One is whether by the principles of the common law a homicide is com- mitted in the locality in which the blow is given, or in that in which the death takes place, or partly in the one and partly in the other. (See, for a collection of au- thorities, ante, § 113; Crim. Pro. I. § 51, 53. ) It has been assumed that if we can ascertain what was the county in which under the ancient common law the indict- ment should be found, we should then have the whole difficulty solved. But, even as to this, we have little light ; since, in 1548, a statute (2 & 3 Edw. 6, c. 24, § 2) directed that the indictment might be in the county of the death, and this statute is common law in our country. Crim. Pro. I. § 52. Yet, to my mind, the effect of the inquij:y into the county in which the indictment must have been found under the ancient common law requires some observation. In the early times, the petit jurors were the witnesses, and the witnesses werekhe jurors. And the jurors, in cases of life and limb, were not permitted to find a verdict on their belief produced by the testimony of others, they must speak 62 of their own knowledge. They could not be summoned from out the county in which the indictment was found, or even from the whole body of the county. The grand jury were required to find the par- ticular vill, parish, ward, or other minor locality in which the offence. was com- mitted, as a guide to the sheriff in search- ing for the jurors. Crim. Pro. I. § 362-366. From this, it seems to me, it must have happened, though the proposition is dis- puted, that sometimes, if a blow were given in one county and death took place in an- other, the grand jury could not find an indictment in either ; because it could not, in either, find witnesses both to the blow and the death. Plainly the death must be proved, whether regarded as a part of the offence, or as a collateral circumstance like the ownership in larceny, or the char- acter of the building as a dwelling-house or not in burglary, and so on. Accord- ingly Starkie says : " It seems to have been held that no collateral circumstance could be inquired of, if it happened in a second county, though the facts in which the offender was personally concerned were confined wholly to the first; so that (see preamble to 2 & 3 Edw. 6, c. 24 ; Staunf. 89 ; 2 Hale P. C. 163 ; 6 H. 7, 10 ; 10 H. 7, 28 ; 10 H. 7, 20 ; Fitz. Ind. 23) if A in- fiicted a mortal wound on B in one county, of which B died in the adjoining one, A could be indicted in neither ; for a jury of the first [being, as I have just said, wit- nesses, and compelled to find their verdict, not in any degree on the testimony of others, but wholly on their personal knowl- edge] could not take notice of the death in the second, and a jury of the second could not inquire of the wounding in the first. Though it appears from the preamble to the Stat. 2 & 3 Edw. 6, c. 24, that such was the law at that time with respect to indict- ments of homicide, yet it was otherwise with respect to appeals of death, which, when the blow yas struck in one county and the party died in another, u.sed to be tried by a jury from both counties. 4 H. 7, 18 ; Br. Cor. pi. 141 ; 1 Hawk. P. C. 6tii ed. c. 31, § 13; 2 Hawk. P. C. c. 23, § 35 ; 2 Inst. 49. . . . But it was held that an indictment must be taken in one county CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. §116 diction abroad has in fact been taken. But to punish a foreign murderer simply because his victim came among us to die is to only. 4 H. 7, 18. And the difficulty was frequentlij avoided by carrying the dead body hack into the county where the blow was struck, and there [where the witnesses to the stroke, who were to be the jurors, might identify the body, and thus learn of their own kuowledge that the man was dead] a jury might inquire both of the stroke and of the death. 6 H. 7, f. 10 ; 1 Hawk. P. C. 6th ed. c. 31, § 13 ; 7 H. 7, f. 8. And even without such removal it seems to have been doubted whether a jury of the county where the stroke was given might not inquire of the felony." 1 Stark. Crim. PI. 2d ed. 3 and note. This practice of removing the dead body and its effect are spoken of in other books in the same way as by Starkie, — it is so in the opinion of the court in this Macloon case, p. 9, — yet persons in modern times, who have com- mented on it, seem strangely to have over- looked its significance. I have never seen it disputed, while it is asserted often, that whatever might be the legal rule in the absence of the dead body, if the body were brought back to the county where the blow was given, there might, before the Statute of Edw. 6, be an indictment and conviction in such county. Yet every fact, essential to the crime, must have transpired in the county where the indict- ment was found. Crim. Pro. I. § 54. Now, the bringing back of the dead body could not change facts. It was as true after the body was brought back as before, that the death took place in the other county. And if the law was really as it is thus asserted on all sides to have been, it is thereby demonstrated that the death was but a collateral circumstance, though a necessary one ; and, in contemplation of law, the guilt of the homicide consisted in giving the "mortal" stroke. Hence the necessity of alleging, as we have seen the law required the pleader to do, that the wound was mortal; otherwise the complete criminal act would not appear to have been committed at the time and place when and where the blow was charged to have been inflicted, the blow not being shown to be anything more than a battery. One thing is certain; namely, that if the effect of bringing the body back to the county of the blow was as thus stated, nothing was necessary to constitute the complete offence except the mortal wound and the dead body. Is, then, the mere dead body a part of the crime ? And, after a man is feloniously slain, can the friends of the deceased take the dead body and, consistently with sound principles of jurisprudence, cause the of- fender to be indicted in any civilized coun- try where he can be confronted with it f Yet, in reason, the absurdity of such a, proceeding would hardly exceed that of indicting the offender wherever, in a for- eign State whose laws were not violated by the blow, the man might choose to die. I have never seen any case cited in our law, from analogy to which the latter pro- ceeding would seem to me to be justified. Let us look at some which have been sup- posed to be analogous. 5. In Macloon's case, the doctrine of larceny in one county or State and the stolen goods carried into another is men- tioned. We shall see (post, § 137-143), that there is in the books much mist on this subject. But goods may be stolen by the same thief, or by different ones, over and over as many times as wickedness prompts, and come out fresh and ready to be stolen again. On the other hand, a felonious homicide can be committed on the same person but once. And those doctrines of larceny which have been sup- posed to furnish analogies for our present subject rest on the idea that the goods have been stolen a second time. Larceny is constituted by any manual removal of the goods by trespass, however slight, where the trespasser has the felonious in- tent to convert them to his own use. If, therefore, a man steals personal effects in Maine and brings them into Massachu- setts, they are not his here, — our laws, taking no cognizance of the felony in Maine, do still look into the ownership in Massachusetts, — then if he commits on them the trespass of removal here, as he does in bringing them however short a distance across the line, and if while he is committing the trespass he means to steal them, he commits a complete larceny in this State under our ordinary laws. Let § 116 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK B. usurp the functions of the foreign government. We often see foreign governments omitting what we deem to be their duty, us see what analogy to homicide this doc- trine presents. In the one case, the in- jured person is he whose goods are stolen ; in the other, he who receives the blow. In both, the injury was inflicted in Maine. The wounded man comes to Massachu- setts and dies here. Then, to carry the comparison along, the one whose goods were taken, not the goods, must come to Massachusetts, and enter bankruptcy. But no one pretends that this will make the thief liable for larceny in Massachusetts, — why, then, should it make the one who inflicted the blow liable for homicide here ? But if the thief brings the goods to Mas- sachusetts, instead of the injured person coming here, then, to make the analogy good, the assailant must bring his club here, while the wounded man remains and dies in Maine. No instruction can be drawn from this view. 6. The other supposed analogies may be answered in similar ways. But the answers will occur to the reader. If the new doctrine is to be carried, out to its legitimate consequences, let us see what we shall have. A man sends to another a libellous letter, indictable because of its tendency to create a breach of the peace. The consequences of this letter do not end, any more than do those of a mortal blow, when it is received. They continue to act on the person who received it as long as he keeps it in his pocket. But the writer starts off on foreign travel. The other starts after him, still clinging to the letter. According to the new doctrine, the writer may be indicted in any country on whose soil the other sets foot. In like manner, it is not sufficient to hold, as the courts do, . that if a man publishes a libel in Maine and sends it into Massachusetts, he may be indicted in the latter State; but the analogy goes further and produces the doctrine which the courts do not hold, that if one in Maine to whom a libel is sent, of his own motion sends it to Massachusetts, the original offender may be indicted here. So, if an assault crea'ting a wound not mortal is given in Maine, and the injured person comes to Massachusetts where he feels a pain from it, the offender may be indicted in Massachusetts for the battery. 64 7. But it is not proposed to go over this whole ground Since our States have local limits, and all intercourse with foreign nar tions is by the general government, it seems important that if a foreigner is to be called to answer for what he did in his own coun,tiy or on board a foreign ship, it shall be by the United States, not by a State. If the foreign State complains, it should be able to complain to the power by which the prosecution was carried on. In this Macloon case, one of the defend- ants was a citizen of Maine. He was, therefore, a citizen of the United States ; and, perhaps, in strict law, only a citizen of the United States when he was beyond the jurisdiction of Maine. There ought to have been a law of Congress under which he could be punished. The other deiend- ant, who was convicted, was an English subject, and he ought to have been de- manded by the British government, sur- ,rendered under the treaty, and punished at home. If Congress had failed to pro- vide a tribunal for the one case, and the British government was remiss in its duty in the other, that furnishes no reason why Massachusetts should interfere, unless she had a jurisdiction based on sound legal principles. And it is not generally recog- nized as sound to hold that a wound, not even described as mortal, is a force from him who Infl-icts it, operating as an abiding presence of the wrong-doer in every country into which the injured person may choose to carry the wound. 8 The true view, therefore, is that the infliction of the mortal blow constitutes the crime in felonious homicide ; yet, until death, the mortality of the wound cannot be established in evidence. Therefore it is contrary to sound doctrine to hold a foreigner responsible to our laws which he violated by no act, merely because this collateral evidence culminated on our ter- ritory. True, the United States tribunals have held that if a blow is given on the high seas, and death follows on land, the homicide is not fully committed on the high seas. (See U. S. v. McGill, 4 Dall. 426; U. S. V. Bladen, 1 Cranch, C. C. 548 ) But this holding has been mainly in conse- quence of the early cases not having been CHAP. VI.J UNITED STATES AND FOREIGN NATIONS. §116 but to jump uninvited into every vacuum of this sort would be to make ourselves a nuisance in the family of nations. To ren- well argued, and is a remnant of the old doctrine which necessarily prevailed when the petit jurors were also the wituesses. And it is not uncommon in the law, even where no obscurity clouds the vision of the judges, to cling to a technical rule when the reason of it has passed away. Thus, in this very matter, the rule that the in- dictment must allege in what vill or other local place within the county the offence was committed, in order to guide the sheriff in selecting the men who were to serve in the double capacity of witnesses and petit jurors, was continued in England long after the reason of it had become obsolete ; and it appears not to have been fully over- thrown till 1825, or perhaps 1851, when the doctrine long before demanded by the altered law was established by statute. Crim. Pro. I. § 365-368. Yet all such doc- trine, resting on a technical reason, is, ad- mitting for the argument's sake that it is sound, a mere peculiarity of the jurispru- dence of those countries in which the com- mon law prevails, and it cannot claim a place in the law of nations. 9. But it is said that the courts must follow the legislative mandate, whether wise or unwise, and whether conformable to sound principles of law and of interna- tional rule or not, unless it is repugnant to some provision of the Constitution. Now, how far this may be so we need not inquire ; becau.se thus far there has been no call for the application of any such doctrine. All'statutes are to be construed in connection with one another, with the common law, with the Constitution, and with the law of nations. Stat. Crimes, § 86-91, 12.3, 131. In the words of Story, J. speaking for the whole Supreme Court of the United States : " The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens. Thejt can have no force to con- trol the sovereignty or rights of any other nation within its own jurisdiction. And however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted, in con- struction, to places and persons upon whom the legislature have authority and jurisdic- VOL. I. — 5 tion." The Apollon, 9 Wheat. 362, 370 ; Stat. Crimes, § 141 ; ante, § 112 (2) , post, §121. Now,, the Massachusetts statute, in like terms with the Michigan, Is : '■ If a mortal wound is given, or other violence or injury inflicted, or poison is adminis- tered, on the high seas, or on land either within or without the limits of this State, by ineans whereof death ensues in any county thereof, such offence may be prose- cuted and punished in the county where the death happens." p. 4, 5, irt the report of Macloon's case. If, therefore, a citizen of Massachusetts inflicts on any person a blow outside the limits of the State, it is, by the principles of our law, an " offence " against his own State, and it would be punishable at the common law but for the want of a court having jurisdiction over it. Post, § 121. This statute removes the difficulty, "and gives a jurisdiction in cases where, and only where, death follows within a county. But for an Englishman to beat another Englishman on board a British merchant vessel is no " offence " with us; and, hi/ Ihe very terms of the statute, such a case is excluded. Still, if thijs were not so, the principle stated by Story, J. as above quoted — a principle sound in itself, and everywhere followed , by the courts (see post, § 121 ) — would lead to the same result. A- similar course of reasoning applies to the British statute (ante, § 112 (3)), which differs not greatly from this one. At all events, no just ground appears for construing the Massa- chusetts statute less favorably to defend- ants than the British. 10. In preparing this eighth edition of the present work, I hesitated whether or not to reject this note, which first appeared in an earlier edition; because the great case of U. S. o. Guiteau, for the murder of President Garfield, which was deeply pon- dered by the entire profession of the coun- try, and resulted in sustaining the views here maintained, may be deemed by some to render so full a discussion unnecessary now. But error dies hard ; during the Guiteau agitation it manifested great life; and I deem the safer way to be not to pre- sume too much on its death. § 117 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK IL der our interference proper, our own peace should in some way be threatened or broken. Thus if, where all is within one juris- diction, a man inflicts a mortal wound, then repents and strives to bring back to health the dying person, this repentance does not mend his case, but he is guilty the same as though he had not repented. Yet if the blow is given by a foreigner in a for- eign vessel on the high seas, then he repents and turns to our shores that he may administer comfort to the dying man on land as he could not at sea, — in such a case, so far from our peace being broken, we have received the light of an angel visit, to revenge which by hanging the visitor would be to violate every principle of justice. And in any view it cannot be a disturbance of our peace for a man to die among us; so that even if the wrong-doer were responsible, as ordinarily he is not, for the man's coming here, this could not be a just ground for inflicting punishment on a foreigner who had done no wrong on our territory. ^ § 117. Offences on Shipboard. — Since the oceans are the common highways of nations,^ public and private vessels upon them, outside of the limits of any country, are deemed to be floating parts, of the territory of the several, countries to which they respectively belong; and a crime committed on one of them is punishable by its particular government, as within the com- plete territorial jurisdiction. ^ In a Foreign Port or on a Tidal River, — if the vessel is pri- vate, all on board are, as we shall by and by see,* subject to the laws of the foreign country ; but it does not follow that they are not also subject to their own laws criminal ^ and civil, except in particulars directly repugnant to the local law. If this conflicts with theirs, it must evidently prevail; and it appears clearly to result from the doctrine of necessity ^ that the persons attached to such vessel are excused at home for doing what is thus com- > Consult, On the subject of this section, Serva, 2 Car. & K. 53, 1 Den. C. C. 104 the dissenting opinion of Campbell, J. in Keg. o. Bjornsen, Leigh & C. 545 ; Mar- Tyler V. P. 8 Mich. 320, and C. v. Macloon, shall v. Mnrgatroyd, Law Eep. 6 Q B. 31, 101 Mass. 1. 33. And see Reid v. Ship Vere, Bee, 66; 2 Ante, § 103. U. S. (;. Palmer, 3 Wheat. 610; Eex v. " Wheaton Int. Law, 158, 174; Poison Amarro, Russ. & Ry. 286. Law of Nations, 25 ; TJ. S. v. Pirates, 5 * Post, § 130, ■ WJiieat. 184; U. S. v. Imbert, 4 Wash. C. " Poison Law of Nations,; 25. C. 702 ; U. S. V. Holmes, 5 Wheat. 412; « Post, § 346-356, TJ. S. V. Wiltberger, 5 Wheat. 76; Reg. v. 66 CHAP. VI.] . UNITED STATES AND FOREIGN NATIONS. § 120 pelled. And this binding effect of the laws of one's country upon subjects afloat in her ships and belonging to them, even while within the territorial limits of foreign States, is recognized alike in the legislative acts and judicial decisions both of England and the United States. ^/ § 118. Offences on High Seas not under Recognized Flag. — From the seas being the common highways of nations, we seem to have the further inference that if persons on them and not under the protection of any flag commit an offence there, they may be arrested and punished by any power. ^ Yet the offence must be disturbing to the common peace of the travelling na- tions ; because it is fundamental in the criminal law that injury done ^ must precede punishment inflicted. And — § 119. This Doctrine, — however we accept it, should not be extended to mere minor wrongs by persons not our citizens, where simply the government to which they are attached has not been, recognized by ours. The. general proposition that our tribunals can take cognizance of no foreign government whose existence has not been acknowledged by the executive authority of the United States,* has its limitations; ^ and the one now sug- gested should be added to those already received. To leave what is thus largely speculative, — . §120. Piracy ^- is usually committed under the flag of some known government, but by the law of nations its perpetration divests the vessel of its national character. Consequently the persons guilty of it, though the subjects of a recognized power, may be apprehended and punished by any other. ^ This rule 1 Eex V. Allen, 7 Car. & P. 664, 1 March 3, 1825, c. 65, § 5; E. S. of U. S. Moody, 494; Reg. v. Menham, 1 Fost. & § 730. F. 369 ; Reg. v. Anderson, Law Rep. 1 C. ^ See U. S. v. Klintock, 5 Wheat. 144. C, 161, 1 1 Cox C. C. 198 ; U. S. v. Gordon, And see Wheaton Int. Law, 6th ed. 159. 5 Blatch. 18 ; V.S.v. Stevens, 4 Wash. C. » Post, § 204. C.547; Church D.Hubbart, 2 Cranch, 187; * Berne v. Bank of England, 9 Ves. U. S. V. Hrates, 5 Wheat. 184; U. S. o. 347; The Nueva Anna, 6 Wheat. 193. Smith, 1 Mason, 147; U. S. v. Ross, 1 See The Santissima Trinidad, 7 Wheat. Gallis. 624 ; U. S. o. Hamilton, 1 Mason, 283. 152; U. S. V. Imbert, 4 Wash. C. C. 702; ^ The Josefa Segnnda, 5 Wheat. 338; Eex V. Depardo, 1 Taunt. 26; U. S. v. U.S. w. Palmer, 3 Wheat. 610; Stoughton Howard, 3 Wash. C. C. 340 ; U. S. v. v. Taylor, 2 Paine, 655. Wiltberger, 5 Wheat. 76 ; U. S. v. Holmes, « U. S. v. Pirates, 5 Wheat. 184 ; Adams 5 Wheat. 412; Eeg. k. Lopez, Dears. & B. v. P. 1 Comst. 173, 177; The Mariauna 525; P. V. Tyler, 7 Mich. 161 ; U. S. v. Flora, 11 Wheat. 1, 40; U. S. v. Palmer, Bennett, 3 Hughes C. C. 466 ; Eeg. v. 3 Wheat. 610 ; U. S.v. Gibert, 2 Sumner, Armstrong, 13 Cox C. C. 184; Act of 19, 24, note; 4 Bl. Com. 71 ; U. S. v.De- 67 § 121 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. refers only to piracy as defined in international law, not to offences made such by the local jurisprudence of a particular country.^ The distinction, therefore, is that a pirate vessel is not deemed a part of the country of its flag, while one in less unlawful pursuits is. And — Arrests abroad — On High Seas. — The like distinction forbids us to go upon the territory of another State to arrest an offender against our own laws;^ while we can go thus upon the high seas.^ § 121. One Subject injuring Another abroad. — Says Lord Ellenborough : " The king has an interest in the protection of his subjects in parts beyond the realm; and there is a writ known to the law of England, if subjects have suffered in their persons or goods in foreign parts. And the persons who have maltreated them there, when they come into this country, are called upon by a writ out of chancery to answer for it : so that the king's subjects are considered as under the protection of the king, even out of the realm. " * Therefore an indictment at common law was adjudged to lie against a British subject for murdering another British subject in a foreign State, — a statute having merely created a tribunal with a jurisdiction adequate to try the case.^ According to international law, the person offend- ing must be a subject of the government whose tribunals call him to account.^ And — Subject injuring Foreigner abroad. — A legislative act may well provide for the punishment, at home, of depredations committed by the subjects of our government on those of other governments marchi, 5 Blatch. 84 ; Wheaton Int. Law, " It has been held in this country that 6th ed. 185. foreign ships, offending against our laws, 1 Wheaton Int. Law, 6th ed. 185; Dole within our jurisdiction, may he pursued y. New England, &c. Ins. Co., 2 Clif. 394, and seized upon the ocean, and rightfully 418; Attorney-General v. Kwok-arSing, brought into our ports for adjudication." Law Rep. 5 P. C. 179, 200, 8 Eng. Rep. 1 Kent Com. 122. 143, 161 ; In re Ternan, 9 Cox C. C. 522 ; * Rex v. Sawyer, 2 Car. & K. 101, 111 Vol. II. § 1057 et seq. *■ Rex v. Sawyer, supra, reported also, 2 Post, § 135 ; Tyler v. P. 8 Mioh. 320. but more briefly, Russ. & Ry. 294, Car, " Prancis v. Ocean Insurance Company, Crim. Law, 3d ed. 103. See likewise S. v. 6 Cow. 404. See Rose y. Himely, 4 Cranch, Dunkley, 3 Ire. 116, 122; Respublica u. 241; Hudson v. Gnestier, 6 Cranch, 281. De Longchamps, 1 Dall. Ill; Rex u A distinction doubtless prevails between Speke, 3 Salk. 358. the arrest in a foreign vessel, sailing under ° Wheaton Int. Law, 6th ed. 174, 175 the foreign flag, and that of offenders not S. v. Knight, 2 Hayw. 109. And see C. v, so protected. Kent, referring to The Ma- Gaines, 2 Va Cas. 172. rianna Flora, 11 Wheat. 1, 42, observes: 68 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 123 abroad, either in or out of their own country, ^ if indeed the right is not sufficiently inherent in the common law without the help of any statute. Hence, as in a measure already considered, — Statute construed. — A statute Creating a jurisdiction over offences committed abroad is interpreted to apply only to citi- zens ;2 and perhaps in general, but certainly not of necessity, only to what is done to the injury of a citizen. ^ § 122. Our Courts and Law in Foreign Locality. — Our courts cannot sit abroad, nor can our law exclude the local law there, however it may operate concurrently with it, without the consent of the foreign government ; for each independent nation is su- preme within its own dominions.* But — Consular Jurisdiction and Courts. — We have with some nations treaties under which the consuls of each in the other's territory exercise limited judicial powers both civil and criminal." But without a treaty,^ or an international usage for the special sort of case,^ or a statute, consuls have no judicial authority over any- body. And — § 123. Varying. — The treaties are not uniform, but generally the Christian nations insist upon a much greater consular juris- diction in countries deemed less advanced than would be accorded among themselves. Thus, "the consuls of the Christian States of Europe have, throughout the Levant, for centuries exercised jurisdiction over their countrymen, as well as over others under their protecti oil ; and -controlled, to a greater or less degree, the relations of the Franks with the people of the country. " « And by our treaty with China, and the laws passed pursuant to it, we have over our citizens there almost as complete and exclusive a government, with the necessary judicial tribunals, as over the 1 Eeg. V. Azzopardi, 1 Car. & K. 203, 2 « And see Dainese v. Hale, 1 MacAr. Moody, 288 ; Reg. v. Zulueta, 1 Car. & K. 86, reveused 8 Chic. Leg. News, 97 ; Ta- 2]5_ zaymon v. Twombley, 5 Saw. 79 ; The 2 See ante, § 112. Salomoni, 29 Fed. Rep. 534; Pitts v. La 8 Rex V. Depardo, 1 Taunt. 26, Euss. Fontaine, 5 Ap. Cas. 564 ; Wheaton Int. & By. 134 ; Rex v. Helsham, 4 Car. & P. Law, 6th ed. 171, 172, note. And see lb. 394: Rex v. De Mattos, 7 Car. & P. 458; p. 165, 166. Reg. V. Azzopardi, 1 Car. & K. 203, 2 » The William Harris, 1 Ware, 367, Moody, 288 ; The Apollon, 9 Wheat. 362 ; 372 ; In re Aubrey, 26 Fed. Rep. 848. Reg. V. Lewis, Dears. & B. 182, 7 Cox C. ' Dainese v. U. S. 15 Ct. of CI. 64. C. 277; Stat. Crimes, § 141 ; ante, § 115, « Wheaton Int. Law, 6th ed. 172, note, note, par. 9. -^^ see Dainese v. U. S. 15 Ct. of CI. 64. * Foster u. Glazener, 27 Ala. 391. 69 § 126 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK 11. District of Golumbia at home.i ' So also the British government has a similar consulal* jurisdiction over British subjects in China. ^ III. Jurisdictional Exemptions within our Territorial Limits. § 124. Our Laws govern All. — In the United States, foreign- ers are ordinarily under the same duty as citizens to obey our laws, which, with slight exceptions beyond those required by the law of nations, bind alike all persons upon our soil. ^ But — To the Law of Nations — every government must conform,* and every municipal statute is construed as subject to the excep- tions required by it.^ Let us see what the exceptions are; or, in other words, in what cases our laws do not operate within our own territory. § 125. Foreign Sovereign and Attendants. — First. If a for- eign friendly sovereign comes personally upon our territory, he has our implied license, and it is interpreted to exempt him and his attendants from responsibility to our laws. His sovereignty covers alike him and them and his effects. And whether he is passing through or temporarily sojourning in our country, neither he nor they can be proceeded against in our courts for any wrong.® § 126. Embassador, &c. — '■ Secondly. If the sovereign instead of coming himself sends his embassador or other diplomatic agent, the agent occupies as to this exemption the place of his master. , It protects him while coming, remaining, and going ; and by the better opinion it also protects one not sent to us, but passing through our territory on his way to or from another country.' The person of such a functionary, his secretary, at- tendants, and retinue ; his house and household ; his carriages, 1 Wheaton Int. Law, 6th ed. 166, 173, ° Post, § 134. note. * Pollard v. Bell, 8 T. R. 434, 437 ; The 2 A curious illustration of this appears Le Louis, 2 Dods. 210, 251. in the case of Hart v. Gumpach, Law Rep. ' See ante, § 112 (2), 115, note, par. 9 ; 4 P. C. 439, where, two British subjects also ante, § 121. , being in the employ of the Chine.se gov- ^ 1 Phillim.Int.Law, 364; Poison Law ernment, one of them was permitted to of Nations, 25 ; Wheaton Int. Law, 6th ed. maintain, in " Her Majesty's Supreme 143, 146. And see Vavasseur v. Krupp, 9 Court for China and Japan," sitting at Ch. D. 351. Shanghai, a suit against the other for an ' Wheaton Int. Law, 6th ed. 301-304 ; alleged wrong done hira by the latter in Vattel Law of Nations, b. 4, § 84 ; 1 Kent official acts performed in the service of the Com. 38 ; Dupont v. Pichon, 4 Dall. 321. Chinese government I 70 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 128 his couriers, and even his domestic ^ servants, — are privileged. They cannot be arrested; his house cannot be broken open or entered even on civil process (but he is not permitted to furnish therein an asylum for persons not attached to him) ; and neither he nor his is liable to our laws for crime. ^ The only remedy for his misbehavior is to discharge him and send him home.^ But — § 127. 'Whether Exception. — The general law of nations seems to except out of this rule the extreme case of the minister's hav- ing undertaken the death of the sovereign to whom, or the over- throw of the government to which, he is accredited ; and to hold that for such an offence he forfeits his protection, and the gov- ernment menaced may proceed against him in self-defence.* Apparently contrary to this, our statute provides in the broadest terms that " any writ or process " against a foreign minister or other exempted person shall be void.^ And all persons who par- ticipate in violating this provision are punishable.^ Consistently herewith, — Self-defence. — A citizen assaulted by a public minister may exercise ordinary self-defence, repelling force by force.' § 128. AH Public Ministers — have the immunity we are con- sidering.^ It extends to the secretary of legation, who, re- ceiving his appointment directly from his government, carries ministerial dignity in himself.® 1 U. S. V. Lafontaine, 4 Cranch C. C. him an adequate satisfaction from the min- 173. It would be a mistake to infer from ister's master." Vattel Law of Nations, this case that the Supreme Court of the h. 4, § 80. United States could take jurisdiction of a * Vattel Law of Nations, b. 4, §99-101 ; crime committed by the privileged person. Bex v. Owen, 1 Rol. 185. But see Wheaton See the Statute of 1789, c. 20, § 13, 1 Stats. Int. Law, 6th ed. 285. And see. C. v. Kos- at Large, 80, and R. S. of U. S. § 687. See loff, 5 S. & R. 545. also Who Privileged from Arrest, 1 Opin. ^ j u. g. gtats. at Large, 117, Act of Att'y Gen. 26. April 30, 1790, c. 9, § 25; R. S. of U. S. 2 Vattel Law of Nations, b. 4, § 80-82, § 4063. 117-124; 1 Kent Com. 38, 39; Wheaton « lb. § 26-; R. S. of U. S. § 4064; U.S. Int. Law, 6th ed. 143, 284, et seq. ; S. v. v. Benner, Bald. 234 ; U. S. «. Liddle, 2 De La Fofet, 2 Nott & McC. 217 ; Respub- Wash, C. C. 205 ; U. S. u. Ortega, 4 Wash, lica V. De Longchamps, 1 Dall. Ill ; Bow- C. C. 531. And see Respublicaw. De Long- yer Universal Public Law, 67; Schooner champs, 1 Dall. Ill; U. S. v. Hand, 2 Exchange v. McFaddon, 7 Cranch, 116; Wash. C. C. 435. Macartney ti. Garbutt, 24 Q. B. D. 368; ' Vattel Law of Nations, b. 4, § 80; In re Tracy, 46 N. Y. Super. 48 ; Parkin- U. S. u. Benner, U. S. v. Liddle, and U. S. son i>. Potter, 16 Q. B. D. 152. v. Ortega, supra. » 1 Kent Com. 38, 39. "The person 8 Vattel Law of Nations, b. 4, § 69-74 ; offended may further prefer a complaint 1 Kent Com. 39. to his own sovereign, who will demand for ' Vattel Law of Nations, b. 4, § 122; 71 § 131 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. § 129. Consuls, — being " commercial agents appointed to re- side in the seaports of foreign countries, with a commission tc watch over the commercial rights and privileges of the nation deputing them," ^ have not this immunity. ^ And "if any consul be guilty of illegal or improper conduct, he is liable to have his exequatur, or written recognition of his character, revoked, and to be punished according to the laws of the country in which he is consul ; or he may be sent back to his own country, at the discretion of the government which he has offended. " ^ He is, in general, as to both civil and criminal affairs, " subject to the local law in the same manner with other foreign residents, owing a temporary allegiance to the State. " * § 130. Foreign Friendly Army — Armed Vessels. — Thirdly. The sovereignty of every country goes with its army and n^. Therefore if an armed vessel of a foreign power enters our waters peaceably, or lies peaceably at our wharves, we extend to it by implication the exemption from our laws.^ And the same prin- ciple applies where we permit a foreign army to pass through our territory. But — A Foreign Merchant Ship, — coming within our harbors, is subject to our local jurisdiction the same as any foreign private person,^ except where we have agreed otherwise by treaty.' § 131. Enemies in 'Wax. — Fourthly. When war comes be- tween sovereign powers, the men of the respective armies are not criminal for what they do in the heat and conflict of battle ; ^ or. Ex parte Cabrera, 1 Wash. C. C. 232. * Wheatonlnt. Law, 6th ed.305; Flynn And see U. S. v. Benner, Bald. 234 ; Res- v. Stoughton, 5 Barb. 115. See further, as publica t/. De Longchamps, 1 Dall. IH. to the consul, Robson v. The Huntress, 2 A secretary of legation, in charge of the Wal. Jr. 59 ; The Adolph, 1 Curt. C. C. executive of the legation, under direction 87 ; Ex parte Hitz, 111 U. S. 766 ; Lorway of the minister plenipotentiary, and acting v. Lousada, 1 Low. 77. as charge d'affaires in the latter's absence, ^ The Constitution, 4 P. D. 39. Sal- is, within 7 Anne, c. 12, " a public minister vage — cannot be enforced in our courts of a foreign prince," entitled to the privi- against such a vessel. lb. leges of an embassador ; and it appears " U. S. v. Dickerman, 92 U. S. 520 ; C. that he does not lose his protection in the ». Luckness, 14 Philad. 363; In re Wil- courts by engaging in trade. Taylor v. denhus, 28 Fed. Rep. 924 ; Schooner Ex- Best, 14 C. B. 487, 23 Law J. n. s. C. P. change v. McFaddon, 7 Cranch, 116; as to 89, 18 Jnr. 402, 25 Eng. L. & Eq. 383. which see The Santissima Trinidad, 7 1 1 Kent Com. 41. Wheat. 283. And see Poison Law of Na- ^ Wheaton Int. Law, 6th ed. 304 ; 1 tions, 25 ; Wheaton Int. Law, 6th ed. 144. Kent Com. 44 ; XJ. S. v. Ravara, 2 Dall. ' Ante, § 122. 297, 299, note ; S. v. De La Foret, 2 Nott 8 1 Hale P. C. 59 ; and the authorities & McC. 217 ; C. V. Kosloft, 5 S. & R. 545. cited in the next section. ' 1 Kent Com. 43. See Respublica u. De Longchamps, 1 Dall. 111. 72 CHAP. VI.J UNITED STATES AND FOREIGN NATIONS. § 132 in general, for belligerent acts.^ Wheaton even lays it down that — Privateer — Wrong Nation. — " The officers and crew of an armed vessel, commissioned against one nation and depredating upon another, are not liable to be treated as pirates in thus ex- ceeding their authority. The State by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of i'ts authority. " ^ § 132. Hostile Acts in Peace — in War. — In principle, if dur- ing either peace or war, a foreigner who is neither a spy ^ nor within a like reason, comes by command of his sovereign upon our territory and commits any wrong, our courts are not to pur- sue him as for a crime, but we are to look for redress solely to his sovereign. All admit this if the two-nations are at war; but it must be so also while they are in other respects at peace. One reason is that as the subject acted under compulsion from the highest earthly power above him, he should be permitted to set up this compulsion in excuse, on the ground of necessity, — a reason, however, which might not be quite conclusive alone. Another is that as in all crimes the government is the party offended,* it should not seek a double redress, both of the imme- diate offender and of the sovereign who commanded him, but suffer the greater to absorb the less ; for this is a widely dif ferent case from thqse ordinary ones in which the principal and his agent are alike punishable. But the controlling considera- tion is that if we first take out of the servant the full .redress which our law appoints for the offence, we have no claim left to present to his master ; or, if we have, still such a proceeding would embarrass the settlement with the master. An immense public evil would thus be done; while the philosophy of the criminal law is that no man shall receive punishment, however he may merit it, unless it will promote the public good.^ Hostile Act not commanded, ratified. — By such reasoning we may carry the doctrine to the extent, less clear on other princi- ples of the criminal law and of the sovereignty of nations, that if the foreign subject acts under color of authority from his gov- 1 C V Holland, 1 Duv. 182. See S. v. » Vattel Law of Nations, b. 3, § 179. Cook, Phillips, N. C. 535. \ Ante, § 32, 2 Wheaton Int. Law, 6th ed. 184. » Post, § 209-211 1 Bishop Mar. Div. & S. Introduction, ' In S. ». Bennett, 14 Iowa, 479, the xxv-xxix, and places there referred to. court affirms both the reasoning of these ^ Ante, § 138, and places there referred sections and the conclusion to which it to. conducts. So also do the courts in FerriU 78 GHAP. VI.] UNITED STATES AND FOEEIGN NATIONS. §140 There is Another Path — through this question, conducting to the same end. Though our courts are not permitted to recognize a foreign larceny and punish it, they can take cognizance of a foreign civil trespass to personal goods ; and if they obtain juris- diction over the parties, they will redress the wrong done in the foreign country. The method under the common-law procedure is by the familiar transitory action of trespass.^ Now, in every larceny there is a civil trespass, as well as a criminal one.'* This civil trespass, when committed abroad, our courts recog- nize, and ptactically enforce rights growing out of it, to the same extent as if done on our own soil. So much is settled doctrine, about which there is no dispute. It is equally settled doctrine in larceny that if one has taken another's goods by a mere civil trespass, even though it was unintended, then, if find- ing them in his possession the intent to steal them comes over him, and pursuant thereto he deals with them contrary to his duty, this is larceny.^ Applying these two plain doctrines to the present case, we have the result that where a thief brings goods from a foreign' State into ours, our courts are required to look V. C. 1 Duv. 153 ; Watson v. S. 36 Missis. 593 ; S. V. Newman, 9 Nev. 48, 16 Am. R. 3, and in various other cases. And see Graves V. S. 12 Wis. 591 ; Worthington o. S. .'>8 Md. 403, 42 Am. R. 338 ; S. v. Hill, 19 S. C. 435. Axiomatic Propositions. — There are in the law propositions which, to minds accustomed to legal investigation, are so far axiomatic that to state them is to prove them; and one who announces such a proposition knows that it will work its way against all opposition, and any amount of venerable authority, as surely as the electric forces, when the conditions have matured, will part the cloud. The propo- sitions of my .text in the present connec- tion ar,e of this sort. When, therefore, in preparing the first edition of this work, I discovered that all the cases on this sub- ject proceeded on inadequate views of the principles, and saw likewise the axiomatic nature of the foregoing propositions of my text, I said to myself, " I will make this simple statement of the true principles, and thus the conflict will be ended." Hav- ing done so, I observed the cases afterward decided on this subject, to discover whether the prediction was yet verified. Case suc- ceeded case in the same eclipse of the judi- cial understanding which had prevailed before ; each containing indubitable inter- nal evidence that the judges had not looked into my book upon the subject. And it was not until I came to prepare the fourth edition that I was able to cite any one case decided by judges who had seen the views thus presented. The result could not, in the nature of things, be otherwise than as anticipated. In numerous instances of axiomatic views presented, differing from what had been before entertained, I have witnessed the like result; and, indeed, I never knew the instance wherein any com- petent lawyer or judge withheld his assent from a truth of this sort, after it had been so brought to his mind that he really under- stood it. Not all the law can thus be re- duced to axiomatic propositions ; but such of it as can, and it is the greater part, is as absolutely certain to gain in the end the assent of the entire legal fraternity as if it were a demonstration in geometry. 1 Bishop Non-Con. Law, § 1277, 1278; Mostyn o. Fabrigas, Cowp. 161 ; Glen v. Hodges, 9 Johns. 67. 2 Post, § 207 (2), 264, 342 (1), 566 (1) 3 Vol. 11. § 839. 79 § 140 GOVERNMENTAL LOCALITY AND JURISDICTION. [bOOK II. upon him as a trespasser ; and when he commits any asportation of them here, such as he necessarily did in bringing them across the territorial line, the intent to steal impelling him, they should regard him as a felon under our laws. ^ 1 The case of Stanley v. S. 24 Ohio St. 166, ife Am. R. 604, decided in 1873, holds it not larceny in Ohio to steal goods in Canada and bring them into the State. The court was referred to the discussion of this subject in my fifth edition ; and when I first partly read thfe case, I thought that the learned judge had made himself acquainted with the views of the book, and dissenting therefrom had essayed to answer them. But on looking at it fur- ther, I discovered to my regret that this was not so. It is much to be desired that when a court suffers a text-book to be cited, it should look into the author's views. Then, if it discovers them to be unsound, the learned judges can explain wherein, others will be put on their guard against a seducing error, and the cause of juridical truth will be promoted. " It is conceded," said Mcllvaine, J. " that in order to convict, the jury must have found i that the goods were stolen by the defend- ant in the Dominion of Canada, and carried thence by him to the State of Ohio." The making of such a concession by counsel could be regarded no otherwise than as a great blunder, therefore we see that the case had been unfortunately argued. We need not wonder at any conclusion derived from premises so far from the truth of the law. Said the learned judge : " We are unwilling to sanction the doctrine, or to adopt the practice, whereby a crime com- mitted in a foreign country, and in viola- tion of the laws of that country only, may by construction and a mere fiction be treated as an offence committed within this State and in violation of the laws thereof." p. 169. Certainly this unwil- lingness is ground for congratulation, not for criticism. In line with this sound doctrine and in exact accord with the reasoning of our text, he adds that no common-law or Ohio larceny " is complete until every act which constitutes an essen- tial element in the crime has been com- mitted within the limits of this State." With the like precision he continues : " The act of ' taking ' is an essential ele- 80 ment in the crime." p. 170. But now comes the mistake into which, we are to infer from the judicial language, a blun- dering argument by counsel had led him. Employing the word " possession " as de- rioting any complete physical control of the thing, however wrongful, he says : " The act of 'taking' is not repeated [by any removal of the thing] after the change of possession is once complete, and while the possession of the thief continues to be ex- clusive and uninterrupted. Hence a bailee or finder of goods, who obtains complete possession without any fraudulent intent, cannot be convicted of larceny by reason of any subsequent appropriation of them." p. 1 70. Here the learned judge confounds distinctions as firmly established in the law of larceny as the main doctrine itself. For example, the bailee of goods has not merely the " possession " just defined, but he is likewise special owner of them. And when by any act he terminates this special ownership, he renders himself competent, without' any redelivery to the general owner, to " take " them within the mean- ing of the word in the law of larceny. If a carrier wrongfully " breaks bulk," as it is termed, he thereby puts an end to the bailment, and if thereupon with felonious intent he appropriates the goods to his own use, he steals them. Vol. II. § 857, 860. Or if one hires a horse, and at the end of his journey brings it back to the place of the hiring, but instead of deliver- ing it to the owner feloniously appropri- ates it to himself, he commits larceny ; for the bailment had terminated without the general owner's , obtaining a possession, and the trespass or " taking " of the law of larceny became possible. Vol. II. § 864, 865. A fortiori, this rule applies where the receiving of the goods was by a tres- pass, and the special ownership of a bail- ment was not acquired. It is absolutely settled doctrine, not open to any dispute and not disputed, that if one takes an- other's goods into his possession by a tres- pass, whether felonious or not, he steals them whenever and wherever subsequently CHAP. Vf.] UNITED STATES AND FOREIGN NATIONS. §141 § 141. The Authorities — have not always proceeded on the principles thus stated. In an old English case, where goods seized piratically on the ocean were carried by the thief into a county of England, the common-law judges, refused to take cog- nizance of the larceny, and committed' the offender to answer to the admiralty ; " because, " said they, " the original act, namely, the taking of them, was not any offence whereof the common law taketh knowledge ; and, by consequence, the bringing of them into a county could not make the same felony punishable by our law. " ^ And the doctrine has been since applied, in England, to goods stolen both in other parts of the king's dominions ^ and in foreign countries.^ This doctrine has been followed by the courts of New York,* New Jersey,^ Pennsylyania,^ North Carolina,^ Tennessee,^ Indiana,^ Louisiana,^" Nebraska," and Georgia. ^^ It has been discarded and the opposite ^^ held in Connecticut," he renews the trespass with the felonious intent. Vol. II. § 839 ; Stinson v. P. 43 111. 397, 400. The result is that this Ohio decision wag a mere blunder, caused by the court's not thinking of an estsiblished doctrine of the law, and assuming the law to he what it was not. Let us pause a moment to inquire what, in such a case, is the Effect of the Decision. — As things commonly go in our legal practice, at the date of the present writing, an Ohio court might be expected to accept this decision as conclusive of the point which on its face it seems to decide. And only a judge of more than the average insight would permit counsel so much as to • open his mouth in opposition. But a judge or bench of judges who could be enticed by counsel into listening and thinking until the real situation appeared, could and would do no otherwise than disregard this case. For the rule of stare decisis does not compel a court to repeat a blunder by following judges who had blundered be- fore. It now and then happens, for exam- ple, that a bench of judges is not referred to a statute decisive of the Case, so they decide it wrongly. But it was never known that the judges afterward held the statute to be repealed by the blunder. Foster v. S. 9 Bax. 353 ; S. v. Whitener, 93 N. C. 590; S. ^. Broderick, 70 Mo. 622. And that principle in the law of larceny which VOL. I. — 6 the judges in this case overlooked, was and is just as much law, just as palpable, and just as binding on the tribunal, as the statute. And see Bishop Non-Con Law, § 908, note; 2 Bishop Mar. Div. & S. § 154; S. V. Berlin, 21 S. C. 292, 53 Am. R. 677 ; S. .;. Williams, 13 S. C, 546. 1 Butler's Case, cited 13 Co. 53, 3 Inst. 113. And see Reg. v. Wallace, Car. & M, 200. 2 Rex V. A^derson, 2 East P. C. 772 Rex V. Prowes, 1 Moody, 349. 8 Reg. V. Madge, 9 Car. & P. 29 ; Reg. V. Debrniel, 11 Cox C. C. 207. * P. V. Gardner, 2 Johns. 477; P. v. Schenck, 2 Johns. 479. See P. v. Burke, U Wend. 129. « S. o. LeBlanch, 2 Vroom, 82. ' •> Simmons v. C. 5 Binn. 617. ' 7 S. V. Brown, 1 Hayw. 100, 1 Am. D. 548. 8 Simpson v. S. 4 Humph. 456, 459. « Beal K. S. 15 Ind. 378. See Kiser u. Woods, 60 Ind. 538. w S. V. Reonnals, 14 La. An. 278. 11 P. u. Loughridge, 1 Neb. 11, 93 Am. D. 325. 12 Lee V. S. 64 Ga. 203, 37 Am. R. 67. 18 Ante, § 137. " S. V. Ellis, 3 Conn. 185, 8 Am. D. 175 ; S. V. Cummings, 33 Conn. 260. 81 § 142 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK 11. Vermont, ^ Maine, ^ Mississippi,* Iowa,* Kentucky, ^ Nevada,^ Illinois,^ Oregon,^ Maryland,* and South Carolina. ^"^ In Mas- sachusetts, the court rejected it also, holding defendants liable where the original laiceny was in another of the United States ; ^^ but afterward, where it was in one of the British provinces, the conviction was overthrown, ^^ — a distinction which the Maine tribunal refused to recognize, deeming it without foundation. ^^ So, in Ohio, a conviction was sustained where the original taking had been in another State of the Union, i* but reversed where it had been in Canada. ^° The rule which holds the offender guilty in the State to which he brings his stolen goods has likewise been prescribed, by statute, in New York '^ since the before- mentioned adjudication was made ; also in Alabama,^' Missouri, ^^ Kansas, 1* Michigan,^" and some other States. ^^ And — § 142. Further of the Doctrine. — It is remarkable that in all the discussion which this question has received, the precise as- pect of it presented in the foregoing sections had, until the cases mentioned in a note to the section before the last occurred, been no more than indistinctly shadowed ; while evidently the view there taken places it, to one familiar with the principles govern- ing the offence of larceny, beyond doubt. Yet where this view has partially appeared, it seems to have been objected that it renders the prisoner liable to be twice punished for one offence, in violation of the spirit of the common law ; but this objection 1 S. V. Bartlett, 11 Vt. 650. 12 C. v. Uprichard, 3 Gray, 434, 63 Am. 2 S. V. Underwood, 49 Me. 181, 77 Am. D. 762. D. 254. 18 g, y Underwood, supra. 8 Wataon o. S. 36 Missis. 593 ; ante, " Hamilton u. S. 1 1 Ohio, 435. § 140 note. 16 Stanley v. S. 24 Ohio St. 166, 15 Am. * S. V. Bennett, 14 Iowa, 479; ante, E. 604; ante, § 140, note. § 140, note.' w p. t). Burke, 11 Wend. 129. 6 Ferrill v. C. 1 Duv. 153 ; ante, § 140, " S. v. Seay, 3 Stew. 123, 20 Am. D. 66 ; note. S. V. Adams, 14 Ala. 486 ; Murray v. S. 18 6 S. «. Newman, 9 Nev. 48, 16 Am. R. Ala. 727 ; La Vaul v. S. 40 Ala. 44. 3 ; ante, § 140, note. M Hemmaker w. S. 12 Misso. 453, 51 Am. 7 Myers v. P. 26 HI. 173 i Stinson v. P. D. 172 ; S. v. Williams, 35 Mo. 229. 43 111. 397. . 19 McFarland v. S. 4 Kan. 68. 8 S. D.Johnson, 2 Or. 115. 20 Morissey v. P. 11 Mich. 327; P. v. « Worthington v. S. 58 Md. 403, 42 Williams, 24 Mich. 156. Am. K. 388. 21 And see Fox v. Ohio, 5 How. U. S. 10 S. u. Hill, 19 S. C. 435. 410, 434 ; U. S. v. Pitman, 1 Sprague, 197 ; 11 C. V. CuUins, 1 Mass. 116; C. ». An- S. v. Stimpson, 45 Me. 608; Henry v. S. 7 drews, 2 Mass. 14, 3 Am. D. 17; C. v. Coldw. 331 ; Cummins ». S. 12 Tex. Ap. Rand, 7 Met. 475, 477, 41 Am. D. 455; C. 121 ; Sutton v. S. 16Tex. Ap. 490; Clark V. Holder, 9 Gray, 7. v. S. 27 Tex. Ap. 405 ; Foster v. S. 9 Bax. 353. 82 CHAP. VI.] UNITED STATES AND FOREIGN NATIONS. § 144 is without -weight. The common law either admits of two con- victions in such a case or it does not ; if it does, there is nothing in the objection; if it does not, then the iirst conviction, in whichever locality it takes place, may be pleaded in bar of the second. The common law, however, knows no such plea in de- fence of a prosecution as liahility to indictment elsewhere.^ § 143, Other Offences : — General. — The doctrine thus explained as to larceny applies equally to all other offences. If the full wrong is committed in the locality of the prosecution, quite immaterial is it what is d6ne or attempted in a foreign locality. 2 "Within which rule, — Duel. — A challenge in our own State to fight a duel in another is indictable the same as though the fighting were to be here.* For — The Criminal Laws — of a country bind all within its territory.^ And it is impossible anyone should be exempted by force of those of a foreign country, or of any violation of them. § 144. Conclusion. — Thus in, a single chapter we have con- templated many questions of vast magnitude and immense national importance. ,Some of them are more fully discussed in the works on international law; but in this briefer view and simpler picture what is most material appears, and, it may be, more distinctly before the eye of uninformed readers than where separated over wider spaces and enveloped in superfluous words. * As to the form of the indictment, see McKeay, 1 Moody, 130; C. v. Hensley, 2 Crim. Fro. II. § 727-729. Va. Cas. 149 ; Cummings v. C. 2 Va. Cas. 2 And see, as illustrating the general 128 ; P. v. Csesar, 1 Par. Cr. 645 ; Morgan doctrine, C. v. Gone, 2 Mass. 132;-C. b. »• Pettit, 3 Scam. 529; S. v. Haskell, 33 Judd, 2 Mass. 329, 3 Am. D. 54; C. v. Me. 127; P. v. Burke, 11 Wend. 129; King, 1 Whart. 448 ; S. v. Carr, 5 N. H. Lewis «. C. 2 S. & R. 5.51 ; P. u. Flanders, 367; P. V. Babcock, 11 Wend. 586; Eex 18 Johns. 164. V. Dick, 1 Leach, 68 ; Rex v. Kirkwood, 1 ^ S. v. Farrier, 1 Hawks,- 487 ; S. o. Moody, 311 ; Johnson v. P. 4 Denio, 364 ; Taylor, 1 Tread. 107, 3 Brev. 243. Kex V. McKay, Russ. & Ky. 71 ; Eex o. « Reg. v. Ganz, 9 Q. B. D. 93. 83 § 147 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK li. CHAPTER VII. THE JURISDICTION AND LOCAL LIMITS OP THE STATES. § 145. The Outward Boundaries — of the United States, con- sidered as one nation, have already been explained.' Those of the respective States, on the ocean and on 'toreign countries, are coincident therewith.^ § 146. Counties. — States are divided into counties. N!ot al- ways or necessarily is the vrhole of a State withih any county. Thus, — County Lines on the Sea. — On the seaboard and against the open sea, a county, at common law, reaches only to the water- margin, and there the line pulsates in and put, with the ebb and how of the tide ; ^ while, as we have seen,* the territory of the State, and consequently its territorial jurisdiction, reach beyond low-water mark to the distance of a marine league. But at points where the sea puts up inland, the rule is different; for arms of the sea — as, rivers, harbors, creeks, basins, and bays — so closely embraced by land that a man standing on the one shore can reasonably discern with the naked eye objects and what is done on the opposite shore, are within county limits.* And it is not material to this rule whether the shore is main- land or island. On this principle, — § 147. Boston Harbor, — enclosed by numerous islands with narrow straits between, belongs to the county of Suffolk, in > Ante, § 102-108. Crim. Law, 815 ; 2 Hale P. C. 17, 20; 2 " U. S. V. Bevans, 3 Wheat. 336; C. v. Hawk. P. C. 6th ed. o. 9, § 14; U. S. v. Peters, 12 Met. 387, 394; C. v. Algef, 7 Grush, 5 Mason, 290. See Reg. i;. Gee, Cash. 53,81-83; Pollard «. Hagan, 3 How. 1 Ellis & E. 1068. U. S. 212; P. V. Tyler, 7 Mich. 161 ; The * Ante, § 104. Martha Anne, Olcott, 1 8. And see Nfeal fi 2 East P. C. 805 ; 1 Gab. Crim. Law, I/. C. 17 S. & R. 67; S. V. Cameron, 2 815; Rex v. Bruce, Russ. & Ry, 243, 2 Chand. 172 ; Smith v. Maryland, 18 How. Leach, 1093. And see Rex v. Soleguard, U. S. 71. Andr. 231 . 234 ; Direct U. S. Cable Cg. «. " Constable's Case, 5 Co. 106 a, 107 n : Anglo-American Tel. Co. 2 Ap. Cas 39*. 3 Inst. 113; 2 East P. C. .803; 1 Gab, 84 CHAP. VII. J JURISDICTION AND LIMITS OP STATES. § 150 which Boston is situated. Yet the precise limits of the county outward appear not tp be settled. ' "Upon the evidence before me," said Story, J., "1 incline strongly to the opinion that the limits of the county of Suffolk in this direction, not only in- clude the place in question [between Lovel's Island, George's Island, and Gallop's Island], but all the waters down to a line running across from the light-house on the Great Brewster to Point Alderton. In the sense of the common law, these seem to me to be the fauces terrce, where the main ocean terminates."^ § 148. Statutes as to Counties on Sea. — In New York,® Vir- ginia,* Massachusetts,^ and some other States, there are statutes whereby the counties are made to extend seaward to the State lines. Long Island Sound — is not a part of the State, either of New York or Connecticut.^ But — The Islands — adjacent to the Connecticut shore belong to Connecticut; among them, Goose Island, in Long Island Sound.' § 149. County Lines between Shores. — It seems to be the rule in England that if the waters between two opposite British shores are British territory, the counties extend as well over those waters as over the land.* And if the shores are in differ- ent counties, doubtless the line between them will be the middle of the channel.^ Our Great Lakes — are probably not within the ordinary com- mon-law rule as to the bounds of counties on the sea ; ^^ so that over them the counties appear to extend to the limits of the State." In New York, those on Lakes Ontario and Erie reach, by statute, to the division line between the United States and the British dominions. § 150. As between two States, — a boundary line on land needs no special explanation. 1 C. V. Peters, 12 Met. 387; U. S. v. Wilson, 3 Par. Cr. 199; Stryker v. New Gnish, 5 Mason, 290; U. S. u. Bevans, 3 York, 19 Johns. 179. Wheat. 336. ' Key.ser v. Coe, 9 Blatch. 32, 37 Conn 2 U. S. V. Grush, 5 Mason, 290, 302. 597, " Manley v. P. 3 Seld. 295 ; P. v. Wil- » Reg. v. Cunningham, Bell C. C. 72. son, 3 Par. Cr. 199. 1 understand the doctrine of the text to be ' C. K. Gaines, 2 Va. Cas. 172 deducible from this case, though it is not " Manchester v. Massachusetts, 139 therein stated in exact words. U. S. 240 " -A°te, § 108; post, § 150. ' 6 The Elizabeth, 1 Paine, 10 ; The i" Ante, § 105, 108; post, § 173, 176. Martha Anne, Olcott, 18. And see fnr- i' P. v. l^ler, 7 Mich. 161. ther, as to this matter in New York, P. . Blodgett, 12 Met. 56. And see poonmash v. U. S. 1 Wash. N. 8. 188; Luther v. Borden, 7 How. U. S. 1 ; U. S. Painter v. Ives, 4 Neb. 122. V. Bright, 1 Whart. Pa. Dig. 6th ed. p. 506. * McKay w. Campbell, 2 Saw. 118. 2 Worcester v. Georgia, 6 Pet. 515; 6 Const. U. S. art. 1, § 8. U. S. 0. Cisna, 1 McLean, 254 ; Caldwell « U. S. u. Shaw-mux, 2 Saw. 364. And V. S. 1 Stew. & P. 327 ; S. v. Tassels, Dud- see U. S. v. SevelofE, 2 Saw. 311 ; U. S. v. ley, Ga. 229 ; S. v. Foremin, 8 Yerg. 256 ; Earl, 17 Fed. Rep. 75, 9 Saw. 79. U. S. V. Ward, McCahon, 199 ; U. S. v. ' Ex parte Reynolds, 5 Dil. 394. As Stahl, McCahon, 206 ; U. S. v. Sacoodacot, to a citizen of the United States who has I Abb. U. S. 377 ; S. v. Tachanatah, 64 married an Indian woman and lives with N. C. 614; S. V. Doxtater, 47 Wis. 278; the tribe, see Grinter w. Kansas Pacific Ry. S. V. Harris, 47 Wis. 298. 23 Kan. 642. 8 U. S. 0. Rogers, 4 How. U. S. 567 ; s Ante, § 142; post, § 984, 987-989; U. S. 1-. Bailey, 1 McLean, 234; U. S. Martin w. S. 18 Tex. Ap. 224. V. Yellow Sun, 1 Dil. 271; s. c. nom. 9 See post, § 178, 179,987-989; and see U. S. V. Sacoodacot, 1 Abb. U. S. 377 ; Crim. Pro. II. § 271 ; Sizemore v. S. 3 U. S. V. Cha-to-kah-narpe-sha, Hemp. 27 ; Head, 26 ; C. v. Tenney, 97 Mass. 50 ; P. U. S. V. Sanders, Hemp. 483; U. S. v. v. White, 34 Cal. 183; Jett w. C. 18 Grat. Rogers, Hemp. 450 ; U. S. v. Ragsdale, 953 ; S. ui McPherson, 9 Iowa, 53 ; S. v. Hemp. 497 ; Hunt o. S. 4 Kan. 60; Sha- Brown, 2 Or. 221 ; P. v. Kelly, 38 Cal. 145 ; 0. V, Felton, 101 Mass. 204. CHAP. Till.] UNITED STATES WITHIN STATE LIMITS. § 159 CHAPTER VIII. THE JURISDICTION OP THE UNITED STATES WITHIN STATE LIMITS. § 156. Doctrine definea. — The authority of the United States within State limits should not be confounded with that without. While the latter is full, the former is subject to these express constitutional words : " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. " ^ The meaning whereof is that the national government has, within State territory, the powers which the Constitution gives it, and those it prohibits to the States, yet no other. § 157. " Prohibited by it to the States " -^ are important words. They render irresistible the inference that if a particu- lar thing pertaining to governmental authority is by the Consti- tution prohibited to the States, or Is found not to be within what is practicable for them, it therefore is intrusted to the United States. Rejecting this interpretation, we should have masses of governmental things dropping from existence, — contrary to reason, contrary to the necessities of government, contrary to the usages of nations, and. contrary to what is practicable among men. "Within which principle, — § 158. Beyond State Limits, — the United States is a nation with complete jurisdiction, as will be explained in the next chapter, and as is partly considered in the chapter before the last.. For illustration of what the Constitution confers on the United States within the States, — § 159. Ports, Dock-yards, &o. — " The Congress shall have power ... to exercise exclusive legislation . . . over all places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, 1 Const. U. S. amend, ait. 10. 89 § 161 GOVERNMENTAL LOCALITY AND JURISDICTION.; [BOOK II. arsenals, dock-yards, and other needful buildings. " > Over such localities the sway of the several States does not extend, except that sometimes a special reservation in the act ceding the place otherwise provides.^ It has been a question whether or not the State authority over such a place has ceased while the congres- sional legislation for it is not yet completed. ^ A reservation in the State's ceding statute of " concurrent jurisdiction " to serve in it State processes, civil and criminal, does not take from the Uniteu States its exclusive legislative and judicial authority.* An offence, therefore, is triable, not in the court of the State, but of the United States. ** The mere purchase of lands within a State by the United States, for national purposes, does not of itself alone oust the jurisdiction and sovereignty of the State over them. § 160. The Sources — of the national jurisdiction upon State territory, specified in the Constitution, are various. To point out all would be beyond the bounds of the present work. Some of them are — § 161. State without Government — National Guaranty. — The Constitution of the United States prescribes how, in several particulars, the government of a State shall be ; as, that, it shall have a " legislature, " ^ an " executive, " ' and " judges. " ^ And " the members of the several State legislatures, and all execu- tive and judicial officers ... of the several States, shall be bound by oath or affirmation to support this Constitution." ^ Now, the existence of these official persons and their oath to support the national Constitution are inseparable, and they are inseparable from a State government. As viewed by the Con- 1 Const. TJ- S. art. 1, § 8. And see the cemetery grounds, and punishing of- U S ii. Donlan, 5 Blatch. 284 ; U. S. v. fences therein committed. But over adja- Barney, 5 Blatch. 294 ; Franklin v. V. S. cent grounds, while temporarily occupied 1 Colo. 35 ; Reynolds v. P. 1 Colo. 179. by the United States forces in preparing ^ U. S. V. Bevans, 3 Wheat. 338 ; U. S. the cemetery, the national jurisdiction is V. Davis, 5 Mason, 356 ; New Orleans v. exclusive. Wills v. S. 3 Heisk. 141. U. S. 10 Pet. 662, 737 ; Mitchell v. Tib- Military Beservation. — Kansas exer- bets, 17 Pick. 298; U. S. i'. Cornell, 2 cises criminal jurisdiction over the mili- Mason, 60. tary reservation at Fort Leavenworth. 8 See U. S. V. Bevans, 3 Wheat. 336. Clay v. S. 4 Kan. 49. * U. S. V. Davis, 5 Mason, 356. « Const. U. S. art. 2, § 1 ; art. 4, § 3, 4 ; 5 Mitchell V. Tibbets, 17 Pick. 298. art. 5 ; art. 6. National Cemetery. — The Tennessee ' Const. U. S. art. 4, § 4 ; art. 6. act, ceding to the United States lands for 8 Const. U. S. art. 6. national cemeteries, is held not to exclude ' Const. U. S. art. 6. the State from executing process within 90 CHAP. VIII.] UNITED STATES WITHIN STATE LIMITS. § 163 stitution, a State without them has no government. Thereupon we have for this condition of things the following provision ; "The United States shall guarantee to every State in this- Union a republican form of government." ' So that when the United States finds any State without the government which the Consti- tution prescribes, the duty rests upon every one of its depart- ments, executive, legislative, and judicial, including all the powers of war and all the powers of pe,ace, to confer upon it, or force upon it, the government, "republican in form," which the Constitution requires the State to possess. ^ Thus, — § 162. Secession, — of which our country has had a not remote experience, leaves the seceding State without a government ; for now its officers are sworn to support, not the Constitution of the United States, hut a rival Constitution. Thereby the duty is cast on " The United States " to provide for it " a republican form of government. " To sec this distinctly, we should bear in mind that our State governments are recognized by the national, the same as are those of foreign nations ; and that the national power may refuse to recognize a particular government of a State, or may withdraw a recognition already given. Thus, in Rhode Island, in the time of the Dorr Rebellion, there were two governments, each of which claimed to be the lawful one, and " The United States " recognized one of them, rejecting the other. 3 In like manner, when some of our States undertook to "secede," as it was called, "The United States," though re- quested, declined to recognize the new governments, deeming them to be imauthorized and null. - Thereby the seceded States were by competent authority adjudged to be destitute of govern- ments; so that thereupon the Constitution bound the United States to bring each of them under a government whose officers acknowledged and swore to support the United States Constitu- tion. Now, — § 163. In the Interval, — while a denuded State is waiting to he clothed by the United States with a government, necessarily the national power is in law within such State supreme, however the usurping power may have made the fact. The locality, in- deed, still bears the name of State; yet the relations between, it and the general government have changed in law with the change 1 Const; U S. art. 4, § 4 ' Luther v Borden, 7 Hgw. U. S. 1. 2 And see Texas v. White, 7 Wal 700. 91 § 166 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK H, in facts, in a manner which the Constitution itself points Out. ' It is thus : directly or by implication it prohibits all governmen- tal powers to the States which have not governments within the Union ; but it has no provision whereby any governmental power is annihilated. Yet, as we have seen,^ it declares that "the powers not delegated to the United States by the Constitution, nor prohibited hy it to the States, are reserved to the States re- spectively, or to the people." The power of local government is, in these circumstances, " prohibited to the State ; " therefore it is not " reserved " to the State or to its people, and, of neces- sity, it is in the United States until the new State government is organized. Moreover, — § 164. Necessary Implication — gives this ad interim power of government to the United States. For it is essential to the direct power of reclothing the denuded State with a government. And — § 165. Limit of this Jurisdiction. — Except for this guaranty clause, " The United States " might, if it chose, after a State has committed what is called an act of secession, or otherwise ceased to have a government, legislate for it forever, to the ex- clusion of any subsequent State legislation. But the clause pro- vides that " The United States " shall " guarantee " to the State " a republican form of gdvernment. " Therefore, as soon as the guaranty is executed, the right of legislation, received by the United States from the defunct State government, ebbs back into the new State government. § 166. Further of the Guaranty. — The following should be borne in mind : First, it is by judicial decision settled that the President and the two houses of Congress are to decide whether or not a particular government within a State is republican, and to recognize it or not accordingly ; 'and their determination of this question is conclusive, binding the courts, the State itself, and the nation. In other words, the term "United States," in this clause of the Constitution, refers primarily to the President and the two houses of Congress.^ It is not, therefore, for any class of persons in a State which has ceased to have a govern- ment to set up one of their own motion; though, should a class do so, and Congress with the President recognize the irregularly 1 Bishop First Book, § 112, 113. » Luther v Borden, 7 How. U. S. 1. 2 Ante, § 156. 92 CHAP. VIII.] UNITED STATES WITHIN STATE LIMITS. § 168 .organized government, the act of recognition would bind the country and the courts. ^ This action, however, might be re- versed by Congress afterward. Again, — § 167. The Word " Guarantee " — refers to a duty which first rested on a party called the principal ; but, this party having failed in its performance, it afterward is cast upon another, called the guarantor. Now, cannot the principal, after a lapse, still step in and perform if he will, and thus relieve the guaran- tor ? He can, if in a condition to perform ; otherwise, not. A State that has ceased to have a government is not in a condition to perform. To order an election, to determine who shall be the voters, to fix the basis of representation, and other similar things require governmental action, and where there is no gov- ernment they cannot be done. Therefore, as the State cannot do them. Congress must. True, as already said, if the President, or a genera,! in the field, or irresponsible persons do it, and Con- gress afterward adopts the act, the proceeding, though irregular, binds the country and the courts. Finally, — § 168. The New Grovernmeut — must be " a republican form of government. " The jurisdiction to decide what is such govern- ment and what is not is, we have seen, in the President and Congress, composing the national political department. ^ Now, what, by competent authority, is held in our country to be " a republican form of government " ? When the Constitution was adopted, there were, and there have been ever since, State gov- ernments, recognized as republican, with their principal and well-known features alike ; but differing chiefly in this, that a part of them rested on a basis of what is called universal suf- frage, while in others the right of suffrage was restricted to per- sons of specified property qualifications, or to white persons. There have always been those who deemed that no government is republican wherein the suffrage is not universal, or wherein a part of the people are slaves. And there can be no slaves now under our amended Constitution. But whatever be the true doctrine in principle, the adjudged law is that each of the 1 Such a case of irregular proceeding formed, while a Territory, a State Consti- would be in a good measure analogous to tution without a, previous act of Congress, what took place in the admission of Cali and was afterward admitted, and its gov fornia , which State, it is remembered, — ernment recognized. And there are other acting, of course, through unauthorized precedents of the like sort, persons, and in an unauthorized manner, — ^ Luther i>. Borden, 7 How. U. S. 1. 93 § 170 GOVERNMENTAL LOCALITY AND JURISDICTION; [BOOK' II.> differing forms of government thus mentioned is republican.^ Hence — § 169. Selecting the Republican Government. — It would seem to be general doctrine, unless Congress overrules her owii "precedents," that when she establishes a government for a State without one, she may select any form previously in use in any State. Yet — Special Facts — may limit her choice. Thus, if a part of the people of a State throw off their State government in an act of rebellion against the United States, Congress, in establishing the new State government, has no constitutional power to make those who rebelled the voters, and exclude those who did not rebel. ^ For — § 170. Why ? — The duty to give the State a republican gov- ernment comes to the United States simultaneously with its ceasing to have one. At this time, those in the State who cast off the old government are unwilling to establish the new; the minority who dissented or were silent are presumably willing. And a republican government can rest only on a basis of willing 1 This question has been, in effect, passed upon by each of the two houses of Congress, not once, but by a sort of con- tinuous action, ever since the Constitution was adopted. For as each house is by the Constitution the judge of the qualifications of its own members, and as to he elected by voters who were constitutionally dis- qualified woulr' disqualify the member, and as there have always been members who were elected by these several kinds of constituency, and no objection Kas been made, there has been in effect a series of adjudications too vast to be numbered. 2 Party Politics and Ijav — do not mix well. And as the subject Of my text borders on political discussions, there are those who from political reasons will dis- like to see, in a law-book, the particular doctrines whichthe law compelled me to state. But I never bent what I deemed to be the truth, to any man's politics, even my own ; neither did I ever, in a law-book, dodge the discussion of any legal question which fairly and properly sprang up in my path. And I am here presenting purely legal views, not political. I adopt, as my guide on every occasion of this sort, the rule which, in The Louisville and Nash- 94 ville Eld. V. Davidson, 1 Sneed, 637, 62 Am. D. 424, was laid down for the court. Said Caruthers, J. : " If the construction and administration of our laws, supreme or subordinate, were to be governed by the opinions of judges as to the genius or general principles of republicanism, de- mocracy, or liberty, there would be no certainty in the law, no fixed rules of de- cision. These are proper guides for the legislature where the Constitution is silent, but not for the courts. It is not for the judiciary or the executive department to inquire whether the legislature has vio- lated the genius Of the government, or the general principles of liberty and the rights of man, or whether their acts are wise and expedient, or not ; but only whether it has transcended the limits prescribed for it in the Constitution. By these alone is the power of that body bounded ; that is the touchstone by which all its acts are to be tried; there is no other. It would be a violation of first principles, as well as their oaths of office, for the courts to erect any other standard. ' There is no 'higher law' than the Constitution known in our system of government." p. 668. CHAP. VIII.] UNITED STATES WITHIN STATE LIMITS. § 171 voters. Therefore Congress is required to accept the willing. If it postpones the performance of a constitutional duty, such postponement cannot take away rights already acquired by in- dividuals or classes. And though a pardon maybe granted to those who seceded, and thereby they may be restored to the elec- tive franchise, yet since the right to the franchise had already descended to the others, Congress cannot take it away. If one Congress should attempt to do so, and in pursuance of the at- tempt should acknowledge a government in one of these States based on the action of a few only of the voters, constituting an oligarchy, or based on the votes of those who had rebelled, ex- cluding the mass of the people who had not, it would be the con- stitutional duty of a subsequent Congress to undo the work by withdrawing the acknowledgment, and ordering a new election for a constitutional convention in the State, with the right of the always loyal to vote. § 171. other Views — might be added, strengthening the fore- going conclusions. Thus, the guaranty clause of the Constitu- tion, like any other written law, carries with it so much of right and remedy as are necessary to its efficacy. ^ A State cannot exist without a government ; therefore, if it has none, the power bound to give it one may legislate for it during the interval. And a necessary part of this legislation must consist of deter- mining who shall be thie voters. Yet this determination, like ' the carrying out of any other constitutional-duty, must be guided by principles, if such there are, inherent in the particular case. And it does inhere in this particular case that the unwilling cannot be compelled to vote and the willing forbidden. On this ground, whether political considerations impelled, or not, the congressional votes which gave to the negroes the right of fran- chise in our late seceded States, the Constitution commanded it, an^ necessarily what has been done is beyond the power of man to reverse. But for the future, those who control political things in these States, and do not like the votes of ignorant negroes, can cut them off by constitutional amendments, pro- vided they will cut off also the equally ignorant votes of white men. Here we come to politics, not law, therefore the pursuit of the subject must terminate. 1 Stat. Crimes, § 137 ; Oath before the Justices, 12 Co. 130, 131 ; Heard o. Pierce. 8 Cush. 338, 343, 345, 54 Am. D. 757. 95 § 174 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. § 172. National Powers not forbidden to States. — OpeTative within State limits, there are jurisdictional powers granted by the Constitution to the United States, yet not forbidden to the States. As to these, the true rule of construction undoubtedly is that until Congress acts, the States may exercise the full governmental authority ; but when Congress has acted, the thing is, or may be made by its statute, no longer within the compe- tency of the States.^ Without tracing this doctrine into detail, let us look at some things adjudged ; as, — ■ § 173. Maritime Jurisdiction within States. — "The judicial power of the United States shall extend, " says the Constitution, "to all cases of admiralty and maritime jurisdiction;" ^ and the latter, contrary to the English rule, is by our courts held to em- brace locally, not only the high seas, but all the internal navi- gable waters, such as rivers and lakes, on which commerce is borne. ^ " Regulate Commerce " — Offences on Public Ways. — The United States has also constitutional power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. " * This power includes the regulation of naviga- tion,^ and necessarily implies certain rights of creating by legis- lation offences against commerce, committed on the public ways of the nation. Still, — • § 174. Further of Public Ways. — The national power over navigable waters within the States slumbers until legislation awakens it into practical life.^ Therefore, as general doctrine, 1 See Weaver v. Fegely, 29 Pa. 27, 70 « Gibbons u.Ogden, 9 Wheat. 1 ; North Am. D. 151 ; P. ti. Westchester, 1 Par. Cr. River Steamboat Co. v. Livingston, 3 Cow. 659 ; Newport v. Taylgr, 16 B. Monr. 699 ; 713 ; Ogden v. Gibbons, 4 Johns. Ch. 150 ; Mobile V. The Cuba, 28 Ala. 185; P. v. Gibbons v. Ogden, 17 Johns. 488; Living- Coleman, 4 Cal. 46, 60 Am. D. 581. ston v. Van Ingen, 9 Johns. 507 ; Mobile ^ Const. U. S. art. 3, § 2. v. The Cuba, 28 Ala. 185 ; Brig Wilson i: ' Genesee Chief v. Fitzhugh, 12 How. U. S. 1 Brock. 423; Gilman v. Philadel- U. S. 443; Fretz v. Bull, 12 How. U. S. phia, 3 Wal. 713. 466. Previously to these decisions, it w^as ^ Bishop Non-Con. Law, § 953 ; Waring understood to extend only to tide-waters, v. Clarke, 5 How. U. S. 441 ; U. S. ». New The Thomas Jefferson, 10 Wheat. 428; Bedford Bridge, 1 Woodb. & M. 401. See Steamboat Orleans t». Phoebus, 1 1 Pet. 175; Pennsylvania v. Wheeling and Belmont U.S. V. Coombs, 12 Pet. 72; Waring v. Bridge, 13 How. U.S. 518; Bailey w. Phil- Clarke, 5 How. U. S. 441; Eossiter u. adelphia Rid. 4 Harring. Del. 389; George- Chester, 1 Doug. Mich. 154. And see ' town v. Alexandria Canal, 12 Pet. 91 ; P. Steamboat New World v. King, 16 How. v. St. Louis, 5 Gilman, 351 ; P. v. Cole- U. S. 469 ; The Huntress, Daveis D. C. man, 4 Cal. 46, 60 Am. D. 581 ; C. v. New 82. Bedford Bridge, 2 Gray, 339. * Const U. S. art. 1, § 8. 96 CHAP. VIII.] UNITED STATES WITHIN STATE LIMITS. § 175 the law permits the States to exercise full control over public ways of all kinds within their respective localities.^ Even roads may be laid out by a State across lands within its limits belong- ing to the United States, and the general government cannot interfere.^ But — Regulate Commerce. — Under the authority io regulate com- merce, Congress may exercise any jurisdiction over the public ways of the country required for this object ; ^ and perhaps there may be some jurisdiction from other provisions of the national Constitution.* Even without congressional legislation, the courts of the United States under their equity powers may order the abatement of bridges and other structures over navigable rivers, if clearly they are nuisances embarrassing commercial intercourse between the States, though authorized by the legis- latures of the States in which they are located.^ It is otherwise where the waterway is entirely within the territorial limits of the State, not extending, as a public highway, into any other State. ^ There have, been doubts of the authority of the judiciary in any circumstances thus to take action in advance of legisla- tion, and practically such action is and should be limited to cases clear in the law and the facts urgent. Further as to — § 175. state Jurisdiction. — Subject only to the national inter- ference just explained, the statute of a State may go as far as its legislature chooses in authorizing bridges and the like structures 1 P. V. St. Louis, 5 Gihnan, 351 ; C. v. 1 Abb. U. S. 246 ; Delaware and Hudson Alger, 7 Cush. 53; Moore v. Sanborne, 2 Canal v. Lawrence, 2 Hun, 163. Mich. 519, 59 Am. D. 209 ; Bailey w.PhiJa- ^ u. S. v. Rid. Bridge, 6 McLean, 517. delphia Eld. 4 Harriug. Del. 389, 44 Am. " U. S. v. New Bedford Bridge, supra ; D. 593 ; Rogers v. Kennebec and Portland Pennsylvania v. Wheeling and Belmont Rid. 35 Me. 319, 323 ; Eldredge v. Cowell, Bridge, 18 How. U. S. 421 ; Gibbons v. Og- 4 Cal. 80 ; Cox » S. 3 Blackf. 193 ; Depew den, 9 Wheat. 1. It may forbid or regu- V. Trustees, 5 Ind. 8 ; Kellogg v. Union late the construction of a bridge across the Company, 12 Conn. 7 ; Willson v. Black Mississippi. U. S. v. Milwaukee and St. Bird Creek Marsh, 2 Pet. 245 ; Sarannah Paul Ry. 5 Bis. 410. ' B. S. 4 Ga. 26 ; Stoughton v. S. 5 Wis. 291 ; * See Pennsylvania u. Wheeling and Morgan v. King, 18 Barb. 277 ; Withers Belmont Bridge, supra. V. Buckley, 20 How. U. S. 84 ; Parker v. ^ Bishop Non-Con. Law, § 953 ; Penn- Cutler Mill Dam, 20 Me. 353, 37 Am. D. sylvania y. Wheeling and Belmont Bridge, 56; Illinois River Packet Co. v. Peoria 13 How. U. S. 518, 18 How. XJ. S. 421 ; Bridge, 38 111. 467 ; Chicago v. McGinn, Georgetown v. Alexandria Canal, 12 Pet. 51 111. 266, 2 Am. R. 295 ; Attorney-Gen- 91 ; U. S. v. Railroad Bridge, 6 McLean, eral «. Stevens, Saxton, 369, 22 Am. D. 517 ; Gilman r. Philadelphia, 3 Wal. 713. 526 ; Hutchinson v. Thompson, 9 Ohio, 52 ; « Bishop Non-Con. Law, § 953 ;'Milnor Planagan v. Philadelphia, 42 Pa. 219; P. v. New Jersey Rid. 6 Am. Law Reg. 6, V. Tibbetts, 19 N. Y, 523 ; Mobile v. Eslava, Grier, J. See Silliman v. Hudson River 9 Port. 577, 33 Am. D. 325 ; Avery v. Fox, Bridge, 1 Black, 582. VOL. I.-7 97 § 176 GOVERNMENTAL LOCALITY AND JURISDICTION. [BOOK II. even over the large rivers and the harbors of the country. ^ But where, in these cases, the national legislature has already laid down a rule, it bounds the State power. ^ Congress may consti- tutionally legalize a bridge already erected. ^ And — § 176. Crimes against Commerce. — Though Congress has au- thority thus to regulate the ways of commerce within the States, concurrently with them,* or doubtless even to their exclusion^ should she be so unwise, as to crime she has not to any consid- erable ^ extent legislated to punish what is done within counties. Therefore — Within the Counties — the dominion of the States and the common-law jurisdiction of their courts are practically almost as exclusive as if Congress had no constitutional authority in exceptional localities there. '^ But some things are by congres- sional legislation made punishable when done "upon the high seas, or in any arm of the sea, "or in any river, haven, creek, basin, or bay within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State ; " ^ the construction whereof appears practically to be that the words " out of the jurisdiction of any particular State " do not qualify " high seas, " but do qualify the subsequent words : so that if the offence is upon seas washing an open coast, and 1 See cases cited to the last section ; provision being in regulation of commerce, Hudson V. S. 4 Zab. 718; Palmer jj. Ouya- the national courts.were held to have ju- hoga, 3 McLean, 226 ; C. v. New Bedford risdiction of the offence though committed Bridge, 2 Gray, 339. while the wreclsed vessel is lying upon the 2 Columbus Insurance Co. v. Curtenius, shore, and even after the property is thrown 6 McLean, 209 ; Columbus Insurance Co. upon the shore separated from the vessel. V. Peoria Bridge, 6 McLean, 70 ; Jolly v. V. S. v. Pitman, 1 Sprague, 196 ; U. S. v. Terre Haute Draw-Bridge, 6 McLean, 237 ; Coombs, 12 Pet. 72. See R. S. of U. S. Gibbons v. Ogden, 9 Wheat. 1. § 5358. 8 Clinton Bridge, 10 Wal. 454. ^ U. S. v. Bevans, 3 Wheat. 336 ; * See Waring v. Clarke, 5 How. U. S. Thompson «. Steamboat Morton, 2 Ohio 441. And see Rex v. Bruce, Russ. & Ry. St. 26. Internal Commerce of States 243, 2 Leach, 1093. — Oysters. — The States may regulate * C. ij. Peters, 12 Met. 387. their own internal commerce. And a law " See P. <.-. Westchester, 1 Par. Cr. 659. forbidding citizens of other States to take An act of Congress made it felony " if any oysters from the waters of the State has person or persons shall plunder, steal, or been held to be constitutional. Corfield u. destroy any money, goods, merchandise, Coryell, 4 Wash. C.C. 371. Gold Mines, or other effects from or belonging to any — So of a law requiring from foreigners a ship, or vessel, or boat, . s Bishop First Book, § 109. As to the Kosloff, 5 S. & E. 545 ; Du Ponceau Jurisd. retrocession of Alexandria to Virginia, see 9-14, 57-62. And see C. i>. Peters, 12 Phillips v. Payne, 92 U. S. 130. 110 CHAP. XI.J COMBINED ACT AND INTENT. § 204 BOOK III. THE SEVEEAL ELEMENTS OF CRIME AND THEIR COMBININGS IN GENERAL. CHAPTER XL THE COMBINED ACT AND INTENT. § 204. 1. Act essential. — We have seen ' that the tribunals take notice of wrongs only when, the complaining party is enti- tled to complain. And he is so entitled only when, besides having an interest in the transaction, he has suffered. Now the State, that complains in criminal causes, ^ does not suffer from the mere imaginings of men. To entitle it to complain, there- fore, some act must have followed the unlawful thought. This doctrine is fundamental, and, in a general way, universal ; but slight differences in its common-law applications appear in the books, and now and then a statute is enacted departing from judicial precedent. To illustrate, — ^ 2. Having — Procuring — (Counterfeits — Tools — Obscene Li- bel). — It is no offence at the common law to have in one's possession counterfeit coin, or forged paper, or bills of a non- existing bank, with the intent to pass them as good ; or tools for -forging, with the intent to use them ; or an obscene libel, with the intent to publish it; because the bare possession is not an act.* But to procure such money or other things with the ' Ante, §11. 2 Mass. 138; Dugdale v. Reg. 16 Eng. L. * Ante, .§ 32. & Eq. 380, 1 Ellis & B. 435, Dears. 64, 22 » Rex V. Stewart, Russ. & Ry. 288; Law J. n. s. M. C. 50, 17 Jur. 546; S. v. B. c. noin. Rex v. Stuart, 1 Russ. Crimes, Penny, 1 Car. Law Repos. 517; Rex v. 3d Eng ed. 48; Reg. v. Fulton, Jebb, 48; Rosenstein, 2 Car. &P. 414. But see Reg. Rex V. Heath, Russ. & Ry. 1 84 ; C. v. Morse, v. Willis, Jebb, 48, note. Ill § 205 ELEMENTS OP CRIME. [BOOK III. criminal intent is an offence, because the procuring or receiving is an act.^ This nice distinction is clearly required hy the principles of the common law. Yet there are English and American statutes under which a possession, with the criminal intent added thereto, is punishable; and possibly some of the older ones are common law in this country.^ So, — 3. " Having," as Evidence of " Procuring" — At the common law, possession may be shown in evidence of a procuring. ^ Again, — 4. Bystander. — A mere looker-on, while a crime is being committed, who does nothing, and who neither then nor before by any word or act encouraged it, is not punishable though mentally "he approves the crime.' In like manner, — 5. Inheriting a Public Nuisance — is not an act of the party ; and one who simply occupies this position, yet does nothing in relation to or in connection with the nuisance, is not in- dictable. '^ § 205. Evil Intent also essential. — Prompting the act, there must be an evil intent, — to.be explained further on.^ For example, if a child is too young to have such intent,'' or if a person of any age is insane and therefore incapable of having it,' 1 Rex t>. Fuller, Russ.&Ry. 308; Dag- 1689 [stated Cas, temp. Hardw. 371], for dale V. Reg. 16 Eng. L. & Eq. 380, 1 Ellis having in his custody divers picklock-keys & B. 435. with intent to break house and steal goods , ' SeeR«x i-. Sutton, Cas. temp. Hardw. Rex c Brandon, Old Bailey, leat" [stated 370, 373, 2 Stra. 1074. Contrary Com- Cas temp. Hardw. 372J, for having coin- mon-law Views. — From the report of ing instruments with intent, &c.', Rex i. this case in Strange, we should infer that Cox, Old Bailey, 1690 [stated Cas. temp. a possession Is alone a sufficient act at the Hardw 372], for buying counterfeit shil- common-law; whence some modern wri- lings, with intent, &c., — were cited in ters have supposed that the rule was so support of the prosecution; for per Lee,-J. anciently, and was changed by later de- 'all that is necessary in this case Is an act cisions. But the moreiextended report in charged and a criminal intention joined to Cas. temp. Hardw. supra, seems to put that act.' " p. 42, Prom this, the distinc- this case on one of the English statutes, tion between " procuring " and " having " See also Rex v. Lennard, 2 W, Bl. 807, 1 would seem not to have occurred to the Leach, 90, I East V. C. 170. The report- court or to Mr. Leach, er's head-note to Rex ..-. Parker; 1 Leach, ^ Rex <.. Fuller, Russ. & Ry, 308; 41, is- " Having the possession of counter- Brown's Case, 1 Lewin, 42. feit money, with intention to pay it away * Post, § 633; S. c. Cox, 65 Mo. 29, as and for good money, is an indictable Hairston t;. S. 54 Missis. 689, 28 Am. R. ofifence at common law." The date of this 392, 395. case is 1750. But the report shows that ' Bruce v. S. 87 Ind. 450. And see no opinion was ever delivered In it. In a Crocker v. S. +9 Ark. 60. note, the reporter derives the doctrine •> Post, § 285 et seq, from Rex '.•. Sutton, supra And he adds. " Post, § 367 et seq. ' The cases of Rex v. ,Lee, Old Bailey, 8 jfost, § 374 et seq. 112 CHAP. XI.] COMBINED ACT AND INTENT. §207 or if one acts honestly under a misapprehension of facts,^ there Is no evil purpose, and consequently no crime. § 206. Act and Intent to combine. — It results from the fore- going, and the authorities establish the rule, that an act. and evil intent must combine to constitute in law a crime.^ And — § 207. 1. Whether simultaneous — Generally, perhaps al- ways, the act and intent must concur In point of time.-'' Thus, — 2. Larceny, — composed of the act of trespass and the super- added intent to steal, ^ is not committed when this trespass and this intent do not exist at the precise moment together.^ And, — 3. Burglary, — in the ordinary case of breaking in, is consti- tuted only when the intent to commit the felony in the place broken exists at the moment of the breach and entry. ^ Still, — 4. Whether Exceptions — It would be difficult to assert that there may not be real or apparent exceptions to this rule of 1 Post, § 301 et seq. 2 Post, § 430; Hex v. Scofield, Caltl. 397, 403; 1 East P, C. .'J8, 2-ib; 2 East P.C. 1028, 1030; C. u. Morse, 2 Mass. 138, 139; Ross V. C. 2 B. Monr. 417 ; Respub- lica u. Malin, 1 Dall. 33 ; S. v. Will, I Dev. 6 Bat. in, 170; Rex v. Warne, 1 Stra. 644 ; Rex o. Heath, Russ. & Ry. 184; Rex i: Stewart, Russ. & Ry. 288 ; Yoes o. S. 4 Eug. 42; Torrey ^. Field, 10 Vt. S.W, 409 ; U. S. 0. Twenty-eight Packages, Gil- pin,-306 ; Respublica v- Roberts, 1 Dall. 39, Gore's Ca.se, 9 Co. 81 a ; Dugdale u. Reg. 16 Eng. L. & Eq. 380, I Ellis & B. 435; U.S.u. Riddle, 5 Cranch, 311 ; Gates V. Lounsbury, 20 .Jojins. 427 ; Rex «. Green, 7 Car. & P. 156 ; Reg. v. Chapman. 1 Uen. C. C. 4.32„Teinp. & M. 90, 13 Jur. 885; Case of Le Tigre, 3 Wash. C. C. 567, 572 ; Rex V. Sutton, Cas. temp. Hardw, 370, 2 Stra. 1074 ; Reg. i. Turvy, Holt, 364 ; Hey I'. C. 32 Grat. 946, 34 Am. R. 799 ; Roun- tree v. S. 10 Tex. Ap. 1 10; Beatty v. Gill- banks, 9 Q. B. D. 308, 15 Cox C. C. 138 , Davis c S. 68 Ala. 58, 44 Am. R. 128, 134 3 See the subsequent cases cited to this section ; also S. u. Will, 1 Dev. & Bat. 121, 170; Bulloeki. Koon,4 Wend.531 ; Morse u. S. 6 Conn. 9 , Rex v. Hughes, 2 Lewin, 229, 232, 1 Russ Crimes, 3d Eng. ed. 21 , Rex V. Smith, .') Car & P. 107, 1 Moody, VOL. 1 — 8 314; Brooks i. Warwrick, 2 Stark. 389; Reg. V. Sutton, 2 Moody, 29; Wrigljt v. S. 18 Tex. Ap. 358 ^ Post, § 342 5 Reg. 0. Preston, 8 Eng. L. & Eq. 589, 2 Den. C. C. 353; V. i: Anderson. 14 Johns. 294. 7 Am. D 462; P. i. Cogdell, 1 Hill, N. Y. 94, 37 Am. D. 297 ; S. u. Fer- guson, 2 McMul. 502 ; S. V. Weston, 9 Conn. 527, 25 Am. D. 46; Reg. v. Riley, 14 Eng. L. & Eq. 544, Dears. 149, 17 Jur. 189; Reg. v. Glass, 1 Den. C. C. 215, 2 Car. & K. 395; P. v. Reynolds, 2 Mich 422; Long!). S 12Ga. 293; Reg. f. Good- body, 8 Car. & P. 665 : S. «. Braden, 2 Tenn. 68 ; Rex v. Charlewood, 1 Leach, 409, 2 East P. C. 689; Reg. v. Brooks,- 8 Car. & P. 295 ; Rex v. Leigh, 2 East P. C. 694, 1 Leach. 411, note: Reg. v. Evans, Car. & M. 632 ; S. t. Smith, 2 Tyler, 272 , Reg. V. Peters, 1 Car. & K 245 ; Rex ,-. Pope, 6 Car. & P. 346 ; S. t. Roper, 3 Dev. 473, 24 Am. D. 268 ; Reg. i;. Thristle, 1 Den. C. C. 502, 2 Car. & K. 842 ; Rex ■■. Pear, 1 Leach, 212, 2 East P. C. 685, 697. And see Norton u. S. 4 Misso. 461 ; Ran som V. S. 22 Conn. 153; S. f. Conway, 18 Mo. 321; Rex t. Holloway, 5 Car. & P. 524. But see S. v. Burk, 4 Jones, N. C. 7. « Kelly <». C. I Grant, Pa 484. As to burglary by breaking out, see Vol. 11. §99. 113 § 208 a ELEMENTS OF CRIME. [BOOK. Ill, simultaneousness. If, for example, a man should send to a distant place an agent to do a criminal thing for him there, ' then should repent, but before the countermand reached the agent the thing should be done, it would be a question about which there might be doubt whether or not this ineffectual repen- tance and countermand freed the party from criminal responsi- bility ; or, the answer might vary with the sort of case. § 208. Permission abused — Trespasser ab initio. — In civil jurisprudence, we have the rule that when a man does a thing by permission of law, — not by license, but by permission of law, — and, after proceeding lawfully part way, abuses the liberty the law had given him, he shall be deemed a trespasser from the beginning by reason of this subsequent abuse. ^ But this doctrine does not prevail in our criminal jurisprudence; for no man is punishable criminally for what was not criminal when done, even though he afterward adds either the act or the intent, yet not the two together.^ On the other hand, — § 208 a. Repentance after Act — Before. — When a crime has been fully committed, repentance, however rapidly following, is too late to annul it* But an abandonment of the evil intent at any time before so much of the act is done as constitutes a crime, takes from the doing its indictable quality.^ 1 See ante, § 110, 111. » S. u. Moore^ 12N. H. 42 ; C. v. Tobin, 2 Bishop Non-Con. Law, §391-394, 108 Mass. 426; U. S. r. Fox, 95 U. S. 670. where the doctrine is more fully stated ; And see the other cases cited to this sec- Broom Leg. Max. 2d ed. 221; Allen v. tion; also Vol. 11. § 1028, 1122. " JEsti- Crofoot, 5 Wend. 506 ; Sackrider v. Me- matio proeterlti delicti ex postremo facto Donald, 10 Johns. 253; Hopkins v. Hop- nunquam crescit. The estimation of a kins, 10 Johns. 369; Gates «. Lounsbury, crime committed never increases from a 20 Johns. 427. See Wheelock u. Archer, subsequent fact. Bac. Max. Reg. '8." 26 Vt. 380; Bradley v. Davis, 14 Me. 44, Bouv. Law Diet. 30 Am. D. 729 ; Jarrett v. Groathmey, 5 ■" Post, § 732, 733 ; U. S. v. Fox, 95 Blackt. 237 ; Wendell v. Johnson, 8 N. H. U. S. 670 ; "shultz v. S. 5 Tex. Ap. 390. 220, 29 Am. D. 648; Ferrin v. Symonds, 5 Post, § 733; Clements i-. S. 50 Ala. 1 1 N. H. 363 ; Bond v. Wilder, 1 6 Vt. 393 ; 1 1 7 ; P. v. Lilley, 43 Mich. 52 1 ; Young «. Cushing !>. Adams, 18 Pick. 110, 114; S. 82 Ga. 752. Smith i;. Gates, 21 Pick. 55; Oxley v. Watts, 1 T. R. 12. 114 CHAP. XII.] PUBLIC GOOD AND DESERT OF PUNISHMENT. § 210 CHAPTER XII. THE PUBLIC GOOD AND DESERT OP PUNISHMENT TO COMBINE. § 209. Law Practical. — In the criminal department, the same as in the civil, our law and its enforcement are ordained to pro- duce practical results, not to vindicate theories of right. To illustrate: in morals, the rule for adultery is that the mere imagining or designing of evil is equivalent to the doing ; ^ but we have just seen ^ that in our jurisprudence no such rule pre- vails, since neither the community nor a third person hut only the individual himself is harmed by an evil imagining from which no act proceeds. And from this view we are conducted to another; namely, that in determining whether or not a par- ticular thing is or should be made cognizable by the criminal law, we are not simply to look at the morals of it, or even at its practical enormity, but to consider whether or not to punish the wrong-doer will as a judicial rule promote, on the whole, the public peace and good order. § 210. Object of Punishment. — The reason for punishing evil- doers is often stated to be to deter others from crime, and so protect the community ; as well as, when the life is not taken, to reform them.^ Some writers have objected to the first part of this proposition, suggesting that the government has no right to impose suffering on one of its subjects for the good of the rest. This idea comes evidently from a just principle, yet it appears harmonious with the other branch of the proposition when both are rightly viewed. The courts, as we have seen,* do not take cognizance of all crime. Therefore, — Offender's Desert and Public Good. — On the one hand, no man is to suffer punishment unless he deserves it in pure retributive iMatt. v:28. land Moral Science, 10; Paley Moral 2 Ante, § 204, 208 6. Phil- l>- 6, <:• 9; l^"'li Ij^st. b. 1, c. 18, 8 Beccaria on Crimes, c. 12; Eden §3,16. Penal Law, 3d ed. 6 ; 4 Bl. Com. 16 ; Way- * Ante, § 10, 209. 115 § 211 a ELEMENTS OF CRIME. [BOOK III. justice, aside from all collateral considerations; on the other hand, though it is merited, it will not be inflicted by the gov- ernmental powers, which do not assume the full corrective func- tions of the Deity, unless presumably it will contribute to the public good.^ Hence, — § 211. Practical. — Partly to repeat, while the criminal law is a science, it is for use, not speculation. Hence, also, — Technical Rules, — though necessary in the criminal law, are not to be carried to results -plainly detrimental to the public repose, or to a sound administration of the judicial system. Again, — - Justice to Defendants. — No theories, however fine, should ever persuade a court to pronounce against a defendant a judgment to which the conscience of mankind will refuse to respond. When, as it has happened,^ it is seen that a proposed judgment is of this sort, and the court feels aii inward prompting to con- tinue the case expressly to give the defendant an opportunity to apply for a pardon, the further question should be carefully revolved, whether or not the decision itself is sound in law. Finally, — Practical Effect of Proposed Law. — A wise legislator will consider as well how a proposed law will practically work, as whether or not it is intrinsically just. § 211 a. Repeated, — the doctrine is^ that the moral law is administered by God, and by the moral activities of the com- munity, not by the State. The criminal law, which the State enforces, takes cognizance only of delinquencies injurious to the public, when attended by circumstances presumably rendering their punishment a public benefit. I " State punishments are to be consid- " C. v. Mash, 7 Met. 472 ; post, § 903 ; ered as founded on and limited by, first, Stat. Crimes, § 356. natural justice; secondly, public utility." Eden Penal Law, 3d ed. 6. 116 CHAP. XIII.J MAGNITUDE OF CRIMINAL THING. § 214 CHAPTER XIII. THE CRIMINAL THING TO BE OF SUFFICIENT MAGNITUDE. § 212. Introduction. 213-215. Doctrine in General. 216-222. As to the Intent. 223-227. As to the Act. 228. Doctrine of Chapter restated. § 212. How Chapter divided. — -We shall consider, I. The Doctrine in General ; II. As to the Intent ; III. As to the Act. I. The Doctrine in General. § 213. Magnitudes. — Equally in the criminal and civil de- partments of the law, the things whereof it takes or refuses cog- nizance differ as well in their magnitudes as in their natures. ■ And in some circumstances it will not notice a small thing ; in others, it takes jurisdiction alike of all magnitudes. Inquiring more minutely after the doctrine, — Maxims as to Small Things. — Our books have two maxims, resulting in the rule often or commonly expressed in unqualified terms, that the courts will not assume jurisdiction over things trifling and small. One of these maxims is, J)e minimis non curat lex,^ "the law does not concern itself about trifles;" the other is. In jure non remota causa sed proxima spectatur, " in law the immediate and not the remote cause of any. event is regarded. " ^ In another work, the author somewhat considered this subject as to civil wrongs.^ § 214. 'Whether applicable in Criminal Law, — Each of these maxims is, it is admitted, of wide influence in the civil depart- ' Broom Leg. Max. 2d ed. 105; P. w. ^ Broom Leg. Max. 2d ed. 165 ; Faw- Kelly, 33 Hun; 389, 392 ; Prior v. Kiso, 81 cett v. Pittsburg, &c. Ry. 24 W. Va. 755, Mo. 241, 251 ; Reclamation Dist. No. 3 v. 759. Goldman, 65 Cal. 635, 641. ' Bishop Non-Con. Law, § 35, 36. 117 § 215 ELEMENTS OF CRIME. [BOOK III. ment of our law. But prior to the appearance of the present ■work in its first edition, writers on the criminal law either ig- nored these maxims or denied their applicability in this depart- ment of our jurisprudence. For example, Broom, in his " Legal Maxims," says of the latter of the above two that it does not "hold in criminal cases, because in them the intention is matter of substance, and therefore the first motive, as showing the in- tention, must be principally regarded. " ^ But we shall see that the adjudged law as to the motive is directly the other way.^ So also is the reason of the thing, and so are such judicial deter- minations as are applicable to the question. S,till, — In False Pretences, — where one had got by the pretences a ticket to a swimming race, which gave him the advantage of twenty seconds at the start, and in the race had won a cup, for obtaining which he was indicted, the objection to his conviction that the false means employed were too remote from the accom- plished end was sustained.^ Now, — § 215. How Elucidations. — It is impossible to deny the exis- tence or criminal-law applicability of the doctrine which this chapter illustrates. If every legal author and every judge from the earliest periods of our law to the present day had written and said that the criminal law rejects this doctrine, the conse- quence would not be that it does. For the adjudged law pro- ceeds upon it, and the reasoning of the law sustains it ; therefore it is law. So we shall proceed in this chapter with some expla- nations of what has been held, of its fundamental nature, and in some measure of its limits. But we shall carry the subject in our minds through all the elucidations of this series of volumes; for a reference to this doctrine will often constitute the only possible solution of a question in hand. 1 Broom Leg. Max. 2d ed. 170. He murderous intent." Broom Leg. Max. 2d illustrates thus: "As, if A of malice pre- ed. 170, 171. What is thus said for illus- pense discharge a pistol at B and miss him, trntion is doubtless sound in law, but it whereupon he throws down his pistol and tends in no degree to support the proposi- flies, and B pursues A to kill him, on tion. A killing in malice is murder ; and which he turns and kills B with a dagger, in the case supposed, the fact that A, be- — in this case, if the law considered the fore he flee}, discharged at B his pistol, immediate cause of the death A would be shows the continuance of malice in him justified as having acted in his own de- when afterward he succeeded in accom- fence ; but looking back, as the law does, plishing the killing meant, to the remote cause, the offence will ^ Post, § 337-341. amount to murder, because committed ° Reg. v. Larner, 14 Oox C. C. 497. in pursuance and execution of the first 118 CHAP. XIII.] MAPNITUDE OP CRIMINAL THING. §■ 217 11. As to the Intent. § 216. Carelessness, — when producing certain evil results, is, we shall by-and-by see,i criminal. But it follows from the doc- trine of this chapter, and from the reason of the thing, that there may be a carelessness so slight as not to be of account in the criminal law. In principle, the line distinguishing the less degree from the greater is not quite easy to find, and when we seek for it in authority it there appears variable ajnd uncertain. Thus, — § 217. 1. Homicide by Medical Practitioner. — Not erery de- gree of carelessness in a medical man will, if the death of the patient ensues, render him liable for manslaughter : it must be gross ; 2 or, as more strongly expressed, the grossest ignorance or most criminal inattention. ^ 2. For Persons Generally — who cause death in pursuing their lawful business, the criterion is said to be "to examine whether common social duty would, under the circumstances, have sug- gested a more circumspect conduct. " * Yet we may doubt, on the authorities, whether this expression is not a little too strong against the accused. 3. Homicide from Omission, Commission. — Wrongly omitting to do is ordinarily less reprehensible than wrongly doing. Within which distinction, it appears sometimes to have been laid down that merely omitting to do an act will not render one liable for homicide, though death follows.^ And such is gener- ally, perhaps universally, the just doctrine where the omission is not connected with a legal duty ; ^ but not where it is. ^ The difference between omitting and doing is not so much in princi- ' Post, § 313 et seq. ' ' Eex v. Green, 7 Car. & P. 156. 2 Rex V. Long, 4 Car. & P. 398 ; Eex « Rex v. Allen, 7 Car. & P. 153 ; Rex V. Van Batchell, 3 Car. & P. 629. v. Smith, 2 Car. & P. 449 ; Reg. v. Bar- 3 Eex V. Williamson, 3 Car. & P. 635 ; rett, 2 Car. & K. 343 ; Rex v. Squire, 1 Vol. II. § 664. Rnss. Crimes, 3d Eng. ed. 19 ; Reg. v. * 1 East P. C. 262. And see, as to Edwards, 8 Car. & P. 611 ; Eex v. Saun- what is sufficient carelessness, Eeg. v. ders, 7 Car. & P. 277 ; Reg. v. Vann, 8 Conrahy, 2 Crawf. & Dix C. C. 86; Rex Eng. L. & Eq. 596, 2 Den. C. C. 325, 5 V. Waters, 6 Car. & P. 328 ; Rex v. Con- Cox C. C. 379. ner, 7 Car. & P. 438 ; S. v. Hildreth, 9 Ire. ' Rex ij. Friend, Russ. & Ey. 20 ; Reg. 440, 51 Am. D. 369 ; Matheson's Case, 1 v. Lowe, 3 Car. & K. 123, 4 Cox C. C.449, Swinton, 593. See also Vol. II. § 656 I, 7 Bost. Law Reporter, n. s. 375 and note, 681 690 1 Ben. & H. Lead. Cas. 2d ed. 60. 119 §219 ELEMENTS OP CRIME. [book III, pie as in dfegrec.^ The delinquency must be of a certain magni- tude for the courts to take cognizance of it. § 218. Carelessly selecting Agent — (Master and Servant — Sheriff and Deputy — Escape). — By general doctrine, it is no crime for a man to employ a servant in a lawful business; and if the servant commits a crime therein, the master is not liable.^ But we shall see, further on,^ that the master may be so careless in selecting his servant as to become answerable criminally for acts done in the service. And it appears from some of the older books that a sheriff is indictable for a mere negligent escape* suffered by a deputy; for example, his jailer; because he "ought to put in such a jailer as for whom he will be answerable."^ But we may doubt whether in this sort of case the doctrine of responsibility would be carried so far now, in the absence of special circumstances; and it seems in a general way to be set- tled that he cannot be held criminally for the conduct of his deputy;^ though he may be liable in proceedings quasi criminal,'' for the enforcement of civil rights.^ Further to illustrate, — § 219. 1. In Liquor Selling. — Under the statutes forbidding the sale of intoxicating drinks without license, and the former 1 On this topic a Scotch law writer ob- serves . " The general principle is, that in acts either of duty or amusement, all per- sons are bounil to take due care that no injury is done to any of the lieges, and that if death ensue from the want of such care, they must be answerable for the con- seijuences. <)i course, the degree of care which the law requires varies with the degree of peril which the lieges sustain from its want. It is greatest where the peril is most serious, and diminisljes with the decrease in the danger incurred by negligence or inattention. Thus, the mas- ters of steamboats, who are intrusted with the guidance of floating vessels of im- mense size, and moving with the greatest velocity, are bound to exercise the high- est degree of vigilance : the drivers of stagecoaches are answerable for the next, degree of diligence, then drivers of ordi- nary carriages and riders on horse-back. This arises from the different degrees of peril which the lieges sustain from such negligence, and the greater degree of skill expected from those who are intrusted with the direction of the higher species of vehicles." Alison Crim. Law, 113, and 120 see several of the succeeding pages in this author. The Scotch law would seem to require rather less carelessness in de- gree to constitute what it terms culpable homicide, than the English, to constitute the corresponding offence of manslaughter. See also Mr. Bennett's discussion of the distinction between the negligent omis- sion and commission in his note to Reg. u. Lowe, supra. 2 Post, § 317; Chisholm v. Doulton,22 Q. B. D. 736, 16 Cox C. C. 675. 8 Post, § 316 et seq. * See post, §316, .321. 6 Rex K. Fell, 1 Ld Raym. 424, 5 lilod. 414, 416, 1 Hawk. P. C. Curw. ed. p. 198, § 29. But see the report of Rex v. Fell, in 1 Salk. 272. See also Rex i: Lenthal, 3 Mod. 143, 146, Reg a. Belwood, 11 Mod. 80. • « C. !•. Lewis, 4 Leigh, 664 ; S. ». Berk.-liire, 2 Ind. 207 ; Overholtzer v. Mc- Mlchael, 10 Pa. 139; 1 East P. C. 331. • Ante, § 32, 33. ' lu re Stephens, 1 Kelly, 584 , Over- holtzer i: McMichael, 10 Pa. 139. And see Miller >.. Lockwood, 17 Pa. 248. CHAP. XITI.] MAGNITUDE OF CRIMINAL THING. § 219 ones against selling goods to slaves without the consent of their masters, it is sufficient in defence that the sale was made hy the defendant's clerk, unauthorized either absolutely or by implica- tion.' And it is the same though the statutory words are "by agent or otherwise." ^ Still we have cases in liquor selling which carry the liability of the employer very far.^ And — 2. In Libel, — where the complained-of words appeared in a boolc or newspaper, the mere publisher commonly finds it difficult to escape criminal responsibility, though in fact he did not see or hear of the libellous matter. "• In a Connecticut case, Ells- worth, J., explains as follows: "The master is never liable criminally for acts of his servant done without his consent and against his express orders. The liability of a bookseller to be indicted for a libel sold from his store by his clerk is nearest to it. But the character of these cases has not always been under- stood. If carefully examined they will be found to contain no new doctrine. The leading case is Rex v. Almon.'' Other cases followed, as may be seen.^ But having examined these cases we speak with confidence that they contain no new doctrine. They make a sale in the master's store high, and unexplained, decisive evidence of his assent and co-operation; but they will not bear out the claim that a bookseller is liable at all events for a sale by his general clerk. Lord Mansfield said, in Rex v. Almon, ' The master may avoid the eff'ect of the sale by showing that he was not privy nor assenting to it, nor encouraging it' So in Starkie it is said that the defendant in such cases may rebut the presumption by showing that the libel was sold contrary to his orders, or under circumstances negativing all privity on his part."' But — 1 Hipp V. S. f> Blackf..l49, .33 Am. D. and he cannot justify himself by showing 463 ; S. V. Dawson, 2 Bay, 360 ; Barnes that his act was a mere carelessness. He V S. 19 Conn. 398. And see Ewing v. must prove that he was careful, and the Thompson, 13 Mo. 132; Caldwell i: Sacra, degree of his carefulness will be the test Litt. Sel Cas. 11 8, 1 2 Am. D. 285. of his exemption. 2 Barnes o S. supra. 'Rex i: Almon, 5 Bur. 2686. ' Mogler V. S. 47 Ark. 109. ' * 2 Stark. Slander, 2d ed. .34; 2 Hawk. * " I dare say they never read a thou- P. C. 7th ed. 73, § 10 ; Rex v. Walter, .3 sandth part of what they publish. Are Esp. 21 ; Rex t'. Gutch, Moody & M. 433, they, therefore, to justify their publica- 437 ; Attorney-General v. Siddon, 1 Cromp. tioiis, be they what they will, because & J. 220, 1 Tyrw. 41 ; Attorney-General they publish thev know not what ? " Lord v. Riddle, 2 Cromp. & J. 493 ; s. c. nom Mansfield in Rex v. Williams, Lofft, 759, Attorney-General r. Riddell, 2 Tyrw 523, 762. Plainly, in this sort of transaction, ' Barnes f. S. 18 Conn. 398, carefulness is reuuired of the publisher, 121 § 222 ELEMENTS OP CRIME. [BOOK III. § 220. Further of the Distinctions. — Obviously these distinc- tions lie on the border line between cases wherein thcprincipal's carelessness in selecting the agent will create liability, and those wherein it is too small for the law's notice. In •.determin- ing whether it is too small or not, we are to look at the particu- lar sort of offence to which it relates, the specific act with which it is connected, and the policy of the law regarding the offence, as shown in previous adjudications. So that in libel, for special illustration, where the publisher knows the danger of having improper matter thrust upon him, he is required to exercise a high vigilance, not essential in some of the other relations. Beyond which, — § 221. Further as to Libel. — The circumstances attending the publication of libels vary. But generally there are numbers of participants in the act, while only a part of them know the contents of the thing published. Doubtless, as the publication is prima facie a crime, all who do any part of the act of publish- ing &XQ prima facie criminal. Still, it is wisely laid down that cases may exist- in which a proprietor of a newspaper will not be answerable criminally for what appears in his paper, ^ while yet the authorities go to the extreme point that the proprietor is generally answerable, though the paper is conducted by his servants, and he has no knowledge of the matter put into it, which on its coming to his notice he disapproves.^ Nuisance, — to be considered further on,^ perhaps occupies special ground ; for the right which in prosecuting it the State seeks to establish is quasi civil ; and in later pages we shall see * that in some criminal things what is complained of is a sort of public tort rather than a pure crime. § 222. The Illustrations of this Sub-title — are not meant to be exhaustive. But they, equally with those of the next sub- title, establish the general doctrine of the chapter; and the particular lines of doctrine will appear in the subsequent eluci- dations of the topics. 1 Rex V. Gutch, Moody & M. 433 ; 3 tendency until .afterwards, that argument Greenl. Ev. § 178. I4 Kex i,-. Holt, 5 might have been pressed npou the jury." T. R. 436, 444, Kenyon, C. J. observed: 2. Rex i). Williams, Lof£t, 759; Anon- " If the defendant could have shown that ymons, Lofft, 544, 780 ; Rex n. Gutch, he published the paper in question with- Moody & M. 433, 437 ; Rex v. Walter, out knowing its contents, as that he could 3 Esp. 21, not read, and was not informed of its ' Post, § 316. ♦ Post, § 1074-1076. 122 CHAP. Xni.] MAGNITUDE OF CRIMINAL THING. § 225 III. J.8 to the Act. § 223. Two Consequences — (General — Particular). — Paley observes that an act is followed by two classes of consequences, — particular and general. " The particular bad consequence of an action, " he adds, " is the mischief which that single action directly and immediately occasions. The general bad conse- quence is the violation of some necessary or useful general rule. " 1 Now, the criminal law looks more to general conse- quences than to particular. Whence grow some distinctions in the doctrine that a thing to be indictable must not be trivial and small. Thus, — § 224. 1. In Larceny, — it as essentially violates a rule neces- sary to the good order of society to steal a thing of small value as of great, though the crime is not deemed so heavy. There- fore an indictment for this offence may be maintained if the thing is of some worth, though less than the smallest coin or denomination of money known to the law. ^ Again, — 2. In Arson — and other like criminal burnings, if any of the fibres of the wood are wasted by fire, it is immaterial how small is the quantity consumed. ^ Therefore — 3. Limit of Doctrine. — To these cases of small general ill- consequences the doctrine of this chapter appears not to be appli- cable, at least to its full extent ; for an ill consequence which is general is not ordinarily in the eye of the law small.* But — § 225. Both General and Particular. — Where, taking into vie-W both the general and special ill consequences of an act, the evil in each aspect appears small, it will not be adjudged a crime in law though it is such as an enlightened conscience would notice and avoid, and the divine displeasure is presumed to follow. How intense the evil must be is one of the principal questions lying before us in these commentaries ; and it could only be fully answered on an examination of all supposable circumstances of wrong-doing, in the light of the adjudications. And — 1 Paley Moral Phil. b. 2, c. 6. Vyse, 1 Moody, 218 ; Wilson v. S. 1 Port. 2 Reg. V. Morris, 9 Car. &P. 349; Reg. 118. And see Bishop First Book, § 177- i'. Perry, 1 Car. & K. 725, 1 Den. C. C. 69 ; 181. Rex V. Bingley, 5 Car. & P. 602 ; P. v. » S. v. Mitchell, 5 Ire. 350 ; Stat. Wiley, 3 Hill, N. Y. 194. See also S. w. Crimes, § 310. Slack, 1 Bailey, 330 ; Payne v. P. 6 Johns. < And see Seneca Road v. Auburn and 103 : P. V. Loomis, 4 Denio, 380; Rex v. Rochester Rid. 5 Hill, N. Y. 170. 123 § 227 ELEMENTS OF CRIME. ' [BOOK III. Statutes creating New Offences. — Frequently, in the progress of society, tiie legislative body, deeming the courts to have gone not far enough, or deeming a wider judicial cognizance over par- ticular wrongs to be required by changes in the public situation or wants, creates by statute what is called a new offence. And in another volume we have seen that this new offence is to be treated as a mere added part of the general system of laws into which it is introduced, to be shaped into uniform proportions with the rest. ' § 226. Participation more remote as Crime heavier. — It is more fully shown in subsequent pages than here, that when the law has defined an offence, an act to be indictable within it must be greater or less in magnitude, or nearer or less near to the principal transaction, as the offence is of greater or less enor- mity. Thus, — Treason and Low Misdeineanor compared. — Treason, for ex- ample, is the highest crime known to the law; and when it is committed by a lev'ying of war, those who perform very minute acts and remote from the scene of operations are guilty of the full offence.^ And one who takes not even a remote part in a treason, but knowing that it has been committed by another does not disclose it, becomes by this omission of duty guilty of an inferior crime, called misprision of treason.^ Yet, descend- ing to a low form of misdemeanor, he who does some remote thing or encourages another toward its commission, or even stands by while another whom he urges on does it, is not punish- able.' These are extreme points, between which there are various shades and degrees. So likewise, to present a somewhat different illustration, — § 227. Nuisance in Small Degree. — Where the owners of the soil adjoining a harbor were indicted for a nuisance in erecting planks in it, and the jury found specially that "by the defend- ant's works the harbor is in some extreme pases rendered less secure," the court adjudged that no offence was established; for 1 Stat. Crimes, §4, !>, 86-90, 123, 124. * C. w. Willard, 22 Pick. 476; O'Blennis " ExparteBollniau,4CraDch,75. And t. S. 12 Misso. .31 1. And see S. u. Brady, see Eden Penal Law,'3d ed. 117, 118; Vol. 9 Humph. 74; Rex,v. Soleguard, Andr. II. § 1232. 231, 235 ; S v. demons, .•) Dev. 472 ; S. v. 8 I East P. C. 139, 140; Eden Penal Goode, I Hawks, 463; Anonymous, Marcli, Law, 3d ed. 202 ; post, § 717, 722. 83, pi. 136; post, § 657-659, 688, 706. 124 CHAP. XIII.J MAGNITUDE OF CRIMINAL THING. § 228 "no person can be made criminally responsible for consequences so slight and uncertain and rare as are stated by this verdict to result from the works." ' And — In Felonious Homicide, — to reduce it to manslaughter, the pro- vocation to the blow which produces death must be sufificient in degree.'^ And in a Scotch case, a charge of culpable homicide was under direction of the court abandoned because of the small blame attributable to the defendant.^ Illustrations — like these might be multiplied indefinitely,^ but it is believed that these are sufficient for the present chapter. § 228. The Doctrine of this Chapter restated. Since the tribunals neither take cognizance of all moral wrong nor punish every remote injury to the community, the evil of each combination of act and intent must be measured in two ways to determine whether it is punishable or not. The one is by its nature, and the other is by its magnitude. And that the magnitude of the thing as well as its nature must be considered results from the plainest principles of reason and justice. For, if not, then would the courts undertake to exercise in one direc- tion the full supervision of the Deity over men, contrary to what is either practical or beneficial. ' Rex «. Tindall, 1 Nev. & P. 719, 6 ' 1 East P. C. 234; Rex v Lynch, 5 A. & E. 143. To the like effect, see P. v. Car & P. 324. And see ante, § 216, 217, Horton, 64 N. Y. 610; Phillips u S. 6 Bax. » Matheson's Case, I Swinton, 593. 151^ 153, * See Reg. «. Phillpot, 20 Eng. L. & Eq. 591 125 § 231 ELEMENTS OP CRIME. [BOOK III. CHAPTER XIV. HOW FAR THE WRONG MUST BE PUBLIC. § 229. Introduction. 230-234. In General of Subject. 235-249. Indictable Public Wrongs. 250-254. Indictable Private Wrongs. § 229. How Chapter divided — We shall consider, I. In General of the Subject; II. Indictable Public Wrongs; III. Indictable Private Wrongs. I. In General of the Subject. § 230. Public suffer — In criminal prosecutions, the public, under the name of King, Queen, State, Commonwealth, People,, or the like, is the party complaining.^ Consequently for the individual to be guilty of crime the public must suffer. At the same time, — § 231. Private Persona — are under the protection of the laws. And in many circumstances an injury to any individual is such also to the public. Even always or more largely, a harm to any member of the body politic is a detriment to the body where- of he is a part; just as, when a man's hand is wounded, the man is wounded. The inference herefrom might be that every such act, though it thus falls directly on one person only, is of a nature to be indictable. But this view is, in its practical ap- plication, limited by the doctrine of the last chapter that the law does not take cognizance of small things. If an injury affects directly and primarily only a single person, though it may be great in magnitude as respects him, it is in general a small thing as to the public. Therefore, — Injury to One. — For an injury to one person alone, an indict- ment will not ordinarily lie.^ ■ Ante, § 32. = Post, § 243, 244 ; S. v. Schlottman, 52 Mo, 164. 126 CHAP. XIV.] HOW FAB THE WRONG PUBLIC. § 235 § 232. Minuter Statement of Doctrine — Such is the law of the subject viewed in a general way, but the rule thus appearing has so many exceptions as to become almost valueless for practi- cal guidance. A practically more helpful form of the doctrine is that for a thing to be indictable, either it must be in its nature injurious to the public at large in distinction from individuals, or it must be a wrong to individuals of a nature which the pub- lic takes notice of as harmful to itself.^ The books are full of expressions going further, to the effect that in all cases the act must be a public wrong in distinction from a private. But clearly such expressions proceed from misapprehension; be- cause, to illustrate the true view, — § 238. Larceny — Other Private Crimes. — Nothing can be more purely a tort to the individual alone than a simple larceny, where there is no breach of the peace; no public loss of property, since it only changes hands; no open immorality, corrupting the minds of the young; no person in any way affected but the one who takes and the other who loses the thing stolen. And as in larceny so in many other crimes: a public offence is com- mitted while only an individual directly suffers. Hence, — § 234. Rule for Wrongs to Individuals. — The just and practi- cally correct rule is that whenever the public deems an act of private wrong to be of a nature requiring its intervention for the protection of the individual, it holds the act punishable at its own suit; in other words, makes it a crime. What acts are deemed of this sort, and what are not, can be learned only by consulting the unwritten and statutory law in detail. The minuter developments of this doctrine will be for the third sub- title, after we shall have considered — II. Indictable .Public Wrongs. §235. 1. Private Injuries from Public Wrongs. — As the pub- lic suffers with its individual members,^ so does each individual with the public. Therefore every injury to the public is such also to each individual. ^ Yet, — 2. Private Action. — When the suffering of one member of the community is no more than that of every other, it is small ; and, small or great, if the injury is universal, affecting no one spe- 1 See ante, § 32, 210 '' See 4 Bl. Com. .".. 2 Ante, §231. 127 § 237 , KLEMENTS OF CRIME. [BOOK III. ciall}', the law would be unreasonable to allow each to bring his separate suit where all could alike complain, and overwhelm the transgressor with litigation. ^ Therefore the rule of the law is that in such circumstances no one can have his private action.^ But — 3. Indictment. — If there were no public remedy, the wrong would go unredressed. When, consequently, a thing is done to the injury of the whole community, and sufficient in magnitude for the tribunals to notice,^ it is cognizable criminally. It need not be more intensely evil than torts for which, being harmful merely to the individual, only a civil remedy is pro- vided.* Thus, — § 236. Public Nuisance, Private — Community, or One. — If a man goes on his neighbor's land and deadens a tree, he exposes himself to a civil suit; if, on public land, to a criminal." Or, if a nuisance affects the public, it is indictable ; if only individ- uals, actionable.^ But it would be difficult to show the act to be more evil in nature or degree in the latter cases than in the former ones. § 237. 1. What a statute prohibits, indictable or not. — It is obvious that to prohibit a thing by a statute is to bring it within the jurisdiction of the tribunals. Whence we see, carrying in our minds what is stated in the last section, how and why, as explained in another volume, when a statute forbids a thing affecting the public, but is silent as to any penalty, the doing of it is indictable at the common law.'' If it were a special injury ' 4 Bl. Com. 167. eases there cited, Rex o. Jones, 7 Mod. 2 Broom Leg. Max. 2d ed. 157. 410, 2 Stra. U46 ; Rex u. Vaughan, Skin. 8 Ante § 212 et seq. 1 1 ; Rex i-. Gregory, 2 Nev. & M. 478, 5 * See Rex v. Gaul, Holt, .363; Crou-' B. & Ad. .'i.'iS ; Rex i. Smith, 2 Doug, ther's Case, Cro. Eliz. 654 ; Anonymous, 441 ; W.'s Case, Lofft, 44 ; Rex f. Com- Lofft, 185 ; Pennsylvania v. Gillespie, Ad- mings, 5 Mod. 179 ; Rex v. Hemmings, .3 dison, 267; Rex i-. Lesingham, T. Raym. Sail?. 187; Crofton's Case, 1 Vent. 63, 1 205 ; Anonymous, Comb. 46 ; Rex ;;. Ford, Mod. 34 ; Reg. i:. Nott, 4 Q. B. 768, Dav. 2 Stra. 1 130; C. v. Webb, 6 Rand. 726. & M. 1 j Griffith v. Wells, 3 Denio, 226 ; 6 C. V. Eckert, 2 Browne, Va. 249. Colburn v. Swett, 1 Met. 232 ; S i'. Tliomp- 6 Rex v. Trafford, 1 B. & Ad. 874, son, 2 Strob. 12, 47 Am. D. 588; Rex v. where Tenterden, C. J., said : " We think Howard, 7 Mod, .307 ; C. v. Shattnck, 4 there can be no doubt that if the wrong Cush. 141, 146 ; Tate c. S. 5 Blackf. 73 ; [a nuisance] would have enahled an indi- P. v. Norton,? Barb. 477 ; Rex i'. Rogers, vidua] owner of land to maintain an 2 Keny. 373; S. v. Lenoir .Justices, 4 action for it, it is properly the subject of Hawks, 194 ; S. v. Williams, 12 Ire. 172; an indictment like the present for a public Pennsylvania v. Gillespie, Addison, 267 ; nuisance " p 886 Rex v. Sparkes, 2 Show. 447 ; Smith v. ' Stat. Crimes, § 133 ; and, besides the Langham, Skin. 60, 61 ; Rex v. Wright, 1 128 CHAP. XIV.] HOW PAR THE WRONG PUBLIC. §239 to an individual, he would have his common-law action ;i and an indictment would not lie unless it were also injurious to the public. 2 And for the same reason, — 2. Attempt to violate Statute. — When an act is by legislation made criminal, an unsuccessful attempt to do it, carried far enough to attract the law's notice, is an indictable misdemeanor, not under the statute, but at the common law.^ And, — § 238. Further of Prohibition without Penalty. — Not always will a statutory prohibition sustain a common-law indictment, though the forbidden thing is public, if there is in the same statute a disconnected penalty, — a question examined in another volume.* And the thing to be indictable must be of a sort which the common law makes such ; if it is not, the remedy will be either a civil suit by the party aggrieved, or some special proceeding indicated by the particular case. In considering these statutes, therefore, the mind must sometimes traverse the entire field of our jurisprudence. This is one among number- less illustrations of the truth that no one can understand well a given title in the law without some knowledge of the entire law. § 239. Breach of Common-law Duty indictable. — The principles Bur. 543, 545 ; Waterford and Whitehall Turnpike v. V. 9 Bavb. 161 ; Keller v. S. 11 Md. 525, 69 Am. D. 226; Phillips i;. S. 19 Tex. 158. Contta, S. v. Ashley, Dudley, Ga. 188. And see S. v. McEntyre, 3 Ire. 171. I Beckford v. Hood, 7 T. R. 620 ; Bar- den 0. Crocker, 10 Pick. 383 ; Colburn v. Swett, 1 Met. 232 ; Jenner v. Joliffe, 9 Johns. 381 ; Broom Leg. Max. 2d ed. 64 ; Ferguson v. KinnouU, 9 CI. & F- 251. I am not here seeking the limits of this doc- trine. Postmasters and Other Public Officers — differ in respect of it from private individuals. See, as to postmas- ters, Bishop Non-Con. Law, § 1195-1202. Thus, it was held in New York that a newspaper publisher can maintain no action against a postmaster for refusing to advertise letters in his paper by reason of its larger circulation, as directed by act of Congress, — the statute having been intended only for the public good, not pri- vate. Johnson, J. observed: "To give a right of action for such a cause, the plain- tiff must show that the defendant owed the duty to him personally. Wherever an action is brought for a breach of duty VOL. I. — 9 imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was created or imposed for the benefit of another, and the ad- vantage to be derived to the party prose- cuting, by its performance, is merely incidental and no part of the design of the statute, no such right is created as forms the subject of an action. In this I apprehend all the authorities will be found to agree. Martin v. Brooklyn, 1 Hill, N. Y. 545 ; Bank of Rome v. Mott, 17 Wend. 554; 19 Vin. Abr. 518, 520; Ashby V. White, 6 Mod. 45, 51, 1 Salk. 19. In the latter case. Holt, C. J., laid down the rule that it must be shown that the party had a ri'ght vested in him, in order to maintain the action. And this, I ap- prehend, is the true rule." Strong v. Campbell, 11 Barb. 135, 138. 2 Rex V. Legiuham, 1 Mod. 71. And see Crumpton v. Newman, 12 Ala. 199, 46 Am. D. 251 ; Rex !■. Watson, 2 T. R. 199. 3 Stat, Crimes, § 138. « Stat. Crimes, § 249-253. 129 § 240 ELEMENTS OP CRIME. [BOOK III. which govern these statutes pervade the common law as well. For the doctrine is general, that whenever the law, statutory or common, casts on one a duty ^ of a public nature, any neglect of it, or act done in violation of it, is indictable. ^ Still, — LimitB. — As said many times in these pages,^ there are duties, clear and well defined in morals, of magnitudes so small or otherwise of such natures as not to be taken into account in the law. Such duties are not included in our rule. We must be guided as to them, as in other things, by the landmarks derivable from the adjudications. * Further to illustrate, — § 240. 1. Breach of Magistrates' Oraer. — Passing from the limitations of the rule, the English books supply illustrations of the rule itself in cases where magistrates, in sessions or other- wise, make an order of a nature affecting the public, — as, to support poor persons,^ or a woman and her bastard child, ^ or to pay the costs of an appeal to the poor's rate,^ or to admit an in- dividual to membership in a friendly or benefit society,^ and other like orders ^ within the jurisdiction of the magistrates, — the doctrine being that disobedience to the order is indictable at the common law. In principle, it must be so also in our country.^" But most of these orders are in our practice unknown, or they are founded on a statute which itself provides a remedy, or practically it is more convenient to proceed by the equally available process for contempt. Again, — 2. Order of Quarantine. — In England, disobedience to a law- ful quarantine order from the privy council is indictable," So— « 1 That the duty must be a legal one, ' Rex v. Boys, Say. 143. see Reg. v. Vann, 8 Eng. L. & Eq. 596, 2 » Rex v. Gilkes, 3 Car. & P. 52 ; Rex Den. C. C. 325, 5 Cox C. C. 379 ; S. v. v. Wade, 1 B. & Ad. 861 ; Rex -• Byce, Bailey, 1 Eost. N. H. 185 ; Rex v. Everett, Bott, P. L. 324. 8 B. &C. 114. And compare with Bishop ° Rex v. Gash, 1 Stark. 441 ; Rex v. Non-Con. Law, § 26, 143. Mytton, Cald. 536, 1 Bott P. L. 439, note, " See P. t). Norton, 7 Barb. 477 : post, 4 Doug. 333 ; Rex v. Robinson, 2 Bur. § 313 et seq. 799, 2 Keny. 513 ; Rex v. Boyall, 2 Bur. 3 See ante, § 212 et seq. 832, 2 Keny. 549 ; Reg. o. Wood Ditton, * And see the observations of Dade, J., 18 Law J. n. s. M. C. 218; Rex v. Wiggot, in Anderson v. C. 5 Rand. 627, 631, 16 Comb. 205; Reg. v. Crossley, 2 'Per. & D. Am. D. 776. 319, 10 A. & E. 132, 3 Jur. 675. 6 Rex V. Turner, 5 Mod. 329. lO And see, under this title, " Contempt Rex I. Moorhouse, Cald. 554, 4 of Court," Vol. II. § 264-266. Doug. 388 ; Reg. c. Brisby, 3 New Sess. " Rex v. Harris, 2 Leach, 549, 4 T. R. Cas. 591, Temp. & M. 109, 1 Den. C. C. 202. 416, 13 Jur. 520. 130 CHAP. XIV.] HOW PAR THE WRONG PUBLIC. § 242 3. Officer's Disobedience. — An officer^ commits a criminal misdemeanor by refusing to serve ^ or return ^ a magistrate's warrant in a criminal case ; or, having served it, by disobeying the magistrate's mandate to take the arrested person to prison during an adjournment of the examination, and it is no defence to have him otherwise in custody and produce him at the ad- journed hearing.'* In most of our States, this sort of ill conduct is cognizable by the magistrate as contempt;^ and practically such summary proceeding is usually resorted to, but undoubtedly an indictment is equally maintainable where common-law offences are" known. Moreover, — § 241. Neglect to repair Way. — As will be explained in the second volume, whenever the law casts upon an individual or corporation the duty to repair a public way, a neglect of it is con- sequently indictable.® These illustrations are not exhaustive, but the rest will better appear in connection with their particu- lar topics throughout these volumes. § 242. Doctrine Epitomized. — The foregoing views may be condensed, thus: The law has its bounds of duty drawn for practical ends, and it seeks to keep people within them, not to compel a compliance with the entire rule of ethics. Whenever one steps over these bounds, it pursues him in the way appropri- ate for the- case. If the thing affects the public directly, in distinction from a mere wrong to an individual, an indictment is the method.' 1 See S. V. Berkshire, 2 Ind. 207. the judge according to its demerit, as a 2 Rex V. Mills, 2 Show. 181. transgression ot law and a contempt of « Reg. V. Wyat, 1 Salk. 380; s. c. nom. authority, otherwise all such prohibitory Reg. V. Wyatt, 2 Ld. Raym. 1189. statutes might be transgressed with im- 1 Reg. V. Johnson, 11 Mod. 62. punity. Lawyers, however, are generally s Vol. II. § 244 263. of opinion that the transgression in that 6 Vol. II. § 1281. case, though it ought not to escape all cen- 7 How in the Scotch Law. — Erskine, sure, is not punishable as a proper crime a standard Scotch authority, writes: "Acts, unless the act be in itself criminal, i. e though not of their own nature immoral, contrary to the law of nature, though if they had been done in breach of an ex- there had been no such prohibition. If press law to which no penalty was an- the law forbid any act to be done or nexed, and which by the Roman law got deed to be granted under any special the name of crimina extraordinaria, hav- penalty of a civil kind, the transgression ing been by them deemed criminal, were of it cannot be tried criminally, though punished as proper crimes ; and indeed it the act done in breach ot the prohibition seems to be a rule founded in the nature should be in its nature criminal ; because of laws that every act forbidden by law, the law, by annexing a special c.vil pen- though the prohibition should not be alty to the transgression of it, appears guarded by a sanction, is punishable by to have excluded all other punishment. § 244 ELEMENTS OP CRIME. [BOOK III. § 243. How many must an Act injure to he deemed harmful to the Public : — 1. Defined. — For an act to be publicly harmful, it need not in fact injure every member of the commupity. But it must be of a nature to produce injury to all ; and, when carried fully out, must in fact injure all who are in the particular locality or other wise within the influence of the act. Thus, — 2. In Nuisance, — the indictment must allege that the thing done was to the common nuisance of all the citizens in the place, not merely of divers citizens. ^ Yet — § 244. 1. Remote or Populous — " Three Houses." — Many things are indictable nuisances when done in populous places, being therefore actually detrimental to many, while innocent in a retired locality to whidh at the same t*ime many might if they chose resort. 2 And if what is done affects only a small number of persons, — in one case, it was said, the inhabitants of three houses,^ — it is not indictable.* So — 2. In Exposure of Person, — the indecent exhibition t0 one only, though in a place in some sense public, yet not within public view, is not an indictable nuisance. But it is otherwise of the like exposure to several, or even to one in a public place Erskine Inst. 4, 4, 4. Plainly the " cen- pecuniary mulct, is a crime ; and thus sure," which according to the Scotch the poinding oxen in time of laboring lawyers as explained in this paragraph, was declared a crime in the former deci- should be visited upon the violator in sion, because though it was prohibited cases not amounting to " proper crime," by an express statute, which did bear no cannot, according to the rnles of our punishment, yet it ought to have been common-law practice, be visited other- punished according to the civil law wise than by proceeding against the whereby it is declared to be a crime." wrong-doer as for a criminal misde- Mackenzie Crim. Law, 1, 1, 3. meanor. And 1 do not understand that i C. v. Smith, 6 Cush 80 ; C. ». Faris, the Scotch " censure " is less than what 5 Rand. 691 ; Rex v. Medley, 6 Car. & P. we should call a punishment, to be in- 292; Reg.w. Webb, 1 Den. C. C. 338, 2 fllcted pursuant to the sentence of the Car. & K. 933, Temp. & M. 23, 13 Jur. 42. judge. Agreeing substantially with Ers- And see Crim. Pro. II. § 862-864. kine, that older but highly esteemed 2 ggg Ellis i-. S. 7 Blackf. 534 ; Rex v. Scotch writer Mackenzie says : " Law- Pierce, 2 Show. 327 ; Rex ». Cross, 2 Car. yers assert that such as disobey and & P 483 ; Rex v. Watts, Moody & M. 281 ; transgress any prohibiting law may be Reg. v. Wigg, 2 Salk. 460, 2 Ld. Raym. punished arbitrarily as contemners of 1163 ; Beatty «. Gilmore, 16 Pa. 463, 469, the law, suitably to the degree of their 55Am D. 514; Ray «. Lynea, 10 Ala. 63 ; contempt, though they cannot be pun- Rex v. Carlile, 6 Car. & P. 636 ; Rex v. ished criminally as guilty of a crime. Neville, Peake, 91. The transgressing any municipal law, s Rex v. Lloyd, 4 Esp. 200. which prohibits that which either the ' Rex v. Hornsey, 1 Rol. 406; Moses law of God or the civil law punishes v. S. 58 Ind. 185, Phillips i;. S. 7 Bax. criminally by corporal punishment or a 151. 132 CHAP. XIV.] HOW FAR THE WRONG PUBLIC. § 246 where many could have seen it had they looked. ^ Such, at least, is a distinction sometimes made on a question not well settled in the authorities, which are perhaps not uniform. ^ Again, — 3. Way. — In the nuisance of obstructing a public way, actual damage to any particular individual need not be shown, it being sufficient that the obstruction is calculated to injure all who may choose to travel the way.* But — § 245. 1. Right in AH. — In the last-mentioned class of nui- sances, the way, for instance, must be' one over which all the in- habitants of the country are privileged to travel.* 2. Less than All. — If the way belongs merely to a town, whose inhabitants only are entitled to use it,^ or, a fortiori, if it is simply the private way of an individual,^ an obstruction of it will not be indictable.^ Yet — 3. As to who repair. — It is immaterial whether the way is a town or county one, or is an individual's or corporation's turn- pike road, or otherwise, in respect of the person obligated to keep it in repair; provided all the people have a right to its use on conforming to the terms prescribed by law.^ § 246. 1. Refusing Local Office. — A' refusal to accept office of a public nature being indictable,^ in reason it need not be one giving its possessor sway over the whole country ; just as a pub- 1 Reg. V. Webb, T Den. C. C. 338, ject of an indictment. That the road in Temp. & M. 23, 13 Jur. 42, 2 Car. & K. question, being described to be a private 933, and the cases there cited ; Fowler v. road, did not concern the public, nor was S. 5 Day, 81, 84 ; C. v. Catlin, 1 Mass. 8 ; of a public nature, but merely concerned Reg V Holmes, 20 Kng L. & Eq. 397; the individuals who had a right to use it. Reg. V. Orchard, 20 Eng. L. & Eq. 598, 3 That the question was not varied by the Cox C. C. 248 ; Reg. v. Watson, 20 Eng. circumstance that many individuals were L. & Eq. 599, 2 Cox C. C. 376. See, how- liable to repair, or that many others were ever, S. v. Millard, 18 Vt. 574, 46 Am. D. entitled to the benefit of it; that each 170. party injured might bring his action 2 Post, § 1125 etseq. against those on whom the duty was 8 See Vol. II. § 1272-1277. thrown." p. 637. « And see, as illustrative, P. U.Jackson, « g. «. Randall, 1 Strob. 110,47 Am. D. 7 Mich. 432 ; S. v. Rye, 35 N. H. 368. 548. _ 6 C. V. Low, 3 Pick. 408 ; S. v. Strong, ' And see Reg. o. SamtifE, Holt, 129 ; 25 Me. 297. 'Way for Nine Parishes. — C. w. Webb, 6 Rand. 726. It is decided in Rex v. Richards, 8 T. R. « C. v. Gowen, 7 Mass. 378; C. v. Wil- 634, that if commissioners under an en- klnson, 16 Pick. 175, 26 Am. D. 654 ; S. v. closure act set out a private road for the Sturdivant, 18 Me. 66 ; S. u. Atkinson^ 24 nse of the inhabitants of nine parishes, Vt. 448; S. . Plympton, 2 Ld. Raym. 1377, mings, 3 Salk. 187 ; Rex v. Corry, 5 East, 1379; Vol. II. § 88, note. 372, C. ivSilsbee, 9Mass. 417; S. c. Hoit, ' Ante, § 235. H Fost. N. H. 355, there being, however, in « Ante, § 221, 226, 235. New Hampshire, a statute. But see S. i'. " Cases like the following, for exam- McEntyre, 3 Ire. 171 ; S. w. Liston, 9 pie, can hardly be upheld unless we rec- Humph. 603 Iiibel. — In an old case, ognize the doctrine of the text : Reg. '•. it was doubted whether the words "The Lawson, 1 Q. B. 486, 1 Gale & D. 15, 5 mayor and aldermen of Hertford are a Jur. 387 ; Ex parte , 4 A. & E. 576, pack of as great villains as any that rob note; Rex d. Dodd, 9 East, 516 ; Rex v. on the highway," — were indictable; for Harries, 13 East, 270; Rex i. Bishop, 5 " what is it to the government that the B. & Aid. 612 ; Ex parte Lee, 7 Jur. 441 ; 134 CHAP. XIV.j HOW PAR THE WRONG PUBLIC. § 250 looked upon in the law as a virtue to forbear prosecuting the lowest ; but he who knows that the highest has been committed is even indictable if he does not lay the facts before the authori- ties to procure a prosecution. 1 Yet the lowest are fully within other principles of the criminal law; as, like the highest, they must be committed with a criminal intent, the reasons for re- quiring such intent being applicable alike to all grades of public wrong-doing. The very steep distinction here is between crimes and civil torts. The suit for the latter being to recover com- pensation for a legal injury, there is no uniform rule requiring the injury to have proceeded from malevolence.^ § 248. Another Form of the Doctrine — is that in Consequence of the complications of human affairs, any exact division of wrongful acts into civil and criminal is impossible; while yet there is a complete gradation in wrongs, beginning with those most purely against the individual, and extending all the way to those which are most purely against the State. But every judicial proceeding must wear either the civil or the criminal form. Yet the form does not change the essence of the thing proceeded against. § 249. In Conclusion — of this sub-title, we should bear in mind that the offences which in it we have been considering are the class detrimental to the entire community. The reader's attention is now invited to — III. Indictable Private Wrongs. § 250. Good from Evil. — In all ages and countries, the path of human improvement is macadamized with bones and wet with blood. The strong tread down and trample out the feeble, and by ending them diminish the average weakness of the race ; while the conflict which goes on among those who survive, strengthens their bodies and minds, and the acquired vigor passes to succeeding generations. When one party, tribe, or nation has so prevailed as to preclude further contest, a decay Rex V. Smith, 7 T. R. 80; Rex v. Mar- Reg. )•. Sannders, 10 Q. B. 484 ; Rex v. shall, 13 East, 322 ; Rex i: Fielding, 2 Murray, 1 Jur. 37 ; Reg. t. Hext, 4 Jur. Bur. 654, 2 Keny. 386 ; Rex v. Phillips, 339. Cas. temp. Hardw. 241 ; Reg. f. Harris, ^ Ante, § 226 ; post. § 604, 716-722. 8 Jur. 516, Ex parte Beauclerk, 7 Jur. = See ante, § 210, 218-221 ; post, § 287, 373: Anonj'mous, Lofft, 272; Reg. v. 288,301,306,330. Jollie, ; Nev & M. 483, 4 B. & Ad. 867 , 135 § 252 ELEMENTS OP CRIME. , [BOOK III. commences, progressing until they who were strong become weak and are themselves overthrown. True, indeed, Christian- ity has opened a way bloodless and bright, by which our race could perfect itself if it would, but " few there be that find it. " i This view does not justify men in preying on one another; yet it shows how, in fact, good comes from the antagonisms of evil. We have the idea from One who' voiced the Higher Wisdom, thus : " It must needs be that offences come ; but woe unto that man by whom the offence cometh. " ^ § 251. Fundamental in Law. — This doctrine, that permitted evil brings forth good, is one of the forces which have given shape to our law. While the individuals are contending with one another, they are ordinarily adding to the general sum of power, and the community is not injured in a way justifying a criminal prosecution ; or, should this be otherwise, the evil in- flicted on the community is too small for the law's notice, as already explained. ^ The law, therefore, allows a civil suit for the redress of the private wrong; not in vindication of pub- lic justice, but as an instrument in the hands of the party to obtain what is his due. Still, — ^ § 252. Limit of Doctrine. — In the conflicts of men there is a point beyond which, if carried there, they injure the commu- nity in a way requiring a criminal prosecution for what is done. When two or more, engaged in any of the contests of life, occupy toward one another fair ground, they do not interfere with any public interest, however far they prqceed; because, though one should press unduly on another, only good comes to the public therefrom. But when they cease to maintain this fair relation toward one another, the contest ceases to be strengthening, and becomes one of destruction. Therefore, — Unfair Advantage indictable. — If two or more are engaged in any of the contests of life, and one of them assumes toward another or the rest what the law deems to be unfair ground, the community interferes and punishes the wrong by a criminal prosecution. What in a just estimate is unfair ground may be a question of difficulty. We are simply to inquire how the law regards it. The old common law, originating in an age of unpol- ished minds, iron sinews, and semi-barbarous manners, demanded less to fairness than is required by the superior culture and finer 1 Matt. vii. 14. 2 Matt, xviii. 7, 3 Ante, § 212 et seq. 136 CHAP. XIV.J HOW FAE THE WRONG PUBLIC. § 254 moral sentiment of modern times. And the demand increases as we progress in civilization. So that the common law itself has expanded by slow and scarcely observed gradations ; and a more rapid expansion is carried on by legislation, which both adds to the number of crimes, and enlarges the boundaries of the old ones. Thence it has resulted that crimes against the individ- ual, now being considered, have been more multiplied by statutes than those against the community ; and, although with the en- largements they do not embrace so many distinct offences, they give odcasion for more criminal prosecutions, and encumber the reports with more decisions. § 253. Of the Entire Doctrine — of this sub-title, and largely of the chapter, it should be observed that the subject is here treated of in a considerable degree differently from what it is in the works of preceding authors, and generally in the opinions of the judges. In legal substance, there is no difference ; for this chapter states the law as actually adjudged. But most tell us, in words, that nothing is punishable except what is to the injury of the public ; yet their explanations show the same things to be punishable which are found to be so when tested by the stan- dards of this chapter. It is embarrassing to a learner in any science to see a doctrine laid down in terms, then followed by an explanation contradicting the doctrine. ^ And it has been a lead- ing object with the author, in all his legal works, to avoid as much as possible this sort of clashing and contradiction. § 254. The Further Ulustrationa — of this subject are postponed to the proper places in our expositions of the several offences. To give more here, especially to introduce full statements into the present sub-title, would occupy many pages with little com- pensatory advantage. 1 And see Bishop First Book, § 353-356. 137 256 ELEMENTS OF CBIME. [bOOS III. CHAPTER XV. THE INJUEED PERSON IN THE WEONG OB CONSENTING. § 255. Introduction. 256, 257. Wrong in Injured Person. 258- 263. His Consent. § 255. The Purpose — of this chapter is to inquire whether, when, and how far the wrong or consent of the person apparently injured by a crime will excuse the doer. How Chapter divided. — We shall consider, I. Wrong in the Injured Person ; II. His Consent. I. Wrong in the Injured Person. § 256. 1. Civil and Criminal compared. — In civil jurispru- dence, a plaintiff can prevail only if he did not participate in the wrong whereof he complains.^ This principle finds little scope iu the criminal law ; because in it the plaintiff is not an individual capable of evil doing, but the State that in legal con- templation can do no wrong. So that, for example, — 2. Contributory Negligence, — familiar in civil jurisprudence,^ is unknown in criminal. ^ But — 3. Favor asked — inforpiation. — Even in criminal cases, when a private person asks from the court a favor in respect of another's crime, the rule will be applied to him. Therefore he cannot ordinarily have a criminal information ^ against a person who has injured him, unless free himself from blame in the trans- action complained of, and prompt in the pursuit of his remedy, ^ 1 Post, § 267, 268 ; Bishop Non-Con. well, 1 Doug. 387 ; Eex v. Miles, 1 Doug. Law, § 54-64. 284 ; Eex v. JoUie, 1 Nev. & M. 483, 4 B. 2 Bisliop Non-Con. Law, § 458-470, and & Ad. 867 ; Rex v. Dummer, Holt, 364 ; other places. Eeg. o. Saunders, 10 Q. B. 484 ; Eex v. 8 Eeg. V. Hutchinson, 9 Cox C. C. 555, Eden, LofEt, 72 ; Eex v. Hankey, 1 Bur. 557 ; Vol. n. § 662o. 316 ; Eex v. Draper, 3 Smith, 390; Reg. * Crim. Pro. I. § 141. v. Harris, 8 Jur. 516 ; Eex v. Murray, 1 ' Anonymous, LofEt, 314 ; Eex v. Has- Jui. d7 ; Rex v. Symonds, Cas. temp. 138 CHAP. XV.] INJURED PERSON'S WRONG OR CONSENT. § 258 — a practice to some extent relaxed when the injury is of a more general and public nature. ^ Hence, — § 257. 1. Doctrine defined. — It is the ordinary doctrine of the criminal law that one who has broken it is no less punish- able though another participated in the breach, or though the person injured did a wrong also, or was negligent or careless regarding the same thing. ^ But this rule has its real or apparent limits ; as, — ■2. Self-defence. — Mayhem. — Since a man may defend himself by blows, if in such defence, wherein he < goes no further than the law allows, he maims the assailant, he is not guilty of mayhem. 3 And — 3. In False Pretences, — the New York court held that an indictment will not lie where the complainant parted with his money under circumstances which would have made the transac- tion criminal, in him had the pretences been true,* — a doctrine not everywhere accepted.* So — 4. In Larceny, — it is no defence that the person from whom the goods are stolen, himself stole them, or procured them by other wrong.® And — 5. Consent Unauthorized. — If one having no legal right to authorize a doing, consents thereto, it avails nothing to the doer.'' Thus we come to — II. The Consent of the Injured Person. § 258. Doctrine defined. — Contrary to the rule in civil juris- prudence, which gives to one no compensation for an injury from Hardw. 240; Eex v. Webster, 3 T. R. v. Longbottom, 3 Cox C. C. 439, 17 Lai* 388 ; Anonymous, Lofft, 272 ; Rex v. Reporter, 379, and note on p. 381 ; Reg. Larrieu, 7 A. & B. 277 ; Reg. v. Lawson, v. Swindall, 2 Car. & K. 230 ; Reg. v. 1 Q. B. 486, 1 Gale & D. 15, 5 Jur. 387 ; Williamson, 1 Cox C. C. 97 ; Reg. v. Hol- Ex parte Beauclerk, 7 Jur. 373 ; Rex v. land, 2 Moody & R. 351 j Rex v. Rew, J. Dennison, Lofft, 148 ; Rex v. Wright, 2 Kel. 26 ; Hutton's Case, 1 Swinton, 497. Chit. 162 ; Rex v. Marshall, 13 East, 322 ; » Hayden v. S. 4 Blackf. 646. Rex V. Smith, 7 T. R. 80 ; Rex v. Bicker- * P. v. Stetson, 4 Barb. 151 ; Vol. H. ton, 1 Stra. 498. And see Rex v. Burn, 7 § 468. See Rex v. Beacall, 1 Car. & P. A. & E. 190, 1 Jur. 657. 454. 1 Rex V. Williams, 1 D. & R. 197, 5 « Vol. II. § 468, 469. And see Reg. v. B. & Aid. 595 ; Rex v. Haswell, 1 Doug. Hudson, Bell C. C. 263, 8 Cox C. C. 305 ; 387 ; Reg. v. Gregory, I Per. & D. 110, 8 Reg. v. , 1 Cox C. C. 250. A. & E. 907. ° "^°1' n. § 781, 789; C. v. Smith, 129 2 Eex V. Beacall, 1 Car. & P. 310, 454 ; Mass. 104. Rex V. Wellings, 1 Car. & P. 454 ; Reg. ' Riley ». S. 16 Conn. 47. 139 § 260 ELEMENTS OF CRIME. [BOOK III. another's act to which he consented, ^ in the criminal law pri- vate persons cannot license crimes, and it is no excuse for a wrong-doer that he had anybody's permission. ^ To this there is an exception rather seeming than real ; namely, that there are certain acts which the law makes criminal when and because done without consent, the doing of which with consent, there- fore, is not legally reprehensible, however it sometimes may be morally. To illustrate, — § 259. 1. Homicide ^=— (Duel). — A man may not take away his own life; consequently another, who takes it at his request, incurs the same guilt as if not requested.* It is thus where death is inflicted in a duel.* So, — 2. Mayhem. — It being the gist of the crime in mayhem that the injured person is rendered less able in fighting, ^ one may not innocently maim himself; therefore if at his request another maims him, both are guilty. ^ Of a son\ewhat differ- ent nature is — 3. Rape. — If a man has carnal intercourse with a consenting woman not his wife, his offence is not rape ; because, although her consent is unlawful, and so does not justify his act, yet rape is constituted only by a connection to which the woman does not yield her will.' In this case and numerous others the crime is — § 260. 1. Incompatible with Consent. — It depends on a con- sideration of each particular offence whether or not it exists when the act is consented to. What one may do to himself another may inflict on him without being answerable to the criminal law. Thus, — 2. Larceny. — A man may give away his property, therefore another who takes it by his permission does not commit lar- ceny. ^ And — 3. Battery. — He may torture himself, at least to a limited 1 Bishop Non-Con. Law, § 49-53. 171 ; Rex v. Rice, 3 East, 581 ; Reg. v. 2 U. S. V. DistiUery, 8 Ben. 473 ; P. v. Young, 8 Car. & P. 644 ; ante, § 10. And McDonnell, 80 Cal. 285, 13 Am. St. 159 ; see McAfee v.S. 31 Ga. 411. S. V. Jansen, 22 Kan. 498 ; Reg. v. Coney, « Stat. Crimes, § 316 ; Vol. II. § 1001. 8 Q. B. D. 534, 547, 553. 6 Rex v. "Wright, 1 East P. C. 396, Co. « Rex V. Hughes, 5 Car. & P. 126. Lit. 127a; P. v. Clough, 17 Wend. 351, And see Reg. v. Alison, 8 Car. & P. 418 ; 352, 31 Am. D. 303. Rex u. Russell, 1 Moody, 356 ; Reg. v. ' Wright v. S. 4 Humph. 194 ; S. v. Fretwell, Leigh & C. 1 61, 9 Cox C. C. 1 52 j Murphy, 6 Ala. 765, 41 Am. D. 79 ; Vol. post, § 510. IL § 1115, 1122-1126. * Rex V. Taverner, 1 Rol. 360, 3 Bulst. ^ Dodge v. Brittain, Meigs, 84 ; Dodd 140 CHAP. XV.] INJURED PERSON'S AVEONG OR CONSENT. §261 degree, though we have seen^ that he must neither maim nor kill himself; consequently another who in good faith whips him at his request, 2 or with his consent does any other act which under ordinary circumstances would amount to an indictable battery, 3 commits no crime. But it is a crime for parties to this sort of mutual transaction to carry it to the extent of dis- turbing the public tranquillity. * Moreover, — , § 261. 1. Consent Unduly Obtained. — If in these cases the consent is obtained by fraud ;5 or if the person from tender years ^ or other cause is incapable of consenting; or if without absolute fraud or actual incapacity the will is overpowered,'' — as, by an array of force, « or by the false pretence, the accused being a physician, that the act is necessary in a course of medical treatment,^ — the law deems that there was no consent. For whatever is acquired by fraud is ordinarily in the law treated as though it did not exist. 1° Still, — V. Hamilton, N. C . Term, 31 .: S. v. Jei- nagan, N. C. Term, 44. And see S. v. Chambers, 6 Ala. 855. 1 Ante, § 259. 2 S. u. Beck, 1 Hill, S. C. 363, 26 Am. D. 190. "The opinion" in this case, " contains statements of law in which we cannot concur." C. v. CoUberg, 119 Mass. 350, 354. 8 Smith V. S. 12 Ohio St. 466, 80 Am. D. 355 ; Eeg. v. Martin, 9 Car. & P. 213, 215, 2 Moody, 123 ; Eeg. v. Meredith, 8 Car. & P. 589 ; Wright v. S. 4 Humph. 194 ; C. V. Parker, 9 Met. 263, 43 Am. D. 396 ; S. V. Cooper, 2 Zab. 52, 51 Am. D. 248 ; Reg. V. Banks, 8 Car. & P. 574 ; Duncan v. C. 6 Dana, 295 ; Reg. v. Johnson, Leigh & C. 632. * Assault and Battery. — In an Eng- lish jury case, the judge observed that if two go out to strike each other, and do so, it is an assault in both, and it is quite im- material which strikes the first blow. Reg. V. Lewis, 1 Car. & K. 419. This is doubt- less so in some circumstances ; as, where the parties are in anger and each intends to beat the other, allowing himself to be beaten as-little as possible. Here neither can be said to consent to the blows he re- ceives. See Vol. 11 § 35. Prize-flght. — So if they engage in a prize-fight or boxing-match there is a breach of the peace to which they cannot consent. Rex V. Perkins, 4 Car. & P. 537 ; S. v. Burn- ham, 56 Vt. 445, 48 Am. R. 801 ; Vol. II. § 35. But ordinarily if two persons fight together with the fist by agreement, though they may under some circumstances com- mit an offence, it is not the offence of as- sault and battery. Champer v. S. 14 Ohio St. 437. See further as to prize-fightSj Reg. V. Hijnt, 1 Cox C. C. 177; C. o. Welsh, 7 Gray, 324; C. v. Barrett, 108 Mass. 302 ; Eeg. v. Young, 10 Cox C. C. 371 ; post, § 535. 6 Reg. V. Saunders, 8 Car. & P. 265 ; Reg. V. Williams, 8 Car. & P. 286. 8 Reg. V. Read, 1 Den. C. C. 377, Temp. & M. 52, 3 New Sess. Cas. 405, 13 Jur. 68, 2 Car. & K. 957; Hays v. P. 1 Hill, N. Y. 351 ; S. V. Handy, 4 Barring. Del. 566 ; Eeg. V. March, 1 Car. & K. 496 ; Daven- port V. C. 1 Leigh, 588. And see Reg. v. Banks, 8 Car. & P. 574 ; Reg. v. Martin, 9 Car. & P. 213. ' Hays V. P. 1 Hill, N. Y. 351 ; Eeg. v. Day, 9 Car. & P. 722 ; Eex v. Nichol, Russ. & Ry. 130. 8 Reg. V. Hallett, 9 Car. & P. 748. » Reg. V. Ellis, 2 Car. & K. 470 ; Reg. V. Case, 1 Eng. L. & Eq. 544, 1 Den. C. C. 580, Temp. & M. 318. And see Rex v. Rosinski, 1 Moody, 19. 10 Bishop First Book, § 66-99, 125; Vol. II. § 36, 751, 752, 811, 1122-1126. 141 §262 ELEMENTS OP CRIME. [book hi. 2. Rape — Assault — Adultery. — The peculiar offence of rape is not committed where the man obtains the woman's consent by a fraud ;i as, by personating the husband. ^ This is a technicality in rape, perhaps derivable more from ancient precedents than from the reasonings of the law ; but whether so or not, our courts cannot change it.^ And still the carnal act in these circum- stances is in law an assault.* In States wherein adultery is indictable, it may constitute it also, though on this question some exceptional courts appear to indulge in a little needless refinement.^ And it is rape when committed on a woman in delirium so deep as to be insensible to what is done.^ § 262. 1. ■Watching — Plans to entrap. — If a man suspects that an offence is to be committed, and instead of taking pre- cautions against it sets a watch and detects and arrests the offenders, he does not thereby consent to their conduct, or fur- nish them any excuse.' And it is not ordinarily otherwise though the watching is accompanied by artifice.^ Thus, — 2. In Larceny, — exposing property or neglecting to protect it, under the expectation that a thief will take it,^ or furnishing ^ So also in Alabama, S. u. Murphy, 6 Ala. 765, 41 Ain. D. 79. 2 Vol. II. § 1122. * Established Kiiles. — The last sen- tence in the text did not appear in the earlier editions. I have received some letters from lawyers who expressed a liking for the free inquiry with which they deemed my books to have been writ- ten, querying why it was that I set down this rule of rape, which to them ap- peared to be a departure from just prin- ciple, without comment or dissent. My reply is that it is not and it never was any part of my purpose to make law, or change the law we have, but the one ob- ject is and always has been simply to elu- cidate what is established. Included in such elucidations, is the discovery or stat- ing of things which the courts and other authors did not think of ; but an un- thought-of thing is not therefore a new thing, and it may be just as well settled in legal doctrine as if it were found writ- ten a thousand times in judicial opinions. See, for further explanations, the Preface and Introduction to the recently published Bishop on Mar. Div. & S. Where a rule of law has become absolutely established, so 142 that it is not within the judicial jurisdic- tion to overthrow it, my method is simply to state it without comment. On the one hand, it would serve no useful purpose, while, on the other hand, it would impair the practical efficacy of these writings, to set up and carry on a constant fire of criticism of our ancestors for not having made the law differently from what they did. * Rex V. Jackson, Russ. & Ry. 487 ; Reg. V. Saunders, 8 Car. & P. 265 ; Reg. V. Williams, 8 Car. & P. 286. And see Reg. V. Stanton, 1 Car. & K. 415 ; Reg.w. Camplin, 1 Car. & K. 746. 5 Crim. Pro. I. § 419; Stat. Crimes, §660. 6 Rex V. Chater, 13 Shaw's J. P. 766, Archb. New Crim. Pro. 306; Vol 11. § 1121, 1123. ' Thompson v. S. 18 Ind. 386, 81 Am. D. 364. 8 P. V. Hanselman, 76 Cal, 460. ^ Rex V. Egginton, 2 Leach, 913, 2 B. & P. 508 ; s. 0. nom. Rex v. Eggington, 2 East P. C. 494, 666 ; Reg. v. Williams, 1 Car. & K. 195 ; S. v. Covington, 2 Bailey, 569 ; Reg. v. Rathbone, 2 Moody, 242, Car. & M. 220 i Reg. V. Gardner, 1 Car. & K. CHAP. XV.] INJURED PEBSON's WEONG OR CONSENT. § 263 any other facilities or temptations to such 'or any other wrong- doer,^ is not a consent in law. 3. Burglary — furnishes a frequent illustration, in cases where those intending to break into a house and steal tempt the occu- pant's servant to assist them ; and after communicating the facts to his master, he is authorized to join them in appearance. For what the burglars personally do under such an arrangement, they are by all opinions responsible; but the English doctrine seems to be that if the servant opens the door while they enter, they are not guilty of a breaking. ^ In principle, probably they are not so if the servant is to be deemed the master's agent, not theirs, in opening the door. But as they had requested him to join them, and the master's consent was merely for their detec- tion, the better view would appear to be to consider him their agent in the breaking, and hold them responsible for it.^ An Irish case even decides that where persons intending to commit burglary knock at the door of the house of one who, apprised of their purpose and prepared for them, himself opens it, and on their rushing in seizes and secures them, the offence is com- mitted.* And — 4. Fraud or Force. — It seems that a consent to a breaking obtained by fraud^ or force ^ will not' protect the wrong-doer. But where he enticed out of the house its occupant who left the door open, then fifteen minutes later entered the house through this open door, he was held not to be guilty, though had the entry been instantaneous the result would have been otherwise. ^ § 263. 1. niegal Trading. — It was during slavery held that if one delivers a thing to his slave, then stands by to detect a per- 628; Reg. v. Johnson, Car. & M. 218; Johnson, Car. & M. 218. And see Reg. t. U. S. V. Foye, I Curt. C. C 364 ; Vamer WiUiams, 1 Car. & K. 195. V. S. 72 Ga. 745. ' ^^^ ^6e Alexander v. S. 12 Tex. 540 ; 1 Rex V. Dannelljr, Buss. & Ry. 310 ; Holland v. C. 82 Pa. 306, 22 Am. R. 758. Rex V. Headge, 2 Leach, 1033, Buss. & * Rex v. Bigley, 1 Crawf. & Dix C. C. By. 160; Rex v. Whittlngham, 2 Leach, 202. 912 ■ Reg. V. Lyons, Car. & M. 217 ; Rex ^ Rex v. Cassey, J. Kel. 62, 69 ; Rex V. Ady. 7 Car. & P. 140 ; Saunders v. P. v. Hawkins, 2 East P. C. 485. See Den- 38 Mich. 218. *''°'^ Case, cited Foster, 108. 2 Beg. V. Johnson, Car. & M. 218; Bex « Bex v. Swallow, 1 Buss. Crimes, 3d V. Egginton, 2 B. & P. 508, 2 Leach, 913, Eng. ed. 792 ; Stat. Crimes, § 312. 2 East P. C. 494, 666 ; Rex v. Dannelly, 2 ' S. t. Henry, 9 Ire. 463, Rnffin, C. J. MarshaU, 471, Russ. & Ry. 310; Beg.... dissenting. See ante, § 261 ; Stat. Crimes, §312. 143 § 263 ELEMENTS OF CRIME. [BOOK III. son trading with him for it contrary to a statute, still such trading is not made lawful. ^ But — 2. In Larceny, — where a master, instead of merely attempt- ing to detect a crime already contemplated by another, directs his servant to deliver property to a suspected thief, who in fact had not formed the design to steal it, the latter's taking it from the servant with the felonious intent does not constitute the offence.^ 1 S. V. Anone, 2 Nott & McC/27 ; S. v. N. C. Term, 31 ; S. v. Bama, N. C. Term, Sonnerkalb, 2 Nott & McC. 280. 44. Compare, with these cases, Alexan- 2 Dodge V. Brittain, Meigs, 84 ; Kemp der v. S. 12 Tex. 540. And see Vol. II. w. S. 11 Humph. 320 ; Dodd v. Hamilton, § 811-822. 144 CHAP. XVI.J CRIMINAL AND fclTIL PROM SAME ACT. § 264 CHAPTER XVI. BOTri CRIMINAL AND CIVIL LIABILITIES PROM THE SAME ACT. 263 a. Introduction. 264-266. General Doctrine. 267-272. Whether and what Exceptions in Felony. 273-278. Reasons and Law's Reasoning. § 263 a. How Chapter divided. — We shall consider, I. The General Doctrine ; II. Whether and what Exceptions in Felony ; III. Concerning some of the Reasons and the Nature of the Law's Reasoning. I. The Greneral Doctrine. § 264. Diverse. — The foregoing elucidations show that crimi- nal and civil suits are diverse in their natures and objects. Hence, — General Doctrine defined. — Subject to qualifications and excep- tions, the State and a private person may severally and simulta- neously carry on, the one a criminal prosecution and the other a civil suit, for the same wrong, if both have suffered from it; or, the one may go in advance of the other, or there may be but the one. Neither will affect the other. ^ Thus, — 1 raise Affidavits, 12 Co. 128; Bias- Yonge, 15 Ga. 349, 60 Am. D. 698; singame v. Glaves, 6 B. Monr. 38 ; Har- Hedges i'. Price, 2 W. Va. 192, 94 Am. D. risen v. Chiles, 3 Litt. 194; Wheatley b. 507; C. ». Elliott, 2 Mass. 372 ; C. v. Bliss, Thorn, 23 Missis. 62 ; Kennedy v. McAr- 1 Mass. 32 ; Phillips v. Kelly, 29 Ala. 628 ; thur, 5 Ala. 151 ; S. v. Stein, 1 Rich. 189; Gordon v. Hostetter, 37 N. Y. 99. See United States Express w. J enliins, 64 Wis. Bostwick v. Lewis, 2 Day, 447; Hyatt 542; Clark v. Peckham, 10 R. L 35, 14 v. Wood, 4 Johns. 150, 4 Am. D. 258; Am. R. 654; P. r. Waterbnry, 44 Hun, Phelps v. Stearns, 4 Gray, 105, 64 Am.D. 493; Corley w. Lancaster, 81 Ky. 171; 61. " Where a thing that is an injury to Drake v. Lowell, 13 Met. 292 ; Rex v. a particular person is prohihited by act of Spiller, 2 Show. 207 ; Reg. v. Best, 6 Mod. Parliament, the party may have his action, 137 ; Rex v. Stanton, 2 Show." 30 ; Foster but yet 't is indictable also " Holt, C. J., V. C. 8 Watts & S. 77; Simpson v. S. 10 in Rex u. Hummings, Comb. 374. And Yerg. 525; Thayer v. Boyle, 30 Me. 475; see ante, § 237-239; Chiles v. Drake, 2 S. V. Rowley, 12 Conn. 101 ; Shields v. Met. Ky. 146, 74 Am. D. 406. VOL. I. — 10 145 § 265 ELEMENTS OF CRIME. [book III. - § 265. 1. Assault and Battery — Nuisance. — An action to recover damages for an assault and battery ^ or for a common nuisance^ may proceed at the same time with the indictment for the same thing. But — 2. Damage Special. — The plaintiff to recover in the civil suit for any criminal wrong must have suffered some special injury, not merely have partaken with the public in what equally affects all.^ So that, for example, — 3. Obstruction of Public Way. — "If A dig a trench across the highway, this is the subject of an indictment; but if B fall into it and sustain a damage, then the particular damage thus sustained will support an action. " * And in general terms, if one makes criminally an excavation in a public way, or places in it an indictable obstruction, he will be civilly responsible for whatever is suffered by individuals during its continuance.^ But the damage must be special to the individual, not merely such as' all sustain.® Yet according to the better opinion, it need not be direct; it is sufficient if consequential, though, as just said, it must accrue specially to the individual. "' And this 1 Jones V. Clay, 1 B. & P. 191. 2 Burrows v. Pixley, 1 Root, 362, 1 Am. D. 56 ; U. S. ». New Bedford Bridge, 1 Woodb. & M. 401 ; Allen v. Lyon, 2 Root, 213 ; Abbott v. Mills, 3 Vt. 521, 529, 23 Am. D. 222 ; Franklin v. White Water Valley Caual, 2 Ind. 162; Francis v. Schoellkopf, 53 N. Y. 152 ; Harvard Col- lege V. Stearns, 15 Gray, 1. And see Nichols V. Pixly, 1 Root, 129. * Ante, § 235 ; Bishop Non-Con. Law, § 71 ; Low V. Knowlton, 26 Me. 128, 45 Am. D. 100 ; Baxter v. Winooski Turn- pike, 22 Vt. 114, 52 Am. D. 84 ; Carey v. Brooks, 1 Hill, S. C. 365 ; Stetson v. Paxon, 19 Pick. 147, 31 Am. D. 123; Barden v. Crocker, 10 Pick. 583 ; Harrison i>. Ster- rett, 4 Har. & McH. 540; Hart v. Basset, T. Jones, 156; Chichester w. Lethbridge, ■ Willes, 71, 73; Rose u. Miles, 4 M. & S. 101; Colew. Sprowl, 35 Me. 161,56 Am. D. 696; McLanchlin v. Charlotte and South Carolina Rid. 5 Rich. 583 ; Yolo v. Sacramento, 36 Cal. 193; Brown v. Wat- son, 47 Me. 161, 74 Am. D. 482; Ingram V. The C. D. & M. Rid. 38 Iowa, 669. And see Weightman d. Washington, 1 Black, 39 ; Herron v. Hughes, 25 Cal. 555 ; Ayres 146 V. Lawrence, 63 Barb. 454 ; Nottingham v. Baltimore, &c. Rid. 3 MacAr. 517. ' Broom Leg. Max. 2d ed. 156; Ashby V. White, 2 Ld. Raym. 938, 955. ^ Portland v. Richardson, 54 Me. 46, 89 Am. D. 720; Osborn v. Union Ferry, 53 Barb. 629; Brown o. Watson, supra; Benjamin v. Storr, Law Rep. 9 C. P. 400 ; Little Rock, &c. Rid. o. Brooks, 39 Ark. 403, 43 Am. R. 277. 8 Lamphier v. Worcester, &c. Rid. 33 N H. 495 ; Johnson v. Stayton, 5 Harring. Del. 362; Crook v. Pitcher, 61 Md.'510; Gordon v. Baxter, 74 N. C. 470 ; Sohn v. Cambern, 106 Ind. 302; Shephard v. Bar- nett, 52 Tex. 638 ; Bigley v. Nunan, 53 Cal. 403. ' Baxter v. Winooski Turnpike, 22 Vt. 114; Lansing v. Smith, 4 Wend. 9, 21 Am. D. 89 ; Stetson v. Kaxon, 19 Pick. 147 ; Wilkes I'. Hungerford Market, 2 Bing. N. C. 281, 293 ; Rose v. Groves, 6 Scott N. R. 645, 654 ; Blackwell v. Old Colony Rid. 122 Mass. 1 ; Jackson v. Kiel, 13 Colo. 378. And see Cook v. Bath, Law- Rep. 6 Eq. 177; Willard v. Cambridge, 3 Allen, 574 ; Allen v, Monmouth, 2 Beasley, CHAP. XVI,] CRIMINAL AND CIVIL FROM SAME ACT. § 266 rule of law applies equally to the equity suit to abate or enjoin the nuisance. ^ Still, — .§266. 1. Judicial Discretion — (information). — A court called upon for a favor — as, to grant a criminal information 2 to one in- jured by an assault and battery — will usually, not always, refuse if the applicant has pending for the same thing ai civil suit, unless he will waive It. ^ But — 2. As of Right — (indictment). — A prosecution by indictment, which is of right, and a civil suit may as before observed go on simultaneously.* Whether the court in its discretion will con- tinue one of the cases until the other is disposed- of, and which one, depends on the special circumstances, on usage in the tri- bunal, and on what the individual judge deems best promotive of justice.^ And — 3. Effect on Damages. — One who has borne criminally the full penalty cannot, in a civil proceeding, show this fact either in bar or ordinarily in mitigation of damages.^ There may be limitations of this doctrine ; as, it is by some held that if one has paid money in fine and costs on the criminal prosecution, it will -reduce such part of the damages as are punitive, but not the actual.'' The logical consequence of which proposition would be that if the civil suit is first decided, and the damages appear to have exj;ended into the punitive, such punitive part may be shown in mitigation of punishment ; or, at least, in reduction of a fine. In an English case, it appearing that the plaintiff, besides procuring a criminal conviction of the defendant, had 1 Billard!;.Erhart,35Kan.6Il; Jarvis Bliss, 1 Mass. 32; P. v. The Judges, 13 V. Santa Clara Valley Eld. 52 Cal. 438; Johns. 85; Anonymous, 1 Sid. 69; Eex v. Garnett v. Jacksonville, &c. By. 20 Fla. Ashburn, 8 Car. & P. 50 ; Peddell v. Rut- 889 ; Marini v. Graham, 67 Cal. 130 ; Key- ter, 8 Car. & P. 337, 340 ; Wakley v. Cook, stone Bridge v. Summers, 13 W. Va. 476; 11 Jur. 377 ; s. c. nom. Wakley v. Cooke, Pettis V. Johnson, 56 Ind. 139. 16 Law J. n. s. Exch. 225; Buckner v. 2 See Crim. Pro. I. § 143. Beck, Dudley, S. C. 168 ; Mathigon v. ' Rex V. Phillips, Cas. temp. Hardw. Hanks, 2 HiU, S. C. 625 ; Reg. v. WiU- 241 ; Rex V. Fielding, 2 Bur. 654, 2 Keny. mer, 15 Q. B. 50; Taylor i;. C. 29 Grat. 386; Eex v. Sparrow, 2 T. R. 198; Ex 780. parte , 4 A. & E, 576, note ; Eex v. ^ Jefferson v. Adams, 4 Harring. Del. Mahon, 4 A. & E. 575. See, as illustrat- 321 ; Wheatley v. Thorn, 23 Missis. 62 ; ing the principle, Eeg. v. Marshall, 4 Ellis Story v. Hammond, 4 Ohio, 376 ; Wilson & B. 475, 24 L. J. N. B. Q. B. 242, 30 Eng. v. Middleton, 2 Cal. 54; Eansone v. Chris- L. & Eq. 204. tian, 56 Ga. 351. * Jones o. Clay, 1 B. & P. 191 ; S. e. ' Johnston v. Crawford, Phillips, N. C. Frost, 1 Brev. 385. Contra, S. v. Blyth, 1 342. See Koemer v. Oberly, 56 Ind. 284, Bay, 166 ; Eex v. Ehodes, 1 Stra. 703. 26 Am. E. 34. « See C. .,. Elliott, 2 Mass. 372 ; C. v. 147 § 267 ELEMENTS OP CRIME. [BOOK III. received ou the certificate of the judge a portion of the fine, Lord Tenterden directed that he recover no more than the nom- inal damage of one farthing, and reprimanded the attorney for undertaking the cause. ^ 4. Statutes — have in some localities abridged the right of double prosecution. 2 II, Whether and what Exceptions in Felony. § 267. 1. Opinions Discordant. — It would not be easy to discover any other question in the entire law on which judicial opinions differ more widely or are more chaotic than the present. It is so even in England ; ^ and in this country we have the added question, with conflicting answers, whether or not the English law, whatever it may be, is common law with us. Omitting some palpably unsound views which appear in the reports, let us seek the law's line of reasoning on this question, hoping that we may find it. Thus, — 2. Plaintiff not in Wrong. — What is deemed the just view of one side of this question is that, following the common rule in civil actions,* the plaintiff in these cases as in others must come into court free from blame in the thing of which he complains ; or, in the words of Lord Kenyon, " must show that he stands on a fair ground when he calls on a court of justice to administer relief to him. " ^ Now, , — 3. Duty to prosecute Felons — (Compounding — Misprision). — The law deems it in some sense incumbent on all to prosecute ■ crimes, especially the more aggravated; consequently makes it indictable to compound them, whether treason, felony, or mis- demeanor,^ as will be more fully explained in a subsequent chap- ter. 'f A mere neglect to prosecute is a dereliction of the like 1 Jacks V. Bell, 3 Gar. & P. 316. And subject Midland Ins. Co. u. Smith, 6 Q. B. see Porter v. Seiler, 23 Pa. 424, 62 Am. D. B. 561, 568. 341. i Ante, § 11, 256. 2 S. 0. Stein, 1 Eich. 189 ; S. v. Arnold, » Booth v. Hodgson, 6 T. R. 405, 409. 8 Rich. 39 ; Harding v. King, 6 Car. & P. 6 c. v. Pease, 16 Mass. 91 ; Jones ». 427; Skuse v. Davis, 2 Per. & D. 550, 10 Rice, 18 Pick. 440, 29 Am. D. 612; Bell A. & E. 635, 7 Dowl. P. C. 774 ; Hartley v. Wood, 1 Bay, 249 ; Mattocks v. Owen, V. Hindmarsh, Law Rep. 1 C. P. 553 ; 5 Vt. 42 ; Plumer v. Smith, 5 N. H. 553, 22 Wright V. London Gen. Om. Co., 2 Q. B. Am. D. 478 ; Cameron v. McFarland, 2 D. 271 ; Masper v. Brown, 1 C. P. D. 97; Car. Law Repos. 415, 6 Am. D. 566 ; Cor- Manville w. Pelter, 19 Kan. 253. ley v. Williams, 1 Bailey, 588 ; Hinesbnrgh 8 See for an English statement on this v. Sumner, 9 Vt. 23. ' Post, § 709 et seq. , 148 ' CHAP. XVI.] CRIMINAL AND CIFIL PROM SAME ACT. § 267 sort, but further removed from the principal offence, therefore less reprehensible. Where the principal offence is only a misde- meanor, the law, following the rule of not regarding small things,^ takes no notice of the simple neglect. But where it is felony, the neglect to prosecute the felon or discover his offence to the magistrate becomes an indictable misdemeanor, known as misprision of felony. ^ Therefore, — 4. No Civil Suit vrhile neglecting to prosecute. — If a plaintiff in a civil cause alleges that the defendant has committed a felony to his injury, he shows himself guilty, though in a less degree, in the very thing about which he complains, unless he has exerted himself to bring the felon to justice. ' Even if the law did not hold this neglect indictable, still such a plaintiff would not stand in court " on a fair ground ; " and the defendant in availing himself of the objection would take advantage, not of his own wrong, but of the plaintiff's. So that one who has suffered from a felony cannot maintain his civil action against the felon until he has discharged his duty to the public, in respect of prosecuting the public wrong. If the felon is either convicted or, without the plaintiff's fault or collusion, acquitted, — or if the plaintiff has presented to the grand jury a bill which was thrown out, — this is sufficient, and he may then maintain the action. 2 But^- 5. Duty done. — When the duty to prosecute no longer rests on a party, he may carry on his civil suit; as, if another has prosecuted the felon to conviction,* or if the judge ordered the 1 Ante, § 2 1 2 et seq. Bradley, 2 7 Ala. 640 ; Middleton v. Holmes, 2 3 Inst." 139 et seq. ; 1 Hale P. C. 372, 3 Port. 424. It is also said in Coke's 374 ; 1 Russ. Crimes^3d Eng. ed. 45, 131 ; Keports : "The law has imposed this pen- Anonymous, Sir F. Moore, 8 ; 1 Hawk, alty on the owner [of stolen goods] that if P. C. 6th ed. c. 59 ; 4 Bl. Com. 1-21 ; post, the thief by his industry and fresh suit be § 716 et seq. not attainted at his suit (scil. in appeal of » Higgins V. Butcher, Yelv. Met. ed. the same felony), he shall for his default 89 and note ; 1 Hale P. C. 546 ; Page ». lose all his goods which the thief at the Camp, Kirby, 7 ; Crosby v. Leng, 12 East, time of his flight waived. But if the thief 409, and the cases there cited ; -Golightly has them not with him when he flies, hav- ». Reynolds, Lofft, 88, 90 ; White v. Fort, ing perhaps hid them (as it is said), there 3 Hawks, 251 ; Belknap v. Milliken, 23 no default can be in the party; and there- Me. 381 ; Foster v. Tueker, 3 Greenl. 458, fore they shall not be forfeited, for if 14 Am. D. 243 ; Morgan v. Rhodes, 1 Stew, he make fresh suit after notice of the 70; McGrew v. Cato, Minor, 8; Grafton felony it is sufficient." Foxle/s Case, Bank v. Flanders, 4 N. H. 239; Crowell 5 Co. 109 a. See also Rex o. Paul, 6 V. Merrick, 19 Me. 392 ; Broom Leg. Max. Car. & P. 323. 2d ed. 159, 160; Patton v. Freeman, Coxa, * Chowne v. Baylis, 31 Beav. 351. 113, and the reporter's note ; Morton ii. 149 S 269 ELEMENTS OP CRIME. [BOOK III. indictment not to be brought on for trial, deeming that justice was satisfied by a sentence pronounced on another indictment.^ § 268. stolen Goods — Receiver — Third Person. — In like manner, where the receiving of stolen goods is felony, the owner cannot maintain a civil suit against the receiver, if under an unfulfilled duty to prosecute him.^ But against an innocent third person, in whose hands the goods may be, his suit is main- tainable ; because although he has not prosecuted the thief, his neglect does not attach to the thing about which he complains ; namely, that the defendant wrongfully detains property to which the purchase from the thief gave him no title. ^ § 269. How avaU of Non-proaecution. — According to some cases, if the disabling fact appears at the trial, the plaintiff will be nonsuited.* Park, J., once submitted the question to the jury.^ Later, when after a verdict for the plaintiff the defend- ant moved for a new trial, on the ground that if the evidence established against him anything it was a larceny for which he had not been prosecuted, the English Queen's Bench rejected the motion. And the opinion expressed was that a judge at nisi prius can try only the record sent down to him, and if matter of this sort is < not pleaded, he can neither nonsuit the plaintiff nor direct a verdict for the defendant. Nor can a defendant set up his own felony in defence. So that unless the plaintiff alleges the felony, or the court itself interposes to postpone the trial, as it may, there would seem to be no way in which this sort of matter can be made available in defence.^ If this view is 1 Dudley and West Bromwich Bank- ness. — If, after a theft, but in advance ing Co. u. Spittle, 1 Johns. & H. 14 ; Sir of a, criminal prosecution, the thief se- W. Page Wood, V. C. observing: "Until cures to the injured party the return of the cases which arose out of Fauntle- what he stole, the security is good after roy's forgeries, there seems to have been his conviction. Chowne v. Baylis, supra, a floating impression that a debt was ab- ^ Gimaon v. Woodfull, 2 Car. & P. 41, solutely gone where it was connected 43; Pease u. McAloon, 1 Kerr, 111. with a felony committed by the debtor. * White v. Spettigue, 13 M. & W. 603 ; But it was then settled that the debt re- Broom Leg. Max. 2d ed. 160; Dame v. mains good, though the right of recover- Baldwin, 8 Mass. .518; Newkirk v. Dalton, ing it is suspended until the creditor 17 111. 413. But see Pease v. McAloon takes those steps which the purposes of supra. See, as illustrative, Buck v. Albee, justice and public policy require, to bring 27 Vt. 190. the offender to justice. The object of * Gimson «. Woodfull, 2 Car. & P. 41 ; this rule is to prevent attempts to com- Pease v. McAloon, I Kerr, 111. promise a felony by compensating the ' Prosser w. Rowe, 2 Car. & P. 421 . person injured on the terms of allow- ^ Wells v. Abrahams, Law Eep. 7 ing the criminal to escape prosecution." Q. B. 554. It is observed in this case p. 16.. Security for the CivU Indebted- that Gimson v. Woodfull, supra, was ex- 150 CHAP. XVI.] CRIMINAL AND CIVIL PROM SAME ACT. § 271 accepted, the law itself is nearly submerged in a sea of techni- calities. Now, — § 270. How in our States : — la Principle, — assuming the foregoing to have been the law of England at the time when our country was settled, is it therefore common law with us ? Our criminal prosecutions are not, like the English, carried on almost exclusively by private individ- uals ; but we have public attoi-neys, with other officers and their assistants, to represent the government in them. Still we have no substitutes for the individual in the duty to disclose crimes to the authorities, or ordinarily in taking other incipient steps, while yet the private person is not required to go so far here as in England. Thus are disclosed qualifications of the doctrine in its application to this country. But, qualified to fit our altered conditions, no legal reason appears why it should not prevail with us the same as it did in England at the time of the original settlements. § 271. Our Adjudications — on this question are discordant, not presenting simply two sides, but more. For example, the author not vouching that he is making no omissions, nearly or quite the full English doctrine appears to prevail in Alabama.^ And the New Hampshire court once seemed to maintain it ; ^ but afterward utterly discarded the English law of the subject, deem- ing that with us a criminal prosecution is not an indispensable forerunner to the civil suit.^ The Maine tribunal,^ apparently sustained by some early Massachusetts authorities,^ restricted the rule to robberies and larcenies; but a subsequent statute altogether removed the disability. ^ In South Carolina,^ Massa- chusetts, » Mississippi, 9 and apparently Tennessee, lo the English pressly overruled in White r. Spettigue, * CroweU v. Merrick,. 19 Me. 392; Bel- 13 M. & W. 603. And see Ex parte Ball, knap v. Milliken, 23 Me. 381 ; Foster v. 10 Ch. D. 667. Tucker, 3 Greenl. 458, 14 Am. D. 243 ; 1 Morgans. Rhodes, 1 Stew. 70;' Mc- Boody v. Keating, 4 Greenl. 164. Grew V. Cato, Minor, 8 ; Morton . XVn.J EX POST FACTO LAWS. § 284 § 284. Restated, — the doctrine of this chapter is, that after an offence has been committed, the legislature may provide new methods for arresting and bringing to trial the offender, may qualify witnesses who were incompetent before, may authorize the introduction of any evidence which a technicality of the law had excluded, and thereby and by other like means secure the punishment of one who practically would otherwise have escaped. But a statute will be ex post facto and void if by it any less wrong- doing, however minute, is made to suffice for the offence than was required before. And it will be the same if the punishment, or other penal consequence, is enhanced. In all this, the rule is to look to the substance of the provision, and not the name by which it is called. A statute nominally of procedure, or nomi- nally of evidence, will be ex post facto or not as tested by its substance or nature. VOL. I.— 11 161 I 287 THE EEQUIEED EVIL INTENT. [BOOK IV. BOOK IV. THE EEQUIRED EVIL INTENT. CHAPTER XVIII. GENERAL VIEW OP THE DOCTKINE OP THE INTENT. § 285. What for this Book. — Having seen in a general way that to constitute a crime an evil intent must combine with an act,^ we shall now, in a series of chapters, descend to the particu- lars of the Intent, and thus bring under our survey some of the most important doctrines of the criminal law. § 286. Criminal distinguished from CivU. — In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties, the quo animo with which a thing was done is sometimes impor- tant, not always; 2 but crime proceeds only from a criminal mind. So that — § 287. No Crime without Evil Intent. — There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness, without which it cannot be. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed, guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offence is the wrongful intent, without which it cannot exist. ^ We find this doctrine confirmed by — 1 Ante, § 204 et seq. 601 ; Campbell v. Phelps, 17 Mass. 244, '^ Bishop Non-Con. Law, § 16, 142,496- Congdon !'. Cooper, 15 Mass, 10; U. S. v. 504; Hart v. Tallmadge, 2 Day, 381, 2 Thomas90^, 4 Bis. 99 ; post, § 288, 301 . Am. D, 105; Moran w. Rennard, 3 Brews. s xhe WiUiam Gray, 1 Paine, 16; 162 CHAP. XVIII.] GENERAL VIEW OP INTENT. § 290 § 288. Legal Maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as, — Actus non facit reum nisi mens sit rea, " the act itself does not make a man guilty unless his intention were so ; " ^ Actus me invito f actus non est meus actus, " an act done by me against my will is not my act ; " ^ and others of the like sort. In this, as just said, criminal jurispru- dence differs from civil. ^ So also — § 289. Moral Science and Moral Sentiment — teach the same thing. " By reference to the intention, we inculpate or excul- pate others or ourselves without any respect to the happiness or misery actually produced. Let the I'esult of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the same ground, we hold him innocent."* The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And — § 290. Further of Reasons. — In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon U. S. V. Pearce, 2 McLean, 1'4, 19; Weaver Phillips, 2 Moody, 252 ; S. i>. Garland, 3 V. Ward, Hob. 134; Ex parte Rodgers, Der. 114; Case of Le Tigre, 3 Wash. Amb. 307 ; Rex v. Fell, 1 Salk. 272 ; Rex C. C. 567, 572 ; S.v. Hawkins, 8 Port. 461, V. Martin, Russ. & Ry. 196; Lancaster^ 33 Am. D. 294; Rex i/. Heath, Russ. & Case, 1 Leon. 208, 209; S. v. Nicholas, 2 Ry. 184; C. v. Sheriff, 1 Leg. Gaz. Rep. Strob. 278 ; Rex v. Holden, Russ. & Ry. 340 ; S. v. Gardner, 5 Nev. 377 ; P. v. 154, 2 Leach, 1019, 2 Taunt. 334; Rex v. Mack, 125 N. Y. 324, 334; Montgomery Harris,"7 Car. & P. 428 ; Rex v. DanneUy, f. S. 12 Tex. Ap. 323 ; S. a. Ellington, 98 Russ. & Ry. 310; Reg. v. Allday, 8 Car. N. C. 749 ; Price v. P. 109 111. 109. And & P. 136 ; Reg. v. Thurborn, 1 Den. C. C. see Smith v. Kinne, 19 Vt. 564. 387 ; Rex v. Friar, 1 Chit. 702 ; RQey v. S. ' Broom Leg. Max. 2d ed. 226, 232, 239, 16 Conn. 47 ; Rex v. Gascoigne, 1 Leach, 275, 633, note; BurriU Law Diet. 280, 284 ; S. v. Berkshire, 2 Ind. 207 ; S. ^ Bouv. Law Diet. ; BurriU Law Diet. V. Bartlett, 30 Me. 132 ; C. v. Ridgway, 2 " Rex v. Fell, 1 Salk. 272 ; Weaver v. Ashm. 247 ; S. v. Bohles, Rice, 145, 147 ; Ward, Hob. 134 ; James v. Campbell, 5 U. S. V. Fourteen Packages, Gilpin, 235, Car. & P. 372 ; Miller v. Lockwood, 17 244; Rex v. O'Brian, 7 Mod. 378; Stur- Pa. 248; ante, § 286. ges V. Maitland, Anthon, 153 ; Cummins * Wayland Moral Science, 12. V. Spruance, 4 Barring. Del. 315,; Reg. o. 163 § 291 THE EEQUIRED EVIL INTENT. [BOOK IV. him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of Nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. § 291. 1. Universal. — Though we sometimes find judges inconsiderately making exceptions to this doctrine, in the just truth of the law it is universal. If a case is really criminal, if the end sought is punishment and not the redress of a private wrong, no circumstances can render it just, or consistent with a sound jurisprudence, for the court or a jury to condemn the defendant unless he was guilty in his mind. Ab the laws of the material world act uniformly, never knowing exceptions, so do those of the moral world. It is never right to punish a man for walking circumspectly in the path which appears to be laid down by the law, even though some fact which he is unable to discover renders the appearance false. And for the government, whether by legislation or by judicial decree, to inflict injustice ' on a subject, is to injure itself more than its victim. And a court should in all circumstances so interpret both the common law and the statutes as to avoid this wrong. But — 2. Criminal in Form — Civil in Effect. — Since there are cases wherein the form is criminal while the matter is civil, to which therefore the full rules of the criminal law do not apply, ^ this doctrine of the criminal intent not unfrequently finds a seeming exception in them. The author is not aware of any judicial expositions in the books, wherein this matter appears in a clear light, but generally whenever the question has arisen it has been argued about in no very satisfactory way. And still from the special natures or small magnitudes of some wrongs redressed by indictment or penal action, the courts, deeming the intent im- material in these particular instances, have refused to apply to them the common doctrine, employing language which has created a wide belief that they constitute exceptions. Some of » Ante, § 32, 33. , 164 CHAP. XVIII.] GE\ERAL VIEW OF. INTENT. § 291 6 the decisions now alluded to ' are evidently right, some others are certainly wrong. § 291 a. The Applications of these Doctrines, — and the par- ticulars as to the shapes of them, are for succeeding chapters. It will be seen that the law for its universal rule simply requires the intent to be evil. Beyond which we shall find that some of the specific offences call for a corresponding form of evil in the intent, others demand only evil in general, and still others are constituted only when, two different evil intents combine. The great rock on which our judicial determinations occasionally split and miscarry relates to the — § 291 h. , Interpretations of the Statutes. — A statute is simply a fresh particle of legal matter dropped into the previously-exist- ing ocean of law. It is subject to all the old attractions, and the old winds and lunar influences, precisely as were the several par- ticles of the ocean before. Or, to speak without a metaphor, the new statutory rule is to be limited, extended, and governed by the same common-law principles, and to the same extent, as were the common-law rules themselves before the statute was passed. For example, a common-law offence was not committed when the forbidden act was done by a child under seven years old, or by an insane person, or by a sane person through compul- sion, or through an innocent jnistake of facts ; therefore a statu- tory offence, hoyever general and broad the forbidding words, should not be held to have been committed under the like cir- cumstances. ^ Such is the reason' of the law, and so likewise are mainly our decisions. But occasionally a judge or bench of judges, utterly oblivious of the nature of the law or of the 1 The opinion of Wills, J. in Reg. v. Cocq, 13 Q. B. D. 207 ; S. v. Brown, 38 Tolson,23Q.B. I). 168, 172-180, furnishes, Kan. 390; S. v. Barnard, 88 N. C. 661; in connection with the many authorities Schmidt v. S. 78 Ind. 41 ; Kreamer v. S. cited, much that is instructive on this 106 Ind 192; Mulreed d. S. 107 Ind. 62; question, though the particular view of U. S. v. Kane, 9 Saw. 614, 19 Fed. Rep. it given in the text seems not to have 42 ; P. v. Mahaney, 41 Hun, 26 ; Knight v. occurred to him. And the following cases, S. 64 Missis. 802 ; In re Ah Jow, 12 Saw. more or less divergent from one another, 88, 29 Fed. Kep. 181 ; Seacordv.P. 121 111. some holding the intent material and 623, 22 111. Ap. 279; Penny v. Hanson, 18 others immaterial, involve facts like some Q. B. D. 478. of those contemplated in the text. Sikes " Stat. Crimes, § 4-7, 82, 88, 114, 117, ». S. 30 Ark. 496 ; Redmond ». S. 36 Ark. 117 o, 123, 124, 131-138 a, 140, 596a, 596 6; 58, 38 Am. B. 24; Crampton ». S. 37 Ark. ante, § 112 (2), 121 ; post, § 303 a, note, 108; Pounders v. S. 37 Ark, 399; C. v. 304; S. v- McAdoo, 80 Mo. 216; Bradley Wentworth, 118 Mass. 441 ; Cundy v. Le v. P. 8 Colo. 599. 165 § 2916 THE EEQUIRED EVIL INTENT. [book IV. law's reasons, pronounce that where the statute has made no exception the court can make none. No judge ever held such a thing universally; as, for example, to sentence to the gallows one admitted to be insane. But the blunder, when committed, has usually been in cases of the minor wrongs done under a mis- take of fact, or in other excusing circumstances, which did not happen duly to impress themselves upon the judicial thought. ^ Let us now proceed more into detail. 1 A passage from the opinion of Ste- phen, J. in Keg. v. Tolson, 23 Q. B. D. 168, 187, 16 Cox C. C. 629, will assist the explanation here. " It is the general — I might, I think, say the invariable — prac- tice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essen- 166 tial to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. ... It may, I think, he maintained that in every case knowledge of fact [when in like manner not appearing in the statute] is to some extent an element of crim- inality as much as competent age and sanity." And see Tenterden, C. J. in Beechey v. Sides, 9 B. & C. 806, 809. CHAP. XIX.] MISTAKE OP LAW AND PACT. 8 294 CHAPTER XIX. IGrNOEANCB AND MISTAKE OP LAW AND PACT. § 292, 293. Introduction. 294-300. Ignorance of Law. 301-310. Mistake of Pact. 311,312. Both of Law and Fact. § 292. Importance — Difflculties. — In the entire criminal law, there is no subject superior in importance to this, or on which judicial decision is more apt to go blind or stumble. The doc- trines are of themselves simple, but they connect and combine with many other doctrines, and at the points of union complica- tions are created embarrassing and sometimes misleading to minds habituated to a narrow vision. The writer will be par- doned, therefore, if he enters more minutely into explanations in this chapter, particularly in the parts of it which relate to mis- take of fact, than on most other of the topics of these volumes. § 293. How Chapter divided. — We shall consider, I. Ignorance of Law ; II. Mistake of Fact ; III. Ignorance and Mistake both of Law and Fact. I. Ignorance of Law. § 294. 1. Arbitrary. — The rule under this sub-title, unlike , the next, is arbitrary, — compelled by necessity, the great mas- ter of all things.^ Without it justice could not be administered in our tribunals. It is that, — 2. Knowledge presumed. — In general, every person is pre- sumed to know the laws of the country wherein he dwells ; ^ or wherein, if residing abroad, he transacts business. ^ And within 1 Crim. Pro. I § 7, 493-498; post, ' CambioBO v. Maifet, 2 "Wash. C. C. § 846 et seq. 98. But ignorance of the laws of a foreign ^ Broom Leg. Max. 2d ed. 190 et seq. ; country, by one not in it, is ignorance of Kent, Ch. in Lyon v. Richmond, 2 Johns, fact, within the rule that men are not con- Ch. 51, 60. A foreigner personally here is clusively presumed to know facts. Haveii held to know our laws, like a native sub- v. Foster, 9 Pick. 112, 19 Am. D. 353 ; 1 ject. Reg. V. Barronet, Dears. 51. Story Eq. Jur. § 140. 167 I 296 THE REQUIRED EVIL INTENT. , [BOOK IVl limits not -well defined, this presumption is conclusive. Its conclusiveness comes from necessity, as just said; or, as it is sometimes laid down, from considerations of public policy, be- yond which it cannot extend, though the authorities do not show- precisely how broad is this foundation of policy, i Yet it is safe to state that — 3. Ignorance no Defence. — In neither a criminal nor civil, cause, in any circumstances, can one justify his act by the naked showing that when he did it he did not know the existence of the law he violated. 2 Not even, in general, is the excuse valid that he endeavored to ascertain the law and was misled by advising counsel.^ Ignorantia juris non excusat is, therefore, a rule in our jurisprudence,- as in the Roman whence it is derived.* § 295. Severity of Rule — (Malum in Se — Malum Prohibitum). — This rule, thus essential to the orderly administration of jus- tice, is practically harsh when applied to what is only malum prohibitum. But generally in the criminal law it is not specially so; because most indictable wrongs are mala in se, so that if offenders do npt know that the law of the land forbids their acts, they are still conscious of violating the "law written in their hearts. " ^ And they have little ground to complain when unex- pectedly called to receive, in this world, some of the merited punishment which they hoped only to postpone to the next.® An illustration of the severity of the rule is — § 296. 1. Statutes impossible to be known. — Statutes, in 1 See 1 Story Eq. Jur. § 110 et seq. ; Cook, 39 Mich, 236, 33 Am. E. 380; also an article in 23 Am. Jur. 146, 371. Tliompaon v. S. 26 Tex. Ap. 94; Grum- 2 1 Hale P. C. 42 ; 1 Enss. Crimes, 3d bine v. S. 60 Md. 355 ; S. v. Welch, 73 Eng. ed. 25 ; Wilson «. The Mary, Gilpin, Mo. 284, 39 Am. E. 515. And see Web- 31 ; Eeg. c. Price, 3 Per. & D. 421, 11 A. ster ». Sanborn, 47 Me. 471. & E. 727 ; Eex v. Esop, 7 Car. & P. 456 ; » Forwood v. S. 49 Md. 531 ; Hoover C. V. Bagley, 7 Pick. 279 ; Beg. v. Good, v. S. 59 Ala. 57 ; Green v. S. 59 Ala. 68 ; iCar. &-K. 185; Rex t'. Soleguard, Andr. P. v. Weed, 29 Hun, 628; Weston a. C. 231 ; Rex v. Thomas, 1 Russ. Crimes, 3d 111 Pa. 251. See Stat. Crimes, § 805, Eng. ed. 614 ; Rex v. Collier, 5 Car. & P. 820-825 ; post, § 298 ; Chaplin v. S. 7 Tex. 160; Shattuck «. Woods, 1 Pick. 171; Ap. 87; Schuster u. S. 48 Ala. 199; S. u. Lincoln v. Shaw, 17 Mass. 410 ; The Goodenow, 65 Me. 30. Joseph, 8 Cranch, 451 ; Hurt v. S. 19 Ala. * Broom Leg. Max. 2d ed. 190 ; 4 Bl. 19; Eeg. V. Hoatson, 2 Car. & K. 777; Com. 27 ; 1 Spence Eq. Jiir..632, 633. Walker v. S. 2 Swan, Tenn. 287 ; Whit- ^ Eom. ii. 15. And see ante, § 10, 11, ton V. S. 37 Missis. 379 ; Winehart v. S. 210, 287, 288. 6 Ind. 30; McConico ». S. 49 Ala. 6, 8 ; * And see observations in S. v. Boyett, Derixson v S. 65 Ind. 385 ; U. S. v. Cargo 10 Ire. 336, 343, 344 ; and U. S. v. Fouf of Sugar, S Saw. 46 ; Davis v. C. 13 Bush, teen Packages, Gilpin, 235, 249, 250. 318; S. 0. Bryson, 81 N. C. 595; P. v. 168 CHAP. XIX.] MISTAKE OF LAW AND FACT. § 297 the absence of any provision to the contrary, take effect through- out the country on the first moment of the day of their enact- ment ; ^ and thereon they are operative in localities so remote as to render any knowledge of their existence impossible.^ Thus, — 2. Embargo — Penalty. — A vessel having sailed in disobedi- ence of an embargo act, so soon after its passage that the master could not know of it, he was still held to have violated it with- out legal excuse.^ This is a strong case; because the thing done was only malum prohibitum. In another case, where the court deemed the transaction malum in se, it decided that a newly imposed penalty for a breach of prior impost laws may be recov- ered though the party was not informed of the statute when he did the wrong. * Yet — 3. Mitigation of Punishment. — The court will sometimes make its sentence less by reason of the prisoner's ignorance of the law.^ And — 4. Pardon. — In England, where one was convicted of a mali- cious shooting on the high seas, under a statute he could not have known of, the judges recommended a pardon. But it does not appear that this was from any doubt of the lawfulness of the conviction.* To the foregoing doctrines there are some — § 297. Apparent Exceptions, not Meal : — 1. Condition of Mind. — There are crimes which cannot be committed of general malevolence, but they require a particular 1 Stat. Crimes, § 27 et seq. them be brought home in some other way ^ The Ann, 1 GaUis. 62 ; Branch Bank to the person charged with their violation." of Mobile v. Murphy, 8 Ala. 119 ; Heard p. 27. Accidentally this case was omitted V. Heard, 8 Ga. 380. And see Oakland v. from the early editions of this work; and Carpentier, 21 Cal. 642. an eminent judicial person, calling my at- 8 The Ann, 1 Gallis. 62. Contra, Ship tention to it, observes that he has " always Cotton Planter, 1 Paine, 23, Livingston, J. regarded it as a very sensible decision." admitting that ignorance of a law does not On the other hand, the hardships result-, excuse its breach. But, When Statutes ing from the more common doctrine are take effect. — He deems that statutes not greater than occur in many other in- should not be treated as of force until stances of actual ignorance of the law ; there has been time to promulgate them, and it is not quite plain how a judge, who (As to which see Stat. Crimes, § 28-32.) expounds the laws and does not make Concerning the question in controversy he them, can bend the strict rule in these says : " As it regards laws of trade, . . . cases when he cannot in the others, the court thinks it cannot greatly err in » U. S. v. Fourteen Packages, Gilpin, saying that such laws should begin to 235, 249. operate in the different districts only » Rex v. Lynn, 2 T. R. 733. from the times they are respectively re- « Rex v. BaUey, Russ. & Ry. L See ceived, from the proper department, by Rex v. Thomas, 1 Russ. Crimes, 3d Bng. the collector of customs, unless notice of ed. 614. 169 § 299 THE REQUIRED EVIL INTENT. [BOOK IV. evil condition of the mind, existing in actual fact. And igno- rance of the law, the same as any other cause, if it renders the special state of mind impossible, takes away the offence. Thus, — 2. Larceny — exists only where there is an intent to steal. And an indispensable element in this intent is the knowledge that the property taken does not belong to the taker. Therefore if all the facts concerning the title are known to him, and so the question is simply of law whether or not the property is his, still he may show, and it will be adequate in defence, that he honestly believed it his through misapprehending the law. ^ And — §298. 1. Malicious Mischief — is the same. ^ Thus, — 2. Pulling down House. — On a trial under the English statute to punish those who in a riot "pull down, &c., any house," it was ruled that the offence was not committed by defendants who truly believed, though erroneously, -^understanding the facts, but not the law in its application to them, — that the house belonged to one of them.^ So, — 3. "Maliciously," &o. — In Tennessee, it being made punish- able " wilfully or maliciously " to " throw down any fence, " one who in good faith throws down his neighbor's, believing it to be his own, — where the title under which he claims is really not sufficient in law, — is not indictable.* Again, — 4. Perjury — (False Oath under Advice). — If, as held under the early Bankrupt Act of the United States, a bankrupt submits the facts concerning his property fairly and honestly to counsel, through whose advice he withholds from his schedule items which truly in law ought to be on it, still, in swearing to the schedule, he does not commit perjury.^ Likewise, — § 299. OiHciai Corruption. — In proceedings against magis- trates and other quad judicial and sometimes niinisterial officers, 1 Rex V. Hall, 3 Car. & P. 409 ; Eeg. v. 6 xj. S. v. Conner, 3 McLean, 573. And Eeed, Car. & M. 308 ; C. v. Doane, 1 Cnsh. see Vol. II. § 1047. Further Points.— 5; S. w. Homes, 17 Mo. 379, 57 Am. D. For further matter relating to the subject 269 ; P. V. Husband, 36 Mich. 306 ; Evans of this section, see Hendricks v. Andrews, V. S. 15 Tex. Ap. 31 ; Vol. II. § 851. A 7 Wend. 152 ; C. o. Weld, Thacher Crim. mere pretence of claim set np by one who Cas. 157. But see Reg. v. Hoatson, 2 Car. does not himself believe it to be valid does & K. 777. And see Eeg. v. Good, 1 Car. not prevent his act of taking from being a & K. 185. Contra, and query, as to illegal larceny. S. v. Bond, 8 Iowa, 540. voting, McGuire v. S. 7 Humph. 54 ; and _2_Vol. n. § 998. on which see S. v. Boyett, 10 Ire. 336; 8 Stat. 7 & 8 Geo. 4, c. 30, § 8 ; Eeg. v. C. v. Bradford, 9 Met. 268 ; Reg. ». Lucy, Langford, Car. & M. 602, 605. Car. & M. 511 ; S. u. McDonald, 4 Harring. » Goforth V. S. 8 Humph. 37 ; to the Bel. 555 ; and S. i-. Hart, 6 Jones, N. C. same effect. Dye v. C. 7 Grat, 662. 389. 170 CHAP. XIX.J MISTAKE OP LAW AND PACT. § 301 for. acting corruptly in their office,^ their misapprehensions of the law may be set up in answer to the charge of corruption ; ^ unless, perhaps, the mistake was induced by gross carelessness or igno- rance, partaking of the criminal quality.^ In conclusion, — § 300. The Doctrine of this Sub-title — is not a real departure from the law's fundamental principle that crime exists only where the mind ig in fault. The evil purpose need not be to break the law ; it suffices if it is simply to do the thing which the law in fact forbids.* As to those crimes which require a special form of the evil intent, any ignorance of the law which precludes the entertaining of it has the effect to excuse the doer, but not an ignorance that the law punishes the wrong. II. Mistake of Fact. § 301, 1. Distinguished. — There is no necessity or technical rule, like that applicable to ignorance of law, requiring mistake' of fact to be dealt with contrary to abstract justice. Hence, — 2. Excuses. — In crime, the maxim for it is Ignorantia facti excusat,^ — expressed by Gould, J. :® "Ignorance or mistake in point of fact is, in all cases of supposed offence, a sufficient excuse."'' How the law qualifies this general truth we shall see as we proceed. 3. In Civil Jurisprudence, — where "the end proposed by the law is not the punishment of an offender but the mere reparation of a private loss or injury," the rule is often otherwise, — it being just "that he by whose act a civil injury has been occa- 1 Vol. II. § 972, 976. Calhoun, 3 Wend. 420 ; Cutter v. S. 7 2 Rex V. Jackson, 1 T. E. 653 ; Rex v. Vroom, 125 ; Leeman v. S. 35 Ark. 438, Barrat, 2 Doug. 465 ; Rex v. Cope, 7 Car. 37 Am. E. 44. & P. 720; Rex v. Corbett, Say, 267 ; Lin- » Rex v, Stukely, 12 Mod. 493 ; post, ford V. Fitzroy, 13 Q. B. 240; Reg. v. § 313 et seq. ,, . ^, „„t,t r. ,-, Badger, 6 Jur. 994 ; Rex v. Fielding, 2 * Post, § 309 ; S. .. Voight, 90 N. C. 741 ; Bur 719 ; C. v. Jacobs, 2 Leigh, 709 ; S. v. S. v. King, 86 N. C. 603 ; Dav,s v. Beason, McDonald, 4 Harring. Del. 555; S v.PoV 133 U. S. 333; Muller^ J- S- 82 Ala^42. ter, 4 Harring. Del. 556 ; Hoggatt v. Big- 60 Am. R. 731 ; iMcKibbm .. S^ 40 Ark. ley, 6 Humph. 236 ; Lining v. Bentham, 2 480 ; Green u. Griffin, 95 N. C. 50 , U. S. Bay, 1 ; S. «. Johnson, 2 Bay, 385; C. v. w. Leathers, 6 Saw. 17. Shedd, 1 Mass. 227 ; S. v. Porter, 2, Tread. « Broom Leg. Max. 2d ed. 190 ; 1 Story 694; S. V. Johnson, 1 Brev. 155; In re Eq. Jur. § 140. , 14 Eng. L. & Eq. 151 ; P. v. Powell, » Myers v. S. 1 Conn. 502, 63 N. Y. 88; Green v. Talbot, 36 Iowa, ' See 4 Bl. Com. 27; 1 Hawk. P. C. 499 ; S. V. Powers, 75 N. C. 281. See S. Curw. ed. p. 5, § 14, note; C. v. Drew, 19. V. McDonald, 3 Dev. 468; Mungeam v Pick. 179, 184 Wheatley, 1 Eng. L. & Eq. 516; P. v. § 302 THE REQUIRED EVIL INTENT. [BOOK IV. sioned should ultimately sustain the loss which has accrued, rather than another. " ^ To illustrate, — 4. Assault on Passenger. — One who has paid his fare in a public conveyance is entitled to be carried according to the ■ con- tract, ^ and plainly no mistake of fact will in a civil suit excuse the proprietor.^ But a conductor who, honestly and not incau- tiously believing one not to have paid, ejects him, is not liable criminally for the assault* Still, — § 302. 1. Limit of Doctrine. — We have secn that to constitute a crime the law required an evil mind or intent; but, except as to some special crimes, there is no defined sort of mental wrong uniformly necessary." Now, though a mistake of fact may and commonly does show the non-existence of the evil mind, it does not always or inevitably. And when, in spite of the mistake, the mental wickedness of the criminal law exists, the crime is com- •mitted.^ For example, circumspection in one's conduct is always a duty, and it is criminal to be careless therein.' Therefore if one contrary to his duty closes his eyes and refuses to see, he can- not excuse his conduct by showing that he did not discover that for which he would not look ; or if, short of this, he is criminally careless, or if he intends to do some different wrong, ^ he cannot justify his conduct on the ground of .the mistake.^ Again, — 2. Selling to Minor or Drunkard. — If a statute makes indict- able the selling of intoxicants to minors and drunkards, it by implication casts on the dealers the duty to inquire carefully into the ages and habits of their customers. Then if, without making due inquiry, a vendor is misled as to the fact, his mis- take will not protect him ; ^° while, by the better opinion, it will where his inquiry is duly thorough and honest. " And — 1 Myers v. S. I Conn, 502. And see » Withers v. Steamboat El Paao, 24 ante, § 286, 288 ; post, § 306, 307 ; Orne Mo. 204 ; Reg v. Prince, Law Rep. 2 C. C. V. Roberts, 51 N. H. HO. 154, 13 Cox C. C. 138; Dotson v. S. 62 ^ Long V. Home, 1 Car. & P. 610; Ker Ala. 141, 34 Am. R. 2 ; Brown v. S. 43 V. Mountain, I Esp, 27. Tex. 478 ; Bonker v. P. 37 Mich. 4 ; S. ». ' See, as illustrative, Jennings v. Great Newton, 44 Iowa, 45 ; Parker v. S. 55 Northern Ry. Law Rep. 1 Q. B. 7 ; Sharp Missis. 414 ; Kendrick v. S. 55 Missis. V. Grey, 9 Bing. 457 ; Bremner v. Williams, 436 ; S. v. Hays, 67 Mo. 692 ; Castleberry 1 Car. & P. 414. v. S. 62 Ga. 442 ; Darling v. Williams, 35 * S. V. McDonald, 7 Mo. Ap. 510. Ohio St. 58. 6 Ante, § 287-291 a. w Reich v. S. 63 Ga. 616, 620, 621 ; * See, for an illustration, Stat. Crimes, Goetz o. S. 41 Ind. 162 ; Swigart i». S. 99 §631, 631a. . Ind. 111. ' Post, § 313. 11 Crabtree v S. 30 Ohio St. 382; Adler 8 Post, t 323 et seq. v. S, 55 Ala. 16 ; Robinns «, S. 63 Ind. 235 ; 172 CHAP. XIX.] MISTAKE OF LAW AND PACT. § 303 3. The Burden of Proof — is on the party setting up the mis- take, to show it and its innocence ; the prima facie presumption being that what one does is with knowledge of the facts and intentional, — propositions to which the forms of statutes, and otherwise the law and evidence in various cases, furnish excep- tions.^ Hence, — 4. Alleging Knowledge. — Unless to cover statutory terms, the indictment need not allege the defendant's knowledge. '■* Pro . ceeding with these preliminaries before us, — § 303. 1. Defined. — The doctrine of this sub-title is that since - •an evil intent is an inseparable element in every crime, any such mistake of facts as, happening to one honestly endeavoring to dis- charge all legal and social duties, shows the complained-of act to have proceeded from no sort of evil ,in the mind, takes from it its indictable quality. A briefer expression is that a mistake of fact, neither induced nor accompanied by any fault or omission of duty, excuses the otherwise criminal act which it prompts. Thus, — 2. Acting from Appearances. — What is absolute truth no man ordinarily knows. All act from what appears, not from what is. If persons were to delay their steps until made sure, beyond every possibility of mistake, that they were right, ^arthly affairs would cease to move ; and stagnation, death, and universal decay would follow. All, therefore, must, and constantly do, perform what else they would not, through mistake of facts. If their minds are pure ; if they carefully inquire after the truth, but are misled, — no just law will punish them, however criminal their acts would have been if prompted by an evil motive, and executed with the real facts in view. Further to explain and partly to repeat, — 3. Consequences of Mistake. — The wrongful intent being the essence of every crime, ^ it necessarily follows that whenever one without fault or carelessness* is misled concerning facts, and Faulks V. P. 39 Mich. 200, 33 Am. R. 374 ; doctrine, with its exceptions, is stated in Moore v. S. 65 Ind. 382 ; Williams v. S. 48 detail ; Ward v. S. 48 Ind. 289 ; Werneke Ind. 306 ; Kreamer v. S. 106 Ind. 192. v. S. 50 Ind. 22. 1 Marshall v. S. 49 Ala. 21 ; Squire v. « Ante, § 287, 288. S. 46 Ind. 459 j Goetz v. S. 41 Ind. 162 ; " Post, § 313 et seq. "The belief must Bain u. S. 61 Ala. 75,79,80. Yet, more be honest and real, not feigned, and whether exactly, as to the burden of proof in crim- it is honest or feigned the jttry must deter- inal cases, see Crim. Pro. I. § 1048-1051, mine." Brickell, C. J. in Dotson v. S. 62 1096-1101. Ala. 141, 144, 34 Am. R. 2. a Crim.' Pro. I. § 521-525, wher? the 173 § 303 a THE REQUIRED EVIL INTENT. [BOOK IV. thereon acts as he would be justified in doing were they what he believes them to be, he is legally innocent ^ the same as he is innocent morally. ^ The rule in morals is stated by Wayland to be that if a man "know not the relations in which he stands to others, and have ^lot the means of knowing them, he is guiltless. If he know them, or have the means of knowing them and have not improved these means, he is guilty. "^ The legal rule is neatly enunciated by Baron Parke, thus: "The guilt of the accused must depend on the circumstances as they appear to him."* This doctrine prevails likewise in the Scotch law, ^ as it necessarily must in every system of Christian and cultivated law. Now, — § 303 a. MisapprehensionB. — If legal gentlemen, on and off the bench, always extended their survey over the whole legal field before coming to a conclusion on a particular question, this sub-title might close here. But by reason of shortness of the judicial vision, especially in modern times, we have from a few of the courts enough of denials of the universality of the doctrine, and attempts to engraft on it uncertain and conflicting excep- tions, to create in the books a confusion which a text-writer should endeavor to remove." One of the misapprehensions, which has had a strange effect on some of the tribunals, relates to the — 1 Myers r. S. 1 Conn. 502; Reg. c. AH- " Wayland Moral Science, 81. day, 8 Car. & P. 136 ; McNaghten's Case, " Reg. v. Thurborn, 1 D.en. C. C. 387 ; 10 CI. & F. 200 ; Anonymous, Foster, 265 ; P. w. Anderson, 44 Cal. 65 ; P. v. Lamb, Rex V. Levett, cited Cro. Car. 538 ; C. o. 54 Barb. 342 ; Yates v. P. 32 N. Y. 509 ; Rogers, 7 Met. 500, 41 Am. D. 458 ; Tom Patterson v. P. 46 Barb. 625 ; Reg. v. V. S. 8 Humph. 86; 1 East P. C. 334; Reg. Cohen, 8 Cox C. C. 41 ; P. v. Miles, 55 ». Parish, 8 Car. & P. 94 ; Rex v. Forbes, 7 Cal. 207, 209 ; Nalley w. S. 28 Tex. Ap. 387. Car. & P. 224 ; Reg. v. Leggett, 8 Car. & * Alison Crim. Law, 565 ; 1 Hume P. 191 ; C. V. Power, 7 Met. 596, 41 Am. D. Crim. Law, 2d ed. 449 ; McDonald's Case, 485 ; Rex v. Rieketts, 3 Camp. 68 ; Reg. v. 1 Broun, 238. ; James, 8 Car. & P. 292 ; C. v. Kirby, 2 Cush. ^ I once sought to correct some of the 577 ; U. S. V. Pearce, 2 McLean, 14 : Yates obscurities and misapprehensions by means V. P. 32 N. Y. 509 ; Farbach d. S. 24 Ind. 77 ; of a magazine article ; and I learned that, Rineman v. S. 24 Ind. 80 ; Core v. James, to the extent to which it was read, it was Law Rep. 7 Q. B. 135, 138 ; Steinmeyer not altogether unsuccessful. The foUow- ». P. 95 111. 383 ; S. v. Barrackmore, 47 ing is the more important substance of it, Iowa, 684 ; Marts v. S. 26 Ohio St. 162 ; re-edited with reference to the later cases. Gregory v. S. 26 Ohio St. 510, 20 Am. R. To render it more effective, while I have 774 ; Parmelee v. P. S Hun, 623 ; Carter w. condensed it in part and omitted parts, I S. 55 Ala. 181 ; Gordon v. S. 52 Ala. 308, have purposely retained some repetitions 23 Am. R. 575 ; Reg. v. Twoae, 14 Cox of the matter of the text. C. C. 327; Taylor v. C. 15 B. Monr. 11 ; 1. There are a few legal questions on Reg. B. Stephenson, 13 Q. B. D. 331, 15 which the entire profession seem forsworn Cox C. C. 679 ; S. V. Garris, 98 N. C. 733. to ignorance. Prominent among them are 2 Isham y. S. 38 Ala. 213, 218. those relating to the interpretation of sta^ 174 CHAP, XIX.] MISTAKE OP LAW AND PACT; §303 6 § 303 b. Pardoning Power. — Tn answer to the argument that it would be unjust for the law to punish men who had done all inteut to do one wrong when another fol- lows unintended, or a voluntary incapaci- tating or maddening of one's self by strong drink,, will, in many cases, stand in the stead of the specific criminal intent. But without some sort of mental culpability there is no" crime. If there was, another of the foregoing principles would still for- bid its being punished. All that any man can do is to intend well, and to employ his best faculties and put forth his full exer- tions to prevent evil. If, in spite of all, evil unmeant comes from his act, it can restrain neither him nor any other person to punish him. Hence, the State, whose will the courts expound, ought not to punish him. To illustrate, — 3. In densely populated localities where cows are not kept, people need pure milk as much as in the country. Without it, many an infant and occasionally an adult, who now live with it, would die. More- over, it is an important article of food for all ; and he who supplies it is a benefac- tor. So that in some of our States the selling of adulterated milk is made an in- dictable offence. And a dealer ought to be held to a high degree of caution as to the milk he sells. But in a particular in- stance there may be an adulteration which, however extreme his caution, he cannot know of or avoid. Thereon should the dealer be punished, if in view of the peril he does not leave the business to the detri- ment of the public, the punishment can have no effect to prevent the repetition of the same thing either by him or by any other dealer. Hence punishment should not be inflicted even if it were deserved. And when we consider also that it is not deserved, but is a gratuitous and wicked wrong to one whom everybody deems morally innocent, no fit word to char- acterize it is found In the language. 4. In an old and familiar instance, uni- versally accepted as law to the present day, one was adjudged not punishable for kill- ing in the night a member of his own household whom he mistook for a bur- utes. The rules on this subject are as completely within the domain of reason, as permanent, and as little changing as those on any of the topics which all admit £0 be of the most stable in the law. Yet few take pains to understand them, or especially to carry them in their thoughts while considering the various statutory questions which every day demand the attention of the legal practitioner and judge. Some illustration of this, as well as of other forms of blundering, will be seen in the expositions which follow. 2. Criminal jurisprudence differs in its aim from civil. While the_latter is for private redress, the former is for punish- ment. And it is universal doctrine in the law, assented to by every enlightened con- science, that one whose mind is free from wrong is not to be punished. To punish him would be unjust, and no State can, with impunity, commit injustice. But further than this, the proposition is I believe accepted among all who have reasoned on the subject, that even just punishment should not be inflicted except where it may have a restraining power. Paley goes still further, observing, it seems without contravening general doc- trine : " Punishment is an evil to which the magistrate resorts only from its being necessary to the prevention of a greater. This necessity does not exist when the end may be attained — that is, when the public may be defended from the effects of the crime — by any other expedient." Paley Moral Phil. b. 6, c. 9, par. I. This is not mere speculative reasoning, it is the doctrine of our criminal law. In the words of Lord Kenyon, " It is a principle of natural justice, and of our law, that actus non J'acit reuin nisi mens sit rea. The intent and the act must both concur to constitute the crime." Fowler v. Pad- get, 7 T. R. 509, 514. The doctrine is as familiar as it is fundamental, and authori- ties to it might be piled up to any extent. The precise act to be punishable need not in all cases have been specifically meant ; but in all it must have been the product of some sort of evil in the mind. For example, a mere Indifference or careless- ness, where carefulness is a duty, or an glar; "for he did it ignorantly, without intention of hurt to the said Frances.'^ Levett's Case, stated Cro. Car. 538. And in a not remote case m England, where 175 §303 6 THE REQUIRED EVIL INTENT. [book IV. they could to obey it, yet had been misled by a mistake of fact, some have pointed to the pardoning power as the remedy. But a young man deliberately shot his own father whom with apparently good rear son, yet contrary to the fact, he believed to been the point of murdering his mother, the jury under instructions from the court acquitted him. Reg. u. Rose, 15 Cox C. C. 540. Something like this was adjudged with us where a mistaken man needlessly wounded another in the supposed defence of his daughter. S. v. Nash, 88 N. C. 618. Compare with S. v. Downs, 91 Mo. 19. See post, § 305. Again, — 5. A Massachusetts statute having made it the duty of certain officers to arrest per- sons " found in a state of intoxication in any highway," &c., an officer who had "rea- sonable or probable cause to believe " one to be thus intoxicated, arrested him while in fact he was sober ; and, being indicted, for assault and battery thereby committed, -he was by the court adjudged to be jus- tified. After stating from Blackstone the common doctrine as to mistake of fact, Hoar, J. delivering • the opinion of the court, proceeded : " This principle is rec- ognized by all the best authorities upon criminal law. Thus, in Russell on Crimes, volume 1 (7th Am. ed.), it is said that ' without the consent of the will, human actions canhot be considered as culpable ; nor, where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences.' And in Hale's Pleas of the Crown, volume 1, page 15, the general doctrine is stated that ' where there is no will to commit an offence, there can be no transgression.' See also 1 Gab. Crim. Law, 4. And in all these writers, ignorance of fact, unaccompanied by any criminal negligence, is enumerated as one of the causes of exemption from criminal responsibility." C. v. Presby, 14 Gray, 65, 67. The terras of this statute were after- ward so changed as to make the arrest permissive instead of mandatory ; but the court held the officer still to be justified under the like facts. C. v. Cheney, 141 Mass. 102, 55 Am. R. 448. 6. The illustrations of this doctrine are numberless. It would be useless to particularize a tenth of what the books 176 contain. One varying in form from the foregoing is the following. If a person is insane, not in all his faculties, but simply to the extent of having insane delusions which he accepts as facts, then if a thing falsely believed by him is such as would were it true legally justify the taking of another's lite, and impelled by the mis- taken belief he takes it, he is not punish- able. So it has been clearly adjudged in Massachusetts, C. v. Rogers, 7 Met. 600, 41 Am. D. 458, and in England, Opinion on Insane Criminals, 8 Scott, N. R. 595, 1 Car. & K. 130, note, 10 CI. & F. (in Mc- Naghten's Case) 200, and the doctrine is everywhere accepted. Post, § 392, 393. Applying, it to a mistaken sane person, Hoar, J. speaking to the fact of the ar- rest, by an officer, of one supposed to be drunk when he was sober, said : " It would be singular indeed if a man deficient in rea- son would be protected from criminal re- sponsibility, and another, who was obliged to decide upon the evidence before him, and used in good faith all the reason and faculties which he had, should be held guilty." C. V. Presby, 14 Gray, 65, 68, 69. 7. Tha!t this doctrine should be applied the same to statutory as to common-law offences we saw in the last chapter. Ante, § 291 6. It is in fact thus applied by most judges, and if I had room for the full ex- planations I should not hesitate to say by all who have so considered the question as really to understand it. Thus, — 8. No one ever doubted that if a stat- ute says " Whoever does so and so shall be punished," it does not subject to pun- ishment an insane person, or a person under the age of seven years. But why not ■? The legislature has made no ex- ception. Is not the legislative will to be obeyed ? What right has a court to set up its notions against the express com- mand of a statute t If the statute is wrong, let the prosecuting officer enter a nolle prosequi ; or, if he does not choose to do this, let the governor pardon the of- fender after conviction ! Why look to the judges for mercy when their function is awful justice ' 9. Still, in spite of thege high consid- erations, what is thus assumed to be the CHAP. JLIX.] MISTAKE OP LAW AND FACT. § 303 5 alike under our national Constitution and the constitutions of the several States, either by express words or by construction the legislative wiU is disobeyed every time an in a duty bo perilous as that of an engi. insane person, or an infant below the age neer when he was conscious that he was of legal capacity, IS set at the bar of a incompetent." U. S, v. Taylor, 5 McLean, court for trial. There is no exception, 242,246. Here was the wicked mind ; and and no complaint that the judges act in the common-law rule, simple and pure, contempt of the legislative mandate. But was applied to the indictment under the there are localities m which - not always, statute the same as if it had been at com- but now and then and not in accordance mon law. So likewise was the common- with any intelligible rule yet discovered - law rule applied in the following case, but the judges, when an unfortunate person it was different. A statute required.the Who has done the best he could, yet has masters of steamboats passing from one been misled as to some fact, is brought be- port to another where a pos^office is es- fore them, having violated the letter of a tablished, to deliver to the postmaster, statute by act, yet not by intent, resort to within a specified time after an arrival the high considerations and turn h'im over all letters and packets destined for the to such mercy as he can find in the prose- place. Still it was held that if, for ex- cuting officer or the governor. The legis- ample, a letter is put into the hands of lative will, they tell us, is plain! The the captain's clerk, or otherwise conveyed prosecuting officer may disregard it, but on board, yet not within the captain's the judges should do better, and mind ! Or, if the governor chooses, they further inform us, he may accomplish by the pardoning power what he could not by his veto,' — the annulling of the statute! Now, — 10. Adapting the before-quoted lan- guage of Hoar, J. to this sort of judi- cial decision, we have the following : " It is singular, indeed, that a man deficient in reason is protected from criminal re- sponsibility for violating the letter of a statute, and another, who was obliged to decide upon the evidence before him, and used in good faith all the reason and faculties which he had; should be held guilty." 11. The jumble comes from an entire ignoring of the familiar and well-settled rule of statutory interpretation explained in a preceding chapter. Ante, § 291 6. Por illustration of the rule, — 12. It will be helpful to look into two cases in each of which the rule correctly appears. By a statute of the United States, any captain, pilot, or other officer of a steamboat " by whose misconduct, or negligence, or inattention to his or their respective duties " any life " may be de- stroyed, shall be deemed guilty of man- slaughter." And it was ruled to be no defence for such a person that his mis- conduct proceeded from ignorance of the busijbess. " He should not have engaged VOL. 1. — 12 personal control, and he has no knowl- edge of it, this ignorance of fact will excuse the non-delivery of it to the post- master, notwithstanding the unqualified terms of the statute. Here, the reader perceives, there was an ignorance of fact which proceeded from no negligence or culpability; therefore the common-law rule screened from statutory guilt the person who had committed a formal vio- lation of the legislative command. " It is not to be supposed," said Johnson, J. " that it was the intention of the law- maker to inflict a penalty upon the master of a steamboat in a case where he was ignorant that a letter had been brought upon the boat, either by the clerk or any person employed on board, and had not the means of ascertaining the fact by the use of reasonable diligence. This would be little less unjust than the disreputable device of the Roman tyrant who placed his laws and edicts on high pillars, so as to prevent the people from reading them, the more effectually to ensnare and bend the people to his purposes." U. S. v. Beaty, Hemp. 487, 496. 13, Let us now see how the doctrine is put by a court in a moment of forgetful- ness of the rules of statutory interpre- tation. It was in Massachusetts made polygamy and heavily punishable " if any person who has a former husband or wife living shall marry another person," except / 177 §303 6 THE REQUIRED EVIL INTfcNT. [book it, government is divided into three separate branches, — the execu- tive, the legislative, and the judicial ; and no one branch is per- in circumstances particularized, among wliicli is a seven years' absence unheard of. Rev. Stats. Mass. 1836, c. 130, § 2. Does this forbid marri?,ge after the former husband or wife is dead, in a case not within the exceptions of the statute ■? No one pretends that it does. Then, if a married woman has an insane delusion that her husband is dead, and under its influence marries another, the adjudged law in Massachusetts, the same as else.- where, holds her free from guilt. But is not an insane woman a " person " f Every court deems her such. So the sophistical argument would be that as the case is within the exact terms of the statute, the insane woman must be punished by the court or remitted to the governor for par- don. The legislature has spoken, and must be obeyed ! 14. The answer to this suggestion has al- ready been given ; namely, that the stat- ute should be interpreted as being, what it is, a part of a body of laws, and re- stricted in its meaning, like the other parts, where the established legal princi- ples require. But in spite of this view, — 15. When a Massachusetts woman, abandoned by her husband whom on good reason she believed to be dead, married another man, but instantly left him on hearing that her husband was alive, the court adjudged that she committed poly- gamy. It was conceded by the court that there is no guilt without criminal intent. But, said the learned judge ; " Whatever one voluntarily does, he, of course, intends to do. If the statute made it criminal to do any act under particular circumstances, the party voluntarily doing that act is charge- able with the criminal intent of doing it." The sophism of this proposition is dis- closed by a single flash of common sense. Though one is prima facie presumed to intend what he does, aqte, § 302 (3), it was the controlling fact if this case that, contrary to the presumption, this woman did not intend what she did ; what she did was to marry when her husband was alive, what she meant was to marry when he was dead. And it is not judicial for a judge to subvert justice with the presump- tion of a fact which at the same time he 178 acknowledges not to be true, when also it is the gist of the case that it is not true. This statute had the exception common in this class, and with reference to it the learned judge proceeds ; " On this sub- ject the law has deemed it so important to prohibit the crime of polygamy, and found it so difficult to prescribe what shall be sufficient evidence of the death of an absent person to warrant a belief of the fact, and, as the same vague evidence might create a belief in one mind and not in another, the law has also deemed it wise to fix a definite period of seven years' continued absence, without knowledge of the contrary, to warrant a belief that the absent person is actually dead." Here, again, the sophism appears. The fact of- fered in this case and rejected^ by the court was, that the woman believed her husband to be dead, not by reason of his absence, or its long "continuance, but from independent information and circum- stances having no relation thereto. And it is not judicial, in seeking for the law to govern the facts of a case, to banish from the contemplation those actually existing, and substitute surmised ones in their stead. Whether the evidence assumed in this ease to prove this fact should have satisfied the jury if the court had per- mitted them to pass upon it I do not know, but the court admitted that it proved it, and, according to the doctrine as commonly held elsewhere than in Mas-| sachusetts, the question should have beenV submitted to them. Dotson v. S. 62 Ala. I 141, 34 Am. R. 2; Squire v. S. 46 Ind. 459; Reg. v. Moore, 13 Cox C. C. 544; Reg. V. Jones, 11 Cox C. C. 358 ; Reg. v. Dane, 1 Fost. & F. 323. The learned judge continues the sophism, thus : " One, therefore, who marries within that time, if the other party be actually living, whether the fact is believed or not, is chargeable with that criminal intent, by purposely [the purpose, where death is honestly be- lieved to have occurred, is to do a thing which the law permits] doing that which the law expressly prohibits." C. u. Mash, 7 Met. 472, 474. 16. More recently, this exact question was considered by a bench of fourteen CHAP. XIX.] MISTAKE OP LAW AND PACT. § 303 J mitted to discharge the functions of another. If the executive power cannot repeal laws directly, so neither has it any just right English judges ; nine of whom held that polygamy is not committed in these cir- cumstances, and five dissented. The prin- cipal ground of the dissent appears to have been the presumption, assumed from the seven years' proviso, that the legis- lature meant it should be the only door of escape from the penalty of the main provision, — thus excluding the common- law exception of mistake of fact. And some of the minority seemed to find it difficult to reconcile the majority opinion with Reg. V. Prince, Law IJep. 2 C. C. 154, 13 CoxC. C. 138, — a case which I think I have shown elsewhere to have been admirably well decided. Stat. Crimes, § 631 a. The conclusive distinction did not occur to their thoughts. As insanity did not appear in this polygamy case, of course I could not know whether or not the minority would have deemed the pro- viso to have cut off the woman's escape on this ground, had she been proved in- sane. But there would have been just as much reason for it as for the view which they actually entertained. Reg. v. Tolson, 23 Q. B. D. 168, 16 Cox C. C. 629. 17.' The Massachusetts case, stated in the paragraph before the last, opened the way to other unfortunate decisions in the same State ; and the iniluence of aU, pro- ceeding as they did from a much-honored tribunal, has been, yet to a less degree, disastrous in a few of the other States. Hoping to contribute something, however insignificant in effect, toward keeping our American jurisprudence in the path of light, I proceed. In doing so, I have the encouraging fact that the right decision in the two cases of mistaken arrest by officers. Stated in the fifth paragraph, succeeded in date this polygamy one. Unfortunately for the hope, however, the case next to be Btated was subsequent also. 18. By a Massachusetts statute, " who- ever commits adultery shall be punished," in a way pointed out. Gen. Stats. Mass. 1860, c. 165, § 3. A woman married and lived awhile with her husband, but his habits were dissipated and he did not provide for her, so she was compelled to leave him. She read in the newspapers of the killing of a man of his exact name, in a drunken row, and had no suspicion that the person killed could be any other than her husband. Thereupon she rep- sented herself to be a widow. Eleven years after she last saw or heard from him, she and another man intermarried, both acting in absolutely good faith, with no doubt of the death of the former hus- band. But, in fact, he was alive, and the second husband was indicted for adultery committed by cohabiting under the sec- ond marriage. He was convicted, and the court held the conviction to be right. C. L-. Thompson, 11 AUen, 23. He had exerted his best faculties to obey the law ; the supposed widowed woman had waited the very decent time of eleven years ; he had done what the best judge on the bench would have done if he, too, had been sin- gle, and had loved her ; but all was of no avail. The majesty of the law must not be snubbed ! There is some advantage in Massachusetts in being_ insane. If this man had been blessed witli a mere insane delusion that the supposed facts were true, while the woman was cohabiting with her first husband, and had married her and cohabited with her also, he would have been "all right." 19. I am not aware of any Massachu- setts case which better merits the fame of key-stone in the new arch than the one last stated. 20. A man was indicted foi: being a common seller of intoxicating liquor con- trary to a statute making punishable the "common seller" thereof. Gen. Stats. Mass. 1860, c. 86, § 31. He offered to prove that what he sold was bought by him for non-intoxicating beer, that he believed it to be such, a.nd had no reason to suppose it to be otherwise. This evi- dence was rejected, — and a conviction which followed was sustained. The court committed a blunder which in such cases is common, by assuming that there are only two ways of dealing with such a stat- ute, — either, on the one hand, to require the prosecuting power to allege and prove knowledge, or, on the other hand, to for- bid the defendant to set up an honest mis- take of facts in justification. The learned judge observed that this " is not one of 179 § 303 6 THE EEQtriRED EVIL INTENT. [book IV. to undeftake indirect repeals by pardon, ■ With us, a pardon is properly grantable only for some special cause arising out of the By what form of words could it be done f The words actually employed are : " Who- ever is a, common seller of intoxicating liquor shall," &c. These words, by the common interpretation, would require the indictment simply to allege that the de- fendant did the unlawful act, thus making a prima, facie case against him, and the prosecutor 'to prove at the trial that he ■did.it, -cleaving the accused person to ex- cuse himself if he could, the same as in a case of insanity, or of a child too young for crime. And what can be more rea- sonable than that this is what the legis- lature means in any such case, even if we suppose its members to be ignorant of all rules of law ? If the words are, instead of the above, " Whoever is a common seller of liquor which he knows to be in- toxioating," the meaning is very diif erent. The indictment must conform to the statute; and the prosecutor, to make a prima Jaeie case, must prove . knowledge. And the same observation. wiU apply to any other change of the like sort. An- other method would be to introduce a clause that "this act shall be construed by the courts in accordance with the fundamental principles of the law." But ■without such a clause, the courts are re- quired to construe every statute in this way ; so that this method would be nugar tory. The result is that in Massachusetts there is no possible form of words whereby the legislature can make the law which it desires. The learned judge proceeds: "The salutary rule that every man is con- clusively presumed to know the law is sometimes productive of hardship in par- ticular cases." But that rule comes from necessity. Ante, § 294. Shall, therefore, unnecessary hardship be inflicted by the court ' It seems so. " Aud the hardship is no greater," he continues, " where the law imposes the duty to ascertain a fact." C. V. Boynton, 2 Allen, 160. This statute does not say it is the duty of the party to ascertain a fact. That is put on by the court in the interpretation. And to be consistent the court should add that the statute makes it the duty of the party to be sane, and; to be over seven years old ; 80 that if a child of six, or a lunatic es- those cases in which it is necessary to allege and prove that the person charged with the offence knew the illegal char- acter of his act." Of course this is so. Ante, § 302. The indictment need not aver, or the evidence show, that the de- fendant was not under seven years of age, or was not insane ; yet affirmative proof of either would be adequate in defence. Crim. Pro. II. § 669, 670. Neither, added the judge, was this a case " in which a want of such knowledge would avail him in defence." If the want of knowledge proceeded from carelessness, or a will to disobey the statute-or do any other wrong, or an indifference to its commands, this utterance, thus modified, would accord with the general doctrine pervading the criminal law. But if the mistake arose out of a, proper inquiry, prompted by a purpose to obey the statute, and do all things lawfully and well, it ought to ex- cuse the person misled thereby. Tet the learned judge continues : " If the defen- dant purposely sold the liquor, which was in fact intoxicating, he was bound at his peril to ascertain the nature 'of the article which was sold." This is a different doc- trine from that laid down where an officer arrested a man believed tobe drunk while he was not. Ante,ipar. 5. So, probably, thought the judge, who proceeded: "Where the act is expressly prohibited, ■without reference to the intent or pur- pose, and the party committing it was under no obligation to act in the premises unless he knew that he could do so law- fully, if he violates, the law he incurs the penalty." Thus the case appears to be dis- tinguished from the one of arrest. There was for the distinction no law except what reposes in the breast of a judge; But what a jumble ! Whence comes the idea that a legislature, making a statute, and knowing that by fundamental doctrine the world over there can be no crime without a criminal intent, proceeds " without re- ference to the intent or purpose," unless its ivords so state ■? Let us assume that the real meaning of the legislature was indisputably to frame just such a statute as this is when construed by the rules which prevail under the common law. 180 CHAF. XIX.] MISTAKE OE.LAW AND FACT. §304 particular instance. But if, whenever there is an unavoidable and honest mistake, it is the legislative will that the victim of the mistake shall be punished, the governor has no right to open a pardon-shop to frustrate this will. It is an attempt to repeal so much, of the law, and the power of repeal is with the legisla- ture. If the legislature does not mean conviction and punish- ment, the judiciary has no right to suffer such conviction. § 304. IMisinterpretatiou of Statute. — One of the common forms of blundering on this subject consists of the assumption, contrary to established rule, that a statute in mere general terms is to be interpreted as excluding exceptions; so that if it says nothing ijof mistake _ol fact, the. courts cannot except /.av case of. such mistake out of its operation. But the considerationB men-x tioned In the last .Chapter ^ and in the last note ought to., set this question at rest, i All statutes, are to be and constantly are inter- preted with reference, to .the. unwritten law, by the principles of which they are limited and extended, so as to preserve harmony in our juridical system and promote justice. ^ , ., caped from ^he hospital, should be caught at liquor-selling, such person must be punished. The statute is general, — " Whoever," — and it imposes on every person the duty to be old enough, and sound, enough, in mind, for crime ! . 21. I might go on with these cases — but why ? .The doctrine and the authori- ties appear, in condensed forms in the text of this chapter, and post, § 440, 441, 874, 1074-1076 ! II. § 664, 693, 922 ; Stat. Crimes, § 132, 351, 355-359, 632, i663-665, 730, 820-825, 877. Likewise the .subject constitutes a part of »,the expositions of many of the crimes, ^d there the au- thorities appear. ,22. As already, intimated, the Massar .eiiusetts doctrine has had a sort of infec- ' tious influence upon the jurisprudence of a few of the other States. For example, in Rhode Island C. v. Farren, 9 Allen, 489, was referred to as leading the decision in-S. '!. Smith, 10 R. I. 258. And see S. v. Hartfiel,. 24 Wis. 60. And we have a few^ Vber Apaerican cases of the like sort. But I do not think it would be compen- satory to occupy further space with this note. 1 Ante, § 291 6. 2 See the authorities at the sfcction just cited; also at ante, §291 (2); Stat. Crimes, § 88, 123, 131-144, 355-359, 632, 664, 665, 730, 806, 819-825, 877, 1021, 1022. Some of the cases, on the one side and on the other, are Reg. v. Cohen, 8 Cox C. C..41 ; Reg. V. Willmett, 3 Cox C, C. 281 ; HaL- Bted y. S. 13 Vroom, 552, 32 Am.,R. 247 ; S. V. Hartfiel, 24 Wis. 60 ; Humpeler v. P. 92IU.400; P.».:White,34Cal. 183; S.v. Smith, 10 R. I. .258 ; S. v. Hause, 71 N. C. 518 ; C. V. Hallett, 103 Mass. 452 ; Wil- liams ». S. 48 Ind. 306; Beckham o. Nacke, 56 Mo. 546 ; Jakes v. S. 42 Ind. 473 ; Goetz V. S. 41 Ind. 162 ; Betts v. Armstead, 20 Q. B. D. 771 ; Pain w. Bonghtwood,. 24 Q. B. D. 353, 16 Cox C. C. 747 ; P. o. Fulle, 12 Abb, N. C. 196 ; C.v. Uhrig, 138 Mass. 492; C.v. Barnes, 138 Mass. 511 ; Cobbey V- Burkg, il Neb. .157; U, S. ,». Route, 33 Fed. Rep. 246 ; C. v. Daly, 148 Mass. 428 ; P. v. Schaefeer, 41 Hun, 23. On an indictment under the Georgia stat- ute for permitting .a minor to play at bil- liards without the consent of his parents, McCay, J. put the doctrine pertinently^ thus: "To make a crime, there must he the uniBn of act and intent, or there must be criminal negligence. ... It is clear to us that if the defendant, after due dili- gence,, thought ^honestly that this young 181 §305 THE REQUIRED EVIL INTENT. [book IV. § 305. Further to illustrate — the general doctrine, — 1. Homicide under Mistake. — We should bear in mind, what has always been held, that a mistake of fact will justify a homi- cide, as explained in the note. ^ Within which doctrine, — 2. In Self-defence. — If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing, — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them, — he is legally guiltless of the homicide ; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. ^ In other words, and with reference to the right of self-defence and the not quite harmonious authorities, it is the doctrine of reason, and suffi- ciently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self- defence, he ■ is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be, the law will, not punish him though they are extreme measure. ^ in truth otherwise, and he has really no occasion for the man was not a minor, he is not guilty. If he did so think, after proper inquiry, the element of intent does not exist ; the act was done under a mistake of fact. In such a case there is no guilt and no crime. This is the doctrine of all the books, and is, besides, common-sense and common justice." Stern o. S. 53 Ga. 229, 230, 21 Am. R. 266. And see Reich «. S. 63 Ga. 616, 620, 621. 1 Ante, § 303 a, note, par. 4. 2 S. V. Scott, 4 Ire. 409 ; Rex v. Scully, 1 Car. & P. 319 ; S. „. Field, 14 Me. 244, 31 Am. D. 52 ; Grainger ik S. 5 Yerg. 459, 26 Am. D. 278 ; S. v. Rutherford, 1 Hawks, 457 ; S. V. Roane, 2 Dev. 58 ; Rex v. Hol- loway, 5 Car. & P. 524 ; 1 East P. C. 273- 277 ; 1 Hale P. C. 42 ; Broom Leg. Max. 2d ed. 200, 201 , 1 Gab. Crim. Law, 13 ; Oliver d S. 17 Ala. 587 ; U. S. v. Wiltber- ger, 3 Wash. C. C. 515 ; S. v. Shippey, 10 Minn. 223, 88 Am. D. 70 ; S. v. O'Connor, 31 Mo. 389 ; Yates ,i. P. 32 N. Y. 509 ; Smaltz V. C. 3 Bush, 32 ; Isham v. S. 38 Ala. 213 ; Stiles v. S. 57 Ga. 183 ; S. v. McGreer, 13 S. C. 464 ; Steinmeyer v. P. 182 95 lU. 383; Duncan v. S. 84 Ind. 204; C. V. O'Malley, 131 Mass. 423 ; HoUey v. S. 75 Ala. 14. Contra, majority of the court, in P. v. Shortet, 4 Barb. 460. And see McDaniel v. S. 8 Sm. & M. 401, 47 Am. D. 93 ; Fahnestock v. S. 23 Ind. 231. The case is not different if it is the life of a third person which is thus accidentally taken away. Plummer v. S'. 4 Tex. Ap. 310, 30 Am. E. 165. Where the facts, if they truly existed, would not excuse the homicide, no erroneous belief of them will. P. V. Cook, 39 Mich. 236, 33 Am. R. 380. 8 P. .;. Miles, 55 Cal. 207 ; Murray v. C. 79 Pa. 311,317; Roach v P. 77 111. 25; Holloway y. C. 11 Bush, 344; Richardson w S 7 Tex. Ap. 486 , Pharr v. S. 7 Tex. Ap. 472 ; Bode v. S. 6 Tex. Ap. 424 ; S. V. Fraunburg, 40 Iowa, 555 ; S. v. Ruther- ford, 1 Hawks, 457, 9 Am. D. 658 ; S. u. Scott, 4 Ire. 409, 42 Am. D. 148 ; U. S. t,. Wiltberger, 3 Wash. C. C. 515 ; Shorter D. P. 2 Comst. 193; P. v. Shorter, 4 Barb. 460; Oliver «. S. 17 Ala. 587; Carroll v. S. 23 Ala. 28, 58 Am. D 282 ; P. « Sulli- van, 3 Seld. 396 ; Monroe u S. 5 Ga. 85 ; CHAP. XIX.] MISTAKE OP LAW AND PACT. 305 3. Reducing to Manslaughter. — All the consequences of this doc- trine go with it. So that when the erroneous belief is of facts p. V. Anderson, 44 Cal. 65 ; Patterson w. P. 46 Barb. 625 ; P. v. Hurley, 8 Cal. 390 ; Yates V P. 32 N. Y. 509 ; Carico v. C. 7 Bush, 124; Philips v. C. 2 Duv. 328, 87 Am. D. 499 ; Adams v. P. 47 lU. 376 ; S. V. Potter, 13 Kan. 414 ; S. v. Bryson, Winst. ii. 86 ; Dawson v. S. 33 Tex. 491 ; Williams v. S. 3 Heisk. 376 ; S. v. Collins, 32 Iowa, 36 , Stoneman v. C. 25 Grat. 887 ; Berry ;;. C. 10 Bush, 15 ; P. v. Campbell, 30 Cal. 312 ; Lingo v. S. 29 Ga. 470 , C. v. Carey, 2 Brews. 404 ; S. v Sloan, 47 Mo. 604; Evans v. S. 44 Missis. 762; P. v. Scoggins, 37 Cal. 676 ; Scott v. S. 56 Missis. 287; Rogers t. S. 62 Ala. 170; S. V. Cain, 20 W. Va. 679 ; Panton o. P. 114 111. 505; p. V. Lennon, 71 Mich. 298, 15 Am. St. 259 ; Bell u. S. 20 Tex. Ap. 445; Jordan w. S. 11 Tex. Ap. 435; Smith V. S. 15 Tex. Ap. 338, 346 ; De Arman v. S. 71 Ala. 351 ; S. v. Sterrett, 68 Iowa, 76 , Jackson v. S. 76 Ga. 473 ; S. V Spaulding, 34 Minn. 361 ; S. v. Howard, 14 Kan. 173 ; S. v. Bohan, 19 Kan. 28, 55 ; Batten v. S. 80 Ind. 394. The expression in many of the cases is that the erroneous belief of facts must, to justify the act, proceed on reasonable grounds of belief. WaU 0. S. 51 lud. 453 ; S. n. Brown, 64 ' Mo. 367 ; Roach v. P. 77 111. 25 ; Murray V. C. 79 Pa. 311 ; S. . Burnham, 9 N. H. 34, 31 Am. be that the contents of the pamphlet were D. 217; Bradley v. Heath, 12 Pvck. 163, of a sort to render their publication in 22 Am. D. 418; Grimes v. iCoyle, 6 B. itself a violation of law, and one is not Monr. 301 ; Bodwell o. Osgood, 3 Pick, legally justified in doing from good mo- 379, 15 Am. D. 228; Swan v. Tappan, 5 tives and to promote a lawful end what Cush. 104 ; 2 Stark. Slander, 257, 258. the law forbids. This case appears to nie And see 50 Eng. Law Mag. 115. to stand in principle as follows : The man 2 C. 0. Kneeland, 20 Pick. 206, 216; was not mistaken as to any /art. The dif- UpdegrafE w. C. 11 S. & R. 394, 405, 406. ferenoe between him and the magistrate 3 Ante, § 300 ; post, § 344 ; Reynolds who found the facts was, not as to them, V. U. S. 98 U. S. 145 ; U. S. v. Anthony, but as to their tendency. It was a ques- 11 Blatch. 200 ; Scales u. S. 47 Ark. 476. tion of opinion. And looking at this ques- * Reg. w. Hicklin, Law Rep. 3 Q. B. tipu still more closely, we perceive it to be 360. As to which see also Steele v. Bran- really one of law. By the law, it is a nan. Law Rep. 7 C. P. 261. And see Ex crime to circulate printed matter adapted parte Bradlaugh, 3 Q. B. D. 509. The to excite the baser passions, prejudicially idea controlling Reg. v. Hicklin seems to to the public morals. If a man thinks 186 CHAP. Xli..] MISTAKE OF LAW AND PACT. § 312 § 310. Innocent Agent. — The doctrines of this sub-title ex- plain how it is that the books speak of crimes being committed through an " innocent agent. " Such an agent is one who does the forbidden thing moved by another person, yet incurs no legal guilt because either not endowed with mental capacity or not knowing the inculpating facts. ^ III. Ignorance and Mistake both of Law and Fact, § 311. Mixed Question. — In civil causes, it seems that if law ^ and fact are blended as a mixed question, or if one's ignorance of fact is produced by ignorance of law, the whole is treated as ignorance of fact, of which the party may take advantage.^ Per- haps this doctrine is analogous to one appearing under our first sub-title.^ If not, we must deem that it has not been much illus- trated on the criminal side of our law. No reason appears why it may not under some circumstances have a force in criminal cases.* § 312. Conclusion. — This discussion, though long, is neces- sarily not absolutely full; because many of the questions will require to be treated of under the specific offences, and these volumes are so crowded that the substantial avoiding of repeti- tion becomes indispensable. a certain publication is not obnoxious to > See, for various principles concern- tiiis inhibition, but the court think other- ing an innocent agent, Keg. v. Clifford, 2 wise, it is in him ignorance of the law. Car. & K. 202 ; Reg. v. Mazeau, 9 Car. & which does not excuse. For further par- P. 676; Eex v. Giles, 1 Moody, 166, Car. ticulars, and a review of this case, see a Crim. Law, 3d ed. 191 ; Anonymous, J. pamphlet entitled, " The Case of the Con- Kel. 53 ; Eeg. v. Bannen, 2 Moody, 309, fessional Unmasked," by " a barrister." 1 Car. & K. 295 ; Eeg. v. Bleasdale, 2 Car. London : Printed by A. Gadsby, 10 Crana & K. 765 ; Reg. v. Tyler, 8 Car. & P. 616 ; Court, Fleet Street, E. C. A copy was Eeg. v. James, 8 Car. & P. 292 ; Adams kindly sent me by some unknown person, v. P. 1 Comst. 173; C. o. Hill, 11 Mass. I cannot but think that the reviewer 136 ; Wixsou v. P. 5 Par. Cr. 119 ; Eeg. is mistaken in supposing that this case v. Butcher, Bell C. C. 6, 8 Cox C. C. 77 ; undermines fundamental principles in the Gregory v. S. 26 Ohio St. 510, 20 Am. R. criminal law. On the question whether, 774. on the whole, the publication was unlaw- = See 1 Story Eq. Jur. c. 5 ; and the ful, considering its object, its argumenta- article in 23 Am. Jur. 147, 371. tion, the methods of its circulation, and ' Ante, § 297-300. the like, I can have no opinion, it not * And see Reg. v. Bishop, 5 Q. B. D. being given in the reports. See C. v. Tar- 259, 14 Cox C. C. 404 ; S. v. Castle, 44 box, 1 Cush. 66. In this case, I happen to Wis. 670 ; S. v. Wells, 70 Mo. 635 ;.S. «. know, it was contended at the trial that Whitcomb, 52 Iowa, 85 ; Dorn v. S. 4 the obscene libel was published from Tex. Ap. 67 ; S. o. Waltz, 52 Iowa, 227. good motives; but the point was not much pressed in the upper court. 187 §314 THE REgUIRED. EVIL. INTENT. ^BOOK IV. CHAPTER XX. CARELESSNESS AND NEGLIGENCE. Compare — with ante, § 216-222. § 313. Car«i#BBneBB Criminal. — There is little distinction ex- cept in degree between a will to do a wrongful thing and an indifference whether it is done or not... Therefore carelessness is criminal; and within limits supplies the /place of the . affirmative criminal intent.^ Thus,; — ^i , , § 314. 1. In Homicide — Omission. — Every act of gross careless- ness, even in the performance of whatt is la,wi\i\,.SLnd,, a fortiori, of what is not lawful, and every negligent omission; of a legal duty, ■whereby death ensues, is indictable: either, as murder or. man- slaughter .^ To illustrate, ^T-._\ • 2. Manslaughter in Driving. — " If," says Archbold,^ " a person by careless or furious driving unintentionally run over another and kill him, it will be manslaugirfceir ; * or, if a person in command of a steamboat by negligence or carelessness unintentionally run down a boat, &c.,.and the person in it is thereby, drowned, he is guilty of manslaughter!" ^ ' So; — ' Sturges V. Maitland, Anthon, 153; S.u. Q'Brien.syroom, 169; Eeg. ». Mar- C. ». Eodes, 6 B. Monr. 171. tin, U Cox C. C. 136. An.d.seethe cases 2 Eex w. Carr, 8 Car. & P. l'B3 ; Reg. cited in the remaining notes to this aec- «, Haines, 2 Car. & K. 368; Kex v. Sulli- tion. In accordance, with the. text is the van, 7 Car. & P. 641 ; Errington's .Case, 2 Scotch law. Alison Grim. Law, 113. And Lewin, 217 ; Keg. u. Edwards, 8 Car. & P. see Vol. II. § 643, 656 b, 659-662 a, 664, 611 ; Ann v. S. 11 Humph. 159 ; U. S. v. 665, 668, 681, 690^693, 696. Preeman, 4 Mason, 505 ; Castell v. Bam- » Archb. New Crim. Pro. 9. bridge, 2 Stra. 854, 856 ; Kex v. Fray, 1 « Kex v Walker, 1 Car. & P. 320 ; Rex East P. C. 236 ; Reg. v. Marriott, 8 Car. u. Mastin, 6Car. & P.3964 Kex v. Grout, & P. 425 ; .U. S. V. Warner, 4 McLean, 6 Car. & P. 629 ; Rex v. Timmins, 7 Car. 463; Rex v. Smith, 2 Car. & P. 449 ; 1 & P. 499 ; Reg. v. Swindall, 2 Car. & K. East P. C. 264, 331 ; Hilton's Case, 2 230. Lewin, 214; Reg. 0. Barrett, 2 Car. & K. 6 Re^ v. Green,. 7 Car. & P. 156 ; Rex 343 ; S. V. Hoover, 4 Dev. & Bat. 365, 34 v. Allen, 7 Car. & P. 153 ; Reg. v. Taylor, Am. D. 383 ; Reg. v. Ellis, 2 Car. & K. 9 Car. & P. 672. And see Vol. IL § 662 a. 470; Etchberry ti. LevieUe, 2 Hilton, 40; 188 CHAP. XX.] CAKELE8SNESS AND NEGLIGENCE. § 814 3. Ignorant or Careless Medical Practice. — One who, whether an educated physician or not, undertakes to deal with another's life or health, " is," in the words of the same author, "bound to use competent skill and sufficient attention, and if he cause the death of the other through a gross want of either he will be guilty of manslaughter." i- As expressed by a learned English judge, " I call it acting wickedly when a man is grossly ignorant and yet affects to cure people, or when he is grossly inattentive to their safety." ^ Still, ignorance and conceit are sometimes ■ joined to a good intention, and the doctrines of the last chapter teach us that no one should be made a felon for an innocent mistake. Therefore some of our' American cases show a not improper leniency to persons considered by others as ignorant, whose well meant but mistaken medical practice has caused death.^ Yet we adhere to the substance of the doctrine just stated.* 4. other Homicides, — indictable because of their carelessness, are where men cause death by casting missiles into a thronged street ; * or by a reckless use of fire-arms, especially in an unlaw- ful or dangerous sport;^ Or, to* quote again from Archbold,' " If a man being on a horse which he knows to be used to kick wilfully ride hittl amongst a crowd of persons, and the horse kick a man and kill him, the rider is guilty of murder although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening ■ the persons around him.* But if a horse run away with his rider so that he has no con- trol over him, and the horse kill or injure a man, the rider is dispunishable." ® 1 Eex V. Spiller, 5 Car. & P. 333; Bex > » 3 Inst. 57 ; Foster, 263. And see V. Van Butchell, 3 Car. & P. 629 ; Eex v. Vol. II. § 691. WaiiamsoD, 3 Car. & P. 635 ; Rex v. « S. v. Vines, 93 N. C. 493, 53 Am. E. Long, 4 Car. & P. 398, 423 ; Eex v. 466 ; Eeg. v. Salmon, 6 Q. B. D. 79, 14 "Webb, 1 Moody & E. 405, 2 Lewin, 196; Cox C. C. 494; Eobertson «. S. 2 Lea, Eeg. V. Spilling, 2 Moody & B. 107. The 239, 31 Am. R. 602 ; Aiken v. S. 10 Tex. Scotch law is the same. Alison Crim. Ap. 610; S. w: Dugan, 1 Houst. Grim. Law, 116. 563; S. ». Hardie, 47 Iowa, 647, 29 Am. 2 Park, J. in Bex v. Long, 4 Car. & P. E. 496 ; Smith v. C. 100 Pa. 324. 3d«, 410. And see Vol. H. § 664, 685, ' Archb. New Crim. Pro. 9. 691, 693. 8 1 Hawk. P. C. 7th ed. c. 31, § 68. 8 C. V. Thompson', 6 Mass. 134 ; Bice And see Vol. II. § 656 5, 693. V. S. 8 Misso. 561. ' ' Gibbon v. Pepper, 2 Salk. 637 ; s. o. * S. V. Hardister,'38 Arfc. 605, 42 Am. nom. Gibbons v. Pepper, l- Ld. Baym. 38. E. 5; C. V. Pierce, 138 Mass. 165, 52 Am. This doctrine of negligence producing R. 264; S. v. Reynolds, 42 Kan. 320, 16 death is discussed by Mr. Bennett in 1 Am. St. 483. * Ben. & H. Lead. Cas. 42 et seq. 189 § 317 THE REQUIRED EVIL INTENT. [BOOK IT. § 315. The Entire Criminal Law — i.s pervaded by this doctrine of carelessness or negligence. It does not apply to all offences, but to all of a sort to admit of its application. Thus, — § 316. 1. Neglect of Legal Duty — (Scour River). — The bare neglect of a legal duty — as, of the owner of a river to scour it, whereby the neighboring lands are overflowed — may render one indictable for a nuisance.' In like manner, — 2. Negligent Escape. — An officer through whose negligence a prisoner in custody. escapes, must answer for the neglect as a crime.^ And — 3. Master's Liability for Servant. — In the words of Bayley, J. : " If a person employ a servant to use alum or any other ingredient the unrestrained use of which is noxious, and do not restrain him in tlie use of it, such person is answerable if the servant use it to excess, because he did not apply the proper precaution against its misuse." 3 Or, if a man's servant throws dirt into the street, the master may be indicted for the nuisance.* And the directors of a gas company were rightly convicted of nuisance where the act was by their superintendent and engineer, authorized to manage the works ; though themselves ignorant of the plan, which in fact was a departure from the one originally contemplated, and which they had no reason to believe discontinued.^ § 317. Why? — In these and similar cases, as shown in an- other chapter,^ the law casts upon the master a duty of care in the employment of his servants, and a constant supervision. The real thing punishable, therefore, is his own carelessness.^ But — No General Liability. — Where this element does not aid the prosecution, the rule is clearly established that iu the criminal 1 Rex V. Wharton, 12 Mod. 510; ante, Denman, C. J. observed : " It seems to § 216 ; post, § 433, 1075. me both common-sense and law that if 2 4 Bl. Com. 130; 1 Hale P. C. 600; 2 persons for their own advantage employ Hawk. P. C. Curw. ed. c. 19, § 28, 31 ; servants to conduct works, they must be ante, § 218 ; post, § 321 ; Vol. 11. § 1095, answerable for what is done by those ser- 1100. vants." p. 299. And see post,'§ 1075, 8 Rex V. Dixon, 3 M. & S. 11, 14. One 1076 ; Verona Central Cheese Co. v. Mur- may be liable criminally for his agent's taugh, 50 N. Y. 314. acts if he participates in them. C. v. » Ante, § 218-221. Gillespie, 7 S. & R. 469, 477, 10 Am. D. ' See Reg. v. Lowe, 3 Car. & K. 123, 4 *75. Cox C. C. 449, 7 Law Reporter, n. s. 375 * Turberville v. Stampe, 1 Ld. Raym. and note, 1 Ben. & H. Lead. Cas. 49; C. 26*. V. Morgan, 107 Mass. 199; MuUins v. « Rex V. Medley, 6 Car. & P. 292. Collins, Law Rep. 9 Q. B. 292. 190 CHAP. XX.] CARELESSNESS AND NEGLIGENCE. 320 law the principal is not answerable, as he is in civil jurisprudence, for the act of his servant or agent.^ § 318. 1. Vicious Beast at Large. — If one having an ox which he knows is wont to gore, permits it to go at large and it kills a man, he is indictable; though Mr. East tells us there is doubt what his precise offence is. " However, as it is agreed by all, such a person is at least guilty of a very great misdemeanor." ^ -So,— 2. Disorderly Conduct — about one's store, caused by selling liquor to be drank therein, has been adjudged to be criminal as well in the seller as in the purchasers.^ And — 3. Setting Fire — to an out-house so near a dwelling-house as to endanger it, is, if the dwelling-house is burned, a burning of it.* Again, — § 319. Rumor in. LibeL — One who publishes a libel — a statute permitting him to show its truth in defence — cannot take advantage of his own negligence, and introduce evidence that there was floating in the community a rumor which he was so incautious as to believe and act upon.^ § 320. Limits of the Doctrine : — 1. Particular Intent. — To offences requiring a particular intent this doctrine of carelessness can have but a limited application if any. Thus, — 2. Perjury — is probably not committed by any mere reckless swearing to what the witness would, if more cautious, learn to be false ; but the oath must be wilfully corrupt.^ So, — » Miller v. Lockwood, 17 Pa. 248 ; S. ^ g. „. White, 7 Ire. 180. And see V. Dawson, 2 Bay, 360 ; Hern v. Nichols, Graves v. S. 9 Ala. 447 ; Mitchell v. S. 7 Holt, 462 ; Rex v. Hnggins, 2 Stra. 882 , Eng. 50, 54 Am. D. 253 ; Butler v. Mo- ll. S. u. Halberstadt, Gilpin, 262, 270 ; Lellan, Ware, 219. Hipp V. S. 5 Blackf. 149, 33 Am. D. 463 ; » See 1 Hawk. P. C. Curw. ed. p. 429, S. V. Privett, 4 Jones, N. C. 100 ; Reg. o. § 1, 2 ; U. S. v. Shellmire, Bald. 370, 378 ; Willmett, 3 Cox C. C. 281, 283 ; Thomp- S. v. Cockran, 1 Bailey, 50 ; U. S. v. Bab- son V. S. 45 Ind. 495; Hanson v. S. 43 cock, 4 McLean, 113; C. r. Brady, 5 Gray, Ind. 550; Anderson v. S. 39 Ind. 553; 78; U. S. ». Atkins, 1 Sprague, 558. Con- Anderson V. S. 22 Ohio St. 305 ; Louis- tra, C. d. Cornish, 6 Binn. 249. And see ville, &c. Rid. v. Blair, 1 Tenn. Ch. 351 ; Jesse v. S. 20 Ga. 156, 169. See Vol. IL C. V. Mason, 12 Allen, 185 ; Reg. v. Ben- § 1045-1048. The New York Penal Code nett. Bell C.C.I; I East P. C. 331 ; S. v. CommiBsioners proposed, — " An unquali- Hayes, 67 Iowa, 27 ; Reg. v. Downer, 14 fled statement of that which one does not Cox c'. C. 486; Chisholm o. Doulton, 22 know to be true is equivalent to a state- Q. B. D. 736, 16 Cox C. C. 675. ment of that which one believes to be '' 1 East P. C. 265. false," — adding ; " See, in suppoi;t of the 8 S. V. Burchinal, 4 Barring. Del. 572. rule, P. v. McKinney, 3 Par. Cr. 510 ; 4 Gage V. Shelton, 3 Rich. 242. Bennett v. Judson, 21 N. Y. 238 ; C. v. ^ 191 § 322 THE EEQUIEED EVIL INTENT. [BOOK IV. 3. Larceny, — '■ which requires an intent to steal, clearly cannot be founded on a mere careless taking away of another's goods.^ Moreover, — § 321. 1. Degree of Criminality. — The law regards carelessness as being, what it is in morals, less intensely criminal than an absolute intention to commit crime. Thus,. — 2. Escape. — In the words of Blackstone, " officers who after arrest negligently permit a felon to escape, are punishable by fine ,• but voluntary escapes, by consent and connivance with the officer, are a much more serious offence." ^ So, — 3. Murder or Manslaughter. — A homicide may be either murder or manslaughter according as it was intended or careless.^ § 322. other niustrations — will find their more appropriate places in connection with other discussions. Cornish, 6 Binn. 249 ; Steinman v. M(v Hawk. P. C. diirw. ed. p. 196, 197, § 22, Williams, 6 Pa. 170; and opposed to it, 30, 31. And see ante, § 315, 316. U. S. V. Shellmire, Bald. 370." Draft of s 4 b1. Com. 192; Eex v. Hazel, 1 Penal Code, p. 51. Leach, 368, 1 East P. C. 236. And see 1 1 Hale P. C. 607. P. v. Enoch, 13 Wend. 159, 174, 27 Am. 2 4B1. Com. 130; 1 Hale P. C. 600; 2 D. 197; Oliver v. S. 17 Ala. 587; C. v. Keeper of the Prison, 2 Ashm. 227. 192 CHAP. XXI.J PRODUCING UNINTENDED RESULT. § 326 CHAPTER XXT. THE INTENT PRODUCING AN UNINTENDED RESULT. § 323. Evil result not meant. — The result of one's act is often different from what he intended. When it is, and is evil, the rule of morals excuses him if his motive was good. The rule of law is the same.^ But — § 324. Neglect to'learn — (La'w and Morals compared). — ■ If one neglects obvious means to discover the probable consequences of an act, the doing of it, should they prove to be evil, is the careless- ness explained in the last chapter.^ Yet the law, regarding only the more palpable things, does not notice all the nice distinctions which moral science would draw, and an enlightened conscience recognize ; therefore a man may be legally excusable for ill from a well-intended act when morally we should deem him in some sense guilty because of his neglecting to learn. On the other hand, — § 325. Good Result from Evil Motive. — If a man, meaning ill, unintentionally produces good, we hold him to be morally guilty. But he is not legally so in all circumstances ; because to consti- tute a crime, an act, from which the public has suffered, must be joined to the evil intent.^ And still it is true in law that an act may take its quality of good or evil from the intent which prompted it; and many things indifferent of themselves are punished because proceeding from an evil mind. But if the thing done is in its nature and consequences a positive good, it is difficult to see how it can be punished merely because the doer meant ill. As to which, — § 326. On Principle, — the court must look at the circumstances of each case, and decide whether under them all the thing done and the intent producing it are together a wrong which should be judicially noticed. And in deciding any particular case, recourse 1 Ante, § 286 et seq. 2 Ante, § 313 et seq. And see TardifE v. S. 23 Tex. 169. 8 Ante, § 204 et seq. VOL. I. — 13 ' 193 §327 THE REQUIRED EVIL INTENT. [book IV. must be had to former decisions, and to the analogies of the law. The vagueness of this proposition cannot be avoided ; for, consti- tuting a part of the general doctrine that a punishable wrong must be adequate in magnitude,^ the evil we are here considering does not admit of being measured in inches or weighed in pounds. But whatever we deem of this distinction, — § 327. Unintended Evil Result. — It is plain in principle, and settled in legal authority as to the offences which do not require a specific intent, that whenever a man meaning one wrong does another unmeant, he is punishable.^ Now, in such a case, is the legal guilt to be measured by the motive, as in morals, or by the act ? It must be by the one or the other. And the common-law rule measures it substantially by the latter, holding the person guilty of the thing done, where there is any kind of legal wrong in the intent, the same as though specifically intended; not always, however, guilty in the same degree of crime.^ Says 1 Ante, § 228. 2 Spies V. P. 122 111. I, 3 Am. St. 320, and cases to follow in this chapter. 8 S. y Ruhl, 8 Iowa, 447. See Eden Penal Law, 3d ed. 229, where the writer, admitting this doctrine to be law, disap- proves of it, and maintains that " every member of society hath a right to do any act without the apprehension of other inconveniences than those which are the proper consequences of the act itself ; for it i.s the right of every member of society to know, not only when he is criminal, but in what degree he is so." It seems to me that no man has ever a right to commit, on any terms, a wrong ; as, to murder another on condition of submitting himself to be hung. When one has fully entertained a criminal purpose, he is in morals to be treated as having done the thing meant. Kven as to the law, it was iu one case judicially observed that " anciently the will was reputed or taken for the deed in matters of felony , " the court adding, " though it is not so now, yet it is an of- fence and finajble." Bacon's Case, 1 Lev. 146. Evidently the party entertaining the criminal will cannot complain if he is punished for this mere intent. But society has no interest to interfere until injured by an accomplished act. And the injury to society is the same whether the thing done was intended or not. Therefore, 194 when society punishes him for what was done, he is not wronged unless his act was more evil than his intent. Bat if more evil, the case presents a difficulty .which the law seems not fully to have provided for. See also P i> Enoch, 13 Wend. 159, 174, 27 Am. D 197; Reg v. Camplin, 1 Car & K 746 , C. ». Call, 21 Pick. 515; i?ex v. Williams, 1 Moody, 107; Reg. v. Packard, Car & M. 236, Gore's Case, 9 Co. 81 a ; U. S. c Ross, 1 Gallis. 624. In S. u. Ruhl, cited above, we have the following illustration of the legal doctrine : Seduction — Mistake of Age — A statute made punishable one who without the consent of the parent or guardian takes or entices away " an un- married female under the age of fifteen years." And one on trial under this stat- ute, where the enticement was for de- filement, offered to show in his defence that though the girl was truly under fif- teen, she represented herself and he be- lieved her to be older, therefore he did not have the requisite criminal intent. But the judge rejected the evidence, and the ruling was sustained on appeal. Said Wright, C. J. " If the defendant enticed the female away for the purpose of defile- ment or prostitution, there existed a crim- inal or wrongful intent, even though she was over the age of fifteen. The testi- mony offered was, therefore, irrelevant; CHAP. XXI.] PRODUCING UNINTENDED RESULT. § 328 Rutlierforth : " There is so little difference between a disposition to do great harm, and a great disposition to do harm, that one of them may very well be loolied upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of a crime follows the same proportion ; it is greater or less according as the crime in its own nature does greater or less harm." i The doc- trine may otherwise be stated thus : the thing done, having pro- ceeded from a corrupt mind, is to be viewed the same whether the corruption was of one particular form or another.^ On this principle, — § 328. Homicide of Wrong Person. — If one, with the intent to kill a particular individual, shoots or strikes at him, and by accident the charge or blow takes effect on another whom it deprives of life ; ^ or gives poison to a person whom he means to kill, but who innocently passes it to another not meant, yet who takes it and dies , * or lays poison for another, and a third finding it takes it and dies ; ^ or if one attempting to steal fowls dis- charges a gun to shoot them, and thereby accidentally kills a human being ; ^ or if a jailer, with no design against life, confines a prisoner contrary to his will in an unwholesome room, not allow- ing him necessaries for cleanliness, whereby the prisoner contracts a distemper of which he dies ; ^ or if one, with the purpose of pro- curing an abortion, does an act which causes the child to be born so prematurely as to be less capable of living, and it dies from ex- for the only effect of it would have been Tex. 542 ; Wareham v. S. 25 Ohio St. 601 ; to show that he intended one wrong Rex v. Brown, 1 Leach, 148, 1 ^aa\, P. C. and by mistake committed another. The 231, 245, 274 ; Wills v. S. 74 Ala. 21 , S. wrongful intent to do one act is only ,v Payton, 90 Mo. 220; Clark v. S. 19 transposed to the other. And though the Tex. Ap. 495. And see Barcus v. S. 49 wrong intended is not indictable, the de- Missis. 17, 19 Am. K. 1 , Reg. v. Stopford, fehdant would still be liable if the wrong 11 Cox C. C. 643. done is so." p 450, 451. And see, as * Reg. v. Saunders, 2 Plow. 473. to the doctrine of this case, Stat. Crimes, ^ Gore's Case, 9 Co. 81 a ; Rex v. Jar- § 631 a, 632. vis, 2 Moody & R. 40; Rex v. Lewis, 6 1 Ruth. Inst. c. 18, § 11. Car. & P. 161 ; S. v. Fulkerson, Phillips, 2 And see Isham v. S. 38 Ala. 213, 219. N. C. 233. » Rex V. Plummer, 12 Mod. 627, 628 ; « 1 East P. C. 255 ; Eden Penal Law, Rex D. Jarvis, 2 Moody & R. 40 ; GoUiher 3d ed. 227. B C. 2 Duv. 163, 87 Am. D. 493, And ' Rex v. Huggins, 2 Stra. 882, 2 Ld see Yong's Case, 4 Co. 40a; Rex v. Raym. 1574. Hunt, 1 Moody, 93 ; Angell v. Smith, 36 195 § 330 THE REQUIRED EVIL INTENT. [BOOK l^, posure to the external world ,^ ^ the party unintentionally causing the death is guilty, the same as if he had meant it, of the felonious homicide. So, — § 329. 1. Robbery where Rape meant. — Where a man assaults a woman to ravish her, not to rob her, if to redeem her chastity she offers him money which he puts in his pocket, he commits rob- bery though he did not demand the money .^ In like manner, — 2. Arson of Wrong House. — If one in the attempt to burn a particular man's house accidentally burns another's;^ or if he shoots at poultry not Ijis own to steal it, and undesignedly sets a house on fire;* or, to defraud the insurance office, lights in his own dwelling the flame which communicates unmeant to his neighbor's,^ — he commits arson. For a like reason, olie becomes accessory to the burning of a house if he instigates the setting on fire of another, and the flames burn it.® 3. Unintended Results — might be multiplied indefinitely.'' Thus, if one administers poison to another to stupefy him, intend- ing to get possession of his property, but the man dies, it is mur- der .^ And it is the same where prisoners, as a part of their plan for escape, administer to a guard chloroform from which he dies.^ § 330. 1. Not Natural Result. — Looking closely into this doc- trine, we see that the evil of the intent and the evil of the act, added together, constitute what is punished as crime ; the same as elsewhere in the criminal law. And the present peculiarity of the doctrine is in its teaching that the intent and the act, which constitute the sum, need not be the natural or usual accompani- ments of each other, provided they in fact accompany each other in the particular instance. The consequence of which is that, — 2. Intent not of Sort Indictable. — If the intent is sufficiently evil in degree, and a result of the indictable sort comes casually from it, the crime ostensibly appearing is constituted, even where, had the exact thing meant been accomplished, no indictment 1 Reg. V. WB8t, 2 Car. & K. 784. « 2 Plow 47.5 a ; 2 East P. C. 1019 ; '' Rex II. Blackham, 2 East P. C. 711. Roscoe Crim. Ev. 272. 3 1 Hawk. P. C. Curw. ed. p. 140, § is ; 1 S. v. Jones, 79 Mo. 441 ; S. v. Clark, Eoscoe Crim. Ey. 272. 69 Iowa, 196. 4 Roscoe Crim. Ev. 272 ; 2 East P. C. » jg ^^ Wagner, 78 Mo. 644, 47 Am- E- 1019. 131. s Rex V. Proberts, 2 East P. C. 1030, » 8. v. Wells, 61 Iowa, 629> 47 Am. R. 1031 ; Rex V. Isaac, 2 East P. C. 1031 ; 822. Rex V. Scofield, Cald. 397 ; Rex v. Pedley, Cald. 218, 2 East P. C. 1026. 196 CHAP. XXI.] PRODUCING, UNINTENDED RESULT. § 332 would lie.^ For a crime does not of necessity and in all circum- stances require a greater evil of intent than a civil tort.^ So that when one meaning only a civil, or even only a moral wrong, does accidentally an unintended act to the public detriment, of suf- ficient magnitude and altogether of the kind punishable as crime, this result subjects the doer to indictment. But — § 831. Intent to be Malum in Se. — In these cases of an unin- tended evil result, the intent whence the act accidentally sprang must probably be, if specific, to do a thing which is malum in se w,i\.dL not TdQVQXj malum prohibitum? Thus Archbold says:* "When a man in the execution of one act by misfortune or chance, and not designedly, does another act for which if he had wilfully com- mitted it he would be liable to be punished, — r in that case, if the act he was doing were lawful, or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance ; but if malum in se it is otherwise." ^ To illustrate, — § 332. 1. To violate Game Laws — (Homicide) . — Since it is malum prohibitum, not malum in se, for an unauthorized person to kill game in England contrary to the statutes, if, in unlawfully shooting at game, he accidentally kills ■ a man, it is no more criminal in him than if he were authorized.* But — 2. To Bhoot at Another's Fowls, — wantonly or in sport, — an act which is malum in, se, though only a civil trespass, — and thereby accidentally to kill a human being, is manslaughter. If the intent in the shooting were to commit larceny of the fowls,- we have seen' that it would be murder .8. 1 See ante, § 327, note. sidering maintenance and champerty said : '^ Ante § 235, 236. " I' '^ alleged that such contracts were » Eeg.'w. Plummer, 1 Car. & K. 600 ; never considered as mala in se. This will Reg. V. Packard, Car. & M. 236 ; C. v. depend on determining whether they be Dana 2 Met. 329 ; C. v. Cone, 2 Mass. -perfectly indifferent in themselves, or 132 ; C. V. Judd, 2 Mass. 329, 3 Am. D. whether they involve any degree of pub- 54-1 East P C 25.5 257, 260 ; Eden lie mischief or private injury. If the Penal Law, 3d' ed. 227 ; ante, § 210, 286. latter, they, must belong, to the class of This doctrine, like majiy others necessary actions denominated mala m se, as this to be stated in the text, is the combined appears to be the distmction recognized result of general principles and Specific by the best writers on crmiina law. authorities, but it is in no case fully set And so the judges considered that main- down in words. tenance is malum in se. Key v. Vattier, 1 Archb. New Crim. Pro. 9. 1 Ohio, 132, 147. s 1 Hale P. C. 39 ; Foster, 259 ; Eos- » 1 East P. C. 260 ; Koscoe Crim. Ev. coe Crim. Ev. 710. Meaning of Malum 710. in Se — Maintenance.— As to what is ' Ante, § 328. malum in se, the Ohio Court while con- « 1 East P. C. 255. 197 § 334 THE BEQDIEED EVIL INTENT. [BOOK IV. § 333. Further of Malum in Se. — This SO formal distinction between malum in se and malum prohibitum is not quite apparent in principle, though something like it is. If any law, statutory or common, prohibits a thing, one can hardly be said to intend in- nocently the doing of it ; and should the intent to do it exist while casually the act terminates in a criminal result not in- tended, there seems in principle to be a completed crime. Still, as in these cases the intent may be sufficient though it is to inflict only a civil injury ,i so doubtless there may be circumstances wherein it will be inadequate when it is to do what would be in- dictable if done. The evil of the intent may be too small in degree,^ or it may be wanting in other respects. And into the consideration of a case in this aspect, the distinction of malum prohibitum and malum, in se might well enter.^ § 334. 1. How Intense the Evil — of the intent must be, to infuse the bane of criminality into the unintended act, it is not easy to state in a word. Evidently there may be cases wherein, as just intimated, it is too minute in evil for the law's notice, the same as where the act is its true echo, and where the culpability consists in carelessness.* So also, — 2. Degree of Crime. — As the evil intended is the measure of a man's desert of punishment, and the wrong inflicted on society is the measure of its right to punish him, and there can be no punishment except where the two combine,^ — it follows that in offences divided into higher and lower degrees, like murder and manslaughter in felonious homicide, the guilt of the unintending doer must be assigned to the higher or lower degree according as his intent was more or less intensely wrong.® And it is reason- able that where there is no low degree of a very aggravated offence, the law, leaning to mercy, should refuse to recognize as within it some cases which would be so regarded if there were a low degree.^ Thus, — 3. Homicide — Arson. — We have seen that unlawfully but not feloniously to shoot at the poultry of another, and thereby acci- dentally to kill a human being, is manslaughter ; to do the same 1 Ante, § 330. 6 Ante, § 210. 2 Ante, § 212 et seq. 8 Ante, § 321 ; S. v. Smith, 32 Me. 369, 2 And see and compare S. v. Stanton, 54 Am, D. 578. 37 Conn. 421, 424; C v. Adams, 114 ^ And see McConneU k. S. 13 Tex, Ap. Mass. 323, 19 Am. E. 362. 390. * Ante, § 216. 198 CHAP. XXI.J PRODUCING UNINTENDED RESULT, § 336 thing with the felonious intent to steal the poultry is murder.^ On the other hand, if the charge from the gun instead of killing the man set his house on fire, the burning would be arson only when the intent was to steal ; while, if the intent was simply to execute a civil trespass, no offence would be 'committed,^ the law' having no low degree of arson. But the distinction last men- tioned is very technical ; and possibly our American courts will not recognize it to its full extent. Again, — 4. Assaults on Foreign Ministers — are heavier offences than on our own private citizens. Thereupon one assaulting a foreign minister in ignorance of his official character has been held, in spite of the ignorance of fact, to commit the graver crime.^ And still an indictment for assaulting one of our own officers should charge the defendant with knowledge of his official character.* These two propositions seem not entirely to harmonize ; yet the just explanation may be that it is culpable carelessness not to know the high position of the diplomatic representative of a foreign power, or that the rule which assumes such knowledge is an essential element in the law of international courtesy. § 335. Offences requiring Special Intent. — In the nature of this doctrine of the transfer of the intent to the unintended act, it is applicable only to crimes flowing from general malevolence, not to those which are constituted only where there are two intents,^ or a specific one intent.^ § 336.' In Conclusion, — in explaining the very delicate and intricate topic of this chapter, the author has been obliged to confine himself largely to general doctrines, descending less into their special applications. Much of the latter will better appear in connection with the several offences. While most of the principles here brought to view are established beyond the contingency of overthrow, and all seem just, possibly some courts may discard or modify some of them ; as, for example, by requir- ing the act toward the proposed crime to have a natural tendency to produce the unintended result. This distinction would leave 1 Ante, § 328 ; Eden Penal Law, 3d « C. v. Kirby, 2 Cush. 577. ed. 227. ' See post, § 342. 2 Roscoe Crim. Ev. 272; 2 East P. C. « Pairlee v. P. 11 111. 1 ; Kex v. Sim- 1019 mons, 1 Wils. 329 ; Rex v. Webb, 1 W. Bl. 8 U S. V. Liddle, 2 Wash. C. C. 205; 19; Rex v. Summers, 3 Salk. 194; P. v. U. S. u. Ortega, 4 Wash. C. C. 531 ; U. S. Griffin, 2 Barb. 427; Rex i>. Scofield, Cald. Benner, Bald. 234, 240. But see V. S. 397, 4^03. V. Hand, 2 Wash. C. C. 435. 199 § 336 THE REQUIRED EVIL INTENT. [BOOK IV. unimpaired the doctrine that an attempt to murder a particular person, yet taking effect on the life of another, constitutes murder of the latter ; i but, on the other hand, we have an Irish case where a sailor went into a part of the ship in which spirits were kept, and, while tapping a cask to steal rum, accidentally and not meaning to burn the ship got his match in contact with the flow- ing liquor whereby a conflagration was created destroying the vessel, the majority of the Irish Court of Oi'own Cases Reserved held that the offence was not a statutory arson.'^ This doctrine can hardly be deemed sound in principle when Applied to offences not requiring a specific evil intent. The reasons have already been given.^ The Massachusetts Court has held that one does not commit assault and battery in driving over a person merely because his speed exceeds what is allowed by a city ordinsince.* But this does not contravene general doctrine. 1 Ante, § 328; Washburn v. S. 25 Ohio 23, 13 Cox C. C. 121, both for malicious St. 601 ; S. V, Gilman, 69 Me. 163, 31 Am. mischief. But the reader in considering B. 257 ; S. V. Dugan, 1 Houst. Crim. 563 ; these cases should bear in mind (what the S. 0. Johnson, 7 Or. 210; S v. Raymond, Irish judges did not) that the malice in 11 Nev. 98. And see Keg. v. Bradshaw, malicious mischief, unlike arson, is gen- 14 Cox C. C. 83 ; S. V. Sloanaker, 1 Houst. erally held to be special malice to the Crim. 62 ; S. v. Brown, 1 Houst. Crira. 539. owner particularly, and not general malice. . 2 Reg. V. Faulkner, 13 Cox C. C. 550, Yet a present English statute perhaps ren- Ir. Rep. 11 C. L. 8, 19 Eng. Rep. 573. ders this consideration unimportant. Vol. The case mostly relied on by the majority II. § 996, 997 . was the English one of Reg. v. Pembliton, ' Ante, § 327. Law Rep. 2 C. C. 119, 12 Cox C. C. 607, < C. v. Adams, 114 Mass. 323, 19 Am. referred to in Beg. v. Welch, 1 Q. B. D. R. 362. ' • 200 CHAP. XXII.J MOBB INTENTS THAN ONE, S 340 CHAPTER XXII. MORE INTENTS THAN ONE OPEEATING TOGETHER. § 337. Numerous Motives to One Act. — In the affairs of life, it is seldom a man does any one thing prompted by one motive alone, to accomplish one end. As, in the material world, all the laws of nature are constantly operating together ; so, in the world of human existence, all the motives about a man are continually exerting their power upon him. Not in either of these worlds do the impulses come singly, and single results follow. § 338. Law's Motives. — As general truth, the criminal law does not take cognizance of all the motives of men, but only of the particular ones within its jurisdiction, — just as it does not assume control over all their acts.^ And it is immaterial what motives operated on the mind of an accused person, or what were inoperative, provided the law's motives did or did not sway him. Hence, — § 339. Surplus Intents. — If, moved by more intents than one, a man does what the law forbids, some of the intents being ele- ments in the crime and others not, the latter do not vitiate the former, which in their consequences are the same as though they stood alone.2 Thus, — § 340. 1. Demolishing House. — Under the English statutes against demolishing houses, if one object of an attacking mob is to injure a person in the house, yet if an inferior object is to demolish it, the offence is committed because of this inferior intent.^ So, — ' , 1 Ante, § 10, 11. 42; Rex v. Davis, 1 Car. & P. 306; P. v. 2 Rex V. Cox, Russ. & Ry. 362 ; Reg. Carmichael, 5 Mich. 10, 71 Am. D. 769 ; u. Hill, 2 Moody, 30 ; Rex v. Batt, 6 Car. P. v. Adwards, 5 Mich. 22 ; Reg. u. Hamp, & P. 329 , Reg. V. Johnson, 11 Mod. 62 ; 6 Cox C. C. 167. See Reg. «. Doddridge, Reg. V. Geach, -9 Car. & P. 499 ; Rex v. 8 Cox C. C. 335. Hayward, 1 Russ. Crimes, 3d Eng. ed. » Rex v. Batt, 6 Car. & P. 329 ; Reg. 729, Russ. & Ry. 78 ; C. v. McPike, 3 v. Howell, 9 Car. & P. 437 ; Rex v. Price, Gush. 181, 50 Am. D' 727 ; S. v. Coclier, 5 Car. & P. 510. 3 Marring. Del. 554 , S. v. Moore, 12 N. H. 201 § 342 THE BEQUIRED EVIL INTENT. [BOOK IV. 2. 'Wounding to do Bodily Harm. — If one to rob another attacks him, and the more easily to accomplish the robbery wounds him with ' intent to do him grievous bodily "harm, the latter intent, though secondary, satisfies the statute on the latter subject.^ It is the same where the offender's chief aim is his own security. "If both intents existed, it was immaterial which was the princi- pal and which the secondary one." ^ Also, — 3. Obstructing Officer. — It will not excuse one for obstructing an officer in his public duties, that the motive was the officer's personal chastisement.^ Even — § 341. 1. That Ultimate Good — was the transgressor's leading motive, while yet he intended to do what the law forbade, or that in fact good attended or followed the doing, will not avail him.* Thus, — 2. Benefiting Ttvhile Obstructing Way — Repay, &o. in Forgery. — - On an indictment for obstructing a navigable river, the defendant cannot show that in other respects, and on the whole, his act worked an advantage to its navigation ; ^ or, for obstructing a road, that he opened a better one ; ^ or, for the nuisance of erecting a wharf on public property, that the erection was beneficial to the public ; '^ or, for uttering a forged bill, that he intended to provide for its payment ; ^ or, for passing a counterfeit bank-note, that he promised to take it back if found not genuine.^ Of course, in these cases, — 3. Fairly Deduoibie. — The evil intent must be fairly deducible from the facts and proofs.^" § 342. 1. More than One Intent required. — There are crimes which are constituted only when two or more distinct evil intents 1 Eeg. V. Bowen, Car. & M. 149 ; C. v. 6 C. v. Belding, 13 Met. 10 ; Vol. II. Martin, 17 Mass. 359 ; Kex u. Shadbolt, 5 § 1272. Car. & P. 504. 7 Respublica v. Caldwell, 1 DaU. 150. 2 Rex V. Gillow, 1 Moody, 85, 1 Lewin, 8 Reg. ,;. Hill, 2 Moody, 30. 57. But see, as to the doctrine of the text, » Perdue v. S. 2 Humph. 494 ; Vol. II. Kex V. Williams, 1 Leach, 529. § 598. 8 U. S. V. Keen, 5 Mason, 453. w Reg. v. Price, 9 Car. & P. 729 ; Rex 4 S. V. Hunter, 68 Iowa, 447 ; S. v. v. Boyce, 1 Moody, 29 ; Rex v. Holt, 7 Kaster, 35 Iowa, 221 ; Seacoid v. P. 121 Car. & P. 518 ; Rex v. Price, 5 Car. & P. 111. 623, 22 111. Ap. 279. 510; Rex w. Jarvis, 2 Moody & R. 40; 5 Rex V. Ward, 4 A. & E. 384, over- Rex v. Hayward, 1 Russ. Crimes, 3d Eng. ruling Rex v. Russell, 6 B. & C. 566. ed. 729, Russ. & Ry. 78 ; Rex v. Bailey, And see Reg. v. Betts, 16 Q. B. 1022, Russ. & Ry. 1 ; Rex v. Williams, 1 East 1037 ; Rex v. Watts, Moody & M. 281 ; P, C. 424 ; Reg. v. Sullivan, Car. & M. Worlds V. Junction Rid. 5 McLean, 425 j 209. Vol. II. § 1272. 202 CHAP. XXII.] MORE INTENTS THAN ONE. § 344 combine ; as, an intent to do wrong in general, or to do a particular wrong, and an ulterior purpose beyond. Thus, — 2. In Larceny, — there must be, first, an intent to trespass on another's personal property ; secondly, this not being alone suf- ficient,! the further intent to deprive the owner of his ownership therein must be added.^ And ^- 3. Burglary — consists of the intent, which must be executed, to break in the night-time into a dwelling-house ; and the further concurrent intent, which may be executed or not, to commit therein some crime which in law is felony.^ 4. other Like Cases — might be specified.* In all, the particular or ulterior intent must be proved in addition to the more general one, to make out the offence ; nothing will suffice as a substitute. Passing from these special offences, — § 843. Only General Evil Intent required — (Simply to do). — In crimes requiring only a general evil intent, if a man intends to do what the law, which every one is conclusively presumed to know,^ forbids, there need be no other evil intent.^ As already stated,'' it is of no avail to him that he means at the same time an ultimate good. § 344. Human Laws conflicting with Divine. — The highest ulti- mate good possible to be sought, is obedience to the divine law, with the blessings flowing therefrom. Yet even this aspiration does not in our earthly tribunals justify one in disobeying the human law. Nor can the judges while enforcing the human law admit that it is counter to the divine, for thus they would acknowl- . edge it to be nuU.^ The stream cannot rise higher than the foun- 1 Rex V. Crump, 1 Car. & P. 658 ; Rex 19 ; S. w. Nixon, 18 Vt. 70, 46 Am. D. 135 ; V. Dickinson, Russ. & Ry. 420 ; McDaniel S. v. Hunter, 8 Blackf. 212 ; Shover v. S. V. S. 8 Sm. & M. 401, 47 Am. D. 93. 5 Eng. 259 ; Brittin v. S. 5 Eng. 299 ; 2 Reg. V. Godfrey, 8 Car. & P. 563; Reg. v. Johnson, 11 Mod. 62; Rex v. Eex V. Wilkinson, Russ. & Ry. 470 ; S. v. Jones, 2 B. & Ad. 611 ; Needham v. S. Hawkins, 8 Port. 461, 33 Am. D. 294. 1 Tex. ig9; Reg. v Tivey, 1 Car. & K. 3 Rex V. Dobbs, 2 East P. C. 513; 2 704; Perdiie v. S. 2 Humph. 494; Reg. v. East P. C. 509, 514 ; J. Kel. 47 ; Anony- Price, 3 Per. & D. 421, 11 A. & E. 727 ; mous, Dalison, 22. Rex v. Fursey, 6 Car. & P. 81 ; Kelly ». i Rex V. Gnosil, 1 Car. & P. 304; Reg. C. 11 S. & R. 345 ; Reg. v. Holroyd, 2 V Ryan, 2 Moody & R. 213; S. v. Ab- Moody & R. 339; S. v Hart, 4 Ire. 246; sence 4 Port. 397 ; Rex v. Kelly, 1 Crawf. Nichols v. S. 89 Ind. 298 ; Downing v. S. & Dix C. C. 186 ; Morgans. S. 13 Sm. & 66 Ga. 160 ; U. S. v. Adams, 2 Dak. 305 ; M. 242 ; Rex v. Shaw, Russ. & Ry. 526 ; S. v. Smith, 93 N. C. 516. Reg. V. Morris, 9 Car. & P 89. ' Ante, § 341. 6 Ante, § 294. ° And see Bishop First Book, § 87, et 6 Walls V. S. 7 Blackf. 572 ; S. v. Pres- seq. nell, 12 Ire. 103 ; Forsythe v. S, 6 Ohio, 203 § 345 THE REQUIRED EVIL INTENT. [BOOK IV. tain, — no law of man can be superior to the Source of all Law. So that to pronounce a statute, for example, contrary to the law of God would be to hold it void, — a power not generally accepted as residing in our courts, Therefore an accused person cannot make the defence that he did the act in obedience to a law of God forbidding him to obey the law of the court.^ Upon this, Hume observes that " the practice of all countries is agreed." ^ The rule lies necessarily at the foundation of all jurisprudence ; yet, neces- sary though it is, it has shed the innocent blood of almost all the host of martyrs who have laid down their lives for conscience' sake. § 345. 1. Evil Intent Indispensable. — While, as explained in this chapter, there are permissible variations in the form of the; evil in the mind, we should still not forget that there is no crime without some sort of evil intent.* Even — 2. In statutory Offences, — the same as in those at common law, there must be an evil intent though the . statute is. silent on the subject. It is to be so construed in connection with the common law as, in favor of defendants,* to enlarge it by this requirement.^ To illustrate, — 3. stamp Act. — The English 12 G^o. 3, c. 48, § 1, made it felony to, write any matter or thing liable to stamp duty upon paper whereon had been written some other matter so liable, be- fore the paper had been again stamped, but made no mention, whether the intent need be fraudulent or otherwise. And it was ruled by Abinger, C. B., that the offence is not committed unless the intent is fraudulent.^. Still, — 4. Intent to disobey. — Where a man knows ^ all the facts, being presumed to know also the law, if by interpretation of the. statute no special evil intent is necessary, as not under all statutes 1 Specht V. C. 8 Pa. 312, 49 Am. D. Keg. v. Philpptts, 1 Car. & K. U2 ; U. S. 518; Reynolds v. U. S. 98 U. S. 145; v. Kirby, 7 Wal. 482; Richardson v. S. 5 XJ. S. V. Reynolda, 1 Utah, 226; ante, Tex. Ap. 470; Elliott «. Herz, 29 Mich. § 169, note. 202; Waddell u. S. 37 Tex. 354; Christian " 1 Hume Crim. Law, 2d ed. 25. v. S. 37 Tex. 475 ; Hilliard v. S. 37 Tex. « Ante, § 205, 287; P. v. Flack, 125 358; White v. S. 44 Ala. 409; Core i». N. Y. 324, 334. James, Law Rep. 7 Q. B. 135; Horan v. * Stat. Crimes, § 239, 240. S. 7 Tex. Ap, 183, 186, 192; Vaughn v. S. 6 And see Crim. Pro. I. § 521-524, 623- 3 Coldw. 102 ; Watson v. Hall, 46 Conn. 630. 204 ; Gault a. Wallis, 53 Ga. 675 ; S. v. " Reg. V. Allday, 8 Car. & P. 136. Peckard, 5 Harring. Del. 500. And see Stat. Crimes, § 132, 240, 351- ' S. v. Maloney, 12 R. I. 251. 362 ; Sasser u. S. 13 Ohio, 453, 483, 484 ; 204 CHAP. XXII.] MORE INTENTS THAN ONE. - §345 there is,' it is as already intimated ^ sufficient that he simply in- tends to do the thing which the statute foi-bids.^ A will to disobey a legislative command, or otherwise to violate the law, is always in legal contemplation evil,* however it may be in theology or morals.^ What in common language is termed a good motive, or honest belief in the right to do the thing, is in such a case of no avail with the courts.* Nor can one excuse himself by showing that he did it in sport.^ 1 Crim. Pro. I. § 522, 523. 2 Ante, § 343, 344. " S. V. Gould, 40 Iowa, 372; Eex v. Ogden, 6 Car. & P. 631 ; Fiedler v. Dar- rin, 50 N. Y. 437 ; P. v. Adams, 16 Hun, 549; Hill u. S. 62 Ala. 168; Halsted v S. 12 VrQom, 552, 32 Am. R. 247 ; U. S. v. Smith, 2 Mason, 143 ; S. v. Hollyway, 41 Iowa, 200, 20 Am. B. 586. * Reg. u. Walker, Law Rep. 10 Q B. 355, 13 Cox C. G. 94; XJ. S. v. Evans, 1 Cranch G. C. 149. 6 Wayman v. C. 14 Bush, 466 ; Stage Horse Cases, 15 Abb. P. R. n. s. 51. 8 U. S. V Anthony, 11 Blatch. 200; Minor v. Happersett, 53 Mo. 58. ' Hill V. S. 63 Ga. 578, 36 Am. R. 120. 205 347 THE REQUIRED EVIL INTENT. [BOOK IV. CHAPTER XXIII. NECESSITY AND COMPULSION. Compare with — Crim. Pro. I. § 493-498; Bishop Non-Con. Law, § 155-185; Bishop Con. § 577-609. § 346. 1. Necessity a Law. — Though, as we saw in the closing part of the last chapter, the law of God, in the aspect there explained, will not be accepted in our tribunals as of authority superior to the law of the land, there is another sort of the law of God which is paramount over all other laws. It is the law of necessity. As to it, man has no freedom of will ; he can do no otherwise than obey it. So that every law of man, common, con- stitutional, or statutory, has in it the implied exception, which is of the same force as though expressed, that obedience shall not be required when it is impossible. Consequently, — 2. Unavoidable Act not Indictable. — " No action," says Ruther- forth, " can be criminal if it is not possible for a man to do other- wise. An unavoidable crime is a contradiction; wiiatever is unavoidable is no crime, and whatever is a crime is not unavoid- able." 1 For example, if one in wljose hand is a weapon is seized by another, and in spite of resistance a third person is killed by it, he is not guilty of the homicide, but the other is.^ And always an act done from compulsion or necessity is not a crime.^ To this doctrine there can be and is no exception, it is universal. But — § 347. 1. The Details — of the doctrine require explanation. Prominent among which is the law of — 2. Self-defence. — It is self-defence where one resists the attack of another upon himself or a person within his protection. It will be explained in a chapter further on.* Passing by it here, — 1 Ruth. Inst, c 18, § 9; Reg v Dun- ' 1 Plow 19; Tate w S 5 Blaekf 73; nett, I Car. & K, 425 , The Generous, 2 Reg v. Bamber, 5 Q. B 279, Dav & M. Doda 322, 323 867 , S. v Dowell, 106 N C, 722. ^ 1 East P C. 225. * Post, § 836 et seq 206 CHAP. 2XIII.J NECESSITY AND COMPULSION. § 348 3. Save One's Life — (Treason) — In general, whatever it is necessary for a man to do to save his life is treated as com- pelled.i If one, therefore, joins with rebels from fear of present death, he is not a traitor while the constraint remains.^ But — 4, Less than Death. — An apprehension, though well grounded, of having one's property wasted or destroyed, or of suffering any other mischief not endangering the person, or, it is said, even of personal injury not extending to the life, will not justify a traitor- ous act.^ § 348. Killing Assailant and Third Person distinguished. — As we shall see in the chapter on self-defence, one attacked by a ruffian may kill him if he cannot otherwise preserve his own life.* But, says Russell,^ " according to Lord Hale a man cannot ever excuse the killing of another who is innocent under a threat, how- ever urgent, of losing his own life if -he do not comply : so that if one man should assault another so fiercely as to endanger his life, in order to compel him to kill a third person, this would give no legal excuse for his compliance.^ But upon this it has been observed "^ that if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion, there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirmity ; though, in case the party might have recourse to the law for his protection from the threats used against him, his fears will cer- tainly furnish no excuse for committing the murder."^ More 1 1 Russ. Crimes, 3d Eng. ed 660, 661 , tion, provided he did not yield too easily Oliver ii. S. 17 Ala. 587. to intimidation, but held out as long as in 2 1 East P. C. 70 j RejJ v Gordon, 1 such circumstances can be expected from East P. C. 71 ; Respublica ii. McCarty, 2 a man of ordinary resolution." Alison Dall. 86. And see 1 Russ. Crimes, 3d Crim. Law, 673, 1 Hume Crim. Law, 2d Eng ed. 664, 665. So, in the Scotch law, ed. 51. " a person is not guilty of treason who, * Rex v. McGrowther, 1 East P. C. 71 ; being in a part of the country that is com- Respublica v. McCarty, 2 Dall. 86. manded by rebels, yields them against his * 4 Bl. Com. 183, P. v Doe, 1 Mich. will supplv of money or arms and provi- 451. sions, — having no means of declining com- ^ 1 Russ. Crimes, 3d Eng. ed. 664. pliance, and being in the reasonable' fear « 1 Hale P C 51, 434. And see 4 Bl. of military execution if he refused" 1 Com. 30, 1 Broom Leg. Max. 2d ed. 8. Hume Crim. Law, 2d ed. 50 , Alison Crim. There are cases in which one of two mno- Law, 627. " Nay," says the latter writer, cent persons has no right to prefer his own '■ the' same will hold without any treason life to that of the other. U. S. v. Holmes, able insurrection if an ordinary mob, or 1 Wal Jr. 1. any unlawful assembly of persons, compel ' 1 East P C. 294. any individual by threats and violence to « 1 Russ. Crimes, 3d Eng ed. 664, accompany them on any unlawfiil expedi- 207 § 348 a THE REQUIRED EVIL INTENT. [bOOK IVi recently, Lord Denman laid down the broad doctrine " that no man from fear of consequences to himgelf has a right to make himself a party to committing mischief on mankind." ^ Within ■which principle, — § 348 a. 1. Killing to prevent Starving to Death. — As appear- ing in a not remote English case, cast-away seamen were in an open boat more than a thousand miles from land, without water, without food, with no sail in sight, and with only the slightest probability of rescue. This continued until hunger became ex- treme. Finally, to prevent the death of all, and with the hope that the survivors might be saveid, two of them killed a third, a boy, and ate him. Upon these facts, the two were indicted for murder, were convicted, and with the approbation of the full bench of judges were sentenced to die.^ As to which case, — 2. Murder or Manslaughter. — The two survivors did not con- sult their victim. No lots were cast ; they simply decided that the youngest and weakest should yield to superior age and strength. The boy did not resist ; perhaps he had not life enough in him to object. The real question, therefore, was one which in the court was not raised or even adverted to ; namely, whether the homicide was murder or manslaughter. The intent to take life existed in this case, but it may be as well an ingredient in manslaughter as in murder .3 The simple question is, was there " malice " ? * " The prisoners," said Coleridge, C. J., " were subject to terrible temp- tation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best." Again : " It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was ; how awful the- suffering; how hard in such trials to keep the judgment straight and the conduct pure. "We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal 1 Reg. V. Tyler, 8 Car. & P. 616. pense." Vol. II. § 625, 627, 672, 675, 677. ^ Reg. V. Dudley, 14 Q. B. D. 278, 15 In the present instance, there was abun- Cox C. C. 624. dant " aforethought," yet the " malice " 8 Vol. II. § 676, 695, 698, 699, 701, 708. was wanting; for plainly the prompting * What elevates a felonious killing to to the deed was not malice, but the frenzy murder, instead of leaving it manslaughw of starvation and the struggle of the anir ter, is "malice aforethought" or "pre- mal nature for life. 208 CHAP. XSIII.J NECESSITY AND COMPULSION. - § 349 to change or weaken in any manner the legal definition of the crime." i The use of this word " temptation " is, like the thing itself, very seductive. If we should apply the same word to an intentional killing in a mutual combat, or on a man's detecting another in adultery with his wife, wherein the courts have always held that the passion took away the malice, reducing the homicide to manslaughter, the result would be a marvellous revolution in our law. And if the anguish of starvation, the vision of a horrible death, and the other woes of the situation in which these men were cast, are not equal, in their clouding effect on the mind as banishing " malice," to the passion of a mutual com- bat, then this learned Chief-Justice terribly overstated them in the opinion of the court. To the writer, these considerations are conclusive ; the verdict should have been for manslaughter. And he submits that in acpord with this view was the action of the crown, for the report tells us it commuted the sentence to six months' imprisonment without hard labor. ^ There was nothing in the law requiring the judgment to be for murder rather than manslaughter; for the law simply demanded the ingredient of " malice " to raise the killing to murder, and there had been no judicial decisions declaring a mind in the fi'enzy of starvation to be impelled by malice, when one in the heat of a mutual combat is not. § 349. Taking Goods to save Life. — Very different from taking another's life to save one's own is the taking of his property for food to prevent starvation. Yet it is generally deemed by our text-writers that if one under an emergency, however extreme, supplies the demand of nature for food or clothing from another's possessions, he commits larceny.^ In reason, if one to save his own life may join himself to traitors, he may under the like necessity appropriate another's goods.* But for one to be justi- fied in so doing, the pressure of necessity must exceed mere poverty, however extreme, and be such as could not often occur in this country ; because the laws make provision for the support of the poor, even to the relief of an immediate want.^ 1 Page 279, 288, of the report in Q. * And see Broom Leg. Max. 2d ed. 8 ; B. D. Barrow i\ Page, 5 Hayw. 97. 2 Page 638 of Cox C. C, note. ^ Grotius, who with some other writ- ' 4 Bl. Com. 31 ; 1 Hale P. C. 54, .565; ers holds that such taking is not theft, Dalt. Just. c. 151, § 5; 2 East P. C. 698, puts the doctrine thus : "For among 699. theologians also it is a received opinion VOL. I. -14 209 S 351 THE EEQUIEED EVIL INTENT. [BOOK IT. § 3,50. Necessity varying with Cases — (The Test). — It is plain that what would justify the doing of one thing as necessary might not that of another. The special facts of each case must be con- sidered. The test would seem to be whether, under the circum- stances, the person was morally free in doing what he did, or whether the doing was produced by constraint of his will. Thus, ^ § 351. 1. stress of Weather — Embargo. — If, during an em- bargo, a vessel is by stress of weather compelled to put into a foreign port and there sell her cargo, for the preservation of the lives and property on board, she will not be adjudged guilty of a breach of the Embargo Act.^ So, — 2. Compulsory Breach of Revenue Laws. — Where, in Virginia, prior to the national Constitution, a tempest forced a vessel from Hampton Roads to Warwick before an entry was made at the custom-house at Hampton, there was held to be no breach of the revenue laws, — it further appearing that immediately afterward the entry was made, the duties were secured, and a permit was obtained.^ And if a merchant-ship from a foreign port is wrecked on our coast, the goods are not liable to forfeiture, though landed without a permit.^ For although revenue laws are in their nature rigid and unelastic, they " must," in the graceful language of Lord Stowell, " yield to that to which everything must bend, — to necessity." * And — that in sach a necessity, if any one take be made," Grotius de Jure Belli et Pacis, what is necessary to his life from any i. 2, 7-9, Whewell's Translation, i. 238- other's property, he does not commit 240. Necessary Iiabor — Lord's Day. theft ; of which rule the reason is, not — As to the necessity which will justify that which some allege that the owner laboring on the Lord's day, to save a of the property is bound to give so much growing crop from destruction and pre- to him that needs it, out of charity, but serve life, see S. v. Goff, 20 Ark. 289 ; this, that all things must be understood Vol. II. § 959. to be assigned to owners with some such ^ The William Gray, 1 Paine, 16. And benevolent exception of the right thus see TJ. S. v. Brig James Wells, 3 Day, 296, primitively assigned," — a reason which, 7 Cranch, 22; Anderson v. The Solon, if we receive it as good, is still not in con- Crabbe, 17. flict with the one stated in our text. He ^ Stratton v. Hague, 4 Call. 564. adds some " cautions " against carrying » xhe Gertrude, 3 Story, 68. And see ." this liberty too far." Among other Ripley v. Gelston, 9 Johns. 201, 6 Am. things he says, "that we must first en- D. 271 ; Peisch v. Ware, 4 Cranch, 347 ; deavor in every way to avoid this neces- Trueman k. Casks of Gunpowder, Thacher sity in some other manner ; as, by applying Crim. Cas. 14. to the magistrate, or by trying whether ^ The Generous, 2 Dods. 322, 323. And we cannot obtain the use of things from see Baptiste u. De Voluubrun, 5 Bar. & J. the owner by entreaty," and when all is 86. over, if " it is possible, restitution should 210 CHAP. XXIII.] NECESSITY AND COMPULSION. § 354 3. Compelled to atop in Street. — A city ordinance forbidding one to " suffer " a vehicle to " stop in any street " for more than twenty minutes, is not violated by an involuntary stopping.^ Again, — 4. Money seized in a Rebellion. — Where one has received pub- lic money to pay over to the government, then a rebellion arises and grows to war, if without his fault or negligence the rebel authorities seize and appropriate this money, he is excused.^ § 352. 1., The Necessity, — to excuse, must be urgent, and not created by the fault or carelessness^ of him who pleads it.* One under a duty "is," in the words of Story, J., " bound to do everything in his power to avoid an infringement of it. . . . And if there be any negligence or want of caution, any difficulty or danger which ordinary intrepidity might resist or overcome, or any innocent course which ordinary skill might adopt and pur- sue, the party cannot be held guiltless who, under such circum- stances, shelters himself behind the plea of necessity." ^ " I do not mean," said Lord St6well, " all the endeavors which the wit of man, as it exists in the acutest understanding, might sug- gest, but such as may reasonably be expected from a fair de- gree of discretion, and an ordinary knowledge of business." ^ Moreover, — 2. The Evidence — of the necessity must be clear and con- clusive.'' And the act must proceed no further than the emer- gency absolutely requires.^ § 353. Varying with Enormity of Crime. — Some of the forp- going illustrations are from cases quasi criminal or civil, and the rule plainly is not quite the same in the higher crimes. The proposition is reasonable that the greater the crime the greater must be the necessity to excuse it.* § 354. 1. The Procedure in Court— is Subject, like other things, to the great law of necessity.^" Thus, — 2. Delay of Trial. — Where a statute gave to the prisoner the right to demand his trial at the second term after being indicted, 1 C. V. Brooks, 99 Mass. 434. « The Generous, 2 Dods. 322, 324. 2 U. S. V. Thomas, 15 Wal. 337. ' Brig James Wells v. U. S. 7 Cranch, » Ante, § 216 et seq., 303, 313 et seq. 22 ; The Generous, 2 Dods. 322, 324 , The • *■ 1 East P. 0. 255, 277 ; Roscoe Grim. Josefa Segunda, 5 Wheat. 338. Ev. 570 ; The Joseph, 8 Cranch, 451 ; Reg. « Broom Leg. Max, 2d ed. 9. V. Dunnett, 1 Car. & K. 425. ' Ante, § 350. s The Argo, 1 Gallis. 150, 157 ; s. p. l" Crim. Pro'. I. § 493-498. The New York, 3 Wheat. 59. 211 § 355 . THE REQUIRED EVIL INTENT. [BOOK IV. one infected with small-pox was held not entitled to avail himself of it, because of the necessity of protecting people against a con- tagious and deadly disease. And it was observed that " necessity, either moral or physical, may raise an invariable exception to the letter of the Habeas Corpus Act. A court is not bound to peril life in an attempt to perform what was not intended to be re- quired of it." ^ So, — 3. The Allegation — in an indictment may be pressed from its usual to a special form by necessity.^ § 355. 1. Command — (Military OfBcer — Parent — Master — Principal). — The command of a superior to an inferior — as, of a military officer to a subordinate,* or of a parent to a child * — will not justify a criminal act done in pursuance of it ; nor will the command of a master to his servant, or of a principal to his agent ; ^ but in all these cases the person doing the wrongful thing is guilty, the same as though he had proceeded self-moved. And if a servant executes a lawful direction in an unlawful man- ner, he is responsible.^ 2. Mcirried Women — Legal Process. — The exception in favor of women under coverture obeying their husbands will be treated of in the next chapter. ' And perhaps persons acting under au- thority of legal process, and tiiereby protected, may be regarded as in some sense within the exception.'' 1 C. ». Jailer, 7 Watts, 366. 14 Mo. 340 ; C. v. Drew, 3 Cush. 279 ; Klif- 2 Crim. Pro. I. § 493 et seq. iield v. S. 4 How. Missis. 304 ; Schmidt v. 3 U. S. V. Jones, 3 Wash. C. C. 209, S. 14 Mo. 137 ; S. v. Bell, 5 Port. 365 ; S.- 220 ; C. V. Blodgett, 12 Met. 56 ; tJ. S. v. v. Bugbee, 22 Vt. 32; Curtis v. Knox, 2 Carr, 1 Woods, 480. And see Harmony Denio, 341 ; Brown v. Howard, 14 Johns. V. Mitchell, 1 Blatch. 549, 13 How. U. S. 119 ; C. v. Hadley, 11 Met. 66. 115. 6 Naish o. East India Co. 2 Comyns, * Broom Leg. Max. 2d ed. 11 ; post, 462, 469. ' § 367 et seq. 7 Broom Leg. Max. 2d ed. 69. 5 Hays V. S._ 13 Mo. 246; S. v. Bryant, 212 CHAP. XXIT.] COERCION BY HUSBAND, § 358 CHAPTER XXIV. THE husband's PRESUMED OB ACTUAL COERCION OF THE WIFE. § 356. Partly Artificial — are the doctrine and reasoning of this chapter, not wholly. For sometimes when a wife's affection for or fear of her husband are in law presumed to have con- strained her will, the real fact is so, not always. § 357. The Doctrine — is that marriage does not take from the wife her general capacity for crime ; but as it casts upon her a duty to her husband of obedience, of affection, and of confidence,! it compensates her by the indulgence that if through constraint from his will she carries her obedience to the excess of doing unlawful acts, she shall not suffer for them criminally. This privilege to the sex is unknown in Scotland,^ and is probably peculiar to the common law, often reproached in other respects for depriving wives of their rights. The Limits of the Doctrine — are, at some points, a little uncer- tain ; but the following propositions are believed to be reasonably well supported by the authorities. § 358. 1. First. Actual constraint, short of what is mentioned in the last chapter, imposed hy a husband on Ms wife, will relieve her from the legal guilt of any crime committed in Ms presence? 2. Whether Ezceptions — (Treason — Murder — Hobbery). — From this proposition the offences of treason and murder, and some add robbery,^ would appear from observations of judges and text-writers to be excepted." The reason usually assigned is 1 C. V. Lewis, 1 Met. 151. * Robbery. — That robbery furnishes '^ Alison Crim. Law, 668. no exception, see P. v. Wright, 38 Mich. 3 S. r. Parkerson, iStrob. 169; 1 Buss. 744; Miller t. S. 25 Wis. 384; Keg. v. Crimes, 3d Eng. ed. 18-25. In Arkansas, Dykes, 15 Cox C. C. 771. this is so by statute. But under the stat- * 1 Hawk. P. C. Curw. ed. p. 4, § 11 ; nte the coercion must be proved, or be C. v. Neal, 10 Mass. 152, 6 Am. D. 105; presumable from the circumstances; the Rex v. Knight, 1 Car.- & P. 116, note; mere presence of the husband will not ex- Rex v. Stapletpn, Jebb, 93 ; and the ref- cuse the wife. Preel o. 8. 21 Ark, 212; erences in the next note. Edwards v. S. 27 Ark. 493. 213 § 359 THE BEQUIBED EVIL INTENT. [book it. the enormity of the offences. But this reason seems unsatisfac- tory in principle ; and looking for authority, Mr. Greaves has ob- served that he finds " no decision -which warrants the position." ^ Therefore the true view probably is to disregard this distinction ; and to accept in place of it the one, better sustained, to be stated in our section immediately after the next. -^ § 359. 1. Secondly. Whatever, of a criminal nature, the wife does in the presence of her husband, is prima facie preswmed to be compelled by him ; ^ while not even a commdnd from him will ' See the two notes of this able Eng- lish editor in 1 Russ. Crimes, 3d Eng. ed. p. 18, 25. In the second note he says : "Before Somervile's Case, 26 Eliz., and Somerset's Case, a. d. I6I5, 1 find no ex- ception to the general rule that the coer- cion of the husband excuses the act of the wife. See 27 Ass. 40 ; Stamf. P. C. 26, 27, 142 ; Pulton de Pace Regis, 130; Br. Abr. Coron. 108 ; Fitz. Abr. Coron. 130, 160, 199. But after those cases I find the foEowing exceptions in the books : Bac. Max. 5?, excepts treason only. Dal- ton, c. 147, treason and murder, citing for the latter Mar. Lect. 12 (which I cannot find, perhaps some reader of some Inn of Court). 1 Hale P. C. p. 45, 47, treason, murder, homicide; and p. 434, treason, murder, and manslaughter. Kelyng, 31, an obiter dictum, murder only. Hawk. b. 1, c. I, § 11, treason, murder, and rob- bery. Bl. Com. vol. 1, p. 444, treason and murder ; vol. 4, p. 29, treason, and ■mala in se, as murder and the like. Hale, therefore, alone excepts manslaughter, and Hawkins introduces robbery, with- out an authority for so doing ; and, on the contrary, in Reg. v. Cruse, 8 Car. & P. 541, a case is cited where Burrough, J. held that the rule extended to robbery. [For an intimation that it does not ex- tend to robbery, see Rex v. Buncombe, 1 Cox C. C. 183.] It seems long to have been considered that the mere presence of the husband was a coercion (see 4 Bl. Com. 28), and it was so contended in Reg. o. Cruse ; and Bac. Max. 56, ex- pressly states that a wife can neit^ier be principal nor accessory by joining with her husband in a felony, because the law intends her to have no will, and in the next page he says : ' If husband and wife join in committing treason, the necessity 214 of obedience does not excuse the wife's offence, as it does in felony.' Now, if this means that it does not absolutely excuse, as he has stated in the previous page, it is warranted by Somervile's Case, which shows that a wife may be guilty of trea- son in company with her husband, and which would be an exception to the gen- eral rule 'as stated by Bacon. So also would the conviction of a wife with her husband for murder in any case be an exception to the same rule. Dalton cites the exception from Bacon without the rule, and Hale follows Dalton, and the other writers follow Hale ; and it seems by no means improbable that the excep- tions of treason and murder, which seem to have sprung from Somervile's and Somerset's Case, and which were proba- bly exceptions to the rule as stated by Bacon, have been continued by writers without adverting to their origin, or ob- serving that the presence of the husband is no longer considered an absolute excuse, but only affords a prima facie presumption that the wife acted by his coercion." 2 Rex V. Price, 8 Car. & P. 19 ; Davis V. S. 15 Ohio, 72, 45 Am. D. 559; S. v. Nelson, 29 Me. 329; Uhl v. C. 6 Grat. 706 ; Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, 53 ; Reg. (,•. Laugher, 2 Car. & K. 225; C. V. Trimmer, 1 Mass. 476; C. a. Neal, 10 Mass. 152, 6 Am. n. 105 J Mar- tin V. C. 1 Mass. 347 ; Tabler ». S. 34 Ohio St. 127 ; S. v. Boyle, 13 R. I. 537 ; C. V. Eagan, 103 Mass. 71 ; S. v. Wil- liams, 65 N. C. 398 ; J. Kel. 31. " Felons came to the house of Richard Dey, and Margery his wife; the wife knew them to be felons, but the husband did not, and both of them received them and enter- tained them, but the wife consented not to the felony. An. S. 31 Ind. 492 ; S. v. Stevens v. S. 31 Ind. 485, 99 Am. D. 634. 231 § 383 h THE REQUIRED EVIL INTENT. [BOOK IV. ciple the law is and must be so, while still in practice the direc- tions to the jurors should extend to various explanations differing with the particular cases. And — § 383 a. 1. Separating Law and Fact. — The judge's charge to the jury ^ should, as in all other cases, so separate fact and law that they may perceive clearly what it is which they are required to decide. Now, to explain here a little further, — 2. In Scotland, — the modern practice accords with that jast stated. Thus, in 1874, the Lord Justice-Clerk said to a jury: "The question is one of fact, that matter of fact being whether when he committed this crime the prisoner was of unsound miiid. The counsel for the crown very properly said that this was en- tirely for you. It is not a question of medical science, neither is it one of legal definition, although both may materially assist you. It is a question for your common and practical sense. Was he, in your opinion, a man of sound mind on the 25th of May ? " And proceeding to help them on this question, — 3. Scotch Views of Insanity. — He added : " It is entirely im- perfect and inaccurate to say that if a man has a conception intellectually of moral or legal obligation, he is of sound mind. Better knowledge of the phenomena of lunacy has corrected some loose and inaccurate language which lawyers used to apply in such cases. A man may be entirely insane and yet may know well enough that an act which he does is forbidden by law. Probably a large proportion of those who occupy our asylums are in that' position. It is not a question of knowledge, but of soundness of mind. If a man have not a sane mind to apply his knowledge, the mere intellectual apprehension of an injunction or prohibition may stimulate his unsound mind to do an act simply because it is forbidden, or not to do it because it is enjoined. If a man has a sane appreciation of right and wrong, he is certainly responsible; but he may form and understand the idea of right and wrong and yet be hopelessly insane. You may discard these attempts at definition altogether. They only mislead." ^ Still, — § 383 b. Impossible to Avoid. — Largely the English and Ameri- can judges adhere to old forms of charging the jury, handed down from times when the phenomena of insanity were imperfectly understood. As to minor shades of the idea their expressions more or less vary ; and doubtless not precisely the same meaning 1 Crim. Pro. I. § 976-982. 2 Miller's Case, 3 Couper, 16, 17, 18. - 232 CHAP. XXVI.J WANT OP MENTAL CAPACITY, INSANITY. § 383 5 is attached by all to the same words. But many seem to main- tain that if one is so disordered mentally as, while intellectually comprehending right and wrong, and knowing an act to be for- bidden and punishable by the law, to be still unable to adjust his conduct to the law and avoid doing the forbidden thing, he is to be punished if he does it, the same as though he was sane.i And one judge is reported to have said : " It will be a sad day for this State when uncontrollable impulse shall dictate a rule of action to our courts." 2 Now, if this class of our judges really mean what they say, they are conspiring to overturn an accepted, old, and fundamental part of the law of the land, and with it an immutable part of the law of nature. For as we saw in our chap- ter on " Necessity and Compulsion," ^ and as even all uneducated persons know, the law of necessity is the highest law known to man, and it is almost the only law which no man ever lived and broke. It is parcel of the law of the land, supreme over all other law, supreme over even our written constitutions ; and all our other laws are expounded as by implication containing the excep- tion that they shall not be deemed violated by any act which necessity has compelled. And that there is a solitary incumbent of any judicial bench in the United States, high or low, who really believes and means to assert that our law punishes any man for what he does under a necessity which it is impossible for him to resist, the present writer does not believe, and if he did believe it he could only speak of it as an unprecedented horror. It is matter upon which opinions differ, and upon which if the present writer had an opinion he would not state it unless he could prove it, whether or not, in fact, there is such a thing as an irresistible impulse to do what one knows to be wrong. And it is mere common charity to assume that those judges who seem to main- tain the unjust doctrine stated in this section, believe it for the reason that they utterly repudiate, as an ensnaring myth, the existence of the irresistible impulse. But whether such fact exists or not, many or most experts in modern times deem that 1 Flanagan v. P. 52 N. Y. 467, 11 Am. P. v. Hoin, 62 Cal. 120, 45 Am. R. 651 ; E. 731 ; S. V. Shippey, 10 Minn. 22.3, 88 S. v. Alexander, 30 S. C. 74, 14 Am. St. Am. D. 70; Anderson ti. S. 42 Ga. 9; 879; cases cited post, § 387 ; and some of Brinkley v. S. 58 Ga. 296 ; S. v. Pratt, 1 the cases cited post, § 384. And see Cun- Houst. Grim. 249 ; P. v. O'Connell, 62 ningham v. S. 56 Missis. 269, 31 Am. R. How. Pr. 436 ; S. v. Mowry, 37 Kan. 369 ; 360. S. V. Murray, 11 Or. 413 ; P. v. Carpenter, 2 g, „. Pagels, 92 Mo. 300, 317. 102 N. Y. 238 ; S. u. Scott, 41 Minn. 365 ; « Ante, § 346 et seq. 233 S 384 THE REQUIRED EVIL INTENT. [BOOK lY. it does, and no judge can avoid the duty of laying down the law- applicable to whatever the evidence tends to prove, whether the proof is really adequate or not.^ Therefore in the trial of this class of cases, the judge if he really means to attempt to over- turn a large section of the fundamental law of the land, should reject the evidence offered in proof of this species of insanity ; if he means to follow the law, he should submit the evidence to the jury, and cast the responsibility off his own shoulders upon them.^ Only a minority jof the insanity cases raise this sort of question ; for the majority, there is little to be objected to the — § 384. Common Form of Doctrine. — It is not in all the cases absolutely clear what, of the language addressed to the j,ury, is meant for pure law, and what of it is for mere practical sugges- tion. But either as the one or the other, the jury in the greater number of the cases are in substance directed to consider whether, when the prisoner committed the act, he was in a state to com- prehend his relations to others, the nature of the thing done, and its criminal character against, what he is. presumed to know, the law of the land ; ^ or, in another form of words regarded as in effect the same, whether in what he did he was of capacity to be conscious of doing wrong ; * or, in still other language, whether 1 Crim. Pro. I. § 978. he was doing an act that was wrong : and " For a continuation of this exposition, this course we think is correct, accom- see post, § 387. panied with such observations and ex- ' " The law of the land " seems to ex- planations as the circumstances of each press the precise legal idea according to particular case may require." lb. p. 602. the English judges. Opinion on Insane Lord Lyndhurst in one case employed the Criminals, 8 Scott N. R. 595. Yet as a words, " offence against the laws of God practical consideration they add : " If the and nature." Rex v. Offord,.5 Car. & P. question were to be put as to the knowl- 168 ; s. p. Mansfield, C. J. in Bellingham's edge.of the accused, solely and exclusively Case, 1 Collinson Lun. 636, Shelf. Lun. with reference to the law of the land, it 462 ; also McAllister u. S. 17 Ala. 434, 52 might tend to confound the jury, by in- Am. D. 1 80. This opinion of the English ducing them to believe that an actual judges was given in answer to questions knowledge of the law of the land was by the House of Lords, growing out of a essential in order to lead to a conviction ; discussion relative to the acquittal of Mc- whereas the law is administered upon the Naghten. It embraces several interest- principle that every one must be taken ing points on the law of insanity.- Besides conclusively to know it, without proof the report in Scott N. R., as above, it may that he does know it. If the accused was be found in a note to Reg. u. Higginson, \ conscious that the act was one which he Car. & K. 129, 130, also McNaghten's ought not to do, and if that act was at the Case, 10 CI. & F. 200. same thne contrary to the law of the land, ' The reader may consult, besides the he is punishable; and the usual course last note, the following cases ; S. w. Spen- therefore has been to leave the question cer, 1 Zab. 196 ; Roberts v. S. 3 Kelly, to the jury whether the party accused hnd 810 ; Reg. v. Oxford, 9 Car. & P. 525 ; a sufficient degree of reason to know that C. v. Rogers, 7 Met. 500, 41 Am. D. 458 ; 234 CHAP. XXVI.] WANT OF MENTAL CAPACITY, INSANITY. §385 he could distinguish between right and wrong with reference to what he was doing.^ Qualifications and variations of the modes of expression appear in the cases cited below, but the meaning and even the forms of words of most of them are embodied in these epitomizations. And some of these cases recognize, it is believed properly, the propriety of further and qualifying instruc- tions according to the circumstances. § 385. 1. ■ Identical Act. — The inquiry is directed to the par- ticular thing done, and not to any other ; because, as we have seen,2 a man may be responsible for some things while not for others.* Of course, also, — McNaghten's Case, 10 CI. & F. 200: Rex V. Offord, 5 Car. & P. 168 ; Free- man V. P. 4 Denio, 9, 47 Am. D. 216 ; P. V. Pine, 2 Barb. 566, 572 ; C. v. Hosier, 4 Pa. 264; Reg. v. Renshaw, U Jur. 615, 616 ; Reg. v. Higginson, 1 Car. & K. 129 ; Parker's Case, 1 Collinson Lun. 477, Shelf. Lun. 460 ; Bowler's Case, 1 Collinson Lun, 673, note. Shelf. Lun. 461 ; Martin's Case, Shelf. Luu< 465 ; McAllis- ter V. S. 17 Ala. 434; S. v. Huting, 21 Mo. 464 ; U. S. V. Shalts, 6 McLean, 121 ; P. V. Sprague, 2 Par. Cr. 43 ; U. S. v. McGlue, 1 Curt. C. C. 1 ; Loeffner v. S. 10 Ohio St. 598; Fisher u. P. 23 111. 283; P. v. Hurley, 8 Cal. 390 ; Bovard v. S. 30 Missis. 600 ; P. V. Coffman, 24 Cal. 230 ; WiUis II. P. 32 N. Y. 715; S. v. Windsor, 5 Barring. Del. 512; P. v. McDonell, 47 Cal. 134 ; Dove v. S. 3 Heisk. 348 ; P. i. Griffen, Edm. Sel. Cas. 126; P. v. Kleim, Edm. Sel. Cas. 13 ; P. v. Coffmau, 24 Cal. 230 ; S. V. Haywood, Phillips, N. C. 376 , S. V. Brandon, 8 Jones, N. C. 463 ; Reg. v. Davies, 1 Fost. & F. 69 ; Flanagan v. P. 52 N. Y. 467, 11 Am. R. 731 ; P. v. Mont- gomery, 13 Abb. Pr. N. s. 207 ; Macfar- land's Case, 8 Abb. Pr. sr. ». 57, 89 ; Cole's Case, 7 Abb. Pr. n. s. 321 ; Wagner v. P. 4 Abb. Ap. 509, 511 ; Willis v. P. 5 Par. Cr. 621 ; Reg. v. Townley, 3 Fost. & F. 839 ; Reg. u. Burton, 3 Fost. & F. 772 ; S. V. Lawrence 57 Me. 574 ; Humphreys V. S. 45 Ga. 190; Spann v. S. 47 Ga. 553; P. V. Best, 39 Cal. 690 ;, Loyd v. S. 45 Ga. 57; Reg. v. Vaughan, 1 Cox C. C. 80; S. V. Thomas, 1 Houst. Crim. 511. 525. In the Illinois case of Hopps.y. P. 31 111. 385, 391, 392, 83 Am. D. 231, Breese, J. ob- served : " A safe and reasonable test in all cases would be that whenever it should appear from the <(vidence that at the time of doing the act the prisoner was uot of sound mind, but affected with insanity, and such affection was the efficient cause of the act; and that he would not have done the act but for that affection, — he ought to be acquitted. But this unsound- ness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong as to the particular act done, and depriving the accused of the power of choosing between them." ^ Some of the foregoing cases, also S. V. Brown, 1 Houst. Crim. 539 ; S. v. Pratt, 1 Houst. Crim. 249 ; S. v. Danby, 1 Houst. Crim. 166; S. o. Mewherter, 46 Iowa, 88; Fitzpatrick v. C. 81 Ky. 357 ; U. S. v. Young, 25 Fed. Rep. 710; TJ. S. v. Ridge- way, 31 Fed. Rep. 444; U. 8. v. Faulkner, 35 Fed. Rep. 730; S. v. Erb, 74 Mo. 199; S. V. Kotovsky, 74 Mo. 247 ; Casey v. P. 31 Hun, 158 ; 's. v. Murray, 11 Or. 413 ; S. V. Nixon, 32 Kan. 205 ; Grissom u. S. 62 Missis. 167 ; S. v. Mowry, 37 Kan. 369 ; Hart V. S. 14 Neb. 572 ; S. v. Redemeier, 8 Mo. Ap. 1 ; S. V. Bundy, 24 S. C. 439, 58 Am. R. 262 ; Dunn v. P. 109 HI. 635 ; P. V. Kerrigan, 73 Cal. 222 ; S. v. Potts, 100 N. C. 457 ; S. V. Alexander, 30 S. C. 74, 14 Am. St. 879 ; Williams v. S. 50 Ark. 511. 2 Ante, § 380, 382. ' Roberts V. S. 3 Kelly, 310 ; Freeman V. P. 4 Denio, 9, 47 Am. D. 216 ; Kinue v. Kinne, 9 Conn 102, 105^ 21 Am. D. 732. 235 § 386 THE REQUIRED EVIL INTENT. [BOOK IV. 2. Time. — It relates to the time of the transaction, not to any other.^ These questions are distinguishable from those which concern the proof; for, — 3. Evidence. — To ascertain the state of the mind at a given period, we may inquire into its condition both before and after,^ — in relation to a particular subject, its condition as to other subjects. §386. 1. Right-and-Wrong Test — When Applicable or not. — Undoubtedly no person who is insane by the test of the section before the last should be convicted. But a medical writer who seems well to comprehend his subject observes : " It may be asserted as the result of observation and experience, that in all lunatics, even in the most degraded idiots, whenever manifesta- tions of any mental action can be educed, the feeling of right and wrong may be proved to exist." ^ And all agree that since the intellect is only a part of the mind which impels to action, the disease called insanity need not necessarily abide solely in the understanding.* At all events, whether this is really so or not, we are for the reason already given ^ compelled to assume it to be so for the purpose of this discussion. Now, — 2. In a Case — wherein beyond controversy the defect extends only to the intellectual powers, and there is no pretence that the party cannot control his own actions, — no proof tending to show any insanity except the partial, which veils simply the under- standing and not the whole man, — this right-aud- wrong tfest, thus seen to be the more common form of putting the question to the jury, is correct in legal theory and practically not misleading. For it should be borne in mind that in all issues the charge to the jury should disclose the law applicable to whatever facts the evidence tends to establish, not to any which it does not.^ On ' Jones V. S. 13 Ala. 153 ; Hadfleld's son, 4 Conn. 203, 10 Am. D. 119; Kinne Case, 27 How. St. Tr. 1281, 1353 ; Hales v. Kinne, 9 Conn. 102, 21 Am. D. 732 ; t>. Petit, 1 Plow. 253, 260 ; P. ^. Pine, 2 McLean w. S. 16 Ala. 672 ; P. v. March, 6 Barb. 566; S. u. Stark, 1 Strob. 479; Cal. 543 ; McAllister u. S. 17 Ala. 434, 52 Reg, V. Renshaw, 11 Jur. 615, 616; C. v. Am. D. 180; Wheeler v. S. 34 Ohio St. Rogers, 7 Met. 500, 502, 41 Am. D. 458 ; 394, 32 Am. R. 372 ; Overall «. S. 15 Lea, S. V. Spencer, 1 Zab. 196; S. t,, Huting, 672; Crim. Pro. IL § 674. 21 Mo. 464; Shultz v. S. 13 Tex. 401 ; S. » BuekniU on Criminal Lunacy, 59 «. Vann, 82 N. C. 631 ; Clark v. 8.S Tex. And see ante, § 383 a. Ap. 350; Crim. Pro. II. § 667. 4 See on this point the article before 2 Freeman ». P. 4 Denio, 9 ,• .Tones v. referred to, 4 Law Rev. 236. S. 13 Ala. 153; Dickin.son i: Barber, 9 6 Ante, § 383 6 Mass. 225, 6 Am. D, 58 , Grant i'. Thomp- » Crim. Pro I. § 978, 980 9806. 236 CHAP. XXVI.] WANT OF MENTAL CAPACITY, INSANITY. § 387 the other hand, to return to the question of responsibility for what one cannot avoid,i — § 387. 1. Irresistible Impulse — Moral Insanity. — The medical writers, it is understood, are in substantial accord on the further proposition that the mental and physical machine may slip the control of its owner ; and so a man may be conscious of what he is doing, and of its criminal character and consequences, while yet he is impelled to it by a power to him irresistible.^ Whether or not such is truly so must, in the nature of things, be a pure ques- tion of fact, it cannot be of law.^ The judge, looking at a prisoner, could not say as of law to the jury that when he did the for- bidden act he was in this condition. But if it could not be the law of the case that he was, equally and consequently it could not be that he was not. However positively in the judge's opin- ion he was not, the judicial assurance would be simply of a fact, not of a legal doctrine. If evidence tending to prove that such was the prisoner's condition is offered in any case before any court, the judge cannot help dealing with it. He must either exclude or receive it. He cannot say, " I, as judge, know the fact, and am certain it is otherwise than you contend; hence, assuming the fact not to be as you allege, I reject the tendered proofs." No court, on any question, rules in this way. If, on the other hand, the fact which the evidence tends to prove could not alter the conclusion of law, the court may rule it out as irrelevant. But we have seen that by the fundamental principles of our juris- prudence, this fact, if it exists, is relevant ; it is a perfect defence.* Nor has any court the authority, whatever the private view of the incumbent of the bench, to exclude evidence of any fact which the law has made a complete defence. Now, partly to repeat, — 2. Responsibility for the Unavoidable. — We have seen that some judges, if we accept their words and do not go beyond them for their probable meaning, deem a man who does what he is conscious the law forbids, to be criminally responsible whether he has power over his conduct or not.^ But we have assumed 1 Ante, § 383 6. 467, U Am. R. 731 ; In re Forman, 54 2 1 Beck Med. Jur. 10th ed. 723, 724 , Barb. 274; S. v. Brandon, 8 Jones, N. C. Kay Insan. 3d ed. § 17, 18, 22. 463 ; Loyd v. S, 45 Ga. -57 ; Spann v. S. 8 Ante « 383, and the cases there 47 Ga. 553 ; Beg. v. Burton, 3 Fost. & F. cited 772, Reg. u. Haynes.l Fost. & F. 666; 4 Ante, § 383 b. Reg. v Barton, 3 Cox C. C. 275. » Ante, « 383 6 , Flanagan v. P. 52 N. Y. 237 § 387 THE REQUIRED EVIL INTENT. [BOOK IV. also that no judge means this, whatever his words. Or, let us add, if any judge does mean it, we can be certain that he has not so examined the subject as to understand it.^ And still there may be an inability to control one's conduct of a sort for which he will be criminally responsible ; as, — 3. Passion — Drunkenness. — If one allows his passions to be excited to a frenzy,^ or voluntarily puts his mind out of temporary balance by intoxicating drinks,^ he is answerable to the criminal law for what he does in this condition. And the reason is that it is his duty to control his passions and his appetite. If he will not do it, he cannot complain when punished for the conse- quences. The case has no analogy to that of one upon whom tlie Almighty has laid His hand, and taken away the normal power of self-control. As to the latter class, — 4. Controlling Disease — Amoral Insanity. — Where one is free from blame, " if," in the words of Lord Denman, " some con- trolling disease was in truth the acting power within him, which he could not resist, then he will not be responsible." * This unhappy condition of the mind, while the intellect still distin- guishes right and wrong, the possible existence whereof as a fact we have seen to be extensively denied, is commonly termed, not with much apparent propriety of language, moral insanity. Per- haps it does not exist ; but the author cannot assent to the pro- priety of a court's assuming the triple function, as some have done, of expert witness, of jury, and of judge, and laying it down as legal doctrine that this sort of insanity " has no support either in psychology or law." ^ It has already been explained in these 1 See the Introduction to Bishop Mar. S. 64 Ind. 43.5 ; S. v. Hurley, 1 Houst. Div. & S. Grim. 28 ; S. u. Thomas, 1 Houst. Grim. 2 "Willis V. P. 5 Par. Cr. 621 ; S. o. 511 ; Beasley v. S.'50 Ala. 149, 20 Am. R. Graviotte, 22 La. An, 587 ; Cole's Gase, 7 292. And see Reg. v. Leigh, 4 Post. & F. Abb. Pr. N. s. 321 ; S. v. Stickley, 41 Iowa, 915 ; S. v. Hart, 29 Iowa, 268 ; S. v. John- 232 ; Guetig v. S. 66 Ind. 94, 32 Am. R. son, 40 Conn. 136 j Roberts v. P. 19 Mich. 99; P. «. Finley, 38 Mich. 482; Sanders 401. V S. 94 Ind. 147 ; Sindram v. P. 88 N. Y. * Reg. v. Oxford, 9 Car. & P. 525, 546. 196 ; Plake v. S. 121 Ind. 433, 16 Am. St. And see S. «. Coleman, 27 La. An. 691. 408 , WiUiams v. S. 50 Ark. 511. See for 6 Boswell v. S. 63 Ala. 307, 35 Am. R. a sort of limit to the doctrine, S. v. Draper, 20, 26. See P. «. Kerrigan, 73 Gal. 222 , 1 Houst. Grim. 291, 301. S. «. Potts, 100 N. C. 457 ; S. v. Alexander, ' Post, § 400 et seq. j Bradley v. S. 31 30 S. C. 74, 14 Am. St. 879. In the later Ind. 492 ; S. v. Hundley, 46 Mo. 414 ; P. Alabama case of Parsons v. S. infra, the B. Bell, 49 Gal. 485 ; Colbalth v. S. 2 Tex court righted itself, the judge who de- Ap. 391 ; S. u. Coleman, 27 La. An. 691 ■ livered the opinion in Boswell v. S. S. «. Thompson, 12 Nev. 140, Fishor o- dissenting. 238 CHAP. XXVI.J WANT OF MENTAL CAPACITY, INSANITY. §388 pages that, whatever the psychological fact truly is, no trial judge has the just right to withhold the proofs thereof and the issue from the jury. Thereupon tlie jury should be duly instructed in the law relating thereto. And such is the course in a part of our tribunals, i Descending a little toward the minute, — § ?88. 1. Special Forms of Irresistible Impulse. — According to medical views, whicii have found some legal recognition, this irresistible impulse is not always general, but sometimes is lim- ited to a particukr class of actions ; as, for example, in — 2. " Homicidal Insanity." — " There is," said Gibson, C. J., " 9, moral or homicidal insanity, consisting of an irresistible inclina- tion to kill, or to commit some other particular offence. There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, is incapa- 1 Plake V S. 121 liid 433, 16 Am. St. 408 ; Dejarnette o. C. 75 Va. 867 , Par- sons V. S. 81 Ala. 577, 60 Am. R. 193 , C. V Rogers, 7 Met. 500, 502, 41 Am. D 458 ; Roberts v. S. 3 Kelly, 310 , Stevens v S. 31 Ind. 485, 99 Am. D. 634 , Bradley v. S. 31 Ind 492, 509. The Kentucky Court justly deemed, as others have done, that this defence of moral insanity is liable to abuse, therefore that great caution should be used in presenting the prin ciples governing it to the jury. And tlie judge added that " before this species of insanity can be admitted to excuse crime, it must be shown to exist in such violence as to render it impossible for the party to do othervrise than yield to its prompt- ings." But the court below having in- structed the jury, as of law, " not to acquit upon such moral insanity unless it had manifested itself in former acts of similar character or like nature of the offence charged," this was held to be wrong ; and for this error a new trial was granted the defendant. Scott v C. 4 Met. Ky. 227, 228, 230, 83 Am. D. 461. See also Smith v C 1 I)uv. 224 ; Ander- sen V. S 43 Conn 514, 21 Ami R. 669. And see some sensible views, and a col- lection of cases, in Taylor Med. Jur. In a Michigan case, Campbell, C. J. said: "The court in regard to insanity charged that the respondent would be blameless in law, 1, if by reason of insanity he was not capable of knowing he was doing wrong, or 2, if he had not power to resist the temptation to violate the law. This was correctly charged. The law has no theo- ries on the subject of insanity. It holds every one responsible who is compos men- tis, or a free agent, and every one irre- sponsible who is non compos mentis, or not having control of his mind." This, it is perceived, quite accords with the Scotch view, as stated ante, § 383 a, and that of the New Hampshire and some other of our own courts, ante, § 383 ; and that of reason, as explained in the foregoing sections. P. v. Finley, 38 Mich. 482, 483. And see S. v. West, 1 Houst. Crim. 371 ; S. 0. Brown, 1 Houst. Crim. 539, 557. The late Prof. Mittermaier, a German jurist of the highest eminence, says in respect of insanity generally ; " The true principle is to look to the personal char- acter of the individual, to the grade of his mental powers, to the notions by which he is governed, to his views of things, and, finally, to the course of his whole life, and the nature of the act with which he is charged. A person who comra its a crim- inal act may be perfectly well acquainted with the laws and their prohibitions, and yet labor under alienation of mind. He may know that homicide is punished with death, and yet have no freedom of will." Translation 22 Am. Jur. 311, 317, 1 Beck Med. Jur. 10th ed 765, note. 239 § 390 THE REQUIRED EVIL INTENT. [bOOK IY. ble of resistance. The doctrine which acknowledges this mania is dangerous in its relations, and can be recognized only in the clearest cases. It ought to be shown," but, in reason, this sug- gestion can be accepted only in the way of caution for the jury, " to have been habitual; or at least to have evinced itself in more than a single instance." ^ Again, — 3. Kleptomania, — which is an irresistible propensity to steal, is regarded similarly to homicidal insanity .^ § 389. Difficulties of Subject. — This subject of insanity is prac- tically difficult. Men of sane mind know themselves but imper- fectly, and they comprehend others less than themselves ; nor is there language to convey, in exact form, even the little knowl- edge we possess of the sane mind. When, therefore, we under- take to investigate the phenomena of insanity, to discuss them, and to deduce from the principles of the law the legal rules to govern them, we are embarrassed with difficulties which should make us cautious, and restrain us from any extensive laying down of doctrines for unseen future cases.^ So that — § 890. Caution — should guide judges, counsel, and juries in their investigations of insanity. They may well restrict their theories to the particular facts in issue, and though they accept the aid of experts it should not be overlooked that they are liable to err. The memorials of our jurisprudence are written all over with cases in which those who are now understood to have been insane have been executed as criminals.* We think ourselves wiser upon this subject than were our fathers ; undoubtedly we are ; but there is wisdom yet to be acquired. In the days of 1 C. a. Mosler, 4 Pa. 264, 267, in which further explanation in Taylor v. C. 109 the same learned judge further observed of Pa. 262. See also, as to homicidal mania, homicidal insanity : " The frequency of this Sanchez v. P. 4 Par. Cr. 535. And see constitutional malady is fortunately small, the last note. and it is better to confine it within the ^ Harris v. S. 18 Tex. Ap. 287 ; Looney ■ strictest limits. If juries were to allow it as v. S. 10 Tex. Ap. 520, 38 Am. E. 646. a general motive, operating in cases of this " Dr. Ray has well observed : " No character, its recognition would destroy cases subjected to legal inquiry are more social order as well as personal safety, caloulated'to puzzle the understandings of To establish It as a justification in any courts and juries, to mock the wisdom of particular case, it is necessary to show the learned, and baflLle the acuteness of the by clear proofs either its contemporane- shrewd, than those connected with ques- ous existence evinced by present circum- tions of imbecility ; " and, he might have stances, or the existence of an habitual added, insanity generally. See Ray Insan. tendency, developed in previous cases, be- 3d ed. § 104. coming in itself a second nature." This * And see the observations of Gilpin, doctrine is followed in Coyle v. C. 100 C. J. in S. v. Danby, 1 Houst. Crim. 166, Pa. 573, 45 Am. R. 397. Aiad there is a 171, 172. 240 CHAP. XXVI.J WANT OF MENTAL CAPACITY, INSANITY. § 391 darkness, it was perhaps better that insane men should die than be permitted to go at large. And until we learn truly to dis- tinguish between sanity and insanity, some must, on the one hand, suffer as criminals when they ought rather to be under treatment for disease ; and, on the other hand, persons truly guilty will sometimes escape punishment under the plea of insanity. § 391. 1. Suggestions as to Pact, — Perhaps the following sug- gestions will aid inquirers : All men are erring. Mere error, therefore, does not relieve from punishment. All have vicious propensities. Therefore a mere propensity to evil does not excuse the doer. All are only in a limited degree deterred from wrong-doing by fear of its consequences. The mere fact, therefore, that one was not afraid of punishment when doing a thing does not show him to have been insane. All are more or less regardless of the demands of conscience. So the mere fact that a prisoner showed a hardened heart does not prove him insane.^ But all sane men act with a certain uniformity of plan, varying and winding it may be in some respects, yet uniform in its manifestations of the mind ; all are under some restraint concerning every question before them ; all derive their knowl- edge of visible things from what is tangible to their outward senses ; all love the friends who sincerely do them good ; all manifest affection, under ordinary circumstances, for their off- spring ; all control themselves under the pressure of motives sufficient ; all obey, in short, certain laws which we recognize as belonging to the mind of a sane man. When, therefore, a per- son is found acting, either at times or habitually, contrary to these known laws, we say that he is more or less insane. But — 2. Sufficiently Insane. — As already seen,^ mere admitted in- sanity must, to excuse the evil act, have attained the law's stand- ard in magnitude.^ And thus we are conducted to a frequent error of the medical writers and experts. Often, assuming that one is insane who is so to however minute a degree,* they draw the inference, which the law does not, that therefore he is not a proper subject for punishment. So they complain of the courts for subjecting to punishment insane men. If, while they deal 1 Loyd V. S. 45 Ga. 57. 745 ; Webb v. S. 5 Tex. Ap. 596 ; Pat- 2 Ante, § .376, 380. teraon v. P. 46 Barb. 625; S. v. Danby, ' S. V. Geddis, 42 Iowa, 264 ; Cunning- I Houst. Crim. 166 ; S. u. Pratt, 1 Houst. ham V. a. 56 Missis. 269, 31 Am. E. 360 ; Crim. 249. ■Warren ,,. S. 9 Tex. Ap 619, 35 Am. K. ■'' Ante, § 376, 380 (I) VOL. I.— 16 241 § 394 THE REQUIRED EVIL INTENT. [BOOK IV. thus unjustly with the law, the courts do not always pay entire respect to their views, they should not complain.^ § 392. Delusion — is, with many, a favorite test of insanity. In the famous Hadfield case,^its sufficiency in proof of insanity was established. And now there are even judges who will not admit that there is any other test.^ It excuses as a mistake of fact, already explained.* If, then, a man under an aberration of, mind even in one particular only, believes a thing to exist, — as, that another in his presence has designs upon his life, and is about to make the attack, — and he acts as he would be justified in doing if what he believes were real, in this instance kills the man to save his own life, he commits no crime.^ Evidently the doctrine thus laid down, is safe in almost any state of the proofs. But — § 893. Insufficiency of Thing delusively believed. — Should the mental aberration be admitted to extend only to the particular delusion in evidence, while all the other functions of the mind were unimpaired, the further rule would be that if the defendant insanely believed something which, were it true, would not legally justify his act, — as, in the language of the English judges, "if his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, — he would be liable to punishment." ^ This branch of the doctrine should be cautiously received ; for delusion of any kind is strongly indicative of a generally diseased mind. And doubtless sometimes if not always it does in fact ex- tend beyond the precise point we have supposed, whether per- ceptibly to the casual eye or not. Hence, — § 394. 1. Delusion Simple, — without reference to the particular 1 And see observations of Campbell, adds the following illustration to the C. J. in P. V. Pinley, 38 Mich. 482, 483, one in the text : " A common instance is *84. where he fully believes that the act he 2 Hadfield's Case, 27 How. St.Tr. 1281. is doing is done by the immediate com- s Willis V. P. 5 Par. Cr. 621 ; In re mand of God ; and he acts under the de- Forman, 54 Barb. 274 ; Reg. v. Townley, lusive but sincere belief that what he is 3 Post. & P. 839. And see Reg. v. Davies, doing is by the command of a superior 1 Post. & P. 69 ; Reg. «. Law, 2 Post. & P. power, which supersedes all human laws, 836. and the laws of nature." Shaw, C. J. p. * Ante, § 301 et seq. 503. 6 McNaghten's Case, 10 CI. & P. 200; 6 Opinion on Insane Criminals, 8 Scott Opiniouon Insane Criminals, 8 Scott N.R. N. R. 595, 603; McNaghten's Case, 10 595 ; C. V. Rogers, 7 Met. 500, 41 Am. D. CI. & P. 200 ; Bovard v. S. 30 Missis. 600 ; 458 ; Cunningham v. S. 56 Missis. 269, 31 S. v. Mewherter, 46 Iowa, 88. Am. R. 360. In C. v. Rogers, the court 242 CHAP. XXVI.] WANT OP MENTAL CAPACITY, INSANITY. § 394 thing delusively believed, is doubtless always a fact to be weighed by the jury. In Hadfield's case, — acquitted as iiisane of the high treason of shooting at the king, — though there was evidence of something like general insanity, his principal delusion was " that," in the words of his counsel Mr. Erskine, " he had constant inter- course with the Almighty Author of all things ; that the world was coming to a conclusion ; and that like our blessed Saviour he was to sa;crifice himself for its salvation." And so he became im- pressed with the insane delusion " that he mv^t he destroyed, but ought not to ^destroy himself;" to bring about which result, he committed the act in order to be arrested and executed. It seems not to have been a subject of inquiry in this case, whether, if the facts had been as delusively believed, they would have legally justified the deed ; but in the able speech of Mr. Erskine, often commended for its just views,i the question is presented as turn- ing, both in this case and in others which he cites for illustration, upon delusion simply, without reference to the nature of the ideal facts, as being sufficient or not, if true, to justify the otherwise criminal thing.^ And in a modern Scotch case, the learned Lord Justice-Clerk -said to the jury : " It does not appear that anybody ever doubted the soundness of the prisoner at the bar. There is evidently no doubt as to his sanity amongst those who were com- ing in constant contact with him. That does not bring you to a conclusion, but it is nine-tenths towards the conclusion to which you will have to come. There is a further step which you must take^ and it is here that the great difficulty and importance of the case lies. There are states of mind which indicate unsoundness or insanity, which do not manifest themselves in ordinary life, but only on particular occasions, and in relation to special sub- jects. These are very exceptional instances. But if a man is clearly proved to labor under insane delusions, he is not of sound mind. Now, that the prisoner here labored under a strong delu- sion about his mother is certain ; and the question for you is, was it an insane delusion ? On that matter you have heard the medi- ^ " The great speecji of Mr. Erskine fence of Hadfield, for condensation, per- in defence of Hadfield has shed new light spicuity, and strength of reasoning, as upon the law of insanity. So conclusive well as for beauty of illustration, and was that celebrated argument that it is purity of style." Nisbet, J. in Roberts now looked upon by the profession as d. S. 3 Kelley, 310, 330. authority. In the records of forensic 2 Hadfield's Case, 27 How. St. Tr. 1281. eloquence, ancient and modern, nothing And see, on this subject, Martin's Case, is to be found surpassing Erskine's de- SheU. Lun. 465. 243 § 395 THE REQUIRED EVIL INTENT. [BOOK IV. cal evidence, and the account of the idea he entertained that his mother and the doctor were in league to give him medicines to induce him to become a Rotnan Catholic. That part of the case impressed me very mucli ; because that is an idea which no sane man could hold. ... If you think that the delusion under which he thus labored was an insane delusion, then the man's mind was- not sound, and you will rightly acquit him on that ground ; the more so that the delusion led directly to the act. The self-mutila- tion which occurred afterwards is also an indication of disturbed intellect." And thereupon the jury acquitted the defender as insane.i 2. Connected with Criminal Act. — While the learned judge, in this Scotch instruction to the jury, pertinently spoke of a connec- tion between the insane delusion and the criminal fact, he did not sa;y it was absolutely essential. It doubtless was not. Yet with us it has been laid down in a general way, and we may deem the ordinary rule to be so, that if the inSane delusion has refer- ence to something wholly unconnected with the crime, it does not excuse.^ § 395. 1. Progressive ODevelopments. — We cannot anticipate all future questions. The bodily diseases are ever varying in appearance, yet remaining in their fundamentals the same ; so will it be with the diseases of the mind, — those shadows in the ad- vancing light. But the doctrines of the common law are reason- ably stable, and they are adapted as well to the future with its changes as to tlie present and past'. Partly to illustrate, — 2. Somnambulism, — though an old disease, has only in modern times been laid before the courts. Perhaps it is not technical insanity ,3 yet it will sometimes have the same effect as excusing the otherwise criminal act,* — " simply because," in the words of Stephen, J., the person committing it " would not know what he was doing." ^ 3. One Deaf and Dumb — is not consequently insane ; and on his capacity sufficiently appearing, he may be tried and convicted for crime.« In a case where the defendant had never been to a 1 Macklin's Case, 3 Couper, 257, 260, * Fain v C. 78 Ky. 183, 39 Am R. 261, 213 ^S ./. Gut, 13 Minn. 341, 358. See S. » Reg. ^ Tolson, 23 Q. B. D 168, V Simms, 71 Mo. 538. ■ 187, ' It is within our definition of insanity. ^ C. v Hill, 14 Mass. 207; Reg. « Ante, § 381 (2) Whitfield, 3 Car. & K. 121 , Reg v. 244 CHAP. XXVI.] WANT OP MENTAL CAPACITY, INSANITY. § 396 a school for mutes, the learned judge said that prima facie a deaf and dumb person is to be regarded as incompetent ; and " it is incumbent upon the prosecution to prove to the satisfaction of the jury that the accused had capacity and reason sufficient to enable him to distinguish between right and wrong as to the act at the time when it was committed by him, and had a knowl- edge and consciousness that the act he was doing was criminal, and would subject him to punishment." Thereupon the jury ac- quitted the prisoner under circumstances wherein plainly they would not have done it "if he had been endowed with hearing and s'peech.i § 396. 1. Civil Liability — should not be confounded with criminal. The two are different in their natures, depending in some respects on diverse considerations. A person may be insane as to the one while not as to the other.^ So likewise, — 2. The Capacity to be tried, — which must exist at the time of the trial, differs from that for crime required when the wrongful act was done. If an indicted person is not sane, the court cannot go on with the case ; ^ or if he becomes insane after the trial com- mences, he can neither be sentenced, nor, if sentenced, punished, ■while his insanity continues.* § 396 a. The Doctrine of this Chapter restated. This chapter, like the others connected with it, pertains to the criminal intent. As without this intent there is no crime, so there can be no criminal intent without the mental capacity for it. The lack of such mental capacity is termed insanity. And one is insane who, from whatever cause, is incompetent to have the criminal intent, or who is incapable of so controlling his volitions as to avoid doing the forbidden thing. To this there is a seeming exception, yet not such in fact ; namely, if one volun- tarily puts himself into a condition wherein he has no control Berry 1 Q. B. D. 447, 13 Cox C. C. v. Pritchard, 7 Car. & P. 303 ; Rex v. Dy- jgg ' • son, 1 Lewin, 64; Jones w. S. 13 Ala. 153; 1 S. V. Draper, 1 Houst. Crim. 291, 302. P. v. Ah Ying, 42 Cal. 18 ; S. w. Patton, 2 Reg. V Oxford, 9 Car. & P. 42.5 ; 12 La. An. 288 ; Reg. v. Berry, 1 Q. B. D. Hadeeld's Case, 27 How. St. Tr. 1281, 447; Crim. Pro. II. § 666-668. 1290, 1311, 1314. See S. v. Gardiner, 4 Freeman w. P. 4 Demo, 9, 47 Am. D. Wright 392, 399 ; Webh v. S. 5 Tex. Ap. 216; Jones v. S. 13 Ala. 153 ; Shelf. Lun. 596 , Warren v. S. 9 Tex. Ap. 619 ; Ray 467 ; Bonds v. S. Mart. & Yerg. 143, 17 Insan. 3d ed. § 8. Am. D. 795 ; S. v. Brinyea, 5 Ala. 241 ; P. 8 Freeman v. P. 4 Denio, 9, 47 Am. D. v. Lake, 2 Par. Cr. 215 ; Spann v. S. 47 Ga. 216 ; Reg. v. Goode, 7 A. & E. 536 ; Rex 549 ; S. v. Vann, 84 N. C. 722. 245 § 396 a THE REQUIRED EVIL INTENT. [BOOK IV. over his actions, an illustration whereof will appear in the next chapter, he is responsible for what he does in this condition. Yet to this exception there is another seeming and not real one ; which is, that he cannot even then commit a crime of the sort which re- quires some specific criminal intent, unless he contemplated it when putting himself into this condition. The phases of insanity are numerous, but questions relating to them are of fact, and the fact is for the jury. The law simply provides that one who cannot or who does not have the criminal mind when the wrongful act transpires, is not punishable for the doing. 246 DHAP. XXVII.] INTOXICATION EXCUSING ACT. § 398 CHAPTER XXVII. INTOXICATION AS EXCUSING OR NOT THE CRIMINAL ACT. § 397. Introduction. 398-403. General Doctrine. 404-415. Limitations of the Doctrine. 416. Doctrine of Chapter restated. § 397. How Chapter divided. — We shall consider, I. The General Doctrine ; II. Limitations of the Doctrine. I. The Greneral Doctrine, § 398. 1. The Doctrine — of this chapter is simply that of a pre- ceding one,^ wherein it is stated and in a good degree illustrated. In this chapter we continue tlie illustrations. It is — 2. Defined. — If a man intending one wrong accidentally accom- plishes another, he is punishable for what is done, though not intended ; except in cases where a specific intent, in distinction from mere general malevolence or carelessness, is an essential element in the crime. Thus, — 3. Applied to Intoxication. — The law deems it wrong for a man to cloud his mind or excite it to evil by the use of intoxi- cating drinks ; and one who does this, then, moved by the liquor while too drunk to know what he is about, pei'forms what is ordinarily criminal, subjects himself to punishment; for the wrongful intent to drink coalesces with the wrongful act done while drunk, and makes the offence complete. The exception is that if the offence is of a sort constituted only where there is a particular intent, and the accused person did not mean it until he became too drunk to entertain the intent, it is not committed simply by the formal doing where the special purpose is wanting. Still,— > Ante, § 323 et seq. 247 §400 THE REQUIRED EVIL INTENT.. [book it. "4. How the Cases. — The judges, in deciding the cases, have not always had the principle in their minds ; consequently the decisions show some zigzag lines of doctrine, and it is necessary we should trace the subject in detail. § 399. 1. Mere Private Drunkenness, — with no act beyond, is not indictable at the common law.^ There are old English stat- utes, early enough to be common law with us, making drunken- ness punishable or finable,"'* yet they seem not to have been recognized as of effect in this country. At the same time, — 2. Supplying Criminal Intent. — The common law has always looked upon drunkenness as, at least, quasi criminal, — a step toward the wrong, if not the wrong itself. So that since a man who does an indictable act is punishable •'' if impelled by an evil purpose, even of a sort not indictable,* voluntary drunkenness iu the ordinary case supplies the criminal intent. Hence, — § 400. No Excuse for Crime. — The rule, to which we have seen there are exceptions, is that if one becomes voluntarily in- toxicated, and in this condition commits a crime, he is punishable precisely as though he did it voluntarily without passing to it through the door of intoxication.^ It is so even when the inebri- 1 S. V. Deberry, 5 Ire. 371 ; S. v. Wal- ler, 3 Murph. 229; O'Hanlon v. Myers, 10 Eich. 128. See Smith v. S. 1 Humph. 396 ; Hutchison v. S. 5 Humph. 142. For ex- positions of the offences of drunkenness, being a common drunkard, and the like, under American statutes, see Stat. Crimes, § 967-982. ^ For example, see Stats. 4 Jac. I, c. 5 ; 21 Jac. 1, c. 7. 3 Ante, § 327. * Ante, § 330. 5 Kenny y. P. 31 N. Y. 330 ; P. o. Pine, 2 Barb. 566, 570 ; S. a. Bnllock, 13 Ala; 413; S. u. John, 8 Ire. 330, 49 Am. D. 396 ; S. V. Stark, 1 Strob. 479 ; S. v. Tur- ner, Wright, 20, 30 ; U. S. v. Cornell, 2 Mason, 91, 111 ; Rex v. Ayes, Russ. & Ry. 166; Burrow's Case, 1 Lewin, 75; Rennie's Case, 1 Lewin, 76 ; Pearson's Case, 2 Lewin, 144 ; U. S. v. Forbes, Crabbe, 558', Schaller y. S. 14 Mo. 502; Pennsylvania v. McFall, Addison, 255, 257 I Respublica v. Weidle, 2 Dall. 88 ; U. S. V. Drew, 5 Mason, 28 ; Whitney v. S. 8 MisBO. 165; Pirtle «. S. 9 Humph. 663; Haile y. S. 11 Humph. 154; Corn- 248 well V. S. Mart. & Yerg. 147 ; Swan y. S. 4 Humph. 136 ; Tyra y. C. 2 Met. Ky. 1 ; Scott y. S. 12 Tex. Ap. 31 ; S. y. Hundley, 46 Mo. 414 ; P. y. Kemmler, 119 N. Y. 580; Estes y. S. 55 Ga. 30 ; Pierce v. S. 53 Ga. 365 ; Hanvey y. S. 68 Ga. 612 ; S. v. Paulk, 18 S. C. 514 ; C. V. Hagenlock, 140 Mass. 125; Golden v. S. 25 Ga. 527, 533 ; GoUi- her V. C. 2 Duv. 163, 87 Am. D. 493; Reg. y. Gamlen, 1 Post. & F. 90 ; Outlaw y. S. 35 Tex. 481. And see Hamilton v. Grainger, 5 H. & N. 40 ; Reed v. Harper, 25 Iowa, 87, 95 Am. D. 774; Broom Leg. Max. 2d ed. 13. Lord Coke says : " Al- though he who is drunk is for the time non compos mentis, yet his , drunkenness does not extenuate his act or offence, nor turn to his avail ; but it is a great offence in itself, and therefore aggravates his of- fence, and doth not derogate from the act which he did during that time, and that as well in cases touching his life, his lands, his goods, aa any other thing that con- cerns him." Beverley's Case, 4 Co. 123 5, 125 a. And see C. v. Hart, 2 Brews. 546. Still it is not strictly true that drunken- ness aggravates a crime; it simply fur- CHAP. XXVII.] INTOXICATION EXCUSING ACT. § 403 ation is extreme, making the person unconscious of what he is doing,^ or creating a temporary condition like insanity.^ For example, — § 401. Supplies Malice in Homicide. — The common law divides indictable homicides into murder and manslaughter ; but the specific intent to kill is not necessary in either. A man may be guilty of murder without intending to take life, or of man- slaughter without so intending, or he may purposely take life without committing any crime. And the doctrine is that the intention to drink may fully supply the place of malice afore- thought ; so that if one voluntarily becomes too drunk to know what he is about, and then with a deadly weapon kills another, he commits murder the same as if he were sober. In other words, the mere fact of drunkenness will not reduce to manslaughter a homicide which would otherwise be murder, much less extract from it altogether its indictable quality.^ Again, — § 402. Cruelty to Animals. — 'Evidence of intoxication will not avail a defendant charged with cruelty to his horse.* § 403. Views of European Jurists — In Principle. — Many Euro- pean jurists view drunkenness, when creating crime, more leniently than the common law as thus explained.* So likewise does Paley nisbes no excuse. Mclntyre w. P. 38 111 Friery v. P. 54 Barb. 319, 2 Keyes, 424 ; 514 ; Ferrell «. S. 43 Tex. 503. S. v. Johnson, 41 Conn. 584 ; Phelps v. S. 1 P. V. Garbutt, 17 Mich. 9, 97 Am. D. 75 Ga. 571 ; Nichols w. C. 11 Bush, 575 ; 162. And see Henslie v. S. 3 Heisk. 202. P. v. Jones, 63 Cal. 168 ; Tidwell v. S. 70 2 P. V. Lewis, 36 Cal. 531 ; McCarty v. Ala. 33 ; S. v. Dearing, 65 Mo. 530; P. v. S. 4 Tex. Ap. 461 j Colbath v. S. 2 Tex. Langton, 67 Cal. 427. There are in the Ap. 391 ; S. V. Rrley, 100 Mo. 493 ; Up- books a few cases which seem to lend stone u. P. 109 111. 169. And see Real v. countenance to the idea that in special P. 42 N. Y, 270; post, § 406. circumstances drunkenness may reduce a 8 Reniger v. Fogossa, 1 Plow. 1,19; killing, which else would be murder, to ■Beverley's Case, 4 Co. 123 6; U. S. v. manslaughter. Consult Mclntyre w. P. 38 Cornell, 2 Mason, 91, 111 ; Haile v. S. 11 111. 514 ; Sha.nnahan v. C. 8 Bush, 463, 8 Humph. 154 ; Pirtle v. S. 9 Humph, 663 ; Am. R. 465 (overruling Smith v. C. 1 Duv. Pennsylvania v. McFall, Addison, 25.5, 224, and Blimm v. C. 7 Bush, 320) ; Kriel 257; Rex u. Carroll, 7 Car. & P. 145; v.C. 5 Bush, 362; Curry V. C. 2 Bush, Rex V. Ayes, Russ. & Ry. 166 ; S. v. 67. It is believed, however, that the doc- Bullock, 13 Ala. 413 ; S. V. John, 8 Ire. trine of the text is not unsound in legal 330 49 Am. D. 396; Rex v. Meakin, 7 principle, while it is sustained by the mass Car. & P 297; Mercer u. S. 17 Ga. 146; of the authorities. But in connection with P. V Fuller 2 Par. Cr. 16 ; P. v. Robin- it, the reader should bear in mind what is son, 1 Par. Cr. 649 ; Carter w. S. 12 Tex. laid down, post, § 409, 410, 414, 415. 50o', 62 Am. D. 539 ; C. o. Hawkins, 3 * S. «. Avery, 44 N. H. 392. Gray, 463 ; P. u- Robinson, 2 Par, Cr ^ See an able article by Mittermaier, 235 ■ P V. Hammill, 2 Par. Cr. 223 ; S. v. translated from th6 German, and pub- Harlow, 21 Mo. 446; S. v. Mullen, 14 La. lished at Edinburgh ,as No. 10 of the An 570 ■ Mclntyre v. P. 38 111. 514 ; Cabinet Library of Scarce and Celebrated ■ ■ ' ,249 § 406 THE REQUIRED EVIL INTENT. [BOOK IV. in his " Moral and Political Philosophy." ' In principle, the legal question turns on another ; namely, whether drunkenness is malum in se, or only an innocent mistake. Our jurisprudence deems it the former, hence its conclusion.^ II. Limitations of the Doctrine. § 404. Three Classes — of cases demand attention under this head, — those wherein there is more than mere voluntary intoxi- cation ; where the offence requires a specific intent ; where some other precise mental condition is important. § 405. First. More than Mere Voluntary Intoxication : — In Involuntary Intoxication — there is no wrong. So that " if a party be made drunk by stratagem, or the fraud of another," or the unskilfulness of his physician, " he ie not responsible." ^ For ■ drunkenness without fault cannot supply the criminal intent. Again, — § 406. Insanity from Drunkenness. — The law holds men re- sponsible for the immediate consequences of their acts, not ordi- narily for the remote.* Therefore one who voluntarily drinks so deeply, or is so affected by the liquor, that for the occasion he is oblivious or insane, is still punishable for the evil he does under the influence of this drunkenness.^ But if the habit of drinking has created a fixed frenzy or insanity, whether per- manent or intermittent, — as, for instance, delirium tremens,® — it is the same as if produced by any other cause, excusing the act.'^ For whenever a man loses his understanding, as a settled Law Tracts, and in the American Jurist^ ^ u. S. v. McGlue, 1 Curt. C. C. 1 , vol. xxiii. p. 290. Maconnehey v. S. 5 Ohio St. 77 , Beck 1 Paley Moral Phil. b. 4, o. 2. v. S. 76 Ga. 452 ; P. v. Ferris, 55 Cal. 588 ; 2 Ante, § 330-3.32. Erwin v. S. 10 Tex. Ap. 700. See P. o. " Parke, J. in Pearson's Case, 2 Lewin, Mills, 98 N. Y. 176. 144 ; 1 Russ. Crimes, 3d Eng. ed. 7 ; 1 T XJ. S. v. Drew, 5 Mason, 28 ; Bur- Hale P. Q. 32 ; P. V. Robinson, 2 Par. Cr. row's Case, l' Lewin, 75 ; Rennie's Case, 235 ; Choice v. S. 31 Ga. 424. 1 Lewin, 76 ; C. «. Green, 1 Ashm. 289, * Bishop Non-Con. Law, § 40-48, 454- 302 ; U. S. v. Forbes, Crabbe, 558 ; Coru- 457. well V. S. Mart. & Yerg. J_47 ;-S, u^Dil- 6 Ante, § 399, 400, P. v. Vine Jl Barb, lahunt. 3 Harring._Del— 551; S. i'. .566^570^ U. S. V. Drew, 5 Mason, 28; McGonigal, 5 Barring. Del. 510, Bailey tJ7Sr». Clarke, 2 Cranch C. C. 158 ; U. S. i-. S. 26 Ind. 422 , Roberts v. P. 19 Mich. V. McGluB, 1 Curt. C. C. 1 ; Bennett v S. 401 ; S. v. Hundley, supra , Cluck v. S. 40 Mart. & Yerg. 133 ; Cornwell v. S. Mart. Ind. 263 ; Bradley «. S. 3L Ind. 432 , Bos- & Yerg. 147 ; Career i: S. 12 Tex. 500, well v. C. 20 Grat. 860, S. v. Riley, 100 62 Am. D. 539 ; P. v. Bell, 49 Cal. 485 ; Mo. 493 ; S. v. Paulk, 18 S. C. 514 , Fisher S. 'v. Hundley, 46 Mo. 414'; Reagan v. S. v. S 64 Ind. 435 ; P. M,_BJake, 65 Cal. 275 ; 28 Tex. Ap. 227. Burkhard v. S, 18 'fex. Ap. 599 ; S. v. 260 CHAP. XXVII.] INTOXICATION EXCUSING ACT. § 409 condition, he is entitled to legal protection, equally whether the loss is occasioned by his own misconduct or by the dispensation of Providence.^ § 407. Dipsomania. — Writers on medical jurisprudence inform us that drunkenness, and indeed other causes, sometimes beget a disease called dipsomania, which overmasters the will of its victim, and irresistibly impels him to drink to intoxication.^ Such a case stands, in principle, on a like ground with one of moral insanity, considered in the last chapter.^ We may pre- sume that there are courts which will not suffer this defence to be introcfuced ; but other courts have allowed it, and have held that whether there is such a disease, and whether the act was committed under its influence, are questions not of law but of fact for the jury.* Still, looking at. this proceeding as a mere search after facts, it is obvious that to distinguish such a case from one of mere inordinate appetite may be difficult, requiring of judges, and jurors great caution. § 408. Secondly. Gases requiring a Specific Intent : — Not supplied by Drunkenness. — It is plain that when, as in some offences, the law requires a specific intent in distinction from general malevolence to render one guilty,^ the intent to drink followed by intoxication cannot stand in the stead of this specific intent.^ Thus, — § 409. Murder in First Degree. — We have seen ^ that intoxica- tion does not incapacitate one to commit the common-law murder or manslaughter ; because, to constitute either, the specific intent to take life need not exist, general malevolence sufficing. But where murder is divided by statute into two degrees, and to con- stitute it in the first degree there must be the specific intent to take life,^ if by reason of being too deeply intoxicated the accused person could not have had, so did not have, this specific intent, the murder is not in the first degree.^ And yet — Robinson, 20W.Va. 713, 43 Am. R. 799; « Ante,§383; S. u. Pike, 49 N. H. 399, Beasley v. S. 50 Ala. 149, 20 Am. R. 292 ; 6 Am. R. 533 ; S. v. Johnson, 40 Conn. S. V. Thomas, ''l Houst. Crim. 511; 529, 136. 530, 5_^nte, § 297, 298, 320, 335, 342. 1 Bliss V. Connecticut and Pass. Rid. " Reg. v. Monkhouse, 4 Cox C. C. 55 ; 24 Vt. 424; Bailey v. S. 26 Ind. 422; Roberts v. P. 19 Mich. 401. See post, Choice V. S. 31 Ga. 424; Lanergan v. P. § 412. 50 Barb. 266. . ' Ante, § 401. 2 Ray Insan. 3d ed. § 441-447. « Vol. II. § 728. 8 ^Qte 5 387 ° Pirtle v, S. 9 Humph. 663 ; Haile v. 251 §412 THE REQUIRED EVIL INTENT. [book IV. § 410. First Degree Possible. — It is possible for one to commit murder in the first degree while drunk. If he resolves to kill an- other, then drinks to intoxication, and then kills him, the murder is in the first degree, for he did specifically intend to take life.i And a man, though drunk, may not be so drunk as to exclude the particular intent.^ Drunkenness short of the extreme point, there- fore, will not reduce the murder to the second degree.^ § 411. Larceny — is analogous to murder in the first degree. A mere intentional trespass to another's goods does not con- stitute it, but the specific intent to steal must be added.* So that if one without the intent to steal becomes too drunk to entertain it, then in this condition takes another's goods, and relinquishes them before the intent could arise, or returns them the instant his restored mind has cognizance of the possession of them, there is no larceny. Yet, like murder in the first degree, larceny by an intoxicated man is not impossible.^ § 412. 1. Passing Counterfeit Money, — by a man too drunk to know that it is counterfeit, or, consequently, to entertain the in- tent to defraud, does not constitute the criminal offence.^ S. 11 Humph. 154 ; Gwatkin v. C. 9 Leigh, 678, 33 Am. D. 264 ; Swan v. S. 4 Humph. 136 ; S. V. Bullock, 13 Ala. 413 ; Pigman I' S. 14 Ohio, 555, 45 Am. D. 558 ; Corn- well I). S. Mart. & Yerg. 147 ; P. v. Ham- mill, 2 Par. Cr. 223 ; P. v. Robinson, 2 Par. Cr. 235 , Kelly c. S. 3 Sm. & M. 518 ; P. V. Belencia, 21 Cal. 544 , Keenan r C. 44 Pa. 55, 57, 84 Am. D. 414 ; P. v. Wil- liams, 43 Cal. 344 ; Kelly v. C. 1 Grant, Pa. 484 i P. V. Batting, 49 How. Pr. 392 , C. V Hart, 2 Brews. 546 ; P. v. King, 27 Cal. 507, 87 Am. D. 95 ; S. o. Johnson, 41 Conn. 584; Rafferty v. P. 66 111 118; Jones V. C. 75 Pa. 403 , S. v. Sopher, 70 Iowa, 494; Hopt y. P. 104 U. S. 631; Willis «. C. 32 Grat. 929 , Burkhard v. S. 18 Tex. Ap. 599; Colbatli v. S. 2 Tex. Ap. 391 ; C. V. Piatt, 11 Philad. 421 ; Me- Carty «. S. 4Tex. Ap. 461. See O'Brien V. P. 48 Barb 274. • 1 Smith I,: C. 1 Duv. 224 ; S. v. Robin- son, 20 W. Va. 713, 43 Am. R. 799. And see S. *• Gut, 13 Minn. 341 ; S. u. Bowen, 1 Houst. Crim. 91. 2 Kenny i;. P. 31 N. Y. 330 ; Flauigan V. P. 86 N. Y. 554, 40 Am. R. 556 ; S. v. 252 Smith, 49 Conn. 376 ; Cartwright v. S. 8 Lea, 376. s Keenan v. C. 44 Pa. 55, 84 Am. D. 414. And see Estes v. S. 55 Ga. 30. * Ante, § 320, 342 ; Vol. II. § 840. ^ I have thus carefully stated the doc- trine as it rests in'legal principle, and substantially in the authorities. But some of the eases, on this question, are indistinct and unsatisfactory, and perhaps some are adverse. The following are the cases before me, whether for or against what is set down in the text. S. o. Schin- gen, 20 Wis. 74; S. v. Bell, 29 Iowa, 316; Henslie v. S. 3 Heisk. 202 ; Rogers v. S. 33 Ind. 543 ; Rex v Pitman, 2 Car. & P. 423, C. V. French, Thacher Crim. Cas. 163; O'Herrin v. S. 14 Ind. 420; Dawson V. S. 16 Ind. 428, 429, 79 Am. D. 439 ;,C. V. Finn, 108 Mass. 466; S. v. Hart, 29 Iowa, 268; Bernhard v. S. 76 Ga. 613; Hall V. C. 78 Va. 678; Robinson u. S. 113 Ind. 510 ; Wood v. S. 34 Ark. 341, 36 Am. R. 13 , P y. Walker, 38 Mich. 156. And see, as illustrative, P. «.• Harris, 29 Cal. 678 , Ingalls v. S. 48 Wis. 647. ^ Pigman w. S. 14 Ohio, 555, 45 Am. B. 558; U. S. V. Roudenbush, 1 Bald. 514. CHAP. XXVII.] INTOXICATION EXCUSING ACT. § 414 2. The Principle — in all these cases is that the intoxica- tion took away the mental capacity for the particular crime, in consequence whereof th6 defendant did not in fact have the law's criminal intent.^ We have another illustration of it in — § 413. Attempt. — An indictable attempt is committed only when the intent is specific; namely, to do the particular thing which constitutes tiie substantive crime.^ If, therefore, one is too drunk to entertain such specific intent, he cannot become guilty of the offence of attempt, however culpable in a general way he may be for his drunkenness.^ § 414. Thirdly. — Cases not requiring a Specific Intent, wherein still the Precise State of the Prisoner'' s Mind is under Special Cir- cumstances important : — Reducing to Manslaughter. — Not conflicting with what is laid down in a previous section,* it is pretty well settled that there are circumstances in which evidence of intoxication may properly be received to reduce a homicide to manslaughter.^ Some judges seem not willingly to yield this point ; ^ but the better opinion is that if, for instance, the question is whether the killing was from a provocation given at the time, or from previous malice, evidence of the prisoner's having been too drunk to carry malice may be admitted. And the consideration is not to be withheld from the jury, that his drunkenness may render more weighty the pre- sumption of his having yielded to the provocation rather than to the previous malice, because of the fact that a drunken man's passions are more easily aroused than a sober one's. Tiiis doc- trine differs from the untenable one that drunkenness excuses or » Swan ». S. 4 Humph 136, 141 ; Kelly section is not applicable. As to which V. S. 3 Sm. & M. 518 ; Reg. v. Cruse, 8 Car. and other similar and connected questions, &P. 541, 546; Haile w. S 11 Humph 1.54; see Nicliols o. S. 8 Ohio St. 435; P. i: Pirtle V. S. 9 Humph. 663 ; Reg. v Moore, 3 Ferris, 55 Cal. 588 ; Walker v. S. 7 Tex. Car. &K. 319; U. S. «. Roudenbush, supra. Ap. 627; S. v. Barbee, 92 N. C. 820; 2 Post § 728-730. Lancaster r. S. 2 Lea, 575 ; Marshall v. S. 8 Cline V. S. 43 Ohio St. 332 ; Walker 59 Ga. 154 ; JefCries v. S. 9 Tex. Ap. 598 ; V. S. 85 Ala. 7, 7 Am. St. 17; Reg. v. Surber v. S. 99 Ind. 71 ; Conn v. P. 116 Doody, 6 Cox C. C. 463 ; Reg. r. Stop- 111. 458 ; Patterson v. S. 66 Ind. 185 ; P. ford, 11 Cox C. C. 643 ; Mooney v. S. 33 v. Odell, I Dak. 197. Ala. 419; S. v. Garvey, II Minn. 154. « Ante, § 401. And see S. r. Bullock, 13 Ala. 413 ; Reg. ' Reg. v. Doherty, 16 Cox C. C. 306 ; V. Cruse, 8 Car. & P. 541, 546. There are Harris v. S. 34 Ark. 469 ; S. v. Trivas, 32 exceptional courts that do not require a La. An, 1086, 36 Am. R. 293. specific intent in these cases, and to « See C. «. Hawkins, 3 Gray, 463 ; and such form of the law the doctrine of this other cases cited ante, § 401. 253 § 416 THE REQUIRED EVIL INTENT. [BOOK IV. palliates passion or malice.^ So intoxication is relevant to the question whether the prisoner, in language proven against him, spoke from a deliberate, evil purpose, or merely uttered the idle words of a drunken man.^ This evidence, moreover, assists iu determining whether a defendant acted under the belief that his property or person was about to be attacked.^ § 415. Heat of Passion. — In New York, intoxication is deemed pertinent to the question whether and how far an act was done in the heat of passion, and in general explanation of the defendant's conduct ; but it will not reduce a killing, which in a sober person would be murder, to manslaughter.* § 416. The Doctrine of this Chapter restated. Though mere private intoxication is not under the common law indictable, it has always been regarded so far an evil act that its voluntary commission will supply the place of a general indif- ference to the right or purpose to do wrong. So that a wrong of the indictable sort, if committed by one who is voluntarily drunk, is punishable the same as though the doer was sober. But if one is drunk, though from his own fault, not having entertained the special intent required in some exceptional offences, and if his in- toxication is so deep as to render the entertaining of such intent impossible, it is but a truism to say that he does not have the in- tent. And if the intent is in law an indispensable element in the crime, it is simply axiomatic to say that he cannot commit the crime by doing the act without the intent. In former times, this truth was not well apprehended by the courts. Perhaps it is not so by all even now ; but on the whole the doctrine as thus stated has become sufficiently established by the judicial authorities. Not all the possible illustrations of it are given in this chapter, but enough to make it plain and point the way for the future. 1 S. V. McCantg, 1 Speers, 384 ; Rex v. mill, 2 Par. Cr. 223. See also an article in Thomas, 7 Car. & P. 817 ; Rex v. Meakin, 16 Law Reporter, 552. And see Rogers v. 7 Car. & P. 297 ; Haile w. S. 11 Humph. P. 3 Par. Cr. 632 ; Jones v. S. 29 Ga. 594. 154 ; Kelly v. S. 3 Sm. & M. 518 ; Pear- 2 Rex v. Thomas, 7 Car. & P. 817 ; P. son's Case, 2 Lewin, 144 ; Smith v. C. 1 v, Eastwood, 4 Kern. 562. Duv. 224; GoUiher v. C. 2 Duv. 163, 87 s Marshall's Case, 1 Lewin, 76; Reg. Am. D. 493 ; 3 Greenl. Ev. § 6. But see v. Gamlen, 1 Fost. & F. 90. And see Rex V. Carroll, 7 Car. & P. 145, overruling Eastwood v. P. 3 Par. Cr. 25, 56. Rex V. Grindley, 1 Russ. Crimes, 3d Eng. * P. v. Rogers, 18 N. Y. 9, 72 Am. D. ed. 8. And see S. v. John, 8 Ire. 330, 49 484. And see P. v. Eastwood, 4 Kern. Am. D. 396 ; Pirtle v. S. 9 Humph. 663 ; 562, 564 ; Golden v. S. 25 Ga. 527 ; S. v. P. V. Robinson, 2 Par. Cr. 235 ; P. v. Ham- CrOBB, 27 Mo. 332. 254 CHAP. XXVIII.] CAPACITY OP CORPORATIONS. § 417 CHAPTER XXVIII. THE CAPACITY OF CORPORATIONS FOB CRIME. Compare with — Bishop Non-Con. Law, § 718-769. §417. 1. A Corporation, — especially as viewed from the stand- point of the criminal law, is an artificial creation of the law, con- sisting of one or several persons endowed with a part of the duties and capabilities of an unincorporate man.i To determine what part and how much it covers, we look at its particular nature and objects, and the terms of the act of incorporation. Hence, — 2. Its Criminal Capabilities defined. — A corporation cannot in its corporate. capacity commit a crime by an act in the fullest sense ultra vires and contrary to its nature. But within the sphere of its corporate capacity, and to an undefined extent beyond,^ whenever it assumes to act as a corporation it has the same capabilities of criminal intent and of act — in other words, of crime — as an individual man sustaining to the thing the like relations. 3. This Definition — is new, not, SO far as the author is aware, appearing elsewhere in the books; but it is believed to be as accurate and as exact as the present condition of the legal authorities permits. 4. Criminal Intent. — Some have stumbled on the seeming im- possibility of the artificial and soulless being, called a corporation, having an evil mind or criminal intent. In this view, it was said in an old case that a corporation is not indictable, yet its indi- vidual members are.^ But the author explained in another work that since a corporation acts by its officers and agents, their pur- poses, motives, and intent are just as much those of the cor- poration as are the things done.* If, for example, the in- visible, intangible essence or air, which we term a corpora- tion, can level mountains, fill up valleys, lay down iron tracks, 1 Bishop Con. § 559, 1003; Bishop ^ Bishop Non-Con. Law, § 733. Non-Con. Law, § 719; Angell & Ames ' Anonymous, 12 Mod. 559. Corp. § 1 . And see Stewart v. "Waterloo * Bishop Non-Con. Law, § 720-734. TnrnVerein, 71 Iowa, 226, 60 Am. E. 786. 255 § 420 THE REQUIRED EVIL INTENT. [BOOK IV. and run railroad cars on them, — it can intend to do it, and can act therein as well viciously as virtuously. § 418. The Ordinary Crimes, — wherein only general evil, or the mere purpose to do the forbidden thing,^ suffices for the intent, are plainly within this doctrine. But, to present a steep contrast, the intent essential to murder in the first degree,^ and the thing itself, would palpably be so far ultra vires as to be beyond the competency of the corporation, even if it could be hung in punish- ment. Returning affirmatively to its adjudged powers, — § 419. 1. 'Ways — (To-wns — Railroad and Turnpike Com- panies). — Towns and parishes are corporations of a particular kind, and the courts hold them to be indictable for nuisance in not repairing the highways and bridges which their duty requires them to repair.* The same also is adjudged of railroad * and turn- pike ^ companies. And, generally, — 2. Nuisance. — Corporations can commit criminal nuisance the same as individuals.^ And — 3. Neglects. — When the law casts upon any corporation an obli- gation of such a nature that the neglect of it would be indictable in an individual, the corporation neglecting it may be indicted.^ § 420. 1. Misfeasance. — The wrong in most of the eases just stated is a non-feasance ; and where there is a corporate duty, it is easy thus to hold the corporation indictable for neglecting it.* By some it is denied that the same consequence follows a corporate misfeasance.® Accordingly, — 2. Obstructing TWay, &c. — In Maine, an indictment was ad- judged not to lie against a corporation for the nuisance of erecting a dam across a river ; i" and, in Virginia, for obstructing a high- 1 Ante, § 343-345. ' See the previous notes, also Grant on 2 Ante, § 409, 410. Corporations, 283 ; P. v. Albany, 11 Wend. 5 Grant on Corp. 283 ; S. v. Barksdale, 539 , Lyme Regis i-, Henley, 3 B. & Ad. 5 Humph. 154; S. v. Murfreesboro'; 11 77,92,93; Angell & Ames Corp. § 394. Humph. 217 ; Eex v. Hendon, 4 B. & Ad. And see Reg. v. Birmingham and Glouces- 628. See Smoot v. Wetumpka, 24 Ala. ter Ry. 1 Gale & D. 457, 5 Sm. 40. 112 ; Vol. II. § 1281. 8 Texas, &c. Rid. v. S. 41 Ark. 488. * Reg. V. Birmingham and Gloucester ' S. v. Great Works Milling and Man. Ry. 2 Gale & D. 236, 9 Car. & P. 469, 6 Co. 20 Me. 41, 37 Am. V). 38; C. v. Swift Jur. 804, 3 Q. B. 223. Run Gap Turnpike, 2 Va. Cas. 362 ; S. v. 6 Waterford and Whitehall Turnpike Ohio and Mississippi Rid. 23 Ind. 362. V. P. 9 Barb. 161. See S. v. Burlington, 36 Vt. 521. « Northern Cent. Ry. v. C. 90 Pa. 300 ; w S. v. Great Works Milling and Man. Louisville, &c. Rid. v. C. 13 Bush, 388, 26 Co. supra. In such a case, an indictment Am. R. 205 ; S. v. Portland, 74 Me. 268, would lie, the court said, against the in- 272, 43 Am. R. 586. dividual members committing the act. 256 CHAP. XXVIII.] CAPACITY OP CORPORATIONS. § 422 way.^ But the contrary is established in England ; and there, if an incorporated railway company obstructs a highway, — as, for example, by laying a track over it on a line not conformable to the act of incorporation, — criminal proceedings are maintainable for the ■ nuisance. " Many occurrences may be easily conceived," said Denman, C. J., " full of annoyance and danger to the public, and involving blame in some individual or corporation, of which the most acute person could not clearly define the cause ; or as- cribe them with more correctness to mere negligence in prevent- ing safeguards, or to an act rendered improper by nothing but the want of safeguards." ^ This English doctrine prevails also in New Jersey,^ Massachusetts,* Vermont,^ Pennsylvania,^ and Ten- nessee,'' and evidently it is the better doctrine in principle.^ § 421. 1. Limit as to Non-feasance. — To render a corporation indictable for a non-feasance, it must have the power of acting ; the same rule applying to it as to an individual. Thus, -^ ■ 2. Railway controlled by Receiver. — If the affairs of a railway corporation are under the sole management of a receiver, over whose acts it has no control, it is not liable to a criminal prose- cution for the nuisance of obstructing a highway by stopping thereon its trains ; because, said Bennett, J., " no man or corpo- ration should be made criminally responsible for acts which he has no power to prevent." ® § 422. 1. Limit as to Misfeasance. — Not every misfeasance which would be indictable in an individual is so in a corpora- tion. It must be within, or not too far outside of, the corporate duty.^" Therefore, — 2. Treason — Felony — Perjury. — In a Case cited a little way 1 C. V. Swift Run Gap Turnpike, supra. ^ S. v. Vermont Central Rid. 27 Vt. 2 Reg. V. Great North of England Ry. 103, 30 Vt. 108. 9 Q. B. 315, 10 Jur. 755, 16 Law J. N. S. » Northern Cent. Ry. k. C. 90 Pa. 300. M. C. 16 J Rex V. Medley, 6 Car. & P. ' Louisville and Nashville Rid. u. S. 3 292 ; Angell & Ames Corp. § 395. In Head, 523, 75 Am. D. 778. England it is even held that a corpora. ^ See also, as lending support to this tion may be made a defendant in the civil doctrine, "Wartman o. Philadelphia, 33 action for assault and battery. Eastern Pa. 202 ; Whitfield v. Southeastern Rid. 1 Counties Ry. v. Broom, 6 Exch. 314, 15 Ellis, B. & E. 115 ; Benson v. Manufac- Jur. 297, 20 Law J. N. s. Exch. 196. And turing Co. 9 Met. 562. And see C. v. such has become the universal common- Ohio and Pennsylvania Rid. 1 Grant, Pa. law doctrine. Post, § 422 (3). 329; S. y. Cincinnati Fertilizer Co. 24 8 S. V. Morris and Essex Rid. 3 Zab. Ohio St. 611 ; Two Sicilies v. Wilcox, 1 360. 4 C V. New Bedford Bridge, 2 Gray, » S. ». Vermont Central Rid. 30 Vt, 108. 339_ 10 See ante, § 417. VOL. I. — 17 Sim. N. s. 332, onl 257 § 424 THE REQUIRED ETIL INTENT. [BOOK IV. back,i Demnan, C. J., said : " Some dicta occur in the old oases, ' A corporation cannot be guilty of treason or of felony.' It might be added, ' of perjury, or offences against the person.' ^ ... A corporation which, as such, has no such duties, cannot be guilty in these cases ; but it may be guilty, as a body cor- porate, of commanding acts to be done to the nuisance of the, community at large." So, — 3. Assault — Riot, &o. — It is said that a corporation cannot be guilty of an assault, or riot, or other crime involving personal violence, or any felony .^ But this doctrine, as to civil cases, it would seem equally therefore as to criminal, is old and in the main exploded. In another work we saw the rule to be that the " liabilities of corporations for torts are as broad as their several franchises ; namely, each can commit any tort, whether requiring an evil motive or not, which a man acting within the same limited sphere could do." And among the illustrations are assault and battery, forcible entry, libel, fraud, and malicious prosecution.* § 423. In Principle, — the limits of tlie liability to indictment depend chiefly on the nature and duties of the particular corpora- tion, and the extent of its powers in the special matter. And though a corporation cannot be hung, there is no reason why it may not be fined, or suffer the loss of its franchise, for the same act which would subject an individual to the gallows. § 424. Individual Members Indictable. — Though a corporation is indictable for a particular wrong, still the individual members and officers who participate in it may be also for the same act.^ But they are not so liable in all cases in which the corporation is.^ This question is governed by principles sufficiently explained else- where in these volumes. ' Reg. V. Great North of England Ry. son, but by attorney." Case of Sutton's 9 Q. B. 315, 326. Hospital, 10 Co. 23 a, 32 5. 2 But see apte, § 420, note. * Bishop Non-Con. Law, § 723-734. 3 Reg. u. Birmingham and Gloucester " Reg. v. Great North of England Ry. 9 Ry. 2 Gale & D. 236, 9 Car. & P. 469, 6 Q. B. 315, 327 ; Kane v. P. 3 Wend. 363 ; Jur. 804, 3 Q. B. 223 ; Orr v. Bank of Edge v. C. 7 Pa. 275 ; Kimbrough v. S. 10 United States, 1 Ohio, 36, 13 Am. D. 588. Humph. 97 ; Rex v. Gaul, Holt, 363 ; S. v. " A corporation aggregate of many is in- Conlee, 25 Iowa, 237 ; P. v. England, 27 visible, immortal, and rests only in intend- Hun, 139 ; S. v. Orleans Dist. Judge, 38 ment and consideration of the law. ... La. An. 43, 58 Am. R. 158. See also They cannot commit treason, nor be out- Sloan ». S. 8 Blackf. 361 ; Kane «. P. 8 lawed, nor excommunicate, for they have Wend, 203 ; Rex «. Kingston, 8 East, 41. no souls, neither can they appear in per- « S. v. Barksdale, 5 Humph. 154. And 258 see Vol. 11. § 1270, 1282. CHAP. 2XIX.] WORDS TO INDICATE INTENT. § 427 CHAPTER XXIX. THE WORDS IN LEGAL LANGUAGE TO INDICATE THE INTENT. Compare with — Crim. Pro. I. § .'521-525, 556-558, where the form of the indict- ment as to the Intent is explained. § 425. Language Imperfect. — Our human language is chiefly the product of the necessities of daily life. It preceded science. And when science came it was compelled to use the words it found; it could not to any considerable extent make new ones. Yet some of its terms have gradually acquired a precise meaning when scientifically employed. To some extent this is so in legal science.^ And still while many words in the law have fixed meanings, there are not separate ones to designate every form of the criminal intent. Thus, — §426. Intent in Larceny. — To constitute larceny there must be the specific, intent to deprive the owner of his ownership in the thing taken, but to express this intent the language has no single word. Therefore it employs a circumlocution. And the form is to say that the defendant " feloniously did steal, take, and carry away " the thing.^ By force of constant use and adju- dication this circumlocution, in the paucity of our language, has been made to answer the purpose, and he would be a bold pleader who should dare now to attempt the substitution of another. Moat other Intents — in the criminal law can be more shortly and aptly expressed. The principal single words are the following. § 427. 1. " Felonious," — standing alone, rather designates the grade of the crime — that it is " felony " in distinction from mis- demeanor — than any particular form of the felonious intent. Yet, in a sort of general sense, it points to the intent which enters into a felony.^ 2. "Wilful" — "Malicious." — The appropriate place for these words is in criminal pleading, where they are established too 1 Stat. Crimes, § 269. ' Crim. Pro. I. § 533-537. 2 Crim. Pro. U. § 697. 259 § 429 THE REQUIRED EVIL INTENT. [bOOK IV. firmly to be uprooted.^ They are too vague to be often employed in any treatment of the law itself, except by one with no distinct ideas to convey, or wishing to appear learned when he is not. Naturally, therefore, they are frequently found in statutes. § 428. " Wilful," or " Wilfully," — Sometimes means little more than plain intentionally, or designedly .^ Yet it is more frequently understood to extend a little further, and approximate the idea of the milder kind of legal malice ; that is, as signifying an evil in- tent without justifiable excuse.^ In one case it was said to mean, as employed in a statute in contemplation, " wantonly " or "cause- lessly ; " * in another, " without reasonable ground to believe " the thing lawful.^ And Shaw, C. J., once said that ordinarily in a stat- ute " it means not merely ' voluntarily,' but with a bad purpose ; " ^ in other words, it means corruptly .'' § 429. 1. "Malice," "Malicious," "Maliciously," and "Malice Aforethought," — are words more purely technical than " wilful," or " wilfully." ^ The difference between them is not great, but they require a little separate explanation. Thus, — 2. " Malice Aforethought " — is a phrase transmitted to us from the old statutes of Mayhem and those which elevated to murder the higher forms of felonious homicide, and left the lower to be termed, as they afterward were, manslaughter.^ It is now mostly employed as a technical phrase in indictments, distin- guishing, with the word " murder," the heavier homicide from the lower.^" The meaning of these words is not precisely the same which would probably be given them if employed for the first time in a modern statute. They appear in a statute as far 1 Bouv. Law Diet. Malice, Wilfully ; « C. w. Kneeland, 20 Pick. 206, 220. Eex V. Richards, 7 D. & R. 665 , Eex v. ' S. v. Gardner, 2 Misso. 23 ; Reg. v. Stevens, 5 B. & C. 246. Ellis, Car. & M. 564 ; U. S. v. Railroad 2 Bouv. Law Diet. Wilfully ; Reg. v. Cars, 1 Abb. U. S. 196 ; S. v. Preston, 34 Holroyd, 2 Moody & R. 339 ; C. v. Brad- Wis. 675. See Trimble v. C. 2 Va. Cas. ford, 9 Met. 268; Harrison v. S. 37 Ala. 143 ; Smith v. Wilcox, 47 Vt. 537 ; S. v. 154 ; Hanson v. South Scituate, 115 Mass. Townsell, 3 Heisk. 6 ; S.v. Sandoz, 37 La. 336. An. 376. 3 S. I). Abram, 10 Ala. 928 ; Carpenter 8 ^^jg^ g 437^ 423. V. Mason, 4 Per. & D. 439, 12 A. & E. 629 ; " Vol. II. § 623-628, 672. McCoy i: S. 3 Eng. 451 ; Chapman v. C. 5 "> 1 Chitty Crim. Law, 243 ; Bouv. Whart. 427, 429. 34 Am. D, 565 ; S. a. Law Diet. Malice Aforethought ; Rex v. Whitener, 93 N. C. 590 ; Anderson v. How, Nicholson, 1 East P. C. 346. But see, as 116 N. Y. 336. to Arkansas, Anderson r. SI 5 Pike, 444. * Smith V. Barnham, 1 Ex. D. 419, 423. And see Crim. Pro. II. § 497-502, 544- 5 Owens V S. 19 Tex. Ap. 242; Loyd 549. V. S. 19 Tex. Ap. 321 ; Rose v. S. 19 Tex. Ap. 470. 260 CHAP. XXIX.] WORDS TO INDICATE INTENT. § 429 back as 1389 (13 Rich. 2, stat. 2, c. 1), and in several other early statutes ; therefore they were first interpreted when courts took more liberties with legislative enactments than they do now. So that it is said in an old book : " He that doth a cruel act volun- tarily, doth it of malice prepensed. By the statute of 5 Hen. 4, if any one out of malice prepensed shall cut out the tongue or put out the eyes of another, he shall incur the pain of felony. If one doth such a mischief on a sudden, that is malice prepensed ; for, saith my Lord Coke, if it be voluntarily, the law will imply malice." ^ The effect of the word " aforethought " in this phrase is not great ;2 and in opinions of courts and other law writings we frequently meet with language from whicli " malice " alone would seem to signify the same thing as "malice aforethought ;"3 but apparently the better use assigns to the former a meaning somewhat less intense in wickedness than to the latter.* The chapters' on Homicide and Mayhem in the second volume will supply the minuter explanations. 3. " Malice," " Maliciously,", — standing apart from " afore- thought," will somewhat vary in meaning with the subject, and with connected statutory words. This word is not often under- stood to require general malevolence, or unkindness of heart, or enmity toward a particular individual ; but it signifies rather the intent from which flows any unlawful and injurious act, com- mitted without legal justification.^ Yet in Texas it was defined as " a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." ® In 1 Reg. V. Mawgridge, J. Kel. 119, 127. Spear, 4 Mason, 115; C.v Bonner, 9 Met. 2 Vol. II. §677. 410; S. B.Doig,2Ricli. 179; Reg.a.Tivey, ' 4 Bl. Com. 198, 199 ; 3 Greenl. Ev. 1 Den. C. C. 63 ; Rex u. Salmon, Russ. & § 144; Beauchamp v. S. 6 Blackf. 299; Ry. 26; Respublica v. Teischer, 1 Dall. C. V. Green, 1 Ashm. 289, 296. 335 ; Rex v. Reynolds, Russ. & Ry. 465 ; * Reg. V. Griffiths, 8 Car. & P. 248 ; Rex v. Hunt, 1 Moody, 93 ; Griffin v. Anonymous, s. C. 2 Moody, 40. And see Chubb, 7 Tex. 603, 615, 58 Am. D. 85 ; Wright V. S. 9 Yerg. 342. As to the mean- Buckley v. Knapp, 48 Mo. 152, 160 ; Bar- ing of the words " malice aforethought," bee v. Hereford, 48 Mo. 323 ; C. v. Good- see Reg. V. Tyler, 8 Car. & P. 616, 620; win, 122 Mass. 19 ; U. S. u. Harriman, 1 XJ. S. V. Cornell, 2 Mason, 60, 91 ; S. v. Hughes C. C. 525, 528 ; S. v. Robbins, Will, 1 Dev. & Bat. 121, 163 ; Beauchamp 66 Me. 324 ; 2 Greenl. Ev. § 453. And V. S. 6 Blackf. 299 ; S. v. Simmons, 3 Ala. see Taylor v. S. 4 Ga. 14 ; McGurn i. 497 ; Vol. II. § 672 et seq. Brackett, 33 Me. 331 ; S. v. Pierce, 7 Ala. s'c. V. Snelling, 15 Pick. 337; S. v. 728; Dozier v. S. 26 Ga. 156; U- S. v. Crawford, 2 Dev. 425, 428, 429; C. v. Taylor, 2 Sumner, 584. Green, 1 Ashm. 289, 296 ; Bromage v. •* Harris v. S. 8 Tex. Ap. 90, 109 , Mc- Prosser, 4 B. & C. 247, 255 , Dexter v. Kinney v. S. 8 Tex. Ap. 626. If I rightly 261 429 -THE REQUIRED EVIL INTENT. [book IV. Massachusetts, " maliciously," in the statute against malicious mischief, was held not to be sufficiently defined as " the wilfully doing of any act prohibited by law, and for which the defendant had no lawful excuse ; " but it means more.^ And the words " wilful and malicious " cover together a broader nieaniug than " wilful " alone.2 Sometimes malice is a mere inference of law from facts proved.^ Hence thei distinction between expressed and implied malice.* understand the case of Dempsey v. S. 27 Tex. Ap. 269, 272, 11 Am. St. 193, J95, the present penal code in Texas defines malice, thus : " Any unlawful act done wilfully and purposely, to the injury of another, is, as against that person, malicious." See also Dozier v. S. 26 Ga. 156. 1 C. V. Walden, 3 Cush. 558. And see Stat. Crimes, § 434, 435, 437 ,; Reg. v. Pembliton, Law Rep. 2 C, C. 119, 12 Cox 262 0. C. 607 ; Reg. v. Upton, 5 Cox C. C. 298 ; U. S. V. Taylor, 2 Sumner, 584. ' S. V. Alexander,, 14 Rich. 247. 8 Worley «. S. 11 Humph. 172,- C. v. Green, 1 Ashm. 289, 296 ; Beanchamp v. S. 6 Blackf. 299; S. v. Town, Wright, 75 J 1 East p. C. 371. * Anthony v. S. 13 Sm. & M. 263 ; Bromage v. Prosser, 4 B. & C. 247, 255, 256; Vol. IL § 675. CHAP. XXX.] GENERAL NATURE OP THE ACT. § 432 BOOK V. THE ACT WHICH MUST COMBINE WITH THE EVIL INTENT TO CONSTITUTE CRIME. CHAPTER XXX. THE GENERAL NATURE OP THE REQUIRED Afcl. § 430. Act and Intent combining. — It has already been ex- plained ^ that only by a combination of act and intent is ciime constituted.. No amount of intent alone, or of act alone, is suffi- qient ; the two must combine.^ So also — § 431. The Sort of Act — has in some measure appeared. It must be one from which the power that prosecutes — namely, the State or public — has suffered, and whereof it has occasion to complain ; ^ it must be of a nature injuring the public, in dis- tinction from an individual, or such a private injui-y as the public protects the individual against, for public reasons ; * and, finally, it must be sufficient in amount of evil to demand judicial notice.^ In other words, the State must have an interest, and of adequate magnitude, in the subject-matter of the litigation.^ To proceed with some illustrations, leaving the minuter details for chapters further on, — § 432. Conspiring as an Act. — The mere conspiring of two or more ' persons to do a wrong is an adequate act of crime without 1 Ante, § 204 et seq. ' Ante, § 32, 204. 2 And see Chatfield v. Wilson, 28 Vt, * Ante, § 230-254. 49 ; Morgan v. Bliss, 2 Mass. HI; Tay- ^ Ante, § 213, 214, 223-228. lor V. Alexander, 6 Ohio, 144; Bancroft « P. f. Booth, 32 N. Y. 397. V Blizzard, 13 Ohio, 30, These are civil ' C. «. Hanson, 2 Ashm. 31 , S. v. Tom, cases, yet viewed together they admirably 2 Dev. 569. illustrate the doctrine of the text. 263 § 435 THE ACT ESSENTIAL IN, CRIME. [BOOK V. any step taken in pursuance of the conspiracy.^ There are States, prominent among which is New York, wherein a statute makes it necessary that either generally or in specified cases an overt act be added, to complete the offence.^ Again, — § 433. 1. Neglect an Act. — There are circumstances wherein men are indictable for what the law calls neglect.^ It is in the legal sense an act, — a departure from the order of things estab- lished by law, a checking of action. It is , like a man's stand- ing still while the company to which he is attached moves along, when we say, he leaves the company. On this principle, — 2. Continuing Nuisance. — One under legal obligation to remove a nuisance is indictable when he suffers it to continue.* § 434. Injurious Nature of Act. — An act may be in itself evil, or evil in consequence only of its tendency. And though the State does not punish a mere intent to do wrong, not developed into anything done to the public injury, it often holds indictable an act which is indifferent in its nature but of evil tendency, and prompted by an evil motive.^ One going upon his own land and as a trial of skill discharging loaded fire-arms at a mark, does what is in no sense harmful ; but if, with the intention to take the life of a human being, he aimed his gun at a man, and the charge accidentally hit the mark instead of the man, a grave offence would be committed, though the thing accomplished was in both the supposed instances the same. Therefore, to state the principle more broadly, — § 435. 1. Attempt. — Whenever a man, intending to commit a particular crime, does an act toward it, but is interrupted or some accident intervenes so that he fails to accomplish what he meant, be is still punishable. This is called a criminal attempt.^ 1 C. V. Judd, 2 Mass. 329, 337, 3 Am. 2 P. v. Chase, 16 Barb. 495, 498 ; Vol. D. 54 ; C. u. Tibbetts, 2 Mass. 536, 538 ; II. § 192. And see P. v. Mather, 4 Wend. C. V. Warren, 6 Mass. 74 ; P. v. Mather, 4 229, 259, 21 Am. D. 122 ; S. u. Norton, 3 Wend. 229 ; S. o. Cawood, 2 Stew. 360 ; Zab. 33. S. V. Buchanan, 5 Har. & J. 317, 9 Am. ' See ante, § 313 et seq. D. 534 ; Collins v. C. 3 S. & R. 220 ; Mor- ' Indianapolis v. Blythe, 2 Ind. 75. ganu. Bliss, 2 Mass. HI, 112; O'Connell 5 "The intent may make an act, in- V. Reg. 11 CI. & P. 155, 9 Jur. 25 ; C. v. nocent in itself, criminal." Rex v. Sco- Eastman, 1 Cush. 189, 48 Am. D. 596 , C. field, Cald. 397, 400, by Lord Mansfield V. McKisson, 8 S. & R. 420, 11 Am. D. and by BuUer, J. And see the cases 630 ; Sydserfe v. Reg. 11 Q. B. 245 ; P. v. cited, ante, § 204, 206 ; also the chapter Richards, 1 Mich. 216, 51 Am. D. 75 ; S, beginning at § 323. V. Ripley, 31 Me. 386; Reg. «. Tnrvy, « Post. § 723 et seq. Holt, 364 ; S. V. Noyes, 25 Vt. 415 ; Vol. IL § 192. 264 CHiP. XXX.] GENERAL NATURE OP THE ACT. § 435 And by this name " attempt " the language of our American law designates every indictable act of the like sort.^ But — 2. Endeavor short of Attempt. — The English courts refine more nicely. They appear to term an act toward doing the criminal thing an attempt only when it is closely proximate to the sub- stantive crime meant.^ But they will sustain a common-law indictment for an " endeavor " not thus proximate, while our courts will do the same, but call it an "attempt." Thus, — 3. Procuring Dies for Counterfeiting. — The English judges sus- tained an indictment at the common law for simply procuring dies to make counterfeit half-dollars of the currency of Peru. There was a statute under which the actual making of the counter- feits would have been punishable, and it was not questioned that ' therefore an attempt to make them would have been indictable at the common law. But, said Jervis, C. J. : " This is not an in- dictment for an attempt to commit the statutable offence, as was the case in Regina v. Williams.^ No doubt, if that were the case, this conviction must have failed, for here there has been no direct attempt to coin ; but this is an indictment founded on the criminal intent coupled with an act. I will not attempt to lay down any rule as to what is such an act done in furtherance of a criminal intent as will warrant an indictment for a mis- demeanor, for I do not see the line precisely myself ; but it is not difficult to say that the act done in this case is one which falls within it. If a man intends to commit murder, the walking to the place where he purposes to commit it would not be a suffi- cient act to evidence the intent, to make it an indictable offence ; but in this case no one can doubt that the procuring of the dies and machinery was necessarily connected with the offence, and was for the express purpose of the offence, and could be used for no other purpose." And Parke, B. : " Had the prisoner with the intent to coin merely gone to Birmingham with the object of procuring the dies for coining, and had not procured them, the act, I agree, would have been too remote from the crim- inal purpose to have been the foundation of a criminal charge. An attempt to commit a felony is not the only misdemeanor connected with it. It is a misdemeanor to do any act suffi- 1 pogt_ s 724. ° Reg- "• Williams, 1 Den. C. C. 39. 2 See ante, § 214 and accompanying elucidations. 265 § 437 THE ACT ESSENTIAL IN CRIME. [BOOK V. ciently proximate to the offence, with the intent of commit- ting it. Now, I do not see for what lawful purpose the dies and apparatus could have been made. The case of statutory- attempts to commit felonies is very different ; there, to support the conviction, proof must be given of an attempt to do the very criminal act." ^ These observations, which are fairly exact in principle, illustrate the already-considered doctrine of the — § 436. Magnitude of the Act — Proximity. — Our law in the criminal department, the same as in the civil, does not take cog- nizance of things trifling and small.^ Two questions concerning the act are always to be considered together, — first, whether it is of the sort which the criminal law takes cognizance of ; secondly, whether, being such, it has proceeded far enough for the law's notice. And it must go more or less far — be nearer or less near to the end meant — according as it is more or less intensely criminal in its nature. §437. 1. Attempts made Substantive Offences. — The law has designated a few of the more mischievous forms of criminal at- tempt by special names, and thus elevated them to substantive offences. One of these is — 2. Burglary. — If a man in the night-time breaks into a dwelling- house, intending to commit therein some act which in law is felony, he is guilty of burglary, whether he succeeds in doing what he meant or not.^ Therefore burglary is a particular species of criminal attempt. Again, — 3. Perjury — appears to be regarded as an attempt (to subvert justice in a judicial proceeding) ; for a man commits this offence who testifies to what he believes to be false, or what he knows nothing about,* though it turns out to be true.^ So, — . 4. uttering Forgery — (No Fraud accomplished). — If a statute forbids, the putting off of a forged bank-note, with intent to de- fraud the bank ; and one with this intent puts off the note to an agent of the bank employed unknown to him to detect offenders^ ' Reg. V. Roberts, 33 Eng. L. & Eq. Hughes, 1 Leach, 406, 2 East P. C. 491 ; 553, Dears. 539, 25 Law J. n. s. M. C. 17. Rex v. Knight, 2 East P. C. 510, Anony- The language of the judges, quoted in the mons, Dalisou, 22 ; Vol. II. § 90, 109-113. text, is copied from the English Law & 4 p. „, McKinney, 3 Par. Cr. 510. Equity report, differing verbally from the 6 Rex v. Edwards, 2 Russ. Crimes, 3d report of Dearsly. Eng. ed. 597, and the other authorities 2 Ante, § 213, 214, 223-228. there cited ; 1 Hawls. P. C. Curw. ed. » S. V. Wilson, Coxe, 439, 1 Am. D. p. 433, § 6; Vol. II. § 1043, 1044. 216; C. V. Newell, 7 Mass. 245; Rex v. 266 CHAP. XXX.] GENERAL NATURE OP THE ACT. § 439 and so not imposed upon, — he commits the offence; because the law leaves it unimportant whether or not a fraud is effected, pro- vided it is attempted, and the putting off is complete.^ And — 5. In Treason — it is not essential for the treasonable purpose to be successful. So that if letters to an enemy are intercepted, they may still constitute a sufi&cient overt act.^ But — § 438. 1. Further of Act being Injurious. — Unless the act is within some exceptional principle, as in the cases just stated, it must be in its own nature criminal, or tending to mischief, or prohibited by law. And no offence is committed when one, sup- posing himself to be executing some evil design, yet mistaking facts, accomplishes neither the wrong meant nor anyttiing else of a publicly injurious nature.^ Thus, — 2. Robbery — (Pear, or not). — In the absence of actual or con- structive violence,* one commits this offence only when the other yields through fear. And when the latter, without fear, parts with his money simply to prosecute the offender, this crime is not committed.^ But if there is an assault which would furnish a reasonable ground for fear, the robbery is complete though the person assaulted relinquishes his money for the purpose of bring- ing to punishment the wrong-doer.® In like manner, — 3. False Pretences — (Collecting Debt — Ineffectual Pretence). — Under the statutes against false pretences, it is not indictable to induce one by the pretence to pay what he justly owes ; because he is not thereby legally injured.'^ And nothing is a false pre- tence which has no tendency to, and does not, induce a man to part with his goods ; since it neither harms nor tends to harm.* Again, — § 439. Obstruction of Public Way. — Though a highway has been duly laid out, if by reason of natural obstacles or otherwise 1 Rex V. Holden, 2 Taunt. 334, Euss. & 616, 1 Russ. Crimes, 3d Eng. ed. 890 ; Ey. 154, 2 Leach, 1019; Vol. 11. § 605. Eex u. Jackson, 1 Russ. Crimes, 3d Eng. And see, as illustrative, Cassels u. S. 4 ed. 892, 1 East P. C. Addenda xxi. ; Vol. Yerg. 149 ; Wriglit v. S. 5 Yerg. 154, 26 II. § 1174, 1176. Am. D. 258. ^ Norden's Case, Foster, 129, 1 Euss. 2 Rex V. Jackson, 1 Crawf. & Dix C. C. Crimes, 3d Eng. ed. 880, 891, 892. 149. And see Rex v. Gordon, 2 Doug. ' P. v. Thomas, 3 Hill, N. Y. 169 ; 590 ; 1 East P. C. 58. Rex v. Williams, 7 Car. & P. 354 ; Vol. 8 And see ante, § 204, 330. II. § 466. * 1 Russ. Crimes, 3d Eng. ed. 875, 879, '' C. v. Davidson, 1 Cush. 33 ; Eex v. 891, 892. Dale, 7 Car. & P. 352 ; S. v. Little, 1 6 Eex V. Puller, Euss. & Ry. 408 ; N. H. 257, 258 ; Vol. II. § 433-436, 461- Keane's Case, 2 Bast P. C. 734, 2 Leach, 464. 267 8 441 THE ACT ESSENTIAL IN CRIME. [BOOK V. it cannot be practically used as such, no indictment will lie for its obstruction. The act was not injurious. In the words of Beck, J., the defendant " has injured no one ; he has deprived no one of the exercise of any right, for the atistract right claimed it was impossible for any one to exercise." ^ Even — § 440. 1. Treason — (Mistaking Friends for Enemy). — In treason, which we have seen ^ to be an offence in the nature of attempt, if a man intending to go over to the enemy mistakes some troops of his own country for the enemy's, and goes to them, he does not become thereby a traitor .^ So, — 2. stealing Post-Offioe Letters. — Under the English statutes against larceny of letters from the post-office, — construed to apply only to those deposited in the ordinary way, — if a letter is dropped in to detect a suspected carrier, and he steals it sup- posing it to have come in the usual course, he is not guilty.* Also, — 3. Resisting Officer without Warrant. — It appears that where resistance to an officer is justifiable because of his having no warrant or an imperfect one, the justification is effectual equally whether the person resisting knew the fact or not.^ Likewise, — 4. Perjury on Invalid Proceedings. — If the proceedings in court are simply void, a false oath taken therein is not perjury .^ § 441. Ignorance of a Justifying Pact, — existing when one did a thing apparently criminal, will not prevent his bringing it for- ward in defence when afterward it comes to his knowledge. This is believed to be the true doctrine, but we have an English case the other way. A constable was indicted under a statute for shooting at a man with intent to do him grievous bodily harm. The man was committing what would be a misdemeanor if a first offence, or a felony if a second : in the former alternative, the shooting would be unlawful ; in the latter, lawful. In fact, this was a second offence, but the constable did not know it, therefore the judges held him to be guilty of the statutory crime.^ This decision cannot be reconciled with the principle, believed to be 1 S. «. Shinkle, 40 Iowa, 131, 132. Curt. C. C. 364. And see Vol. II. § 904, ■•' Ante, § 437. note, par. 5. » Respublica v. Malin, 1 Dall. 33. ^ gee Foster, 311 et seq. ; 1 East P. C. ' Reg. 0. Rathbone, 2 Moody, 242, Car. 325 et seq. & M. 220 ; Reg. u. Gardner, 1 Car. & K. " Rex v. Cohen, 1 Stark. 511. 628. As to the statutes of the United ' Reg. v. Dadson, 2 Den. C. C. 35, States on this subject, see U. S. v. Foye, 1 Temp. & M. 385, 14 Jur. 1051, 1 Eng, L. 268 & Eq. 566. CHAP. XXX.J GENERAL NATURE OP THE ACT. § 442 sound, and sustained by various cases already cited in this chap- ter, that a defendant may rely on any fact which justifies him in law, though he was ignorant of it when the transaction occurred. If one should go out and take the life of a wild monster, believed by him to be human, but a scientific examination should disclose that it was not, — would he be guilty of murder ? No lawyer probably would so hold.^ § 442. This Brief Chapter — is intended to present general views, and it does no more, except in its illustrations which are specific. We shall descend to the more minute in succeeding chapters. It is as when we would examine a city to become familiar with its streets, its buildings, and its people ; we first look upon it from some eminence and there gain a comprehensive idea of its situa- tion, magnitude, and larger aspect ; then, descending, take our more exact observations, relying for positive knowledge mostly on the latter. 1 And see, for further illustrative mat- cident does not kill an Englishman but ter, Rex «. Ady, 7 Car. & P. 140 ; Reg. v. an enemy, the moral guilt is the same, but James, 2 Den. C. C. 1, 12, note; Rex v. the legal effect is different. The accident Lovel, 2 Moody & R. 39. Also, The has turned up in his favor ; the criminal Abby, 5 Rob. Adm. 251, 254, where Lord act intended has not been committed, and Stowell observed : " If a man fires a gun the man is innocent of the legal offence." at sea, intending to kill an Englishman, And see Ridgway v. Hungerford Market, which would be legal murder, and by ac- 3 A. & B. 171. 269 446 THE ACT ESSENTIAL IN CRIME. [BOOK V. CHAPTER XXXI. HOW THE SUBJECT OP THE CRIMINAL ACT MAT BE DIVIDED. § 443. The Object of this Chapter — is to inquire into what divi- sions the act which, in connection with the intent, constitutes crime, may be separated for the purpose of the minuter investiga- tions to follow ; namely, investigations into what is and what is not indictable at the common law, and somewhat under statutory expansions of the criminal-law field. § 444. Blaokstone's Division of Crime. — Various divisions have been proposed or adopted ; Blackstone's is as popular as any, thus : (1) Offences against God and religion ; (2) Offences against the law of nations ; (3) Offences against the king and govern- ment ; (4) Offences against the commonwealth ; as, against public justice, public peace, public trade, public health, public economy ; (5) Offences against individuals ; namely, against their persons, their habitations, and their property. § 445. Purposes of Division. — All division of crime is arbi- trary, — a mere device of an author to bring the subject aptly to the comprehension of his readers., The law itself is a seamless garment on the body politic. Perhaps, in the hands of Black- stone, his division was for his book the best. In the hands of the present author, and for this work, another will be better. In theory, there is no choice in divisions ; the question is a mere practical one, and that is the best by which the par- ticular author can convey the clearest and most exact idea to his readers. § 446. Division in Present Work. — In this work, we shall con- sider, in successive chapters : (1) The protection of the criminal law to the government, in its existence, authority, and functions ; (2) Its protection to the relations of the government with other governments ; (3) Its protection to the public revenue ; (4) Its protection to the public health ; (5) Its protection to the public morals, religion, and education ; (6) Its protection to the public 270 GHAP. XXXI.] HOW SUBJECT OP ACT DIVIDED. S 449 wealth and to population; (7) Its protection to the public con- venience and safety; (8) Its protection to the public order and tranquillity ; (9) Its protection to individuals ; (10) Its protec- tion to the lower animals. § 447. As to this Division, — if its object were to make the chapters of equal length, it would be unfortunate ; but it will enable us to traverse the whole field, and keep constantly within the subjects indicated by the titles to the several chapters. Thus it will accomplish all that any division can do. § 448. Uses of these Chapters on the Act. — The question firsir presenting itself to a practitioner asked for advice in a criminal cause on either side is, whether or not the thing assumed to have been done is a crime. To enable him to answer this question is the purpose of this series of chapters. Their usefulness, in localities where there are common-law crimes, as there are in most of our States, is obvious. They are also nearly as impor- tant in those States in which all crimes are statutory. This arises from the fact that the statutes are to be construed by the rules of the common law, and so are never truly understood by one ignorant of them.^ § 449. What accomplished in these Chapters. — No book can be so written as to enable persons unacquainted with the subject to decide, merely by looking into it for the particular purpose, on the indictability of a transaction in question. So many consider- ations enter into every inquiry of this sort — it depends so much on technical reasoning, so much on specific precedent, so much on principles of law which no author can crowd into his index in a way to enable a reader to find them, so much on combinations of thought possible only to a trained mind — that, unless one has studied, not merely law in general, but criminal law in particular, it is useless for him to consult a book in an emergency, however well it may be written. He must first study the book ; and if he will not do this, honesty demands that he withhold advice on a question of this nature. But if he will first carefully read the whole of these elementary expositions, he can then investigate, in the other method, a particular topic with effect. 1 Stat. Crimes, § 6, 7, 75, 82, 88, Hi, and many other places. , 271 §451 THE ACT ESSENTIAL IN CRIME. [book v. CHAPTER XXXII. PROTECTION TO THE GOVERNMENT IN ITS EXISTENCE, AUTHORITY, AND FUNCTIONS. § 450. Introduction. 451-455. In General of Subject. 456,457. Menace to Government Itaelf. 458^71. Eelating to OfBce, Official Duties, Acts. 472-479. Incidental Offences against Government. ' 480. Doctrine of Chapter restated. § 450. riow Chapter divided. — We shall consider, I. In Gen- eral of the Subject ; II. Menace to the Government Itself ; III. Crimes relating to Office, Official Duties, and Official Acts ; IV. Incidental Offences against the Government. I. In General of the Subject. § 451. 1. People and Government inseparable. — It was car- dinal doctrine with our English ancestors that the king was for the people, and their interests and his were inseparable. Much more, in our country, where in a higher sense the government is of the people, a part of whom it is, are they and the government one in interest. Indeed, neither can exist without the other. Hence, — 2. Protection to Government. — There is nothing SO directly and certainly injurious to the whole people as an act menacing the existence, the authority, or even any of the minor functions of the government. Nothing, therefore, is more clearly indictable, even though the act is a minute one, if not too trivial ' for the law's notice. Yet plain and undisputed as this proposition is, there are apparently within it acts occupying disputable ground ; osiers were once indictable, but are not now ; and still others are indict- able now, yet formerly they were not. For the conditions of society, the views of mankind, and the positive enactments change 272 1 Ante, § 212 et seq. CHAP. XXXII.] PROTECTION TO GOVERNMENT, § 454 in some degree from age to age, though in the main they are in all ages the same. § 452. Popular and Governmental Interests blending. — In an old book,^ written for the people, and obnoxious to kings because con- ceding so little to them, the author, in praise of Edward III., says : " He had a rule upon his private expenses, a good gloss upon the public, and a platform for the augmenting of the treasure of the kingdom, as well for the benefit of the people as of the Crown." And though he " was a king of many taxes above all his prede- cessors, yet cannot this be iuterpreted as a blot to the honor of the law or liberty of the people ; for the king was not so unwise as either to desire it without evident cause, or to spend it in secret, or upon his own private interests; nor so weak and irresolved as not to employ himself and his soldiers to the utmost to bring to pass his pretensions ; nor so unhappy as to fail of the desirable issue of what he took in hand. So as, though the people parted with much money, yet the kingdom gained much honor and re- nown ; and becoming a terror to their neighbors, enjoyed what they had in fuller security, and so were no losers by the bargain in the conclusion." § 453. Compelling to 'Work — Fixing Wages. — And this gOod king not only taxed the people, but compelled men to work, and fixed by law the wages. " A sick and very crazy time question- less it was, when the clergy were stately and the poor idle. The priests' wages for this cause are now settled ; and they that would get much must get many littles, and do much. But the greater sore was amongst the poorer sort ; either they would- not serve, or at such wages as could not consist with the price of the clothes, and the subsistence of the clothier. Laws, therefore, are made to compel them to work, and to settle their wages ; so as now it is as beneficial to them to serve the meaner sort of clothiers as the richer sort : for the master must give no more, nor the servant take more ; and thus became labor current in all places." ^ § 454. As to Work and Wages, — there is, in just principle, nothing which a government has more clearly the right to do than to compel the lazy to work ; and there is nothing more absolutely 1' " An Historical and Political Dis- ments in England. Collected from some course of the Laws and Government of Manuscript Notes of John Selden, Esq., England, from the First Times to the End by Nathaniel Bacon, of Gray's Inn, Esq., of the Reign of Queen Elizabeth ; with a 5th ed. &c., London, ll&O." Vindication of the Ancient Way of Parlia- ^ Discourse, ut sup. part 2, p. 38-41. VOL. I. — 18 273 § 456 THE ACT ESSENTIAL IN CRIME. [BOOK V. beyond its jurisdiction than to fix the price of labor. In the time of Edward III. it might have been in a sense pardonable to do the latter, while highly commendable to do the former. Even the former would not be tolerated in the present age, except as to paupers and criminals ; yet it ought to be, if necessary. And the reason is that men are dependent on one another, and people and government are mutually so ; while at the basis of all pros- perity, and even life itself, lies active industry. He who lazes his life away, or spends it in useless sports, lives directly or indirectly at the public expense, and pays no equivalent for what he eats, drinks, or wears. He does what is as intrinsically dishonest as to pilfer from door to door. If he has inherited money and lands, they came to him through the laws of the country, and are the gift of the country ; so far, therefore, from their possession justifying him in a life of idleness or dissipation, it places him under a still greater obligation to work. § 455. 'Whether Idleness a Crime. — All, probably, of the Eng- lish statutes thus referred to have been repealed. If they had not, we should know as a result of altered opinions with us upon labor, that they are not a part of our common law, as having been brought by our forefathers from England ; for they would not be deemed adapted to our situation and circumstances. Yet in just principle, wilful idleness in any person, male or female, rich or poor, is criminal ; and if two things existed together which do not, — first, if just views on the subject of labor prevailed, and, sec- ondly, if the punishment of idleness as crime were practically expedient, — idleness would be indictable with us , now. Our statutes and city ordinances against vagrancy and the like are approximations toward this sort of law. II. Menace to the Crovernment Itself. § 456. Treason — is the heaviest offence known to the law; because, with governments as with individuals, self-preservation is the first duty, taking precedence of all others. In this country, treason is either against the Upited States or a State.i In Eng- land, the crime is of wide range ; 2 but in this country it has been greatly limited, treason against the United States consisting " only in levying war against them, or in adhering to their enemies, giv- 1 Ante, § 177. a gee Vol. II. § 1205-1207. 274 CHAP. XXXII.] PROTECTION TO GOVERNMENT, § 457 ing them aid and comfort." ^ And in most of the States the offence against the State has been restricted within nearly or quite as narrow limits.^ Of the like sort, yet — § 457. 1. Less than Treason. — It is not the whole duty of a sub- ject to abstain from the overthrow of the government. He should avoid what tends to its overthrow ; nor should he weaken it, or bring it into contempt, or obstruct its functions in any of its de- partments. And he should render to it his active aid whenever occasion demands. Therefore every act or neglect, in violation of what is thus pointed out as duty, is, when sufficient in magnitude,^ criminal. Within which principle, — '2. Misprision of Treason — is a common-law misdemeanor, as already explained.* And when committed against the general government, it, is punishable under a statute of the United States.^ And — 3. Sedition. — In England, there are various misdemeanors which, not amounting to treason, are similar to it in nature, known under the general name of sedition ; such as libels upon the government, oral slanders of it, riots to its disturbance, and the like.^ The three principal heads are " seditious words, sedi- 1 Const. U. S. art. 3, § .3, cl. 1. And decency and respect, and without im- see Vol. II. § 1214-1222 ; Charge on Law' puting to them any corrupt or improper of Treason, I Story, 614 ; U. S. ». Hoxie, motive. See Rex v. Lambert, 2 Camp. 1 Paine, 265 ; Ex parte BoUman, 4 Cranch, 398. ... If a man curse the queeu, wish 75; Respnblica v. McCarty, 2 Dall. 86; Jier ill, give out scandalous stories con- Eespublica v. Malin, 1 Dall. 33 ; Respnb- cerning her (see Reg. v. Harvey, 2 B. & licaw. Carlisle, 1 Dall. 35; U. S. v. Vigol, C. 257, 3 D. & R. 464), or do anything 2 Dall. 346 , U. S. V. Burr, 4 Cranch, 469 ; that may lessen her in the esteem of her U. S. V. Hanway, 2 Wal. Jr. 139 ; U. S. o. subjects, may weaken her government, or Mitchell, 2 Dall. 348. may raise jealousies between her and her 2 As to New Yqrk, see P. u. Lynch, 11 people, ... all these are sedition. In Johns. 549. See also, as to several of the Rex v. Tutchin, 5 Harg. St. Tr 527, 532, States, 3 Greenl. Ev. § 237, Holt, 424,' Lord Holt said that ' if men ' Ante, § 212 et seq. shall not be called to account for possess- * Ante, § 226; post, § 717. ing the people with an ill opinion of the ' Post, § 703, 722; Vol. IL § 1215. government, no government can subsist; 6 1 Hale P. C. 77 ; 1 East P. C. 48, 49; nothing can be worse to any government Stroud's Case, 3 How. St. Tr. 235 ; Rex v. than to endeavor to procure animosities Prost, 22 How. St. Tr. 47J ; In re Crowe, as to the mauagement of it ; this has al- 3 Cox C. C. 123 ; Reg. v. Fussell, 3 Cox ways been looked upon as a crime, and C. C- 291 ; Reg. B. Lovett, 9 Car. & P. no government can be safe unless it be 462; Oldnoll's Case, 2 Dy. 155 a. In punished.' And Lord Ellenborongh, iu Archbold it is said ■ " A man may law- Rex v. Cobbett, Holt on Libel, 114, Stark, fully discuss and criticise the measures on Libel, 522, said that if a publicaition adopted by the queen and her ministers be calculated to alienate the affections of for the government of the country, pro- the people, by bringing the government Tided he do it fairly, temperately, with into disesteem, whether the expedient 276 § 458 THE ACT ESSENTIAL IN CRIME. [BOOK V. tious libels, and seditious conspiracies." ^ Offences "of this sort against the United States could be punished only under a statute,^ and there has been little occasion for pursuing like offences against the States. Moreover, with us, popular sentiment tolerates great latitude in the discussion of governmental affairs. We have, there- fore, no cases informing us to what extent sedition is an offence at common law in our States. 4. other Menaces. — Some of the offences mentioned in the next sub-title might also be classed among the milder menaces to the government. III. Crimes relating to Office, Official Duties, and Official Acts. § 458. 1. Refusal to accept Office. — The government can be carried on only by officers. Therefore, as already said,^ one's refusal, without lawful excuse,* to accept a public office to which he has been chosen, is indiptable.^ Happily there is in this country, widely diffused, a commendable willingness to do this duty ; therefore indictments for the breach of it are rare. But though this doctrine is of little practical applicability with us,,it plainly is a part of our common law. 2. The Limit of this Doctrine — is the question of difficulty. In no common-law country was there ever a time when men in abundance were not ready and anxious i,o serve in the higher and more honorable and lucrative offices. Therefore the indictments have all been for refusing the lower ones ; ^ such as constable,^ sheriff,^ overseer of the poor,^ and the like. So that the question resorted to be ridicule or obloquy, the offence, with the procedure, Dir. & F. § 621, writer, publisher, &c., are punishable. 939-942. And whether the defendant really in- " Ante, § 199. tended, by his publication, to alienate ^ Ante, § 246 ; Reg. v. Vincent, 9 Car. the affections of the people from the gov- & P. 91 ; Rex v. Burder, 4 T. R. 778. ernment, or not, is not material; if the * Attorney-General i;. Read, 2 Mod. publication be calculated to have that 299; Rex v. Grosvenor, 1 Wils. 18, 2 effect, it is a seditious libel. Rex w. Bur- Stra. 1193; Rex u. Denison, 2 Keny. dett, 4 B. & Aid. 95; Rex v. Harvey, 259; Rex v. Prigg, Aleyn, 78; S. v. supra." Archb. Crim. PI. & Ev. 13th McEntyre, 3 Ire. 171. Lond. ed. 631, 632. For sedition under 6 ^^ to ji^e iovra of the procedure, see the Scotch law, see Sinclair's Case, 23 Crim. Pro. II. § 820-822 ; Dlr. &F. §919, How. St. Tr. 778 ; McLaren's Case, 33 1046, note. How. St. Tr. 1. 6 Ante, § 246. 1 2 Steph. Hist. Crim. Law, 298, where "< Rex v. Mosley, 3 A. & E. 488 ; Reg. the entire subject is explained; Reg. v. v. Vincent, 9 Car. & P. 91. Burns, 16 Cox C. C. 355; Reg. v. Fus- 8 Rex «. Larwood, 3 Salk. 134, 1 Ld. sell, 3 Cox C. C. 291. For more of the Eaym, 29. 8 Rejc V. Burder, 4 T. K. 778. 276 CHAP. XXXII.] PROTECTION TO GOVERNMENT. § 460 as to a high office could not come before the courts. Perhaps the doctrine is limited to mere ministerial offices ; for in reason, the dignity of the office could not bound the doctrine. We have a case holding that the resignation of an office to which one has been appointed is effectual without its acceptance by the appoint- ing power ,1 and this sort of question has often been passed upon by the courts. Plainly an office which the incumbent can as of right resign at will is not of the sort for the non-acceptance of which an indictment will lie.^ , 3. statutes — making the non-acceptance of particular offices penal are not unknown with us, but they are believed not to be common. The author has now before him a case holding such a statute, as to a town office, constitutional.'' § 459. Breaches of Official Duty — (Ministerial). — Any act Or omission in breach of a duty of public concern,* by one who has accepted public office, is, within limitations about to be stated, a crime.^ Particularly is this so where the thing is of a ministerial or Other like nature, and the officer is intrusted with no discre- tion.^ As to the limitations, — § 460. 1. Judicial — Ministerial, with Discretion. — One serv- ing in a judicial or other capacity in which he is required to exercise a judgment of his own, is not punishable for a mere error 1 p. V. Porter, 6 Cal. 26. Hardw. 124 ; Anonymous, 6 Mod. 96 ; 2 Blackstone says ; " Though within Crouther's Case, Cro. Eliz. 654 ; Smith the realm the king may command the v. Langham, Skin. 60, 61 ; W.'s Case, attendance and service of aU his liege- Lofft, 44; Adams v. Tertenants, Holt, men, yet he cannot send any man out of 179 ; S. o. Leigh, 3 Dev. & Bat. 127 ; Rex the realm, even upon the public service; v. Commings, 5 Mod. 179; Rex v. Hem- excepting sailors and soldiers, the nature mings, 3 Salk. 187 ; Smith's Case, Syme, of whose employment necessarily implies 185; Wilkes i>. Dinsman, 7 How. U. S. an exception : he cannot even constitute 89 ; Rex «. Harrison, 1 East P. C. 382 ; a man lord deputy or lieutenant of Ireland Reg. a. Buck, 6 Mod. 306 ; Mann v. Owen, against his will, nor make him a foreign 9 B. & C. 595, 4 Man. & R. 449 ; Rex v. embassador." 1 Bl. Com. 138, referring Bootie, 2 Bur. 864; s. o. nom. Rex v. to 2 Inst 46. Booty, 2 Keny. 575 ; Rex v. Fell, 1 Salk. 8 London «. Headen, 76 N. C. 72. 272, 1 Ld. Raym. 424 ; Reg. <,-. Tracy, 6 * Ante, § 232, 235, 243-246. A pri- Mod. 30 ; S. v. Buxton, 2 Swan, Tenn. 57. vate person injured may have his action « Rex v. Osborn, 1 Comyns, 240 , C. v. against the officer for damages. Jenner Genther, 17 S. & R. 135 ; P. v. Norton, 7 V. Joliffe, 9 Johns. 381. See ante, § 237 Barb. 477 ; Anonymous, Lofft, 185 ; Rex and note 264 "■ Seymour, 7 Mod, 382 ; S. f. Maberry, 3 6 S. V. McEntyre, 3 Ire. 171, 174 ; Reg. Strob. ] 44 ; Taylor v. Doremus, 1 Harri- V Neale 9 Car. & P. 431; Respublica v. son, 473; Stone v. Graves, 8 Misso. 148, Montgomery, 1 Yeates,419; Reg. u. James, 40 Am. D. 131 ; S. v. Stalcup, 2 Ire. 50. 1 Eng L & Ed. 552, 2 Den. C. C. 1 Temp. And see Arnold v. C. 8 B. Monr. 109 ; & M 300 14 Jur. 940; Rex v. Howard, Stoddard v. Tarbell, 20 Vt. 321. , 7 Mod. 307 ; Rex v. Angell, Cas. temp. 277 §461 THE ACT ESSENTIAL IN CRIME. [book v. therein, or for a mistake of the \a,w? His act, to be cognizable criminally, or even civilly, must be wilful and corrupt.^ And if it is strictly judicial, and he is, for instance, a justice of the peace, and has jurisdiction, he will not be liable to the suit of the party, however the law may be as to a criminal prosecution,* though corruption is alleged.* To allow such an action would be impolitic ; and, since other remedies are open, needless. But — 2. No Jurisdiction. — It is a rule, by some deemed absolute and by others only- prima facie, that even a judicial officer has no pro- tection from an act not within his jurisdiction.^ This question is more minutely examined by the author in another work. A dis- .tinction is taken between acts outside the jurisdiction, when pro- tection is denied, and those in excess of it, when it is accorded. In reason, and not quite without support froml authoi'ity, if the question of jurisdiction is a nice judicial one, and the judge or magistrate decides it carefully and honestly in favor of his juris- diction, he is not to suffer though another or even a higher court holds the contrary.^ § 461. Legislator — (Contempt — Impeachment — "Civil OfBcer"). 1 Ante, § 299. 2 S. V. Porter, 2 Tread. 694; P. v. Coon, 15 Wend. 277 ; In re , 14 Eng. L. & Eq. 151, ;6 Jur. 995 ; S. v. Odell, 8 Blackf . 396 ; Keg. v. Badger, 6 Jur. 994 ; C. u. Rodes, 6 B. Monr. 171 ; Lining v. Bentliam, 2 Bay, 1 ; S. «. Johnson, 2 Bay, 385 ; S. V. Gardner, 2 Misso. 23 ; S. v. Glasgow, Conference, 38, 2 Am. D. 629 ; Cooper «. Adams, 2 Blackf. 294; P. o. Norton, 7 Barb. 477; Hex v. Phelps, 2 Keny. 570 ; Rex v. Okey, 8 Mod, 45 ; Rex V. AUington, 1 Stra. 678 ; Garnett v. Fer- rand, 6 B. & C. 611, 9 D. & B. 657; Rex V. Webb, 1 W. Bl. 19; Rex v. Halford, 7 Mod, 193 ; Rex v. Seaford Justices, 1 W. Bl. 432 ; Rex v. Lediard, Say. 242 ; Cope V. Ramsey, 2 Heisk. 197 , Downing v. Her- rick, 47 Me. 462. 3 See post, § 462. * Bishop Non-Con. Law, § 781 ; Pratt 1-. Gardner, 2 Cush. 63, 48 Am. D. 652 ; Floyd V. Barker, 12 Co. 23, 25 ; Cunning- ham V. Bucklin, 8 Cow. 178, 18 Am. D. 432 ; Garnett v. Ferrand, 6 B, & C. 611, 9 D. & R. 657 ; Tyler v. Alford, 38 Me. 530; Broom Leg. Max. 2d ed. 61 ; Furr v. Moss,' 7 Jones, N. C. 525; Kelley v. Dresser, 11 Allen, 31 ; Weaver v. Deven- 278 dorf, 3 Denio, 117; Steele v. Dunham, 26 Wis. 393; Wilcox v. Williamson, 61 Missis. 310; Kress v. S. 65 Ind. 106. See Cooper V. Adams, 2 Blackf. 294 ; Linford V. Fitzroy, 13 Q. B. 240, 3 New Sess. Cas. 438 ; Muse v. Vidal, 6 Muni. 27 ; Cole- man V. Frazier, 4 Rich. 146, 53 Am. D. 727 ; Sthreshley v. Fisher, Hardin, 257 ; Alexander v. Card, 3 R. I. 145 ; Bessell V. Wilson, 1 Ellis & B. 489, 22 Law J. N. s. M. C. 94, 17 Jur. 664, 18 Eng. L. & Eq. 294 ; Hill v. Sellick, 21 Barb. 207. But see Garfield a. Douglass, 22 111. 100, 74 Am. D. 137. ^ Sullivan v. Jones, 2 Gray, 570 ; Piper V. Pearson, 2 Gray, 120, 61 Am. D. 438; Clarke v. May, 2 Gray, 410, 61 Am. D. 470, Tracy w. Williams, 4 Conn. 107, 10 Am. D. 102 ; Grumon v. Raymond, 1 Conn. 40, 6 Am. D. 200; Bradley v. Fisher, 13 Wal. 335, 350; Lange v. Bene- dict, 48 How. Pr. 465. And so also of the members of a court-martial. Wise v. Withers, 3 Cranch, 331. And see Macon V. Cook, 2 Nott & McC. 379 ; Shoemaker u. Nesbit, 2 Rawle, 201. Naval Com- mander. — As to a naval commander, see Wilkes v. Dinsman, 7 How. U. S. 89. " Bishop Non-Con. Law, § 783. ■ CHAP. XXXII.] PROTECTION TO GOVERNMENT. § 462 — The king, according to English law, can do no wrong ; that is, he is not punishable in any form for what he does.^ In this country, there' is no king, and no official person is so completely exempt as he.^ But nearest to him in this respect is the legisla- tor, acting offi'cially.^ If a legislator misbehaves himself, the leg- islative body can deal with him for the contempt.* Yet he is not answerable to the courts,^ and it is the better doctrine that he is not a " civil officer " subject to impeachment, within the meaning of the Constitution of the United States ; ^ and opinions of great weight have been expressed against his being impeachable on general principles.^ § 462. r. Indictable or not — (Legislators — Judges — Jurors — High Governmental Officers). — It is sufficiently settled that legis- lators,* the judges of our highest courts and of all courts of record acting judicially,^ jurors,^" and probably such of the high officers of each of the governments as are intrusted with responsible dis- cretionary duties,^^ are not liable to an ordinary criminal process, like an indictment, for official doings, however corrupt. And — 2. Justices of Peace. — There is some apparent authority for in- s eluding in this list justices of the peace, in respect of things judi- 1 Broom Leg. Max. 2d ed..40. peached. 4 Inst. 24. And see Bishop 2 1 Kent. Com. 289. Non-Con. Law, § 778. 8 Story Const. §795; 1 Kent. Com. 8 Ante, §461, and authorities cited in 235, note ; Lord Brougham in Ferguson the notes. V. KinnouU, 9 CI. & F. 251, 289, 290 ; Mr. '1 Hawk. P. C. Curw. ed. p. 447, § 6 ; Justice Coleridge, in Howard v. Gosset, Yates i'. Lansing, 5 Johns. 282, 9 Johns. May Pari. Law, 2d ed. 151. 395; Cunningham v. Bucklin, 8 Cow. * May Pari. Law, 2d ed. 60, 70, 73, 178, 18 Am. D. 432 ; Hammond u. Howell, 102; 1 Kent Com. 235, 236 ; Anderson v. 2 Mod. 218; Floyd v. Barker, 12 Co. 23, Dunn, 6 Wheat. 204. The Massachusetts 25. Judge, as to CivU Suit. — Neither House of Representatives can expel a is the judge liable to a civil suit. Ante, member, and the courts can inquire § 460; Hamilton v. Williams, 26 Ala. neither into its reason therefor, nor 527 ; Yates o. Lansing, 5 Johns. 282, 9 whether it gave him due opportunity for Johns. 395, 6 Am. D. 290 ; Taylor v. Dore- defence. If thereon he claims a privilege mus, 1 Harrison, 473 ; Stone v. Graves, 8 as member before a judicial tribunal, Misso. 148, 40 Am. D. 131 ; Lenox v. the fact of his expulsion is conclusive Grant, 8 Misso. 254 ; Upshaw v. OUver, against him. Hiss v. Bartlett, 3 Gray, Dudley, Ga. 241 ; Morrison v. McDonald, 468, 63 Am. D. 768. And see Vol. IL 21 Me. 550. Otherwise, if he knows he g 247 acts without jurisdiction. Lange v. Bene- 6 Bishop Non-Con. Law, § 775-777. diet, 48 How. Pr. 465 ; Bradley v: Fisher, 8 Story Const. § 793, 794. 13 Wal. 335. ' Story Const. § 795 ; 1 Kent. Com. >» 1 Hawk. P. C. Curw. ed. p. 447, § 5 ; 235, note. Lord Coke says that "if any Yates v. Lansing, 5 Johns. 282, 293; yet lord of Parliament, spiritual or temporal, see Rex v. Bynon, 2 Show. 304. See have committed any oppression, bribery, Wyld v Cookman, Cro. Eliz. 492. extortion, or the like," he may be im- " 4:B1. Com. 121 ; 2 Woodd Lect. 355. 279 § 463 THE ACT ESSENTIAL IN CRIME. [BOOK V. cial and within their jurisdiction ; i but the plain weight of authority, probably of reason also,. excludes them, — holding them liable to the ordinary criminal processes, though not to the civil, as we have seen,^ in cases of corruption, not of mere mistake or error.3 Some of these questions have been more minutely con- sidered by the author in anothep work.* 3. 'impeachable or not — Judges, not jurors, and the other high officers not legislative, are answerable in another form, — impeach- ment. As to the — § 463. Efieot of Impeachment — (Indictment afterward). — Un- der the English practice, the officer impeached may suffer not only the forfeiture of his office, but also any other penalties known to the law, even the deprivation of life.^ But the Constitution of the United States provides, as to the national officers, that " judg- ment in cases of impeachment shall not extend further than re- moval from office, and disqualification to hold and enjoy any office, of honor, trust, or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law." ^ As the United States courts have no common-law jurisdiction,^ doubtless they cannot take up a case after judgment is rendered on the im- peachment, and proceed to conviction, without the aid of a statute. But some of the State constitutions have similar provisions ; and it would be an interesting question whether, after a judgment by 1 S. V. Campbell, 2 Tyler, 177 ; Yates 2 Bay, 1 ; S. v. Johnson, 2 Bay, 385 ; In !). Lansing, supra; Floyd v. Barker, 12 re , HEng. L. & Eq. 151; P. k. Coon, Co, 23, 25. 15 Wend. 277 ; S. v. Porter, 2 Tread. 694 ; 2 Ante, § 460. Rex v. Rye Justices, Say. 25 ; Rex v. 8 Wallace k. C. 2 Va. Cas. 130; C. v. Bay lis, 3 Bur. 1318; Rex v. Jackson, Alexander, 4 Hen. & Munf. 522 ; Rex «. Lofft, 147 ; Rex v. Wykes, Andr. 238 ; Borron, 3 B. & Aid. 432 ; P. v. Norton, 7 Rex v. Harries, 13 East, 270 ; Rex v. Barb. 477, 480; Rex v. Harrison, 1 East Bishop, 5 B. & Aid. 612 ; Reg. v. Jones, P. C. 382 ; Rex v. Seaford Justices, 1 W. 9 Car. & P. 401 ; S. .. Porter, 3 Brev. Bl. 432 ; Rex v. Smith, 7 T. R. 80; Rex 175 ; and other cases cited ante, § 459, V. Fielding, 2 Bur. 719 ; Rex v. AUington, 460. In some States it is so by statute. 1 Stra. 678; Lord Brougham, in Fergu- Wickersham u. P. 1 Scam. 128. As to son V. Kinnoull, 9 CI. & F. 251, 290; Rex Texas, see S. v. Baldwin, 39 Tex. 75 ; S. V. Okey, 8 Mod. 45; Rex v. Phelps, 2 k, Baldwin, 39 Tex. 155. Keny. 570 ; Rex v. Davis, Lofft, 62 ; In * Bishop Non-Con. Law, § 779-784. re Fentiman, 4 Nev, & M. 126, 2 A. & E. 6 ji^y parl. Law, 2d ed. 474-476; 2 127 ; Rex v. Brooke, 2 T. R. 190 ; Rex v. Woodd. Lect. 364, 365; Story Const. § 784. Jones, 1 Wils. 7; Rex v. Cozens, 2 Doug. « Const. U, S. art. 1, § 3; Story Const. 426; Jacobs v. C. 2 Leigh, 709; Rex «. § 759, 760, 781. Angell, Cas. temp. Hardw. 124; S. u. ' Ante, § 189 et seq. Gardner, 2 Misso. 23 ; Lining v. Beutham, 280 CHAP. XXXII.] PROTECTION TO GOVERNMENT. § 464 impeachment 'and removal from office, or before, a court of ordi- nary criminal jurisdiction could without help from a statute inflict for the crime the additional penalty which, in England, the House of Lords on conviction under the impeachment would impose.' § 464. 1. Officer de Facto — De Jure. — Irregularities and mis- 1 See, as helpful at some of the steps in this inquiry, ante, § 14, 193 ; 1 Bishop Mar. Div. & S. § 1443, 1444 ; 2 lb. § 801- 806; Stat. Crimes, § 171. Relating to the subjects of this and accompanying sections, the following are some — I. Further Views — (Executive Of- ficer). — In our system of government, where the executive, legislative, and ju- dicial functions are distinct, — see the chapter on military and martial law, ante, § 43 et seq., — no good reason appears for holding an executive officer to answer in the judicial tribunals for a departure from duty, on other principles than would pre- vail if he were a judicial officer, sued or indicted in respect of alleged error or cor- ruption in office. 2. It cannot be that under any cir- cumstances those who administer our government in one of its departments should be justly entitled to overrule what those of another department decide, or to inflict punishment on them when acting honestly and within the general scope of their official duties. If it were proper to extend this discussion, I should show that the attempt to do this would be a palpable infraction of the Constitution ; which, by dividing the governmental functions into separate departments, left each one free from the control of any other. And for a judge to punish, or amerce in damages, an executive officer because difiering from him in opinion as to his official duty, would be as palpable a usurpation of the office as it would be for the executive officer to undertake the same thing against the judge. But I can- not pause to trace the line of argument fully here. There are several popular errors on this subject, — popular as pre- vailing in the legal profession as well as out of it. 3. A digest of a few cases will be con- venient, — to be consulted in connection with those cited to the last few sections. Justice of Peace. — For a justice of the peace, in the discharge of a ministerial or judicial duty, to act corruptly to the injury of a party, is a breach of his offi- cial bond. S. V Fliun, 3 Blackf. 72. And see S. u. Jennings, 4 Ohio St. 418. Not Trespass in Party. — If a judicial offi- cer, of either general or special jurisdic- tion, acts erroneously or oppressively, he in whose suit this occurs is not therefore a trespasser. Taylor v. Moffatt, 2 Blackf. 305. See Poulk y Slocum, 3 Blackf. 421. W^hat is Judicial. — All that a justice of the peace is required to perform, from the commencement to the close of a suit, ap- pears to be deemed judicial rather than ministerial, on a question of responsibility for his acts. Where a justice issued an execution, but by mistake made it return- able in sixty days, instead of ninety as re- quired by law, whereby the plaintiff lost his debt, he was held not liable for the loss. Wertheimer v. Howard, 30 Mo. 420, 77 Am. D. 623. And see S. b. Dunning- ton, 12 Md. 340. Officer's Fraud. —An action lies against a, public officer for a fraudulent representation in relation to property, made at a sale of it, in his offi- cial capacity. Culver v, Avery, 7 Wend. 380, 22 Am. D. 586. Inadequate Alle- gation. — Where a magistrate issued a warrant upon whicli one was arrested and fined, for a violation of the Sunday law, he was held not liable in an action of tres- pass, though the facts alleged may not have been an offence within the statute. Nor is the constable, executing such warrant, liable in trespass. The magistrate had jurisdiction over the subject-matter, and he is not responsible for consequences flowing from an error of judgment. Stewart v. Hawley, 21 Wend. 552. Con-i tradicting Record. — In an action against a magistrate, he cannot defend by contra- dicting his record. Kendall v Powers, 4 Met. 553. Jurisdiction. — A justice of the peace is liable for exercising authority where he has none. Ely v. Thompson, 3 A. K. Mar. 70. 281 464 THE ACT ESSENTIAL IN CRIME. [book V. takes in the election and appointment of officers are liable to occur, and it cannot be the duty of every private citizen to correct them, and see that no one serves in an office without due right ; or his privilege to test the right of one claiming the office, as a collateral step in a proceeding for some other purpose.^ Therefore if one discharges the duties of an office under color of title to it, he is called an officer de facto ; and his official acts are binding on third persons, 2 though they are said not to be valid in his own 1 Jewell 0. Gilbert, 64 N. H. 13, 10 Am. St. 357 ; Keith o. S. 49 Ark. 439 ; S. V. Camden, 18 Vroom, 454 ; C. v. Taber, 123 Mass. 253 , C. « Hawkes, 123 Mass. 525; S. v. Williams, 35 La. An. 742 ; Campbell «. C. 96 Pa. 344 ; S. u. Pertsdorf, 33 La. An. 1411; Sharp v. Thompson, 100 111. 447, 39 Am. R. 61; Ex parte Parks, 3 Mont. 426. 2 Thompson 0. S. 21 Ala. 48 ; P. b Gilbert, Anthon, 191 j McBee v. Hoke, 2 Speers, 138; S. ». Hill, 2 Speers, 150; Doty V. Gorham, 5 Pick. 487, 16 Am. D. 417; Bucknam v. Ruggles, 15 Mass. 180; Nason v. Dillingham, 15 Mass. 170; Ply- mouth u. Painter, 17 Conn. 585, 44 Am. D. 574; Hoagland v. Culvert, Spencer, 387 ; Farmers and Merchants Bank v. Chester, 6 Humph. 458, 44 Am. D. 318; Fowler v. Bebee, 9 Mass. 231, 6 Am. D. 62; C. 0. Fowler, 10 Mass. 290; P. v. Cook, 4 Seld. 67, 59 Am. D. 451 ; S. «. Perkins, 4 Zab. 409 ; S. v. Ailing, 12 Ohio, 16; Mclnstry u. Tanner, 9 Johns. 135; Blackman ■;. S. 12 Ind. 556; P. «■ Col- lins, 7 Johns. 549 ; Burke v. Elliott, 4 Ire. 355, 42 Ani. D. 142 ; Gilliam i^. Reddick, 4 Ire. 368 ; Stokes v. Kirkpatriek, 1 Met. Ky. 138 ; Gilmore v. Holt, 4 Pick. 258 ; Pool.«. Perdue, 44 Ga. 454; S. o. Carroll, 38 Conn. 449, 9 Am. R. 409; Kelley v. Story, 6 Heisk. 202; Douglas v. Neil, 7 Heisk. 437 ; Diggs v. S. 49 Ala. 311 ; Wal- ler o. Perkins, 52 Ga. 233; McCahon v. Leavenworth, 8 Kan. 437 ; S. v. Lewis, 22 La. An. 33 ; Wayne v. Benoit, 20 Mich. » 176; Schoharie v. Pindar, 3 Lans. 8; S. V. Tolan, 4 Vroom, 195 ; McCormick v. Fitch, 14 Minn. 252; Durrah v. S. 44 Missis. 789 ; Laver v. McGlachlin, 28 Wis, 364 ; Moore „. Graves, 3 N. H. 408 ; Ex parte Strang, 21 Ohio St, 610, 618; C. v. McCombs, 56 Pa. 436; S, «. Beloit, 21 Wis, 280, 91 Am. D. 474; Leach v. P. 282 122 111. 420; S. v. Goowin, 69 Tex. 55; Adams v. Tator, 42 Hun, 384 ; Case v. S. 69 Ind. 46; In re Ah Lee, 6 Saw. 410; Carter v. S. 43 Ark, 132 ; S. v. Murdock, 86 Ind. 124; Johnson u. S. 14 Tex. Ap. 306 ; Ex parte Norris, 8 S. C. 408 ; S. u. Jacobs, 17 Ohio, 143 ; P. h. Lieb, 85 111, 484; Braidy v. Theritt, 17 Kan^ 468; Gunn V. Tackett, 67 Ga. 725 ; Morton v. Lee, 28 Kan. 286 ; Jolinson v. McGiuly, 76 Me, 432 ; Carl! v. Rhener, 27 Minn. 292; Ex parte Johnson, 15 Neb. 512; Ensley v. Nashville, 2 Bax. 144 ; Bedford V. Rice, 58 N. H. 446 ; Weston v. Sprague, 54 Vt. 395 ; Cole ;;. Black River Falls, 57 Wis. 110; Chicago, &c. Ry. v, Langlade, 56 Wis, 614; Swepston «. Barton, 39 Ark. 549. As to who is an officer de facto, Howard, J. in the Supreme Court of Maine, said : " A mere claim to be a pub- lic officer, and exercising the office, will not constitute one an officer de facto ; there must be, at least, a fair color of right ; or an acquiescence by the public in his official acts so long that he may be presumed to act as an officer by right of appointment, or election," Brown v, Lunt, 37 Me. 423, 429 ; Wilcox o. Smith, 5 Wend. 231, 21 Am. D. 213 ; Cummings V. Clark, 15 Vt. 653 ; Burke v. Elliott, supra; Cornish v. Young, 1 Ashm. 153. The Maine Court held that a deed of real estate sold for non-payment of taxes is void if issued by an actiilg collector of taxes who has not taken the oath of his office. Shepley, C, J. observed ; " When constables or sheriffs perform acts by vir- tue of judicial precepts, it is usually suffi- cient to show that they were officers de facto, without producing proof that they were legally qualified to do so. A per- son injured by such acts has a remedy by action against the officer, and his rights are secured by a final resort to the CHAP. XXXII.J PROTECTION TO GOVERNMENT. §464 favor.^ One duly appointed and commissioned, serving in the office, is called an officer de jure? Now, clearly, — 2. Malfeasance of Officer de Facto — One indicted for malfeas- ance in office cannot object that he does hot hold the office de jure ; his acting in it estops him to deny his right thereto.^ And — 3. Embezzlement — He is an officer and punishable within the statutes against embezzlement * But — 4. Non-feasance. — Having the right to cease to do wrong, — that is, to stop acting in an office to which he has no just title, — the mere officer de facto cannot as of course be punished for re- fusing to discharge official duties.^ Yet it appears that in special circumstandes, as where the refusal is to take a particular step constituting a part of a whole which he has taken upon himself to official bond. But one injured by the misconduct of a collector of taxes cannot be protected by a resort to his official bond for redress, that having been made for the security of the town alone." Pay- son D. Hall, 30 Me. 319, 325. See Cavis «. Robertson, 9 N. H. 524. In Indiana, a town charter provided that the marshal should give bond in ten days after his election. And it was held that his failure to do this did not necessarily vacate the office. S. V. Porter, 7 Ind. 204. If a Governor holds his office after his term has expired, believing himself re-elected, and having received a certificate of elec- tion, he is Governor de facto, and his ap- proval of a legislative act is valid. S. v. Williams, 5 Wis. 308, 68 Am. D. 65. As to officers de facto in a State in rebellion, see Hawver a. Seldenridge, 2 W. Va. 274 ; Brown v. Wylie, 2 W. Va. 502, 98 Am. D. 781 ; Cooke v. Cooke, Phillips, N. C. 583. One disqualified to hold office as having partidpated in the rebellion, may still be an officer de facto. Lockhart v. Troy, 48 Ala. 579. 1 Rhodes v. McDonald, 24 Missis. 418; Neale v. The Overseers, 5 Watts, 538; Pearce w> Hawkins, 2 Swan, Tenn. 87, 58 Am. D. 54; P. v. Weber, 86 111. 283. See Eldred v. Sexton, 5 Ohio, 215. Dis- tinctions. — The acts of officers de facto are valid when they concern the public, or the rights of third persons who have an interest in what is done. But Act for Officer's Benefit. — A different rule pre- vails where the act is for the benefit of the officer, because he is not permitted to take advantage of his own wrong. Venable v. Curd, 2 Head, 582 ; Patterson V. Miller, 2 Met. Ky. 493 ; Gourley v. Hankins, 2 Iowa, 75 ; S. c^. Pool, 41 Mo. 32; S. o. Morrison, 41 Mo. 238. And see P. V. Treman, 30 Barb. 198; P. v. Albany, &c. Rid. 55 Barb. 344. Evidence. — That one acts as an officer is prima facie evidence of authority to act. Rex v. Verelst, 3 Camp. 432 ; Eldred v. Sexton, 5 Ohio, 215 ; C. w. Tobin, 108 Mass. 426 j Crim. Pro. II. § 885, 886. See U. S. v. Phelps, 4 Day, 469; C. v. McCue, 16 Gray, 226. 2 Cohn V. Beal, 61 Missis. 398 ; S. S.v. Carpenter, 20 Vt. 9; S.». Keyes, 6 Vol. II. § 1015. 8 Vt. 57, 30 Am. D. 450 ; S. v. Early, 3 " 2 Russ. Crimes, 3d Eng. ed. 596 ; Harring. Del. 562 ; Rex v. Chaundler, 2 Rex v. Aylett,. 1 T. R. 63. Ld. Raym. 1368 ; s c. nom. Rex v. Chand- ' Vol. II. § 1197. ler, 1 Stra. 612, 8 Mod. 336, which last « 2 Russ. Crimes, 3d Eng. ed. 596; see; Roberts' Case, 3 Inst. 139; C. v. Vol. II. § 1197. And see Ashley's Case, Feeley, 2 Va. Cas. 1 ; C. «. Reynolds, 14 12 Co. 90. Gray, 87, 89, 74 Am. J). 665 ; Martin v. » Rex v. Johnson, 2 Show. 1 ; Reg. v. S. 28 Ala. 71 ; Grim. Pro. I. § 556 ; II. Darby, 7 Mod. 100. § 897 ; S. V. Ames, 64 Me. 386 ; Reg. v. i" Reg. u. Loughran, 1 Crawf. & Dix Hamp, 6 CoxC. C. 167. As to the Peun- C. C. 79. sylvania statute against absconding- wit- " Omealy v. Newell, 8 East, 364; Rex nesses, see C. u. Phillips, 3 Pittsb. 426; v. De Beauvoir, 7 Car. & P. 17; Rex v. post, § 695. O'Brian, 2 Stra. 1144, 7 Mod. 378; Vol. 2 Rex V. Pitt, ,1 W. Bl. 380, 383, 3 Bur. II. § 1014, 1029. 1335; Barefleld v. S. 14 Ala. 603; S. v. 12 4 gi, Cq^. 140. Carpenter, 20 Vt. 9; 4 Bl. Com. 139; '» Rex v. Burdett, 1 Ld. Raym. 148; Vol. n. § 85 et seq. ■ Rex v. JoUiffe, 4 T. R. 285 ; Anonymous, 8 Ante, § 246 , post, § 471, 767. Lofft, 462 ; Rex v. Lee, 5 Esp. 123 ; Rex * Vol. II. § 85. V. Pisher, 2 Camp. 563. 288 CHAP. XXXII.] PROTECTION TO GOVERNMENT. §468 a 6. Preventing Coroner's Inquest — Burying Body — Personating Officer — Acting as Officer — Forging Records, &c. — Other like obstructions, punishable therefore as common-law crimes, are preventing a coroner from holding an inquest, as by burying the body or otherwise, in a case where an inquest is required by law;i personating or falsely pretending to be an officer, or a juryman,2 or one having authority to discharge soldiers,^ and acting as such ; and counterfeiting the processes, or altering the records, of a court.* 7. Contempt of Court — is both indictable and subject to the summary process, though not indictable undier all circumstances, nor are all indictable acts in the nature of contempt summarily repressible.^ In whichever light viewed, it is an obstruction of the governmental function of justice. The particular considera- tion of it is postponed to the second volume. § 468 a. 1. Corruptly neglecting or doing Official Duties. — With- in limits already appearing,® one in office is indictable at the com- mon law, confirmed by statutes in most o^ our States, if he wilfully or corruptly neglects or declines any official duty, equally whether prescribed by the written law or by the unwritten.'^ Even — 1 Rex V. Soleguard, Andr, 231 ; Anon- ymous, 7 Mod. 10; Rex v. Proby, 1 Keny. 250. 2 Scarlet's Case, 12 Co. 98 ; Anony- mous, March, 81, pi. 132. Usurping Of- fice. — By the Constitution of Kentucky, " no person shall be eligible to the office of commonwealth's or county attorney unless he shall have been a licensed prac- tising attorney for two years." And a statute makes it punishable " if any per- son shall usurp any office established by the Constitution or laws of this common- wealth." Consequently if one who has not been a licensed practising attorney for two years accepts the office on being elected, and receives its emoluments, he commits the statutory offence. C. w. Adams, 3 Met. Ky. 6.' And see Wayman b. C. 14 Bush, 466. In Ohio, an officer who after serving his time holds over till his successor is qualified, believing this to be Mb duty, is not punishable under the stat- ute for usurping office. Kreidler v. S. 24 Ohio St. 22. And see Daniel v. S. 3 Heisk. 257 ; Lansing v. P. 57 III. 241 ; C. v. Con-, TOL, I. — 19 noUy, 97 Mass. 591 ; Brown v. S. 43 Tex. 478; S. V. Withers, 7 Bax. 16. * Serlested's Case, Latch, 202. In this case, money was, taken from the soldier for discharging him ; so it would perhaps be more accurate to regard the offence as a cheat. * 2 East P. C. 865, 866. And see Saunders v. P. 38 Mich. 218 ; S. v. Wil- liams, 30 Me. 484. 6 Vol. IL § 264-267. " Ante, § 462, 464 ; Lange v. Benedict, 73 N. Y. 12, 29 Am. R. 80. ' Vol. II. § 971 et seq. ; Reg. v. Wyat, 1 Salk. 380 ; 8. C. nom. Reg. v. Wyatt, 2 Ld. Raym. 1189 ; S. v. Furguson, 76 N. C. 197; S. V. Halsted, 10 Vroom, 402; Ex parte Harrold, 47 Cal. 129; Anonymous, Lofft, 285 ; S. v. Laresche, 28 La. An. 26 ; S. V. Hawkins, 77 N. C. 494 ; Allison v. S. 60 Ala. 54 ; C. v. Morrissey, 86 Pa. 416 i Housh V. P. 75 111. 487 ; S. v. Wedge, 24 Minn, 150; S. v. Morse, 52 Iowa, 509; Watson V. Hall, 46 Conn. 204 ; Gordon v. . S. 2 Tex. Ap. 154 ; Snowden «. S. 17 Pla. 386 ; S. !>. Ferriss, 3 Lea, 700 ; Jones v. C. 1 Bush, 34, 89 Am. D. 605. 289 § 470 THE ACT ESSENTIAL IN CRIME. [BOOK V. 2. Not giving Bond — (Officer de Facto), — A constable has been held indictable for acting in his office without giving the bond required by law ; ' while, the reader perceives, the- exercise of the office under color of title made him a constable de facto? § 469. 1. Refusing to assist Officer. — It results from the fore- going principles ^ that when an officer calls upon private persons for assistance in the execution of his office,* as in some circum- stances he may, one's refusal without lawful excuse to undertaiie the service, or to proceed therein in good faith after undertaking it, will subject him to indictment. Thus, — 2. Arrest — Escape — Rebels. — Within this rule is declining to aid a constable or sheriff in arresting a person, or in otherwise serving process, civil or criminal, or in preventing an escape.^ Also, says East, " the mere act of refusing personal assistance to the king, either against rebels or an invading army, ... is a high misdemeanor." ^ So, — 3. Disobeying Statute or Judicial Order. — Within this doctrine are the already-specified offences of disobeying statutes,^ magis- trates' orders,^ and the like.^ At the common law and by statutes they are crimes. Again, — § 470. 1. Oral Slander of Officer. — Words spoken of or especially to official persons may be indictable slander, while the same words would not be if uttered of or to a private individual.'" Also — 1 U. S. 1). Evans, 1 Cranch C. C. 149. lO Vol. II. § 946 ; Rex v. Pocock, 2 ^ Ante, § 464 and note; Soudant i^. Stra. 1157; Rex v. Revel, 1 Stra. 420; Wadhams, 46 Conn. 218. Rex i». Darby, 3 Mod. 139, Comb. 65 ; Ex » Ante, § 457. parte Chapman, 4 A. & E. 773 ; Reg. o. 4 Crim. Pro. I. § 135, 186 ; ante, § 464. Nun, 10 Mod. 186, 187 ; Reg. v. Langley, 6 Coyles »■ Hurtin, 10 Johns. 85 ; S. w. 3 Salk. 190, 6 Mod. 124 ; Rex v. Spiller, 2 Deniston, 6 Blackf. 277, decided, however. Show. 207, 209 ; Anonymous, Comb. 46, upon a statute ; Reg. v. Brown, Car. & M. 65, 66 ; Rex «. Staples, Andr. 228 ; Reg. 314 ; S. w. Hailey, 2 Strob. 73 ; Comfort v. v. Wrightson, 1 1 Mod. 1 66 ; Rex «. Leafe, C. 5 Whart. 437. Andr. 226. Query, whether verbal slan- " 1 East P.C. 80. And see 4 Bl. Com. der of a justice of the peace is indictable 122. unless the words iare spoken to him in his ' Ante, § 237 ; Reg. v. Walker, Law presence. Rex «. Weltje, 2 Camp. 142 ; Rep. 10 Q. B. 355. 2 Stark. Slander, 194-197. But several 8 Ante, § 240; Rex w. Kingston, 8 of the above-cited cases are opposed to East, 41 ; Rex u. Gilkes, 8 B. & C. 439, this distinction. As to granting a criini- 2 Man. & R. 454. nal information, see Ex parte Marlbor- » S. V. Soragan, 40 Vt. 450 ; Drake v. ough, 5 Q. B. 955 ; Reg. v. Rea, 7 Ir. Com. S. 60 Ala. 62 , Avery «. S. 52 Ala. 340 ; Law, 584. As denying that verbal slander C. U.Chase, 127 Mass. 7; Thomasu. P. 19 is indictable in this country, see S. v. Wend. 480. Wakefield, 8 Mo. Ap. n, 290 CHAP. XXXII.] PROTECTION TO GOVERNMENT. § 476 2. Assault on Officer. — Assaults and other like offences are aggravated by being committed against official persons, particu- larly when in the actual discharge of official duties.^ § 471. Offences against Elections — (Preventing — Bribery — Double Voting — Fraud — Buying Office). — It is indispensable to the functions of the government that persons be designated to conduct its several departments, and in the highest degree impor- tant 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,^ fraud in an election, * " the taking or giving of a reward for offices of a public nature," ' and the like — is punishable under the criminal common law. But such offences are now so fully declared by statutes, State and national, that seldom is an indict- ment for any of them brought at the common law.^ They are explained, both as to the law and the procedure, in " Statutory Crimes." ^ IV. Incidental Offences against the Government. § 472-476. Spreading False News. — One of the old common- law offences, confirmed by statutes early enough in date to be common law with us, is termed the spreading of false news. It > Vol. II. § 42, 45, 49-51; Oldfield's not explain why, but it purports to proceed Case, 12 Co. 71. - simply on tlie authority of the English 2 Reg. V. Soley, 11 Mod. 115. one. In the English case, the election ' Rex V. Cripland, 11 Mod. 387; Rex was for counsellors; and before theMuni- w. Plympton, 2 Ld. Raym. 1377; Rex v. cipal Corporations Act was passed, no such Pitt, 3 Bur. 1335, 1338 ; Rex v. JoUifEe, election could be had. - But that act made 1 East, 154, note; C. v. CaUaghan, 2 Va. provision for the exact offence; therefore, Cas. 460 ; Reg. v. Lancaster, 16 Cox C C. as it could not exist at common law be- 737; S. V. Jackson, 73 Me. 91, 40 Am. R. fore, it could not now, the statute having 342. And see 1 Gab. Crim. Law, 164, occupied the place of the common law. In note,, 165 ; 1 Russ. Crimes, 3d Eng. ed. Tennessee, voting at a municipal elec- 154 ; Vol. II. Brieert. tion without being qualified was held not * C. D. Callaghan, 2 Va. Cas. 460. to be punishable at the common law. No « C. B. Silsbee, 9 Mass. 417 ; S. v. authorities were cited. S. v. Liston, 9 Bailey, 21 Me. 62; S. v. Williams, 25 Humph. 603. The just doctrine is be- Me. 561.- See also Walker v. Winn, 8 lieved to be that stated ante, § 246. And Mass. 248 ; Clark v. Bihney, 2 Pick. 113. see Reg. o. Lancaster, supra. Municipal Election. — It has Been held in « C. v. McHale, 97 Fa. 397, 39 Am. R. England (Rex v. Bent, 1 Den. C. C. 157), 808. and in Canada (Reg. v. Hogg, 25 U. C. '. 1 Hawk. P. C. 6th ed. c. 67, § 3 ; Rex Q. B. 66), that falsely to personate a voter v. Taggart, 1 Car. & P. 201. at a municipal election is not indictable at ^ Stat. Crimes, § 802-843. tlie common law. The Canada case does 291 §477 THE ACT ESSENTIAL IN CRIME. [book v. relates primarily, perhaps exclusively, to public affairs, — " to make discordj" as Blackstone expresses it, " between the king and nobility, or concerning any great man of the realm." i § 477. 1. The Limits — of this doctrine, as they were in Eng- land when our ancestors brought the common law to this country, we may not be able to define ; so this branch of the inquiry is left here, with a simple reference to some sources of authority .* 2. ■With us — this old English doctrine should be viewed as of a class 3 which, if we accept it as belonging to our common law, is to be by the courts shaped to our institutions and times. But whether, under any modifications, it is law with us is a question on which there may well be differences of opinion. Plainly enough, properly limited, it is adapted to our institutions, circumstances, and needs. But it has long been practically unused. Lying, in 1 4 Bl. Com. 149. In the fiftli edition of the present work, § 472-476, as above, this subject is explained at length. In § 473, Stat. Westm. 1 (3 Edw. 1) c. 34, is given ; in § 474, 475, are Lord Coke's comments upon it, from 2 Inst, 226, 227 ; and, in § 467, is given the statute of 2 Rich. 2, Stat. 1, c. 5. I do not think it necessary to encumber the later editions with this matter in fuU. There are also Stats. 1 & 2 Phil. & M. c. 3, and 1 Eliz. c. 6 ; but they concern merely the Crown, and do not therefore appear important in this connection. 2 During the trial of a cause, in 1680, Scroggs, C. J. said " It is not long since that all the judges met by the Idng's command, as they did some time before too, and they both times declared unani- mously that all persons that do write or print or sell any pamphlet that js either scandalous to public or private persons, such books may be seized, and the per- son punished by law ; that all books which are scandalous to the government may be seized, and aU persons so expos- ing them may be punished. And, fur- ther, that all writers of news, though not scandalous, seditious, nor reflective upon the government or the State, yet if they are writers (as there are few others) of false news, they are indictable and punishable upon that account." Rex V. Harris, 7 How. St. Tr. 925, 929, 930. And see the marginal notes and references 292 in Rnffhead S,nd the other printed editions of the above-mentioned statutes ; 2 Inst, 225 et seq.; 3 Inst. 198; 4 Bl. Com. 149; 2 Chit. Grim. Law, 527. Miataie of Fact — Form of Indictment. — In 1778, Alexander Scott was indicted at the Old Bailey " for that he, on the 23d of April last, unlawfully, wickedly, and maliciously did publish false news, whereby discord, or occasion of discord, might grow between our lord the king and his people, or the great men of the realm, by publishing a certain printed paper containing such false news ; which said printed paper is of the tenor following ; ' In pursuance of his Majesty's order in council to me directed, these are to give public notice that war with France wiU be proclaimed on Friday next, the 24th instant, at the palace royal, St. James's, at one of the clock, of which all heralds and pursui- vants at arms are to take notice, and give their attendance accordingly. Given under my hand this 22d day of April, 1778. Effingham, D. M.' '_' The defend- ant was a bill-sticker ; and it appearing on the trial that he had been imposed upon, and induced to stick up the bill containing the false matter believing it to be true, whereas it was a forgery, he was acquitted. There seems to have been no doubt that the act with which he was charged was indictable. Scott's Caae, 5 New Newgate Calendar, 284. » Ante, § 92, 97. CHAP. XXXII.] PflOTBCTION TO GOTEENMENT. § 480 print and with the naked tongue, to the detriment alike of indi- viduals and the public, lying in every possible pernicious form, has been so long and with so great eclat practised among us, and so immense would seem the scandal of requiring writers and speakers to confine themselves to the truth, that judges might hesitate to enforce the doctrine. And since there can be no common-law offences against our national government,^ it can haye effect only in the States. An application of prime impor- tance would be to — § 478. Political Slanders, &o. — On principle, and as matter addressing itself to the legislative discretion if not to the judicial, the political falsehoods, as they are called, whereby official per- sons and candidates for office,, and those who seek to influence voters, are made to speak, do, and intend what, they never dreamed of, and their real opinions and aims are perverted, and all other falsehoods as to the views, purposes, and declarations of men re- garding public affairs, are among the highest crimes, next to treason itself, of which any person can be guilty. § 479. Counterfeiting the Coin — appears to be regarded in England as an offence against the king, or government.^ Form- erly it was there treason,^ now it is only felony.* Perhaps the better view does not include it among the affinities of treason ; for East aptly observes that it " is in truth a species of the crimen falsi, or forgery."^ It touches at several points the forbidden ground, but is analogous to forgery, which is a peculiar species of attempt, successful or otherwise, to defraud individuals.® It is indictable at the common law.^ § 480. The Doctrine of this Chapter restated No conceivable calamity could equal that of taking from the world all human governments. It would plunge mankind into unspeakable woe, and remit our populations to chaos. No govern- ment is perfect, and some governments are simply terrible, but the worst of all is immeasurably better than none. To overthrow a bad government, if likewise a better is substituted, is an act 1 Ante, § 189 et seq. ' 1 East P. C. 158. 2 Treated of Vol. 11. § 274 et seq. « Post, § 572. s 4 Bl. Com. 99; 1 Hawk. P. C. 6th ed. ' Yet see, as to this country. Vol n. c. 17, § 54; 1 East P. C. 158. § 281, 283-287. * 1 Buss. Crimes, 3d Eng. ed. 54 et seq. 293 § 480 THE ACT ESSENTIAL IN CRIME. [.BOOK V, commendable in ethics and in philanthropy ; but the law, look- ing only at tlie overthrow, makes it an offence of the very highest grade, called treason. Of natures akin to treason, yet of inferior rank, are the various obstructions of the governmental machinery. The leading ones have been particularized in this chapter, but all other obstructions of the like sort and magnitude are also com- mon-law offences. Some of those others will be specified in other chapters, being equally within the reasons set down in two or more divisions of the wider subject. Practically the law of this chapter is greatly circumscribed by the rule that it does not notice small things. For if every act which a close reasoning might show to be a minute obstruction of the government were pun- ished, the open and fair criticism of public affairs which is essen- tial to the freedom of a people would itself be obstructed. 294 CHAP, XXXIILJ RELATIONS WITH OTHER GOVERNMRNTS. § 482. CHAPTER XXXIII. Protection to the relations op the government with other governments. § 481. 1. This Chapter — will state the principal i doctrines within its title ; but they will be less expanded, Jbecause less important, than if it were not the prevailing idea that our national tribunals have no jurisdiction pf offences under the unwritten law of nations.^ 2. The Leading Doctrine — is that nations should conduct up- rightly in their mutual intercourse ; atfd each should abstain from acts justly offensive to the others, or injurious to them or to their subjects, according to "the common understanding of mankind as expressed in the law of nations. And he who violates this duty, due from his government to another or its subjects, is by his own punishable. Thus, — § 482. Neutrality. — One of the most important duties of a nation, according to modern views, is to forbear taking sides against a friendly power in its quarrel with another power. Hence our neutrality laws.^ But as they are of infrequent application, it will be sufficient simply to refer to some cases under them and the like English statute.^ Enactments of this sort are not in affirmance of an unwritten law ; but are aids to the government in preserving the peace with friendly govern^ ments, arfd dealing with them in harmony with the modern law of nations. As to the — 1 Ante, § 199-202. 431 ; Reg. u. Jones, 4 Fost. & F. 25 ; Reg. = R. s! of U. S. § 5281-5291. As to ' v. Rumble, 4 Fost. & F. 175 ; Reg. t. Cor- the procedure und.er which, see Dir. & F. bett, 4 Fost. & F. 555 ; U. S. v. Two Huu- § 759, 760. <3red and Fourteen Boxes of Arms, 20 8 The Estrella, 4 Wheat. 298; The Fed. Rep. 50; U. S. u. The Mary N. Ho- Gran Para, 7 Wheat. 471 ; U. S. v. Rey- gan, 18 Fed. Rep. 529 ; U. S. v. Rand, 17 burn, 6 Pet. 352 ; U. S. u. Quincy, 6 Pet. Fed. Rep. 142 ; Bailey v. O'Mahony, 33 445 ; Ex parte Needham, Pet. C. C. 487 ; N. Yl Super. 239 ; U. S. v. Grassin, 3 U. S. V. Kazinski, 2 Sprague, 7 ; U. S. v. Wash. C. C 65 ; The City of Mexico, 25 Lumsden, 1 Bond, 5; Attorney-General Fed. Rep. 924, 28 Fed. Rep. 148, 32 Fed. V. Sillim, 3 Fost. & F. 646 ; s c nom. Rep. 105 ; Reg. u. Sandoval, 16 Cox C. C. Attorney-General v. Sillem, 2 H. & C. 206. 295 § 485 THE ACT ESSENTIAL IN CRIME. [BOOK V. § 483. Law of Nations. — Governments, like individuals,^ can- not exist together without law to regulate their mutual relations ; hence the law of nations. It is in truth common law ; ^ or, rather, the common law has appropriated the law of nations, making it a part of itself. Now, — § 484. 1. Punishable under the Law of Nations — is any con- duct in one of our citizens, or in a foreigner within our borders, tending to involve our government in difficulty with a foreign power. The offence, with us, would be against the United States, not the State ; and in just doctrine ^ it should be indictable in the United States tribunals without the aid of a statute, but such is not the common professional understanding Under the. English unwritten law it is so ; thus, — 2. Revolt — Libel on Foreign Prince. — Endeavors to create a revolt against a government in amity with ours,* libelling a for- eign prinpe^ or other person in official station abroad,^ and the like, are offences against the law of nations, therefore punishable without statutory aid where common-law crimes prevail. Again, — 3. Passports. — Violations of safe-conducts or passports, given .under authority of our government to an enemy, are offences of the like sort.'^ So also — 4. Food for Prisoners-of-war. — It is indictable at the common law as an offence against the law of nations deceitfully, mali- ciously, and wilfully to supply prisoners-of-war with unwholesome food, not fit to be eaten by man.^ § 485. In Conclusion, — such is the general scope of the law of nations as to crime. This law has provided rules to determine the jurisdiction, on the high seas and elsewhere, of the several governments, and the classes of persons who are subject to and exempt from the municipal regulations of each ; but these ques- tions were treated of in the early chapters of this volume. ' Ante, § 5, 14; Bishop First Book, How. St. Tr. 529; 3 Chit. Crim. Law, § 43-45. § 882. 2 4 Bl. Com. 67. 6 Kex v. Gordon, 1 Enss. Crimes, 3d 8 Ante, § 201, 202. Eng. ed. 246 , Rex v. Vint, 1 Russ. * Phillim. Int. Law, 416, 417; 124 Crimes, 3d Eng. ed. 246. Hansard Pari. Deb. 1046. 7 4 31. Com. gs. 5 Phillim. Int. Law, 417 ; Vint's Case, S-Treeve's Case, 2 Haat P. C. 821. 27 How. St. Tr. 627 ; Peltier's Case, 28 296 CHAP. XXXIV.] ?ROTECTION TO PUBUC BBVENUE. §488 CHAPTER XXXIV. PEOTECXION TO THE PUBLIC REVENUE. § 486. Revenue — is indispensable to government, therefore its protection is of prime importance. And separate revenues are required by the United States and the States. So we have both State revenue laws^ and national; though the former cannot extend to duties on imports, while the latter can. § 487. An Internal Revenue, — the only kind within the power of the States, always competent to the United States, has been by the latter in recent years added to the duties on imports.^ § 488. 1. The Common Law of Revenue — is a thing nearly unknown. But it appears that there may be frauds against it punishable without statutory aid,* — a doctrine not extending to our general government because of there being no common-law crimes against it. But — 2.^ statutes — have well covered this ground. Most of them are not classed as criminal laws,* their primary object being the collec- tion of duties ^ and other taxes. By them some crimes have been constituted.^ » S. V. Jones, 2 Lea, 716 ; Burgh «. S. &c. Pipes, 5 Saw. 421 , Dobbin's Distillery .108 Ind. 132. ' "• U. S. 96 U. S. 395 ; U. S. v. Cushman, 2 U. S. V. Spiegeli 116 U.S. 270; U.S. 1 Low. 414; U. S. u. Burgess, 33 Fed- V. One Hundred Barrels Spirits, 1 Dil. 49. Rep. 833. Other Cases on United States » U. S. V. Watkins, 3 Cranch C. C. Internal Eeveuue. — U. S. v. Jacoby, 12 441. Blatch. 491 ; U. S. v. Page, 2 Saw. 353; 4 U. S. V. Hodson, 10 Wal. 395; U. S. U. S. v. Oiie Case, 6 Ben. 493; U; S. t,. V. Three Tons of Coal, 6 Bis. 379. Foster, 2 Bis. 453 ; Fein u. V. S. 1 "Wy. .e Stat. Crimes, § 195, Ter. 246 ; U. S. v. Harries, 2 Bond, 311 ; 6 As to Smuggling, see U. S. «. Nol- U. S. v. Smith, 2 Bond, 323 ; U. S. v. ton 5 Blatch. 427 ; U. S. .;. Bettilini, 1 Feigelstock, 14 Blatch. 321 ; Boyd v. Woods, 654 ; U. S. V. Cases of Books, 2 U. S. 14 Blatch. 317 , U. S. v. Two Hun- Bond. 271 ! U. S. V. Thomas, 4 Ben. 370, dred Barrels of Whiskey, 95 U. S. 571 ; 2 Abb U.S. 114, The Missouri, 4 Ben. U. S. v. Buzzo, 18 Wal. 125. Kentucky 410. Illicit DistiUing. — U. S. u. Chaffee, Tax Laws. — Olds v. C. 3 A. K. Mar. 2 Bond, no , U. S. V. Spirits, 4 Ben. 471 , 465; Taylor v. C. 15 B. Monr. II. South U. S. v. Fox, 1 Low. 199 ; U. S. v. Boy- Carolina. — S. v. Chapeau, 4 S. C. 378. den 1 Low. 266 ; U. S. v. Three Hundred, Illinois.— Faulds w P 66 Dl. 210. 297 § 490 THE ACT ESSENTIAL IN CRIME. [BOOK CHAPTER XXXV. PROTECTION TO THE PUBLIC HEALTH. Compare with — Dir. & F. § 511-514.. § 489. Endangering, — The public health is an interest of su- preme regard.! Therefore everything of sufficient magnitude,^ calculated to impair it, is indictable at the common law. Thus, — § 490. 1. Exposing to Contagious Disease. — It is no crime for a man to be sick of a contagious disease in his own house, even in a populous locality, or for his friends to decline removing him ; ^ yet if he goes into a public way carrying the infection to the danger of the public, or if one thus takes out an infected child,* or a horse having a disease communicable to man,^ an offence indictable at the common law is committed. So, — 2. Filthy Houses — (Private Abatement). — As observed in a New York case : " It is a common nuisance, indictable, to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in time of sickness and infection of the plague." ^ Therefore, when cholera was supposed to be conta- gious, — a consideration, however, which does not directly appear to have influenced the decision, -^ a dwelling-house divided into small apartments thickly inhabited, and kept in a filthy condi- tion, during the cholera time, was adjudged to be a nuisance, even abatable by persons residing near.^ So, — 3. " Manufactures, — lawful in themselves, may become nuisances 1 Metropolitan Asylum Dist. v. Hill, 6 6 Referring to 2 Rol. Abr. 139. Ap. Cas. 193; Butterfoss v. S. 13 Stew. ^ Meeker v. Van Rensselaer, 15 Wend. Ch. 325. 397, 398. See S. v. Purse, 4 McCord, 472 ; 2 Ante, § 212 et seq. P. v. Townsend, 3 Hill, N. Y. 479 ; and as " Boom V. Utica, 2 Barb. 104. to the private abatement of the nuisance, * Eex V. Vantandillo, 4 M. & S. 73 ; post, § 828, 1080, 1081 ; Welch v. Stowell, Eex V. Burnett, 4 M. & S. 272 ; 1 East 2 Doug. Mich. 332 ; Moffett v. Brewer, F. C. 226. 1 Greene, Iowa, 348 ; Barclay v. C. 25 Pa. ^ Reg. V. Henson, Dears. 24, 18 Eng. 503, 64 Am. D. 715. L. & Eq. 107. 298 GHAP. XXXV.] PEOTECTION TO PUBLIC HEALTH. §491 if erected in parts of towns where they cannot but greatly incom- mode the inhabitants, and destroy their health." ^ § 491. 1. Unwholesome Food and Drink. — It is indictable at the common law to make unwholesome a water supply ^ or pro- visions 3 meant for use in the community, or to sell for such use food* injurious to the health. Even the mere exposure in an open market for sale, of things thus injurious, or the sending of them there for the purpose, constitutes the complete offence at common law.^ And the common carrier who brings them to market, with knowledge, is indictable.^ But it is otherwise if the unwholesome provisions are not intended to be used for food.^ And — 2. To one Person — Assault and Battery. — The mere private administering of the unwholesome thing to a single individual is not an indictable public nuisance,^ however it may be viewed as an assault and battery .^ 3. Old statutes — Modern. — If this putting upon the com- • Meeker v. Van Rensselaer, supra; post; § 1138-1144. 2 S. V. Buckman, 8 N. H. 203, 29 Am. D. 646. And see C. v. Lyons, 1 Pa. Law- Jour. Rep. 497; Stein' w. S. 37 Ala. 123. 3 Rex K. Dixon, 3 M. & S. 11, 4 Camp. 12; Rex i;. Haynes, 4 M. & S. 214. * S. V. Smith, 3 Hawks, 378, 14 Am. D. 594 ; S. V. Norton, 2 Ire. 40 ; Rex v. Treeve, 2 East P. C. 821 ; S. v. Buckman, 8 N. H. 203, 29 Am. D. 646 ; Hunter v. S. 1 Head, 160, 73 Am. D. 164; P. v. Parker, 38 N. Y. 85, 97 Am. D. 774 j Goodrich v. P. 3 Par. Ci;. 622, 19 N. Y. 574. 6 Reg. V. Stevenson, 3 Post. & F. 106. 6 Reg. V. Jarvis, 3 Fost. & P. 108. ' Reg. V. Crawley, 3 Post. & P. 109. 8 Ante, § 236, 243. ' Administering as Assault. — In Reg. V. Hanson, 2 Car. & K. 912, 4 Cox C. C. 138, it was by two judges held not to be even an assault. But in principle, the correctness of this ruling is more than doubtful. And in Massachusetts such an act is adjudged to be assault and battery. C. V. Stratton, 114 Mass. 303, 19 Am. R. 350. The noxious thing was a force put in motion by the party administering it, and it inflicted an intended physical in- jury, — why, then, was not the act an assault ■? And see Vol. II. § 32 and note. Afterward in England, the mistake was corrected by legislation. Stat. 23 Vict, c. 8, § 2, re-enacted in 24 & 25 Vict. c. 100, § 24, provides (I copy from the latter) that "whosoever shall unlawfully and maliciously administer to, or cause to be administered to or taken by, any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of a misdemeanor, and," &c. And it is held that the administering to a wo- man of cautharides to excite her sexual passions and obtain a criminal connection with her, is an offence within the statute. Reg. V. Wilkins, Leigh & C. 89, 9 Cox C. C. 20. The same, at an earlier date, was adjudged in Michigan on a similar statute. P. V. Carmichael, 5 Mich. 10, 71 Am. D. 769, Where the ulterior object is to obtain, by stealth, the property of the person injured, it is the same. P. v. Ad- wards, 5 Mich. 22. The principle is that the defendant's intent to inflict the injury to whicli the statute pointed, combining with the act, filled the statutory terms; and though he had also another intent, and it was the principal one, still a sur- plusage of intent could not take away what, without it, was fully within the statute. And see ante, § 339. 299 § 493 THE ACT ESSENTIAL IN CEIMB. : [BOOK T. munity of unwholesome food and drink were assumed not to be punishable under the ancient common law, still it is under English statutes so old as to be common law with us.^ And there are modern enactments, English and American, in affirm-, ance of the earlier law.'^ 4. Noxious Trade. — As already partly seen,^ injury to the public health is one ground on which the carrying on of noxious trades in thickly settled neighborhoods is held to be a crime.*' § 492. Quarantine, &c. — Considerations of public health enter into quarantine ^ and other like regulationsi^ Also — § 493. 1. Liquor-selling — Lotteries — Gaming, &c. — They lie, in part, at the foundation of statutory regulations and prohibitions which have been adopted in most of the. States, concerning the sale of intoxicating liquor, concerning lotteries, gaming, medical practice, and various other like things, — - treated of in " Statutory Crimes." The constitutionality of this sort of legislation is gen- erally conceded by the courts.' As to which, — 2. In Constitutional Law, — the principle is that since, of neces- sity, it is both the right and the duty of the legislature to make needful regulations for the preservation of the public health, and the protection of the other public interests considered in this series of chapters, this body as an unavoidable consequence must de- 1 Bumby v. Eollitt, 11 Jur. 827 ; 4 Bl. * Rex v. Davey, 5 Esp. 217 ; Rex v. Com. 162, wheie this learned commentar Neil, 2 Car. & P. 485 ; Moses v. S. 58 Ind. tor says : " A second offence against pub- 185. lie health Is the selling of unwholesome ^ Ante, § 240 (2). See Rex v. Harris, provisions. To prevent which the stat- 4 T. R. 202, 2 Leach, 549 ; S. v. Patterson, ute 51 Hen. 3, stat. 6, and the ordinance 14 La. An. 46 ; Hess v. S. 16 Vroom, 445. for bakers, c. 7, prohibit the sale of cor- ' See C. v. Fahey, 5 Cuah. 408 ; Har- rupted wine, contagious or unwholesome riaon v. Baltimore, 1 GiU, 264. As to flesh, or flesh that is bought of a Jew ; Importing Infected Cattle. — Teazel v. under pain of amercement for the first Alexander, 58 111. 254 ; Somerville v. offence, pillory for the second, fine and Marks, 58 111. 371. Noxious Trades in imprisonment for the third, and abjura- Cities. — Taunton v. Taylor, 116 Mass. tion of the town for the fourth. And 254 ; Watertown v. Mayo, 109 Mass. 315, by the statute 12 Car. 2, c. 25, § 11, any 12 Am. R. 694. Other Nuisances in brewing or adulteration of wine is pun- Cities. — Underwood v. Green, 3 Rob. ished with the forfeiture of ilOO it done N. Y. 86 ; Reed v. P. 1 Par. Cr. 481. by the wholesale merchant ; and £40 if Selling ' Adulterated Milk. — Stat, done by the vintner or retail trader." Crimes, § 1124-1127. » Pope V. Tearle, Law Rep. 9 C. P. ' And see, in illustration, S. v. Fisher, 499 ; Roberts v. Egerton, Law Rep. 9 52 Mo. 174. Cattle-guards. — So the Q. B. 494; Fitzpatrick v. Kelly, Law Vermont Court has held that the rail- Rep. 8 Q. B. 337 ; C. V. Raymond, 97 roads may be compelled by legislative Mass. 567; S. v. Taylor, 29 Ind. 517; act to maintain oattle-guards at the cross- Vason 0. Augusta, 38 Ga. 542. ings. Thorpe v. Rutland and Burlington ' Ante, § 490 (3). ■ Rid. 27 Vt. 140, 62 Am. D. 625. 300 CHAP. XXXV.] PROTECTION TO PUBLIC HEALTH. § 494 termine when the exigencies require a particular inhibition, and what shall be its limits. Hence, in the absence of specific terms to the contrary in the Constitution, the legislative judgment as expressed in the statute is conclusive, and from it there cannot in its nature be an appeal to the courts.^ § 494. Restated, — the doctrine of this chapter is that the public health, like other public interests, is committed to the care of the law. Whatever, by general consent, impairs it in a degree within the law's notice, is by the common law indictable. But enlightenment increases with the ages, so that many things of this general sort, not punishable by the common law, are made offences by statutes. And, after all, this department of our law is in an unsatisfactory condition. While the public has an interest in the health of its several members, every individual has of right his own health specially in his own keeping. But not unfrequently legislators, with zeal burning more brightly than wisdom, undertake to regulate men's health to the point of in- fringing their own private and rightful jurisdiction and control. It is not absolutely easy to draw here the true bound for legisla- tion ; but it is not hard, if one tries it, to feel the obligation not to transcend the bound. 1 Stat. Crimes, § &89-996. 301 496 THE ACT ESSENTIAL IN CRIME. [BOOK V. CHAPTER XXXVI. PROTECTION TO RELIGION, PUBLIC MORALS, AND EDUCATION. § 495. Introduction. 496-499 a. Religion. 500-506. Public Morals. 507, 508. Public Education. 495. The Foundation — of this chapter is the commonly accepted truth that upon religion, morals, and education society and the State itself rest. Consequently, within practical limits, yet not to the full extent which mere theory might indicate, the law protects them, and holds to, be indictable acts wrongfully committed to their detriment. But — The Protection — given to one of these interests is not neces- sarily the same as to another ; for which reason we shall treat of them separately. Thus, — How Chapter divided. — We shall consider the subject as to, I. Religion ; II. Public Morals ; III. Public Education. I. Religion. § 496, 1. Religion as distinguished from its Forms. — Man has many faculties and propensities, on the harmonious action whereof his happiness, depends. Among them are the faculty which takes cognizance of a Higher Power, and the propensity to look in conscious feebleness to that Power for help. So it is in all ages, in all countries, and in all grades of civilization and of barbarism. If in exceptional instances it seems otherwise, an unnatural original conformation of the mind or a perverse education is the cause. For in most men, of whatever class, age of the world, or country, a religious part is distinctly mani- fest. And this is a thing quite separate from the multitudinous forms in which the one religion outwardly appears. 2. Law-established Form. — When this country was settled, there was in England, as now, a form of religion ordained by law. But it was not brought hither in a way to become a part 302 CHAP. XXXVI.] EELIGION, MOEALS. AND EDUCATION. § 498 of our common law; for the early emigrants were dissenters from the English establishment, or of opinions too discordant to admit of making any one form universal ; or they deemed, as the majority do now, that religion in its essence and spirit flourishes best when every man is free to follow the form approved by his conscience. So that — 3. Simony — Non-oonformity, &o. — In England, resulting from its church establishment, there are statutory and common-law offences unknown with us. Such are simony, being a corrupt presentation to an ecclesiastical benefice ; ^ non-conformity to the worship of the Church ; ^ beating a clerk in orders, as an offence higher than an ordinary battery ; ^ and some others. Yet — § 497. 1. Christianity whether Common Law. — In a more general sense, while religion is a part of universal law as just explained, Christianity is a part of our common law.* But — 2. Apostasy, &c. — Imposture — Pretended Prophecies. _ — Whether it follows that apostasy, which is a total renunciation of Christianity by those who have embraced it;^ those darker heresies which tend to overturn Christianity itself, and not merely some form of it;^ religious imposture,^ false and pre- tended prophecies, ** and the like, — were ever subjects of indict- ment here, as they were in England when our forefathers came to this country, we have probably no adjudications. Practically they have dropped silently out of the catalogue of crimes even on the> other side of the Atlantic. And the good sense of the present age has taught that opinions should not be restrained by law unless developed in some injurious act. This, indeed, we have seen to be fundamental in the common law itself. ^ § 498. Public Profane Swearing and Blasphemy, — always pun- ishable under the common ,law of England, are so also under our unwritten law; yet less, according to some opinions, as tending to sap the foundations of Christianity than as disturbing the peace and corrupting the' morals of the communi^v.^" 1 4 Bl. Com. 62 ; 1 East P. C. 35. ' 4 Bl. Com. 43. 2 4B1. Com. 51. ' * ^l' ^°'"- **• ^^^ ^®® ^®S- "• 8 4 Bl. Com. 217. Gathercole, 2 Lewin, 237. 4 Updegraph v. C. 11 S. & R. 394; P. '4 Bl. Com. 62. V. Engffles, 8 Johns. 290, 5 Am. D. 335 ; ^ 4 Bl. Cora. 149. Shorer «. S. 5 Eng. 259 ; 1 Bancroft Hist. » Ante, § 204, 206, 430, 431. U S 243 • Vol, II. § 74. See Cincinnati i" P. v. Ruggles, 8 Johns. 290, 5 Am. Board of Education v. Minor, 23 Ohio St. D. 335 j S. v. Jones, 9 Ire. 38 ; S. v. Chan- 211 dler, 2 Harring. Del. 553; Updegraph «. 303 § 499 a THE ACT ESSENTIAL IN CRIME. [BOOK V. § 499. 1. The Observance of the Lord's Day — is, both in our States and in England, so fully enforced by statutes that it is of little consequence what the law would be without them.^ Yet it appears to be reasonably well settled that by the ancient com- mon law, therefore by the law of our States in the absence of any early English or State statute affecting the question, a mere single act of Sabbath-breaking, or many acts short of a public nuisance, are not indictable.^ Whether or not there are such early English statutes to be deemed common , law with us, the author will not undertake to settle, except to say that he knows of none which have been so adjudged, — a question which could rarely arise in any of our courts. And still when we reflect that the observance of this day contributes to the public repose, health, morals, and convenience, as well as religion; that our ancestors were a Sabbath-keeping people; and that the law in both countries rests on exactly the same reasons, — we shall see abundant room for the inference that the English system, whatever it was, and however originating in ancient acts of Parliament, became law in our colonies.* And — 2. Acts in Breach multiplied. — Where acts of Sabbath-breaking have been so multiplied as to become a public nuisance, they are as such indictable at the common law.* 3. Our statutes — against Sabbath-breaking have sometimes been attacked as violative of our constitutions, but generally they are sustained by the courts, — a questibn for the second volume.^ § 499 a. In Conclusion of the Subject, — religion, as distin- C. 11 S. & E. 394. And see S. v. Kirby, day in seven, wherein the thoughts of 1 Murph. 254; C. v. Kneeland, 20 Pick, men and their physical activities shall 206; S. V. Ellar, 1 Dev. 267; "Vol. II. §74. be turned into another than their aocus- 1 1 East P. C. 5 ; S. v. Brooksbank, 6 tomed channel, is a thing as much per- Ire. 73 ; Nabors v. S. 6 Ala. 200 ; S. v. taining to the law of nature as is the Schnierle, 5 Rich. 299. And see S. o. alternation of night with day,- and the Williams, 4 Ire. 400. rest and restoring influence of sleep. 2 Dir.&P. §661, 662; Crim. Pro. II. Those who, out of dislike to sect or § 812 ; Bishop Con. § 536; S. v. Brooks- party, in religion, seek to abolish the Sab- bank, 6 Ire. 73. bath are as unwise as he who, to destroy » It is a mistake to suppose that Sab- a bird of prey, should aim his gun where bath-keeping is a thing only of religious the ball would take effect on his nearest observance, or a mere tenet of a sect, friend. There are, indeed, views as to the man- * Vol. II. § 965 ; Crim. Pro. 11. § 812 ; ner of the observance, or the particular Dir. & F. § 662 ; Bishop Con. § 636. day, peculiar to sect ; yet the setting 6 Vol. II. § 951. apart by the whole community of one 304 CHAP. XXXVI.J RELIGION, MOEALS, AND EDUCATION. § 500 guished from its diverse and multitudinous outward forms, is a part of the human soul, therefore having the right to exist, yet requiring from the law little protection and receiving little. In this respect it is like human thought, which our governments cannot destroy if they would, and which they have neither much occasion nor power to protect. But to proceed one step further, if men in the name of religion commit acts violative of the good order of society as defined by the common law and from time to time by statutes, they are punishable; just as they are if they permit thought to carry them into what is legally forbidden. But they are not punishable for manifestations either of religion or of thought short of this, however obnoxious to men of differ- ent opinions. And for so much freedom of religion, and no more, we have constitutional guaranties, — not interpreted to permit men to do, though in the name of religion, what the legislative body deems destructive of the due order of society. ^ II. Public Morals. § 500. 1. How protected by Law. — However uncertain the extent to which the common law protects religion and Chris- tianity, plainly it cherishes fully the public morals ; and every act which it deems sufficiently evil and direct, '■* tending to im- pair them, it punishes as, crime. Thus, — 2. Bawdy-house — Open Obscenity, &c. — The keeping of bawdy- houses ; ^ the public exhibiting or publishing of obscene pictures and writings;* the public utterance of obscene words ;^ the in- decent and public exposure of one's person, or the person of 1 Davis V. Beason, 133 TJ. S. 333 ; Rey- Reg. v. "Williams, 10 Mod. 63, 1 Salk. 384 ; nolds V. TJ. a 98 U. S. 145 ; Mormon Smith v. S. 6 GiU, 425 ; S. v. Evans, 5 Ire. Chnrcli o. U. S. 136 U. S. 1, 49, 50. I 603 ; Smith v. C. 6 B. Monr. 21 ; Boss v. cite these cases, as I do others in like C. 2 B. Monr. 417; P. v. Erwin, 4 Denio, circumstances, because they sustain the 129; C. v. Harrington, 3 Pick. 26; Reg. doctrine of the text. But the form of v. Pierson, 1 Salk. 382; Jennings v. C. 17 reasoning is not borrowed from the judi- Pick. 80; Warren v. P. 3 Par. Cr. 544. cial words ; if it were, I should put the And see S. v. Bailey, 1 Post. N. H. 343. words within marks of quotation. On * Ante, § 309 ; post, § 761, 1129 ; Vol. the other hand, it is such as I find in the II. § 943, 944 ; C. v. Holmes, 17 Mass. law itself, stated in a manner to harmonize 336 ; C. v. Sharpleas, 2 S. & B. 91, 7 Am. with the connected text. So likewise, as D. 632 ; Willis v. Warren, 1 Hilton, 590 ; far as my capacity extends, it is in all Reg. w. Grey, 4 Fost. & F. 73 ; C.w.Landis, other places in these volumes. 8 Philad. 453. 2 Ante, § 212 et seq. ' BeU v. S. 1 Swan, Tenn. 42. 8 Post, § 1083-1096; 4 Bl. Com. 168; VOL. I.— 20 305 § 501 THE ACT ESSENTIAL IN CRIME. [BOOK V. another; and, generally, all acts of gross and open lewdness,^ — are indictable at the common law. But — § 501. 1. Adultery — Fornication — Private Exposure of Per- son — Solicitations. — For reasons already considered,^ the same things. — as, adultery and fornication,* though committed with many persons,^ solicitations to permit these offences,^ exposure of a man's person to one female only,^ — done in a more private manner, are not punishable criminally, except under statutes which exist in many of the States. Yet — 2. Amounting to Nuisance. — By the better doctrine, adultery and fornication may be so continuous and public, or open and notorious, as to constitute an indictable nuisance at the common law. 8 Even a single act of either, committed in a public place and in the presence of people, will be so.^ But where the exhibi- tion is not in this sense public, yet unmarried parties openly and notoriously dwell together as though married, there must be a combination of things, and a continuity of evil, extending, it is believed, further or less far according to the particular facts and their surroundings, to render the criminal nuisance complete, — the limit of which doctrine appears not to admit of a more accurate defining, i" Probably the courts will differ more or less as to the limits ; and in South Carolina an open living in adul- tery was adjudged not indictable at .the common law though 1 Ant^, § 244 (2); post, § 1125-1134; son, 1 Salk. 382; S. o. Moore, 1 Swan, Britain v. S. 3 Humph. 203 ; S. v. Roper, Tenn. 136. 1 Dev. & Bat. 208 ; Reg. v. Webb, 1 Den. " Reg. v. Pierson, 1 Salt. 382. SoUoi- C. C. 338, 2 Car. & K. 933, Temp. & M. tation an Attempt. — Where a statute 23, 13 Jur. 42; itiller v. P. 5 Barb. 203 ; makes adultery an indictable felony, the S. V. Rose, 32 Mo. 560 ; P. v. Bixby, 4 solicitation is punishable as an attempt. Hun, 636 ; Reg. v. Reed, 12 Cox C. C. 1, S. v. Avery, 7 Conn. 266. See Shannon ». 2 Eng. Rep. 157 ; Reg. v. Saunders, 1 C. 14 Pa. 226 ; post, § 767. Q. B. D. 15, 19, 13 Cox C. C. 116. ' Rex v. Webb, 1 Den. C. C. 338, 2 " Stat. Crimes, § 711 ; 4 Bl. Com. 64; Car. & K. 933 ; Reg. v. Watson, 2 Cox Brooks V. S. 2 Yerg. 482. C. C. 376, 20 Eng. L. & Eq. 599 ; Reg 8 Ante, § 235, 236, 243-246. ». Holmes, 20 Eng. L. & Eq. 597 ; ante, * Ante, § 38, 39 ; Stat. Crimes, § 654 ; § 244 (2). Reg. V. Pierson, 1 Salk. 382 ; Galizard o. s Ante, § 38 ; S. v. Moore, 1 Swan, Rigault, 2 Salk. 552; a. o. nom. Gallisand Tenn. 136; Anderson v. C. 5 Rand. 627, V. Rigaud, 2 Ld. Raym. 809 ; S. v. Brun- 16 Am. D.' 776 ; C. v. Isaacs, 5 Rand. 634 ; son, 2 Bailey, 149 ; Anderson u. C. 5 Rand. C. v. Jones, 2 Grat. 555. And see Rex v. 627; C. w. Isaacs, 5 Rand. 634 ; C.K.Jones, Johnson, Comb. 377; Rex v. Talbot, U 2 Grat. 555; S. v. Cooper, 16 Vt. 551 ; S. Mod. 415; Claxton's Case, 12 Mod. 566; V. Poster, 31 Tex. 578 ; S. v. Rahl, 33 S. v. Cagle, 2 Humph. 414. Tex. 76; S. v. Smith, 32 Tex. 167. » Post, § 1127; Stat. Crimes, § 711. 6 S. V. Evans, 5 Ire. 603 ; Reg. v. Pier- i° See the cases cited in the note before 306 the last. And see post, § 502 (1). CHAP. XXXVI.] RELIGION, MORALS, AND EDUCATION. § 502 charged as an offence against public decency. ^ As within this doctrine, yet on the same side with the South Carolina case, is — 3. Bastardy. — Though bastardy comes from fornication or adultery, it is not necessarily of the sort which is a public nuisance; therefore, ordinarily, or in general terms, it is not indictable under the common law.^ 4. Common Night-walking — may be classed with the offences against morality. In many of our States there are statutes against it, and it is also indictable at the common law. Night- walkers are persons who make themselves a common nuisance by going about nights, committing bawdry, or other petty offences or annoyances,^ or by their conduct rendering themselves sus- pected generally.* § 502. 1. Selling and Buying ^Vife. — It is in England a com- mon-law crime publicly to sell and buy a wife.^ Therefore, and in analogy to the nuisance of an' open living as husband and wife without marriage,^ it would appear to be punishable also under our common law. 2. Incest — is a statutory offence in many of our States,'' but - S. i!. Brunson, 2 Bailey, 149. and sleep by day, and of suspicious ap- '^xStat. Crimes, § 691 ; S. v. Snure, 29 pearance and demeanor. [Referring to Minn. 132 ; S. v. ^uick, 25 S. C. 110. Bouv. Law Diet. tit. Night-walkers and » Dir. & F. § 1007 ; Crim. Pro. IL Haunters of Bawdy-liouses ; 2 Hawk. § 874 a. In S. v. Dowers, 45 N. H. 543, P. C. c. 8, § 38 ; c. 10, § 34, 35 ; c. 12, it was said to be indictable as well at the § 20.] Prom these authorities it is ob- common law as under the statute to be a vious, we think, that to constitute this common night-walker. And Bellows, J. offence the habit should exist of being explained : " In Watson v. Carr, 1 Lewin, abroad at night for the purpose of com- 6, Bayley, J. laid it down that by night- mitting some crime, of disturbing the walkers were meant such persons as are peace, or doing some wrongful or wicked in the habit of being out at night for some act. If some crime is actually committed, wicked purpose. See Roscpe Crim. Bv. that is the subject of a separate indict- 745, where this case is cited. In 1 Burn ment; but the power to arrest and punish Just. 765, night-walkers are said to be for the offence of night-walking is con- those who eave-drop men's houses, cast ferred for the preservation of the peace, men's gates, carts, and the like into ponds, and to prevent the commission of crime." . or commit other outrages or misdemeanors p. 544, 545. in the night, or shall be suspected to be * Thomas v. S. 55 Ala. 260. pilfering or otherwise like to disturb the ^ Rex v. Delaval, 3 Bur. 1434, 1438 ; peace, or that bei persons of iU-behavior or 4 Bl. Com. 64, note; C. v. Sharpless, 2 S. of evil fame or report generally, or that & R. 91, 102, 7 Am. D. 632. shall keep company with any such, or with ^ Ante, § 501 (2). other suspicious persons in the night. In ' See C. v. Goodhue, 2 Met. 193 ; U. S. other places night-walkers are said to be v. Hiler, Morris, 330; Stat. Crimes, § 727' those who are abroad during the night 736. 307 § 504 THE ACT ESSENTIAL IN CRIME. [BOOK V. it seems not to be indictable otherwise. ^ It is ecclesiastically ^ punishable in England.^ 3. Polygamy — that is, simple polygamy, as distinguished from open and notorious cohabitation — was, in England, not an oifence in the temporal courts until 1 Jac. 1, c. 11, made it such when committed " within his Majesty's dominions of Bng- ■ land and Wales ; " ^ consequently in this country its criminality rests only on our statutes.^ We have seen something of their terms and interpretations,^ and the rest appears in "Statutory Crimes. " § 503. 1. Sodomy. — Not alone to protect the public morals, but for other reasons also, sodomy — called sometimes buggery, sometimes the offence against nature, and sometimes the horrible crime not fit to be named among Christians, being a carnal copu- lation by human beings with each other against nature, or with a beast — is, though committed in secret, highly criminal. Hawk- ins says it "was felony by the ancient common law;"^ yet according to Blackstone it was "in the times of Popery only subject to ecclesiastical censures. " ^ The Statute of 25 Hen. 8, c. 6, sufficiently early in date to be common law in this country, made it felony;* and either by the adoption of early English enactments, or the earlier English common law, we have re- ceived it into the catalogue of our common-law crimes.^" 2. Attempted Sodomy — (Divorce). — An attempt to commit sodomy, much more the offence itself, is, in that body of the English unwritten law which was formerly administered in the ecclesiastical courts, a ground of divorce. " § 504 1. Immoral Public Shows. — Morality in other forms has from the common law a like protection with chastity. Thus, it is laid down that the erection of a mountebank's stage is indictable ; 12 and more broadly, that so is " every public show 1 4 Bl. Com. 64. 9 Hawk. P. C. nt sup. ; 1 Russ. Crimes, 2 Ante, § 38, 39. 3d Eng. ed. 698 ; 1 Hale P. C. 669 ; 1 8 1 Bishop Mar. BW. & S. § 735 ; 2 lb. East P. C. 480. § 484; Stat. Crimes, § 728. lo Vol. II. § 1191-1X96; C. v. Thomas, * 1 Bishop Mar. Div. & S. § 715. 1 Va. Cas. 307 ; Davis v. S. 3 Har. & J. 5 Stat. Crimes, § 577-613. 154. « Ante, § 303 a, note, par, 13, 15, 16. " 1 Bishop Mar. Div. & S. § 1829-1832; ' 1 Hawlt. P. C. 6th ed. c. 4, p. 9, 2 lb. 1408. Curw. ed. p. 357. 12 Rex v. Bradford, Comb. 304. And 8 4 Bl. Com. 216. And see Rex v. see Hall's Case, 1 Mod. 76. Mulreaty, 1 Russ. Crimes, 3d Eng. ed. 698. 308 CHAP. XXXVI.] RELIGION, MORALS, AND EDUCATION. § 505 and exhibition which outrages decency, shocks humanity, or is contrary to good morals. " ^ And — 2. Gaming and other Disorderly Houses. — The keeping of a common gaming-house,^ or of a disorderly ale-house or inn,^ or of any other .disorderly house,* is a common-law offence, be- cause, among other reasons, of its evil influence on the public morals. But — 3. feaming — Cook-fighting. — In the absence of forbidding stat- utes, gaming alone and simple is not a crime. ^ Yet the peculiar nature of a game may render it such ; for example, the added element of cruelty in cock-fighting. ^ And — § 505. 1. An Ale-house, — if not disorderly, is under the common law lawful, no license being required to keep it.' But early English legislation regulated considerably liquor-selling establishments and other like things,^ and the example of our ancestors has been widely followed by us during all periods of our history.® As to — 2. The Nuisance. — An ale-house or any other liquor-selling place may become a common-law nuisance by the manner in which it is kept. Under which head we have tippling shops, disorderly inns, and houses wherein offences are commonly com- 1 Knowlesu. S.SDay, 103. See Jacko Smith v. C. 6 B. Monr. 21; BloomhufE V. S. 22 Ala. 73 ; Reg. v. Grey, 4 Fost. & «. S. 8 Blackf . 205 ; S. . Ivens, 7 Car. & P. 213, 219. tan Rid. 107 Mass. 236 ; C. v. Vermont « Ante, § 458 et seq. and Massachusetts Rid. 108 Mass. 7. l' And see ante, § 232-234, 250-252. 1 S. V. Grand Trunk Ry. 58 Me. 176, " Offences by Innkeepers enumer- 4 Am. R. 258 ; S. v. Maine Cent. Rid. 77 ated. — Hawkins says : " It seems to be Me. 244 ; post, § 1074-1076. agreed that the keeper of an inn may 2 See Hall v. S. 4 Harring. Del. 132, by the common law be indicted and 141. As to what is an " Inn," " Tavern," fined, as being gnilty of a public nui- " Hotel," &c,, see Stat. Crimes, § 297. sance, if he usually harbor thieves, or s Rex u. Ivens, 7 Car. & P. 213, 219. persons of scandalous reputation, or snf- See Newton v. Trigg, 1 Show. 268, 269. fer frequent disorders in his house, or * Fell V. Knight, 8 M. & W. 269, 5 Jnr. take exorbitant prices, or set up a new 554- inn in a place where there is no manner 6 1 Hawk. P. C. Curw. ed. p. 714, § 2. of need of one, to the hindrance of other ° Bishop Non-Con. Law, § 1169, 1170; ancient and well-governed inns, or keep Kex V. Luellin, 12 Mod. 445. . it in a place in respect of its situation 326 CHAP. XXXVIII.] PUBLIC CONVENIENCE AND SAFETY. § 632 a be likened to an obstruction in a public way. At all events, the law on this subject is probably as above stated; because no sufficient reason appears for discarding the old doctrine. Yet it has little practical effect at this time, being rather a relic of the past than a living thing of the present. And — 2. Behavior of Guest. — One's right to remain, or even to be originally received as guest, is conditioned on his good behavior ; so that on a breach of this condition, the landlord may exclude him.i § 532 a. Restated, — the doctrine of this chapter is, that while one is not indictable who merely creates an inconvenience or even a danger to an individual, short of what will appear in the chapter after the next, he is so who does either to the public at large, if of the law's standard in magnitude. The law's idea of what is sufficient in form and degree expands with the public's acknowledged needs; for what would be deemed no inconven- ience or danger in semi-barbarous times while the luxuries of later ages were unknown, and consequently would create no dis- quiet or conscious harm in the .public, may be regarded as quite the reverse when art has smoothed the ways of travel and accel- erated its motions, when refinement has taken the coarse and the gross from the public manners, and when all the machinery of ordinary life has been remodelled and made smooth in its multitudinous and complicated movements. Therefore modern statutes, while they have not abrogated the old law, have added a good deal to it ; so that the laws of the present day under this head exhibit a growth greatly beyond what appeared in the days of the Henrys in England. wholly unfit for such a purpose. And it mer, 2 Q. B. D. 136, 13 Cox C. C. 378. seems also (to be clear that if one who Plainly the setting up of a new inn in a keeps a common inn refuse either to re- locality where there are old ones is not ceive a traveller as a guest into his house indictable in our age and country ; per- or to find him victuals or lodging, upon haps the same may be said of some other his tendering him a reasonable price for of the offences in this list by Hawkins, the same, he is not only liable to render while others are in reason now what he damages for the injury in an action on states them to have been when he wrote, the case at the suit of the party grieved, ^ Bishop Non-Con. Law, § 392, 1168, but may also be indicted and fined at the 1171 ; S. v. Steele, 106 N. C. 766, 19 Am. suit of the king." 1 Hawk. P. C. Curw. St. 573 ; Reg. v. Rymer, supra ; C. v. ed. p. 714, § I, 2. And see Reg. v. Ry- Power, 7 Met. 596, 601. 327 § 534 THE ACT ESSENTIAL IN CRIME. [BOOK V. CHAPTER XXXIX. PROTECTION TO THE PUBLIC ORDER AND TRANQUILLITY. § 533. 1. The Prime Function of Government — is to preserve public order and keep the State tranquil. Thereupon the people have the opportunity to work out their own happiness and pros- perity, which, of necessity, can proceed only from themselves, and can never be and never is a governmental gift. Therefore — 2. The Rule for this Chapter, — qualified as in the last,^ is that whatever, of sufficient magnitude for the law's notice,''' one wil- fully does to the disturbance of the publi6 order or tranquillity is indictable at the common law. For example, — § 534. 1. Riots, Routs, and Unlawful Assemblies, — allied disturbances of the public tranquillity, are common-law crimes. They severally require, says Blackstone,^ "three persons, at least, to constitute them." And, to follow his particularization, — 2. An Unlawful Assembly — is the congregating of three or more persons to do some unlawful act;* "as, to pull down enclosures, to destroy a warren, or the game therein;" they parting "without doing it or making any motion towards it."^ If, instead of thus separating without action, they accomplish some object to the terror of the people, their offence becomes a riot.^ ___ 3. A Rout, — as defined by Blackstone, "is where three or more meet to do an unlawful act upon a common quarrel ; as, forcibly breaking down fences upon a right claimed of common or of way ; and make some advances towards it. " ^ But what is 1 Ante, § 530. v. Hunt, 1 Russ. Crimes, 3d Eng. ed. 273 ; = Ante, § 212 et aeq. Rex v. Blisset, 1 Mod. 13 ; Rex v. Birt, 5 3 4 Bl. Com. 146. Car, & P. 154. " Vol. II. § 1256. 6 Vol. II. § 1143, 1257. * And see S. v. Stalcup, 1 Ire. 30, 35 ' And see S. v. Sumner, 2 Speers, 599, Am. D. 732 ; Reg. v. Vincent, 9 Car. & P. 42 Am. D. 387. 91 ; Reg. v. Neale, 9 Car. & P. 431 ; Rex 328 CHAP. XXXIX.J PUBLIC ORDER AND TRANQUILLITY. § 635 deemed a neater and more nicely accurate defining, wherein are brought to view the relations of these three offences to one an- other, is that a rout is an unlawful assembly which has per- formed some act toward the commission of a riot.^ 4. A Riot, — ^as defined by Blackstone, "is where three or more actually do an unlawful act of violence, either with or without common cause or quarrel; as, if they beat a man, or hunt and kill game in another's park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act — as, removing a nuisance — in a violent or tumultuous manner. "^ The present author, while not spe- cially objecting to this definition, deems it more informing to Say that a riot is such disorderly conduct in three or more assembled persons, actually accomplishing an object, as is cal- culated to terrify others.^ 5. Riotous Assemblies of Twelve. — There are English statutes, ancient q.s well as comparatively modern, making the riotous as- sembling of twelve or more persons,. under circumstances and for purposes specified, a heavier offence ; * but we have no reported attempts to give them a common-law force in this country. § 535. 1. Affray, . — Of a nature similar to riot and its two related offences, is affray; being the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. It is indictable at the common law.® 2. Fighting in a Private Place — is either no offence^ or an assault and battery, according to the circumstances. 1 Vol. ir. § 1183. 594, 595; Reg. v. Ellis, Holt, 636; S. v. 2 AM see S. v. Connolly, 3 Rich. 337 ; Russell, 45 N. H. 83. S. v. Snbw, 18 Me. 346 ; ,S. v. Straw, 33 ^ Vol. II. § 1143. Me. 554; Williams «. S. 9 Misso. 270; * 4 Bl. Com. 142, where this legislation Scott V. U. S. Morris, 142 ; S. v. Brooks, is stated and explained. 1 Hill, S. C. 361 ; Turpin d. S. 4 Blackf. » Vol. II. § 1 ; 4 Bl. Com. 145 ; S. v. 72 ; S. u. Calder, 2 McCord, 462 ; S. v. Sumner, 5 Strob. 53 ; Simpson v. S. 5 Jackson, 1 Speers, 13; S. v. Cole, 2 Mc- Yerg. 356; Curlin v. S. 4 Yerg. 143 ; Cord, 117; Pennsylvania v. Cribs, Ad- O'Neill «. S. 16 Ala. 65; Cash v. S. 2 dison, 277; Pennsylvania v. Morrison, Tenu. 198; Klum k. S. 1 Blackf. 377 ; S. Addison, 274; Rex k. Scott, 3 Bur 1262, v. Heflin, 8 Humph. 84; S. v. Allen, 4 1 W. Bl. 350 ; Reg. v. Vincent, 9 Car. & Hawks, 356 ; C. v. Perdue, 2 Va. Gas. P. 91 ; Rex v. Sudbury, 12 Mod. 262; 227; Duncan w. C. 6 Dana, 295 ; Hawkins Rex o.Hunt, 1 Keny. 108 ; C. v. Runnels, v. S. 13 Ga. 322, 58 Am. D. 517. 10 Mass. 518, 6 Am. D. 148; Pennsyl- « Ante, § 260 (.3) and note; Vol. U. vania v. Craig, Addison, 190 ; Anony- § 35. jnous, 6 Mod. 43 ; Reg. v. Soley, 2 Salk. 329 § 536 THE ACT ESSENTIAL IN CRIME. [BOOK V. 3. Public — (Prize-fight). — Of course, a public prize-fight is indictable ;i for thereby the public tranquillity is disturbed. ^ § 536. 1. Breaches of Peace. — The foregoing offences are also known as breaches of the peace, — a term of indefinite yet large meaning, sometimes greatly expanded. Commonly and more narrowly it signifies any criminal act of a sort to disturb the public repose. 2 Besides the foregoing indictable breaches of the peace, there are still others ; * thus, — 2. Forcible Detainer — (Defending Property). — While one may lawfully, in the manner and to the extent explained in a subse- quent chapter,^ use force in the defence of his real or personal estate in actual possession, against another who comes without right to dispossess him,^ if he undertakes to retain what he knows ^ to be a wrongful possession by a force or by numbers reasonably exciting terror, he is indictable. This offence is called in law forcible detainer.^ So, — 3. Forcible Entry — Forcible Trespass. — A man is indictable for forcible entry or trespass who by a strong hand, awakening fear, wrests from another's peaceable possession either personal ^ or real i** property, even though he is acting under a just claim. ^^ 1 Reg. V. Brown, Car. & M. 314 ; Reg. Russ. & Ry. 228 ; TT. S. v. Wiltterger, 3 V. Couey, 8 Q. B. D. 534, 15 Cox C. C. 46 ; Wash. C. C. 515 ; S. o. Briggs, 3 Ire. 357 ; ante, § 260 (3), note ; Vol. II. § 35. S. v. Clements, 32 Me. 279 ; S. v. Lazarus, 2 S. V. Newland, 27 Kan. 764. See Hun- 1 Mill, 33 ; 1 East P. C. 402. ter V. S. 62 Missis. 540. ' Ante, § 303. 3 Crim. Pro. 1 § 207, 264 n. ; Stat. iVVol. II. § 4&9 et Seq. ; S. v. Godsey, Crimes, § 198, 1064, note; Davis v. Bur- 13 1m. 348; C. v. Rogers, 1 S. & R, 124; gess, 54 Mich. 514, 517, 52 Am. R. 828. ' C. v. Lakeman, 4 Cush. 597; Milner tf. * And see S. v. Hanley, 47 Vt. 290; S. Maclean, 2 Car. & P. 17. V. Matthews, 42 Vt. 542 ; S. v. Warner, 34 » Vol. II. § 517 ; S. v. Armfield, 5 Ire. Conn. 276 ; S. o. Lunn, 49 Mo. 90 ; post, 207 ; S. v. McDowell, 1 Hawlcs, 449 ; S. v. § 548. Watkins, 4 Humph. 256 ; S. v. Bennett, 4 * Post, § 875, and the places there re- Dev. & Bat. 43; S. v. Mills, 2 Dev. 420; ferred to. S. v. Ray, 10 Ire. 39 ; S. v. Phipps, 10 Ire. " Weaver v. Bush, 8 T. R. 78; Har- 17 ; S. v. Flowers, 1 Car. Law Repos. 97. rington v. P. 6 Barb. 607 ; C. v. Kennard, lo Vol. II. § 489 ; C. v. Shattuck, 4 Cush. 8 Pick. 133 ; S. v. Godsey, 13 Ire. 348 ; S. 141 ; Burt v. S. 3 Brev. 413 ; S. v. Speirin, V. Johnson, 12 Ala. 840, 46 Am. D. 283 ; 1 Brev. 119; S. v. Pollok, 4 Ire. 305, 42 S. V. Morgan, 3 Ire. 186, 38 Am. D. 714 ; Am. D. 140 ; S. v. Pridgen, 8 Ire. 84 ; Monroe v. S. 5 Ga. 85 ; Rex v. Ford, J. Reg. v. Newlands, 4 Jur. 322 ; Rex v. Kel. 51 ; McDaniel v. S. 8 Sm. & M. 401, Nicholk, 2 Keny. 512; S. v. Tolever, 5 47 Am. D. 93 ; S. v. Zellers, 2 Halst. 220; Ire. 452 ; Rex v. Smyth, 6 Car. & P. 201 ; S. V. Smith, 3 Dev. & Bat. 117; Moore v. Harding's Case, 1 Greenl. 22 ; S. v. Morris, Hussey, Hob. 93, 96; Semayne's Case, 5 3 Misso. 127. Co. 91 a ; HoUowaye's Case, Palmer, 545 ; n s, v. Bennett, 4 Dev. & Bat. 43 ; Rex s. c. nom. Halloway's Case, Cro. Car. 131 ; v. Marrow, Cas. temp. Hardw. 174; S. ». C. V Drew, 4 Mass. 391 ; Rex v. Longden, Pearson, 2 N. H. 550 ; P. v. Leonard, U 330 CHAP. XXXIX.J PUBLIC ORDER AND TRANQUILLITY. § 538 But it is otherwise where one having lawful right immediately recaptures what has been wrongfully taken from him.^ When the property is personal, the demonstration to be a crime must be in the presence of the possessor, from whom it is taiken away.^ In like manner, — § 537. Analogous Vindications of Rights. — The riotous entry into a house by the landlord, on the termination of a lease, or for the enforcement of a forfeiture ;,3 the riotous pulling down of enclosures, even under a claim of right;* the breaking, with wood' and stones, of the windows of a dwelling-house in the night, to the terror of the occupants;^ the unlawful throwing down of the roof and chimney of a dwelling-house in the peace- able possession and actual occupancy of another, who is put in fear;^ the riotous breaking into another's dwelling-house, and making a great noise, whereby a woman in it miscarries,^ — are severally indictable at the common law, as either forcible entries or other breaches of the peace. But — § 538. 1. Limits — Trespass — Terror. — The mere trespass is not in these cases indictable ; the act must go further.^ Yet the excited terror, which will complete it, may be wrought as well by a display of numbers^ as by other means. Therefore, for example, — 2. Excessive Distress. — Though the taking of an excessive distress by a landlord is actionable,^" it is not indictable; "for," Johns. 504 ; Beauchamp v. Morris, 4 Bibb, Keeper of Prison, 1 Ashm. 140 ; Rex v. 312; Rex v. Storr, 3 Bur. 1698, 1699; Bake, 3 Bur. 1731 ; Rex w. Smyth, 5 Car. Allen V. Tobias, 77 Dl. 169. & P. 201, 1 Moody &R. 155; S. w. PoUok, 1 S. V. EUiot, 11 N. H. 540. 4 Ire. 305, 42 Am. D. 140; S. v. Ray, 10 ' Vol. II. § 517; S. V. McDowell, 1 Ire. 39; S. v. Mills, 2 Dev. 420; S. v. Hawks, 499 ; S. v. Watlans, 4 Humph. Watkins, 4 Humph. 256 ; S. v. Armfield, 256 ; S. V. Mills, 2 Dev. 420 ; S. v. Earns- 5 ^re. 207 ; Rex v. Gardiner, 1 Russ. . worth, 10 Yerg. 261; Reg. v. Harris, 11 Crimes, 3d Eng. ed. 53; 6 Mod. 175, Mod. 113. And see Rex v. Gardiner, 1 note; 2 Mod. 306, note; Kilpatrick !!. P. Rnss. Crimes, 3d Eng. ed. 53 ; S. v. Flow- 5 Denio, 277 ; Rex v. Storr, 3 Bur. 1698 ; ers, 1 Car. Law Repos. 97. See, as to real Rex v. Atkyns, 3 Bur. 1706 ; Rex v. Gil- estate, S. V. Fort, 4 Dev. & Bat. 192, let, 3 Bur, 1707 ; S. vi Flowers, 1 Car. Law 8 Rex V. Stroude, 2 Show. 149. Repos. 97. * Rex V. Wy vill, 7 Mod. 286. And ^ S. v. Simpson, 1 Dev. 504 ; Milner v. see S. V. Tolever, 5 Ire. 452; Reg. v. Maclean, 2 Car. & P. 17 ; Co. Shattuck, Harris, 11 Mod. 113. 4 Cush. 141 ; Rex v. Jopson, cited 3 Bur. 6 S. V. Batchelder, 5 N. H. 549. 1702. And see S, ». "Wilson, 3 Misso. » S. ». Wilson, 3 Misso. 125; S. v. 125. Morris, 3 Misso. 127. ^'' Lynne v. Moody, 2 Stra. 851 ; Tan- ' C. V. Taylor, 5 Binn. 277. cred w. Leyland, 16 Q. B. 669; Taylor v. 8 S. V. Phipps, 10 Ire. 17 ; Henderson Henniker, 12 A. & E. 488. V. C. 8 Grat. 708, 56 Am. D. 160; C.v. 331 § 540 THE ACT ESSENTIAL IN CRIME. [BOOK V. said Twisden, J,, "it is a private matter, and the party ought to bring his action. " ^ So, — 3. Private Abuse. — One does not commit a common-law crime who merely goes often to the house of another, and in words so abuses his family as to render their lives uncomfortable, — the injury being only civil. ^ We have States wherein there are statutes making this sort of conduct indictable. ^ § 539. Peace endangered. — To lay the foundation for a crimi- nal prosecution the peace need not be actually broken. The community is disquieted by any act tending to the breach, of such sort and proximity as to create disturbing apprehensions in the minds of the lookers-on. Thereupon the law interferes and pronounces what is done indictable. Thus, — § 540. 1. Challenge to Duel. — Sending a challenge, verbal or written, to fight a duel, is a disquiet-creating act in the nature of attempt ; * therefore, though no duel is fought, it is indictable at the common law.^ Again, — v 2. Going about armed, — with unusual and dangerous weapons, to the terror of the people, is a disturbance to the public tranquillity, consequently a common-law crime. ^ So, — 3. Riotously Driving — a horse and carriage through the streets of a populous city, to the seeming hazard of the safety of the inhabitants, is in like manner punishable."^ And to extend and render specific this common-law offence, we have various stat- utes, and particularly city ordinances, limiting the speed of vehicles either generally or under stated circumstances,^ and providing penalties for a breach.^ 4. Libel and Slander. — The publishing of a libel, ^^ or even in some extreme circumstances the uttering of* slanderous words," ' Rex V. Leginham, 1 Mod. 71 ; s. c. « S. v. Huntly, 3 Ire. 418, 40 Am. D. nom. Rex v. Lesinghara, T. Raym. 205 ; 416 ; Sir John Knight's Case, 3 Mod. 117, 8. c. nom. Rex v. Ledlingham, Trem. P. C. Comb. 38. 224. 7 U. S. V. Hart, Pet. C. C. 390. 2 C. V. Edwards, 1 Ashm. 46. See S. » Bishop Non-Con. Law, § 38, 1025. V. Caldwell, 2 Jones, N. C. 468 ; S. v. Bor- ^ gta,t. Crimes, § 20 ; C. v. Worcester, deaux, 2 Jones, N. C. 241. 3 Pick. 462 ; C. v. Roy, 140 Mass. 432. 8 Mullens v. S. 82 Ala. 42, 60 Am. R. m C. v. Clap, 4 Mass. 163, 168, 169, 3 731 ; Weaver v. S. 79 Ala. 279 ; S. v. Burns, Am. D. 212 ; C. v. Chapman, 13 Met. 68 ; 35 Kan. 387. Rex v. Topham, 4 T. R. 126 ; Reg. v. Col- « Ante, § 434, 435 ; post, § 727, 728. lins, 9 Car. & P. 456 ; Rex v. Kinnersley, ' 4 Bl. Com. 150 ; Rex v. Newdigate, 1 W. Bl. 294 ; Reg. v. Lovett, 9 Car. & P. Comb. 10 ; Reg. v. Langley, 2 Ld. Raym. 462 ; Rex v. Pain, Comb. 358 ; S. t . Burn- 1029, 1031, 6 Mod. 124 ; Smith v. S. 1 ham, 9 N. H. 34, 31 Am. D. 217. Stew. 506. " Reg. ». Taylor, 2 Ld. Raym. 879 ; 332 CHAP. XXXIX.] PUBLIC OEDER AND TEANQUILLITY. § 541 is a crime at the common law. And the reason whereon in most of the cases the offence is said to rest, is the tendency to a breach of the peace ;i or, otherwise expressed, the liability to stir up resentments and quarrels. 5. Eavesdropping, — an old common-law offence, consisting of one's hanging about the dwelling-house of another, hearing tattle, and repeating it to the disturbance of the neighborhood, ^ is indictable on the same principle of endangering the public tranquillity.^ So likewise, — 6. A Common Scold — is under the common law punishable, because of the tendency of the continual scolding to public disquiet.* 7. Why ? — The reason already in a measure appears. Partly to repeat, the criminal law is as well preventive as vindictive ; ^ and a threatened danger demands correction the same as an actual one. Moreover, the community is disturbed when it is alarmed. Attempts are indictable,® and the before-mentioned acts are in the nature of attempt. Substantially within the same principle, — § 541. 1. Barratry — Maintenance — Champerty. — A triangle of analogous offences are barratry,^ maintenance, and cham- perty.^ They are rather actual than attempted disturbances of the repose of the community, as embroiling men in lawsuits and other like quarrels. Blackstone defines barratry to be the "frequently exciting and stirring up of suits and quarrels be- tween his Majesty's subjects, either at law or otherwise ; " ^ maintenance, " an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money, or otherwise to prosecute or defend it ; " ^^ champerty, " a bargain with a plaintiff or defendant to divide the land or Ex parte Marlborough, 1 New Sess. Cas. * Ante, § 210. 195, 13 Law J. N. s. M. C. 105, 8 Jur. 664 ; « Ante, § 434, 435 ; post, § 723 et seq. ante, § 470. ' "Vol. II. § 63 et seq. 1 Post, § 591, 734; Vol. II. § 907-909. 8 Vol. II. '§ 121 et seq.; Thompson ./. 2 Post, § 1122. Eeynolds, 73 111. U. 3 S.V. Williams, 2 Tenn. 108; 4B1. Com. ° 4 Bl. Com. 134 ; Case of Barretry, 8 168 ; C. «. LoTett, 4 Pa. Law Jour. Eep. 5. Co. 36 6, S7 6 ,• Eex v. , 3 Mod. 97 ; * 4 Bl. Com. 168; Rex v. Cooper, 2 S. v. Chitty, 1 Bailey, 379; C. «. McCul- Stra. 1246; Reg. v. Foxby, 6 Mod. U ; loch, 15 Mass. 227. For more of this James r. C. 12 S. & R. 220; U. S. v. offence, see Vol. IL § 63-69. Royall, 3 Cranch C. C. 620; C.v. Mohn, >" 4 Bl. Com. 134; Brown v. Beau- 52 Pa. 243, 91 Am. D. 153; post, § 943, champ, 5 T. B. Monr. 413, 17 Am. D. 81. 1101 et seq. 333 S 542 THE ACT ESSENTIAL IN CRIME. [BOOK V. other matter sued for between them, if they prevail at law, whereupon the champertor is to carry on the party's suit at his own expense. " ^ As to how far " Champerty and Maintenance " are offences with us the reader is referred to this title in the second volume. Practically they are limited almost entirely to their civil effects on — 2. Selling Land in Adverse Possession. — The sale of real estate, of which another holds an adverse seisin, is usually a species of champerty, 2 rendering the title of the purchaser void.^ § 542. Disturbing Meetings. — When people assemble for wor- ship,* or in their town ^ or other like meetings,^ or proba- bly always when they come together in an orderly way for a purpose not unlawful, the common law makes it a crime to dis- turb their meeting. In England, statutes were passed to pro- tect dissenters in their worship,'' said to be necessary because their assembling was unlawful. In this country, where all forms of worship are favored,^ it is admitted that such statutes are not required. ^ And opposed to this view even of the Eng- lish law is a strong dictum by Lord Mansfield, who said: "I would have it understood in general that Methodists have a right to the protection of this court, if interrupted in their de- cent and quiet devotions ; and so have dissenters from the Estab- lished Church likewise, if so disturbed. "^*' What amounts to disturbance varies with the nature and objects of the meeting." 1 4 Bl. Com. 135 ; Thurston «. Perci- 96, 34 Am. D. 424 ; P. v. Sergeant, 8 Cow. ral, 1 Pick. 415 ; Rust v. Larue, 4 Lltt. 139 ; Sessions v. Reynolds, 7 Sm. & M. 411, 417, 14 Am. D. 172; Douglass v. 130; Vol. IL § 137, 138. Wood, 1 Swan, Tenu. 393 ; Knight o. 8 More particularly as to which, see Sawin, 6 Greenl. 361 ; Byrd o. Odem, 9 Vol. II. § 136-140. Ala. 755 ; Key v. Vattier, 1 Ohio, 132 ; * Bell v. Graham, 1 Nott & McC. 278, McMuUen v. Guest, 6 Tex. 275 ; Lathrop 280, 9 Am. D. 687 ; S. v. Jasper, 4 Dev. V. Amherst Bank, 9 Met. 489 ; HoUoway 323. v. Lowe, 7 Port. 488. 6 c. „. Hoxey, 16 Mass. 386. 2 Vol. II. § 136-140 ; Cockell v. Taylor, 6 Campbell k. C. 59 Pa. 266. 15 Eng. L. & Eq. 101 ; Hoyt v. Thompson, ' Rex v. Hube, Peake, 132, 5 T. R. 542. 1 Seld. 320 ; Van Dyck v. Van Beuren, 1 And see Rex v. Richardson, 6 Car. & P. Johns. 345, 363 ; Whitesides 'v. Martin, 7 335; Rex v. Warren, Cowp. 371. Yerg. 384 ; Williams v. Hogan, Meig.s, 8 Ante, § 496. 187 ; Wellman v. Hickson, 1 Ind. 581 ; ^ g „ Jasper, 4 Dev. 323. Michael v. Nutting, 1 Ind. 481; Truax i" Rex u. Wroughton, 3 Bur. 1683. V. Thorn, 2 Barb. 156 ; Tuttle v. Hills, 6 " As to religious meetings, see 1 Rus.s. Wend:213, 224, 21 Am. D. 306; Ander- Crimes, 3d Eng. ed. 299. As to the rights son V. Anderson, 4 Wend. 474. Whether of an audience at a theatre. Rex v. Forbes, Stat, 32 Hen. 8, c. 9, is common law in 1 Crawf. & Dix G. C. 157 ; Vol. II. § 808, this country, see Briuley v. Whiting, 5 note. And see the subject of this section Pick. 348, 353 ; Hall ,-. Ashby, 9 Ohio, further explained. Vol. II, § 301-310 a. 334 CHAP. XL,J PROTECTION TO INDIVIDUALS. § 546 CHAPTER XL. PROTECTION TO INDIVIDUALS. § 543. Introduction. 544-546r Preliminaries. 547-564. Offences against Personal Preservation and Comfort. 565-590. Against Acquiring and Retaining'Propeity. 591. Against Personal Eeputation. 592, 593. Combinations to commit Private Injuries. § 543. How Chapter aivided. — '■ We shall consider, I. Some Preliminaries ; II. Offences against the Right of Personal Pre- servation and Comfort ; III. Offences against the Right of Ac- quiring and Retaining Property ; IV. Offences against Personal Reputation ; V. Combinations to commit Private Injuries. I. Some Preliminaries. § 544. Already — we have seen something of the principles whereon, and to what extent, the criminal law casts its protec- tion over the individual.^ This Chapter — is to conduct the same topic into minuter de- tail, in connection with a general survey of the part of the criminal field to which it relates. The principles are chiefly two. Thus, — § 546. ' Fair Ground. — The more prominent of these two is that while a person occupies what the law deems fair ground in his relations with another, assuming no unequal position toward him in any controversy or fraud, he is not indictable for what he does, however deep the wrong he inflicts. And, on the other hand, he is indictable if he assumes unfair ground, and from it deals an injury to the individual. The other proposition is that, descending to a minuter survey of the subject, — § 546. Two Kinds of Force — (Mental — Physical). — There are two kinds of force known among men, — mental and physical. The physical force has its just uses, but it should never be 1 Ante, § 231-233, 250-253. 335 § 548 THE ACT ESSENTIAL IN CRIME. [BOOK V. , wielded aggressively by one private individual against the per- son of another. If one, therefore, does wield it thus to an- other's detriment, he disturbs the order- of the community, and violating its repose, assumes toward his victim an unfair ground; But it is otherwise with mental force. Though through it one private person wrongs another, the public, which is the pa,rty aggrieved by a crime, may on the whole be rather benefited than harmed, because of its strengthening effect, already ex- plained.^ Still, in the exercise even of this force there is an unfair, ground ; and one who with it injures another from such ground is indictable. To express the whole idea in a different form, the employment of physical force against another's person to his detriment is of itself an assumption of unfair ground to- ward him ; but the, use of mental force is not such of itself, yet it may become such from the manner of its use, or from the special circumstances of the- particular instance. Carrying these distinctions in our minds, — II. Offences against the Right of Personal Preservation and Comfort. § 547. 1. Homicide. ^ The heaviest offence against the indi- vidual is the unjustifiable taking away of his life, called feloni- ous homicide. The common law divides it into murder and manslaughter; that is, what in this country is termed the common law does, though the division proceeded from an early ■ English statute. 2 And there are in many of the States other divisions also, introduced by statutes. ^ "We have seen* that it is likewise a crime against the public. 2. Mayhem. — Another like offence, yet not so heavy, is may- hem. ^ It is an injury to a man's b(3dy rendering him less able, in fighting, to defend himself or annoy his adversary. « § 548. 1. Assault and Battery. — Two offences against the person and personal security, in the facts of most cases existing together, and practically regarded as one, are assault ^ and bat- tery. » A battery is any unlawful beating, or other wrongful 1 Ante, § 250, 251. 6 Ante, § 257, 259, 513. ^ Vol, TI, 623-628 ; Crim. Pro. II. § 498 6 Vol. II. § 1001. e' seq. 7 Vol. II § 22 et seq. ' Ante, § 409 ; Vol. II. § 723-731. 8 Vol. II. § 70 et seq. « Ante, § 510. 336 CHAP. XL.] PROTECTION TO INDIVIDUALS. § 549 physical violence or constraint,^ inflicted on a human being •without his consent ;2 an assault is less than a battery, where the violence is cut short before actually falling ; being committed whenever a reasonable apprehension of immediate physical in- jury, from a force already partly or fully put in motion, is created. 3 An assault is included in every battery.* 2. Light or Heavy — Aggravation*. — An assault or even a bat- tery may be one of the, lightest of all the offences ; as, where a man simply touches the garment of another insolently or in anger. 5 It is an element in a large part of the physical crimes, from the highest downward, r— in .most felonious homicides, ^ probably in all mayhems,'^ in. rape, ^ though the word," assault " has been deemed unnecessary in the indictment, ^ in kidnap- ping and false imprisojiment nearly or quite universally,!" in most robberies,!! and perhaps in some other of the larger indict- able wrongs.!^ It is likewise a common, but not the universal, element in criminal attempts. ^ In another view, all these are aggravated assaults. Besides which, the common-law and statu- tory aggravations are very numerous ; l* as, assault in a particular place, with a special kind of weapon, on an official person, and thus onward through varying and limitless specifications. But this is not the place for detail. Essentially as assault and battery, — § 549. Noise to injure Sick Person. — If one, knowing that an- 1 Long w. Rogers, 17 Ala. 540 ; Reg. v. Button, 8 Car. & P. 660 ; Forde v. Skin- Cotesworth,6Mod. 172; Edsall u. Russell, ner, 4 Car. & P. 239; Rex v. Nichol, 6 Jur. 996 ; Pike v. Hanson, 9 N. H. 491. Russ. & Ry. 130 ; Evans v. S. 1 Humph. 2 Ante, § 258-260; Vol. II. § 70. 394; S. v. Freels, 3 Humph. 228; Rex v. 8 Vol. II. § 23 ; Stephens v. Myers, 4 Ridley, 1 Russ. Crimes, 3d Eng. ed. 752, Car. & P. 349 ; S.'v. Davis, 1 Ire. 125, 35 2 Camp. 650, 653 ; Reg. v. Miles, 6 Jur. Ani. D. 735 ; S. v. Crow, 1 Ire. 375 ; S. v. 243 ; Rex v. Rosinski, 1 Moody, 19 ; Keay's Morgan, 3 Ire. 186, 38 Am. D. 714; S.v. Case, 1 Swinton, 543. Cherry, 11 Ire. 475 ; C. v. Eyre, 1 S. & R. ^ Vol. II. § 72 ; Bishop Non-Con. Law, 347; S. V. Sims, 3 Stroh. 137; U. S.'v. § 190-192. Hand, 2 "Wash. C. C. 435 ; S. v. Black- « Vol. IL § 56 ; Crim: Pro. II. § 512. well, 9 Ala. 79 ; Reg. v. St. George, 9 ' Crim. Pro. IL § 859. Car. & P. 483; P. v. Lilley, 43 Mich. 8 Ante, § 261 _(2) ; Vol. IL § 56, 1136. 521 ; Blake v. Barnard, 9 Car. & P. 626 ; » Crim. Pro. ll. § 955. S, V. Smith, 2 Humph. 457. i" Vol. IL § 56 ; Crim. Pro. IL § 365, * Vol. IL § 71 ; 1 Hawk. P. C. 6th ed. 366, 691, 692. c. 62, § 1. And see, on this, and as addi- " Post, § 553 (3) ; Vol. II. § 1166, 1169, tional to the above notes. Keg. v. Case, 1 1170, 1172, 1174. Den. C. C. 580, 1 Eng. L. & Eq. 544, ^ Vol. II. § 56. Temp. & M. 318, 4 Cox C. C. 220; ^ Post, § 723-772 o. Anonymous, 1 East P. C. 305; Keg. v. " Vol. II. § 42^54, 57-62. VOL. I.— 22 337 § 552 THE ACT ESSENTIAL IN CRIME. [BOOK V. other is sick, and that the discharge of a gun near him will make him worse, discharges it, producing the effect, he is in- dictable at the common law. ^ § 550. Reasons for Foregoing — (Breaches of Peace — Unfair Ground). -^ These assaults and their af&nities are generally spoken of in the books as breaches of the peace ; ^ in which view they would be, as they are, indictable. But they are more. For the common law deems that one assumes toward another unfair ground, and gives occasion for public interposition, when undertaking to injure him by any kind of physical force. ^ There are, indeed, passages in the books in effect denying this, by maintaining that in these cases the liability to indictment rests solely on the disturbance to the public repose. But that such is not the doctrine of the law is plain ; because, on a ques- tion of the indictability of an act of this sort, it never inquires whether or not it was committed under circumstances to create a public tumult. If the accused person inflicted unjustifiable blows, however privately, even on an infant * a day old, with no power to create a tumult or to return them, and no knowledge of the wrong, it holds him to be guilty of the offetice.^ § 551. Inaccurate Reasons — Old Dicta. — Nothing SO embar- rasses the progress of true legal learning as the tenacity with which judges and text-writers adhere to such ancient forms of expression as, falling inadvertently from the lips of some old judge, or erroneously reported to have done so, have come to us conveying no correct legal meaning. The language in which a judicial opinion is clothed constitutes no-part of the law of the case ; and though mere words transmitted to us from the bench are, if words of wisdom, properly regarded with . respect, yet when they are inconsiderate and inaccurate, they should not be permitted to disfigure the pages of books in after-times. Fur- ther of — § 552. m-oonsidered Language. — These observations are appli- cable, not only to the foregoing offences, but also to most of the others mentioned in this chapter. And it is not easy to see how lawyers, from generation to generation, could be so deluded by 1 C. V. Wing, 9 Pick. 1, 19 Am. D. ' Ante, § 252, 545, 546. 347. 4 C. V. Stoddard, 9 Allen, 280. 2 Ante, § 536. 6 gee ante, § 232, 253, 274. 838 CHAP. XL.] PROTECTION TO INDIVIDUALS. § 553 a form of inaccurate and careless words as to hold these various offences to he indictable solely as wrongs to the community. § 553. 1. other Physical Wrongs. — There are other physical wrongs, indictable on the same ground with those already men- tioned. To some of them the law has given specific names ; as — 2. Kidnapping — False Imprisonment. — Kidnapping ^ and false imprisonment, 2 two offences against the individual, of which ordinarily the latter is included in the former,^ are punishable by the common law. False imprisonment is any unlawful re- straint of one's liberty, whether in a place set apart for impris- onment generally or used only on the particular occasion, and whether between walls or not, effected either by physical forces actually applied, or by words and an array of such forces.* Kidnapping, is a false imprisonment aggravated by conveying the imprisoned person to some other place. ^ There appear to be some minor differences of opinion as to the nicer parts of these definings. 3. Robbery, — another common-law offence, is a violent lar- ceny from the person (or from the immediate presence, which is termed in law the person^) of one usually,^ not always,^ assaulted. Or, in more apt legal phrase, it is larceny committed by violence from the person of one put in fear.^ 4. Piracy — is robbery or any other like forcible depredation on the high seas, committed for gain or other private ends, in a spirit of hostility to mankind, i" 1 4 Bl. Com. 219 ; 1 East P. C. 429 ; 508 ; Rex v. Simons, 2 East P. C. 731 ; 2 S. u. Rollins, 8 N. H. 550 ; Rex o. Baily, East P. C. 707 ; Rex v. Moore, 1 Leach, Comb. 10. 335 ; Rex v. Knewland, 2 Leach, 721. 2 4 Bl. Com. 218 ; Eloyd v. S. 7 Eng. 8 Rex v. Donnally, 1 Leach, 193 ; 2 43, 54 Am. D. 250. And see Breck v. East P. C. 713, 783; Rex v. Elmstead, 1 Bl'anchard, 2 Post. N. H. 303 ; Pike .;. Russ. Crimes, 3d Eng. ed. 894 ; Rex v. Hanson 9 N. H. 491 ; Vol. II. § 746 et Jones, 2 East P. C. 714, 715, 1 Leach, 139 ; sen. Rex V. Harrold, 2 East P. C. 715 ; Rex v. 3 Click V. S. 3 Tex. 282 ; Vol. II. § 750. Hickman, 1 Leach, 278, 2 East P. C. 728 ; 4 Vol. II. § 748. Eex v. Astley, 2, East P. C. 729 ; Rex v. 5 Vol. II. § 750. Brown, 2 East P. C. 731 ; Rex v. Reane, 2 8 Rex V. Peat, 1 Leach, 228; Rex v. East P. C. 734, 2 Leach, 616; Rexu. Gard- Lapier,l Leach, 320, 321; Vol. II. § 1177, ner, 1 Car. &P. 479; Britt w. S. 7 Humph, nfg 45; Rex v. Egerton, Euss. & Ry. 375; ^ Kit J). S. 11 Humph. 167 ; C. ». Snell- Rex v. Puller, Russ. & Ey. 408 ; Re^. v. ing, 4 Binn. 379 ; Rex v. Mason, Russ. & Stringer, 2 Moody, 261 ; P. v. McDaniels, Ry. 419; Rex v. Edwards, 5 Car. & P. 1 Par. Cr. 198. 518 ; s, c. nom. Rex v. Edward, 1 Moody ^ Vol. II. § 1156. & R. 257 ; U. S. V. Jones, 3 Wash. C. C. '» Vol. II. § 1058 ; U. S. v. Palmer, 3 209 216 • Rex V. Fallows, 5 Car. & P. Wheat. 610; U. S. v. Terrel, Hemp. 411. 339 § 557 THE ACT ESSENTIAL IN CRIME. [BOOK V. § 554. Rape. — There is no form of violence more odious either in law or in morals than rape. It is the having of unlaw- ful carnal knowledge, by a man of a woman, forcibly and against her will, 1 or when she does not consent ;2 and it is committed only by a male person (that is, as principal in the first degree), ar- rived at his age of legal puberty, which by most opinions is con- clusively fourteen years. ^ Puberty in the female is not essential. * § 555. Forcible Marriage (or Abduction). — Every unlawful physical constraint being indictable, it is particularly so to carry oif forcibly a woman with the intent to marry her against her will. 5 For this intent greatly aggravates the force. An old English statute, 3 Hen. 7, c. 2, made it, if for lucre, the woman being an heiress, felony ;« but whether this statute is common law with us is not settled by adjudication.'' § 556. 1. Further of Physical Force. — Let US proceed to further illustrations, — the doctrine beiiig, it is remembered,^ that one is indictable for every wrongful act of physical force whereby he injures another. 2. Acting through Agent — Physical Elements. — It is not neces- sary the force should be immediate and direct ; we have already seen that a crime may be committed through the instrumentality of a third person, innocent or guilty;^ so may it be equally through the agency of the physical elements. Thus, — § 557. An Abandonment or Neglect — may SO call into action the physical forces as to cast the responsibility for what they do on the person thus outwardly doing nothing. For example, if one leaves or exposes to cold or wet a child incapable of taking care of itself, whereby it receives an injury, he is indictable for misdemeanor ; 1" or if the child dies, for a felonious homi- 1 Vol. II. § U13 ; 4 Bl. Com. 210 ; 1 "4 Bl. Com. 208 ; 1 Hawk. P. C. 6th Hale P. C. 628 ; 1 East P. C. 434 ; 1 Rnss. ed, c. 42 ; 1 East P. C. 452 ; Reg. v. Swan- Crimes, 3d Eng. ed. 675 ; S. v. Jim, 1 Dev. son, 7 Mod. 101, 102 ; Reg. v. Whistler, 7 142; Reg. 0. Camplin, 1 Car. & K. 746, 1 Mod. 129, 132. Den. C. C. 89, 1 Cox C. C, 220; Reg. v. ' Stat. Crimes, § 618. We have stat- Hallet, 9 Car. & P. 748 ; Rex v. Jackson, utes of our own against this and analo- Russ. & Ry. 487 ; S. v. Shepard, 7 Conn, gous offences, as see Stat. Crimes, § 614- 54. 652. 2 Vol. II. § 1114, 1115. 8 Ante, § 546, 548. 3 Ante, § 373; Vol. II. § 1117. » Ante, § 310; post, § 564, 631, 673, ^ Vol. II. § 1118 ; McGuff V. S. 88 Ala. 677. 147, 16 Am. St. 25. 10 Reg v. Renshaw, 11 Jur. 615, 2 Cox ' Attempt. — So the attempt ia in- C. C. 285, 20 Eng. L. & Eq. 593 ; Reg. 0. dictable at common law. Rex v. Pigot, Mulroy, 3 Crawf. & Dix C. C. 318 ; Reg. Holt, 758 ; Stat. Crimes, § 619. v. Cooper, 1 Den. C. C. 459, Temp. & M. 340 CHAP. XL.] PROTECTION TO INDIVIDUALS. §659 cide.i And the same consequence follows if he neglects, ^ being under legal obligation, to furnish it with suitable food and cloth- ing ;3 or thus neglects a servant, apprentice, or other person, where there is a legal duty.* § 558. 1. Malpractice by Physician. — We have seen that if a medical man takes the life of a patient by gross malpractice, he is answerable for a felonious homicide ; ^ so, if the injury falls short of the deprivation of life, he may be punished for it as misdemeanor.^ And — 2. Unwholesome Food. — Partly on this ground rests the al- ready-mentioned ^ offence of providing unwholesome food to be consumed in the community. ^ § 569. Burglary — Arson. — Dwelling-places are built to pro- tect people from the physical elements and from the violence of beasts and men. Therefore offences against the habitation are indirectly such also against the person. Of these, the qommon law has two, burglary and arson. The former ^ is the breaking i" and entering," in the night, ^^ of another's dwelling-house, ^^ with intent to commit a felony therein, i* The latter ^^ is the malicious ^^ burning ^^ of another's house. ^^ Now, — 125, 13 Jur. 502 } Keg. v. Hogan, 5 Eng. L. & Eq. 553, 2 Den. C. C. 277, 15 Jur. 805 ; Gibson's Case, 2 Broun, 366 ; Reg. V. Phillpot, 20 Eng. L. & Eq. 591. 1 Reg. V. Waters, 1 Den. C. C. 356, Temp. & M. 57, 13 Jur. 130. 2 Ante, § 241, 316, 317, 433; Vol. IL § 643, 659-662 a, 696. 8 Rex V. Friend, Russ. & Ry. 20 ; Rex V. Smith, 2 Car. & P. 449. * Rex V. Ridley, 2 Camp. 650 ; Rex v. Squire, 1 Russ. Crimes, 3d Eng. ed. 19 ; Reg. «. Pelham, 8 Q. B. 959, 10 Jur. 659, 15 Law J. N. s. M. C. 105 ; Rex v. War- ren, Russ. & Ry. 47, note ; Rex v. Mere- dith, Russ. & Ry. 46 ; Rex v. Booth, Russ. & Ry. 47, note ; Reg. w. Gould, 1 Salk. 381 ; Rex v. Gierke, 2 Show. 193 ; Rex i: Barney, Comb. 405 ; Rex v. Friend, Russ. & Ry. 20. 5 Ante, § 217, 314 (3). 6 Greonvelt's Case, 1 Ld. Raym. 213 ; Parke, J. in Rex v. Long, 4 Car. & P. 398, 405. 7 Ante, §484 (4), 491 (1). 8 Treeve's Case, 2 East P. C. 821. Vol. IL § 90. w Stat. Crimes, § 290, 312. 1' Rex V. Rust, 1 Moody, 183 ; Rex v. Roherts, Car. Grim. Law, 3d ed. 293 ; Rex V. Bailey, Russ. & Ry. 341 ; Rex v. Bailey, 1 Moody, 23 ; S. u. McCaU, 4 Ala. 643, 39 Am. D. 314 ; Rex v. Hughes, 1 Leach, 406, 2 East P. G. 491 ; Rex i;. Davis, Russ. & Ry. 499. 12 Stat. Crimes, § 276 ; S. u. Morris, 47 Conn. 179. 13 Stat. Crimes, § 277-287. 1* 1 Russ. Crimes, 3d Eng. ed. 785 ; ante, § 427 ; C. v. Newell, 7 Mass. 245 ; S. V. Wilson, Goxe, 439, 1 Am. D. 216 ; S. r. Bancroft, 10 N. H. 105 ; Lewis v. S. 16 Conn. 32 ; Rex v. Knight, 2 East P. C. 510; Reg. V. Segar, Comb. 401; Rex v. Dobbs, 2 East P. G. 513 ; Rex v. Dingley, cited 1 Show. 53 ; S. v. Cooper, 16 Vt. 551. 15 Vol. II. § 8. l« Ante, § 427-429. 1' Stat. Grimes, § 310. 18 Stat. Grimes, § 277, 289 ; ante, § 329 (2), 334 (3) ; 2 Russ. Crimes, 3d Eng. ed. 548; 4 Bl. Com. 220; 2 East P. G. 1015; Bloss V. Tobey, 2 Pick. 320, 325 ; Curran's Case, 7 Grat. 619 ; Sullivan v. S. 5 Stew. & 341 § 661 THE ACT ESSENTIAL IN CRIME. [BOOK T, § 560. 1. Physical Force. — All the offences thus far brought to view in this sub-title consist of the unlawful use of physical force to the personal harm of an individual. And the result appears pretty plainly to be that under one name or another, or unnamed, every unlawful putting in motion of any physical force, of whatever sort, to the injury even of a mere private per- son, is indictable at the common law.^ On the other hand, — 2. Mental Force, — when directed against the personal safety and comfort, is not, like physical, universally indictable. We have seen that under the unwritten law it is not so even where one employs it by going frequently to a neighbor's house and so abusing his family as to render their lives uncomfortable. ^ And under a statute against the carrying of free negroes out of the State to make slaves of them, " if, " said Pearson, J. , a negro " yields to seduction or persuasion, or allows himself to be be- guiled by fraud, and of his own accord goes out of the State, it is his own folly. And although he has the protection of the State, and can bring an action for damages, he has no right to call for protection by the use of the strong arm of the criminal law, when he consents to the act, and does it of his own folly. "^ And still, — 3. In Matrimonial Law, — if a husband by the wrongful use of mental force brings physical injury to his wife, it is cruelty for which she may have a divorce, though the mere infliction of mental suffering will not entitle her thereto.* The reasoning on which this doctrine rests is not without its application in the criminal law. And — § 561. In Principle, — nothing can be clearer than that in the proper circumstances mental force, when employed to bring physical injury to an individual, may be criminally punishable. For since it is established, as we shall see in the next sub-title, that guile of certain ascertained sorts and magnitudes may con- stitute crime when used to the injury of a man in his property, P. 175; Ritchey v. S. 7 Blackf. 168; Mc- P. C. 1027, 1 Leach, 246, note; Eex v. Neal 0. Woods, 3 Blackf. 485 ; Rex v. Harris, 2 East P. C. 1023. Pedley, Cald. 218, 1 Leach, 242, 2 East i Ante, § 546. P.O. 1026; Rex v. Scofield, Cald. 397; 2 q. „. Edwards, 1 Ashra. 46; ante, Rex V. Spalding, 1 Leach, 218, 2 East § 538 (3). P. C. 1025; Rex v. Breeme, 1 Leach, 220, s S. v. Weaver, Busbee, 9, 12. 2 East P. C. 1026 ; Rex v. Gowen, 2 East « 1 Bishop Mar. Div. & S. § 1531, 1537, 342 1547, 1552, 1553, 1559, 1561-1567. CHAP. XL. J PEOTECTION TO INDIVIDUALS. § 562 plainly it may l)e so when the detriment is made to fall on his physical instead of his money-acquiring nature. Thus, — § 662. 1. Mental Force in Homicide. — It is believed that there may be an indictable homicide wrought by mental force. Yet on the other side, Lord Hale says: "If a man either by working upon the fears of another, or possibly by harsh or un- kind usage, put another into such passion of grief or fear that the party either die suddenly or contract some disease whereof he dies," though this is murder or manslaughter in the sight of God, it is not such at the common law, because of the diffi- culty of making proof, ^ — a reason which certainly is not good, whether this learned person's conclusion from it is good or ill.^ Still there are later elementary writers who follow Hale.^ In actual adjudication, it is believed that the question is not set- tled, at least not in accord with Hale's opinion. More recently, a learned judge said to the jury : " A man may throw himself into a river under such circumstances as render it not a volun- tary act, by reason of force applied either to the body or to the mind. It becomes then the guilty act of him who compelled the deceased to take the step. But the apprehension must be of immediate violence, and well grounded."* And — 2. Command from Superior. — There are other cases which recognize the doctrine that threats,^ or a command from one who stands in a relation entitling him to command, ^ requiring an 1 1 Hale P. C. 429. breaking into a person's house, and 2 1 Bishop Mar. Div. & S. § 1564. grievously alarming his wife, recently 8 1 East P. C. 225. And see Commis- delivered, to the great injury (the libel sioners Phillips & Walcott's Report on says) of her health, and so that her child the Penal Code of Massachusetts, A. d. died soon after at her breast. The inter- 1844, tit. Homicide, p. 12, note. They locutor sustains the personal injuri/ done to recommend that it be not an indictable the mother as a ground of arbitrary pain ; homicide " to occasion death by the operar but it takes no notice of the death of the tion of words or signs upon the imagina- child." The learned Scotch author cites tiou of persons." They say this rule this case, with another, to the point that accords with the French code. They also the death must sufficiently appear to have deem it to be the rule of both the common been caused by the injury alleged in the and the Scotch law ; but they add that the libel. So much it shows ; and also shows, British commissioners proposed the oppo- it seems to me, that the principle of the site for the code in India. As ,to the Scotch law is not in accord with the common law, they cite simply Hale and recommendation of the Massachusetts writers who cite him. As to the Scotch commissioners. law, they refer to 1 Hume Crim. Law, « Erskine, J. in Reg. o. Pitts, Car. & 267 2d ed. 177, — an authority which M. 284. hardly sustains them. For instance, it 6 Rex v. Evans, 1 Russ. Crimes, 3d is there said • " Among other charges Eng. ed. 489. against Patrick Kinninmouth is that of « U. S. v. Freeman, 4 Mason, 505. 343 § 564 THE ACT ESSENTIAL IN CRIME. [BOOK T. act dangerous in itself, and not necessary to be performed,- in consequence of which the person threatened or commanded does what causes his death, may lay the foundation for an indictment. So,— 3. Conduct compelling. — If a husband, mainly by threats, compels his wife to fly from his house for her safety, where- upon she dies from exposure to the elements, he is criminally chargeable for the homicide. ^ Now, — § 563. These Cases, — standing so near the line which sepa- rates mental and physical force, may not be deemed conclusive; yet some of them, if accepted as sound, appear in effect to settle the question. When one in a relation to another entitling him to command, compels the other by an unlawful order, whether accompanied or not by threats of violence, to do what causes his death, the force applied, is mental alone. It is not an external physical impulse that moves him, but oftenest' it is the mental effect of the command on his conscious duty of obedience. And where a threat accompanies the command, it is no more a physi- cal force than is the lecture of a moralist urging that physical suffering follows wicked acts; the force is purely mental, from mind to mind. § 564. 1. Distinguished from Act through Another. — This doc- trine, of the indictability of mental force, is not related to the familiar one that he whose will contributes to another's personal act is in law guilty of it as though done by himself. Appar- ently as an inference from the latter doctrine, — 2. Procuring Capital Conviction by Perjury — (Homicide). — The old common law held it to be murder intentionally to cause the death of a human being on trial for his life, by appearing as a witness against him and committing per jury. ^ So all the books say; but there is room for doubt whether this was ever truly the law. Perjury is an offence distinct from murder : the inflicting of a capital punishment by officers of the law, in conformity to a judicial record, can hardly be deemed the act of the false wit- ness ; and should we undertake to regard the government as the innocent agent of the witness, ^ there is a difficulty in making 1 Hendrickson v. C. 85 Ky. 281, 7 Am. 2 1 Russ. Crimes, 3d Eng. ed. 494. And S*' ^^^' see 1 Hawk. P. C. 6th ed. c. 31, § 7. « Ante, § 310. 344 CHAP^ XL.] PROTECTION TO INDIVIDUALS. §664 the act and intent appear concurrent in point of time,i because he has lost power jover this agent, and he cannot prevent the execution if he repents. Probably this old doctrine is not to be deemed law at the present day,^ 3. statutes — have somewhat added to the offences within this sub-title. And Ihey have much enlarged some of the common- law ones. For example, arson, which by the common law can be committed only of a house, has been made by statiites to in- clude the burning of shops and other structures not used for habitation. And burglary has been extended in like manner. These extensions are considered, in connection with the com- mon-law offences, in the second volume. The purely statutory ones are for " Statutory Crimes. " '■^ J Ante, § 207. 2 1 Russ. Crimes, 3d Eng. ed. 494, 495 ; Commissioners Phillips & Walcott's Re- port on the Penal Code of Massachusetts, A. D .1844, tit. Homicide, p. 11, note; Rex i). Macdaniel, 1 Leach, 44. See, as illustra- tive, Peckham v. Tomlinson, 6 Barb. 2.53. 8 Some of these statutory offences have almost faded away. Others but seldom come under professional notice. Thus, — The Slave Trade. — There are stat- utes, English and American, intended to suppress the carrying of slaves from Africa, and the trading in them. See R. S. of U. S. § 629, 1046, 5375, 5382, 5551-5569. But questions do not often arise under these statutes. For some- thing of them, with helpful references, see Dir. & F. § 959-961. And for cases. The Josefa Segunda, 5 Wheat. 338 ; The Emily, 9 Wheat. 381 ; The St. Jago de Cuba, 9 Wheat. 409 ; The Antelope, 10 ' Wheat. 66; U. S. v. Gooding, 12 Wheat. 460 ; U. S. V. Preston, 3 Pet. 57 ; U. S. v. The Garonne, 11 Pet. 73; U. S. v. The Amistad, 15 Pet. 518 ; U. S. v. Schooner Kitty, Bee, 252 ; U. S. v. Smith, 4 Day, 121; Fales V. Mayberry, 2 Gallis. 560; U. S. V. La Coste, 2 Mason, 129; La Jeune Eugdnie, 2 Mason, 409 ; The Brig Alexander, 3 Mason, 175; U. S. v. Bat- tiste, 2 Sumner, 240; U. S. v. Libby, 1 Woodb. & M. 221 ; The Brig Caroline, 1 Brock. 384; U. S. v. Kennedy, 4 Wash. C. C. 91 ; Brig Tryphenia v. Harrison, 1 Wash. C. C. 522 ; The Porpoise, 2 Curt. C. C. 307 ; U. S. V. Darnaud, 3 Wal. Jr. 143 ; Strohm v. V. S. Taney, 413 ; The Slavers, 2 Wal. 350, 375, 383 ; U. S. v. Smith, 3 Blatch. 255 ; U. S. v. The Isla de Cuba, 2 Clif. 295, 458, 2 Sprague, 26 ; IT. S. V. Catharine, 2 Paine, 721 ; TJ. S. V. Smith, 2 Mason, 143; U. S. v. Kelly, 2 Sprague, 77; S. v. Caroline, 20 Ala. 19 ; Neal v. Farmer, 9 Ga. 555 ; C. v. Greathouse, 7 J. J. Mar. 590; C. «. Griffin, 7 J. J. Mar. 588 ; C. o. Nix, 11 Leigh, 636 ; S. V. Turner, 5 Harring. Del. 501 ; C. o. Jackson, 2 B. Monr. 402 ; C. v. Griffin, 3 B. Monr. 208. For the English law, see 1 Russ. Crimes, 3d Eng. ed. 1 63 ; Reg. u. Zulueta, 1 Car. &K. 215; Reg. v. Serva, 1 Den. C. C. 104, 2 Car. & K. 53. Kevolt. — Making and endeavoring to make a revolt or mutiny on shipboard aie also statutory offences against the United States. R. S. of U. S. § 5359, 5360. For something concerning which, Dir. & F. § 580. The principal cases are U. S. v. Kelly, 11 Wheat. 417^ U. S. v. Savage, 5 Mason, 460 ; U. S. v. Smith, 3 Wash. C. C. 525 ; U. S. V. Smith, 3 Wash. C. C. 78 ; U. S. <;. Smith, 1 Mason, 147; U. S. ^. Keefe, 3 Msison, 475 ; U. S. a. Hamilton, 1 Mason, 443 ; U. S. v. Barker, 5 Mason, 404; U. S. w. Gardner, 5 Mason, 402 , U.S. V. Haines, 5 Mason, 272 , U. S. v. Morrison, 1 Sumner, 448 ; U. S. v. Matthews, 2 Sum- ner, 470 ; U. S. u. Ashton, 2 Sumner, 13 ; U. S. V. Cassedy, 2 Sumner, 582 ; U. S. o. Forbes, Crabbe, 558 ; U. S. «. Borden, .1 Sprague, 374 ; U. S. v. Nye, 2 Curt. C. C. 225 ; Ely v. Peck, 7 Conn. 239 ; Galloway V. Morris, 3 Yeates, 445. 345 § 566 THE ACT ESSENTIAL IN CRIME. [BOOK T. III. Offences against the Bight of Acquiring and Retaining Property. § 665. In this Sub-title, — we shall begin by bringing to view the several common-law offences within it, and the definition or a general description of each; then inquire after the rules of law which govern them collectively, — taking occasional glimpses of statutory modifications. §566. The Several Offences : — 1. Larceny — is One of the most common wrongs to individ- uals, and the books contain many definitions of it, both ancient and modern. 1 The differences in them are chiefly formal, but one or two relate to substance. As defined by the present author, it is the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the felonious intent to deprive him of his ownership therein ; and, perhaps it should be added, for the sake of some advantage to the trespasser, — a question on which the decisions are not harmonious.^ 2. Combining with Other Wrongs. — Like assault and battery, ^ larceny and attempts to commit it constitute parts of various other indictable wrongs. For example, the substantive crime or the attempt is one of the common elements of burglary,^ and the substantive larceny is indispensable in robbery'' and piracy.^ Again, — 3. Receiving. — There can be no offence of receiving stolen goods ' until there has first been a larceny of them. And — 4. Compound Larcenies. — The common and statutory laws take notice of various differing circumstances under which, if a larceny is committed, it is deemed to be aggravated, whereupon it is or may be termed a compound larceny.^ Thus, — 5. From Person — from Shop — from Dwelling-house. — Such are larcenies from the person,^ from the dwelling-house, from the 1 For the leading ones, see Vol. II. § 758 ' Post, § 567 ; Vol. II. § 1137-1 142 a. and note. 8 Vol. II. § 892 et seq. ^ For the authorities to sustain this " 2 East P. C. 700, 703-706; C. v. definition, see Vol. II. § 758, note. Dimond, 3 Cush. 235 ; Rex ». Thompson, 8 Ante, § 548 (2). 1 Moody, 78 ; Reg. v. Walls, 2 Car. & K. 1 Vol. II. § 90, 110, 114, 116, 117. 214 ; Kerry v. S. 17 Tex. Ap, 178, 50 Am. ° Vol 11, § 1156, 1158-1165. R. 122 ; Bennett v. S. 16 Tex. Ap. 236 ; 6 Vol. 11. § 1058 ; U. S. 0. Klintock, 5 Fanning v. S. 66 Ga. 167 ; Moye v. S. 65 Wheat. 144. Ga. 754. 346 CHAP. XL.J PROTECTION TO INDIVIDUALS. § 567 shop,i and various others. In some of the States, statutes have greatly multiplied this class of aggravations. § 667. 1. Receiving Stolen Goods, — by one knowing them to have been stolen, was a mere indictable misprision ^ under the ancient common law. But before this country was settled, the receiver was by statute made an accessory after the fact.^ In our States generally, the receiving is now by statute a substantive offence. 2. Embezzlement — is a statutory larceny, created by an appar- ently bungling attempt to eliminate one of the elements from the common-law offence. We have seen that to constitute such offence the misappropriation of the thing must be, among the other elements, by "trespass."^ So that whenever one con- verted to himself another's goods without committing a tres- pass, as in various circumstances he could do, he escaped punishment. The natural and easy way to amend the law would have been to provide that the element of trespass should no longer be essential. in larceny. But in actual life, the common instance, which therefore presented itself to the legislative thought, was that of a clerk or other servant to whom money or an article of merchandise was delivered for the master, and who thereupon took it to himself ; whereby, without any trespass, he did what was equivalent to stealing it. Thereupon the Parlia- ment of our mother country declared such a transaction to be larceny, and defined the punishment therefor. ^ And our States followed more or less exactly the English lead. Palpably this enactment was defective, and the various legislatures have been occupying themselves ever since in putting patches upon it, in- stead of doing the effective thing which we thus see to have been the true course from the beginning. The new offence could not be conveniently, and in fact it was not long, if ever, called lar- ceny. Therefore its name is established as embezzlement.^ 1 See Stat. Crimes, § 233 ; Reg. v. Ash- 1 Moody, 447 ; P. v. Dalton, 15 Wend. 581 ; ley, 1 Car. & K. 198; S. v. Chambers, 6 Reg. v. Chapman, 1 Car.&K.119; Rexw. Ala. 855. Taylor, 3 B. & P. 596 ; Reg. v. Jackson, 1 2 Post, § 604 (9), 624 (2), 717. Car. & K. 384 ; Rex v. Hall, Russ. & Ry. 8 postj § 699. 463, 3 Stark. 67 ; C. v. Simpson, 9 Met. * Ante, § 566 (1) ; Vol. 11. § 799. 138; Reg. v. Creed, 1 Car. & K. 63; C. v. 6 Vol. II. § 321 ; 39 Geo. 3, c. 85. Libbey, 11 Met. 64, 45 Am. D. 185 ; Rex 6 For more on this subject, see Vol. II. v. Murray, 5 Car. & P. 145, 1 Moody, 276 ; § 319-330, 799, 800. And see, as illustrat- Reg. v. Norman, Car. & M. 501 ; Rex v. ing the nature of this offence, Rexa. Grove, Headge, 2 Leach, 1033, Russ. & Ry. 160; 347 R 569 THE ACT ESSENTIAL IN CRIME. [BOOK V. § 568. Malicious Mischief — is a common-law offence of kin to larceny, but not so heavily punishable. It has been so much legislated upon, and some of the statutes are of dates so early, that its common-law limits are indistinct. Blackstone says: It " is such as is done, not animo furandi, or with an intent of gaining by another's loss, which is some though a weak excuse ; but either out of a spirit of wanton cruelty, or black and diaboli- cal revenge. In which it bears a near relation to the crime of arson; for as that affects the habitation, so this does the other property of individuals. And therefore any damage arising from this mischievous disposition, though only a trespass at common law, is now by a multitude of statutes made penal in the highest degree. " And he goes on to enumerate several stat- utes which have elevated it ta felony J As to the meaning of which, — § 569. 1. The ■Word "Trespass." — At the present day, a writer as accurate as Blackstone would in a passage like the above employ the word "misdemeanor" instead of "trespass." But when we consider the slight change which our law-language has undergone, as explained, further on,^ this passage becomes plain. Yet,— 2. Under our Common Law. — Some of our American judges, not rightly understanding the above passage because not having in mind the change in the language, and relying thereon for their authority, have denied that this offence exists under the unwritten law of this country;^ but the prevailing and better opinion is that it does.* S. V. Snell, 9 R. I. 112; Huntsman v. S. 1 Tenn. 305. And see C. «. Taylor, 5 12 Tex. Ap. 619 ; S. u. Kusnick, 45 Ohio Binn. 277. Shell v. S. 6 Humph. 283, can Sf. 535 • S. V. Butler, 21 S. C. 353 ; Keg. hardly be understood as opposing our doc- V. Tatlock, 2 Q. B. D. 157. trine, but rather as indicating one of its 1 4 Bl. Cora. 243, 244. limits. How in Scotland. — A standard " See post, § 625. Scotch law writer says : " It may be af- ' S. u. Wheeler, 3 Vt. 344,- 23 Am. D. firmed generally, with respect to every act 212. And see lilies u. Knight, 3 Tex. 312 ; of great and wilful damage done to the Black V. S. 2 Md. 376. property of another^ and whether done * P. V. Smith, 5 Cow. 258 ; Loomis o. from malice or misapprehension of right, Edgerton, 19 Wend. 419; S. v. Watts, 48 that it is cognizable with us as a crime Ark. 56, 3 Am. St. 216 ; P. v. Moody, 5 at common law if it is done, as ordinarily Par, Cr. 568; C. « Leach, 1 Mass. 59; S. happens, with circumstances of tumult V Simpson, 2 Hawks, 460 ; S. i>. Landreth, and disorder, and of contempt and indig- 2 Car. Law Repos. 446 ; S. v, Robinson, 3 uity to the owner. For instance, to enter Dev. & Bat. 130,32 Am. D. 661 ; Respub- a neighbor's lands with a convocation of lica V. Teischer, I Dall. 335 ; S. c;. Council, servants and dependants, and cast down 348 CHAP. XL.J PROTECTION TO INDIVIDUALS. § 570 3. Limits of Offence — (Real — Personal). — One question is whether this offence at the common law extends to real prop- erty, or 'is limited to personal. It was in a North Carolina case defined to be " the wilful destruction of some article of personal property from actual ill-will or resentment towards its owner. " i And we have other authority for thus limiting it to personal effects. 2 By other courts it is held to protect equally real estate.^ The statutes on this subject have generally, perhaps universally, extended it to real estate the same as to personal. Further as to which, — § 570. Legal Reasoning, — which constitutes the law, and if properly conducted is adequate to settle nearly every question of dispute, seems powerless as to this one. It must, if possible, be determined by authority.* For if we search for the reasons, it may, on the one hand, be said that malicious mischief is of like nature with larceny; and as the latter can be committed only of personal property, so therefore can the former. Yet, on the other hand, we have an opposite view just as alluring to the understanding. It is that all wrongful and wanton injuries by one to the property of another, whether real or personal, if of the standard degree of turpitude,^ are, with perhaps exceptions, assumptions of unfair ground toward him,^ and as such indict- able. Thereupon the further view is that the injury called larceny was by the common law separated from the mass and elevated to felony, — leaving the other injuries, whether to real or personal property, indictable as misdemeanor.' To repeat, then, this question cannot be settled by leg&,l argumentation. the houses, or root out or spoil the woods, roughs, 2 Halst. 426 ; C. v. Powell, 8 or throw open and deface the enclosures ; Leigh, 719. See, as to destroying an to break down, in the like fashion, the account stated, lieg. v. Crisp, 6 Mod. 175 sluices and aqueducts of a mill ; to break and notes. or burn the boats and nets at a fishery; « Loomis w. Edgerton, 19 Wend. 419 ; to tear and destroy the peats, turf, and Comfort v. Fulton, 39 Barb. 56. And see fuel in a heath or moss, — all these are Rex i'. Westbeer, 2 Stra. 1133, 1 Leach, competent articles of dittay. The same is 12 ; Eex v. Joyner, J. Kel. 29. For a true even' of the bare usurpation of posses- fuller view of this question, see Vol. II. sion, though without any great damage § 984, 985. done to the property, if it is accomplished * Vol. II. § 984, 985. with the show of a masterful force, so as ^ Ante, § 212 et seq. to have a mixture of no* as well as moles- ^ Post, § 574, 575. tatiou or intrusion." 1 Hume Crim. Law, ' Statutory MaUoious Mischiefs. — 2ded 119 As ^° statutory malicious mischiefs, see 1 S. V. i?obinson, 3 Dev. & Bat. 130. Vol. II. § 983, 986-991, 994, 995, 997, 2 S. V. Helmes, 5 Ire. 364 ; Brown's 1000 ; and particularly Stat. Crimes, Case, 3 Greenl. 177. And see S. v. Bur- § 156, note, 246, 314, 431-449. There i" 349 §571 THE ACT ESSENTIAL IN CRIME. [book V. § 571. 1. The Common-law Cheat — is important to be under- stood, though practically it is nearly superseded by the statutes against false pretences. It Ms a fraud wrought by some false sym- bol or token, 2 of a nature against which common prudence cannot one form of malicious mischief wliich, not coming often to professional notice, and making slight call on an author for elucidation, is not explained in the above places, but is mentioned in Dir. & F. § 721 ; namely, — Destroying vessels : — Under United States Laws. — The Revised Statutes make punishable the destroying of a vessel to defraud under- writers or persons having a lien upon it, and various other related wrongs, R. S. of U. S. § 5364-5367. These provisions are a mere re-enactment, with unimportant changes, of former ones ; as, see Act of March 26, 1804, and Act of March 3, 1825, 2 Stats, at Large, 290, and 4 lb. 122. And see, as perhaps relating to some changes in phraseology, Roberts v. S. 2 Head, 501 ; U. S. V. Johns, 1 Wash. C. C. 363, 4 Dall. 412. For English statutes which served as the originals of ours, see 2 East P. C. 1095 et seq. The "meanings of some of the terms employed in these statutes are explained in Statutory Crimes. Thus, " Destroy." — This word does not re- quire an irreparable disruption of the parts ; it is satisfied when the vessel is unfitted for service beyond recovery by ordinary means. Stat. Crimes, § 224. And see § 214 and note, 223, 446. There- fore, when holes were bored in a vessel's bottom, and she filled and was abandoned, but the crew of another vessel finding her pumped her out and towed her to port, she was held to have been destroyed. U. S. «. Johns, I Wash. C. C. 363, 4 Dall. 412. And see U. S. c^. Vanranst, 3 Wash. C. C. 146. But, says East, "If the ship be only run aground or stranded upon a rock, and be afterwards got off in a con- dition to be capable of being easily re- fitted, she cannot be said to be ' cast away or destroyed.' " De Londo's Case, 2 East P. C. 1098. " To Injure any Person that may have undervirritten," &o. — A corporation is a " person " within this provision. Stat. Crimes, § 212. And on a trial, the act of incorporation being proved, it is only further necessary to 850 show that the company was de facto' or- ganized, and conducting as a corporation, and persons usually doing business as its officers signed thp policy. It was also observed : " The law punishes the act when done with an intent to prejudice; it does not require that there should be an actual prejudice. The prejudice in- tended is to be to a person who has un- derwritten, or who shall underwrite, a policy thereon, which, for aught the pris- oner knows, is valid ; and does not pre- scribe tliat the policy should he valid so that a recovery could he had thereon. It points to the intended prejudice of an un- derwriter de facto." U. S. k. Amedy, 1 1 Wheat. 392, 410, opinion by Story, J. Conspiring. — The Act of March 3, 1825, making a conspiring punishable, was in- tended to protect the commerce on our rivers and lakes as w;ell as on the high seas ; and as such, it does not exceed the constitutional power of Congress. U. S. t. Cole, 5 McLean, 513. The Procedure. — See, as to the form of the indictment and further as to the proofs, U. S. v. McAvoy, 4 Blatch. 418; U. S. v. Johns, 1 Wash. C, C. 363 ; Reg. v. Kohn, 4 Eost. & F. 68. Under State Laws. — It seems to fol- low from principles already considered (see ante, § 152, and other places) that it is not competent for the States to pun- ish offences of this sort conimitted beyond their territorial limits. For illustration : The Massachusetts statute provides that " whoever wilfully casts away, burns, sinks, or otherwise destroys a ship or vessel, with intent to injure or defraud an owner there- of or of any property laden on board the same, or an insurer of such ship, vessel, or property or of any part thereof, shall be punished," &c. Pub. Stats, c. 203, § 89. But though the writer is not able to refer to any decision of the question, it would seem the courts should not construe this statute as applying to acts out of the State; and should they do so, it would be to this extent unconstitutional. 1 Vol. IL § 141-168. 2 Rex V. Lara, 2 Leach, 647, 2 East CHAP. XL.J PROTECTION TO INDIVIDUALS. § 571 guard,! to the injury ^ of one in any pecuniary interest. The English statute, 3^ Hen. 8, c. 1,^ against obtaining money or goods by a false privy token or counterfeit letter, affirmed this prior common law, to which it seems to have added little, if any- thing;* and it is common law with us.^ 2. Cheat on Public. — Where the cheat extends to the injury of great numbers, as the public, a second ground of common-law indictability is added.® So that there are frauds on the public, not within the rules rendering them crimes if committed against an individual, which are punishable by reason of the numbers or the governmental interest harmed, — to be more particularly explained in the sec,ond volume. ^ 3. False Pretences. — A false symbol or token, without which there can be no common-law cheat, is not the only instrumen- tality whereby the darker sorts of fraud on individuals may be accomplished. Therefore legislation, both English and Ameri- can, has added to it the false pretence; which -is a represen-» tation of something as fact, of a sort calculated to njislead, while to the knowledge of the pretending party it is false. ^ But the statutes have not made every cheat wrought by a false pre- tence indictable; differing in terms, still they have specified each its particular thing or things, the obtaining of which they declare indictable, such as money, goods, credit, and the like, and by them the offence is bounded.^ A false token is a false P. C. 819, 6 T. R. .965; C. v. Boynton, 2 " Kex v. Fawcett, 2 East P. C. 862; Mass. 77 ; Reg. v. Jones, 2 Ld. Raym. 1013 ; C. v. Davidson, 1 Cush. 33 ; Rex v. Dale, Anonymous, Lo^t, 146 ; Anonymous, 7 7 Car. & P. 352 ; S. v. Little, 1 N. H. 2.57, Mod. 40; Rex v. Govers, Say, 206 ; S. v. 258 ; P. v. Thomas, 3 Hill, N. Y. 169 ; P. Grooms,5Strob. 158; P. ». Stone,9Wend. v. Galloway, 17 Wend. 540. As to the 182 ; C. V. Warren, 6 Mass. 72 ; Respub- limit of the doctrine on this point, see S. lica «. Teischer, 1 Dall. 335 ; C. v. Speer, v. Mills, 17 Me. 211. 2 Va. Gas. 65 ; S. v. Patillo, 4 Hawks, 348 ; ^ Anonymous, 6 Mod. 105, note ; 2 P. V. Gates, 13 Wend. 311, 319; Respub- East P. C. 826. lica V. Powell, 1 Dall. 47 ; S. v. Wilson, 2 * 1 Gab. Grim. Law, 206. Mill, 135, 139; Hartmann v. C. 5 Pa. 60; -^ C.v. Warren, 6 Mass. 72. And see Rex V. Fowle, 4 Car. & P. 592 ; Rex v. Eespublica v. Powell, 1 Dall. 47. Fawcett, 2 East P. C. 862. = Ante, § 231, 235, 236, 243-246. 1 Anonymous, 6 Mod. 105 ; P. v. Bab- ' Vol. II. § 161-164. cock, 7 Johns. 201, 5 Am. D. 256; Cross 8 s. u. Vorback, 66 Mo. 168, 172; P. v. <: Peters, 1 Greenl. 376, 387, 10 Am. D. Blaiichard, 90 N. Y. 314; Higler v. P. 44 78 ; C. V. Warren, 6 Mass. 72 ; P. v. Stone, Mich. 299, 38 Am. R. 267. 9 Wend. 182; S. v. Stroll, I Rich. 244; ' Vol. II. § 476-484; C. v. Harkins, S. V. Patillo, 4 Hawks, 348 ; Respublica 128 Mass. 79 ; Reg. v. Gordon, 23 Q; B, D. V. Powell, 1 Dall. 47. And see Rex v. 354, 16 Cox C. C. 622. Flint, Russ. & By. 460. 851 §572 THE ACT ESSENTIAL IN CRIME. [book V. pretence, so that these statutes against false pretences, as they are called, constitute practically a reafSrmance and enlargement of the common-la-w cheat. ^ § 572, 1. Forgery — is a species of common-law cheat, which early was separated from the rest under this distinctive name.^ And it includes as well the unsuccessful attempt ^ as the accom- plished fraud. It is the false ^ making or materially altering, ^ with intent to dpfraud,^ of any writing which, if genuine, might apparently be'^ of legal efficacy, or the foundation of a legal liability. ^ And — J Vol. II. § 409-488. 2 Vol. II. § 521-612. 8 Ante, § 435, 437. It is said that for- gery was indictable as a cheat at common law only when successful. 2 East P. C. 825 ; 1 Gab. Crim. Law, 205. Clearly this must be so, owing to the distinction between a complete offence and an in- dictable attempt. Stat. Crimes, § 225. But this 'distinction refers only to the form of the indictment; an unsuccess- ful forgery being a punishable attempt to cheat. That the fraud meant need not be accomplished, see S. v. Washington, 1 Bay,'l20, I Am. D. 601 ; Rex ». Crocker, 2 Leach, 987, Russ. & Ry. 97, 2 New Rep. 87 , Rex V. Ward, 2 Ld. Raym. 1461, 2 East P. C. 861 ; C. v. Ladd, 15 Mass. 526. Contra, Reg. v. Boult, 2 Car, & K. 604. * Rex V. Story, Russ. & Ry. 81 ; Reg. V. Inder, 1 Den. C. C. 325 ; Rex v. Webb, 3 Brod. & B. 228 ; Russ. & Ry. 405, cited 6 Moore, 447 ; Rex v. Aickles, 1 Leach, 438, 2 East P. C. 968; S. v. Shurtliff, 18 Me. 368 ; Mead v. Young, 4 T: R. 28. 5 S. V. Eloyd, 5 Strob. 58, 53 Am. D. 689 ; S. V. Robinson, 1 Harrison, 507 ; Reg. V. Blenkinsop, 1 Den. C. C. 276, 2 Car. & K. 531 ; Rex v. Dawson, 1 Stra. 19, 2 East P. C. 978 ; Rex v. Post, Russ. & Ry. 101 ; Rex v. Tteble, 2 Leach, 1040, 2 Taunt. 328, Russ. & Ry.,164 ; S. v. Me- Leran, 1 Aikens, 311 ; Rex v. Kinder, 2 East P. C. 855 ; S. v. Waters, 2 Tread. 669; S.K.Gherkin, 7Ire. 206; S.». Thorn- burg, 6 Ire. 79,' 44 Am. D. 67 ; S. v. Greenlee, 1 Dev. 523; P. v. Eitch, 1 Wend. 198, 19 Am. D. 477. ' Blake v. Allen, Sir F. Moore, 619 ; S. 11. Odel, 3 Brev. 552 ; Reg. v. Cooke, 8 Car. &P. 582; Reg. v. Beard, 8 Car. & P. 352 143, 148; Grafton Bank v. Flanders, 4 N. H. 239, 242 ; P. «. Peabody, 25 Wend. 472 ; Rex v. Crocker, Russ. & Ry. 97, 2 New Rep. 87, 2 Leach, 987 ; Reg. v. Page, 8 Car. & P. 122; Jackson v. Weisiger, 2 B. Monr. 214 ; S. v. Givens, 5 Ala. 747. As to principles which limit this intent, see Reg. v. Hill, 2 Moody, 30 ; Rex ». Whiley, Russ. & Ry. 90 ; Reg. v. Beard, 8 Car. & P. 143 ; Reg. v. Wilson, 2 Car. 6 K. 527, 1 Den. C.C. 284 ; Rex v. Forbes, 7 Car. & P. 224 ; Reg. u. Parish, 8 Car. & P. 94. ' P. I). Galloway, 17 Wend. 540, 542; Rex V. Teague, Russ. & Ry. 33, 2 East P. C. 979 ; De Bow v. P. 1 Denio, 9 ; Reg. », Pike, 2 Moody, 70 , Rex v. Deakins, 1 Sid. 142; Rex v. Mcintosh, 2 East P. C. 942 ; s. c. nom. Rex v. Mackintosh, 2 Leach, 883; C. «. Linton, 2 Va. Cas. 476. Yet see P. V. Fitch, 1 Wend. 198. 8 Ames's Case, 2 Greenl. 365 ; Rex v, Jones, 2 East P. C. 991 ; Reg. v. Toshack, 1 Den. C. C. 492 ; C. v. Ayer, 3 Cush. 1 50 ; S. «. Smith, 8 Yerg. 150 ; Rex v. Knight, 1 Salk. 375, 1 Ld. Raym. 530; Reg. v. King, 7 Mod. 150; Rex v. O'Briati, 7 Mod. 378 ; Rex v. Harris, 1 Moody, 393 ; P. V. Shall, 9 Cow. 778 ; P. v. Harrison, 8 Barb. 560; Harris v. P. 9 Barb. 664; S.w. Va,n Hart, 2 Harrison, 327; Van Home V. S. 5 Pike, 349 ; Reg. a. Boult, 2 Car. & K.- 604 ; C. V. Chandler, Thacher Crim. Cas. 187 ; Rex v. Burke, Russ. & Ry. 496 ; C. V. Mycall, 2 Mass. 136 ; Barnum u. S. 15 Ohio, 717, 45 Am. D. 601; Rex v. Ward, 2 Ld. Raym. 1461, 2 Stra. 747; Rex V. Harris, 6 Car. & P. 129 ; Rex «. Wall, 2 East P. C. 953 ; Rex v. Gade, 2 Leach, 732, 2 East P. C. 874 ; Upfold v. Leit, 5 Esp. 100 ; Foulkes v. C. 2 Rob. Va. CHAP. XL.J PROTECTION TO INDIVIDUALS. § 572 a 2. Apparent — Fictitious Name. — Since a writing which falsely appears to be of efficacy is a symbol or token ^ adapted the same as a genuine one to influence the mind contemplating it, the forgery may be as well of a mere fictitious name as of a real person's. There is equally an attempt to defraud.^ § 572 a. 1. Fraudulent Conveyance. — The Statute of 13 Eliz. c. 5, against fraudulent conveyances, is very familiar in our civil jurisprudence. It is, in its principal provisions, common law in our States.^ By § 3, "all and every the parties" to the fraudulent conveyance, " being privy and knowing of the same, " who " shall wittingly and willingly put in ure, avow, maintain, justify, or defend the same " as being true " and upon good con- sideration," or " shall alien, &c., any the lands, &c., goods, leases, or other things to him, &c., conveyed as is aforesaid, &c., shall incur the penalty and forfeiture, &c., and also being thereof lawfully convicted shall suffer imprisonment for one half-year without bail or mainprise." An indictment lies in England upon this statute,^ and there is no reason why it should not also in our States. But the author is -unable to refer to any case in which this proceeding has actually been instituted. Probably it is not often called for, because — 2. Similar Statutes, ^- generally in broader terms, and extend- ing to secreting property, selling it when mortgaged, and the like, prevail in considerable numbers of our States, and on them we have had criminal prosecutions.^ 836; S. V. Jones, 1 Bay, 207; S. v. Gut- Avery, 8 Car. & P. 596; Rex w. Dunn, lidge, I Bay, 285; P. o. Cady, 6 Hill, 1 Leach, 57. N, Y. 490. ° Dir. & F. § 481 ; Bishop Con. § 1205 ; 1 Ante, § 571 (1). 1 Bishop Mar. Women, § 737-740 ; Re- 2 Rex V. Marshall, Russ. & Ry. 75 ; port of Judges, 3 Binn. 595, 621 ; Kilty Rex V. Taft, 1 Leach, 172, 2 East P. C. Rep. Stats. 234. 959; P. \>. Peabody, 25 Wend. 472 ; Rex * Reg. v. Smith, 6 Cox C. C. 31. o. Peacock, Russ. & Ry. 278; Rex v. Bon- ' P. v. Underwood, 16 Wend. 546; P. tien, Russ. & Ry. 260 ; Reg. w. Hill, 2 v. Morrison, 13 Wend. 399 ; C. w. Brown, Moody, 30; Rex v. Francis, Russ. & Ry. 15 Gray, 189 ; C. w.Strangford, 112 Mass. 209; Rex v. Shepherd, 2 East P. C. 967; 289; 0. v. Damon, 105 Mass. 580; S. a. s. c. nom. Rex v. Sheppard, 1 Leach, 226 ; Marsh, 36 N. H. 196 ; S. w. Small, 31 Tex. Rex V. Partes, 2 Leach, 775, 2 East P. C. 184 ; S. v. Devereaux, 41 Tex. 383 ; Stow 963, 992 ; Rex v. Bolland, 1 Leach, 83, 2 v. P. 25 \\\. 81 ; P. v. Stone, 16 Cal. 369 ; East P. C. 958 ; Rex v. Lewis, 2 East P. P. v. Garnett, 35 Cal. 470, 95 Am. D. 125 ; C. 957, Foster, 116 ; Rex v. Whiley, Russ. Goodenough v. Spencer, 46 How. Pr. 347 ; & Ry. 90; C. v. Chandler, Thacher Crim. S. v. Ellington, 98 N. C. 749; Williams v. Cas. 187 ; S. «. Givens, 5 Ala. 747 ; Rex S. 27 Tex. Ap. 258 ; Smith ti. S. 26 Tex. V. Wilks, 2 East P. C. 957; Reg. v. Ap. 577. And see Christopher v. Van VOL. I. — 23 353 574 THE ACT ESSENTIAL IN CRIME. [book v. § 573. Extortion, — as defined by Blackstone, is " any officer's unlawfully taking, by color of his office, from any man any money or thing of value that is not due to him, or more than is due, or before it is due.''^ § 574. General Rules governing the Foregoing Offences : — 1. Physical Force, — directed by one against the person of an- other to 'his injury, we have seen to be always indictable ;2 be- cause the law deems that in employing this instrumentality he places himself toward the other on unfair ground. Therefore, — 2. To Injury of Property. — In reason, this rule should in some circumstances, not necessarily in all, prevail also in respect of injuries to property. And this doctrine of reason has a sort of status in the adjudged law. More specifically as to which, — Liew, 57 Barb. 17 ; Dir. & F. § 484, 485. Of the like kind with the offences men- tioned in our text are — Frauds against Bankrupt Acts. — It is not proposed to examine these frauds. There have long been statutes in England against them, and the like, under the bank- ruptcy and insolvent laws as, see 1 Hawk. P. C. Curw. ed. p. 586, 588; 2 Russ. Crimes, 3d Eng. ed. 228 et seq. 235 ; 4 Bl. Com. 156. And the English books contain various re- ported cases on this subject, as, Kex v. Mitchell,, 4 Car. & P. 251 ; Rex v. Wal- ters, 5 Car. & P. 138 ; Keg. v. Radcliffe, 2 Moody, 68; Reg. v. Marner, Car. & M. 628 ; Reg. v. Lands, Dears. 567, 33 Eng. L. & Eq. 536 ; Keg. v. Gordon, Dears. 586 ; Reg. V. Sloggett, Dears. 656, 36 Eng. L. & Eq. 620; Reg. v. Scott, Dears. & B. 47, 36 Eng. L- & Eq."644 ; Keg. v. Milner, 2 Car. & K. 310; 1 Gab. Crim. Law, 441 ; Rex V. Page, 1 Brod. & B. 308, Russ. & Ry. 392, 3 Moore, 656, 7 Price, 616 ; Rat^ cliffe's Case, 2 Lewin, 57, 82 ; Rex o. Forsyth, Russ. & Ry. 274 ; Reg. a. Har- ris, 1 Den. C. C. 461, 3 Cox C. C. 565 ; Reg. V. Jones, 4 B. & Ad. 345, 1 Nev. & M. 78; Rex v. Frith, 1 Leach, 10; Rex v. Burrastom, Gow, 210 ; Rex v. Punshon, 3 Camp. 96 ; Rex v. Britton, 1 Moody & R. 297 ; Rex v. Evani, 1 Moody, 70; Keg. v. Dealtry, 1 Den. C. C. 287 ; Reg. v- Hill, 1 Car. & K. 168; Reg, v. Hillam, 12 Cox C. C. 174, 2 Eng. Rep. 227; Reg. v. Beau- mont, 12 Cox C. C. 183; Reg. v. Watkin- son, 12 Cox C. C. 271, 4 Eng. Rep. 547 ; Reg. V, Widdop, Law Rep. 2 C. C. 3 ; s. c. 354 nom. Reg. v. Widdup, 12 Cox C. C. 251; Reg. V. Wilson, 5 Q. B. D. 28, 14 Cox C. C. 378 ; Reg. v. Lloyd, 19 Q. B. D. 213, 16 Cox C. C. 235. We have had some American statutes of the like sort ; as to which, and generally of our law of the sub- ject, see ante, § 298 (4) ; Dir. & F. § 230- 239; Crim. Pro. I. § 53, 1304; Stat. Crimes, § 29, 103, 129, 183, 823 ; Dyott v. C. 5 Whart. 67 ; Guldin v. C. 6 S. & R. 554 ; U. S. V. Dickey, Morris, 412. Under the penalties of a late Bankrupt Act of the United States, some questions have arisen; as to which, see U. S. v. Pres- cott, 2 Abb. U. S. 169; U. S. v. Prescott, 2 Dil. 405; U. S. v. Frank, 2 Bis. 263; U. S. u. Latorre, 8 Blatch. 134 ; U. S. v. Clark, 1 Low. 402, 4 Bankr. Reg. 59; U. S. V. Pusey, 6 Bankr. Reg. 284 ; In re Penn, 5 Ben. 89 ; U. S. v. Penn, 13 Bankr. Reg. 464; In re Oregon Bulletin Printing, &c. Co. 3 Saw. 614, 14 Bankr. Reg. 405. i 4 Bl. Com. 141 ; 1 Russ. Crimes, 3d Eng. ed. 142 ; 1 Hawk. P. C. c. 68, § 1 ; Reg. V. Tracy, 6 Mod. 30; Rex u. Bur- dett, 1 Ld. Raym. 148, 149 ; Runnells v. Fletcher, 15 Mass. 525; Respublica v. Hannum, 1 Yeates, 71 ; Si. v. Stotts, 5 Blackf. 460 ; P. v. Whaley, 6 Cow. 661 ; Reg. V. Best, 2 Moody, 124 ; Smythe's Case, Palmer, 318 ; Rex v. Baines, 6 Mod. 192; C. V. Bagley, 7 Pick. 279; Shattuck . Lewis, Say. 205 ; Rex ^ Ante, § 224 (1). V. Driffield, Say. 146 ; Rex v. Botwright, ' Rex V. Philippg, 2 East P. C. 662; Say. 147; Rex v. Grantham, 11 Mod. and ante, § 566. 222 ; Rex v. Osborn, 3 Bur. 1697 ; Rex v. * Ante, § 252, 546. Bryan, 2 Stra. 866. 5 Anonymous, 6 Mod. 105 ; Reg. v. « Rex v. Channel], 2 Stra. 793; Rex v. Jones, 2 Ld. Raym. 1013, 1 Salk. 379; Dunnage, 2 Bur. 1130; Rex w. Bradford, C. V. Warren, 6 Mass. 72; S. v. Delyon, 1 Ld. Raym. 366; C. «. Hearsey, 1 Mass. 1 Bay, 353 ; Rex v. Bower, Cowp. 323 ; 137 ; Rex v. Wheatley, 1 "W. Bl. 273 ; P. V. Ba'bcock, 7 Johns. 201, 5 Am. D. s. c. nom. Rex v. Wheatly, 2 Bur. 1125 ; 256 ; S. V. Justice, 2 Dev, 199 ; P. u. Mil- Rex v. Watson, 2 T. R. 199. ler, 14 Johns. 371 ; Reg. v. Hannon, 6 357 § 583 THE ACT ESSENTIAL IN CRIME. [BOOK V. for civil redress, 1 but declines itself to interfere by a criminal prosecution. So, — 2. The Enticing away of One's Apprentice — is an actionable tort; 2 but being a mere mental force it is not indictable. ^ Yet the kidnapping of the apprentice, a not greatly different wrong accomplished by physical force, would be redressed as a crime.* Again, — 3. Robbery — Larceny. — Where one gets away the personal property of another by the use, actual or even sometimes only threatened, of physical force, he commits robbery or larceny ;5 while if he obtains it by any fraud short of what will presently be explained,^ his act is not a crime.' And the little regard paid by the common law to mental force appears further in a — § 583. Distinction in Larceny — (As to Possession). — If one fraudulently, to steal another's goods, prevails on the latter to deliver them to him in a way to pass the property therein, he commits by this taking neither larceny^ nor any other crime, unless the transaction amounts to an indictable cheat.® But if the permission extends to the possession only, and he takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.^" Here the fraud which entered into the former 1 Ante, § 251. P. C. 669 ; Rex v. Parkes, 2 Leach, 614 ; 2 Bishop Noii-Con. Law, § 369. s. c. nom. Rex v. Parks, 2 East P, C. 671 ; 8 Reg. V. Daniel, 6 Mod. 182, 1 Salk. Reg. v. Barnes, 1 Eng. L. & Eq. 579, 2 380, 3 Salk. 191 ; s. c. nom. Reg. v. Dan- Den. C. C. 59, Temp. &.M. 387 ; Wilson iell, 6 Mod. 99 , Rex a. Pettit, Jebb, 151. v. S. 1 Port. 118 ; Rex v. Adams, Russ. & * Vol. II. § 750. Ry. 225 ; Reg. v. Adams, 1 Den. C. C. 5 Rex V. Blackham, 2 East P. C. 711 ; 38 ; Reg. v. Thomas, 9 Car. & P. 741 ; ■ Rex i: Taplin, 2 East P. C. 712 ; Reg. o. Reg. «. Wilson, 8 Car. & P. Ill ; Rex Walls, 2 Car. & K. 214 ; Rex v. Macauley, v. Hawtin, 7 Car. & P. 281 ; Mowrey v. 1 Leach, 287 ; Rex ... Robins, 1 Leach, Walsh, 8 Cow. 238 ; Ross o. P, 5 Hill, 290, note; Rex u. Horner, 1 Leach, 270, N. Y. 294; Lewer v. C. 15 S. & R. 93; Rex w. Lapier, 1 Leach, 320, 2 East P. C. Vol. II. § 808. 557, 708 ; Rex v. Frances, 2 Comyns, 478, ' Ante, § 571 ; post, § 585. 2 Stra. 1015; s. c. nom. Rex o. Francis, " Rex v. Semple, 1 Leach, 420, 2 East Cas. temp. Hardw. 113; Rex y. Simons, P. C. 691; Rex v. Hench, Russ. & Ry. 2 East P. C. 712 ; Rex «. Spencer, 2 East 163 ; Rex v. Aickles,, 1 Leach, 294, 2 East P. C. 712; ante, § 553-566. And see Rex P. C. 675; Rex v. Pear, 1 Leach, 212, 2 V. Phipoe, 2 Leach, 673, 2 East P. C. 599 ; East P. C. 685, 697 ; Rex v. Tunnard, 2 S. V. Vaughan, 1 Bay, 282. East P. C. 687, 1 Leach, 214, note; Rex « Post, § 585. • „. Wilkins, 1 Leach, 520, 2 East P. C. ' Post, § 583. 673 ; Rex v. Patch, 1 Leach, 238, 2 East 8 Rex V. Coleman, 2 East P. C. 672 ; P. C. 678 ; Rex v. Marsh, 1 Leach, 345 ; Rex V. Nicholson, 2 Leach, 610, 2 East Rex v. Watson, 2 Leach, 640, 2 East P. C. 358 CHAP. XL.J PROTECTION TO INDIVIDUALS., , § 585 branch of this distinction counts for nothing ; in the latter, it only seems to count, for not it but the lack of any consent to what was done imparts to the act its criminality. Again, — § 584. Forgery — Cheat. — According to a doctrine apparently just in reason, and sustained by numerous yet conflicting ^ authorities, one does not commit forgery 2 who, by fraudulently misrepresenting the contents of an unexecuted instrument, or by misreading or altering it, prevails on another to sign it, suppos- ing himself to be executing what is different. ^ But circum- stances may arise in which this kind of fraud will be indictable as another sort of cheat. ^ And — §585. Further of Cheat — (Token — Larceny — Forgery). — If one to defraud another employs a false token, such that accord- ing to the necessary customs and order of society men must place confidence in it, and thereby persuades the other to part with property, we have seen that he is indictable for the cheat,^ though the act is not larceny.^ Some of the cases imply that the token must be of a public sort,", but by the better opinion it need only be . calculated to deceive men generally ; ^ for we have seen^ that the criminal common law is not administered on the principle of extending a particular protection to the weak and 680 ; Eex v. Pearce, 2 East P. C 603 ; v. Sankey, 22 Pa. 390, 60 Am. D. 91 ; Hill Reg. V. Johnson, U Eng. L. & Eq. 570, 2 k. S. 1 Yerg. 76. Contra, S. v. Shurtlife, Den. C. C. 310; Rex v. Robson, Russ. & 18 Me. 368. And see Vol. II. § 156, 589- Ry. 413; S. V. Gorman, 2 Nott & McC. 591. 90, 10 Am. D. 576 ; S. v. Thurston, 2 * Ante, § 571 ; Hill v. S. 1 Yerg. 76, 24 McMul. 382; C. V. James, 1 Pick. 375; Am. D. 441. And see Rex w. Hevey, Russ. Starkie y. C. 7 Leigh, 752 ; Rex ;;. Long- & Ry. 407, note, 2 East P. C. 856, 1 Leach, streeth, 1 Moody, 137; Rex v. Pratt, 1 229; Eex w. Webb, 3 Brod. & B. 228, Russ. Moody, 250 ; Rex v. Summers, 3 Salk. . & Ry. 405, cited 6 Moore, 447 ; 1 Hawk. 194'; Anonymous, J. Kel. 35, 81, 82 ; S. P. C. Curw. ed. p. 318, § 1. But see S. v. V. LindentWll, 5 Rich. 237, 57 Am. D. Justice, 2 Dev. 199; Vol. II, § 156. 743 ; S. V. Hall, 76 Iowa, 85, 14 Am. St. ^ Ante, § 571. 204. Contra; in Teunessee, Felter v. S. ^ Ante, § 583. 9 Yerg. 397. And see Vol. II. § 809, 813, ' S. v. Stroll, 1 Rich. 244 ; P. v. Stone, 814. 9 Wend. 182. ' See Vol. II. § 156, 589-591. ^ P. v. Babcock, 7 Johns. 201, 5 Am. 2 Ante, § 572. D. 256 ; Cross v. Peters, 1 Greenl. 376, ' Reg.!). Chadwick, 2 Moody & R. 387, 10 Am. D. 78; C. w. Warren, 6 Mass. 545 ; Reg. v. Collins, 2 Moody & R. 461 ; 72; Rex v. Osborn, 3 Bur. 1697; Eex v. Woodward's Case, cited 2 Leach, 782; Atkinson, 2 East P. C. 673; ante, § 571. Reg. v. White, 1 Den. C. C. 208 , Marvin's And see and compare Rex v, Jackson, 3 Case, 3 Dy. 288, pi. 52 ; Rex 0. Maddocks, Camp. 370, and Eex v. Lara, 2 Leach, 647, 2 Russ. Crimes, 3d Eng. ed. 499 , Putnam 2 East P. C. 819, 827, 6 T. R. 565. V. Sullivan, 4 Mass. 45, 3 Am. D. 206; C. = Ante, § 251. 359 § 588 THE ACT ESSENTIAL IN CRIME. [BOOK V. feeble. So indeed it is in the special cheat of fofgery,i which need not be of a public document. ^ § 586. False Pretences. — We have seen 3 that various modern statutes make it indictable to obtain things of value by false pretences, though no false token is employed ; for the extended trade and more refined culture of modern times * require a cer- tain degree of universal confidence to be placed in mere verbal representations. Yet these statutes are interpreted in the spirit and by the reasons of the common law ; ^ and they do not, there- fore, extend, as the non-professional reader might suppose, to every imaginable kind of false pretence.^ So that notwith- standing the statutes, there are cheats and frauds not indictable either under them or at the common law.' Moreover, — § 587. 1. Officer — (Extortion). — One who, in office, uses his official position to extort money is indictable for it, as we have seen ; ^ because, in drawing thus on the obedience due from the subject to the government and its agents, he places himself on unfair ground toward his victim.^ Perhaps this offence may be traced also to the general obligation of the officer to discharge well his official duties.^" Likewise, — 2. False Personating. — It seems that a man is indictable who cozens another by falsely representing himself to be an officer. '^ And the same consequence may even follow the false personation of a private individual. ^^ Again, — § 588. Abusing Legal Proceedings. — One not an officer may subject himself to punishment by an oppressive use of legal proceedings. When, therefore, a man purchased three several promissory notes against another, and brought on them three separate suits instead of one, and on obtaining judgment levied the executions oppressively, the court held that though this was 1 Ante, § 572 f 1 ) ; Vol. II. § 521 ; But- Eng. 594 ; Burrow v. S. 7 Eng. 65 ; Rex ler V. C. 12 S. & R. 237, 14 Am.. D. 679. v. Wavell, 1 Moody, 224 ; Rex «. Good- 2 Vol. II. § 523, 529, 531. hall, Russ. & Ry. 461. 8 Ante, § 571 (3). ' C. w. Eastman, 1 Gush. 189, 223, 48 * Ante, § 252. Am. D. 596 ; S. v. Roberts, 34 Me. 320. s Stat. Crimes, § 123, 133, 141, 154, 8 Ante, § 573; Vol. II. § 390. ^^^' ^ Ante § 252 " Rex V. Fuller, 2 East P. C. 837 ; P. i" Ante', § 459. V. Williams, 4 Hill, N. Y. 9, 40 Am. D. " Serlested's Case, Latch, 202 ; ante, 258; S. V. Simpson, 3 Hawks, 620; C. <;. § 468 (6). Wilgus, 4 Pick. 177, 178 ; P. v. Crissie, 4 '^ 2 East P. C. 1010 ; Vol. II. § 152-155, Denio, 525; P. v. Haynes, 14 Wend. 546, 439. 657,' 28 Am. D. 530 ; McKenzie ». S. 6 360 CHAP. XL.j PROTECTION TO INDIVIDUALS. § .591 not barratry, 1 it was still an offence indictable at the common law.''' Perhaps this conduct may.be deemed an exercise rather of physical force than of mental. ^ § 589. Perjury, — in a criminal proceeding, is a crime rather against the public than the individual.* And its public nature may be also one reason why it is cognizable criminally when committed in a civil suit;^ since the government furnishes courts for the redress of private wrongs. But it is also an offence against the individual; it is such, even in a criminal cause, if committed to the injury of the person on trial ; for he who thus wrongs him does it standing toward him on an unequal ground.^ § 590. Repeated, — the criminal effect of employing mental force to injure men in their property is briefly thus: When minds combat with one another, a strength is generated useful to the community. This is the ordinary rule ; and so long as the conflict is of this sort, the one who obtains an advantage over the other is not indictable. But when one of the parties, assuming an unfair' ground toward the other, changes the combat to become destructive instead of strengthening, he commits a public offence.' IV. Offences against Personal Reputation. § 591. 1. Doctrine defined. — It is the policy of the law to leave the care of men's reputations to themselves. No damage done to a reputation, therefore, at least by a single individual, is at the common law foundation for a criminal prosecution. Still, — 2. A Conspiracy — to ruin a man's reputation, where the com- bination of numbers places the conspirators on unfair ground toward him,^ may, in reason, be in the proper circumstances indictable. And such is believed to be the doctrine of the adjudged law, though there are not many cases to the question. » And — 3. To charge with Bastardy or with Indictable Offence — It is » Ante, § 541. * Ante, § 252. 2 C. V. McCuUoch, 15 Mass. 227, ' Ante, § 230 et seq., 258-260. 3 And see ante, § 564 (2). 8 Post, § 592 ; Vol. II. § 173, 180, 181. < Ante § 468 (4). ' Rex v. Eispal, 1 W. Bl. 368, 3 Bur 6 Ante' § 467 1320. And see Vol. U. § 216, 217, 235. 361 § 592 THE ACT ESSENTIAL IN CRIMK. [BOOK V. settled in authority that a conspiracy to charge one with being the father of a bastard child, or with having committed an indictable offence, is indictable.^ But this consequence does not rest alone on injury to the reputation ; for the conspiracy tends also to bring the party under a civil or criminal liability. So,— 4. In Libel and Slander.^ — where commonly there is a sort of attempt to harm the reputation, the indictability of the act cer- tainly does not come alone from such harm. And if we accept as sound the common language of the books, it does not proceed therefrom to any degree. For the courts, whether correctly or not in prin&iple, hold these wrongs to be punishable, not because of injury to the reputation, but of their tending to create breaches of the peace. ^ And obscene libels are thus punishable because corrupting to the public morals.* Hence the common-law rule that it is immaterial whether what is said in a libel is true or false,^-^a question vital in the suit for damages, — but, the tendency to disturb the public tranquillity or corrupt the public morals being the same in either alternative, the offence is the same. This legal rule is somewhat modified by other doctrines, but not so as to impair it for the present illustration. ^ And modern • legislation has to a still further extent permitted the truth of a libel against the individual to be given in evidence by the accused." V. Oombinations to commit Private Injuries. § 592. 1. Conspiracy. — There is an element of wrong not taken into the account in most of the foregoing elucidations, but mentioned in the last sub-title, called conspiracy. , It is the cor- rupt agreeing together of two or more persons to do, by concerted action, something unlawful,' either as a means or an end. ^ In 1 C. V. Tibbets, 2 Mass. 536 ; Reg. v. D. 217 ; P. v. Croswell, 3" Johns. Cas. Best, 2 Ld. Rayra. 1167, 6 Mod. 137, 185 ; 336 ; C. v. Blanding, 3 Pick. 304 ; Rex B. Timberly v. Childe, 1 Sid. 68; Rex v. Draper, 3 Smith, 390; S. v. Lehre, 2 Armstrong, 1 Vent. 304 ; 1 Gab. Crlm. Tread. 809, 2 Brer. 446, 4 Am. D. 596 ; I-a^. 252. Eex V. Halpin, § B. & C. 65. '■' -A-"te, § 540 (4). 7 c. u. Bonner, 9 Met. 410 ; Barthelemy 8 Vol. II. § 907, 909. „. p. 2 Hill, N. Y. 248 ; S. v. White, 7 Ire. » Ante, § 500, 504; Vol. 11. § 910. 180; P. v. Croswell, 3 Johns. Cas. 336 6 Vol. II. § 918. Rex V. Burden, 3 B. & Aid. 717, 4 B. & ».Cropp 0. Tilney, Holt, 422; C. v. Aid. 95; Vol. II. § 920. Clap, 4 Mass. 163, 168, 169, 3 Am. D. » Vol. II. § 171. 212 ; S. V. Burnham, 9 N. H. 34, 31 Am. 362 ^HAP, XL. J PROTECTION TO INDIVIDUALS. § 692 combination there is power; and when men thus combine to' injure another they -place themselves toward him on unfair ground. So that within the principles brought to view in this chapter, the combining — in other words, the conspiracy — may be indictable even where the thing contemplated would not be so if 'actually performed by one.^ "We have seen that a mere conspiring, while yet nothing has been done in pursuance of it, is an act within the rule which requires a union of act and evil intent to constitute crime.^ Therefore this mere conspiracy, with no step actually taken to carry it out, is within the princi- ple of criminal attempt ; ^ that is, it is an attempt to commit the civil or criminal wrong by an indictable combination of num- bers. It is not called in the books " attempt, " but it is such in nature and effect. Conducting these views to their conclusion, if two or more persons unite in skill and endeavor to inflict harm on a third, they incur criminal liability, whether they actually do the harm or not, and whether the harm is or not of a sort to be indictable when proceeding from one alone.* 2. To injure Public. — Though not within the scope of this chapter, it should be here added for clearness that, a fortiori, the like conspiracy is indictable when its object is to injure many persons instead of one, or to injure the public; as, to dis- turb the course of government and justice, or to create breaches of the peace, public nuisances, or the violations of good morals.^ It is but repeating what has been said many times in these pages 1 Vol IL § 172, 173, 178. 181, 182. C. u. "Ward, 1 Mass. 473 ; Patten u. Guruey, 2 Ante, § 432. 17 Mass. 182, 184, 9 Am. D. 141 ; Bean f. a Ante, § 434. Bean, 12 Mass. 20, 21 ; C. v. Eastman, 1 * Crump V. C. 84 Va. 927, 10 Am. St. Cush. 189, 48 Am. D. 596 ; Rhoads v. C. 895 ; Twitchell li. C. 9 Pa 211, 212 ; Reg. 15 Pa. 272 ; P. v. Fisher, 14 Wend. 9, 28 V. Orbell, 6 Mod. 42 ; Rex v. Macarty, 2 Am. D. 501 ; C. v. Ridgway, 2 Ashm 247 ; East P. C. 823, 6 Mod. 301 ; s. c. nom. Rex a. Cope, 1 Stra. 144; Reg v. Com- Rex V. Mackarty, 2 Ld. Raym. 1 179 ; 2 pertz, 9 Q. B. 824 ; Mifflin v. C. 5 Watts & East P. C. 824 ; P. v. Stone, 9 Wend. 182 ; S. 461, 40 Am. D. 527 , C. v. Tibbetts, 2 P. V. Babcock, 7 Johns. 201, 5 Am. D. Mass. 536; Reg. v. Best, 6 Mod. 137, 185, 256; C. i>. Warren, 6 Mass. 72; Anderson 2 Ld. Raym. 1167, Holt, 151; Timberly B C. 5 Rand. 627, 16 Am. D. 776 ; S. v. v. Childe, 1 Sid. 68; Rex v. Armstrong, Burnham, 15 N. H. 396 ; S. v. Murphy, 6 1 Vent. 304 ; S. v. Buchanan, 5 Har. & J. Ala. 765, 41 Am. D. 79; C. v. Judd, 2 317, 9 Am. D. 534; Rex v. Worrall, Skm. Mass. 329 3 Am. D. 54 ; Lambert «. P. 7 108 ; Reg. v. Blacket, 7 Mod. 39 ; S. v. De Cow. 166, 9 Cow. 578 ; C. «. Hunt, 4 Met. Witt, 2 Hill, S. C. 282, 27 Am. D. 371. HI 131 38 Am D. 346; S. 0. Rowley, 12 Contra, S. v. Rickey, 4 Halst. 293, 300. Conn. 101 ; Sydserff v. Reg. 1 1 Q. B. 245, . « Vol. II. § 219-235. 12 Jur. 418 ; Rex v. Hilbers, 2 Chit. 163 ; 363 §' 593 THE ACT ESSENTIAL IN CRIME. [BOOK V. to state that the intent to injure many, or the public, is itself an element of wrong, which will aggravate the act, or even make indictable what would hot be otherwise. § 593. 1. ■Witchcraft, — an antiquated offence, is a species of conspiracy. " Of offenders of this nature there are said to be three kinds, — first, conjurers, who by force of certain magic words endeavor to raise the Devil, and compel him to execute their commands ; secondly, witches, who by w^y of friendly con- ference are said to bargain with an evil spirit to do what they desire of him ; thirdly, sorcerers or charmers, who, by the use of certain superstitious forms of words, or by means of images or other odd representations of persons or things, &c., are said to produce strange effects, above the ordinary course of nature. " ' This offence appears to have been misdemeanor at the common law; 2 but by 1 Jac. 1, c. 12, it was elevated to felony. ^ Belief in the existence of the thing called witchcraft having become obsolete, — 2. Falsely Pretending Witchcraft. — Later English legislation, not in force with us, abolished, the crime of real witchcraft and created another of falsely pretending to it.* 3. In this Country, — witchcraft is in effect no offence, because its existence is not believed. But if the opinion should again 1 1 Hawk. P. C. 6th ed. c. 3, § 1. divines cannot doubt, since the word of " Witchcraft seems to be the sitill of ap- God hath ordained that no witch shall plying the plastic spirit of the world unto live , nor lawyers in Scotland, seeing our some unlawful purpose, by means of a law ordains it to be punished with death." confederacy with evil spirits." Cotton Mackenzie was a humane writer, and evi- Mather's Wonders of the Invisible dently a humane judge. I quote a single World, Eng. ed. of 1862, p. 161. For sentence: "From the horridness of this interesting matter on witchcraft, see crime I do conclude that of all crimes it Smith's Case, 2 How. St. Tr. 1049 ; The requires the clearest relevancy and most Essex Witches' Case, 4 How. St. Tr. 817; convincing probation; and I condemn, The Suffolk Witches' Case, 6 How. St. . next to the witches themselves, those Tr. 647 ; The Devon Witches' Case, 8 cruel and too forward judges who burn How. St. Tr. 1017, The Trial of Witches, persona by thousands, as guilty of this before Sir Matthew Hale, bound up among crime," — stating various facts and con- other papers, with Jacob's Supp. to Hale sideratious from which it appears that P. C. And see 3 Inst. 43. The Scotch practically the accused persons, whatever Law of Witchcraft. — In Mackenrie's their merits or demerits, had little chance Criminal Law (2 Works, 84) there is an for escape, and every motive to seek death interesting title of " Witchcraft." Mac- through confession and condemnation kenzie is a standard writer, and his ex- rather than to live. p. 86. position of the subject, wherein the old ' Hawk, ut sup. § 2. But see 1 Hale Scotch law and ours seem quite harmo- P. C. 429. nious, is, at least, excellent holiday read- " 1 Hawk. P. C. 6th ed. c. 3, § 4. ing. He begins ; " That there are witches ' 1 East P. C. 5. 364 CHAP. XL. j PfiOTECTION TO INDIVIDUALS.. § 593 become general that spirits hold intercourse with mortals, and have such power over them as to render conspiracies between the embodied and disembodied to the injury of their victims practi- cable, no reason appears why such confederations would not be indictable by force of the common law. It might be difficult to seize and bring to punishment the rogues out of the flesh, yet this would furnish no reason why those in the flesh should escape. 4. The Principles of the Law, — we often see, adapt themselves to new manners and new opinions as they arise in the onward march of our race. But in the present instance, we discern in the rear an unsightly object which those principles paused to erect, then passed on, as an admonition to subsequent ages to beware of the blunders of an unthinking superstition. 365 §594 THE ACT ESSENTIAL IN CEIME. [book V. CHAPTER XLI. PROTECTION TO THE LOWER ANIMALS. Compare — with chapter on Cruelty'to Animals in Stat. Crimes. § 594. 1. Malicious Mischief, distinguished '■ — Malicious mis- chief 1 to personal property, wherein commonly and by the old rules the intent is to injure the owner,^ can be committed as well by a damage to an animal as to any other subject of ownership. Protection to the creature as a sensitive being is not the thing sought either under the malicious-mischief unwritten law or the statutes.^ As to the animals themselves, — 2. No Direct Protection. — Man has always held in subjection the animals below him, to be used or destroyed at will for his advantage or pleasure. The right to take their life, and to make property of them, included all other rights of theirs ; so that the common law recognizes as indictable no wrong, and punishes no act of cruelty, which they may suffer, however wanton or un- necessary.* Contrary to this, some, misinterpreting cases of mali- cious mischief to animals, and cases of public cruelty amounting to nuisance,^ and the like, have, therefore, deemed mere cruelty to animals punishable at the common law.^ But even — 1 Ante, § 568, 569. 2 Ante, § 298 ; Vol. IL § 996-998 ; Stat. Crimes, § 433-436. 3 Stat. Crimes, § 432, 437 ; Brown v. S. 26 Ohio St. 176 ; S. u. Rector, 34 Tex. 565 i Eeid v. S. 8 Tex, Ap. 430 ; Keg. v. Welch, I Q. B. D. 23, 13 Cox C. C. 121 ; Lott V. S. 9 Tex. Ap. 206 ; S. «. Linde, 54 Iowa, 139 ; Street v. S. 7 Tex. Ap, 5 ; S. V. Simpson, 73 N. C. 269 ; S. v. Hill, 79 N. C. 656 ; Shubrick v S. 2 S. C. 21 ; Gas- kill V. S. 56 Ind. 550; S. v. Butler, 65 N. C, 309 ; Thomas v. S. 30 Ark. 433 ; Oviatt v. S. 19 Ohio St. 573 ; Branch v. S. 41 Tex. 622 ; S. V. Heath, 41 Tex. 426 ; Hayworth V. S. 14 Ind. 590; S, v. Painter, 70 N. C. 70; C. V. Falvey, 108 Mass. 304; Kex v. 366 Mogg, 4 Car. & P. 363 ; Burgess v- S. 44 Ala. 190; Swartzbangh v. P. 85 111. 457; Caldwell o. S. 49 Ala. 34 ; Duncan v. S. 49 Missis. 331 ; Darnell v. S. 6 Tex. Ap. 482; S. 1-. Parker, 81 N. C. 548. And see Rex V. Buck, 1 Stra. 679. " It is an op- pression, &c., to cut or cause to be cut out the tongue of any tame beast, being alive, of an// other persons." Pulton de Pace, 104 a. Among lawful assemblies are those "at the baiting of a bull or bear." lb. 25 b. And see Ex parte Hill, 3 Car. & P. 225 and note. i ' See Stat. Crimes, § 1100, 1101. 6 Post, § 597. " Stage Horse Cases, 15 Abb. Pr. n. s. 51 ; Ross's Case, 3 City Hall Rec. 191. CHAP, XLI.j PROTECTION TO LOWER ANIMALS. § 597 § 595. 1. In Malicious Mischief, — there must be other malice than toward the animal, to make an injury to it indictable either by the common law or under the statutes. Equally under the old statutory and the unwritten law, no malice would suf&ce except against the owner ; and though the construction of some of the modern enactments is not quite so, there is nothing in the inter- pretation of any of them favoring the idea that mere cruelty to animals, as giving them pain, is a common-law oflEence.^ Now, — 2. Conclusive as to Cruelty. — This rule in malicious mischief to animals is conclusive as to cruelty to them. In the numerous cases wherein the indictment failed because, though malice was proved toward a cruelly abused animal, none appeared toward its owner, if the law had made the cruelty punishable there would have been convictions for it. For there were sufficient allega- tions therefor, and the prosecutor's misnaming the offence could have ma,de no difference.^ So that each one of the cases wlierein the nominally malicious-mischief indictment failed because no malice appeared against the animal's owner, is a direct adjudica- tion that cruelty to animals is not indictable at the common law. But — §596. 1. Collateral Effect. — A learned judge once observed that " cruelty to a domestic animal has in some cases been held to change what otherwise would have been a simple trespass into a criminal offence ; " ^ and from other judges have fallen words more or less approximating these in meaning.* Yet in the com- mon law itself, we fail to discover any widely extended doctrine like this, though perhaps cruelty to an animal may enter into the consideration of an act tending to corrupt the public morals,^ or the like. Moreover, — 2. Cruelty to Animals — is in modern times a statutory crime in England and generally in our States. And — § 597. Public Cruelty. — Quite consistently with these expo- 1 S. V. Pierce, 7 Ala. 728 ; S. v. Wilcox, Crimes, § 433-435 ; Vol. II. § 996, 997 , 3 Yerg. 278, 24 Am. D. 569 ; S. v. Jack- Reg. v. Tivey, 1 Car. & K. 704. son, 12 Ire. 329; Rex w. Austen, Russ. & '' Post, § 798, Critn. Pro. L § 416, Ry 490; S. V. Latham, 13 Ire. 33; Rex v. 417. Pearce, 1 Leach, 527, 2 East P. C. 1072; » Beardsley, C. J. in Kilpatrick v. P. 5 Rex V. Kean, 2 East P. C. 1073 ; S.c. nom. Denio, 277, 279. Rex 17. Hean, 1 Leach, 527, note; Ranger's * C v. Tilton, 8 Met. 232, 234. Case, 2 East P. C. 1074 ; Rex v. Shepherd, ^ Ante, § 495 et seq. 1 Leach, 539, 2 East P. C. 1073 ; Stat. 367 § 597 a THE ACT ESSENTIAL IN CRIME. [BOOK V. sitions, the cruel public beating of a cow or other animal in a street of a city is adjudged to be an indictable nuisance. " The gist of the offence," it was observed in a District of Columbia case, " was the public cruelty to the common nuisance, and it was not necessary for the United States to prove that the cow died of the beating." ^ The same was held, during slavery, of the beating of a slave in the streets of a city, in public view.^ § 597 a. Conspiracies against Animals. — We have seen that a conspiracy, though to do what is not in itself criminal, may be a crime.^ Not only is it such when directed against an individual,' but equally also when its aim is the disturbance of any public interest of a sort' within the care of the law.* • On which and other princi- ples of the law of conspiracy, plainly it would be punishable to conspire to do such cruelty to any part of the animate creation as would constitute a public, or even a private,^ nuisance. We have no decisions of the courts to this exact question ; but the reason-., ing, wherein the law consists, appears to be plain and conclusive. The contemplated end is, in the language of the books, " unlaw- ful," which, to repeat, suffices though it is not also indictable.^ Within this distinction would fall, on the indictable side, various cruel shooting-matches, not only in the nature of nuisaiice, as just said, but of gaming ' and of unlawful sport.^ So far, again, the steps of the argument are, in a general way, plain and con- clusive ; but into the particulars it is not proposed here to de- scend. Nor are these intimations meant to indicate absolutely the outer limits of the doctrine. Conspiracy is an offence of gradual growth in the law.^ Undoubtedly it has not yet reached its maturity, and precisely what it will be when it has no one can say. So that though dumb animals have no direct protection in our unwritten law of crime, they have much of what may be termed indirect. 1 U. S. V. Jackson, 4 Cranch C. C. 483 ; « Ante, § 592 ; Vol. II. § 171, 172, 175, P. V. Stakes, 1 Wheeler Crira. Cas. 111. 178. 2 tr. S. V. Cross, 4 Crancli C. C. 603. '' Stat. Crimes, § 847-851 ; Bishop Con. ' Ante, § 592. § 529, 533. < Ante, § 592 (2) ; Vol. II. § 181, 196- » For something of the distinction be- ^S-l. tween lawful and unlawful sports, see 1 ^ Ante, § 236. ' Euss. Crimes, 5th Eng. ed. 818-821. 9 Vol. II. § 176. 368 CHAP. XLII.j OUTLINES, § 599 BOOK yi. THE TECHNICAL DIVISIONS AND DISTINCTIONS WITH THEIE ATTENDANT DOCTEINES. CHAPTER XLII. OUTLINES OP DIVISIONS AND DISTINCTIONS. § 598. In this Chapter — will be given an outline to be filled up in the subsequent chapters of the present Book. As to the effect of all, — Technical Divisions of what is not Technical. — The law, equally in the criminal department and in the civil, is abstract justice reduced to practical forms, and limited and fashioned for human use. The abstract justice has no technicalities ; the practical consists of parts of the abstract separated from the mass and from one another, and made the groundwork for a legal system in some measure regulated by technical rules. In the present series of chapters we shall- consider the principal technical rules of the criminal law. In the main, as the reader will discover, they are devices, nearly all of them excellent ones, for giving practical shape to its abstract justice. In this technical way — § 599. 1. The Criminal Field — is variously divided. The heavi- est offences are called treason, those not quite so heavy yet not light are termed felony, and the lightest are misdemeanor, — three degrees varying with what is assumed to be the enormity of the guilt. These are divisions of the field in one direction. Across the field, at what for clearness we may term right angles to these, extend other divisions, depending on the proximity of the several participants in a crime to the thing done ; as, the one whose per- . sonal volition executes it, the one who stands by encouraging the other to do it, the one who advised or encouraged it yet is per- VOL. 1. — 24 369 § 600 , TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK TI. sonally absent at the doing, the one who after the thing is done helps the doers to escape justice, the one who takes a step toward the doing but fails to complete it, and so on of some others. Besides which, we have the divisions of criminal transactions into — 2. Specific Crimes. — Almost or absolutely of necessity, where the law, whether statutory or common, ordains its penalties, it must declare thdt a specified combination of evil act and intent shall be punished in a particular way, a specified other combination in another way, a third combination in a third way, and so on to the end. And what is thus a necessity with the law it does. And it terms each combination a specific crime. It usually, not always, gives to the crime a name ; as, larceny, mali- cious mischief, cheat, false pretences, or the like. But the wrong is equally a specific crime whether named or not. § 600. 1. Aggravations of Crimes. — In morals we look upon a crime as more or less heinous according to the circumstances of its commission. But in law there is in the strict sense no aggravation. If a man does the forbidden thing with the forbid- den intent, he incurs the legal guilt ; and he can be punished with only the law's penalty, though he does with it a thousand other things reprehensible in morals. Yet the law itself, some- times provides for an increase in the punishment .of one of its offences when aggravated by a specified thing added to it, — practically, therefore, creating a new crime. Thus, — 2. Homicides — were all, at an early period, punishable with death when committed under any of the circumstances which now make the killing either murder or manslaughter. If in a particular instance it was of " malice aforethought," which is now the distinguishing element of murder, it was worse in morals, not in law. Afterward the law adopted the rule of morals, by making the killing murder when done of " malice aforethought ; " while if it was without such malice, it waS' called ■ by the name of manslaughter ; punishing only murder with death, manslaughter less severely. Still, if the malice aforethought with which a murder was committed was " deliberately premeditated," it was in morals more aggravated, not in law. Of such a circumstance the law took no cognizance. At last, however, it has in most of our States taken this aggravation also into account, — punishing the murder capitally only when thus aggravated, and ordaining a 370 CHAP, XLII.] OUTLINES. § 602 milder punishment for simple murder, called murder in the second degree. Yet there remain aggravations, recognized in morals, of which the law even now takes no notice. Again, — § 601. Aggravations of Discretionary Punishment. — If, as is common in our legislation, and not unknown under the unwritten law, the punishment is discretionary with the tribunal, the con- _ siderations which aggravate an offence in morals may be taken into the account. The court or jury that fixes the ptanishment may then listen to the aggravating and mitigating facts, and place it where justice and sound policy for the particular instance dictate, yet neither more nor less nor otherwise than the law has limited and defined.^ But any aggravation which as a legal rule varies the punishment must be set out in the indictment ; ^ the others need not be, though sometimes in practice they are. Let us now proceed to consider — § 602. The Larger Technical Divisions : — 1. A Glimpse — of these has already been given.^ More par- ticularly, — 2. Differing Sorts and Magnitudes of Evil. — Natural reason and practical justice combine in pronouncing that indictable combina- tions of evil act and intent should not all be punished alike. For example, to subject to the, same penalty an angry tap on a man's cane and a deliberate murder of the man would be unjust; equally it would outrage justice to punish the unlicensed selling of a gill of whiskey in the same severe manner as a deep-laid treason. And the principle thus brought to view extends through the en- tire law of crime; So that — 3. Degrees of Crime. — We have three degrees of crime, — the highest being called Treason, the intermediate grade Felony, and the name of the lowest being Misdemeanor. And each of these three grades has its special rules, to be explained as we proceed. Not claiming that these rules are throughout the best possible to be devised, the author asks the reader to bear in mind that there is substantial reason, founded in natural justice, for a difference of some sort. In like manner, — 4. Degrees of Proximity to Act. — Drawing our lines across the legal field in what we have termed right angles to these, we dis- 1 Post, § 933, 934, 948, 949. ' Ante, § 599 (1). 2 Crim. Pro. I. § 77 et seq., 95 et seq. ; ri. § 562-589. 371 § 604 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. cover more or less substantial reason and abstract justice for distinguishing him who with his own hands does the wicked deed from the absent person whose speech had stimulated him thereto ; from the tender-hearted woman who had given him a morsel of bread and a cup of cold water to speed him in his flight from justice ; from the injured person who, on receiving compen- sation for the wrong, had promised not to institute a criminal prosecution therefor ; and from various others more or less di- rectly connected with the original offence. 5. , Let us draw — these distinctions a little more minutely be- fore proceeding, in chapters further on, to the yet minuter views of the several doctrines. Thus, — § 603. Treason — Felony — Misdemeanor — are, as just seen, the common law's three graded divisions of crime. The separate expositions of each, to be given further on, would not be made more lucid by further explanations here. Turning now to the already mentioned transverse lines across the legal field, — § 604. 1. Degrees of Proximity. — We have already seen some- thing of this matter.i The language of the law differs with the grade of crime of which we were speaking. Supposing it now to be felony, — 2. Principal of First Degree. — The man who with his own hands and will does the felonious act is termed in the law " Principal of the First Degree." 3. Principal of Second Degree. — One who, encouraging the doer, stands by, or near enough to give him personal aid should it be required, is termed "Principal of the Second Degree." But — 4. Not Distinguishable. — These two degrees of principal are mere formal distinctions, having no practical efPect in the law. Practically, he who stands by encouraging the deed of another is looked upon by the law as doing it ; the same as is the man who pulls the trigger of a gun, while the gun shoots, regarded as him- self shooting. , 5. Attempt. — If a man undertakes to do a thihg which in law is a crime, arid after proceeding a certain way in the doing is inter- rupted, or if his effort otherwise nliscarries, so that the intended crime is not committed, he is still indictable for what he does, under the name of " Attempt." The law does not punish him so 1 Ante, § 602 (4). 372 CHAP. XLII.J OUTLINES. § 605 heavily as though he had succeeded ; because, whatever his de- merit in the eye of morality, the public that prosecutes him has not suffered so deeply. 6. Accessory before. — Persuasion is one form of attempt. Therefore it is indictable to persuade or hire a person to commit a crime, especially of the heavier sort, though he declines to do it, or undertakes it and fails.i Yet if this person actually does what he is persuaded or hired to do, the act of tlie procurer ceases to be called an attempt, because it has become a success. If the thing is felony, the procurer is now termed an " Accessory before the Fact ; " or if it is treason or misdemeanor, his con- duct is still in its nature accessorial, though in the language of the law he is a principal. And there are misdemeanors so small that the law inflicts no punishment on the procurer.^ 7. Accessory after. — One harboring another who has com- mitted a crime of the heavier sort, to screen him from justice, incurs legal guilt. He is termed an " Accessory after the Fact." His guilt is less intense than that of him who stands by encour- aging the one who commits it ; and there are crimes of the degree of misdemeanor to which this sort of guilt does not attach. 8. Compounding, — or agreeing not to prosecute a crime, is a participation in it after the fact, of the same nature as last de- scribed, except that the guilt is less intense. And it is under- stood that there are offences of the lower sort, such that the compounding of them would not be indictable, while the active helping of the' offender to elude justice might be. 9. Misprision — is the lowest of these connected offences. It attaches only to treason and felony, not to misdemeanor. It is a criminal neglect, and consists either in not preventing the crime, or in forbearing to take steps to bring the perpetrator to justice.^ 10. In Treason and Misdemeanor, — we do not have in "terms the distinctions of principal in the first and second degrees, and of accessory before and after the fact, but under other names we have the substance of the things meant thereby, except in mis- demeanors too small for them. § 605. 1. In Felony, — not only the principal in the first or second degree is a felon, but so also are the accessories both 1 Post, § 767-768 d. » Post, § 716-722. 2 Post, § 688. 373 § 606 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. Ibefore and after. The attempt to commit a felony, the compound- ing of it, and the misprision of it are severally misdemeanor. 2. In Treason, — the instigator, who in felony would be an accessory before the fact, is a traitor equally with the actual doer. The receiver of the traitor, corresponding to the accessory after the fact in felony, is also a traitor according to the English law as it stood when our original colonies were settled. But according to what is believed to be the present doctrine with us, he is a felon. Compounding treason, and misprision of treason, are severally misdemeanor. 3. In Misdemeanor, — such connected offences as the law recog- nizes are severally misdemeanor. § 606. The Remaining Chapters — of this Book will Conduct the foregoing outline into minuter details. 374 CHAP. XLIII.] TREASON, FELONY, AND MISDEMEANOR. § 609 CHAPTER XLIII. THE DIVISION OP CRIMES INTO TREASON, FELONY, AND MISDE- MEANOR. § 607. Introduction. 608-610. Preliminaries. 611-613. Treason. 614-622. Felony. 623-625. Misdemeanor. § 607. How Chapter divided. — We shall consider this question as to, I. Some Preliminaries ; II. Treason ; III. Felony ; IV. Mis- demeanor. I. Some Preliminaries. § 608. An Old Division of Crime, — now to be Considered, is into treason, felony, and misdemeanor. As we saw in the last chapter, though this division is technical, justice requires some distinction to be made between the heavier and lighter offences. Practical convenience demands it also. And the law having made it, an understanding of it is indispensable to the acquisition of a knowledge of the criminal-law system. So that — § 609. Importance of this Division. — Though this division is technical, it is practically one of this most important in our law. In other pages of the present work, and of the other volumes of this Criminal-law Series, the reader will see numerous instances in which questions the most grave turn on this division. Let us note some of them. A man may be guilty of a misprision of felony, but not of a misprision of misdemeanor.' In misde- meanor or treason, one may commit the crime of a principal by procuring another to do the act in his absence ; but in felony such a procurer is only an accessory before the fact.^ A person against whose property a misdemeanor has been committed may immedi- ately sue the offender ; but when the wrongful act is felony, he 1 Post, § 717. ^ Post, § 673, 675, 681, 682, 685. 375 8 613 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. must by the better opinion wait until he has set on foot a criminal prosecution.! These illustrations might be further multiplied; and on the completed line of them uncertainties and contradic- tions of doctrine would appear, more than on any other in the . entire criminal field. § 610. statutes — in considerable numbers have, in our States generally, come to the aid of the uncertain or unsatisfactory un- written law of the subject. But some of them are in terms to be not much more definite, or more practically convenient, than was the law they were introduced to expound or supersede. II. Treason. § 611. 1. English Treasons. — When our ancestors brought the common law from England, treasons were numerous there. And they were divided into high and petit. But what is now meant by the single word " treason " is high treason. 2. Petit Treason. — By the ancient common law, there were several forms of petit treason, which, by 25 Edw. 3, stat. 5, c. 2, were reduced to three. They were the killing, by a servant, of his master , the killing, by a wife, of her husband ; and the kill- ing of a prelate by an ecclesiastic owing him obedience.'^ In 1828, these petit treasons were abolished.^ 8. vrith us, — treason is reduced to a single form of the offence which in England was termed high treason.* Petit treason is in this country unknown. § 612. 1. Is also Felony. — In the words of East, who follows Hale,^ "all treason is felony, though it be something more."^ Consequently, — 2. Treason reduced to Felony. — An offence which on the settle- ment of this country was in England treason, is here, when the traitorous quality is taken from it, felony. § 613. Follows what Rules. — Since, therefore, treason is com- posed of felony and the aggravation which makes it treason, we might suppose it would follow rather the rules of felony than of 1 Ante, § 264 et seq. vision is contiuued by 24 & 25 Vict. o. 2 1 Hawk. P. C. Curw. ed. p. 105. 100, § 8. 8 By 9 Geo. 4, .0. 31, § 2, providing ■• Ante, § 456. that " every offence v^hich before the '' 1 Hale P. C. 497. commencement of this act would have " 1 East P. C. 334, 336 ; 1 Hawk. P. C. amounted tj petit treason shall be Curw. ed. p. 71,§2; 4 Bl. Com. 94,95. deemed to be murder only." This pro- And see Co. Lit. 391 a. 376 CHAP. XLIII.] TEEASOK, FELONY, AND MISDEMEANOR. § 615 misdemeanor. But we shall see further on that it more resem- bles misdemeanor than felony.i III. Felony. § 614. The Common-Law Doctrine — of felony is in some par- ticulars difficult, but mainly it is plain. Some of the statutes passed to remove obscurities have created others of their own. § 615. 1. Defined, — .Felony is any offence which by the statutes or by the common law is punishable with death, or to which the old English law attached the total forfeiture of lands or goods or both, or which a statute expressly declares to be such.^ As to the — 2. Forfeiture Test. — This test appears to have been the original one to distinguish felony from misdemeanor. To quote from a painstaking writer : ^ " The word ' felon ' is (according to the best opinions) derived from two northern words,^ fee which signifies fief, feud, or beneficiary estate, and Ion, which signifies price or value ; and the word ' felony' imports rather the feudal forfeiture, or act by which an estate is forfeited or escheats to the lord of the fee, than the capital punishment to which lay or unlearned offend- ers were formally liable in all cases of felony." And in illustra- tion of this he mentions suicide, and homicide by mis^idventure or in self-defence, both of which were felonies because followed by forfeiture, though there could be no punishment of death for the former, and there was none for the latter. Still he well adds that — 3. Punishable by Death. — " Though this is the proper defini- tion of felony, yet this term has been so generally connected with the idea of capital punishment that . . . whenever a stat- ute made any new offence a felony, the law implied that it should be punished with death . by hanging, as well as forfeiture, un- less the offender prayed the benefit of clergy." * Hence we have the converse of this proposition, that a statute providing \ 1 Post, § 681-684. 181, 9 Car. & P. 429 ; Whitaker v. Wis- 2 See and compare, 1 Gab. Crim. Law, bey, 9 Eng. L. &"Eq. 457 ; U. S. v. Jacoby, 15, 16; 1 Hawk. P. C Curw. ed. p. 71- 12 Blatch. 491; U. S. v. Cross,- 1 McAr. 73 , Co. Lit. 391 a. See also 4 Bl. Com. 149. 94, 95 ; Gray u. Reg. 6 Ir. Law Rep. 482, ■ ' 1 Gab. Crim. Law, 15. 502 ; Adams v. Barrett, 5 Ga. 404 ; Fox- * Spelman Glos. tit. Felon; 4 Bl. Com. ley's Case, 5 Co. 109 « ; Finch's Case, 6 94, 95. Co. 63, 68, Reg. v. Whitehead, 2 Moody, ^ 1 Gab. Crim. Law, 16. 377 § 617 a TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. the death penalty for an offence makes it by construction felony.^ Now, — § 616. 1. Under our Common Law, — forfeitures and corruptions of blood consequent upon crimes are almost^ unknown ; ^ yet in nearly all the States there are felonies, recognized as distinct grades of crime derived from the unwritten law of England.* The punishment in this country is neitlier always nor usually death, and the same is now true also in the mother country. In both, therefore, the term "felony," at the present day, simply denotes "the degree or class of crime committed."* And the former tests to determine whether a thing is felony or not have nearly lost their practical significance. Consequently, — 2. How determine Felony. — Where no statute has defined felony, we look into the books of the common law and see what was felony and what was not under the older laws of England. And though we have lost the old tests, we hold that to be felony which was such when they were operative. For, with us, if the punishment of a capital felony is reduced by statute to imprison- ment, it does not cease to be felony.^ Hence, — § 617. 1. The General Rule — with us is, that what is felony under the English common law is such also under ours. But there may be exceptions,^ founded on special reasons. Also we have seen ^ that if what is treason at the common law is cut off from being such by a constitutional or legislative provision, it will then be felony. Of course, therefore, — 2. statutory Offence. — If a statute creates a non-capital of- fence, not declaring it to be felony, the law will give it the lower grade of misdemeanor.^ § 617 a. Under the United States Laws, — though there are no common-law crimes,i» and no national statute has defined what shall be felony, still by Qonstruction " there are felonies. Thus, the Constitution, in the fugitives from justice clause,^ mentions 1 Post, § 622 (2). 6 s. „. Dewer, 65 N. C. 572. See post, ' See Wooldridge v. Lucas, 7 B. Monr. § 621. ''^- ' C. V. Newell, 7 Mass. 245 ; A. ». B. ' Ante, § 273 (2) ; post, § 970. R. M. Charl. 228, 232, 234, note. And see * "The rule once fixed must remain C. v. Lester, 2 Va. Cas. 198. until altered by the legislature." Lord » Ante, § 612. Campbell in Reg. v. Gray, 3 Crawf. & » S. k. Hill, 91 N. C. 561. Dix C. C. 238, 343. And see ante, § 275. '0 Ante, § 198-202. * 1 Russ. Crimes, 3d Eng. ed. 44. U Ante, § 200. ' 378 12 Const. U. S. art. 4, § 2. CHAP. XLIII.] TREASON, FELONY, AND MISDEMEANOR. § 618 " felony " among the offences for which a State must surrender the fugitive to another State ; but this is State felony, not na- tional.^ In the section defining the powers of Congress, there is a clause authorizing it to provide a punishment for "felonies committed on the high seas ; " ^ and these are national felonies. Yet under the law of England none of the maritime crimes were termed felony .^ Possibly this may be among the reasons for giv- ing Congress express power to define felonies on the high seas and being silent as to those on the land. In the national legislation we have a few mentions of felony ; as, where it gives consular jurisdiction over " offences against the public peace amounting to felony under the laws of the United States," * where it declares that officers attempting certain compromises " shall be deemed guilty of a felony," ^ and where it makes one doing certain acts toward reducing another to slavery " guilty of a felony." ® No one will question, therefore, that a statute defining land felonies would be constitutional.'^ And Story well deems that a resort may be had to the common law to determine what are United States felonies.^ So evidently deems Congress also ; for among other things, it declares a punishment for " accessories," ^ a teirm legally applicable only in felony.^" From which and other reasons, on a question not hitherto settled by the Supreme Court of the United States, we derive the conclusion that when an act of Congress makes punishable a crime which under the com- mon law is felony, a foHiori when directly or by necessary im- plication it declares a thing to be felony," it is felony ; but where the national statute, the same as a State statute,'^ creates an original non-capital offence, and is silent as to its grade, it is misdemeanor.^^ § 618. Statutes regulating the Question: — Death or Imprisonment. — In a considerable number of our States, statutes have defined felonies to be all offences which are 1 Kentucky v. Dennison, 24 How. IJ. S. " For example, R. S. of TJ. S. § 5533- 66, 99; Ex parte Eeggel, 114 U. S. 642. 5535. 2 Const. U. S. art. 1, § 8. " Post, § 622. 8 Story Const. § 1162. ^ Ante, § 617 (2). * E S of U S § 4090 " U. S. V. Falkenhainer, 21 Fed. Rep. 6 Stat."l874,'c,'391, § 19. 624; U. S. v. Wynn, 9 Fed. Rep. 886. 6 Stat 1874 c. 464. But see U. S. v. Shepherd, 1 Hughes ' U. S. V. Staats, 8 How. U. S. 41. C. C. 520. And see Brnguier v. V. b. 8 Story Const. § 1158. 1 'Oak- 5. ' Post, § 622 (2). 379 § 621 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. punishable either by death, or by imprisonment in the State prison.' In minor, particulars these statutes differ. § 619. Discretionary. — If by the statutory terms the court or jury is at liberty to inflict some milder punishment instead of im- prisonment or death, the offence is still felony ; it suffices that the heavier punishment may be imposed.^ And in New York ifr was by the majority of the court adjudged that the case is not different though, by reason of immature age, the particular de- fendant is by law subject only to a milder penalty.^ § 620. Minor Felonies. — There may be a common-law felony punishable neither by death nor by imprisonment in the State prison.* What effect has this sort of statute upon it ? By a general rule of interpretation, a statute without negative words does not abrogate the prior law, but both stand together.^ On this sound principle, the Michigan Court held that common-law felonies, pun- ishable less severely than the statutory standard, are not reduced to misdemeanor by this provision.^ The same was said also in New York ; ^ but later the authorities may perhaps be different,* and there have been changes in the statutes.^ And special terms in a statute may require an interpretation contrary to what we have thus seen to be the better general doctrine. It is so in some of the States, or the ordinary words are. so construed.'" § 621. 1. Vermont. — In a Vermont case, we have intimations that common-law felony is there unknown, things indictable being simply crimes or misdemeanors.'' Yet other cases,'^ and considerations not mentioned in this one, lead rather to the infer- ence that the question there is much as in the States just men- tioned, where capital and State-prison offences are felonies. Even — ' Weinzorpflin v. S. 7 Blackf. 186, 188 ; » P. w. Park, 41 N. Y. 21. Wilson V. S. 1 Wis. 184 ; S. v. Smith, 8 « Post, § 679, 935. Blackf. 489 ; P. a. Brigham, 2 Mich. 550; 6 gtat. Crimes, § 154 et seq. Randall «. C. 24 Grat. 644 ; Nichols v. S. 6 Drennan y. P. 10 Mich. 169. 35 Wis. 308; Biiford o. C. 14 B. Monr. ' Ward w. P. 3 Hill.N. Y.395; yet see 24, and the cases cited iu the next three Carpenter v. Nixon, 5 Hill, N. Y. 260. ""'ss. 8 sjiayy. p. 22N. Y. 317. SeeFassett '^ S. !>. Smith, 32 Me. 369, 54 Am. D. v. Smith, 23 N. Y. 252. 578; Johnston v. S. 7 Misso. 183; Ingram 3 p. „. Lyon, 99 N. Y. 210. V. S. 7 Misso. 293 ; P. y. Van Steenburgh, W Nathan v. S. 8 Misso. 631 ; Tharp v. 1 Par. Cr. 39; P. w. War, 20 Cal. 117 ; S. C. 3 Met. Ky. 411 ; P. v. War, 20 Cal. 117. 0. Mayberry, 48 Me. 218; Chandler v. " S. o. Scott, 24 Vt. 1 27 ; R. S. of 1839, Johnson, 39 Ga. 85 ; Smith y. S. 33 Me. c. 102. 48, 54 Am. D. 607. Contra in Illinois, '^ g. „, -Wheeler, 3 Vt. 344, 347, 23 Am, Lamkin v. P. 94 111. 501. D. 212. 380 CHAP. XLIII.] TREASON, PKLONT, AND MISDEMEANOR. § 622 2. In Louisiana, — whose jurisprudence is , not purely of the common law, the distinction of felony and misdemeanor prevails.^ 3. In South Carolina, — the Act of 1801 made forgery a felony ; that of 1845 changed the punishment from death to whipping, imprisonment, and a fine ; and the court held that forgery was still, according to the Act of 1801, a felony .^ 4. In New Jersey, — the Code ignores the distinction of felony and misdemeanor, substituting distinctions of its own.^ 5. Some Other States — appear to have special provisions on this subject.* But a continuation of this sort of specification is needless, the reader being presumed to have before him his own statutes and to refer to them. § 622. 1. What Words create Felony. — Only the express words of a statute or their necessary implication will render an offence felony.* For it is more gravely punishable than misdemeanor, therefore the statutory terms should be strictly construed for the protection of the accused.^ But — 2. Sufficient. — If a statute makes the penalty for its violation death by hanging ; ' or provides for the punishment of accessories after the fact, there being in law none in misdemeanor ; ^ or de- clares that one doing the forbidden thing " shall be deemed to have feloniously committed such act ; " ^ the effect will be to create a felony.'" 3. Not Sufficient. — " But an offence shall never be made a felony by any doubtful or ambiguous words ; as, when an act is prohibited under pain 'of forfeiting all 'that a man has,' or 'of forfeiting body and goods,' or ' of being at the king's will for body and lands and goods ; ' as such words will only make the offence a high misdemeanor." " So, where the provision was that one as- 1 S. V. Rohfrischt, 12 La. An. 382 ; S. '' 1 Hale P. C. 703 ; 3 Inst. 91; 1 Hawk. V. Blackman, 35 La. An. 483 ; S. v. Sales, P. C. Curw. ed. p. 72, § 5. 30 La. An. 916. ' ^- ■'• Macomber, 3 Mass. 254; C. a. 2 S D Rowe 8 Rich. 17. And see Barlow, 4 Mass. 439. And see Hughes u. ante, § 616. S. 12 Ala. 458. 8 Jackson V. S. 20 Vroom, 252, 255. » Rex v. Johnson, 3 M. & S. 539, 556. < Bird « S 16 Tex. Ap. 528; P. v. l» See also Rex v. Wyer, 1 Leach, 480, Cornell, 16 Cal. 187. 2 East P. C. 753, 2 T. R. 77 I Rex v. B 1 Hawk. P. C. Curw. ed. p. 72, § 5, Solomons, 1 Moody, 292 ; Rex v. Cale, 6; ante, §617 a. And see U. S. «. Lancas-, 1 Moody, 11. ter, 2 McLean, 431 ; C. v. Macomber, 3 " 1 Gab. Crim. Law, 17 ; 1 Hawk. P. Mass. 254 ; C. v. Barlow, 4 Mass. 439; C. C. Curw. ed. p. 72, § 6 ; Co. Lit. 391 a ; V. Simpson, 9 Met. 138. Bac. Abr. Statute, i. 1. 8 Stat. Crimes, § 199. 381 8 625 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. saulting another as pointed out should " be deemed a felonious assaulter," and punished by imprisonment, it was lield not to cre- ate a felony ; for " the word ' felonious ' may be applied to the disposition of the mind of the offender, as aggravating a misde- meanor, and not as descriptive of the offence." ^ IV. Misdemeanor. § 623. 1. Definea. — All crime less than felony is misde- meanor.^ 2. " Crime " — is defined in an earlier chapter .^ It includes everything which the criminal law makes punishable.* § 624. 1. The Word ■ Misdemeanor," — though properly defined as above, is sometimes loosely employed in meanings ,less broad,^ even as denoting only a civil trespass.^ But it is otherwise in what Russell ' terms " its usual acceptation ; " according to which, he says that a misdemeanor is " any crime less than felony. And the word is generally used in contradistinction to felony ; misde- meanors comprehending all indictable offences which do not amount to felony, as perjury, battery, libels, conspiracies, and public nuisances." * 2. " Misprision," — which, as employed in these volumes and commonly in law writings, means a neglect to prevent a felony or treason being perpetrated, or to bring to justice one who has committed either,^ is, "in its larger sense," continues Russell, " used to signify every considerable misdemeanor which has not a certain name given to it in the law ; and it js said that a mispris- ion is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only, if the king please." i" But for general pur- poses he defines it, on the authority of Hawkins," much as the author does in these volumes. § 625. 1. The Word "Trespass" — sometimes, in the plder law 1 C. ti. Barlow, 4 Mass. 439. See Mead ^ Oshkosh w. Schwartz, 55 Wis. 483. V. Boston, 3 Gush. 404. 6 g. i). Mann, 21 Wis. 692. 2 1 Russ Crimes, 3d Eng. ed. 45 ; C. '1 Russ. Crimes, 3d Eng. ed. 45. V. Callaghan, 2 Va. Cas. 460 ; Rex v. 8 Referring to 4 Bl. Com. 5 ; 3 Burn VowoU, 2 B. & Ad. 75. Just. tit. Misdemeanor. 3 Ante, § 32. 9 Ante, § 604 (9) ; post, § 717. * In re Bergin, 31 Wis. 383 ; Van i'' Referring to 1 Hawk. c. 20, § 2, and Meter v. P. 60 111. 168 ; S. v. Linthicum, c. 59, § 1, 2 ; Burn Just. tit. Felony. ' 68 Mo. 66, 11 1 Hawk. P. C. c. 59, § 5. 382 CHAP. XLIlI.] TREASON, FELONY, AND MISliEMEANOB. 625 writings, and occasionally in those of recent date,^ means sub- stantially misdemeanor, in distinction from felony ; ^ or, more es- pecially, a misdemeanor of the less aggravated kind, or embracing some such element as is signified by the same term in the civil department. Thus it is used in various places by Blackstone ; as, — 2. Escape. — This standard writer, speaking of officers who voluntarily suffer prisoners to escape, says : " It is generally agreed that sudh escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass."^ But — 3. Better Use. — Since there are civil trespasses, and this is our only word to designate them, the precision of legal language requires the limiting of its use to the civil wrong, and employing instead of it the term '" misdemeanor " when treating of the criminal law. 1 See, for a modern illustration, 1 Russ. Crimes, 3d Eng. ed. 675, where it is said that though rape was anciently a felony, the statute of Westm. 1, c. 13, " reduced the offence to a trespass, and subjected the party to two years' impris- onment, and a fine at the king's will." The word " trespass " is also used in the same sense by Parsons, C. J. in C. o. Newell, 7 Mass. 245, 248. So also by the court in C. o. Miller, 2 Ashra. 61, 63; Chanet v. Parker, 1 Tread. 333. And see Wortham «. C. 5 Rand. 669 ; S. o. Hurt, 7 Misso. 321 ; U. S. o. Flanakin, Hemp. 30 ; Gabe v. S. 1 Eng. 540. 2 For example, in Reg. o. Tracy, 6 Mod. 30, 32, Holt, C. J. said : " A fact which would make one accessory in fel- ony, in treason and in trespass makes him a principal." In Rex v. Westbeer, 1 Leach, 12, 14, we are told that the question arose " whether the prisoner should be dis- charged, or receive judgment as for a trespass." In an argument in favor of the latter course, " it was answered that the prisoner would, in this case, lose many advantages to which, if he were indicted for the misdemeanor, he would in law be entitled." Examples without end might be added. The reader may look into Rex v. Joyner, J. Kel. 29; Rex v. Newton, 2 Lev. Ill ; 2 Hawk- P. C. Curw. ed. c. 8, § 63 ; 2 East P. C. 743 ; or he may open at random the old books of criminal law, and the collections of ancient stat- utes. , 8 4 Bl. Com. 130. See also 4 Bl. Com. 36. 383 § 627 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. CHAPTER XLIV. PROXIMITY OF THE OFFENDER TO THE COMPLETED CRIME. § 628. Nearness of Participant. — It is in the last chapter ex- plained that the law makes three degrees of crime, as to its enor- mity. We shall now, in a series of chapters, consider how the law regards crime as to the nearness of the several partici- pants in its commission. For example, one man may undertake a crime but not accomplish what he meant, a second may excite a third to go elsewhere and do it, the third may stand by and encourage a fourth, and the fourth may with his own hands ac- complish what all intended should be done. And we say that these four persons, all of whom incurred legal guilt, stand in different degrees of proximity to the completed crime. Does the law treat them alike ? This is what is to be explained in the chapters on which we are entering. But — § 627. Order of Exposition. — Before taking up the inquiries thus indicated, we shall in the next chapter examine the general doctrine of the combination of persons in crime, to ascertain what participation therein will render one in any form crimi- nally liable for what is done. The transition will then be easy, in subsequent chapters, to the degree and nature of his guilt. Further on, we shall look into compounding and misprision, wherein one, without combining with another, still incurs a guilt in respect of the other's wrong-doing. Afterward, under the title Attempt, we shall consider how, where the element of combination is wanting or immaterial, one who begins what he does not finish becomes guilty of a part of an offence, which neither he nor any other person fully commits. 384 CHAP. XLV.] COMBINATIONS OF PERSONS IN CRIME. § 629 CHAPTER XLV. COMBINATIONS OP PERSONS IN CRIME. § 628. Introduction. 629-633. Doctrine stated and illustrated. 633 a-642. Applied in Varying Circumstances. 643. Doctrine of Chapter restated. § 628. How divided. — This chapter will be divided into, I. The Doctrine stated and illustrated ; II. Applications of the Doctrine in Varying Circumstances. I. The Doctrine stated and illustrated. § 629. 1. The Principle. — If one employs another to do a thing, we commend or blame him precisely as though it were done with his own hands. And we commend or blame the other, if his will concurred, the same as though he had pro- ceeded self-moved. Or if two act together in the doing, it is the same as to each. Since a combined act and evil intent constitute crime,' and since a thing which one does through the agency of another is the same in law as though performed by his personal volition, ^ one who contributes his will to a crime, by whomsoever the physical act of wrong is done, is guilty of the crime. Hence, — 2. Doctrine defined. — When two or more persons unite to accomplish a criminal object, whether through the physical volition of one, or of all, proceeding severally or collectively, each individual whose will contributes to the wrong-doing is in law responsible for the whole, the same as though performed by himself alone. ^ Descending to particulars, — 1 Ante, § 204-208 a, v. S. 4 Tex. Ap. 492 ; Spies v. P. 122 111. 2 Broom Leg. Max. 2d ed. 643. 1, 3 Am. St. 320, 321 ; Stephens ». S. 42 » TJ. S. u. Snyder, 3 McCrary, 377 ; S. Ohio St. 150 ; Amos v. S. 83 Ala. 1,- 3 V. Johnson, 7 Or. 210, Foster v. S. 45 Am. St. 682; Dumas v. S. 62 Ga. 58; Ark. 361 ; Hanna v. P. 86 111. 243 , U. S. Thomas v. S. 43 Ark. 149. V. Bayer, 13 Bankr. Reg. 400, 402; Berry \oL. I. — 25 ^ 385 §633 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK TI. § 630. Joint — Several. — If persons combining in intent per- form a criminal act jointly, the guilt of each is the same as if he had done it alone ;i and it is the same if, the act being divided into parts, each proceeds with his part unaided. ^ And — § 631. Acting by Agent. — Since in law an act through an agent is the same as in person, ^ one who procures another to do a criminal thing incurs the same guilt as though he did it him- self.* Nor is his guilt the less if the agent proceeds equally from his own desires or on his own account.^ Finally, — § 632. 1. Will contributing. — This reasoning conducts us to the conclusion that every person whose corrupt intent contrib- utes to a criminal act, in a degree sufficient for the law's notice,^ is guilty of the whole crime.' Thus, — 2. Present and Countenancing — (Riot — Prize-fight). — All who are present at a riot, prize-fight, or any other crime, if lending it countenance and encouragement, and especially if ready to help should necessity require,^ are liable as principal actors.^ But — § 638. 1. Presence alone — Knowledge — Approbation. — A mere presence, i*> or presence combined with a refusal to inter- 1 p. V. Mather, 4 Wend. 229, 259, 21 Am. D. 122; Reg. v. Haines, 2 Car. & K. 368, Reg. V. Mazeau, 9 Car. & P. 676. 2 Rex V. Lockett, 7 Car. & P. 300; Reg. V. Nickless, 8 Car. & P. 757 ; Keg. V. Whittaker, \ Den. C. C. 310; Reg. v. Hnrse, 2 Moody & R. 360 ; Rex v. Stand- ley, Russ. & Ry. 305 ; Reg. v. Gerrish, 2 Moody & R. 219; Rex v. Passey, 7 Car. & P. 282 ; Reg. v. Rogers, 2 Moody, 85, 2 Lewin, 119, 297; Reg. v. Kelly, 2 Cox C. C. 171 ; Smith v. P. 1 Colo. 121. 3 Broom Leg. Max. 2d ed. 643. * U. S. V. Morrow, 4 Wash. C. C 733 ; Reg. V. Williams, Car. & M. 259 , Schmidt V. S. 14 Mo. 137; Adams v. P. 1 Comst. 173; C. V. Stevens, 10 Mass. 181; C. i'. Nichols, 10 Met. 259, 43 Am. T>. 432; Rex V. Dyson, Russ. & Ry. 523; S. <]. Dow, 21 Vt. 484; C. .;. Hill, 11 Mass. 136. And see Ewing v. Thompson, 13 Mo. 132; Caldwell v. Sacra, Litt. Sel. Cas. 118, 12 Am. D. 285; Leggett v. Simmons, 7 Sm. & M. 348. 5 Rex V. Russell, 1 Moody, 356 ; Ross t>. C. 2B. Monr. 417. '"Ante, § 212 et seq. 386 '' Lord Mohun's Case, Holt, 479 ; 1 East P. C. 89 ; Rex v. Plummer, J. Kel. 109, 114, 118 ; Rex v. Whithorne, 3 Car. & P. 394 ; U. S. u. Jones, 3 Wash. C. C. 209; S. V. Heyward, 2 Nott & McC. 312, 10 Am. D. 604 ; Hewlett v. S. 5 Yerg. 144; Reg. v. Howell, 9 Car. & P. 437; Collins V. C. 3 S. & R. 220 ; S. v. Cald- well, 2 Tyler, 212; Reg. 6. Swindall, 2 Car. & K. 230 ; Reg. v. Harrife, Car. & M. 661, note; Green v. S. 13 Mo. 382; Reg. V. Young, 8 Car. & P. 644 ; Rex w. Sker- ritt, 2 Car. & P. 427 ; Rex v. Douglas, 7 Car. & P. 644. 8 Doan V. S. 26 Ind. 49.5. ' Rex V. Hunt, 1 Keny. 108 ; Rex '•. Perkins, 4 Car. & P. 537 ; Rex v. Billing- ham, 2 Car. & P. 234 ; Rex v, Murphy, 6 Car. & P. 103 ,' Rex v. Pursey, 6 Car. & P. 81 ; S. V. Straw, 33 Me. 554 ; Williams V. S. 9 Misso. 270; Reynolds v. C. 33 Grat. 834. And sep Reg. v. Young, 8 Car. & P. 644. " Kemp V. C. 80 Va. 443 ; Butler i-. C. 2 Duv. 435 ; S. V. Farr, 33 Iowa, 553 , S. V. Hardy, Dudley, S. C. 236 ; P. v. Wood- ward, 45 Cal. 203 ; P. V. Ah Ping, 27 Cal. CHAP. XLV.] COMBINATIONS OP PERSONS IN CRIME. § 633 a fere^ or with concealing the fact,^ or a mere knowledge that a crime is about to be committed,^ or a mental approbation of what is done,* while the will contributes nothing to the doing, will not create guilt. In matter of evidence, such facts have a greater or less weight according to the circumstances ; but, in law, there must be something a littlp further ; ^ as, some word or act;^ or, in the language of Cockburn, C. J., spoken indeed to a case where there was no presence, one to be a party in an- other's crime "must incite, -or procure, or encourage the act."" In illustration of what is sufficient, — 2. False Pretences. — If one of several persons utters a false pretence in the presence of the others who concur in it, all are guilty. ^ And — 3. Homicide. — If several conspire to seize and run away with a vessel, and death comes to a person opposing, all who are present abetting are punishable criminally for the murder.^ And where one kills while others are present ready to assist if necessary, all are guilty, i" So, — 4. Burglary. — Where one watches while his confederate robs a house, both are guilty." II. Applications of the Doctrine in Varying Circumstances. § 633 a. 1. The Foregoing Illustrations — sufficiently explain the doctrine, but its application is sometimes difficult. As to which, further views will be helpful. 2. Consequences not contemplated. — In an earlier chapter, ^^ 489; Reg. v. Coney, 8 Q. B D. 534, 15 C. v. Cooley, 6 Gray, 350. And see S. v. Cox C. C. 46 ; Jackson v. S. 20 Tex, Ap. Cockman, Winst. ii. 95 ; S. v. David, 4 190; U. S. V. Johnson, 26 Fed. Rep. 682 ; Jones, N. C. 353 ; Huling o. S. 17 Ohio Vowells V. C. 83 Ky, 193 ; S. v. Maloy, 44 St. 583 ; Cabbell v. S. 46 Ala. 195. Iowa, 104 ; Ward v. C. 14 Bush, 233. ' Reg. v. Taylor, Law Rep. 2 C. C. 147, 1 Golden v. S. 18 Tex. Ap. 637. 149, 13 Cox C. C. 68, 12 Eng. Rep. 636, 2 Lowery v. S. 72 Ga. 649. . and Moak's note. Compare this case with 8 Tullis V. S. 41 Tex. 598 ; Melton v. S. Vol. II. § 311. 43 Ark. 367. ^ Young v. Rex, 3 T. R. 98. And see * Clem V. S. 33 Ind. 418 ; Plummer i\ Reg. v. Tisdale, 20 U. C. Q. B. 272. C. 1 Bush., 76. And see Thompson ti. C. ' U. S. v. Ross, 1 Gallis. 624. And see 1 Met. Ky. 13 ; Ring v. S. 42 Tex. 282 ; Dumas v. S. 62 "6a. 58 ; Jordan v. S. 82 P. V. Ah Ping, 27 Cal. 489 ; Smith v. S. Ala. 1. 37 Ala. 472 ; Blue v. Christ, 4 Bradw. i" Amos v. S. 83 Ala. 1, 3 Am. St. 682. 351. n Thomas v. S. 43 Ark. 149. And see 6 Burrell i>. S. 18 Tex. 713. And see Stephens v. S. 42 Ohio St. 150. U. S. V. Poage, 6 McLean, 89. ^ Ante, § 323-336. 6 Reg. V. Atkinson, 11 Cox C. C. 330 ; , 387 § 634 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. we saw how the law treats a person whose ill-intended act has resulted in a wrong he did not mean. Not only the same doctrine applies to the acts of persons combining ; but though the books furnish little judicial reasoning on the question, evidently the doctrine has a special application in this class of cases. Thus, — 3. In Reason, — if one combines with others to do a particular wrong, or instigates them thereto while himself remaining away, he has the evil motive which justifies punishing him for any other resulting crime of a sort not requiring a specific intent. ^ Then if the person instigated, stimulated by the circumstances attending the attempt to commit the contemplated crime, does what the instigator did not purpose or anticipate, the latter, equally with the former, is guilty. His purpose was wicked, and he assisted in putting into action what wrought the result. Even in another view, he was careless, ^ and on this ground answerable for consequences not specifically meant. For example, — 4. Holding Possession by Force. — If several persons are with firearms holding a forcible possession of land claimed by others, conduct which we have already seen to be a crime, ^ all are guilty; of a murder committed by any one of them therein.* So, — 5. Invading Household. — If several conspire to invade a man's household, and go to it armed with deadly weapons to attack and beat him, whereupon one gets into difficulty with him and kills him, the rest are guilty also of the murder though they did not mean it.'' Again, — 6. Driving away. — If persons combine to drive employees from premises, and in carrying out the conspiracy one commits a murder, the rest, who did not intend it, are guilty.^ On the other hand, — § 634. 1. Lawfully together — Crime by One. — Since mere presence at a crime does not create guilt,' if while two or more are lawfully together one does a criminal thing, the others 1 Ante, § 204-207, 287, 302, 327, 330, other paragraphs of this section are Ham- 335. ilton I). P. 113 HI. 34, 55 Am. K. 396; 2 Ante, § 313-322. Stephens v. S. 42 Ohio St. 150; S. i'. 3 Ante, § 536. Mclntire, 66 Iowa, 339 ; Ritzman v.- P. * Westpn V. cm Pa. 251. 110 111. 362 ; Lamh v. P 96 111. 73 ; P. v. 5 Williams v. S. 81 Ala. 1, 60 Am. R. Leith, 52 Cal. 251 ; Jordan u. S. 79 Ala. 133. 9 ; Clay V. P. 86 111. 147 ; P. v. Foley, 59 6 S. V. McCahill, 72 Iowa, HI. Other Mich. 553 ; S. r. Allen, 47 Conn. 121. cases similar to this and those cited to the ' Ante, § 633 (1). 888 CHAP. XLV.] COMBINATIONS OF PERSONS IN CRIME. § 635 whose wills did not concur therein are not answerable. ^ But however lawful the original assembling, the after conduct may- satisfy a jury that all are guilty of whatever is done.^ Even — 2. Unlawfully together. — Though a coming together is unlaw- ful, and the assembled persons are actually perpetrating a crime, if one of his sole volition, quite outside of the main purpose, does a criminal thing in no way related to the mutually con- templated wrong (and in reason we should add, not stimulated by it or the assembling 3), he only is liable.* Thus, ^ 3. Robbery after Wounding. — If, in England, a gang of poachers attack the gamekeeper and leave him senseless, where- upon one returns and steals his money, only this one can be convicted of the robbery.'' So, — 4. Resisting Arrest. — Where two have committed a joint lar- ceny, if one of them wounds an officer who is attempting to arrest both, the other cannot be holden with him for the wounds ing unless they conspired, not only to steal, but to resist also with extreme violeipce any who might endeavor to apprehend them. 8 Again, — § 635. 1. Maiming to avoid Arrest. — If several, while com- mitting a felony, are alarmed and run different ways, whereupon one to prevent being taken maims a pursuer, the others do not incur also the guilt of mayhem.'^ And — 2. Assault ending in Mayhem. — It has been even held that where two Join in an assault, and one commits mayhem, the other is not liable for the latter offence unless he also intended to maim. 8 If mayhem required the specific intent to maim, which 1 J. Kel. 1X7 ; 1 East P. C. 351 ; Anony- Sumner, 1 9, 29 ; Rex v. Mellhone, 1 Crawf. mous, 6 Mod. 43; S. v. Stalcup, 1 Ire. 30, & Dix C. C. 156 ; Beg. v. Soley, 2 Salk. 35 Am. D. 732 ; TJ. S. o. Jones, 3 Wash. 594, 595 ; Anonymous, 6 Mod. 43 ; Rex C. C. 209, 223 ; Reg. v. Luck, 3 Fost. & v. Southern, Russ. & Ry. 444 ; Reg. v. F. 483 ; Hairston v. S. 54 Missis. 689, 28 Price, 8 Cox C. C. 96 ; Reg. v. Doddridge, Am. R. 392. And see Reg. r. Howell, 8 Cox C. C. 335 ; C. v. Campbell, 7 Allen, 9 Car, & P. 437. 541 ; Reg. r. Luck, 3 Fost. & F. 483 ; Ma- 2 Vol. n. § U50; S. V. St. Clair, 17 nier v. S. 6 Bax. 595; Mercersmith v. S. Iowa, 149. See also Kelly v. C. 1 Grant, 8 T»x. Ap. 211 ; S. v. Lucas, 55 Iowa, 321. Pa. 484 ; Brown v. S. 28 Ga, 199 ; Straw- And see Reg. v. Howell, 9 Car. & P. 437. hern v S. 37 Missis. 422. * Rex v. Hawkins, 3 Car. & P. 392. ' Ante, § 633 a (3). And see Sloan v. S. 9 Ind. 565. * Rex V. Hodgson, 1 Leach, 6; s. c. ^ Rex v. Collison, 4 Car. & P. 565. nom. Rex v. Hubson, 1 East P. C. 258 ; And see Reg. v. Howell, 9 Car. & P. 437. Rex V. Mastin, 6 Car. & P. 396 ; Rex v. ' Rex v. White, Russ. & Ry. 99. Colli.?on, 4 Car. & P. 565 ; Rex i'. Hawk- * S. v. Abgence, 4 Port. 397. And see ins, 3 Car. & P. 392 ; Rex v. Plummer, Frank v. S. 27 Ala. 37; Brennan v. P. 15 J. Kel. 109, 111, 113 ; V. S. v. Gibert, 2 111. 511 ; Thompson v. S. 25 Ala. 41. 389 § 637 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. evidently it does not, there would be some reason in this doc- trine ; otherwise, it is contrary both to just principle and to the common course of the authorities.^ 3. Homicide by One. — While two persons in a highway are riding rapidly, if one passes a third without harming him, then the other rides against his horse and it throws and kills him, only the latter commits manslaughter. ^ Yet a man who invites another to a place to be murdered by an accomplice is accessory to the homicide when committed.^ Again, — 4. Robbery by One. — Where the obtaining of goods on a false charge of sodomy ^ was by statute a different offence from rob- bery,^ and two combined to deprive in this way a third person of his goods, and while the two were jointly executing this plan one took them by force without the other's concurrence, he only was held to have committed robbery.^ But — § 636. Acts within Common Plan. — Since one may be guilty of a wrong he did not intend," not being of the special sort re- quiring a specific intent, if, when persons^ combine to do an unlawful thing of the former class, the act of one of them, pro- ceeding according to the common plan, terminates in a criminal result not meant, all are liable.^ Further as to which, — § 637. 1. Departures from Plan. — Views and illustrations already given in this sub-title show that one may so far de- part from the common plan as to take the responsibility exclu- sively upon himself. It is believed that the true rules for determining on which side of the line a particular case is to stand appear in the foregoing paragraphs. Some further in- stances are, — 1 Ante, § 633 a; post, § 636. Rex v. Keat, 5 Mod. 288, 292; Sir C. 2 Rex V. Mastin, 6 Car. & P. 396. Stanley's Case, J. Kel. 86 ; Rex v. Ed- ' Reg. V. Manning, 2 Car. & K. 887. meads, 3 Car. & P. 390 ; 1 East P. C. < See Vol. II. § 1172. 258; Reg. v. Tyler, 8 Car. & P. 616; Reg. * In a subsequent case, it was doubted v. Howell, 9 Car. & P. 437 , Brennau v. P. whether the statute — 7 Will 4 & 1 Vict. 15 111. 511 ; Thompson v. S. 25 Ala. 41 ; c. 87, § 3 — did so operate. ' Reg. v. Reg. v Bernard, 1 Fost. & F, 240 ; Reg. Stringer, 2 Moody, 261. v. Jackson, 7 Cox C. C. 357; Reg. v. " Reg. V. Henry, 9 Car. & P. 309, 2 Caton, 12 Cox C. C. 624, 10 Eng. Rep. Moody, 118. 506 ; Reg. w. Harrington, 5 Cox C. C. 231 ; ' Ante, § 313-336. Ferguson v. S. 32 Ga. 658 ; Reg v Salmon, 8 U. S. V. Ross, 1 Gallis. 624 ; Rex v. 6 Q. B. D. 79, 14 Cox C. C. 494; Scales c. Plummer, J. Kel. 109, 114, 118 ; U. S. v. S. 7 Tex Ap. 361 ; S. v. Maloy, 44 Iowa, Gibert, 2 Sumner, 19, 29 ; Mansell's Case, 104. But see Frank v. S. 27 Ala. 37 ; S. 2 Dy. 128 6, pi. 60 ; Rex v. Murphy, 6 Car. u. Absence, 4 Port. 397. & P. 103; Ashton's Case, 12 Mod. 256; 390 CHAP. XLV.J COMBINATIONS OF PERSONS IN CRIME. § 640 2. Homicide in suppressing Riot. — If those suppressing a riot accidentally kill an innocent third person, the rioters are not guilty of the homicide; for in no way did they concur in or encourage the act which caused death. ^ Or — 3. Killing Person opposing. — If several are committing a crime together, and one of them kills an ofi&cer or other person who opposes or attempts to arrest them, the rest are not necessarily, as we have seen,^ to be deemed participants in the homicide; but in various circumstances they are, although it was not their original design to take life.^ 4. Libel. — One who requests another to write a libel is re- sponsible for all, though the latter swells it beyond the matter contemplated.* 5. Homicide in Fighting. — Where two combine to fight a third with fists, if death accidentally results from a blow inflicted by one, the other also is answerable for the homicide. But if the one resorts to a deadly weapon without the other's knowledge or consent, he only is thus liable.^ §638. Changing Means to Agreed End — (Treason). — "If," in the words of Popham, C. J., "many do conspire to execute trea- son against the prince in one manner, and some of them do execute it in another manner, yet their act, though different in the manner, is the act of all them who conspire, by reason of the general malice of the intent. " ^ Thus, also, — § 639. Fear restraining — Rescue. — One present and aiding in the commencement of an assault with intent to rescue a prisoner, or doubtless in the commencement of any other offence, having contributed his will to the enterprise, does not cease to be guilty though his fears prevent him from going all lengths with his party.' § 640. Prompting to Crime. — Within a principle already stated,^ if one purposely excites-another to commit an offence, — as, if he 1 C. V. CampbeU, 7 AUen, 541. v. Phillips, 3 Pox C. 0. 225 ; S. v. Shel- 2 Ante, § 635. ledy. 8 Iowa, 477. 8 Ruloff V. P. 45 N. Y. 213, 11 Abb. « Blunt's Case, 1 How. St. Tr. 1409, Pr. N. 8. 245, 5 Lans. 261 ; Moody v. S. 6 1412. And see 1 East P. C. 98. Coldw 299 ' S- V. Morris, 3 Hawks, 388 ; Reg. .4 Reg. V. Cooper, 1 Cox C. C. 266. ! Posti § 709 et seq. ° Post, § 672 et seq. » Post, § 716 et seq. " Post, § 692 et seq. 395 § 648 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI, And in this and the succeeding chapters of the present Book, we assume that the will does thus contribute. § 648. 1. Two Degrees of Principals. — In felony, there two de- grees of principal offenders. 2. First Degree. — A principal of the first degree is one who does the act either in person or through an innocent agent.^ 3. Second Degree. — A principal of thei second degree is one who is present lending his countenance, encouragement, or other mental aid while another does the act.^ But — 4. Distinction Formal — (Origin — Indictment). — The distinc- tion between the two degrees is without practical effect.^ It ori- ginated in this way : by the ancient law, those only were principals who are now such in the first degree, persons present and abetting being accessories at the fact. When afterward the courts hfeld the latter to be principals, they termed them of the second degree.* And now an indictment ag~ainst one as principal of the first de- gree is sustained by proof of his being such of the second, and an indictment against one as principal of the second degree is supported by proof that he is of the first.^ The distinction is in all respects without a difference ; ^ and there is no practical reason for retaining it in expositions of the common law. Still, — 1 See ante, § 310 ; post, § 649, 651. Car. & M. 259 ; Rex v. Gray, 7 Car. & P. ' Williams v. S. 47 Ind 568, 574. 164 ; Rex v. Potts, Russ. & Ry. 353; Rex 8 Crim. Pro. II. § 3. v. Royce, 4 Bur. 2073 ; Rex v. Moore, I < 1 Russ. Crimes, 3d Eng. ed. 26; Leach, 314, 2 East P. C. 679 ; Dennis y. S. Griffith's Case, 1 Plow. 97, 98 ; Foster, 5 Pike, 230 , Fugate v. S. 2 Humph. 397 , 3-17. 348. S. V. Arden, 1 Bay, 487 ; Hatelyt. S. 15 Ga. 6 Crim. Pro. II § 3 , S. u. Mairs, Coxe, 346 ; McCarty v. S. 26 Missis. 299, 303 ; 453 ; S. v. Anthony, 1 McCord, 285 ; Rex U. S. v Wilson, Bald. 78 ; S. v. Ross, 29 V. Cunningham, 1 Crawf. & Dix C. C. 196 ; Mo. 32 ; Hill v. S. 28 Ga. 604 ; S. v. Sim- Rex I). Greene, 1 Crawf. & Dix C. C. 198; mons, 6 Jones, N. C. 21 ; S. v. McGregor, S. V. Cameron, 2 Chand. 172 ; Bauson v. 41 N. H. 407 , Kin;; v S. 21 Ga. 220 ; S. v. Offley, 3 Salic. 38 , Reg. w. Wallis, 1 Salk. Ellis, 12 La. An. 390 , Brown v. S. 28 Ga. 334; Reg. u. Crisham, Car. & M. 187; 199; S. w. Merritt, Phillips, N. C. 134; C. Rex V. Towle, Russ. & Ry. 314, 3 Price, v Fortune, 105 Mass. 592 ; S. v. Jenkins, 14 145; Rex v. Gogerly, Russ. & Ry. 343; Rich. 215, 94 Am. D. 132; Clay «. S. 40 Foster, 351; Shaw «. S. 18 Ala. 547; Tex. 67; S. ^. Squaires, 2 Nev. 226 ; S. v. Archb. New Crim. Pro. 13 ; S. v. Hill, 72 Dyer, 59 Me. 303 ; S. v. Center, 35 Vt. N. C. 345 ; Young «. C. 8 Bush, 366 ; P. 378 ; Washington v. S. 36 Ga. 222 ; P. v. V. Ah Fat, 48 Cal. 61. But see Reg. o. Cotta, 49 Cal. 166 ; Leonard i-. S. 77 Ga. Tyler, 8 Car. & P. 616. 764 ; Roney i: S. 76 Ga. 731 ; MiUs i;. S. S. B.riey,2Brev.338,4Am.D.583; 13 Tex. Ap. 487 ; MiUen ». S.60Ga.620, Reg. V. Rogers, 2 Moody, 85; Griffith's S. v. Miller, 100 Mo. 606, 626; S. f. Kirk, Case, 1 Plow. 97, 98, 100; Reg. v. Phelps, 10 Or. 505; S. t>. O'Neal, 1 Houst.Crim. Car. & M. 180; Rex v. Taylor, 1 Leach, 58 ; S. v. Payton, 90 Mo. 220; S v. Fox, 360; Shaw's Case, 1 East P. C. 351 ; Rex 94 N. C. 928; P. v. Weber, 66 Cal. 391 , V Folkes,! Moody, 354; Reg. ». Williams, Taylor ». S. 9 Tex. Ap. 100 S. " Put- 396 CHAP. XLVI.] THE PRINCIPAL ACTOR. § 650 5. Exceptionally, — we now and then meet with an Ameri- can statute in terms recognizing this distinction, therefore neces- sarily keeping it alive for the particular purpose.^ Leaving now what is thus ordinarily unimportant, — § 649. "Who a Principal. — Seeking the line which separates the principal of either degree from the accessory, we have the plain proposition that there can be no crime without a principal.^ There may be more principals than one; but there must be at least one. Consequently a man from whose sole and unaided will comes a criminal transaction is principal, whatever physical agen- cies he employs,^ and whether he is present or absent* when the thing is done. Or if he is present abetting while any act neces- sary to constitute the offence is being performed through an- other ,5 though not the whole thing necessary, — and perhaps, while any act is being done which may enter into the offence,^ though not strictly necessary, — he is a principal. But he is not such if what is accomplished in his presence is in no sense a part of the offence.' Again, — § 650. 1. Separate Acts to One End. — Where several acts con- stitute together one crime, if each is separately performed by a different individual in the absence of the rest, all are principals as to the whole.* For example, — 2. In Forgery, — where it is a statutory felony,® if persons make distinct parts of a forged instrument, each is a principal as to the whole, even though he does not know by whom the other parts are executed, and one finishes it alone while the rest are absent.^" Were the law not so, no one could be punished; for a person man, 18 S. C. 175, 44 Am R. 569 ; Terri- County, 2 Rnss. Crimes, 3d Eng. ed. 11&, tory V. Yarberry, 2 New Mex. 391. Rex v. Butteris, 6 Car. & P. 147 , Corn- 1 And see Poster, 355 et seq. ; Bren- wal's Case, 2 Stra. 881; Hawkins's Case, nan v.. P. 15 III. 511 ; Reg. v. Whistler, cited 2 East P. C. 485; Rex v. Harris, 7 1 1 Mod. 25, 2 Ld. Raym. 842 ; Warden v. Car. & P. 416 ; ante, § 642 (1 ). S. 24 Ohio St. 143 ; Jones v. S. 64 Ga. 697 ; " Rex v. Dyer, 2 East P. C. 767 ; Rex Williams v. S. 69 Ga. 11 ; Washington v. v. Hornby, 1 Car. & K. 3oi. S. 68 Ga. 570 ; Frey v. C. 83 Ky. 190. ' Rex v. King, Russ. & Ry. 332 ; Rex ^ Post, § 651, 666. V. McMakin, Russ. & Ry. 333, note ; Rex ' See post, § 651. v. Badcock, Russ. & Ry. 249. * Pinkard v. S. 30 Ga. 757. ^ See, as illustrative, Rex v. Cope, 1 6 Reg. ... Kelly, 2 Car. & K, 379 ; Reg. Stra. 144. And see post, § 653. V. Simpson, Car & M. 669 ; Rex v. Jordan, * At common law, forgery is a mis- 7 Car. & P. 432 ; Rex v- Harding, Russ.^& demeanor. Vol. II. § 609. Ry. 125, Rex v. Palmer, Russ. & Ry. '" Rex v. Kirkwood, 1 Moody, 304; 72, 2 Leach, 978, 1 New Rep. 96 , Rex Rex v. Dade, 1 Moody, 307 ; Rex v. Ring- V Standley, Russ. & Ry. 305 ; Rex v ley, Russ. & Ry. 446 397 §652 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. whose own hand does the criminal act, either wholly or in part, is not an accessory.^ Again, — § 651. Act through Innocent Agent. — Since there must always be a principal,^ one is such who does the criminal thing through an innocent agent ^ while personally absent. For example, when a dose o*f poison,* or an animate object like a human being, with^ or without ^ general accountability, but not criminal in tlie partic- ular instance, inflicts death or other injury in the absence of him whose will set the force in motion, there being no one but the latter whom the law can punish, it of necessity'^ fixes upon him as the doer. But if the agent employed incurs guilt, then the em- ployer is simply an accessory before the fact.^ § 652. Counselling to Suicide. — One who counsels to suicide another who does it in his presence is, in every view, guilty as principal.^ Accordingly where two persons, agreeing to commit suicide together, employ means which take effect on one only, the survivor is a principal in the murder of the other .^^ But is the position of one who takes his own life that of an innocent agent, ^ Distinct Participants in Larceny. — An English jury case holds that if one of two confederates unlocks the doof of a room in which a larceny is to be com- mitted, then goes away, and the other comes and steals the goods, the former is not a principal in the theft. Eeg. v. Jeffries, 3 Cox C. C. 85. I doubt the soundness of this ruling. If sustainable, it must be on the ground that the unlock- ing of the door constituted no part of the crime ; but it seems to me that it was a part of the criminal transaction, distinctly contributing to the end. In Oliio, one of several confederates enticed the owner of a store a mile away and detained him, while the others broke open the store and took the goods ; and the court held, it seems to me correctly, that he was a principal. T^he decision was put upon the ground that he was construc- tively present. He not merely advised, but bore a part in the crime; that con- stitutes a principal, whether we call it being constructively present or not. Breese v. S. 12 Ohio St. 146, 80 Am. D.' 340. In these two cases, which seem to rest on a common reason, but were de- cided differently by different courts, we may probably deem that as the unlocking 398 of the door in the one, and the enticing away of the owner in the other, were not necessarily parts of the crime, the prose- cuting power might have elected to deal with the persons who did it as accessories before the fact. See post, § 663, 664. ' 3 Ante, § 649. 8 Ante, § 310. * Vaux's Case, 4 Co. 44 ; Reg. v Mi- chael, 9 Car. & P 356, 2 Moody, 120. 6 Rex V. Giles, 1 Moody, 166, Car. Crira. Law, 3d ed. 191 ; C. v. Hill, 11 Mass. 136 ; Adams «. P. 1 Comst. 173 ; Eeg. V. Mazeau, 9 Car. & P. 676 ; Reg. u. Saunders, 2 Plow. 473 ; S. v. Fulkerson, Phillips, N, C. 233, and other cases cited ante, § 310. " Anonymous, J. Kel. 53. And see Reg. V. Tyler, 8 Car. & P. 616 ; Reg. v. Michael, 9 Car. & P. 356, 2 Moody, 120. ' Ante, § 346. 8 Wixson V. P. 5 Par. Cr. 119 ; Eeg. o. Manley, 1 Cox C. C. 104. 9 Vol. II. § 1187; Rexti. Dyson, Ruas. & Ry. 523 ; Reg. n. Alison, 8 Car. & P. 418. 1° Reg. V. Alison, 8 Car. & P. 418. Alid see I East P. C. 229 ; S. v. Ludwig, 70 Mo. 412. CHAP. XLVI.J THE PRINCIPAL ACTOR. § 653 or is he the guilty doer ? In England he is regarded as the latter; so that the adviser, if absent at the commission of the act, is only an accessory before the fact, who cannot be convicted except after or with his principal, — which is never.^ It is not quite cer- tain whether this is likewise the American doctrine, or whether with us the person committing suicide is to be deemed an innocent agent in inflicting the violence on himself,^ as respects the con- sequence to the adviser. In Massachusetts, two prisoners being within hearing of each other in adjoining cells, one counselled the other to take his own life, which he did ; and it was ruled that if the advice caused the deed, the adviser was guilty of murder.^ To some extent, at present, this question is regulated by statutes. §653. In Presence. — Some of the foregoing doctrines, the reader perceives, grow out of the necessity of there being a prin- cipal, compelling the law to recognize as such one who would be only accessory if there had been present another subject to pun- ishment. Where there is such other, no one will be a principal as abetting him unless in a position to render, if necessary, some personal assistance. Assuming one's will to contribute to the act,* the test to determine whetlier he is a principal rather than an accessory ^ is, whether he is so near or otherwise so situated as to make his personal help, if required, to any degree available.^ He need not be in the actual presence of the other principal ; but if he is constructively there as thus explained, it is enough.'^ And for reasons already seen,^ this is specially so when he does something which enters into the offence, constituting of it a part.» Thus, — 1 Rex V. Russell, 1 Moody, 356 ; Reg. Wisdom, 8 Port. 511 ; Norton v. P. 8 Cow. V. Leddington, 9 Car. & P. 79. See Reg. 137 , Reg. v. Perkins, 12 Eng. L. & Eq. V. Fretwell, Leigh & C. 161, 9 Cox C. C. 587 , Breese i>. S. 12 Ohio St. 146, 154, 80 152 Am. D 340, Wixson v. P. 5 Par. Cr. 2 And see Vol. 11. § 1187. 119 ; Trim v. C. 18 Grat. 983, 98 Am. D. 8 C. V. Bowen, 13 Mass. 356, 7 Am. T> 765 , S. o. Nash, 7 Iowa, 347 ; Doan v. S. 154. See, as perhaps illustrative, Berry 26 Ind. 495; Selvidge v. S. 30 Tex. 60; » S 10 Ga 511, 518. McCarney v. P. 83 N. Y. 408, 38 Am. R. 4 Ante, § 628 et seq. 456 i Mitchell v. C. 33 Grat. 845 ; Truitt 6 Post, § 663. " S. 8 Tex, Ap. 148. 6 C. V. Knapp, 9 Pick. 496, 51C-519, 20 ' Tate v. S. 6 Blackf. 110 ; S. v. Hey- Am D. 491 ; Rex i. Manners, 7 Car. & ward, 2 Nott & McC. 312, 10 Am. D. 604; P. 801 ; Rex v. Stewart, Russ. & Ry- 363 ; Coyles v. Hnrtin, 10 Johns. 85 ; C. v. Green v S. 13 Mo. 382 ; Rex v. Scares, Lucas, 2 Allen, 170; Reg. v. Vanderstein, Russ. & Ry. 25, 2 East P. C. 974 ; Rex v. 16 Ir. Com. Law, 574, 10 Cox C. C. 177 ; Kelly, Russ. & Ry. 421 ; Reg. i>. Jones, 9 S. v. Hamilton, 13 Nev. 386, Car. & P. 761 ; Tate v. S. 6 Blackf. 110 ; « Ante, § 649. Rex V. Davis, Russ. & Ry. 113 ; S. v. » Rex v. Fasaey, 7 Car. & P. 282, Rex tsyy § 656 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. § 654. 1. In Larceny, — a person waiting outside of a house to receive goods which his confederate is stealing within is a princi- pal of the second degree.^ So may one be who is in a lower room while his confederate is operating in an upper room.^ And — 2. In Duelling. — If death occurs in a duel, the seconds are principals in the murder.^ But — 3. In uttering. — It was held not sufficient to convict one as principal in the uttering of a forged note (assumed to be felony), that he came with the utterer to town, put up at the same inn with him, walked out with him, two hours later the other alone passed the note, in twenty minutes more the two came to- gether, and when he saw that the utterer was arrested he ran from the officer, and each affected ignorance of the other.* II. As to Treason. § 655. The Next Chapter — will explain that in treason, not only are they principals who would be such if the offence were felony, but they also who would be accessories before the fact. So there is nothing for consideration under this sub-title. III. As to Misdemeanor. § 656. 1. Distinctions Unknown. — Likewise, in misdemeanor, the distinction between principals of the first and second degree is unknown. Neither is there any between accessories before the fact and principals ; all participants being principals,* the same as in treason,® — a question for the next chapter. 2. Acting together — Possession. — If persons are together com- mitting a misdemeanor, each one's act is that of all, the same as in felony ; for the same reasons control this case as the other.' And the possession of a thing by one, contrary to, the prohibition of a statute, is the possession of all.^ But — V Lockett, 7 Car. & P. 300 ; Rex v. Frank- Ry. 142. In both of these cases the judges lyn, 1 Leach, 255, Cald. 244. And see were under the misapprehension that the Rex V. Borthwick, 1 Doug. 207 ; Rex <;. offence was felony. Therefore the de- Harris, 7 Car. & P. 416. cisions were wrong, vet they equally well ' Rex i>. Owen, 1 Moody, 96. And see illustrate the doctrine of the text. Rex V. Skerritt, 2 Car. & P. 427. 6 S. o. Murdoch, 71 Me. 454. ^ C. u. Lucas, 2 Allen, 170. 6 Ante, § 655. ' RexD. Cuddy, 1 Car. & K. 210; Reg. ' And see Edelmuth v. McGarren, 4 V. Young, 8 Car. & P. 644 ; Reg. v. Bar- Daly. 467 ; S. o. Potter, 30 Iowa, 587. ronet, Dears. 51 ; Vol. II. § 311. 8 Reg. v. Thompson, 11 Cox C. C. 362, * Rex V. Davis, Russ. & Ry. 113. And 364 ; Reg. w. Goodfellow, 1 Den. C. C. 81, see for similar facts, Rex v Else, Russ. & 1 Car. & K. 724. 400 CHAP. XLVI.] THE PRINCIPAL ACTOR. § 658 § 657. 1. Lighter Misdemeanors distinguished. — Blending in one view numerous distinctions which have appeared in the fore- going pages of this volume, the foundation whereof is the doc- trine that a thing for 'the law to notice must be of its standard magnitude,^ we perceive that a dereliction from duty, though of the indictable sort, may be too minute for judicial cognizance. So that though the immediate doer of one of the smallest of mis- demeanors may be punishable, the partaker of it in a less degree will escape. Within which principle, there are misdemeanors of such a nature, and so small in turpitude, that even a person pres- ent and lending the support of his will to the commission of the act is nevertheless not punishable. Besides which, — 2. statutory Misdemeanors. — The smaller misdemeanors are chiefly creations of statutes. The statutory expressions differ, but some of them are interpreted as providing their penalties only for the actual doers of the forbidden thing.^ Or if the terms of a statute distinctly limit the punishment to persons who participate in the act only in a certain way, they furnish the rule for the court. Or if the expression is general, then if the offence is of minor turpitude, and especially if the thing is only malum prohibitum, the courts by construction will limit its operation to those persons who are more particularly within the express words of the enactment.^ But this limiting interpretation is not applied to every statute creating a misdemeanor.* Now, — 3. Blendings. — Most of the minor misdemeanors are, as just said, statutory. And when tlie question of the liability of a collateral participant in a misdemeanor of this sort arises for adjudication, the common-law question stated in the first of these paragraphs, and the statutory one stated in the second, so blend as to leave the proper decision often floubtful. Moreover the cases differ in their natures and in their special facts. So that to find a single and certain rule for these complicated cases becomes practically impossible ; and the difficulty is further enhanced, if there is any enhancement of the impossible, by discordant utterances from the bench. Somewhat to particularize, — § 658. 1. Retailing Liquor. — Under the statutes making it 1 See ante, § 212 et seq. * U. S. v. Snyder, 3 McCrary, 377, 14 2 Frey v. C. 83 Ky. 190 (a case of fel- Fed. Rep. 554 ; Foster v. S. 45 Ark. 361 , ony) • Page v. S. 1 1 Lea, 202. Campbell v. S. 79 Ala. 271 ; Harlow v. C. 8 Wakeman o. Chambers, 69 Iowa, 11 Bush, 610; U. S. v. Bayer, 4 Dil. 407, 169, 58 Am. R. 218. 13 Bankr. Reg. 400, 402. VOL. I.— 26 401 §658 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. penal for unlicensed persons to retail intoxicating liquor, it is gen- erally held that one who by purchasing it lends the concurrence of his will thereto, and tempts the seller with his money, and is present encouraging him, is still not liable to punishment.^ In ' A few of the later cases are Wake- man V. Chambers, 69 Iowa, 169, 58 Am. R. 218; S. V. Teahan, 50 Conn. 92; Har- ney v. S. 8 Lea, 113 ; Page b. S. II Lea, 202; S. V. Baden, 37 Minn. 212. Some Minuter Explanations. — In C. v. Wil- delivered the opinion, put the result in part upon a consideration of the general scope and purpose of the statute. And referring to the Massachusetts case : " We are not prepared to adopt the view there advanced, that one who ap- lard 22 Pick. 476, the purchaser of the proximates so nearly to the direct act liquor, sold without license was held not excusable from testifying against the sel- ler, on the ground that he would crimi- nate himself. In the opinion, Shaw, C. J. after saying that " no precedent and no authority has been shown for such a prose- cution, and no such prosecution has been attempted within the knowledge of the court, although a similar law has been in force almost from the foundation of the government, and thousands of prosecu- tions and convictions of sellers have been had under it, most of which have been sustained by the testimony of buyers," proceeded : " It is difficult to draw any precise line of distinction between the cases in which the law holds it a mis- demeanor to counsel, entice, or induce another to commit a crime, and where it does not. In general, it has been con- sidered as applying to cases of felony, though it has been held that it does not depend upon the mere legal and techni- cal distinction between felony and mis- demeanor. One consideration, however, is manifest in all the cases, and that is that the offence proposed to be com- mitted by the counsel, advice, or en- ticement of another is of a high and aggravated character, tending to breaches of the peace or other great disorder and violence, being what are usually consid ered mala in se, or criminal in themselves, in contradistinction to mala protiibita, or acts otherwise indifferent than as they are restrained by positive law." p. 478. as a purchaser does, is not liable as an aider or accessory because of the com- paratively insignificant character of the main offence." p. 366. But while he thus disclaimed, he affirmed a doctrine not differing essentially from this, as fol- lows : " The rules of statute interpreta- tion, enunciated prior to the enactment of the prohibitory liquor law, and still recog- nized as sound, justify the court in giv- ing weight to the above considerations. In cases of mala prohibita, the fact that the penalty is in terms imposed upon only one of two parties whose concur- rence is requisite to the commission of the offence, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground for giving the statute a construction exempting the party not named from criminal liability." p. 364. As sustaining this view he re- ferred to Browning v. Morris, Cowp. 790 ; Williams v. Hedley, 8 East, 378 ; Tracy v. Talmage, 4 Kern. 162, 181-186, 67 Am. D. 132; Curtis v. Leavitt, 15 N. Y. 9; Buffalo City Bank v. Codd, 26 N. Y. 163 ; Richardson, C. J. in Roby w. West, 4 N. H. 285, 288, 289, 17 Am. D 423 ; Perley, C. J. in Prescott v. Norris, 32 N. H. 101, 105 ; White V Franklin Bank, 22 Pick. 181; Sargent, J. in Butler v. Northumberland, 50 N. H. 33, 38, 39. Now, as we have seen (ante, § 333), the substance of the distinction between malum in se and malum And see, as confirming this doctrine, S. i'. prohibitum is that the former is more in- Hopkins, 4 Jones, N. C. 305 ; S. v. Wright, 4 Jones, N. C. 308. And see Rawles v. S. 15 Tex. 581. The question thus adjudged in Massachusetts was decided in the same way in New Hampshire. S. v. Rand, 51 N. H. 361, 12 Am. R. 127. Smith, J. who 402 tensely evil than the latter ; so that in essence this New Hampshire doctrine does not differ from what is held elsewhere. And see, as confirming in a general way the foregoiiig views, C. v. Wood, 11 Gray, 85; C. V. Boynton, 116 Mass. 343. On CHAP. XLTI.J THE PRINCIPAL ACTOR. § 658 the cases under this head, the reasonings of the judges are not quite uniform, but generally there is a blending of interpretation and common-law rule. Not every sort of helper to the sale is excused ; thus, — 2. Agent of Retailer. — One is indictable who himself sells as .another's servant, though without compensation.^ And — 3. The Proprietor — of a liquor-selling establishment is crimi- nally liable for sales made by his agent.^ Again, — the other hand, there is a Tennessee case, the reporter's headnote to which is, " The sale of liquor by a slave is a criminal of- fence, and a white man who tempts him to commit the offence, by purchasing liquor from him, is an aider and abettor, and as much guilty, as a principal offender, of a misdemeanor as if the seller had been of his own color." And McKinney, J. said : " In the case of a white man, we suppose it cannot be seriously controverted that upon general principles, the purchaser of spirituous liquors, in violation of the stat- utes passed to suppress tippling, is as much guilty of the violation of the law, and as much amenable to criminal prose- cution and punishment, as the seller. They are, in all respects, particeps crimi- tils ; they are alike wilful violators of the law. The express prohibition to sell, upon every just principle of construction, must be considered as implying a pro- hibition to purchase. The purchaser — whether we regard his intent, or the ef- fect and consequences of his act — is no less guilty, no less within the mischief intended to be suppressed, than the seller It matters not that the former is not placed under the obligation of a bond or oath. This takes nothing from the force of the argument. He still stands guilty of wilfully participating in, and aiding and encouraging the commission of, a criminal offence. Does not this, upon the soundest principles of criminal law, constitute him a principal in the offence ? "We think it does. And perhaps it would scarcely be going too far to say that he ought to be regarded as less excusable than the seller. He has not the poor pre- text of the latter that the forbidden traf- fic is in part his means of procuring a living." S. V. Bonner, 2 Head, 135, 137. But see as to this question, the Tennessee cases cited at the beginning of this note. For further views on this topic, see, as respects small things, ante, § 212 et seq. See also Brown v. Perkins, 1 Allen, 89 ; Stamper v. C. 7 Bush, 612. Malicious Shooting. — In the case last cited it was held that one who abets at the fact of a malicious shooting is not pursuable under the Kentucky statute, which provides only for the punishment of the principal of- fender. The statutory words are that " if any person shall wilfully and maliciously shoot at and wound another, with an in- tention to kill him, so that he does not die thereby, ... he shall be confined in the penitentiary not less than one nor more than five years." Said Hardin, J. : " As a general rule, where a statute creates a felony and prescribes a particular punish- ment therefor, or where a "statute provides a punishment for a common-law felony by name, those who were present, aiding and abetting in the commission of the crime, are held to ■ be included by the statute, although not mentioned as such in the statute. But where, as in this case, the punishment is imposed by the statute upon the person alone who actually com- mitted the acts constituting the offence, and not in general terms upon those who were guilty of the offence, according to common-law rules mere aiders and abet- tors will not be deemed to be within the act." p. 614, referring to Rose. Crim. Ev. 215. I do not propose to inquire how far these views would be generally accepted as sound. > S. V. Bugbee, 22 Vt. 32. And see C. V. Hadley, 11 Met. 66; Geuing v. S. 1 McCord, 573 ; Hays s. S. 13 Mo. 246 ; S. V. Bryant, 14 Mo. 340 ; Roberts v. O'Con- ner, 33 Me. 496 ; Vaughn c. S. 4 Misso. 530. 2 Ante, §219(1); Stat. Crimes, § 1024, 403 § 659 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. 4. Participants in Riots, &o. — All who by their presence coun- tenance a riot,i or an affray ,2 are criminally responsible.^^ § 659. 1. Treason and Fornication compared. — Another illus- tration, distinguishing the lighter offences from the heavier, is the following : the Statute of 26 Edw. 3, stat. 5, c. 2, made it high treason " if a man do violate the king's companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir ; " and the construction was that the woman, if con- senting, was guilty as well as the man.* But when, in Tennessee, it was enacted that " if any white man or woman shall presume to live with any negro or mulatto man or woman, as man and wife, each and every of the parties so offending shall be liable to for- feit and pay the sum of five hundred dollars to any person who may or will sue for the same, by action of debt, and moreover be liable to be indicted and punished at the discretion of the court," — the white person only was held to be liable, not also the colored.^ So, — 2. Hiring Time. — A former North Carolina statute forbidding slaves to hire of the owners their time, was construed as limiting its penalty to the slaves, not making punishable also the masters.^ Now, — 3. Why ? — The different degrees of wrong in the offeilces created by these statutes justify the seemingly contradictory con- structions given them; and this comes in spite of what might appear to . be the opposing rule ^ that the graver the offence created by a legislative enactment the stricter must be its interpretation. 1045 ; Snider v. S. 81 Ga. 753, 12 Am. St. man, 1 Ire. 14. In Perjury. —As to per- 350; Robinson v. S. 38 Ark. 641 ; Waller jury, U. S. v. Staats, 8 How. U. S. 41. V. S. 38 Ark. 656 ; Loeb ». S. 75 Ga. 258. 4 1 East P. C. 65 ; 1 Hale P. C. 89, 1 Rex V. Hunt, I Keny. 108 ; Williams 128 ,• 3 Inst. 1, 2, 9 ; Eden Penal Law, 3d K. S. 9 Misso. 270 ; ante, § 628 et seq. ed. 125. 2 Hawkins v. S. 13 Ga. 322, 58 Am. D. s' S. v. Brady, 9 Humph. 74. *J^- " S. u. demons, 3 Dev. 472. And see Participants in Gaming. — And see, Rawles v. S- 15 Tex. 581. as to gaming, Smith v. S. 5 Humph. 163 ; ' Stat. Crimes, § 199. Hewlett V. S. 5 Yerg. 144 ; S. v. Smither- 404 CHAP. XLVII.] ACCESSORY IN GENEEAL, BEFORE, ETC. § 663 CHAPTER XLVII. THE ACCESSORY IN GENERAL AND BEFORE THE PACT IN FELONY AND ' THE LIKE PARTAKER IN OTHER CRIMES. §660,661. Introduction. 662-671. General Doctrine of Accessory. 672-680. Before the Fact in Felony. 681-684. The Like in Treason. 685-689. In Misdemeanor. Compare ' — as to the pleading, practice, and evidence, with Crim. Pro. II. § 1-15 ; Dir. & F. § 113-122. § 660. In this Chapter, — we are to inquire after the legal posi- tion of one who stimulates to or procures a crime, or otherwise contributes to it by his will, while not in a proximity thereto ren- dering him a principal in the second degree. It embraces the accessory before the fact in felony ; the party who sustains the like relation in treason, being himself in law a principal offender ; and the one thus related in misdemeanor, also regarded as a doer. § 661. How Chapter divided. — We shall consider, I. The Gen- eral Doctrine of Accessory whether before or after the Fact; U. Before the Fact in Felony ; III. The Like Partaker in Trea- son ; IV. In Misdemeanor, I. The G-eneral Doctrine of Accessory whether before or after the Fact. § 662. The -Word " Accessory " — is applied to a participant only in felony. But for convenience, we consider also in this chapter the like partaker in a treason and in a misdemeanor. § 663. 1. Defined. — An accessory is one who participates in a felony too remotely to be deemed a principal.^ 2. Distinguished from Principal. — If the participant is a prin- cipal, though of the second degree, he cannot be charged in an 1 See ante, § 653. 405 § 666 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. indictment as accessory ;i if he is an accessory, he cannot be held as principal.^ Yet — § 664. 1. Both Principal and Accessory. — By separate acts, one may become both principal and accessory in the same felony : as, by commanding another to kill a third person, rendering him an accessory when the murder is done; and afterward joining with the person commanded in doing it, which makes him a prin- cipal.^ Also, — 2. Accessory Before and After. — By separate acts, one may be both an accessory before and an accessory after the fact, in the same felony.* §665. In statutory Felony, — there are accessories, precisely as in a felony at the common law, unless special terms in the statute preclude this construction.^ § 666. 1. Follows Principal. — An accessory follows, like a shadow, his principal.^ Thus, — 2. Guilty Principal. — Without a guilty principal there can be no accessory. Not even can the accessoiy be convicted of an offence in a degree higher than that of the principal.'' To illustrate, -^ 3. Petit Treason and Murder. — When petit treason was an offence separate from murder,^ consisting of a wife or servant murdering the husband or master, one of them who procured a stranger to commit the homicide while he or she was absent, did not thereby become an accessory " to petit treason, but to murder ^ only ; because the offence of the principal is but murder. But if such wife or servant had been present when the murder was com- 1 Rex V. Gordon, 1 Leach, 515, 1 East * Rex v. Blackson, 8 Car. & P. 43; S. P. C. 352; Reg. v. Perkins, 12 Eng. L. & v. Coppenburg, 2 Strob. 273. And see Eq. 587 ; S. v. LarMn, 49 N. H. 39 ; S. v. Rex v. Dannelly, 2 Marshall, 471 ; Norton Buzzell, 58 N. H. 257, 42 Am. R. 586. v. P. 8 Cow. 137 ; Stoops v. C. 7 S. & R. That in some respects this was formerly 491, 10 Am. D. 482 ; Bibithe's Case, 4 Co. thought otherwise by some writers, see 43 6; S. v. Butler, 17 Vt. 145. Foster, 361, 362. 6 gtat. Crimes, § 139, 145, 775 ; Rex v. 2 Course's Case, cited Foster, 349; Bear, 2 Salk. 417, 418. Hughes V. S. 12 Ala. 458 ; Hately v. S. " Broom Leg. Max. 2d ed. 374 ; 4 Bl. 15 Ga; 346 ; S. v. Dewer, 65 N. C. 572 ; Com. 36 ; 3 Inst. 139. McCoy V. S. 52 Ga. 287 ; Wicks v. S. 44 ' Ante, § 649, 651 ; Bowen v. S. 25 Fla. Ala. 398 ; S. v. Larkin, supra ; Reg. v. 645 ; Armstrong v. S. 28 Tex. Ap. 526 ; Munday, 2 Post. & F. 170. And see Rex Territory v. Dweuger, 2 New Mex. 73; V. Plant, 7 Car. & P. 675. S.v. Mosley, 31 Kan. 355 ; Buck v. C. 107 » 2 Hawk. P. C. Curw. ed. c. 29, § 1 ; Pa. 486; P. v. Collins, 53 Cal. 185. 3 Inst. 139 ; Reg. v. Hilton, Bell C. C. 20, « Ante, § 611 (2). 8 Cox C. C. 87. 406 CHAP. XLVII.] ACCESSOET IN GENERAL, BEFORE, ETC. § 668 mitted, they would have been guilty of petit treason, and the stranger of murder; because, in respect to such presence, they would have been principals ^ in killing." ^ Again, — § 667. 1. Convicted only with or after Principal. — Under the common-law rules, which in our States are widely modified by statutes, not only is it impossible for one to be guilty as accessory unless there is a guilty principal, but he cannot be convicted ex- cept jointly with or after the principal, whose acquittal acquits him.^ Further as to the. — 2. Form of Doctrine. — There appear to be under this doctrine some differences on questions of mere procedure. By what Hawkins deems the better opinion, the accessory may be in- dicted and arraigned before the principal, yet he can be tried before only with his consent.* In like manner, after his con- viction, judgment will not be arrested though the indictment does not allege the principal's attainder.^ If there are several prin- cipals, the accessory may be tried in respect of such as are already attainted, before the attainder of the rest.^ But if, with- out his consent, he is tried as to all, and convicted generally, the conviction will not be good.'^ In matter of evidence, — 3. Proof of Principal's GuUt. — Where the accessory is tried after the principal, it is prima facie sufficient in proof of the lat- ter's guilt to produce the record of his conviction, — a rule which does not exclude other evidence.^ § 668. 1. Omitting to sentence Principal. — So completely at common law is the accessory attached to his principal that if sentence is not passed on the latter's conviction (creating in the 1 ^tg 8 653. Crim. Cas. 63. And see Jones v. P. 20 2 2 Hawk. P. C. Curw. ed. c. 29, § 15. Hun, 545. 8 S. ... Pybass, 4 Humph. 442 ; TJ. S. v. ^ Harty v. S. 3 Blackf. 386. But see. Crane, 4 McLean, 317 ; Whitehead v. S. on this point, Stoops v. C. 7 S. & R. 491, 4 Humph. 278 ; C. v. Woodward, Thacher 10 Am. D. 482. Crim. Cas. 63; 2 Hawk. P. C. Curw. ed. « Stoops v. C. 7 S. & E. 491; C. v. c. 29, S 47 ; Baron v. P. 1 Par. Cr. 246 ; S. Knapp, 10 Pick. 477, 20 Am. D. 534 ; V. Yancy, 1 Tread. 241 ; Sampson v. C. 5 Starin .. P, 45 N. Y. 333 ; S. v. Rogers, Watts & S. 385; Smith v. S. 46 Ga. 298. 6 Bax. 563. And see S. «. Pybass, 4 See Loyd v S. 45 Ga. 57 ; Brown v. S. 18 Humph. 442 ; Whitehead v. S. 4 Humph. Ohio St 496 278 ; C. v. Woodward, Thacher Crim. 4 2 Hawk. P. C. Curw. ed. c. 29, § 45 ; Cas. 63. ^ . ^ „ .„ ,„, „, . 2 Hale P. C. 224. See, for the contrary ^ Stoops v. C. 7 S. & R. 491 ; Starm v. doctrine as to the arraignment, Gittin's P. supra. Case 1 Plow 98 99 ; C. v. Andrews, 3 » S. «. Chitten, 2 Dev. 49 ; C. v. Knapp, Mass 126- C. V. Woodward, Thacher lO Pick. 477 ; S. w. Mbsley, 31 Kan. 355 ; Crim. Pro. II. § 12. 407 § 669 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. English law his attainder i), no judgment can be pronounced against the accessory. The consequence whereof was that, in the language of Lord Hardwicke, " if the principal was convicted only of a clergyable felony and had his clergy allowed,^ or stood mute, or peremptorily challenged above the number of twenty jurors, the accessory could not be arraigned. By this means accessories to very flagrant crimes frequently avoided all manner of punishment." ^ For remedy whereof, the Statute of 1 Anne, stat. 2, c. 9, of a date too recent to be generally received as com- mon law in this country,* provided that in such a case " it shall and may be lawful to proceed against any accessory, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding any such principal felon shall be admitted to the benefit of his clergy, pardoned, or otherwise delivered before attainder." But — 2. Death or Escape of Principal. — As well subsequently to this enactment as before, if from a cause not mentioned in it, — as, the principalis escape or death, — he is not attainted, the acces- sory cannot be proceeded against.^ Yet — 3. An Erroneous Attainder — of the principal, unreversed, jus- tifies proceedings against the accessory ; ^ but its reversal dis- charges him.^ 4. A Pardon — of the principal, after he is not only convicted but attainted, will in no way avail the accessory .^ 5. statutes — have in some of our States removed this common- law impediment to the accessory's conviction.^ § 669. Deny Principal's Guilt. — Though the record of the prin- cipal's attainder is, as against an accessory tried separately, prima facie evidence of the guilt of the former,io it is not conclusive," > Ex parte Garland. 4 Wal. 333, 387. Case, 4 Co. 43 b ; s. c. nom. Goff v. Byby, 2 Stevens's Case, Cro. Car. 566, 567. Cro. Eliz. 540. 8 Kexi>.Burridge,3P.Wms. 439,485. » Post, § 670; C. v. Williamson, 2 And see 2 Hawk. P. C. Cnrw. ed. c. 29, Va. Cas. 211 ; S. v. Shenlde, 36 Kan. 43; § 41. See, as to Georgia, Loyd u. S. 45 Hatchett v. C. 75 Va. 925; Goins v. S. ^^- *^- 46 Ohio St. 457 ; Buck v. C. 107 Pa. 486 ; See post, § 700 and note. Berry v. S. 4 Tex. Ap. 492. s C. V. Phillips, 16 Mass. 423; S. v. w Ante, § 667 (3) McDaniel, 41 Tex. 229. n Rex v. Smith, 1 Leach, 288 ; C. v. Rex V. Baldwin, 3 Camp. 265, Rnss. Knapp, 10 Pick. 477, 20 Am. T). 534 ; & Ry. 241, 2 Leach, 928, note; S. v. Dun- Rex v. Turner, 1 Moody, 347 ; Keithler can 6 Ire. 236, „. s. 10 Sm. & M. 192 ; S. v. Duncan, 6 ' Marsh's Case, 1 Leon. 325. Ire. 98. 8 Syer's Case, 4 Co. 43 b ; Bibithe's 408 CHAP. XLTII.] ACCESSORY IN GENERAL, BEFORE, ETC. § 670 being in a proceeding between other parties. To hold it conclusive would be palpably unjust. Therefore — §670. 1. statutes making Accessory a Principal. — In natural reason, the State should not be concluded in its prosecution of one person by its failure to convict another. So that in some of the States, as just said,^ legislation has directed that proceedings may be carried on against the accessory, irrespective of the case against the principal offender.^ Not all the statutes working this result are in these terms; in some of the States, apparently among which are Massachusetts,^ Maine,^ Pennsylvania,* Missouri,^ Illi- nois,' Ohio,^ lowa,^ California,^" Kentucky ,^1 Nevada,'^^ and Kan- sas,i^ the accessory before the fact is in law, as in reason, either actually or substantially a principal.^* So he is in England since 11 & 12 Vict. c. 46.16 2. " Counsel or Procure " — Attempt. — Under a statute making it felony.to " counsel, procure, or command any other person to commit any felony," ^^ one becomes a felon only when the felony persuaded to is committed ; the mere attempt, through solicita- tion, remains a misdemeanor." 3. " Before or after Principal." — A statute, after providing pun- ishments for abetting or counselling to a felony, and for assisting the felon after tlie fact, proceeded ; " Every person who shall be guilty of any crime punishable by the [above] provisions, may be indicted and convicted before or after the principal offender is in- dicted and convicted." And it was held not to take away the accessory's common-law exemption from prosecution, where the ^ Ante, § 668 (5). ?■ «• Outeveras, 48 Cal. 19 ; P. v. Shepard- 2 Crim! Pro. II. § 4. son, 48 Cal. 189. 8 E. S. c. 133, § 2 ,• Gen. Stats, c. 168, " Stricklin v. C. 83 Ky. 566. § 4 ; as to the construction of which see ^^ S. v. Jones, 7 Nev. 408 ; S. v. Chap- S. V. Ricker, 29 Me. 84. As to the earlier man, 6 Nev. 320. law in Massachusetts, see C. v. Knapp, 9 " S. v. Cassady, 12 Kan. 550. Pick. 496 20 Am. D. 491. ** -^s to North Carolina, see S. v Groff, * S. !).' Ricker, 29 Me. 84. 1 Murph. 270 ; S. v. Goode, 1 Hawks, 463. 6 Brandt v. C. 94 Pa. 290. As to Kentucky, see Able v. C. 5 Bush, 6 Loughridge v. S. 6 Misso. 594. 698. ' Baxter w. P. 3 Gilman, 368 ; Brennan " Reg. v. Manning, 2 Car. & K. 887, V. P. 15 111. 511,516; Dempsey k. P. 47 903; Reg. v. Hughes, BeU C. C. 242. 111. 323; Yoe v. P. 49 111. 410; Spies w. P. The statute now regulating the subject 122 IU.'l, 3 Am. St. 320. in England is 24 & 25 Vict. c. 94. See 8 Noland v. S. 19 Ohio, 131. Greaves Crim. Law Acts, 2d ed. 18; Reg. 'Bousell V. U. S. 1 Greene, Iowa, 111. v. Gregory, Law Rep. 1 C. C. 77. 10 P. V. Bearss, 10 Cal. 68; P. v. Trim, " 24 & 25 Vict, c 94, § 2. 39 Cal. 75 ; P. V. Campbell, 40 Cal. 129 ; " Reg. v. Gregory, Law Rep. 1 C. C. 77, 10 Cox C. C. 459. 409 § 673 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. principal has been acquitted. Even if a verdict has been rendered against the accessory, the principal's subsequent acquittal will avail him in bar of judgment.^ § 671. Further of these Statutes. — A provision declaring One who " shall aid, assist, abet, counsel, hire, command, or procure," to be an accessory before the fact, does not impair the common- law distinction between principal and accessory, so as to make the principal of the second degree an accessory .2 Moreover, statutes like these do not ■ supersede the necessity of proving the guilt of the principal ; for, in the nature of things, one can- not procure what is not done, or receive the doer of what was never performed.^ "Where the accessory is indicted separately from the principal, the latter's confession does not prove his guilt as against the former; for, in this issue, it is mere hearsay.* II. Before the Fact in Felony. § 672. The Last Sub-title — is in effect a part of this one. It was separated from this because relating equally to the acces- sory after the fact. § 673. 1. Defined. — An accessory before the fact is a person whose will contributes^ to a felony committed by another as principal,^ while himself too far away to aid in the felonious act.' 2. Nature and Origin. — This distinguishing of the accessory before the fact from the principal is a pure technicality. It has no existence either in natural reason or the ordinary doctrines of the law. For in natural reason the procurer of a crime is not charge- able differently from the doer; and a familiar rule of the common law is that what one does through another's agency is regarded as done by himself.^ Even the common law of crimes makes no distinction in the punishment between a principal and an accessory, — the offence of each being felony, of which the penalty was originally death.^ Likewise in morals, there are cif- 1 McCarty «. S. 44 Ind. 214, 15 Am. E. s Broom Leg. Max. 2d ed. 643 ; Co 232. Lit. 258 a. " The principle of commou ^ C. V. Knapp, 9 Pick. 496, 20 Am. D. law, Qui facit per alium, facit per se, is 491. And see Stat. Crimea, § 142. ' of universal application, both ia criminal ' Simmons v. S. 4 Ga. 465 ; Ogden 0, and civil cases." Hosmer, C. J. in Bark- S. 12 Wis. 532, 78 Am. D. 754. hamsted v. Parsons, 3 Conn. 1, 8. * Ogden u. S. supra. » 2 Hawk. P. C. Curw.ed. c. 29, § 11 ; ' Ante, § 628 et seq. Foster, 343, 359 ; 4 Bl. Com. 39 ; ante, » Ante, § 651. § 646 ; Rex v. Higgins, 2 East, 5, 18, 19, ' Ante, § 653. 21. 410 CHAP. XLVII.] ACCESSORY IN GENERAL, BEFORE, ETC. § 675 cumstances wherein we attach more blame to the accessory before the fact than to his principal ; as, where a husband commands his wife ^ or a master his servant to do for his benefit a criminal thing whiqh, in his absence,^ is done reluctantly through fear or affection overpowering a subject mind. We can only conjecture how this distinction came into the law ; probably from the same confused apprehensions whence sprang the now exploded distinc- tion between principals and accessories at the fact.^ Having, however, become established as a technical rule, it cannot be re- moved by the courts.* Still, — § 674. 1. Not favored. — Since this distinction has no founda- tion in reason, our judges usually permit it to extend no further than compelled by the authorities. Thus, — 2. In statutory Interpretation. — A statute having provided that " all suits, informations, and indictments for any crime or misde- meanor, murder excepted," should be brought within three years after its commission, " murder " was held to include as well ac- cessories before the fact as principals. " Writers on criminal law," said Marcy, J., " make some difference between the offence of a principal and that of an accessory, but it is chiefly as to the order and mode of proceeding against them." ^ § 675. 1. Intent in Accessory. — The criminal intent required is the same for an accessory before the fact as for a principal.^ Often the former is the one who originated the idea of the crime, whereupon he excited the latter thereto. But the case is the same in law whether the evil purpose was born in the one or in the other." 2. The Act. — To constitute such accessory there must be a principal ; ^ and while the crime is being committed, he must not be so near him that he could render personal assistance, since then he would be himself a principal.^ Also, the thing coun- selled must be done,^" else the counselling will be only an indict- able attempt. To illustrate, — » See Rex v. Morris, 2 Leach, 1096. particular words to their context might 2 Ante § 355, 359 ; post, § 678. have influenced the construction. « Ante! § 648 (4). « Ante, § 204 et seq., 285 et seq. ; S. v. « See ante, § 261 (2) and note, 275. Stanley, 48 Iowa, 221. For some unsatisfactory reasons by Black- ' Keithler v. S. 10 Sm. & M. 192. stone, see 4 Bl. Com. 39, 40. , « See ante, § 649-651, 663-666. 5 P. V. Mather, 4 Wend. 229, 256, 21 'See ante, § 653, 663; Reg. v- Brown, Am D. 122. Possibly the relation of the 14 Cox C. C. 144. 10 1 Hale P. C. 622. 411 § 678 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK YI. § 676. 1. In Murder of Child. — If, before the birth of a child, a person advises the mother to murder it when born, and she does so, the adviser, not being present at the murder, is an acces- sory therein.^ And — 2. uttering Forgery. — In a locality where forgery is felony ,2 if several persons plan the uttering of a forged order, and one of them utters it in the absence of the rest, he only is a principal, while the others are accessories.^ Again, — 3. Larceny in Dwelling-house — Burglary. — A servant, on a Sat- urday afternoon, let a man into his master's house tb rob it, con- cealed him there till Sunday morning, then by arrangement left. Thereupon, in the servant's absence, he stole money; and he was adjudged to have been rightly indicted as principal in the larceny, and the servant as accessory before the fact.* If the charge had been for the burglary of breaking into the house, both would have been principals.^ § 677. Accessory to Accessory. — Where one employs another to procure a third to commit a felony, and it is committed, — thus becoming an accessory before the fact to another accessory, — he is an accessory also to the third ; that is, to the principal.^ " And it will be sufficient even though the accessory does not name the person to be procured, but merely directs the agent to employ some person." ^ § 678. 1. The Nature of the Felony — may be such as to render it impossible there should be an accessory before the fact in it. Thus,— 2. Manslaughter — does not commonly admit of an accessory before the fact ; because when the killing is of previous malice, it is murder.8 This is the ordinary doctrine, yet probably there may be a manslaughter wherein this is not so ; » as, if one should 1 Parker's Case, 2 X)y. 186, pi. 2; 2 And see Reg. v. Williams, 1 Den. C. C. Hawk. P. C. Curw. ed. c. 29, § 18. 39; post, § 698. 2 Ante, § 650 (2). 7 Parke, J. in Rex v. Cooper, supra, a Rex V. Badcock, Russ. & Ry. 249; See Rex w. Giles, 1 Moody, 166; C. u. Rex V. Soares, Russ. & Ry. 2,5, 2 East P. Glover, 111 Mass. 395. C. 974; Rex v. Else, Russ. & Ry. 142. 8 Bibithe's Case, 4 Co. 43 6; Goose's And see Rex v. Stewart, Russ. & Ry. 363. Case, Sir F. Moore, 461 ; 2 Hawk. P. C. * Reg. „. Tuckwell, Car. & M. 215. Curw. ed. c. 29, § 24. See Reg. v. Gay- 5 Rex V. Jordan, 7 Car. & P. 432 ; lor, Dears. & B. 288, 7 Cox C. C. 253, 40 ante, § 648, 649. Eng. L. & Eq. 556 ; Stipp «. S. 11 Ind. 62. Rex V. Cooper, 5 Car. & P. 535 ; Me- » Ante, § 348 a ; Reg. v. Taylor, Law Daniel's Case, Foster, 121, 125 ; 4 Bl. Com. Rep. 2 C. C. 147, 13 Cox C. C. 68. 37; 2 Hawk. P. C. Curw. ed. p. 436, § 1. 412 CHAP. XLVII.] ACCESSORY IN GENEEAL, BEFORE, ETC. § 679 order a servant to do a thing endangering life, yet not so directly as to make a death from the doing murder, it might be man- slaughter, — then, why should not the master be an accessory before the fact in the homicide ? And — ' 3. Second Degree Principals. — There may be principals of the second degree in manslaughter.^ So, — 4. Murder of the Second Degree — admits of accessories before the f act.2 And — 5. A Wife — may be such accessory in the husband's crime.^ § 679. 1. Petit Larceny. — In England, when our country was settled, larceny was divided into grand and petit, — the former being where the goods were over twelve pence in value; the latter, where the value was twelve pence or under. " And this," observes Coke, " was the ancient law before the Conquest." * In 1275, we have in Westm. 1 (3 Edw. 1), c. 15, the words " petty larceny that amounteth not above the value of twelve pence." ^ " In these prosecutions," says East, following Coke, " the valua- tion ought to be reasonable ; for when the statute (of Westm. 1, c. 15 ^) was made, silver was but 20d. an ounce, and at the time Lord Coke wrote it was worth 5s., and it is now higher." "^ 2. Grade of Crime — Punishment. — The punishment constituted the leading distinction between grand and petit larceny. Both were felonies, but the latter was never visited by death. " Only to be whipped or some such corporal punishmment" was the early visitation,^ afterward changed to imprisonment'^ and the same forfeiture of goods ^° as in grand larceny. 3. Petit Larceny in England — was elevated to the higher degree by 7 & 8 Geo. 4, c. 29, § 2." 4. In our States, — the common-law distinction of grand and petit larceny has been recognized, and in some of them it seems fully to prevail, though perhaps more or less modified by legisla- 1 S. V. Coleman, 5 Port. 32. And un- , '2 East P. C. 736, referring to 2 Inst, der the Ohio statute, Hagau u. S. 10 Ohi6 189, where Coke says: "The things stolen St. 459 i under the Indiana statute, Gofl are to be reasonably valued ; for the ounce V. Prime 26 Ind. 196. of silver at the making of this act was at 2 Jones V. S. 13 Tex. 168, 62 Am. D. the value, of 20c?., and now it is at the 55Q value of 5s. and above." And see 4 Bl. 8 Rec. V, Manning, 2 Car. & K. 887. Com. 239. * 3 Inst. 109, ^ 1 Hale P. C. 530. 6 And see 2 Russ. Crimes, 3d Eng. ed. ' 2 East P. C. 737 ; 3 Inst. 218. 1, and note; 11 Law Mag. & Rev. 268. " Ante, § 615. 6 East by misprint says "Westm. 2, " 2 Russ. Crimes, 3d Eng. ed. I, 82. 0. 25. 413 §681 TECHNICAL DIVISIONS AND DISTINCTIONS, [BOOK VI. tion.! There are States in which petit larceny is even reduced to misdemeanor .2 In North Carolina, a statute makes thefts of all kinds petit larcenies, — obliterating the distinction between the two grades in a manner the opposite of that adopted in England.^ In various other States, the distiilction has ceased to be of impor- tance. Even — §680. No Accessories. — Where petit larceny is 'felony, the same as though it were misdemeanor, it has by reason of its small criminality * no accessories.^ Those who in grand larceny are accessories before the fact are principals in petit,^ and it has been held that the accessory after the fact in petit larceny is not . punishable.' In North Carolina, these rules apply to all lar- cenies, even of things of the greatest value ; because they are all by statute made petit.^ How it is of larcenies of small sums under statutes of a different sort in other States, and the late English enactment, we are not informed by adjudication. III. The Like Partaker in Treason. § 681. 1. In Petit Treason, — never known in this country and now abolished in England,^ there were accessories the same as in felony.io But — 2. In High Treason, — now simply termed treason, there are, say the books, no accessories either before or after the fact, — those who would be accessories in felony and petit treason being principals.^' 1 S. ii. Larumbo, Harper, 183 ; S. «. Wilson, 3 McCord, 187; S. v. Spurgin, 1 McCord, 252 ; S. o. Wood, 1 Mill, 29 ; S. V. Bennet, 2 Tread. 693 ; Ward u. P. 3 Hill, N. Y. 395, 6 Hill, N. Y. U4 ; S. b. Goode, 1 Hawks, 463; S. u.Barden, 1 Dev. 518; Carpenter v. Nixon, 5 Hill, N. Y. 260 ; S. V. Murphy, 8 Blackt. 498 , S. V. Smith, Brayt. 143 ; S. 17. Wheeler, 15 Rich. 362; Montgomery v. S. 7 Ohio St. 107 ; Jenkins v. S. 50 Ga. 258. 2 Shay V. P. 22 N. Y. 317 ; P. v. Adler, 3 Par. Cr. 249, 254 ; P. «. Rawson, 61 Barb. 619 ; S. f. Gray, 14 Rich. 174 ; S. v. Hurt, 7 Misso. 321 ' S. V. Gaston, 73 N. C. 93, 21 Am. R. 459 ; S. «. Strond,.95 N. C. 626. And see S, 0. Mlnton, Phillips, N. C, 196. * See ante, § 212 et seq.; S. v. Goode, 1 Hawks, 463 ; Chancellor Walworth, in 414 Ward V. P. 6 Hill, N. Y. 144 ; Lasington's Case, Cro. Eliz. 750. ^ S. V. Henderson, 35 La. An. 45. ^ S. «. Barden, 1 Dev. 518; 2 East P. C. 743 ; Ward v. P. 3 Hill, N. Y. 395, 6 Hill, N. Y. 144. ' S. V. Goode, 1 Hawks, 463. 8 S. u. Gaston, 73 N. C. 93, 21 Am. R. 459 , S. V. Stroud, 95 N. C. 626. " Ante, §,611 i» 4 Bl. Com. 36 j 1 East P. C. 338 ; 1 Hawk. P. C. Curw. ed. p. 105, § 5 ; Anon- ymous, Dalison, 16. " 1 Hale P. C. 233, 237, 613 ; 3 Inst. 16, 138 ; Foster, 341 , 4 Bl. Com. 35, 36 ; 1 Hawk. P. C. Curw. ed. p. 15, § 39; 2 lb. p. 437, § 1 ; 1 Hume Crim, Law, 2d ed. 525, 526, note, where the Scotch law appears to be the same ; Charge on Law of Treason, 2 Wal. Jr. 134, 137 ; U. S. v. Hanway, 2 Wal. Jr. 139, 195 ; Anonymous, CHAP. XLVII.] . ACCESSOEY IN GENEEAL, BEFOEE, ETC. § 683 This proposition does not accord with the adjudged law as to the accessory after the fact ; ^ and as to the accessory before, it ve- quires some observation, though the present author accepts it as correct. Thus, — § 682. 1. No Accessories before. — It is but repeating the common language of the books to say that in treason there are no acces- sories before the fact, and tliat they who in felony would be such accessories are principals.^ Let us look at this more minutely. 2. Instigator as Doer — Indictment. — From this doctrine, com- bined with the ordinary rules of pleading, it results that the indictment, at the election of the pleader, may charge the trea- son which the procurer caused another to commit, in the same way as though executed by his own hand, pursuant to the rule that what one does by another he does by himself;^ or it may state his act of procuring as accessorial, in accord with the out- ward fact, — either method satisfying the established practice in all other pleadings, civil * and criminal.^ That such is the only meaning which this doctrine can have is plain ; because the dis- tinction between the accessory before the fact and his principal, in felony, is merely in the form of the allegation, and in the order of the trial ; while, as we have seen,^ the accessory would be a principal but for a technical rule of the old common law, introduced into it by a blunder, agaijist reason, and against all its other teachings in both civil and criminal procedure. And — § 683. 1. The Authorities — likewise are sufficiently distinct that the allegation in the indictment against one who has pro- cured a treason may be as thus stated.' But — 2. Order of Trial. — While this doctrine extends in reason as well to the order of the trial as to the rest, we have, on the other hand. Lord Hale's personal opinion, not based on adjudication, Dalison, 16; Anonymous, J. Kel. 19; Dali- v. Emett, 1 H. Bl. 313, 321; Feltmakers son, 14 ; Throgmorton's Case, 1 Dy. 98 6, v- Davis, 1 B. & P. 98, 102 ; 2 Chit. Plead, pi. 56; 1 East P. C. 93, 178, 186 ; Reg. v. 117, note; Lawes on Assumpsit, 110, HI. Tracy, 6 Mod. 30, 32, 12 Co. 81 ; Whita- ^ Reg. v. Tracy, 6 Mod. 30, 32 ; U. S. ker !). EngUsh, 1 Bay, 15; Chanet v. Par- v. Morrow, 4 Wash. C. C. 733 ; and other ker, 1 Mill, 333 ; Rex v. Bear, 2 Salk. cases cited post, § 685, 686 ; Crim. Pro. 417'; s. 0. nom. Rex v. Beare, 1 Ld. Raym. I. § 332. 414; Somervile's Case, 1 Anderson, 109. « Ante, § 673 (2). 1 Post § 701. ' I H^l« P- C- 21*. 238; 1 Gab. Crim. 2 Ante §681. I'aw, 895; 1 East P. C. 127; Reg. «. 8 ^nte, § 673 (2). Tracy, 6 Mod. 30, 32 ;. Rex v. Foy, Vern. * Brucker ». Fromont, 6 T. R. 659 ; & S. 540. See U. S. v. Burr, 4 Cranch, Heys V. Heseltine, 2 Camp. 604; Collis 469, 470, 496-498. 415 684 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. that the procurer should be convicted only with or after the per- son who did the act.^ Later writers have transmuted this opin- ion into law, and have echoed and re-echoed it as such.^ Finally, on the trial of Burr before Marshall, C. J., for the treason of levying war against the United States, the counsel for the defend- ant argued that the English law is so ; the counsel for the United States, quite against the interest of the prosecution, conceded the point ; and the learned Chief-Justice, in his opinion, fell into the current, not, however, deciding absolutely the question.^ § 684. Further as to which, — Lord Hale, to whom the mis- apprehension is thus traced, says in another place the same thing 1 2 Hale P. C. 223. 2 Foster, 346 ; 1 East P. C. 100, 101 ; 1 Gab. Grim. Law, 889. Hawkins, how- ever, lays down the true doctrine; but one of his editors, Leach, following Lord Hale, sets him ivrong. 2 Hawk. P. C. 6th ed. c. 29, § 2, Curw. ed. p. 437, § 1 and note. 3 U. S. V. Burr, 4 Cranch, 469, 504, Burr's Trial, passim. Too many Coun- sel and too Eminent. — This was a case of immense public interest and notoriety ; and on each side were employed a con- siderable number of very eminent lawyers. The reader, therefore, need not be sur- prised at finding it within the common fact that in proportion as a case attracts the public attention, and the counsel en- gaged in it are multiplied, it increases in learned fervor, but diminishes in true wisdom and the genuine learning of the law. One reason is that, as the author has explained in another connection (Pref. and Int. to Bishop Mar. Div. & S.), the excelsior up-scream, whereby men rise to eminence, is not conducive to exact truth in anything. Not often, either in legal or other science, is the greatest man the one who discerns truth the best. Perhaps this was the reason why the Founder of Chris- tianity chose unlettered and unljnown fishermen for His disciples and teachers. Another reason is that no one of the half- dozen or dozen lawyers on a side feels a particular responsibility for those parts of the performance which, with the honor following, are necessarily shared in com- mon ; while each is impelled by the in- stincts which go out after fame, to lift his individual light as high as possible in the 416 presence) of a community better able to judge of eloquence than of law. Be- sides, a man who is not answerable for the whole of even a subdivision cannot well bring his mind to so minute and ex- act a study of the entire case as is often indispensable to his seeing any one ob- ject, in any one part of it, correctly and clearly. This may be an infirmity of his nature ; but it is inherent in the human mind, and no integrity, station, calling, or learning can rise entirely superior to it. Again, if the lawyers employed are men who feel themselves to be very emi- nent, the care of each, which is necessar rily given most to what seems most im- portant, is to sustain his position, rather than evolve true legal doctrine and win a just .cause. A great case requires more lawyers than one on a side," because it involves more hard work than one can do. But they should not be unduly multiplied. And an eminent lawyer is not so good as a truly able one. Occa^ sionally a lawyer is both able and emi- nent ; then, in a trial, his ability is of service, but his eminence is an impedi- ment. An eminent lawyer without abil- ity is always a damage. Judge and jury resist what they deem the danger of being captured by his wiles ; and when they find nothing proceeding from him worthy of regard, they conclude that the fault is in his cause, and lean against It, and forbear to exercise their own ingenuity in the dis- covery of merits which otherwise they might see. It would be interesting to draw, as I might, illustrations of these views from several notorious cases, but I forbear. CHAP. XLVII.] ACCESSORY IN GENERAL, BEFORE, ETC. § 680 of the principal in the second degree in felony ; namely, that he should not be tried in advance of the principal in the first degree.^ But this idea, we have seen,^ was long ago exploded. As to trea- son, the mistake of this eminent person may have arisen from not distinguishing the procurer of the treason from him. who afterward receives the traitor.^ And it is believed that in spite of the doubts created by Burr's case, a man may by the law of this country commit treason without being present at the overt act, and may be prosecuted in advance of those who were present.* Still the authorities to this proposition are not very distinct. IV. In Misdemeanor. § 685-. All are Principals — Allegation against Procurers. — The authofities agree that there are in misdemeanor no accessories either in name or in the order of the prosecution. When, there- fore, one sustains in misdemeanor a relation which in felony makes an accessory before the fact, if what he does is of suffi- cient magnitude,^ he is to be treated as a principal ; the indict- ment charges him as such, and unless the pleader chooses to make the allegation in the accessorial form, as he may, it does not mention that the act was through another;^ and he -may be proceeded against either in advance of the doer or afterward, or jointly with him.'' Thus, — § 686. Assault and Battery — Betting on Election — Passing 1 1 Hale P. C. 613. Bailey, 132; Williams v. S. 12 Sm. & M. ^ Ante, § 648 (4). 58; U. S. v. Morrow, 4 Wash C. C. 733 ; 3 See post, § 692. Floyd v. S. 7 Eng. 43, 54 Am. D. 250 ; * Charge on Law of Treason, 2 Wal. Curlin v. S. 4 Yerg. 143 ; Reg. v Clayton, Jr. 134, 137 ; U. S. v. Hanway, 2 Wal. Jr. 1 Car. & K. 128 ; Rex v Dixon, 3 M. & S. 139, 195; Exparte'Bollman, 4Cranch, 75. 11,14; C v. McAtee, 8 Dana, 28 ; S v. And see Throgmorton's Case, 1 Dy 98, Lymburn, 1 Brev. '397, 2 Am. D. 669 ; pi. 56. Judge Tucker combats this doc- Reg. c. Tracy, 6 Mod, 30, 32 ; Reg. u. trine. See 4 Bl. Com. Tucker ed. Ap- Greenwood, 2 Den. C. C. 453, 9 Eng. L. pendix, 49, and at various other places. & Bq. 535 ; Reg. v. Moland, 2 Moody, 276 ; The following from Lord Coke is,a8 sound U. S. a. MUls, 7 Pet. 138 ; Rex v Douglas, in common-sense as in law : " All agree 7 Car. & P. 644 ; Rex v. Jackson, 1 Lev. that procurers of such treason to be done, 124 ; Uhl v. C. 6 Grat. 706 ; C. v. Gilles- before the fact done, if after the fact be pie, 7 S. & R. 469, 478, 10 Am. D. 475 ; done accordingly, in case of treason, are Sanders u. 8. 18 Ark. 198; Stratton v. S. principals ; for that they are participes 45 Ind. 468 ; Lowenstein v. P. 54 Barb. criminis in the very act." 3 Inst. 138. 299; Riley u. S, 43 Missis. 397; U. S. v. » Ante, § 212 et seq. Hartwell,3 Clif. 221 ; U. S. t>. Bayer, 4 « See ante, § 682 (2). Dil. 407 ; Reg. v. Burton, 13 Cox C. C. 71, ' 2 Hawk. P C. Curw. ed. c. 29, § 2 ; 75 ; Kinnebrew v. S. 80 Ga. 232. S. r. Cheek, 13 Ire. 114 ; S. v. Westfield, 1 VOL. I. — 27 417 § 688 TECHNICAL DIVISIONS AND DISTINCTIONS, [BOOK VK Counterfeits — False Imprisonment — - Selling Iiiquor — Obstructing Way — Burning Building — False Pretences — Bawdy-house. — If one emplo3'S another to commit an assault and battery ; i or to bet for him on an election ; '■' or to pass counterfeit money, where this offence is misdemeanor ; * or to make an arrest, amounting to an indictable false imprisonment;* or to sell intoxicating liquor without license, contrary to a statute ; ^ or to throw dirt into the highway, being a common-law nuisance ; ^ or to set fire to a building, where the burning is misdemeanor ; ' or to obtain money for him by false pretences , ^ or to keep a bawd^-house,* — the employer may be indicted and convicted as doer, before or after or with the person whom he employs. § 687. Intent to concur with Act. — For one to be guilty, his intent must concur sufficiently with his act.^" And — §688. 1. Small Offences — (Liquor-selling). — For reasons al- ready mentioned,!! the accessorial act must draw closer to the principal one as the misdemeanor is lighter. Yet in a small offence, like the selling of intoxicating liquor without license,!^ if the one who instigates to the act is also to be benefited by it, he is, though absent, criminally responsible. '^ And — 2. The Agent — in these cases is likewise, we have seen, re- sponsible." Again, — 3. Preventing Inquest — (Mistake of Law). — Wliere the cap- tain of a man-of-war, mistaking his leg^l duty,!^ had prevented' tlie coroner from taking an inquest on the body of -a man hanged in his ship, the court, granting an information, refused to proceed also against his boatswain, who had participated in the transac-' ' S. V. Lymburn, 1 Brev 397,2 Am. see S. w. Brown, 31 Me. 520; S. w. Stewart, D. 669: Rex v. Jackson, 1 Lev. 124; 31 Me. 515; ante, § 658. Bell V. Miller, 5 Ohio, 250, a civil case , 6 'fnberville >/. Stampe, 1 Ld. Raym. Greer w Emerson, 1 Tenn. 12, a civil 264. case; Baker «. S. 12 Ohio St. 214. 1 Reg. „. Clayton, 1 Car. & K. 128. '-, Williams y. S. 12 Sm. & M. 58. 8 Reg. v. Moland, 2 Moody, 276. ■" 2 East P. C. 973 ; U. S. u. Morrow, » Ross ». C. 2 B. Monr. 417. 4 Wash. C. C. 733; S. o. Cheek, 13 Ire. w Ante, § 628 et seq. ; S. v. PoUok, 4 114; Reg. V. Greenwood, 2 Den. C. C. Ire. 303, S. v. Hunter, 5 Ire. 369, 44 Am. 453, 9 Eng. L. & Eq 535. D 41. * Floyd V. S. 7 Eng. 43, 54 Am. D. " Ante, § 212 et seq. 657-659 250; Reg. V. Tracy, 6 Mod. 178. 12 See ante, § 685, -686, and the authori- 5 S. V Dow, 21 Vt. 484 ; C. v Nichols, ties there cited. 10 Met. 259, 43 Am. D. 432 , Schmidt o. " Stat. Crimes, § 1024. And see ante, 5 14 Mo. 137 ; S ». Anone, 2 Nott & McC. § 673 (2). 27; S. <; Borgman, 2 Nott & McC. 34, " Ante, § 6.58 (2); Stat. Crimes, § 1024. note , Smith o Adrian, 1 Mich. 495. And l^ Ante, § 294 (3), 418 CHAP. XLVII.] ACCESSORY IN GBNEEAL, - BEFORE, ETC. § 689 tion under his order.* Yet an information is in a measure dis- cretionary with the court, and perhaps on an indictment the boatswain would have been deemed liable. § 689. 1. The Peculiar Nature — of a crime may be such that it can be committed only by a personal doing of the for- bidden thing.2 Probably crimes of this sort are not numerous. Thus, — 2. Rape. — A boy physically incapable or a woman nilay be- come a principal offender in rape, by abetting a capable person.^ Surely, therefore, most other offences can be committed in. like manner. And — 3. Statutory. — The offences of this peculiar nature are chiefly the creations of statutes in special terms.* f » Rex V. Soleguard, Andr. 231, 234, => Vol, 11. § 1135 ; S. v. Jones, 83 N. C. 235. 605, 35 Am. E. 586. 2 See Stat. Crimes, § 145 ; ante, § 364, * See the first note to this section ; 369; Rex u. Douglas, 7 Car. & P. 644, ante, § 657, 658, Stamper v. C. 7 Bush, C. V. Dean, 1 Pick. 387; Mount v. S. 7 612. Sm. &'M. 277 , O'Blennis v. S. 12 Misso. ' 311; Vaughn v. S. 4 Misso. 530. 419 § 692 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. GEAPTER XLYIII. THE ACCESSORY AFTER THE FACT IN FELONY AND THE LIKE PARTAKER IN OTHER CRIMES. § 690, 691. Introduction. 692-700 a. As to Felony. 701-704. As to Treason. 705-708. As to Misdemeanor. Compare — as to the pleading, practice, and evidence, with Crim. Pro. U. § 1-15 , Dir. &F. § 113-122. §690. This Chapter — includes the accessory after the fact in felony, and partakers of like position in treason and mis- demeanor. § 691. How divided. — Having in the first sub-title of the last chapter seen what is the general law of accessory, we shall in this chapter consider specially of, T. The Accessory after the Fact in Felony; 11. The Like Partaker in Treason ; III. In Misdemeanor. I. The Accessory after the Fact in Felony. § 692. 1. Defined. — An accessory after the fact is one who, knowing a felony to have been committed, harbors the felon, or renders him any other assistance to elude punishment.^ 2. On what Principle. — To assist a felon to elude punishment is, in principle, an obstruction of public justice of the same na- ture as resisting an officer, rescuing a prisoner from him or from prison, perjury, and various other like offences considered in a preceding chapter.^ Plainly, therefore, it should be and it is indictable at the common law. But — 3. Aa to AooesBoriai. — In reason also, one -v^^ho renders this assistance, thus adding his will to an evil thing after another has 1 Rex V. Greenacre, 8 Car. & P. 35 ; son who, " knowing a felony to have been Wren v. C. 26 Grat. 952 ; White v. P. 81 committed, receives, relieves, comforts, or 111. 333. BlaclsBtone, following 1 Hale assists the felon." 4 Bl. Com. 37. P. C. 618, defines such accessory as a per- ^ Ante, § 465-469. 420 CHAP. XLVIII.] ACCESSORY AFTER THE FACT. § done it, does not thereby become a partaker in the guilt of the doer ; because only when an act and evil intent concur in time, is a crime committed.^ Therefore it is not from the reasoning of the law, but from ancient practice confirmed by modern, that the helper of a felon after the fact is classed as an accessory. And still the technical rule has become too fundamental in the com- mon law of crime to be overcome by juridical reasoning.^ 4. The Origin — of this blemish in our legal classification is not quite certain. We may presume that anciently the helping of a felon to elude punishment was deemed equal in evil with the act of him who was helped ; ^ that the judges, who gave shape to our common law, thought it not safe in a capital case to convict the one rendering this assistance in advance of the one assisted ; and, therefore, this second offence, scientifically independent of the first, was called accessorial, and its perpetrator an accessory. To distinguish him from aii accessory before the fact, who is punishable from a different reason,* he was termed an accessory after the fact. § 693. 1. Felony completed. — One who assists a felon before the felony is fully committed is a principal.^ It is only help given subsequently to its completion that can make an accessory after the fact.^ And — 2. Guilt known. — To be an accessory after the fact, a man must be aware of the guilt of his principal.' Therefore — 3. Helping escape. — One cannot become such accessory by helping a convicted felon to escape, unless he knows of the con- viction, or at least of the felony .^ On this ground also, — 1 Ante, § 207, 642. tion, gives assistance to the criminal, or 2 Ante, § 261 (2) and note. In accord divides the spoils with him, is not equally with" this view is the Austrian Law of guilty, but by those acts becomes guilty Accessory. — By the penal code of Aus- of another and special crime." Sanford tria, " The immediate criminal is not alone Penal Codes in Europe, 96. guilty of a crime, but also he who by « Ante, § 321 (2), 673 (2). command, counsel, instruction, or praise, * Ante, § 673. prepares the offence, or intentionsilly has « Ante, § 642 (1), 649, 650. ■ rendered assistance towards the execn- 6 4 b1. Com. 38 ; Harrel w. S. 39 Missis, tion of the same, or towards removing 702, 80 Am. D. 95. the obstacles to its commission ; lastly, ' Eex v. Burridge, 3 P. Wms. 439, he who has stipulated with the offender 493 ; Eex v. Greenacre, 8 Car. & P. 35 ; beforehand to give him criminal assist- 4 Bl. Com. 37 ; I Hale P. C. 323, 622 ; ance after the deed, or to participate Reg. k. Butterfield, 1 CoxC. C. 39; S. 0. with him in the gain arising therefrom. Empey, 79 Iowa, 460; ante, § 301-303. Whoever after the commission of the « Voi: II. § 1068, 1069; Rex v. Bur- crime, and without preliminary stipular ridge, supra. 421 § 695 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. 4. In Homicide. — Though a man knows that another has of malicp aforethought inflicted a blow on a third, still, as he cannot ordinarily be aware that the wounded person will die within a year and a day, without which there is no felony, he cannot be an acces- sory after the fact in the crime. And some accept as good a sec- ond reason, more doubtful, which is that the murder is not fully committed until the death.^ Yet it is believed to be possible, in exceptional circumstances, for one to become an accessory after the fact in a felonious homicide, by aid rendered the perpetrator before the death. §694.1. What Assistance. — Compounding ^ and misprision^ of felony are severally wrongs similar in nature to the act where- by one becomes an accessory after the fact. But they are too little helpful to the principal felon to be classed as accessorial. Thus,— 2. Not Prosecuting. ; — One is not such accessory who merely neglects to make known to the authorities that a felony has been committed, or forbears to arrest the felon,* or agrees not to prose- cute him. And — 3. Receiving Back — Food in Charity. — A fortiori, one does not become such accessory who merely receives back his own stolen ■ goods,' or charitably supplies a prisoner with food ; ^ for neither of these acts is any offence. So that — § 695. 1. The Test — of an accessory after the fact is that, distinguishing his acts from the foregoing, he renders his prin- cipal some personal help to elude punishment, — the kind of help being unimportant." Thus, — 2. Escape — Pood and Shelter — Break Prison — Rescue — Bribing Jailer. — He is an accessory who, with the requisite knowledge and intent, furnishes the principal felon " with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. So likewise to convey instruments to a ' 2 Hawk. p. C. Cunv. ed. p. 448, § 35 ; Cnrw. ed. p. 444, § 2.3, and p. 447, §29 ; Harrel v. S, 39 Missis. 702, 80 Am V>. 95. Wren v. C 25 Grat. 789. As to whether the blow is murder before 6 j Hale P. C. 619 ; 2 East P. C. 743 death, see ante, §113-115 and note ; Reg. 6 , l Hale P. C- 620 ; 4 Bl. Com. 38. V. O'Brian, 1 Den. C. C. 9, 3 Car. & K. ' See 2 Hawk. P, C. Cnrw. ed. p. 445- ■ "^- 447, § 26-31 ; Rex v. Lee, 6 Car. & P. 536 ; Post, § 709 et seq. Reg y Ohapple, 9 Car. & P. 355 ; Loyd ». ' Post, §716 etseq. S. 42 Ga. 221. * I Hale P. C. 618, 619 ; 2 Hawk, P. 0. 422 CHAP. XLVIII.] ACCESSORY AFTER THE FACT. § 698 felon to enable him to break jail, or to bribe tlie jailer to let him escape, makes a man an accessory to the felony." ^ But — 3. Keeping a Witness, — by persuasion or intimidation, from appearing against a felon on liis trial, does not render one the felon's accessory ; 2 though it is punishable as misdemeanor.^ § 696. 1. A Substantive Felony — is one depending on itself alone, and not on another felony to be first established by the conviction of the direct doer,* Now, — 2. Accessories distinguished. — We should not confound the guilt of him who commits a substantive crime with his who be- comes an accessory after the fact. Yet often the prosecuting power has the election to iiold an offender for either. Thus, — § 697. Prision Breach, Rescue, Escape, — to be treated of in the second volume," will furnish an illustration of this. One mode of helping a felon is to rescue him from lawful confinement, either before or after his conviction ; and the rescuer may be indicted for the substantive offence of rescue, or for being an accessory after the fact in the other's felony, at the election of the prose- cutor.^ The .idea on which the prosecution proceeds differs a little in the two forms, but not essentially. If a man is com- mitted on a charge of felony, though only awaiting his trial, the rescuing of him, or helping of him to break prison, is a distinct felony, equally whether he is guilty or not : when the commit- ment is on a charge of misdemeanor, it is, irrespective of the question of his guilt, a misdemeanor.'^ Still, where the commit- ment is for felony, the rescuer is also, or may be, an accessory after the fact in it ; and as the crime of the accessory is itself felony ,8 it is immaterial with which form of felony he is charged. Again, — - § 698. 1. Accessory after to Accessory before. — Since all ac- cessories in felony, whether before or after the fact, are felons,^ a 1 4 Bl Com 38; Vol. II. § 1066-1069; ' 1 Gab. Crim. Law, 305, 310; Jenk. Ree. V. Richards, 2 Q. B. D. 311, 13 Cox Cent. 171 ; ante, § 321 (2) ; Anonymous, C. C. 61 1. 1 Py 99' P*- ^'^ '• ^y^^ "■ S. 10 Ala. 236 ; 2 Roberts's Case, 3 Inst. 139 ; Reg. v. S. o. Murray, 15 Me. 100 ; Reg. v. Allan, Chappie, 9 Car. & R 355 Car & M. 295 ; P. ... Duell, 3 Johns. 449 ; 3 Roberts's Case, supra ; ante, § 468. Rex v. Stokes, 5 Car. & P. 148 ; C. v. Mil- * S. V. Ricker, 29 Me. 84. ler, 2 Aahm. 61 ; Rex v. Haswell, Russ. & 5 "Vol. II. § 1064 et seq. Ry- 458. 6 See, 'as afeording much light on this « Ante, § 673 (2) ; post, § 700 a. question. Rex v. Burridge, 3 P. Wms. » Ante, § 673 (2). 439, 483-485, 493 ; C. v Miller, 2 Ashm. 61 . 423 § 699 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. man may become an accessory after by helping the accessory be- fore, the same as by helping the principal felon, to elude justice.^ And such accessory after is deemed an accessory to the principal felon.^ He would seem, on principle, to be likewise an accessory to the other accessory. 2. Manslaughter, — we have seen, commonly admits of no ac- cessories before the fact.^ Yet it may have accessories after.* § 699. Receiving Stolen Goods. — One who with knowledge that goods liave been stolen receives them, is not an accessory within our definition, for he renders no personal help to the thief.^ Under the ancient common law, his offence was mispri- sion of the felony," committed by knowing it and neglecting to prosecute the felon ; or if he bargained not to prosecute him, or to do it but faintly, his offence was a compounding of the felony.'^ Misprision and compounding, let us remember, are severally mis- demeanor. Hereupon the Statute of 3 Will. & M. c. 9, § 4, made tlie receiver an accessory after the fact,^ thus elevating the mis- demeanor to felony. The consequence whereof was that, he could be punished only as accessory, agreeably to the rule stated in " Statutory Crimes "^ that when a misdemeanor is by statute made a felony, it is no longer indictable as misdemeanor.^" Sup- plementing this Statute of Will. & M. by 1 Anne, stat. 2, c. 9, § 2, and 5 Anne, c. 31, § 5, 6, we have the further provision that where the principal felon could not be taken, the receiver might be separately prosecuted as for misdemeanor." The modern Eng- lisli legi-slation permits the receiver of stolen goods to be pro- ceeded against for felony, as a substantive offence, without any reference to the principal offender.^^ 1 2 Hawk. p. C. Curw. ed. p. 436, § 1. 9 Stat. Crimes, § 174, See as to the law of Tennessee, S. <^. Payne, ^ 2 East P. C. 744 ; Foster, 373 ; 4 Bl. 1 Swan, Tenn. 383. Com. 133. 2 Rex V. Jarvis, 2 Moody & R. 40 ; n 2 East P. C. 744, 745 ; Foster, 373, Keg, 11. Parr, 2 Moody & R. 346; Cassels 374; 4 Bl. Com, 133. And see Rex ». V S.i Yerg. 149; Wright v. S: 5 Yerg. Wilkes, 1 Leach, 103, 2 East P. C. 746; 154, 26 Am. D. 258. And see ante, § 677. Rex o. Pollard, 8 Mod. 264, 265. See 8 Ante, § 678 (2).' ante, § 668 (1). * Rex V. Greenacre, 8 Car. & P. 35. 12 pex v. Solomons, 1 Moody, 292 ; 6 Loyd V. S. 42 Ga. 221 ; P. v. Stakem, Rex v. Pnlham, 9 Car. & P. 280 ; Rex 40 Cal. 599. 0. Wheeler, 7 Car. & P. 170; Rex v. Hart- 6 Post, § 717 et seq. all, 7 Car. & P. 475 ; Rex v. Austin, 7 Car. ' 2 East P, C. 743, 744 ; 4 Bl. Com. & P. 796. And see Rex v. Wyer, 1 Leach, 38, 133 ; 1 Hale P. C. 619 ; 2 Hawk. P. C. 480, The crime of the receiver, however, Curw. ed. p. 447, § 30; Foster, 373. is not, like that of the principal, larceny. 8 S. o. Butler, 3 McCord, 383. P. v. Maxwell, 24 Cal. 14. 424 CHAP. XLVIIT.J ACCESSORY AFTER THE PACT. § 702 § 700. "With us, — these statutes of William & Mary and of Anne (a. d. 1691-1706), being subsequent to the settlement of the older of the colonies, are on principle not common law in all the original States, but are such in a p3.rt of them.^ 'Later, in most and perhaps all the States, the legislative power has made provisions, following the English ones, whereby the receiving of stolen goods is punishable separately from the larceny of them, either as felony or as misdemeanor.^ § 700 a. Felony. — The offence of an accessory, whether before or after the fact, is, like his principal's, felony.^ II. The Like Partaker in Treason. § 701. General. — The books tell us that there are no acces- sories after the fact in treason, but they who in felony would be> such are in treason principals. Yet by whatever name called, they are practically treated in every particular as accessories ; the charge in the indictment against them must specify the acces- sorial nature of their offence, and they cannot be convicted in advance of the one by whose direct volition the traitorous act was performed.* Evidently, therefore, it is a mere abuse of terms to call them principals ; for they are really accessories. The Eng- lish common law makes them traitors,^ just as it makes accesso- ries after the fact in felony felons. § 702. In Statutory Treasons. — Though thef English statutes of treason were evidently intended to abolish all common-law trea- 1 Kilty, in his Eeport of Statutes, S. v. Sanford, 1 Nott & McC. 512 ; S. v. says : " The 4th section [of the Statute Coppenburg; 2 Strob. 273 ; C. v. Frye, 1 of William & Mary], which made the re- Va. Cas. 19; S. v. Weston, 9 Conn. 527, ceiver of stolen goods an accessory to the 25 Am. D. 46 ; Cassels v. S. 4 Yerg. 149 ; felony, did extend to the province [of Wright w. S. 5 Yerg. 154, 26 Am. D. 258; Maryland], as appears by cases of prose- Swaggerty v. S. 9 Yerg. 338 ; S. v. Ives, cutions under it, as did also those of 1 13 Ire. 338 ; C. v. Elisha, 3 Gray, 460 ; Apne, c. 9, and 5 Anne, t. 31, by which Bieber v. S. 45 Ga. 569. such receiver was liable to be prosecuted ■> 4 Bl. Com, 39 ; 2 Hawk. P. C. c. 20, for a misdemeanor 'before the conviction § 11 ; Crira. Pro. II. § 7. And see Long of the principal offender ; but both these v. S. 1 Swan, Tenn. 287 ; ante, § 673 (2). cases are provided for by the Act of 1809, * 1 Hale P. C. 233, 237, 238 -, 2 Hawk, c. 138 " p. 179, 180. And see S. v. Butler, P. C. Curw. ed. p. 437, 441, § 3, 14 ; 1 East 3 McCord, 383 ; Loyd v. S. 42 Ga. 221. P. C. 101 ; Foster, 341 et seq. . 2 See P. . Bird, 9 Moore, 430, 2 Bing. 258. 621. 430 CHAP. XLIX.] COMPOUNDING. § 713 American judge has left a dictum that " the compounding of pen- alties is an offence at common law," ^ — which, if in any degree correct, requires modifications.^ A pecuniary penalty created by statute should be very heavy to render a compounding under it, especially if the prohibited act is not malum in se, indictable according to just principles of jurisprudence'. But — § 713. 1. Private Settlement under Sanction of Court. — In the language of Blackstone, " it is not uncommon, when a person is convicted of a misdemeanor which principally and more imme- diately affects some individual, as a battery, imprisonment, or tiie like, for the court to permit the defendant to speak with the prosecutor before any judgment is pronounced ; and if the prose- cutor declares himself satisfied, to inflict but a trivial punishment," — a proceeding which this commentator considers dangerous, ex- cept in particular cases before the higher courts.^ Yet it is well established by English authority.* And — 2. Amends. — • Both in England and in our States, the court, in determining the amount of punishment, will more incline to clemency if the offender has shown repentance by doing all in his power to repair the wrong.^ Moreover, — 3. statutes permitting Private Settlement. — In some of our States, legislation has provided for the complete discharge of the wrong-doer in a few special offences on his making full reparation to the injured person, or has otherwise regulated this question, — the particulars whereof it would be needless here to specify.^ 1 CoUamer, J. in Hinesburgh v.. Sum- then it is too late to compound." Brery ner, 9 Vt. 23, 26. And see Kdgcombe v. v. Levy, 1 W. Bl. 443. Eodd, 5 East, 294. ■ ^ Beeley v. Wingfield, 11 East, 46, 48; 2 See Rex v. Crisp, 1 B. & Aid. 282 ; Rex v. Grey, 2 Keny. 307. See post, Rpx I). Southerton, 6 East, 126 ; ante, § 948-950. § 711. , 6 P. K. Bishop, 5 Wend. HI; Bradway = 4 Bl. Com. 363. "• Le Worthy, 9 Johns. 251 ; Fagnan r. * 1 Russ. Crimes, 3d Eng. ed. 132 ; Knox, 66 N. Y. 525 ; Price v. Van Doren,^ Beeley v. Wingfleld, 11 East, 46 ; Baker 2 Southard, 578 ; Dunn w. S. 15 Ga. 419 ; V. .Townsend, 7 Taunt. 422 ; Kirk v. McDaniel v. S. 27 Ga. 197 ; Chandler v. Strickwood( 4 B. & Ad. 421 ; Rex v. Eng- Johnson, 39 Ga. 85 ; Statham w. S. 41 Ga. land, Cas. temp. Hardw. 158; Reg. w. 507; Stancel ». S. 50 Ga. 152 ; Goolsby i-. Roxburgh, 12 Cox C. C. 8, 2 Eng. Rep. Bush, 53 Ga. 353 ; Dodson v. McCauley, 165. Where a part of the penalty was 62 Ga. 130; S. v. Hunter, 14 La. An. 71 ,' going to the crown, a motion to permit Bone v. S. 18 Ark. 109; Partridge v. the defendant to compound with the Hood, 120 Mass. 403, 21 Am. E. 524; prosecutor was denied after verdict of Saxon v. Conger, 6 Or. 388; S. u. Hen- guilty; "for the king's moiety of the ning, 33 Ind.'189; Fribly v. S. 42 Ohio penalty is vested by the conviction, and St. 205. 431 § 715 a TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. § 714. 1. Reclaiming Stolen Goods — Other Amends. — We have seen ^ that one whose goods have been stolen may lawfully receive them back, yet may not agree also to forbear prosecuting thd thief. And the right to take amends is believed to extend like- wise to all other private injuries from public wrongs.^ Yet this will not justify a compounding under the guise of amends.^ 2. Enforcing Agreement. — Under what circumstances a coui-t will decline to enforce a private undertaking to pay damages for acts done in committing a public offence, as being calculated to obstruct the course of justice,* it would not be relevant here to in- quire. If, in a particular instance, the plaintiff is refused redress in his civil suit, he may still not be indictable. § 715. Extortion. — There are extortions by officers, and other obstructions of public justice by persons in and out of office, analogous to compounding, and punishable on nearly the same grounds, while not ordinarily classed under this title.^ § 715 a. Restated, — the doctrine of this chapter is that agreeing not to prosecute one who has committed a crime, termed com- pounding it, is an indictable obstruction of public justice. Yet, within limits not well defined, there may be a bargaining of this sort which in the particular instance the court will approve as not objectionable, whereupon with the judicial approbation it may 1 Ante, § 694. And see ante, § 699. bury v. Ellis, 4 Cush. 578 ; Daimouth v. 2 Plumer v. Smith, 5 N. H. 553, 22 Bennett, 15 Barb. 541 ; Kirk v. Strick- Am. D. 478; Beeley i-. Wingfleld, 11 wood, 4 B. & Ad. 421; Loomis u. Cline, East, 46, 48 ; Baker v. Townsend, 7 Taunt. 4 Barb. 453. A man accused his cashier 422, 426 ; Fagnan v. Knox, 66 N. Y. 525 ; of stealing money, but did not set on foot Trafton v. S. 5 Tex. Ap. 480. any prosecution ; the cashier acknowledged * S. V. Duhammel, 2 Harring. Del. that he had omitted to enter certain sums, 532, 533. begged the employer not to expose him, * See Bell v. Wood, 1 Bay, 249 ; Mat- and gave his note, secured by his father's tocks V. Owen, 5 Vt. 42 ; Plumer v. Smith, indorsement and mortgage, for the amount 5 N. H. 553 ; Cameron v. McEarland, 2 Car. claimed to have been taken. The employer Law Repos. 415, 6 Am. D. 566 ; Corley v. made no promise not to prosecute, orstipu- Williams, 1 Bailey, 588; Hinesburgh v. lation that the amount secured was all. Sumner, 9 Vt. 23, 26 ; Bailey v. Buck, 1 1 And it was held that the note was not Vt. 252 ; State Bank v. Moore, 2 South- extorted ■ by threats, and not given to ard, 470; Murphy v. Bottomer, 40 Mo. compound a felony. Catlin n. Henton, 67 ; Ford ». Cratty, 52 111. 313 ; Brown v. 9 Wis. 476. And see Reg. v. Daly, 9 Padgett, 36 6a. 609; Porter !•. Jones, 6 Car. & P. 342. Coldw. 313 ; Collins v. Blantern, 2 Wils. ^ See Eex v. Harrison, 1 East P. C. 341,350; Edgcombe v. Redd, 5 East, 294 ; 382; Rex v. Buckle, 1 Russ. Crimes, 3d Keir v. Leeman, 6 Q. B. 308, where there Eng. ed. 408 ; Reg. v. Loughran, 1 Crawf. is a general review of the authorities ; & Dix C. C. 79. Fallowes v. Taylor, 7 T. R. 475; Kings- 432 CHAP. XLIZ.J COMPOUNDING. § 715 fl be lawfully and validly made. So likewise there are offences of such special natures or minor turpitudes that the compounding of them in pais will not be deemed obstructions of public justice, therefore it will not be criminal, — another doctrine whose limits do not admit of exact definition. This sort of obstruction of pub- lic justice, like various others spoken of in other connections, is in nature accessorial to the crime compounded, yet practically it is an independent and substantive offence, indictable and punish- able separately from that compounded. Whether the crime com- pounded is treason, felony, or misdemeanor, the compounding is misdemeanor. In a part of our States, there are statutes more or less modifying or defining what is set down in this chapter. VOL. I.— 28 433 § 718 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. CHAPTER L. MISPRISION. Compare — .with Dir. & P. § 128-130, for the procedure. § 716. The Term " Misprision " — is sometimes employed to de- note " all such high offences as are under the degree of capital, but nearly bordering thereon." ' Yet "high misdemeanor" better conveys this meaning, while the precision of our language is pro- moted by restricting "misprision" to neglects ; and such, it is be- lieved, is the better modern usage. § 717. 1. Defined. — Misprision, whether of felony or of treason, is a criminal neglect, either to prevent it from being committed, or to bring to justice the offender after its commission.^ 2. Misprision of Misdemeanor — is unknown equally in the facts and the language of the law ; because, for reasons already explained,^ it is too trifling a dereliction from duty to engage the attention of the tribunals. 3. Misprision of Treason, — on the other hand, being an appendage to the highest crime, was anciently held to be a common-law treason ; but now both it and misprision of felony are misdemeanor.* § 718. Two Forms. — Our definition discloses that the neglect which constitutes a misprision may be in either of two forms, — to prevent a treason or felony, or to bring to justice its perpetra- tor. The law treats the two as equal in turpitude, yet few would so regard them in morals. A learned historian tells us that by the laws of Egypt, " whoever had it in his power to save the life of a citizen, and neglected that duty, was punished as his murderer," 1 4 Bl. Com. 119. See further, as to his knowledge; hut the law which would the meaning of the word, ante, § 624 (2). punish him in every case for not per- 1 Hale P C. 484. ■ forming this duty is too harsh for man." = Ante, § 212 et seq. 267 (3). " It may Marbury v. Brooks, 7 Wheat. 556, 575. be the duty of a citizen," said Marshall, * 4 Bl. Com. 120; Eden Penal Law, 3d C. J. " to accuse every offender, and to ed. 202. And see 1 Hale P. C. 371 ; ante, proclaim every offence which comes to § 710 (3). 434 CHAP. L.J MISPRISION. § 721 — a provision deemed by him "remarkably severe." ^ By our law, it is not murder even for one to stand by and see another mur- dered, without interfering, where his will does not contribute to what is done.2 It is only misprision of felony. But any law would be something more than " severe " which should condemn to the gallows a man who was merely too slothful or too humane to procure the execution of another guilty of a capital crime. § 719. Misprision of Libel. — Coke says : " It was resolved in the Star jDhamber, in Halliwood's Case, that if one finds a libel (and would keep himself out of danger), if it be composed against a private man the finder either may burn it or presently deliver it to a magistrate; but if it concerns a magistrate or other public person, the finder ought presently to deliver it to a magis- trate, to the intent that by examination and industry the author may be found out and punished." ^ This seems to carry the doc- trine into cases of aggravated misdemeanor ; but there is no ground for believing that any courts of the present day would fol- low this lead of the old Star Chamber. § 720. The Doctrine of Misprision, — as now understood, is as follows : One to be responsible for a criminal thing done by another must in some way make contribution thereto from his will.* Yet without such contribution, he can commit a crime of his own in respect of the other's crime. So that if while another is perpetrating a treason or felony into which his will does not enter, he stands by without using the- means in his power to pre- vent it; 6 or if, after it has been done in his absence, he is made aware of the fact yet neither discloses it to the authorities nor does anything to bring the offender to justice, — the law holds him to be guilty of a breach of duty due to the community and the government, and for this breach punishes him.e The name which professional usage has given to the breach is misprision of treason or of felony. § 721. Limit of Duty as to Misprision. — How much, to avoid 1 1 Tytler's History, Boston ed. of 1844, ' 1 East P. a 377 ; 1 Knss^ Crimes, 3d 37 Eng. ed. 45 ; 2 Hawk. P. C. Curw. ed. p. ' 2 Connaughty v. S. 1 Wis. 159, 60 Am. 440, § 10 ; Foster, 350. D. 370; Burrell v. S. 18 Tex. 713; ante, « 1 Rnss. Crimes, 3d Eng. ed. 45 ; 1 §633(1), 634(1). . ^r'^:?:'''''rL'^r^-^:3:''rr: 3 Case de Libellis Famosis, 5 Co. 125. ed. p. 444, 447, § 23, 29^ 1 Hawk._ P. C. 4 Ante, § 629 ; 2 Hawk. P. C. Curw. Cnrw. ed. — ° " ' -1. p. 440, § 10; Foster, 350; S. v. Hil- Hale P. C dreth, 9 Ire. 440, 51 Am. D. 369. S 267-276. 435 § 722 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. the guilt of misprision, a man must do toward preventing a crime or bringing the offender to punishment, it is dif&cult to state ; and doubtless the rule will vary with the nature and magnitude of the offence, and the kind and degree of public provision made for searching out aiyi prosecuting offenders.^ Eussell, following the ordinary language of the English books, says that " a man is bound to discover the ci'ime to a magistrate with all possible ex- pedition ; " ^ and Coke, " if any be present when a man is slain and omit to apprehend the slayer, it is a misprision." ^ We saw in " Criminal Procedure " what a private person may do to arrest offenders ; but one is not always indictable for not doing all that the law permits.* § 721 a. Intent. — It would seem in principle that the motive prompting the neglect of a misprision should be in some form evil as respects the administration of justice ; for example, to prevent the offender's punishment, or to withhold due aid from the government. And it has been judicially deemed that one who conceals another's crime simply from anxiety for his own safety is not rendered thereby an accomplice therein, but this does not precisely cover our present inquiry.^ And indeed the suggestion of this section does not probably admit of being made precise. § 721 h. statutes — have in some of our States covered in a measure the subject of this chapter.^ § 722. The statutes of the United States — make punishable both misprision of felony ^ and misprision of treason,^ against the general government. 1 And see ante, § 270. 4 Crim. Pro. I. § 164-172. 2 1 Russ. Crimes, 3d Eng. ed. 45. And * CarroU v. S. 45 Ark. 539. seelEastP. C. 139; 1 Hale P. C. 372 ; S. 6 g. „. Hann, 11 Vroom, 228; S. v. V. Leigh, 3 Dev. & Bat. 127 ; Long v. S. 12 Reed, 85 Mo. 194. Ga. 293. 7 R. s. of U. S. § 5390. 8 3 Inst. 139. 8 lb. I 5333. 436 CHAP. LI.] ATTEMPT. § 725 CHAPTER LI. ATTEMPT. §723. Introduction. 724-730. In General of Subject and Doctrine. 731-736. Specially of the Intent. 737-769. Specially of the Act. 770,771. Combinations of Act and Intent. 772. Degree of the Offence. 772 a. Doctrine of Chapter restated. Consult, — for the pleading, practice, and evidence, Crim. Pro. II. § 71-97 ; Dir. & P. § 100-112. And see the several offences^ for the attempt to commit the particular offence. § 723. How Chapter divided. — We shall consider, I. In Gen- eral of the Subject and Doctrine; II. Specially of the Intent; III. Specially of the Act; IV. The Combinations of Act and Intent; V. The Degree of the Offence. I. In General of the Subject and Doctrine. § 724. 1. In Preceding Chapters, — various elucidations of the subject of this one appear.^ Among them it is shown that — 2. Endeavor short of Attempt. — The English courts recognize the indictability of endeavors to commit crime when too remote from the accomplished fact to be termed attempt. And we saw that no difference between the English and American law on this question appears, only we give the name " attempt " to these in- dictable endeavors.^ It would be difficult to state a satisfactory reason for the greater minuteness of the English classification. § 725. 1. Intricate and Important. — The subject of this chapter is alike intricate and important. The reports are. full of cases upon it, yet it is but imperfectly understood by the courts. And — 2. Text-books. — Among the legal text-books, there was not any one, English or American, until the present author wrote, 1 For example, ante, § 204-206, 237, " Ante, § 435, 436. And see S. v- 434, 435, 441, 468, 503 (2), 540, 604, 675. Smith, 80 Mo. 516. 437 § 728 (♦ TECHNICAL DIVISIONS AND DISTINCTIONS. LBOOK VI. which contained on the subject more than, a few paragraphs of loose and inadequate statements of doctrine. If more extended expositions have been made by any author since, it has been simply in imitation and following of the present series of books. § 726. The Principle — upon which the doctrines of this chap- ter proceed can best be shown on a groundwork of other doc- trines, already explained. Crime consists of a combination of act and evil intent, detrimental to the public, and sufficient in magnitude for the law's notice.^ Commonly, yet with exceptions, the evil intent need not be to do the particular wrong which in fact it accomplishes, but any^form of evil in the intent will suffice to render the act the same crime as though specifically meant.^ Now, corresponding to this, we have the reverse case, wherein one intends to do a particular indictable thing, and enters upon the doing, or takes some step toward it, yet from, being inter- rupted, from otherwise abandoning his purpose, from an imfore- seen non-adaptation of means, or from something else of a like nature intervening, fails to produce either the result meant or any other result which the law has made a substantive crime. In a case of this sort, the specific criminal intent imparts to the ordi- narily inadequate act a special criminality of its own. Thereupon, if the combined act and intent are sufficient in magnitude of evil to be ,within the law's notice, it punishes the combination, not so heavily as though the wrong meant had been fully accomplished, but more lightly under the name " attempt." In other words, and to descend to minuter expositions, — § 727. More briefly, — if a man undertakes to do a particular wrong of the indictable sort, and does some act toward it but fails to complete what he meant, his evil intent and the act together constitute what is shown in prior elucidations of the present volume to be a common-law crime ; * provided the act is not too trivial for the law's notice.* For the intent is sufficient, and the adequacy of the act, as thus augmented by its specially evil pur- pose, is the only further object of inquiry.^ Therefore — §728. Defined.— An attempt is an intent to do a particular thing which the law, either common or statutory, has declared to 1 Ante, § 32, 204-207, 212-228, 229- < Ante, § 213, 223 et seq. 254, 285-424, 430-597 ra. 6 P. v. Lawton, 56 Barb. 126 | Cun- 2 Ante, § 323-336. ningham v. S. 49 Missis. 685. » Ante, § 204-207, 435. 438 CHAP. LI.] ATTEMPT. § 729 be a crime, coupled with an act toward the doing, sufficient both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law that does not concern itselt-wltli things trivial and small. Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act toward it faMing short of the thing intended.^ Hence, — § 729. 1. The Two Elements — of an evil inten|/^nd\b. simulta- neous resulting act constitute, yet only in combination, W indict- able attempt, — the same as in any other crime. As to — 2. The Act. — We have seen^ that an act may be evil in itself, or evil by reason of the intent prompting it,^ or being in itself evil may be rendered more so by the intent. Now, in attempt, the act may be either evil or indifferent in itself ; but whether the one or the other, its special reprehensible quality, as an ele- ment in this form of indictable wrong, is derived from the par- ticular intent whence it proceeds. In contrast whereto, — 3. Intent not Specific. — When the law makes an act, whether more or less evil in itself, punishable though done siinply from general malevolence, if one takes what, . were all accomplished, would be a step toward it, yet if he does not mean to do the whole, no court can justly hold him answerable for more than he does. And when the thing done does not constitute a substantive crime,* there is no ground for treating it as an attempt. So that neces- sarily an act prompted by general malice, or by a specific design to do something else, is not an attempt to commit a crime not in- tended. But — 4. Specific Intent. — If, to a measure of wrong-doing less than the law requires for the substantive crime, one adds the specific purpose to do all, whether such substantive crime is one possible of being committed without the specific purpose or not, the common law, generally in our States confirmed and supplemented ■by statutes, punishes him for the combination of act too small and the specific intent which in most indictable wrongs is need- lessly large, terming the whole, as ordinary speech does, an attempt to commit the unaccomplished offence. Where the sub- stantive crime meant requires the specific intent, though this in- 1 See Johnson v. S. 14 6a. 55; S. ». ' Rex v. Sutton, Cas. temp. Hardw. Marshall, 14 Ala, 411 ; Cunningham v. S. 370. 49 Missis. 685. * ^°' *^^ meaning of this term, see 2 Ante, § 434 et seq. and other places, ante, § 696 (1). 439 § 731 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. tent does not in the same sense as in the other case aggravate what is done, still it adds a culpability which mere general malevo- lence could not give. So that the indictable attempt exists only when the act, short of the substantive crime, proceeds from the specific intent to do the entire evil thing, thus imparting to so much as is done a special culpability .^ When we say that a man attempted to do a given wrong, we mean that he intended to do, specifically, it ; and proceeded a certain way in the doing. The intent in the mind covers the thing in full ; ^ the act covers it only in part. Thus, — § 730. Murder — Attempt to Murder. — To commit murder, one need not intend to take life ; * but to be guilty of an attempt to murder, he must so intend.* It is not sufficient that his act, had it proved fatal, would have been murder.^ Still further to descend to the minute, — 11. Specially of the Intent. § 731. 1. To do Substantive Crime. — To repeat, yet in another form of words, the intent in attempt must be specific, to do some act which, if it were fully performed, would constitute a substan- tive crime.® Therefore, as we have seen, — 2. General Malevolence — is not sufficient, even where it and the full act would constitute together a substantive offence. So, — 3. Civil -Wrong. — The doctrine that an intent to commit a mere civil wrong may sometimes render indictable an act injuri- ous to the public,'^ while" applicable to substantive offences, is un- known in attempt. But — 4. To commit Pull Crime. — In attempt, the offender's purpose 1 Cunningham v. S. 49 Missis. 685 ; » Vol. II. § 676 ; Carter v. S. 28 Tex. Scott w. S. 49 Ark. 156; Pruitt v. S. 20 Ap. 355. Tex. Ap. 129; Moore v. S. 26 Tex. Ap. 4 Vol. II. § 741 ; post, § 736; Maher 322 ; Hanson v. S. 43 Ohio St. 376. w. P. 10 Mich. 212, 81 Am. D. 781 ; Slat- 2 Post, § 735, 736 ; Eden Penal Law, terly v. P. 58 N. Y. 354 ; Eeg. v. Lalle- 3d ed. 86, 87 ; Rex v. Boyce, 1 Moody, 29 ; ment, 6 Cox C. C. 204 ; Henderson v. S. C. V. Martin, 17 Mass. 359 ; S. o. Mitchell, 12 Tex. 525 ; Courtney v. S. 13 Tex. Ap. 5 Ire. 350; Reg. v. Stanton, 1 Car. & K. 502 ; Reg. v. Donovan, 4 Cox C. C. 399. 415; Roberts v. P. 19 Mich. 401 j S. v. » S. v. Evans, 39 La. An. 912; Har- Jefeerson, 3 Hairing. Del. 571 ; Reg. v. rell v. S. 13 Tex. Ap. 374 ; White v. S. Cox, 1 Post. & F. 664. And see Eeg. v. 13 Tex. Ap. 259 ; Carter v. S. supra. Adams, Car. & M. 299 ; Reg. «. Pretwell, e Ante, § 729 (4). Leigh & 0. 443, 9 Cox C. C. 471 ; Sulli- 7 Ante, § 236, 330. vant V. S. 3 Eng. 400. 440 CHAP. LI.]' ATTEMPT. § 733 must be to do what constitutes a substantive crime, and to do all of it.i Thus,— 5. In Rape. — To constitute an assault with intent to commit a rape, the man's purpose must be to use force, should it be neces- sary, to overcome the woman's will.^ For example, it is not enough that he means to solicit her, however urgently, to consent to a carnal connection.'^ § 732. Change of Purpose. — A crime, once committed, may be pardoned, but it cannot be obliterated by repentance.* Therefore if a man resolves on a criminal en^terprise, and proceeds so far in it that his act amounts to an indictable attempt, it does not cease to be such though he voluntarily abandons the evil purpose.® Thus, — § 733. 1. In Rape. — If a man assaults a woman meaning to ravish her, but this intent subsides before penetration, and he de- sists, he is still guilty of assault with intent to commit rape.^ And it is the same when he is frightened away by persons coming in answer to her cries.^ Or if, after he has made the assault with the intent to ravish, the woman who had resisted yields volunta- rily, so that there is no rape, the offence of assault with intent to commit rape, which had been perpetrated, remains.^ But — ' Ante, § 729 (4). circumstances independent of the will of 2 Taylor v. S. 50 Ga. 79; Reg. v. the author." Sanford Penal Codes in Wright, 4 Fost. & F. 967 ; Johnson v. S. Europe, 61. So, by the penal code of 63 Ga. 355 ; Coleman v. S. 26 Tex. Ap. Spain, " Criminal attempt is a direct com- 252 ; Reagan v. S. 28 Tex. Ap. 227 ; mencement of execution, by external acts, Hamilton v. S. 11 Tex. Ap. 116; S. t. the realization of which is hindered by Massey, 86 N. C. 658, 41 Am. R. 478; causes independent of the will of the Peterson v. S. 14 Tex. Ap. 162. author." lb. 122. And by the Austrian 3 Irving V. S. 9 Tex. Ap. 66 ; House v. code, " Criminal attempt is punishable S. 9 Tex. Ap. 53 ; S. v. KendaU, 73 Iowa, when the criminal has committed an 255, 5 Am. St. 679; S. v. Massey, 86 action leading to the commission of a N. C. 658, 41 Am. R. 478 ; Saddler v. S. 12 crime, ' which crime, however, was hin- Tex, Ap. 194 ; Sanford v. S. 12 Tex. Ap. dered by some circumstances independent 196 ; Thomas w. S. 16 Tex. Ap. 535. of the will of the author. ... An attempt * Ante,§208a; Vol.II.§112(2),1122; exists also when a person endeavors to C. V. Tobin, 108 Mass. 426, 429. persuade another to a crime which he 6 See the cases to the next section ; does not commit." lb. 96. But these also S. V. McDaniel, Winst. i. 249 ; oh- codes cannot control an unwritten juris- servations of Gibson, C. J. in Shannon v. prudence. C. 14 Pa. 226. tTnder Foreign Codes. ^ Lewis !;. S. 35 Ala. 380, 389. See — By the Prussian penal code, following Taylor v. S. 50 Ga. 79. that of France, as stated by Sanford, " an ' S. v. Elick, 7 Jones, N. C. 68. attempt is only punishable when the same 8 s. v. Cross, 12 Iowa, 66, 79 Am. D. is manifested by acts which constitute a 519 ; S. v. Atherton, 50 Iowa, 189, 32 Am. commencement of execution, and when R. 134 ; post, § 766. the consummation is hindered only by 441 § 735 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. 2. Abandoned before. — In these cases, if the criminal purpose is abandoned before enough is done to constitute an attempt, guilt, of course, is not incurred.' § 734. 1. Evidence — Presumption. — We should not confound, at this place, the evidence with the law. It is a rule of criminal evidence that a man is presumed to intend the natural, necessary, and even probable consequences of what he intentionally does. In some circumstances this presumption is conclusive.^ Upon this principle, — 2. Substantive Crimes — (Libel — Bawdy-house — Forgery — Per- jury — Hindering Witness, &c.). — Some acts are made substantive crimes, not so much on account of their inherent evil, as of their tendency to ulterior mischief. Thus, libels are indictable because they tend to break the peace,^ or to corrupt the public morals, or to stir up sedition against the government ; * bawdy-houses, be- cause their tendency is to corrupt the public morals ; forgeries, as tending to defraud individuals ^ or the public ; false oaths and affidavits in judicial proceedings,^ preventing the attendance of witnesses,'' and the like, because calculated to pervert public jus- tice ; and illustrations of. this sort might be multiplied indefi- nitely.* In these offences, if a man intentionally does the thing, it will not avail him that he did not mean the ulterior mischief.' And thence it is that these wrongs are substantive crimes, instead of attempts. But — • § 735. 1. Tendency evidencing Intent. — On an indictment for a technical attempt, wherein, in the words of Campbell, J., "in- tentions can only be proved by acts, as juries cannot look into the breast of the criminal," i" they may consider the nature and tendency of a proven act to determine the intent prompting it. And the court will instruct them that the doer should be pre- 1 Pinkard v. S. 30 Ga. 757, 8 gee Williams v. E^t India Com- 2 Crim. Pro. I. § 1096. pany, 3 East, 192, 201 ; Reg. v. Chapman, 3 Hodges V. S. 5 Humph. 112 ; Reg. v. 1 Den. C. C. 432 ; S. v. Taylor, 3 Brev. Nun, 10 Mod. 186. 243; Smith v. S. 1 Stew. 506 ; Holmes's * Rex V. Woodfall, Lofft, 776 ; Reg. v. Case, Cro. -Car. 376 ; Barefield o. 8. 14 Lorett, 9 Car. & P. 462. Ala. 603 ; Reg. v. Darby, 7 Mod. 100 ; 6 Reg. v. Marcus, 2 Car. & K. 356 ; Rex v. Philipps, 6 East, 464 ; Reg. v. Ren- Rex V. Ward, 2 Ld. Raym. 1461, 1469; shaw, 11 Jur. 615; Smith's Case, iBroun, P. V. Genung, 11 Wend. 18, 25 Am. D. 240; Gibson.'s Case, 2 Broun, 366. ^^*' ' And see Reg. v. Gathercole, 2 Lewin, 8 Omealy v. Newell, 8 East, 364; Ham- 237; S. ; Nixon, 18 Vt. 70, 46 Am. D. par's Case, 3 Leon. 230. 135 ; Rex v. Farrington, Russ. & Ry, 207. ' S. V. Carpenter, 20 Vt. 9. w P. v. Scott, 6 Mich. 287, 296. • 442 CHAP. LI.] ATTEMPT. §736 sumed to have intended its natural and probable consequences.^ Yet — 2. Intent in Fact — (Intent in Law). — They Cannot go further. The doctrine of an intent in law, differing from that in fact, is not applicable to these technical attempts ; and if the prisoner's real purpose was not what the indictment specifies, the preceding explanations^ show that he must be acquitted.** A further view is that in reason we cannot first draw an evil intent from an act, and then enhance the evil of the act by adding this intent back again to it. There are a few cases * which seem to overlook this truth, and even possibly to deny it ; but it is sustained by very nearly the entire mass of judicial authority, English and Ameri- can '? Thus, — § 736. 1. In Homicide, — we have seen that an unintended taking of life may be murder, yet that there can be no attempt to murder without the specific intent to commit it,^ — a rule the latter branch whereof appears probably in a few of the States to have been interfered with by statutes.'' For example, " if one from a housetop recklessly throw down a billet of wood upon the 1 Reg. V. Jones, 9 Car. & P. 258 ; S. v. Davis, 2 Ire. 153 ; Cole v. S. 5 Eng. 318 , Rex «. Hewlett, 7 Car. & P. 274 ; Kex v. Holt, 7 Gar. & P. 518 ; Jeff v. S. 37 Missis. 321 ; Jefe v. S. 39 Missis. 593 ; Wood v. S. 27 Tex. Ap. 393 ; Territory w. Renss, 5 Mont. 605; Atkins <;. S. 11 Tex. Ap. 8. And see Rex v. Moore, 3 B. & Ad. 184; Rex V. Bailey, Russ, & Ry. 1 ; Southworth V. S. 5 Conn. 325 ; S. v. Jefferson, 3 Har- ring, Del. 571 ; Dains v. S. 2 Humph. 439. 2 Ante, § 728-730. s Reg. K. Ryan, 2 Moody & R. 213, overruling Rex v. Lewis, 6 Car. & P. 161 ; Rex V. Duffin, Russ, & Ry. 365 ; Rex v. Thomas, 1 Leach, 330, 1 East P. C. 417 ; Rex «. Holt, 7 Car. & P. 518; Mooney v. S. 33 Ala. 419 ; Ogletree v. S. 28 Ala. 693 ; and cases cited ante, § 729. < S. V. Bullock, 13 Ala. 413 ; McCoy w. S. 3 Eng. 451 ; Rex v. Jarvis, 2 Moody & R. 40; S, V. Boyden, 13 Ire. 505. 6 S. u. Jefferson, 3 Harring. Del. 571 ; Moore u. S. 18 Ala. 532 ; Reg. v. Sullivan, Car. & M. 209 , Reg v. Cruse, 8 Car. & P. 541 ; Rex v. Holt, 7 Car. & P. 518; Rex V. Mcllhone, 1 Crawf. & Dix C. C. 156 ; Rex V. Kelly, 1 Crawf. & Dix C. C. 186 ; P. V. Shaw, 1 Par. Cr. 327 ; Davidson t>. S. 9 Humph. 455 ; and .see S. v. Hailstock, 2 Blackf. 257 ; Dains v. S. 2 Humph. 439 ; Cole fc. S. 5 Eng. 318; Rex v. Hunt, 1 Moody, 93 ; Reg. v. Stringer, 2 Moody, 261 ; Reg. v. Nicholls, 9 Car. & P. 267 ; Reg. V. Griffiths, 8 Car. & P. 248 ; Rex v. Davis, 1 Car. & P. 306 ; Rex v. Mogg, 4 Car. & P. 364 ; Roberts «. P. 19 Mich. 401 ; P. V. Woody, 48 Cal. 80. 6 Ante, § 314, 730 ; Simpson v. S. 59 Ala. 1, 31 Am. R. 1 ; Smith v. S. 2 Lea, 614, 617; S. V. Seymour, 1 Houst. Crim. 508 ; Washington v. S, 53 Ala. 29 ; S. «. Neal, 37 Me. 468 ; Seitz v. S. 23 Ala. 42 ; Rapp !J. C. 14 B. Monr. 614 ; S. v. Beaver, 5 Harring. Del. 508 ; Ogletree v. S. 28 Ala. 693 ; Jeff w. S. 37 Missis. 321 ; Walker V. S. 8 Ind. 290 ; Morman v. S. 24 Missis. 54; S. V. Stewart, 29 Mo. 419; King v. S. 21 Ga. 220. ' Wilson V. S. 4 Tex. Ap. 637, 641 ; Daniels v S. 4 Tex. Ap. 429, 430, And see Pngh v. S. 2 Tex. Ap. 539 ; Stapp v. S. 3 Tex. Ap. 138 ; Gay ». S. 3 Tex. Ap. 168 ; King w. S. 4 Tex, Ap. 54, 30 Am. R. 160; Ewing v. S. 4 Tex. Ap, 417; John-' son w S. 4 Tex. Ap. 598 ; Ferguson v. S. 6 Tex. Ap. 504 ; Walker «. S. 7 Tex. Ap. 627. 443 § 736 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. sidewalk where persons are constantly passing, and it fall upon a person passing by and kill him, this would be by the common law murder. But if, instead of killing, it inflicts only a slight injury, the party could not be convicted of an assault with intent to commit murder ; " ^ since, in fact, murder was not intended. Again, — 2. Burglary — requires an intent to commit a felony in the dwelling-house nocturnally broken and entered.^ Thereupon if one makes the breach and entry to do therein what in law is a misdemeanor, yet casually his act amounts to a felony, he can be convicted of this felony, but not of burglary .^ On the other hand, — 3. Crime — Name. — Since the name of a crime is no part of it,* the intent in attempt need not be in form to commit a crime of a particular name. It is enough that the doer means certain things ; if in law they constitute a crime, he is guilty ; if not, he is innocent. And his opinion upon the law of his doings is im- material.^ Thus, — 4. In Murder and Manslaughter. — If one assaults another mean- ing to take his life, the intent is in law to commit murder, or to commit manslaughter, according as the killing would be the one or the other if effected ; and it is neither if und'er the circum- stances it would not be an offence.^ To illustrate, if a man to prevent being arrested intentionally kills an officer having a proper warrant, he commits murder ; ^ or if the assault which was meant to kill fails, he commits assault with intent to mur- der. Yet he may not know whether the officer has a warrant or not, and therefore whether he is himself endeavoring to perpe- trate murder or manslaughter. But if the officer, where a war- rant is required, has none, then the offence of the man who meant to kill him and failed will be assault with intent to com- mit manslaughter. He cannot be convicted of assault with in- tent to murder.8 For a like reason, — 1 Moore k. S. 18 Ala. 532. N. C. 1. See U. S. v. Tharp, 5 Cranch 2 Ante, § 559 ; Vol. II. § 90. C. C. 390. 8 2 East P. C. 509 ; Rex v. Dobbs, 2 « And see Vandermark v. P. 47 111. East P. C. 513. And see Rex v. Thomas, 122 1 Leach, 330, 1 East P. C. 417 ; Rex o. ■! Vol. II. § 652. Trusty, 1 East P. C. 418 ; S. v. Eaton, 3 « C v. McLjiughlin, 12 Cush. 615 ; Mi^ Barring. Del. 554. ton's Case, 1 East P. C. 411. And see * Crim. Pro. I. § 416; ante, § 599 (2). Rex v. Payne, 4 Car. & P. 558 ; Rex v. 6 Post, § 747, 748, 753; S. v. Brooks, 76 Cnrran, 3 Car. & P. 397 ; Sharp v. S. 19 444 CHAP. LI.J ATTEMPT. § 737 6. In Rape. — One does not become guilty of assault with in- tent to commit rape, when, under the circumstances, an actual violation of the woman's person would not be rape.^ Again, — 6. Shooting at One to kill Another. — If a man to murder A shoots at B whom he mistakes for him, still, though he intends to take the life of A, he also intends to take the life of the one at whom he shoots, namely, B ; and if the charge from his gun inflicts only a wound, he may be convicted of wounding B with the intent to mui'der B.^ And — 7. Shooting into Crowd. — A man who, to inflict grievous bodily harm generally, discharges loaded arms into a group and wounds one, becomes guilty of Wounding this one with intent to do him grievous bodily harm.^ The greater includes the less. III. Specially of the Act. § 737. 1. Defined. — Keeping fast to the anchorage-ground of the last sub-title, that the intent must be specific to do the whole of what constitutes the substantive crime, the doctrine here is that the act must be sufficient in magnitude and in proximity to such crime for the law that does not regard things trifling and small to notice, and of such seeming aptitude as is calculated to create an apprehended danger of its commission. But it is never necessary that the danger should be real. Thus, — 2. Not in Condition to Perform. — Though the offender was not in a condition to perform what he meant, yet if he appeared to be, he is guilty.* Further of the — Ohio, 379 ; Nancy v. S. 6 Ala. 483. In- J. n. s. M. C. 29, 7 Cox C. C. 51," 1 Jur. tent to KiU. — There is a difeerence be- N s. 1116, 33 Eng. L. & Eq. 567; Dun- tween an intent to kill and an intent to away v. P. 110 111. 333, 51 Am. R. 686 ; murder : the former may exist where one Keg. k. Stopford, 11 Cox C. C. 643 ; S. w intends only such killing as amounts to Oilman, 69 Me. 163, 31 Am. R. 257. But manslaughter. P. v. Shaw, 1 Par. Cr. see Lacefield v. S. 34 Ark. 275, 36 Am. R. 327; S. V. Nichols, 8 Conn. 496 ; Nancy 8. See C. o. Morgan, 11 Bush, 601 ; Reg. V. S. 6 Ala. 483 ; Bonfanti v. S. 2 Minn. v. Hewlett, 1 Fost. & P. 91. It is the same 123. It seems, however, to be the doc- where the missile hurled is of any other trine in Mississippi that by an intent to sort. S. a Jump, 90 Mo. 171 ; S. v. Mont- kill is meant an intent to murder. Brad- gomery, 91 Mo. 52. And see Reg. v. Lati- ley V. S. 10 Sm. & M. 618. See Morman mer, 17 Q. B. D. 359, 16 Cox C. C. 70. ■/. S, 24 Missis. 54 , post, § 747. ^ Reg. v. FretweU, Leigh & C. 443, 9 1 P. V. Quin, 50 Barb. 128 ; Rhodes v. Cox C. C. 471. And see S. v. Sloanaker, S. 1 c'oldw. 351 ; P. w. Brown, 47 Cal. 1 Houst. Crim. 62; S. v. Nash, 86 N. C. 447 ; S. V. Brooks, 76 N. C. 1 ; Johnson v. 650, 41 Am. R. 472. S. 63 Ga. 355 , post, § 746. * In Kunkle v. S. 32 Ind. 220, 230, 231, 2 Reg V Smith, Dears. 559, 25 Law Elliott, J. referring to S. v. Swails, 8 Ind. 445 § 741 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK Vli § 738. Adaptation of Means. — A few of the cases, particularly among the English ones, seem to require the adaptation of the means to the end to be real, not simply apparent.' But we shall see ^ that this is not the true law ; for the alarm created is the same whether the means are really adapted or only appear to be. And generally the reason why an attempt is not effectual is because of some occult inefficacy of the means. Such a doctrine would overturn the law of attempt itself. But — § 739. Too Remote. — An act too remote, or quite foreign to the end proposed, or too small for the law's notice, creates no apparent danger and no perturbation in the peaceful order of things, therefore is not sufficient in attempt.^ § 740. A Wider View — is the following. One who has formed the purpose to commit a substantive crime cannot, we have seen,* complain though made to suffer the full punishment for it, while yet he has taken no step toward its performance. And as said in an old case, "m/oro oonseientice the attempt is equal with the execu- tion of it." ^ But the government does not inflict even a merited punishment until the public has received an injury .^ Applying this doctrine to the question before us, the public suffers from a mere alarm of crime. Thus, — § 741. Attempted Abortion. — Where the law makes abortion punishable, a man who attempts it upon a woman and fails, thereby creates the same alarm, the same disturbance to the peaceful order of society, in every view the same harm to the public, whether the failure was caused by his instrument or drug being imperfect contrary to his belief, or by the woman contrary to his belief not being pregnant. When, therefore, the English Statute of 7 Will. 4,& 1 Vict. c. 85, § 6, made it punishable un- lawfully to " use any instrument " " with intent to procure the miscarriage of any woman," the offence was held to be committed 524, 65 Am. D. 772, said : " If the case is intended. The failure results alone from to be understood as laying down the broad the want of the present ability to accom- proposition that to constitute an assault or plish the end ; and would it be contended an assault and battery with intent to com- that the party could not in such a case be mit a felony, the intent and the present convicted of the felonious intent ' " ability to execute must necessarily be con- i Reg. v. Sheppard, 1 1 Cox C. C. 302 ; joined, it does not command our assent or S. v. Napper, 6 Nev. 1}3. approval. . . Suppose an assault and ^ pg^t, § 749 et seq. battery is perpetrated on a woman with » Ante, § 212 et seq. intent to ravish, and she proves the * Ante, § 325 et seq. stronger of the two, and thereby pre- -= Rex v. Kinnersley, I Stra. 193, 196. vents the accomplishment of the object « Ante § 204 334 446 CHAP. LI.]' ATTEMPT. §742 though the woman, supposed to be pregnant, was not so in fact.^ Such also is the American doctrine under similar statutes.^ Further to explain, — § 742. 1. An Unseen Impediment — is in effect a mistake both in the wrong-doer and in the lookers-on. Therefore it takes away neither the moral guilt of the former nor the alarm of the latter. If by reason of the impediment the crime contemplated is not committed, the full punishment will not be inflicted ; but in the ordinary judgment of mankind, and in the consequences to the community, the disturbance of the attempt has been created. And the law would be simply absurd if it refused to punish a man because for some unseen reason his attempt had miscar- ried, while yet it punished him if driven off by an officer whom he saw. To illustrate, — 2. In Rape. — Should a man mistake an effigy in female dress for a real woman, and undertake to ravish, it,^ he would not even intend to commit rape, because the law holds the ravishment of an inanimate obJ€ict not to be rape. But if a real woman oQCupied 1 Reg. V. Goodhall, 1 Den. C. C. 187; s, c. nom. Reg..!). Goodall, 2 Cox C. C. 41 ; 8. c. nom.* Reg. v. Goodcliild, 2 Car. & K. 293. In the earlier case of Eex v. Scndder, 1 Moody, 216, the indictment being for administering a drug to a wo- man with intent to procure an abortion, contrary to 43 Geo. 3, c. 58, § 2, it was held " that " in the la,ngnage of the re- port, " the statute did not apply when it appeared negatively that the woman was not with child." But the terms of the statute were, " with intent, &c., to cause and procure the miscarriage of any woman then being quick with child." Ob- viously this decision was required by the express statutory words. See also Rex v. Phillips, 3 Camp. 76 ; Rex v. Phillips, 3 Camp. 73. In Pooket-pieking, — as to which see post, § 743 et seq. the opposite rule was for a considerable time maintained in England ; namely, that the indictable attempt is not committed where, contrary to the belief of the offender, there is no money in the pocket. The leading case to this proposition was Reg. v. Collins, Leigh & C. 471. But it was overruled in . Reg. V. Brown, 24 Q. B. D. 357, 359, 16 Cox C. C. 715. In earlier editions of this work I took some pains, and occupied space which I can now appropriate other- wise, to show that Reg. v. Collins was wrongly decided. Mr. Heard, in the sec- ond edition of Bennett & Heard's " Lead- ing Criminal Cases," vol. ii. p. 482, 483, deemed it his duty, on the other hand, to explain that I was wrong. I am confident that the overruling of Reg. o. CoUins by the English Court will be accepted in the United States as settling this question, and I am glad to be able to drop it here. In some other instances, wherein decisions violative of just doctrine have endangered the purity of our adjudged law, I have thought it incumbent on me to occupy with elucidations of their errors space which I should gladly have spared for other uses. It has never seemed neces- sary to spend any considerable time in pointing out trivial or unimportant mis- takes, or mistakes not calculated to inflict any grave injury upon the law. But it has appeared otherwise of blunders the blighting effect of which, if not corrected, will extend through large portions of the legal field. 2 Powe w. S. 19 Vroom, 34; C. v. Tay- lor, 132 Mass. 261. " See, for the principle, ante, § 441. 447 § 743 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. the place of the effigy, and he undertook to ravish her, yet un- known to him she carried a revolver and with it disabled him so that he could not effect his object, surely in reason, and it is be- lieved in law also, he would commit a criminal attempt. To re- turn to what is adjudged, — § 743. Pocfcet-pioking, — A considerable number of cases of attempted pocke1>picking, consisting of an effort to steal the victim's money by thrusting the hand into his pocket, yet un- expectedly the pocket is found to be empty, have been passed upon by the courts. In England, as explained in a note to a pre- ceding section,! the unexpected lack of money in the pocket was for a good many years held to take away the indictability of the attempt, but more recently the English courts have reversed their course of decision on this question. And the course of the American tribunals was always the reverse. Thus, it was early held in Pennsylvania that an indictment for assault with intent to steal from the pocket is good without any setting out of things in the pocket to be stolen. Said Duncan, J. : " The intention of the person was to pick the pocket of whatever he found in it ; and although there might be nothing in the pocket, the intention to steal is the same." ^ There was in Massachusetts a statute, in affirmance of the unwritten rule, making punishable " every per- son who shall attempt to commit an offence prohibited by law, and in such attempt shall do any act towards the commission of such offence, but shall fail in the perpetration, or shall be inter- cepted or prevented in the execution of the same." » And it was adjudged unnecessary either to allege or prove that there was in the pocket anything which could be the subject of larceny. " To attempt," said Fletcher, J., "is to make an effort to effect some object, to make a trial or experiment, to endeavor, to use ex- ertion for some purpose. A man may make ah attempt, an effort, a trial, to steal, by breaking open a trunk, and be disappointed in not finding the object of pursuit, and so not steal in fact. Still he remains nevertheless chargeable T?ith the attempt, and with the act done toward the commission of the theft. So a man may make an attempt, an experiment, to pick a pocket, by thrust- ing his hand into it, and not succeed, because there happens to be nothing in the pocket. Still he has clearly made the attempt, and 1 Ante, § 741, note. 8 Mass. E. S. c. 133, § 12. 2 C. u. Rogers, 5 S, & R. 463. 448 CHAP. LI.] ATTEMPT. § 745 done the act towards the commission of the offence. So, in the present case, it is not probable that the defendant had in view- any particular article, or had any knowledge whether or not there was anything in the pocket of the unknown person ; but he at- tempted to pick the pocket of whatever he might find in it, if haply he should find anything ; and the attempt, with the act done of thrusting his hand into the pocket, made the offence com- plete. It was an experiment, and an experiment which, in the language of the statute, failed; and it is as much within the terms and meaning of t^ie statute if it failed by reason of there being nothing in the pocket, as if it had failed from any other cause." 1 By these decisions of our American courts, the question became, in judicial doctrine, following the light of reason, — - § 744. 1. Settled. — " It would be a novel and startling propo- sition," said Butler, J., in the Connecticut tribunal, "that a known pickpocket might pass around in a crowd, in full view of a policeman, and even in the room of a police station, and thrust his hands into the pockets of those present, with intent to steal, and yet not be liable to arrest or punishment until the policeman had first ascertained that there was in fact money or valuables in some one of the pockets on which the thief had experimented." ^ And this obvious conclusion of common- sense is applied to other things of the like sort. Thus, — 2. Attempted Robbery. — The Indiana Court, following the Pennsylvania, Massachusetts, and Connecticut decisions, held that an assault on one with intent to rob him ' of his money may be. committed though he has no money in possession.^ Again, — 3. other Attempts to steal. — The criminal breaking and enter- ing of a warehouse in the night, with the intent to steal money in a safe, is committed though in it there is no money.* And, it is the same where one opens another's cash drawer to steal valu- ables which he believes it to contain, yet it is empty.^ § 745. " If Successful. Full Offence." — In the overruled English case wherein the attempt to pick a pocket was held not to be com- > C. V. McDonald, 5 Cush. 365, 367, « Hamilton v. S. 36 Ind. 280, 10 Am. 368 ; affirmed in C. v. Jacobs, 9 Allen, R. 22. 274. ^ S.v. Beal, 37 Ohio St. 108, 41 Am. 2 S. V. Wilson, 30 Conn. 500, 506. To K. 490; Harvick v. S. 49 Ark. 514. Com- the same effect; P.. v. Jones, 46 Mich. 441 ; pare with Griffin «. S. 34 Ohio St. 299. P. V. Moran, 123 N. Y. 254,20 Am. St. 732, ' Clark v. S. 86 Tenn. 511. and cases cited to paragraphs which follow. ' VOL. I. — 29 449 § 748 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. mitted unless there was money in it, Cockburn, C. J., said : " There must be an attempt which, if successful, constitutes the full offence." ^ Plainly this doctrine is just, the only question being as to its application. We have seen '^ that, in law, a man does not intend to commit an offence when the thing he endeavors to do, fully performed, would not constitute it. But in these pocket-, picking cases, if the rogues had found the money, they would have been guilty of the larceny meant; the accident of not finding it, by interrupting their operations, reduced the criminality to attempt. § 746. 1. Legal Incapacity of Accused Person. — One without legal capacity to commit a crime cannot, in law, intend its com- mission.^ Nor can he do any act toward it ; because, as he can- not accomplish the whole, so neither can he a part. Thus, — 2. Attempted Rape by Boy. — By the common-law doctrine, dissented from in a few of our States, a boy under fourteen is in- capable in law, we have seen,* of committing rape, whatever be his physical abilities in fact; therefore he cannot be guilty of assault with intent to commit rape.^ § 747. Where All meant is no Crime in Law. — To repeat,® one is not guilty of a criminal attempt where the complete doing of all meant would not constitute the substantive crime. In such a case, the required specific intent "^ is wanting. Another reason is that since the entire series of acts is not punishable, one act of the series is not. Thus, — § 748. 1. In Robbery. — A person who by violence compels an- other to write an order for money or goods, intending to take it away, but is intercepted, does not commit an assault with intent to rob; because, if he had got off with the order, the transaction would not in law be robbery.^ Again, — 2. Forgery, — which is a substantive offence, is partly in the na- ture of attempt.^ And though it may be of a fictitious name,!" yet if 1 Eeg. V. Collins, Leigh & C. 471, 474. 380, Parker, C. J. dissenting. See Smith 2 Ante, § 736, 742. ■!). S. 12 Ohio St. 466, 80 Am. D. 355 ; Vol. 8 Ante, § 736 (5). IL § 1136; ante, § 736 (5). * Ante, § 373; Vol. IL § 1U7. 6 Ante, § 736, 745, 746. 6 Reg. V. Philips, 8 Car. & P. 736 ; ' Ante, § 728-730, 735, 736. Rex V. Eldershaw, 3 Car. & P. 396 ; 6 Rex v. Edwards, 6 Car. & P. 521. ■Williams v. S. 14 Ohio, 222, 45 Am. D. » Ante, § 572 and note; Vol. IL§ 168, 536; S. V. Handy, 4 Harring. Del. 566; 521. P. ». Randolph, 2 Par. Cr. 213 ; S. v. Sam, i» S. v. Givens, 5 Ala. 747 ; Rex v. Tay- Winst. i. 300. Contra, G.v. Green, 2 Pick, lor, 1 Leach, 214, 2 East P. C. 960 ; Eex 450 CHAP. LI.] ATTEMPT. § 750 there is in existence no being or corporation to be injured by the cheat ;^ or if the -forged writing, were it genuine, would be nei- ther apparently nor really valid in law;''^ or if for any other reason it could not defraud any one,' — the transaction is not forgery. § 749. Adaptation of Means. — We have seen that the means must have some adaptation to accomplish the criminal result in- tended,* otherwise they create no alarm or threatened breach of the public repose.* Yet in reason and by the better authorities a mere apparent adaptation suffices, though there are cases which seem to require it to be complete.® Further as to which, — § 750. 1. Perfectness of Adaptation. — In reason, even the out- wardly seeming adaptation need not be perfect, because the mis- chief to be suppressed may arise where it is not. Indeed, in most cases wherein the attempt has failed, a careful observer could have discerned in the means the defect which led to the failure ; still, if such defect was not absolutely obvious, even to the casual eye, it did not prevent the disquiet against which the criminal law protects the community.'' Overlooking these views, — 2. Defect in Loading Fire-arms — Homicide. — It was once held in Indiana that a man does not shoot at another with the intent to murder him if the charge, the two being forty feet apart, con- tains, contrary to the belief of both, no ball; because, it was said, where the present ability to commit, the act contemplated is wanting, the offence of attempting to commit it is not complete.^ Later, the same court in effect overruled this doctrine, accepting the views of the present and accompanying sections.^ 'Again, — V. BoUand, 1 Leach, 83, 2 East P. C. 958 ; Gamble, 10 Cox C. C. 545 ; S. v. Epper- Vol. 11. § 543. son, 27 Mo. 255 ; Keg. v. Dale, 6 Cox 1 Beg. V. Tylney, 1 Den. C. C. 319; P. C. C. 14; Sumpter v. S. 11 Ela, 274; P. V. Peabody, 25 Wend. 472; S. u. Girens, 5 v. Blake, 1 Wheeler Grim. Gas. 490; Eeg. Ala. 747 ; Vol. II. § 599. "• Goodman, 22 U. C. C. P. 338. 2 Eex V. Burke, Russ. & Ey. 496 ; P. ' And see C. v. Shaw, 134 Mass. 221 ; V. Harrison, 8 Barb. 560; Vol. II. § 533 S. v. Glorer, 27 S. G. 602 ; Sipple v. S. 17 et seq. Vroom, 197. s Eeg. V. Marcus, 2 Car. & K. 356, con- 8 s. v. Swails, 8 Ind. 524, 525, 65 Am. cerning which see Eeg. v. Nash, 2 Den. D. 772. See, as perhaps contra, Johnson C. C. 493, 12 Eng. L. & Eq. 578; Eex v. v. S. 26 Ga. 611. And see AUen'v. S. Knight, 1 Salk. 375, 1 Ld. Eaym. 527 ; 28 6a. 395, 73 Am. J). 760. In matter Barnum v. S. 15 Ohio, 717, 45 Am. D. 601 ; of statutory interpretation, perhaps such Vol. II. § 592-595. &*i ^c^* would not in England be deemed 4 Ante § 738. discharging " loaded arms." Post, § 758. 5 Antei § 740, 742. ° Kunkle v. S. 32 Ind. 220, 232. To 6 See and compare Kunkle v. S. 32 Ind. the like effect S. v. Hinson, 82 N. C. 597 ; 220; Mullen v. S. 45 Ala. 43, 6 Am. E. S. v. Glover, 27 S. C. 602. 691; S. V. Napper, 6 Nev. 113; Eeg. v. 451 § 752 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. § 751. Indiscriminate Shooting — (No Person in Range). — In a Scotch case, it was held to be a crime wickedly and culpably to discharge loaded fire-arms into an inhabited house, to the appar- ent danger of lives within, though no one was in fact put in peril. The Lord Justice-Clerk said : " The mere firing of the gun into the house constituted the crime, the panel having taken his chance of the consequences. It would therefore be no defence that the inmates of the house had accidentally left the room when -the shot was fired into it, far less that there happened to be a screen which possibly might shield them from danger. If a person standing upon one side of a wall, and hearing the noise of a crowd collected upon the other, threw over some heavy sub- stance, the act was equally ciiminal though the crowd chanced at the moment to have moved back from the wall. In the present case, the act done was one by which lives were endangered, and would in all probability have been lost had it not been for circum- stances which the panel could not have foreseen." ^ Further, — § 752. 1. Demanding of Person not Having. — It being made punishable " with menaces or by force " to " demand " certain property "with intent to steal the same," one was in Ireland adjudged to have been rightly convicted who, with the required intent, demanded a gun of its owner's housekeeper, at his house, while neither he nor the gun was in fact in it.^ And we may deem the true doctrine to be that, — 2. Rule for these Cases. — Where the non-consummation of the intended criminal result is caused by an obstruction in tlie way, or by the want of the thing to be operated upon, if such impedi- ment is of a nature to be unknown to the offender, who used what seemed appropriate means, the punishable attempt is com- mitted. This rule, thus formulated by the author in earlier edi- tions of this work, was afterward' adopted by the Massachusetts Court ; expressed by Gray, J., as follows, — 3. other Form of Words. — " Whenever the law makes one step towards the accoiftplishment of an unlawful object with the intent or purpose of accomplishing it criminal, a person taking that step with that intent or purpose, and himself capable of do- 1 Smith's Case, 1 Broun, 240. See pare, with, this case, Rex w. Jenks, 2 Leach, also Eex v. Coe, 6 Car. & P. 403 ; Rex v. 774, 2 East P. C. 514 ; Rex v. Lyons, 2 Crooke, 2 Stra. 901. East P. C. 497, 498, 1 Leach, 185. ^ Rex .;. McBennet, Jebb, 148. Com- 452 CHAP. LI.] ATTEMPT. § 765 ing every act on his part to accomplish that object, cannot pro- tect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance." ^ 4. In the Words of the Author, — this rule was affirmed by the Indiana Court.^ Another form of some of the foregoing doctrines is that, — >, § 753. Impossibility — (of Law — Fact). — As a man will not in fact attempt, so neither will the law treat him as attempting, what he knows he cannot do.^ And since all are conclusively pre- sumed to know the law,* no one can legally intend what is legally impossible ; for example, as already seen,^ a boy too y,oung for rape cannot in legal contemplation intend to commit it, or be guilty of the attempt. An impossibility of fact may be the very obstruction which made the purposed wrong an attempt instead of a substantive offence. Resulting from the foregoing, — § 754. Rule for Adaptability. — The necessary intent existing, the act must have some adaptation to acconiplish the thing in- tended. But the adaptation need only be apparent ; because the evil to be corrected relates to apparent danger rather than to actual injury sustained. If the thing meant were accomplished, the offence would be a substantive one ; it not being accom- plished, the danger as appearing to outside observation is the matter indictable under the name " attempt." ^ § 755. Special Terms of the Statute or Indictment : — 1. statutory and Common-law Attempts similar. — Statutes are construed conformably with the common law, except as otherwise, required by express words or necessary implication.'^ Therefore 1 C. V. Jacobs, 9 Allen, 274, 275. En- being no evidence that his unfitness for tioing out of State to enUst. — In this military service was manifest or known at case the indictment was upon the second the time of this unlawful act." p. 276. clause of the following statute : " It shall ^ Kunkle v. S. 32 Ind. 220, 232. See not be lawful for any person within this ante, § 750 (2). Commonwealth to recruit for or enlist in » Rex v. Edwards, 6 Car. & P. 515. - military service, or, &c.; nor to entice or And see Nugent v. S. 18 Ala. 521. solicit any person to leave the Common- * Ante, § 294. wealth for the purpose of entering upon ^ Ante, § 746 (2). or enlisting, or offering themselves as sub- " This rule was copied and foUowed m stitutes for drafted persons, in any military Kunkle «. S. 32 Ind. 220, 232. And see service elsewhere." And it was held that ante, § 750. a conviction might be maintained though ' Stat. Crimes, § 88, 114, 119, 141, 144, the person solicited thus to leave the State 155. was not fit to become a soldier, "there 453 8 757 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. ordinarily statutory attempts follow the same rules as those of the common law, and common-law attempts are within principles judicially found to govern statutory ones. But — 2. Exceptionally -^ we meet with a statute by its special terms standing outside of the common-law interpretations ; for its terms cannot be disregarded. Also, — 3. Indictment. — Sometimes a pleader incautiously draws the indictment in terms which restrict the proofs, or give them a narrower effect than the common law would do. And — 4. Mixed Cases. — There are cases of a mixed nature, proceed- ing partly on special terms of the statute, and partly on what is peculiar in the indictment. The decisions therein are of little value in other cases. § 756. Special Terms. — Let us Call to mind some of the special terms and how they have been interpreted. Thus, — An " Attempt to Poison " — is not committed by one adminis- tering to another what is not poisonous, yet by either or both believed to be ; because, even should it take the man's life, he will not be poisoned to death.^ So stand the few decisions we have on the question, but it lies near the debatable ground. For if the thing given resembled poison, and ordinary observation would pronounce it such, while it could be scientifically ascer- tained not to be, the meaning of the statute, if construed after the foregoing rules of the common law, would be fully covered. § 767. Specific Larceny in Burglary. — Probably if an indict- ment charges an attempt to steal goods specifically described, proof of a general felonious purpose and no goods existing in the place will not sustain it, by reason of the variance. We have a burglary case wherein it was alleged that the prisoner broke and entered the dwelling-hbuse and in it stole " eight silver' spoons" and some other things ; and there was a statute ^ permitting the jury to find an attempt if " the defendant did not complete the offence charged ; " thereupon, the proof being that there were no such things in the house broken and entered, a finding of not guilty of the larceny, but guilty of attempting to steal the prose- cutor's goods in the house, was quashed.^ Again, — 1 S. V. Clarissa, 11 Ala. 57. And see, Car. & P. 126 ; Eeg. v. Leddington, 9 Car. as illustrative, C. v. Manley, 12 Pick. 173 ; & P. 79. Rex v. Coe, 6 Car. & P. 403 ; Eeg. v. Wil- " 14 & 15 "Vict. c. 100, § 9. liams, 1 Den. C. C. 39 ; Kex v. Hughes, 5 » Eeg. v. McPherson, Dears. & B. 197. 454 CHAP. LI.] ATTEMPT. § 759 § 758. 1. " Shoot at." — One does not " shoot at any person " ^ ^ho, in fact, is not in the place toward which the gun is pointed, or within reach of the charge, though believed to be so.^ 2. " Loaded Arms." — Neither does one attempt to discharge " loaded arms," if the touch-hole is so plugged that the gun can- not be fired ; * or if, from not being primed or otherwise, it does not contain a charge capable of doing the mischief intended.* Tn such a case the " arms " are not " loaded." Yet scarcely in har- mony with this interpretation, or as nearly on the line between this class of cases and another, — 3. " Poison " in Form not Harmful. — Under a statute against administering " poison or other destructive thing " with intent to kill, it was adjudged that coculus iudicus berries, in their exterior unbroken pod, given to a child nine weeks old, are "poison;" though, by reason of the pod covering the poisonous part, they could not, as they did not, harm the child.^ 4. " Personating " — cannot be of one who never existed,^ but it can of one who has lived and is dead.'^ § 759. The Magnitude of the Act and its Nearness to the Qon- summation of the Intended Substantive Offence : — • 1. Small or Remote. — An attempt may be too small a thing, or proceed not near enough to its accomplishment, .for the law to notice.^ How great it must be, and how far progress, is matter not reducible to exact rule.^ 2. In Misdemeanor, Felony, Treason. — Some appear formerly to 1 Stat. 9 Geo. 4, c. 31, § 12. regard to assaults, S. v. Cherry, II Ire. 2 Rex V. Lovel, 2 Moody & E. 39. And 475 ; S. v. Sims, 3 Strob. 137 ; Reg. ti. St. seeRexw. Kitchen, Russ.&Ry. 95; Henry George, 9 Car. & P. 483; S. v. Smith, 2 «. S. 18 Ohio, 32. Yet it will suffice under Humph. 457. this statute if, while the charge hit the * Reg. v. Cluderay, 1 Den. C. C. 514, person named in the indictm,ent, the gun Temp. & M. 219, 14 Jur. 71 ; 8. c. nom. was aimed at another. Rex v. Jarvis, 2 Reg. v. Cluderoy, 2 Car. & K. 907. And Moody & R. 40. see S. o. Clarissa, 11 Ala. 57 ; Rex v. Phil- » Rex V. Harris, 5 Car. & P. 159 ; Stat, lips, 3 Camp. 73. Form of Indictment. Crimes, § 322. — An indictment for mixing sponge with * Rex V. Carr, Russ. & Ey. 377 ; Whit- milk, with intent to poison, was held ill ley's Case, 1 Lewin, 123 ; Eeg. v. Oxford, for not stating that the sponge was dele- 9 Car. & P. 525 ; 1 East P. C. 412 ; Reg. terious or poisonous. Rex v. Powels, 4 u. Gamble, 10 Cox C. C. 545 ; Stat. Crimes, Car. & P. 571. § 322; Vaughan v. S. 3 Sm. & M. 553. " Rex v. Tannet, Russ. & Ey. 351. And see Eeg. ... Lewis, 9 Car. & P. 523 ; ' Eex v. Martin, Russ. & Ry. 324 ; Rex Shaw V. S. 18 Ala. 547; Rex v. Mount- v. Cramp, Euss. &Ey. 327. ford, 7 Car. & P. 242, I Moody, 441 ; ' Ante, § 212 et seq. Henry v. S. 18 Ohio, 32 ; Eex v. Kitchen, » Ante, § 225. Euss. & Ry. 95. See as illustrative, in 455 8 762 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. have thought that no attempt to commit a mere misdemeanor is punishable,! but certainly the law is not so in modern times. Afe generally stated, every attempt to commit any crime ,2 whether treason,^ felony,* or misdemeanor,^ and whether at the common law or under a statute,^ is indictable as misdemeanor. Yet evidently, — § 760. Magnitude — Varying Offences. — Though in attempt some act must accompany the special intent,^ still, as the thing noticed by the law is the sum of both, the act may be less and proceed less far in proportion as the intent is in enormity greater. Hence, — § 761. 1. Too Small for Attempt. — There are offences which, because of their little magnitude, cannot have the appendage of attempt. This is so both in principle and authority .^ Thus, — 2. In Liquor-selling. — A man is not indictable for attempting, or persuading to, the sale of a glass of intoxicating liquor without license ; ^ or for making a mere contract to sell where only the selling is interdicted.^" But — 3. Procuring Obscene Print — Writing Libel. — One is indict- able who procures an obscene print with- the intent to publish it ; !i or, it seems, writes any libel with such intent.^^ § 762. 1. As to Act " Illegal." — Lord Abinger once suggested that in attempt to commit misdemeanor there must be an "illegal 1 See observations in Eeg. v. Meredith, 241 ; Ross v. C. 2 B. Monr. 417 ; Eeg. v. 8 Car. & F. 589. Chapman, 1 Den. C. C. 432, 439. 2 Rex K. Scofield, Cald. 397, 403 ; Eex ^ gtat. Crimes, § 139, 140; Rex v. u. Higgins, 2 East, 5. Cartwright, Russ. &'Ry. 106; Rex k. " Rex V. Cowper, 5 Mod. 206, Skin. Roderick, 7 Car. & P. 795 ; Rex v. But- 637 ; Rex v. Fursey, 6 Car. & P. 81. ler, 6 Car. & P. 368; S. v. Maner, 2 Hill, * S. u. Danforth, 3 Conn. 112; S. v. 8. C. 453 ; S. v. Avery, 7 Conn. 266. Boyden, 13 Ire. 505 ; C. v. Barlow, 4 Mass. ' Ante, § 204 et seq. 439 ; 1 Hawk. P. C. Carw. ed. p. 72, § 3 ; * Ante, § 760 ; Rex v. Upton, 2 Stra. Holmes's Case, Cro. Car. 376 ; Rex v. 816 ; Rex v. Bryan, 2 Stra. 866 ; Dobkins Hughes, 5 Car. & P. 126 ; Reg. ». Clayton, v. S. 2 Humph. 424 ; C. v. "Willard, 22 Pick. 1 Car. & K. 128 ; Rex v. Higgins, 2 East, 476 ; Pulse v. S. 5 Humph. 108 ; Ross v. C. 5 ; S. !i. Avery, 7 Conn. 266. I 2B. Monr. 417. So also in the Scotch law, 6 Rex V. Scofield, 2 East P. C. 1028, McCoU's Case, 1 Scotch Sess. Cas. 4th ser. 1030 ; Rex v. Burdett, 4 B. & Aid. 95 ; Just. 22, 23. Reg. V. Martin, 9 Car. & P. 215 ; Reg. v. ^ C. v. Willard, 22 Pick. 476. And see Martin, 9 Car. & P. 213, 2 Moody, 123 ; ante, § 658 (1) and note. C. V. Kingsbury, 5 Mass. 106, 108 ; Reg. i» Pulse v. S. 5 Humph. 108. V. Meredith, 8 Car. & P. 589 ; Dugdale v. " Dugdale v. Reg. 16 Eng. L. & Eq. Reg. 1 Ellis & B. 435, 16 Eng. L. & Eq. 380, 1 Ellis & B. 435; ante, § 204 (2|. ' 380; Rex v. Phillips, Cas. temp. Hardw. '2 Rexw. Burdett, 4 B. & Aid. 95, 159; 456 Vol. II. § 927. CHAP. LI.] ATTEMPT. § 762 act." If he meant " illegal " by reason of the wrongful intent prompting it, the rule furnishes no practical help ; if, that it must be illegal 'per se, such is not the adjudged law. For it is the gist of attempt, we have seen,i that an act in itself innocent, or not completely criminal, is made illegal, or its illegality enhanced, by the special evil intent whence it proceeds. He illustrated as follows, — 2. Attempted Carnal Abuse. — If a man, meaning carnally to abuse a girl between ten and twelve, " was to take his horse and ride to the place where the child was, that," he said, " would be a step towards the commission of the offence, but would not be indictable."^ Doubtless it would not be indictable, still the reason is some other than its lack of legality. If instead of rid- ing to the place, the man stole a rope with which to tie the girl, the larceny would be. a sufficiently " illegal " act, yet Lord Abin- ger would doubtless not have deemed it punishable under the name of attempt to commit a carnal abuse. Again, — 3. Attempt to charge with Crime. — A conspiracy to charge one falsely with crime is punishable at the common law,^ and in some circumstances it is so for a single individual to prefer the false accusation.* There may, therefore, be an indictable attempt to commit the latter offence ; and the act will be sufficient if one puts into a man's pocket " three ducats, with a malicious intent to charge him with felony." ^ Here the act is proximate to the contemplated bringing of the accusation. It derives its criminal quality wholly from the intent; for the deed would be good if the man was poor, and the ducats were put into his pocket as a pres- ent. Hence, — 4. Magnitude and Proximity. — Of greater importance than these incidental things, are the magnitude of the act and its proximity "to the intended substantive crime. However attempt is viewed in England, the act need not according to the American idea ^ be the next preceding the one which would render such substantive crime complete ;7 and, in reason, it may be less in mag- nitude and nearness as the crime is heavier.^ Perhaps practically the judge should in each case consider its special facts without 1 ^jjtg g 729. ° Bex V. Simmons, 1 Wils. 329. 2 Eee. 'v. Meredith, 8 Car. & P. 589. " Ante, § 724 (2). » Ante, § 591 ; Vol. II. § 216, 217, ■ Post, § 764 (2)^ 220 * Ante, § 760 ; Rex v. Cowper, 5 Mod. 4 Ante, § 591. 206. 457 § 764 TECHNICAL DIVISIONS ^ND DISTINCTIONS. [BOOK VI. undertaking an entire generalization, and give directions to the jury largely with reference to them.^ § 763. Mere Preparation, — when made at a distance from the place where the substantive offence is to be committed, is ordi- narily too remote an act to satisfy the law of indictable attempt. Yet it would seem tliat some preparations for the commission of some crimes may be punisliable at the common law;^ and with us they would be called attempt,^ though not known by this name in England. To illustrate, — § 764. 1. Attempted Battery — (Procuring Switch). — If a man not in loco parentis should simply procure a switch to whip a child, probably no court would hold him indictable for it, though there may be an indictable attempt to commit a battery.* On the other hand, — 2. " Last Proximate Act." — As already intimated,'* the thing done need " not be the last proximate act prior to the consumma- tion of the felony attempted to be perpetrated." ^ Thus it is in a very aggravated offence ; but doubtless in the lowest misdemeanor which admits of indictable attempt, the act, to be adequate, must be the " last proximate " one. Further to illustrate, — . 3. Attempted Incestuous Marriage — Preparation. — We have a case holding that an intent to enter into an incestuous marriage, an elopement for the purpose, and the sending for a magistrate to perform the ceremony, are an inadequate combination to con- stitute an indictable attempt. And the opinion was expressed therein that the steps, to suffice, must have proceeded to some act i See XJhl v. C. 6 Grat. 706 ; Eex v. misdemeanor is not criminal. Some act Taylor, Holt, 534 ; Reg. v. St. George, 9 is required, and we do not think that all Car. & P. 483 ; Keg. v. Lewis, 9 Car. & P. acts towards committing a misdemeanor 523 ; U. S. V. Twenty-eight Packages, Gil- are indictable. Acts remotely leading pin, 306; S. w. Bruce, 24 Me. 71; Eex d. towards the commission of the offence Parfait, 1 Leach, 19, 1 East P. C. 416, 417; are not to be' considered as attempts to Sinclair's Case, 2 Lewin, 49 ; Reg. v. Ren- commit it, but acts immediately connected shaw, 20 Eng. L. & Eq. 593, 2 Cox C. C. with it are." 285, 11 Jur. 615; Gibson's Case, 2 Broun, » Ante, § 724 (2). 366. 4 U. S. V. Lyles, 4 Cranch C. C. 469 ; 2 Ante, § 435, 436. Lord Denman, C. the form of attempt being a solicitation. J. once stated the doctrine in the very See Vol. II. § 62. See also, and query strong terms, that " any step taken with whether contra. White v. S. 22 Tex. 608. a view to the commission of a misde- And see Bob v. S. 29 Ala. 20, 25. meanor is a misdemeanor." Reg. c;. ■ ' Ante, § 762 (4). Chapman, 1 Den. C. C. 432, 439. In Reg. » Uhl v. C. 6 Grat. 706. And see post, V. Eagleton, Dears. 515, 538, Parke, B. § 768. aaid; "The mere intention to commit a 468 CHAP. LI.'J ATTEMPT. § 765 which would end in the substantive offence but for the interven- tion of circumstances independent of the will of the parties. It is perceived that this rule would have required them, having made every preparation, to be standing before the solemnizer of the marriage, and he about to begin the ceremony. Field, C. J., added : " Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence ; the attempt is the direct movement towards the commission after the preparations are made. To illustrate : a party may purchase and load a gun with the declared intention to shoot his neighbor; but until some movement is made to use the weapon upon the person of his intended victim, there is only preparation, and not an attempt." ^ It is believed that this case lies near the partition line between the indictable and the unindictable, and we cannot safely assume that it will be followed by all courts. Indeed, — 4. Attempted Larceny. — Apparently not in accord with this case, wfe have another wherein it was held that to take an im- pression of the key of a warehouse and have a key made there- from, to be used in committing a larceny in the warehouse, is an indictable attempt whether the offender means to perpetrate the theft personally or procure its commission by another. One judge dissented on the ground that since the plan in the particu- lar instance was to get another to commit the larceny, the defend- ant " was not guilty of an attempt to steal from the store," but rather of an attempt to procure another to steal.^ § 765. Further of the Kind of Act: — 1. Any Act, — having an apparent adaptation to do the evil meant, suffices ; no particular species is required. Thus, — 2. The staking of Counterfeit Coin — as good, at a gaming-table, is an attempt to utter it.^ So — 3. Burning Own House to burn Neighbor's — Carnal Abuse. — One may attempt to burn his neighbor's house, by burning his own ; * or, to carnally abuse a girl between ten and twelve years old, by doing with her consent what otherwise would be an as- 1 P. V. Murray, 14 Cal. 159, 160, Match goes out. — As to attempt to 2 Griffin v. S. 26 Ga. 493. commit arson where the match goes out, 8 S. V. Beeler, 1 Brev. 482. see Reg. v. Goodman, 22 U. C. C. P. 338. * W. Jones, 351 ; 2 East P. C. 1027. 459 § 767 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. sault,^ — it being legally in the power of such a girl to consent to the assault, but not to the carnal act.^ § 766. In Attempted Rape, — if after the assault and before penetration the woman yields her consent, the offence of assault with intent to ravish is committed ; for the consent does not undo what was done before. " The doctrine of relation," said Kellogg, J., " has no application in criminal proceedings." ^ But this has already been illustrated.* § 767. Solicitations to Crime : — 1. A Common Form of Attempt — is one's soliciting another to commit a crime, — the act, which is an element in every offence,* consisting of the solicitation.® Thus, — 2. To Larceny — Sodomy — Adultery — Bribery — Threat. — To incite a servant to steal his master's goods,'' or other person to undertake a larceny ; ^ to make overtures to one to commit sod- omy,^ or adultery where it is a statutory felony ; i" to offer a bribe ;^ and to request, it seems, one to post up a threatening notice,^ — are severally indictable misdemeanors, though the person ap- proached declines the persuasion. 3. A Conspiracy — to commit a crime is itself a substantive crime.i^ It includes the element of a solicitation, though it is more ; and it is in part within the rules which govern attempt.^* 4. Proximity to Substantive Crime. — Leaving out of view the substantive conspiracy, a solicitation appears not to stand so near the offence intended as some other forms of attempt. In this aspect, it may be deemed the first of a series of steps toward the execution, — a " commencement of execution." ^^ While not " the last proximate act prior to the consummation," ^^ it need not be. ' Keg. w. Martin, 9 Car. & P. 213, 2 6 Mod. 182, 1 Salk. 380 ; Eeg. v. Quail, 4 Moody, 123. Eost. & F. 1076. 2 Stat. Crimes, § 484, 494-496. 8 Pennsylvania v. McGill, Addison, 21. 8 S. tf. Hartigan, 32 Vt. 607, 611, 78 See Reg. v. CoUingwood, 6 Mod. 288. Am. D. 609; Vol. II. § 1122. 9 Rex v. Hickman, 1 Moody, 34; Reg. * Ante, § 733 (1). See, also, HuU u. ». Rowed, 6 Jur. 396 ; post, § 768 6, 768 d. S. 22 Wis. 580. w S. 0. Avery, 7 Conn. 266. 6 Ante, § 204 et seq., 729. u U. S. v. Worrall, 2 DaU. 384; Hefel- 6 Rex V. Higgins, 2 East, 5 ; Eeg. v. ton v. Lister, Cooke, 88 ; Vol. II. § 88, 89. Turvy, Holt, 364, 365 ; P Ji_Bush^4 HiU, 12 Re^ v. Darcy, 1 Crawf. & Dix C. 0. N. Y. 133 ; S. V. Avery, 7 Conn. 266 ;' (Ta. 33. Harrington, 3 Pick. 26; Reg. v. Gregory, is Ante, § 592; Vol. II. § 171, 175. Law Rep. 1 C. C. 77, 10 Cox C. C. 459 ; w See ante, § 432, 762-764 ; Vol. XL C. V. Flagg, 135 Mass. 545. § 169, 173, 191-195. ' Rex II. Higgins, supra ; Reg. v. Dan- i^ Ante, § 732, note, iell, 6 Mod. 99 ; s. c. nom. Reg. v. Daniel, 16 lb. And see, as illustrative, ante, 460 CHAP. LI.] ATTEMPT. § 768 a But looking upon the solicitation as an attempt to commit the crime of conspiracy, and no reason occurs to the writer why we may not, we find it the last step, the nearest possible one, to the substantive offence. Still in the reaso,nings of the judges this conspiracy view does not commonly appear. Returning to the other form of reasoning, — § 768. 1. Solicitation to Lighter Offences. — Though to render a solicitation indictable, it is in general, as in other attempts,^ im- material whether the thing proposed is technically a felony or a misdemeanor,^ yet as the soliciting is the first step only in a gra- dation reaching to the consummation, the thing intended must, on principles already explained,^ be of a graver nature than if the step lay further in advance. Thus, — 2. To Adultery. — In Connecticut, where adultery is felony, an unsuccessful enticement to it has been adjudged an indictable attempt;* but otherwise in Pennsylvania, where it is misde- meanor punishable by fine and not exceeding a year's imprison- ment. And this contrariety of conclusion appears to proceed, not so much from different views of the two courts, as from the differ- ing enormity of the substantive offence in the two States.^ On the other hand, — § 768 a. 1. Solicitations to Higher Offences. — Preceding illus- trations ® show that all sufiiciently direct solicitations to commit any of the heavier offences are punishable attempts. And it would be within established principles to hold that in proportion to the gravity of the particular crime, the solicitation, to come within the law's cognizance, may be less direct. But of the latter distinction the explanatory instances are not plentiful. Some- thing as to which, — 2. Assassination. — Affirming the unwritten law and perhaps going a little further, the English Statute of 24 & 25 Vict. c. 100, § 4, provides that " whosoever shall solicit, encourage, persuade, or endeavor to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, § 739, 740 ; Reg. r>. Eagleton, Dears. 515, < Ante, § 767 (2) ; S. v. Avery, 7 Conn. 538, 24 Law J. N. s. M. C. 158, 1 Jur. n. S. 266. •„„„„„„ a t^ 940, 33 Eng. L. & Eq. 540. ' Smith v. C. 54 Pa. 209, 93 Am. D. 1 ^„tg s 754 686. As to a conspiracy to commit adul- 2 See the cases cited to the last sec- tery, see Vol. II. § 184; Shannon v. C. 14 tio„ Pa. 226 ; Miles v. S. 58 Ala. 390. 8 Ante, § 760, 761. " Ante, § 767. 461 § 768 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. and whether he be within the queen's dominions or not, shall be guilty of a misdemeanor." And when the Russian emperor had been assassinated, a German newspaper in London com- mended the act, and urged the following of it as an example in all other countries. The writer was indicted upon this statute, and the jury were directed to convict him if they thought he in- tended to and did encourage or endeavor to persuade any person to murder any other person, whether a subject of .her Majesty or not, and whether within the queen's dominions or not. They found him guilty, and on a case reserved the direction was ad- judged to be correct.! if the offence commended had been greatly lighter, there might be ground to say — the author does not ex- press any opinion whether or not it would be just — that this general encouragement to repetitions, without mention of person, place, or time, was too remote for the law's cognizance.^ Yet — § 768 b. Unread Letter solioitins to Sodomy. — Where one wrote to a school-boy to meet him for the purpose of sodomy, but the boy passed the letter to the school authorities unread, being in no way made aware of its contents, the English Court held that the offence of attempt by solicitation was complete.* On the other hand, — § 768 c. 1. Denying Entire Doctrine. — There is probably not a .doctrine of our law, however fundamental, that has not been dis- owned by some judge. It is no marvel, therefore, that in our American books dieta may be found declaring solicitation not to be a sufficient act to constitute a punishable attempt. "The attempt," a learned judge once said, " can only be made by an actual, ineffectual deed, done in pursuance of and in furtherance of the design to commit the- offence. I would have supposed that the case of Rex «. Butler* would have fallen within this rule; and yet it wp,8 held there that a count was not good which charged that the defendant ' did attempt to assault the said Sarah Vernon, by soliciting and persuading and inducing her to lie down upon a certain bed in the dwelling-house of him the said J. B. there situate, and getting upon the body of her the said S. V., &c. This was soliciting and persuading with overt acts that clearly 1 Reg. V. MoBt, 7 Q. B. D. 244. » Reg. v. Ransford, 13 Cox C. C. 9. ^ See Pool !;. Sacheveral, 1 P.- Wma. * Rex v. Butler, 6 Car. & P. 368. 675, and Plating Co. v. Farquliarson, 17 Ch. D. 49, commented on in this case. 462 CHAP. LI.] ATTEMPT. § 768 C manifested the guilty intent ; and if solicitation with such indu- bitable acts be not indictable, it is quite necessary to conclude that mere solicitation without any overt acts is not indictable. It is easy to say that solicitation is an attempt, but a study of the cases will show that every case of attempt has included some- thing more than mere solicitation." ^ Now, if the particular case to which this learned judge refers had really decided what he says it did, it would be of little weight, because it was a jury trial be- fore a single judge. But the judge expressly stated in it that solicitation is an attempt, and mentioned a case wherein it was held tliat soliciting an engraver to engrave a plate for forgery is indictable. " I drew," he said, " the indictment ... for soliciting the engraver to engrave the plate, and the prisoner was tried and convicted on it." ^ In this solicitation to permit a carnal abuse, the girl's consent, if she had given it, would not have rendered the man's act unindictable, but it would have prevented its being an assault ; ^ and plainly an attempt to assault even this girl by soliciting her to permit the assault, as this indictment charged, would be, as it was held, a mere absurdity, the consent rendering the assault impossible. Equally mistaken is this judicial dictum upon the effect of the decisions at large. And — 2. The Adjudged Law, — from early times down to the present day, makes mere solicitation, in the circumstances explained in the foregoing sections, an indictable attempt. And a sufficient form of the averment is settled to be that, at a time and place ^ mentioned, the defendant " falsely, wickedly, and unlawfully did solicit and incite " a person named to commit the substantive 1 Smith V. C. 54 Pa. 209, 213, 93 Am. Richard F. Waring," &c. Stabler v. C. B. 686. For dicta almost or fully as loose 95 Pa. 318, 40 Am. R. 653, in the latter and inaccurate, see S. v. Bailer,' 26 "W. Va. of which reports I do not find the matter 90, 98, 53 Am. R. 66. Quite inconsistently I have quoted. Yet it is said in this case with the dicta I have extracted from Smith that " merely soliciting one to do an act is V. C. a count jn an indictment was in Penn- not an attempt to do that act." And look- sylvaniaheld to be good which " charged," ing at a note in the American Reports, I I copy from the report, " that defendant am prompted to say that possibly there did falsely and wickedly solicit and invite may be legal persons who distinguish be- one John Neyer, a, servant of the said tween a " solicitation " and an " attempt," Richard F. "Waring, to administer a cer- deeming both indictable. Such is not the tain poison and noxious and dangerous ordinary language of our books, and I substance commonly called Paris green know of no reason for refusing the name to the said Richard F. Waring, and divers " attempt " to an indictable solicitation, other persons whose names are to said in- ^ Anonymous, stated 6 Car. & P. 368. quest unknown, of the family of the said » Stat. Crimes, § 496. ^ 463 § 768 d TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK YI. crime, -without any further specification of overt acts.^ The ade- quacy of this form of the allegation stands unquestioned and unquestionable in the authorities, ancient and modern ; and, be- yond cavil or possible overthrow, it proves that solicitation is an adequate attempt ; and that the doctrine is general, not limited to special offences. At the same time, like other forms of the attempt, it may not extend to trivial offences, or it may be other- wise limited like the others. § 768 d. 1. Denying Doctrine in Part. — We have another case wherein the judges suffered themselves to be misled by an inac- curate text-writer. Apparently looking simply at his words, and not duly examining his cases,^ they drew the distinction that ■ solicitations to offences which are breaches of the peace, or cor- rupting to the body politic as interfering with public justice, are indictable attempts, but that other solicitations to crime! are not. They admitted that " there are respectable authorities holding to a different rule." In fact, there is believed to be no single authority, respectable or otherwise, ancient or modern, which really sustains this distinction.' The particular application of the distinction was that, a statute having made incest heavily punishable, a solicitation to commit it was still not an indictable attempt.^ As to which, — 2. Incest — Sodomy. — If incest were a very light offence, our foregoing expositions have shown that by the just and commonly accepted doctrine a solicitation to it, or any other mere at- tempt to commit it, would not be a sufficiently heavy dereliction to be punishable. But it is nowhere deemed light. In the country whence our jurisprudeiice is derived, a statute made sodomy, like incest, a heavy crime.* And where it is committed between two men, or a man and woman contrary to nature, it is a sexual dereliction altogether similar to incest in its nature.^ Now, ever since this statute was passed, the English law has held a solicitation to sodomy to be an indictable common-law attempt.^ ' Crim. Pro. IL § 74-76 ; Dir. & ¥. commented on in the first paragraph of § 106. And see specially the many cMes the last section, cited at the latter place. 8 Cox v. P. 82 111. 191. 2 They refer to Smith v. C. 54 Pa. 209, « Ante, § 503 (1). 93Am. D. 686; C. v. Willard, 22 Pick. 6 See McCoU's Case, 1 Scotch Sess. Cas. 476; Rej v. Butler, 6 Car. & P. 368,— 4th ser. Jnst. 22, 2Couper, 538. the first one and the last being the two ^ Ante, § 767 (2), 768 6; Reg. v. Eans- 464 ford, 13 Cox C. 0. 9. CHAP. LI. J attempt; § 769 No difference can in reason be assigned between classes of offences of equal turpitude, as measured by the law's standard, the punishment. Whei-e the same legal consequence follows incest, buggery, adultery, and larceny, if a father should urge his son and daughter to commit incest, then go to a neighbor's house and she steal a silver pitcher while he engaged the woman in adultery, and lastly visit the stables, no just principle of law could make punishable .the solicitation to one of the wrongs and not to another. " True," says the new doctrine, " nothing of this would be indictablp, for no one of these doings constitutes a breach of the peace or an interference with public justice ; but let the solicitation be to break the peace by inflicting on a neighbor's boy a merited whipping for stealing the son's apples, or to impede public justice by dissuading the boy from' attending court as a witness to the unlicensed sale of a gill of needed gin to the daughter, and the law would have something worthy of its no- tice ! Verily that would be a crime." ^ § 769. Further of the Adaptation of Means to Und : — 1. This Doctrine, — already explained,^ is mentioned in repeti- tion here because of its importance. Whatever be the form of the attempt, if in the thing done there is no real or apparent aptitude to accomplish the criminal end meant, it does not ap- proach sufficiently near the consummation to create the alarm against which the law of attempt protects us, and it is not in- dictable. Thus, — 2. Similitude, &o. — (Forgery). — Following common-law prin- ciples, but resting mainly on statutes, we have in forgery and counterfeiting the rule that there must be in the false thing a similitude to the supposed original ; otherwise it could not prob- ably accomplish any intended cheat.^ And — 3. Within the Like Reason — we have some other derelictions, and to them also the substance of this rule applies.* 4. Sort of Thing administered — (Abortion). — Under a statute making it criminal to administer to a woman, with intent to pro- 1 And see post, § 772 a. Welsh, 1 East P. C. 87, 164, 1 Leach, 364 ; 2 Ante, § 738etseq. U- S. w. Morrow, 4 Wash. C. C. 733; ' Vol. II. § 291, 592; Kex v. Hoos^ 2 Easnick v. C. 2 Va. Gas. 356; Kex v. EastP. C. 950; Rex ». EUiot, 2 East P. C. Varley, 1 Leach, 76, 1 East P. C. 164. 951 ; s. c. nom. Rex v. Elliot, 1 Leach, 175, « Reg. w. Stringer, 1 Car. & E. 188 ; 179; Rex v. Collieott, Russ. & Ry. 212, 2 Rex v. Griffith, 1 Car. & P. 298. * Leach, 1048, 4 Taunt 308, 309 ; Rex v. VOL. I. — 30 465 § 772 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOCK Vli cure an abortion, " any medicine or other thing" a learned judge intimated that it was immaterial what the thing was, if given with the intent, though only " a bit of bread." ^ Yet should the prisoner know it to be incapable of producing the result, plainly he would not commit a crime ; because he could not have the required evil intent.^ And at least a little different wording of the statute would produce a contrary result.^ IV. The Combinations of Act and Intent. § 770. 1. Every Crime — at common law, we have seen,* con- sists of an act prompted by an evil intent. In attempt this is specially so ; and even a general evil intent, or the particular intent to commit a substantive wrong other than the one charged, will not as in most substantive offences suffice.^ And — 2. The Specific Intent — to do the particular thing, without which there can be no attempt, must, in reason, impel the act in every one of its essential parts. For example, if, as in a case already supposed," a man should ride to a place where there was a girl between ten and twelve years of age to commit a carnal abuse upon her, then should bind her under the changed purpose to murder her, then should resolve again upon carnal abuse, but before taking any further steps should be frightened away, he could not be punished for the carnal attempt, whatever his liability might be for the attempt to murder. Therefore, — § 771. Simultaneous. — Whether or not the evil intent and act must in substantive crimes be simultaneous,^ plainly they must be in attempt. And the special intent must combine with every indispensable part of the act. Yet if enough is done under the promptings of this intent, it will not avail the defendant that non- essential things transpire while the evil purpose is absent.^ V. The Degree of the Offence. § 772. 1. iBj Misdemeanor. — The attempt to commit a felony was once supposed to be felony.^ But this idea ceased long ago ; 1 Rex V. Coe, 6 Car. & P. 403, Vaughau, * Ante, § 204-207, 287, 430 et seq. B. And see S. v. Fitzgerald, 49 Iowa, 260, 5 Ante, § 729, 730. 31 Am. R. 148; C. v. Morrison, 16 Gray, 6 Ante, § 762 (2). 224. 7 Ante, § 207. 2 Ante, § 753. . B Ante, § 339-341. 8 Reg. V. Hennah, 13 Cox C. C. 547 ; " 1 Hawk. P. C. Curw. ed. p. 72, § 3 ; P. 0. Van Deleer, 53 Cal. 147. 1 East P. C. 411 ; Dwar. Stat. 2d ed. 794. 466 CHAP, LI.] ATTEMPT. § 772 a and now," whether the offence attempted is felony or misde- meanor, statutory or at common law, the attempt is misdemeanor.^ Therefore — 2. Counselling to Felony. — If one Counsels to a felony another who in his absence undertakes it and fails, the two may be in- dicted together for the attempt.^ But had the effort succeeded, the absent one would have been an accessory before the fact, and the other a principal, in the felony ; and the indictment could not have been in the same sense joint.^ 3. Attempt in Treason. — Some of the English treasons, as the imagining of the sovereign's death, are so purely attempts as not to admit of technical ones.* But it is believed that both of the forms of treason known with us, though in some sense at- tempts,^ may, in the States, have indictable attempts besides,® which are misdemeanor.'^ 4. Under Statutes — (Punishment). — In a note are cited some cases relating to the grade of attempt under statutes, and the punishment. Among these statutory attempts are some felonies.* And there are statutes creating offences so small, or otherwise in such terms, that the attempt is not punishable.^ § 772 a. The Doctrine of this Chapter restated. An act toward an indictable wrong, if prompted by the intent to do it, partakes of the culpability of the doing. And if its not 1 1 East P. C. 85, 411, 415 ; Holmes's treason.'' Holt, C. J. in Freind's Case, 13 Case, Cro. Car. 376 ; S. v. Boyden, 13 Ire. How. St. Tr. 1, 61. See ante, § 767 (3) ; 565 ; C. 0. Barlow, 4 Mass. 439 ; Rex v. Hex v. Cowper, 5 Mod. 207. Scofield, Cald. 397 ; Hackett v. C. 15 Pa. ' And see ante, § 717 (3). 95; Rex u. Kinnersley, 1 Stra. 1 93 ; Smith « Ex parte Max, 44 Cal. 579; S. v. V. C. 54 Pa. 209, 93 Am. D. 686; Rice v. Swann, 65 N. C. 330; Mackay c. p. 1 C. 3 Bush, 14; S. V. Jordan, 75 N. C. 27 ; Par. Cr. 459; Pinson r. S. 23 Tex. 579; Nicholson v. S. 9 Bax. 258. Usher v. C. 2 Duv. 394 ; O'Neil t). P. 15 2 Reg. a.' Clayton, 1 Car. & K. 128; Mich. 275; Reg. v. Woodhall, 12 Cox ante, § 685, 686. C. C. 240, 4 Eng. Rep. 529 ; S. v. Archer, 3 Ante, § 663, 664 ; Train & Heard 54 N. H. 465 ; Hamilton v. S. 36 Ind. 280, Prec. 15. 10 Am. R. 22; P. v. Murat, 45 Cal. 281 ; * Rex V. Jackson, 1 Crawf. & Dix C. C. Nevills v. S. 7 Coldw. 78 ; Jones i-. S. 3 149 ; 1 Hawk. P. C. Curw. ed. p. 12, § 27, Heisk. 445 ; S. v. Scott, 72 N. C. 461 ; S. v. 30-33 ; Rex V. Tooke, 1 East P. C. 60 ; Brown, 60 Mo. 141 ; Hill v. S. 53 Ga. 125 ; Reg. V. Harris, Car. & M. 661, note. Meredith v. S. 60 Ala. 441 ; S. v. Doering, 5 Ante, § 437 (5), 440 (1); Rex v. 48 Iowa, 6.50 ; Territory «. Conrad, 1 Dak. Stone, 6 T. R. 527; Rex ■/. Gordon, 2 sfes; S. v. Clayton, 100 Mo. 516, 18 Am. Doug. 590 ; 3 Inst. 9. And see Respublica St. 565. V. Roberts, 1 Dall. 39. ^ Ante, § 755, 759-761 ; Whitesides v. 8 See I East P. C. 85. " If there be S. 11 Lea, 474 ; Brown v. S. 7 Tex. A p. only a conspiracy to' levy war, it is not 569. 467 § 772 a TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. being done was caused by some intervening obstacle, ■while the evil purpose remained, the person attempting it is morally as rep- rehensible as though he had succeeded in what he meant. But the public has not suffered so much, therefore it will not punish him so heavily. Still, if there was an apparent danger of the evil thing being accomplished, it suffered more or less according to the particular facts. If such danger and suffering were too light for the law's notice, it would not visit the doer with punish- ment. If they were sufficient in degree, the punishment would be greater or less according to the circumstances, — the rule being that the evil in the intent and the evil in the act furnish in com- bination the measure for the punishment. One whose attempt consists of unsuccessfully soliciting another to commit the pro- posed crime does not morally differ from him who, in felony, solicits successfully, and is termed an accessory before the fact. And his legal position is the same, except that the public has suffered less, so it punishes him less severely. In both cases, what was done was by operating on the will of another ; in the one successfully, in the other not. The principle is identical in both. To turn now to the unindictable : where steps are taken of a sort to end in a substantive crime, and even steps which would so end were they not interrupted, yet he who takes them does not mean this result, the reasons thus stated do not control the case, because of the absence of the intent to do the wrong. An essen- tial element is wanting. Either, therefore, the party is not pun- ishable, or his offence is of some other class. If the law declared the steps themselves to be a crime, though of another name,— for example, assault and battery in a case where had they pro- ceeded further the end would have been murder, — the offence actually perpetrated is substantive ; if the law has not so declared, the doer escapes punishment, for there is no attempt. 468 CHAP. LII.] SHAPING WRONG INTO SPECIFIC CEIMES. § 775 CHAPTER LII. HOW THE LAW SHAPES THE CRIMINAL WRONG INTO SPECIFIC CRIMES. § 773. Elsewhere — Here. — In preceding chapters we saw how the law divides the criminal field as to the respective partici- pants in a criminal thing, and as to the several grades of offending. In this chapter, we consider how it separates and classifies evil- doings between which the natural demarcations are not numerous, each enclosed within artificial lines distinguishing it from the rest ; in other words, into specific crimes.' §774. Surplusage of Wrong. — In most criminal transactions, we discover more or less of wrong not within the cognizance of the law, or not entering into any particular crime. As there may be a surplusage of criminal intents, the non-essential ones not detracting from the essential,^ so there may be of criminal acts. And ordinarily it is immaterial what wrongful things, whether made crimes by the law or not, a man may have done in con- nection with the one charged against him ; if he has done this one, be should be convicted of it, otherwise not. § 775. It is not Possible — the law should be otherwise. The transactions of life are nearly limitless and constantly shifting. Therefore the law could not so completely adapt itself to all the facts of wrong-doing as to take cogpizance of every shade of motive, and every minute variation of the act, which might attend upon each separate criminal transaction. Even if the law-making power had prophetic vision, it could not so multiply inhibitions as fully to cover all future combinations of evil. It must draw its lines around particular things, and say : " These I forbid ; and it is immaterial whether or not they .are accompanied by things around which my lines are not drawn; whatever lies outside of ray lines, I disregard." 1 Ante, § 337-339. 469 § 779 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. § 776. What a Specific Crime — Name. — When the law-making power has thus drawn its lines around "a defined combination of act and intent, declaring a punishment therefor, it has created a specific crime. It may give to the crime a name, or not. This already has been explained.^ § 777. Transaction and Crime distinguished: — There is a differ- ence between a crime and a criminal transaction. The latter is a series of acts proceeding from a single impulse or connected series of impulses of the will, ''such that one or more of them will be indictable. The former consists of such single one or com- bined two or more of these acts as, to follow the above definings-,^ can be set within the law's lines, and, the surplusage of wrong all excluded, constitute this or that for which the law has provided a punishment. § 778. 1. Plurality of Crimes in one Transaction. — Perhaps the average criminal transaction contains but one crime. Yet there may be and often are more.^ The law, in advance, draws its lines around a clustered combination of act and intent, and makes what is within those lines punishable as a specific offence ; then around another, and another, and so on, until it is deemed to have gone far enough, and stops. It is, therefore, not only theoreti- cally, but practically, competent for a person to do in one trans- action what will be within more tlian one of these circles of the law ; and this fact the courts recognize in their adjudications.* But — 2. Punishing more than One. — Whether a prosecution for one crime carved out of the one transaction should operate to bar an indictment for' another, carved out of the same, is a different question ; the authorities appear to be that in some circumstances it will, in others it will not.^ § 779. 1. Electing Crime to prosecute. — Often the criminal 1 Ante, § 599 (2); S. v. Burgson, 53 Dana, 518; Smith v. C. 7 Grat. 593; S. v. Iowa, 318. Fayetteville,2Murph.371; Rexv.Champ- - Ante, § 775, 776. neys, 2 Moody & R. 26, 2 Lewin, 52 ; S. v. 3 Olathfi V. Thomas, 26 Kan. 233. Johnson, 12 Ala. 840, 46 Am. D. 283 ; Hol- * Jones V. S. 66 Missis. 380, 14 Am. St. eomh v. Cornish, 8 Conn. 375; S. w. Squires, 570; Brownii. C.76Pa. 319; Womack w. 11 N. H. 37 ; C. v. Tuck, 20 Pick. 356; S. 7 Colclw. 508 ; P. u. Alibez, 49 Cal. 452 ; Josslyn v. C. 6 Met. 236 ; S. v. Thurston, P. V. Smith, 57 Barb. 46 ; Bonsall c. S. 35 2 MeMul. 382 ; Reg. v. Brettel, Car. & M. Ind. 460; C. v. Butterick, 100 Mass. 1. 609; Rex n. Jones, 4 Car. & P. 217 ; Rex s Stat. Crimes, § 143 ; S. v. Standifer, v. Britton, 1 Moody & R. 297; Lorton v. 5 Port. 523 ; S. v. Damon, 2 Tyler, 387 ; S. 7 Misso. 85, 37 Am. D. 179. S. V. Fife, 1 Bailey, 1 ; Hinkle „. C. i 470 CHAP. LII.] SHAPING WRONG INTO SPECIFIC CRIMES. § 780 transaction affords a wide election in methods of dealing with the offender. In other instances, the alternatives are but few, or even the prosecuting power may be without any choice. Let us look at some of the forms, — 2. Law punishing Part only. — If a son knows that his father, prompted by a special affection, has made a will providing for him more largely than for the other children, yet he meditates a series of frauds on the discovery of which he 'fears the will may be cancelled, and to prevent this and gain immediate possession of the property, takes the father's life, — the law cannot punish his meditated fraud, his ingratitude, or his want of filial duty. It can proceed against him ■ only for simple murder, as it would against a stranger. If the son were also a servant, the English law, as it stood when this country was settled, not as it stands now in either country ,i would hold him to be guilty of petit treason, which is murder aggravated by the single circumstance of the person whose life is taken being the master or husband of the offender ; 2 but the other aggravating matter supposed could not be included in the charge against him in such a way as to enhance his legal guilt. § 780. 1. Crime within Crime. — A common "sort of combina- tion occurs where one crime is, in a sense, enclosed within an- other. For example, — 2. In Burglary, — when committed by an actual larceny in the place broken,^ the larceny is a less offence included within bur- glary the greater. And the offender may be indicted either for the larceny or for the burglary, or the one accusation may be in a form to permit a conviction for either according to the proofs.* Again, — 3. In Felonious Homicide, — committed by an assault and a beating, there may be a gradation of offences, the particulars of which will somewhat vary with the laws of the State in which it is committed. The lowest offence will be assault, the next above it will be' battery, the next will sometimes be assault with a dangerous weapon, the next assault with a dangerous weapon with intent to kill, the next manslaughter, the next murder, and the last murder in the first degree. Each one of these, except the 1 Ante § 611. " Grim. Pro.. II. § 143; S. v. Shaffer, 2 1 Hawk. P. C. 6th ed. c. 32, § 1, 2. 59 Iowa, 290 ; S. v. Beckworth, 68 Mo. s Post, 8 796, 1062. 82 ; S. v. Wilson, 59 N. H. 139. 471 § 782 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK Vi: last, will be a less crime included in the greatex*. And where the common-law rule that there can be no conviction for miedemeanor on an indictment for felony does not prevail, a person on trial for any higher one of these offences may be convicted of any lower one which the proofs establish, if the indictment is, as it always may be made, in a form to include the lower.^ § 781. 1. other Forms — are found in the law, to an extent that lias no definable limits. Thus, there may be in one transac- tion different offences, partly, not wholly, included within one another ; or there may be different offences neither one of which will embrace anything lying within any other. To illustrate, — 2. Arson and Murder. — A man may be guilty of arson in burn- ing a dwelling-house wherein a human being is consumed, and so ■ by the same act be guilty also of murder.^ The murder and the arson are two offences, each one of which, in the particular in- stance, includes some element belonging to the other.^ In like manner, — § 782. 1. Common Seller and Single Sales. — One may be a common seller of intoxicating liquor without license, contrary to a statute; and in carrying on this business he may be guilty. of specific sales against another statute making each particular sale an offence.* Or — 2. Three or More Offences. — Instead of two offences in one transaction, the law may make three or more ; or instead- of so separating the transaction that a part of it shall enter into two or more, it may make of it as many distinct crimes as it pleases, in such a way that" no one of them will include anything which also enters into another .^ 1 The doctrine of this pariigraph is P, v. Fine, 53 Cal. 263; Wilson v. S. 53 very elementary, and the authorities to it Ga. 205. are not discordant. Some of them are » S. v. Cooper, 1 Green, N. J. 361, 25- Scott V. S. 60 Missis. 268 ; Territory v. Am. D 490 Dooley, 4 Mont. 295 ; Bush v. C. 78 Ky. 8 See post, S 815. 268; P. V. McDonnell, 92 N. Y. 657; 4 S. «.Maher,35Me.225; S,«.Goombs, Peterson « S. 12 Tex. Ap. 650; S. v 32 Me. 529. And see S. «. Bugbee, 22 Vt. Parker, 66 Iowa, 586; Davis „. S. 45 Ark. 32," C. „. Perlev, 2 Cush. 559; Rex v. 464 ;b. ,. Burk, 89 Mo. 636 ; S. v. Grimes, Champneys, 2 Moody & R. 26, 2 Lewin, 29 Mo. Ap. 470; P v Warner, 53 Mich. 52; Hinkle v. C. 4 Dana, 518. 78 ,P 0. Adams, 52 Mich. 24 ; Powers v. 6 See Torey v. S. 13 Mo. 455 ; Wilson &. 87 Ind. 144; Bryant v S. 41 Ark. 359 ; t, C. 12 B. Monr. 2 ; Smith v. C. 7 Grat. Buckner «. C. 14 Bush, 601 ; S. v Scheie, 593 ; S. v. FayetteviUe, 2 Murph. 371 ; 52 Iowa, 608; S. v. O'Kane, 23 Kan. 244; S. o. Fife, 1 Bailey, 1 ; S. v. Staudifer, 5 Port. 523. 472 CHAP. LII.] SHAPING WRONG INTO SPECIFIC CRIMES. § 785 § 783. To these Combinations, — actual or possible, no limit can be set. But further particularizations seem not to be required. § 784. Further as to which. — We should bear in mind that this aspect of the law cannot be avoided by any skill of arrangement or by legislation. It comes from the nature of legal things and of human existence itself. No two acts, of the past or the present, viewed in reference to all their surroundings and the inner mo- tives prompting them, are precisely alike. And no single future act, so viewed, can be foreseen. We can merely know that in its own minuter qualities, and in its relations to 'its surroundings, each future act will differ from every preceding one, and thus the course of events will continue forever. The consequence is that the law, statutory and common, must forbid things in terms broad enough to comprehend an infinite variety of -shades and qualities of wrongrdoing. The inhibition must also be specific, descending somewhat to the minute. When it thus descends, it of course can include only a part of the wrong things possible to be done. Then must follow another somewhat minute direction, then another, then another, until the law-giver thinks he has gone far enough. Each new defining or drawing of lines around a thing thus newly made indictable is as likely to embrace within it some acts which were indictable before, by reason of lying within different lines, as to include what was not before indictable. The new and the old stand together, and a particular element of wrong may thus be found to be within any number of the law's enclosing circles. And what is thus said applies, as mentioned already, to the com- mon law as well as to the statutes. The common law would be the perfection of folly, instead of meriting the praise bestowed in days past upon it as the perfection of wisdom, if it attempted to divide the indictable into such classes of things that no one trans- action would fall into more than a single class. § 785. 1. Committed in Different Ways. — Some single offences may be committed in different ways. For example, — 2. A statute — made punishable " every person who shall buy, receive, or aid in the concealment of, any stolen goods, knowing the same to be stolen ; " and it was construed as creating only one offence, the guilt whereof might be incurred in any one of three ways ; namely, by buying, by receiving, or by aiding in the concealment of, the goods; and if an indictment alleged the three too^ether, no objection could be taken to it as multifarious, 473 § 785 a TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. though it might equally well have charged but one.^ On a prin- ciple somewhat similar, — 3. statute or Common Law. — Frequently a man may be in- dicted for the same thing either under a statute or at the common law, at the election of the prosecuting power.^' § 785 a. Restated, — the doctrine of this chapter is that a spe- cific crime is a defined combination of act and evil intent, which the law has declared punishable in a particular way. And noth- ing is punishable that is not thus made a specific crime, either with or without a name. Not all wrongful things are singly or combined made crimes. But some such things, if not alone in- dictable, constitute parts of one or more specific offences, while others find no place in any indictable combination. Whether or not the wrong which constitutes a part of more crimes than one, can, after the doer of it has been put in jeopardy for one combi- nation, remain a part of another combination for a prosecution of it also, is a question for a future chapter.^ 1 Crim. Pro. I. § 434-436 ; Stevens v. S. v. Woodward, 25 Vt. 616. But see C 6 Met. 241; S. w. Slocura, 8 Blackf. 315. Miller v. S. 5 How. Missis. 250. And see Reg. v. Bird, 2 Eng. L. & Eq. 448, 2 Stat. Crimes, § 164, 173. 2 Den. C. C. 94 ; C. v. Tuck, 20 Pick. 356 ; 8 Post, c. 63. 474 CHAP. Llll.] MERGER OF OFFENCES. § 787 CHAPTER LIII. MERGER OP OFFENCES. § 786. Something like Merger — occurs where a criminal act is within the definitions of two or more separate offences, or where it may stand anywhere among graded offences included within one another, as explained in the last chapter. The rule for which is that the prosecuting power may select for conviction any one of tlie offences, and the defendant cannot object though his guilt embraces also a larger or different one.^ But — The Merger of this Chapter — creates a sort of partial exception to that doctrine. It is — § 787. 1. Defined. — Merger is where the same act of .crime is within the definition of a misdemeanor and also of a felony, or of a felony and likewise of treason ; and the rule is that the lower grade of offence merges in the higher, so that the act can be pun- ished only as felony in the one instance or treason in the other. Or — 2. More Fully. — There is at the common law a wide distinc- tion between felony and misdemeanor.^ It affects alilie the pun- ishment, the procedure, and several rules governing the crime itself. Out of this distinction grows the doctrine that the same precise act, viewed with reference to the same consequences, can- not be both a felony and a misdemeanor,^ — a doctrine which applies only where the identical act constitutes both offences.* Hence, as seen in another connection,® if a statute creates a. felony of what was before a misdemeanor, or a misdemeanor of what was before a felony, the criminal tiling can no more be prosecuted as of its former grade. In like manner, if a statute elevates a felony to high treason, it is, to quote from Sir Michael Foster, " absorbed in the treason." ^ To illustrate, — > Ante, § 780 ; post, § 791, 815. 5 Watts & S. 34.5 ; Johnson v. S. 5 Dutcher, " Ante, § 609, 616. 453. ' Post, § 804 (2) ; Reg. V. Button, 11 * Johnson v. S. supra. Q. B. 929 ; Rex i: Tlarmwood, 1 East P. C. « gtat. Crimes, § 174. 411; C. V. Roby, 12 Pick. 496 ; C. o. Parr, « Foster, 373. 475 § 789 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK TI. § 788. 1. In Rape — Murder. — An act which amounts to the common-law felony of a rape ^ or a murder ^ cannot at the same time be such an assault as is misdemeanor. Yet — 2. Application of Doctrine. — There is much obscurity in the books as to the application of this doctrine. We shall look again at this question in our next chapter.^ The Connecticut Court held that proof of a rape will sustain an indictment for an aissault with intent to commit it.* But Hawkins says : " It seems that if a man be indicted for a felony generally, and upon the evidence it plainly appear that the fact amounts to no more than a bare trespass [misdemeanor^], he cannot be found guilty of the tres- pass, but ought to be indicted anew.^ Yet if the special circum- stances of the case be set forth in an indictment for an offence laid as felony, and the defendant be found guilty generally, and afterwards the court be of opinion that the fact doth not amount to felony, but only to an enormous trespass, it seems agreed that judgment may be given as for a trespass only.^ Also, if the jury find a special verdict on a general indictment for felony, and the crime be adjudged upon such verdict to be but a trespass, judg- ment may be given upon it as foi* a trespass only. Also, if on an indictment of trespass the fact appear to have been felonious, it hath been adjudged that the defendant may be found guilty of the indictment as it is laid, because the king may proceed against the offender as he thinks fit, either as a trespasser or a felon.^ But the contrary is said to Tiave been holden by the late Chief -Justice Holt." 9 § 789. statutes changing Common Law. — It is competent for legislation to abrogate the common-law rule whereby an act can- not be both a felony and a misdemeanor, or to modify the con- sequences of the rule. And we have seen i" that it has widely interfered with the old obstructions to the prosecution of the receiver of stolen goods." Beyond which, in a large and increas- ing proportion of our States, the rule and its consequences have 1 Rex I). Harmwood, 1 East P. C. 411 ; ^ Ante, § 62,5. S. V. r)urham, 72 N, C. 447 ; Reg. ^. Cath- » As to which see post, § 804 et seq. erall, 13 Cox C. C. 109. See, however, 7 See post, § 810. Reg. V. Allen, 2 Moody, 179. s See post, § 812-815. 2 C. 0. Roby, 12 Pick. 496. 9 2 Hawk. P. C. c. 47, § 6. 8 Post, § 804-815. 10 Ante, § 699, 700. ' S. V. Shepard, 7 Conn. 54. But see " See also Noland v. S. 19 Ohio, 131. post, § 804-809. 476 CHAP. LIII.] MERGER OP, OFFENCES. § 790 been partly or fully done away with by statutes ; so that, for ex- ample, there may be a conviction of misdemeanor on an indict- ment for felony, or proof of a felony may be introduced to sustain an indictment for a misdemeanor .1 § 790. The Next Chapter, — to which the present one is intro- ductory, will conduct this subject further into detail. But the reader is admonished that we have many statutes, more or less differing in our respective States, whereby the common-law rules are controlled. And it is not safe for a practitioner to forbear the most careful and thorough search through the legislation and decisions of his own State under this head. 1 Post, § 808-815; C. v. Dean, 109 76 Ala. 33; S, u. Vinsant, 49 Iowa, 241; Mass. 349; Stephen v. S. 11 Ga. 225; S. ». Vadnais, 21 Minn. 382 ; Norton u. S. Hardy v. C. 17 Grat. 592 ; Foster v. P. 1 106 Ind. 163 ; Groves v. S. 76 Ga. 808 ; P. Colo. 293 ; Canada v. C. 22 Grat. 899 ; v. Arnold, 46 Mich. 268; S. v. O'Kane, 23 Wolf V. S. 41 Ala. 412 ; Hanna v. P. 19 Kan. 244; S. v. Pennell, 56 Iowa, 29; S. Mich. 316 ; P. v. Bristol, 23 Mich. 118 ; v. Peters, 56 Iowa, 263 ; HaU v. S. 7 Lea, Green v. S. 8 Tex. Ap. 71 ; Bryant v. S. 685. 477 § 791 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. CHAPTER LIV, THE RELATIONS OP THE SPECIFIC OFFENCES TO ONE ANOTHER AND TO THE CRIMINAL TRANSACTION. § 790 o. Introduction. 791-803. Separation into Specific Crimes. 804-815. Limitations from Merger and the Like. 815 a. Doctrine of Chapter restated. Consult — the last two chapters as introductory to this one ; also Crim. Pro. L § 415-420, 444-462. § 790 a. How Chapter divided. — We shall consider, I. The Separation of Criminal Things into Specific Crimes and the Con- sequences thereof ; II. The Limitations created by the Doctrines of Merger and the Like. I. The Separation of Criminal Things into Specific Crimes and the Consequences thereof. § 791. Election of Offences. — Subject to whatever exceptions are derivable from the doctrine of merger, stated in tlie last chap- ter and to be further explained in the next sub-title, one answer- able for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He is not to elect, but the prosecuting power is.^ If the evidence shows him to be guilty of a higher offence than he stands indicted for, or of a lower, or of one differing in nature, whether under a statute or at the common law, he cannot be heard to complain, — the question being whether it shows him to be guilty of the one charged.^ Thus, — ^ Cole V. S. 5 Eng. 318, 322 ; Beg. v. in the remaining notes to this section and White, 9 Car. & P. 282 , Reg. v Franklin, the next. 6 Mod. 220, Reg. «. Brightside Bierlow, 4 2 Reg. v. Neale, 1 Car. & K. 591, 1 New Sess. Cas. 47, 14 Jur, 174 ; S. v. Jesse, Den. C. C. 36 ; Reg. v. Howell, 9 Car. & 3 Dev & Bat. 98 ; Simpson « S. 10 Yerg. P. 437, 454 ; Lohman ». P. 1 Comst. 379, 525; T-Iickey t). S. 23 Tnd 21; U. S. v. 49 Am. D 340; S. t;. Sonnerkalb, 2 Nott Grundy, 3 Cranch, 338, and the cases cited & McC. 280 , Thayer v. Boyle, 30 Me. 475; Reg. u. White, 20 Eng. L. & Eq. 478 CHAP. LIV.] THE RELATIONS OP THE OPFENCFfl. § 793 § 792. In Conspiracy — Manslaughter — Larceny — Robbery — Malicious Mischief — Battery — Non-repair of Way — Accessory. — Where the indictment is for a conspiracy to commit an offence, and the proofs establish that the conspirators actually committed it ; 1 or for manslaughter, and murder is shown ; ^ or for larceny, and it was perpetrated in the course of a burglary ^ or a robbery;* or for malicious mischief, and the facts appearing would equally sustain a charge of larceny ; ^ or for inflicting a battery on one man, when in truth the blow took effect on two ; ^ or for the non- repair of one street, when the neglect covered several streets ; '< or for being accessory to one person, while more persons also were guilty of the principal offence,® — in these and the like cases, the defendant may be convicted of what is charged against him, if, like what is not charged, it is sustained by tlje evidence. § 793. 1. What a Crime — How Transaction Separable. — It is often a nice question whether or not a transaction is separable into more crimes than one, and what crimes. To illustrate, — 2. In Sabbath-breaking. — A man may violate the prohibiting statute by " exercising his ordinary calling " in a single act. Thereupon if he continues to perform like acts throughout the day, does he commit more offences than one ? The judicial an- swer to this question is that he does not.^ For further example, a statute provided a fine for " performing any worldly employ- ment or business " on Sunday, and it was held that a person who keeps open his shop and makes successive sales to different per- sons throughout the same day subjects himself to but one fine ; because " as in law, unless otherwise provided by the legislature, there are no fractions of a day," it is impossible for a man to commit more than one violation on one day.^" Again, — 585; S. 0. Keen, 34 Me. 500; Rex v. " C. w. McPike,3 Cush. 181, 50 Am. D. Davis, 1 Car. & P. 306 ; S. v. Ooppen- 727 ; Barnett v. P. 54 111. 325. burg, 2 Strob. 273; Rex v. Wilkes, 1 » Wyatty. S. lBlackf.257, P.w.Smith, Leach, 103, 2 East P. C. 746; Rex v. 57 Barb. 46. Cramp, Russ. & Ry. 327 ; Reg. v. Pringle, ' * Hickey v. S. 23 Ind. 21 ; Bonsall v. S. 9 Car. & P. 408, 2 Moody, 127 ; S. v. Par- 35 Ind. 460; S. v. Keeland^ 90 Mo. 337. melee, 9 Conn. 259; S. v. Munco, 12 La. ^ s. „. Leavitt, 32 Me. 183. An. 625 ; Johnson v. S. 14 Ga. 55 ; S. v. « S. v. Damon, 2 Tyler, 387. Archer 54 N. H. 465; C. v. Burke, 14 ' S. w. Fayetteville, 2 Murph. 371, Gray, 100 ; Hardy v. C. 17 Grat. 592 ; 8 Stoops v. C. 7 S. & R. 491, 10 Am. D. Campbell i'. S. 10 Tex. Ap. 560. 482. And see ante, § 666. 1 S. V. Murphy, 6 Ala. 765, 41 Am. D. » Crepps v. Durden, Cowp. 640 ; Reg. 79; P. V. Mather, 4 Wend. 229, 265, 21 v Castro, 5 Q. B. D. 490, 496. Am.D.122; S. ^. Murray, 15 Me. 100; C. " Friedeborn u. C. 113 Pa. 242, 245, 57 V Delanv, I Grant, Pa. 224 ; po^t, § 814. Am. R. 464. 479 § T94: TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. 3. In Burglary. — It seems to be deemed that if an offender breaks the same house at different times dui-ing the same night, all is or may be regarded as one burglary.^ Now, — 4. Varying Offences and Pacts, generally, — The minuter ques- tions under this head will best be considered in connection with the specific crimes. In broader terms, where there is no merger of misdemeanor in felony or felony in treason, the criminal trans- action is divisible at whatever place it can be so cut that the part will fill the law's definition of any crime. Again, when the divi- sion has been made, and the wrong-doer has been prosecuted for one offence, he may or may not be punishable for a second, prop- erly carved out of his act, — a question for a future chapter.^ Moreover, as a practical suggestion, the prosecuting power ought to be cautious how it carves ; because, not only may a miscalcu- lation in the exercise of the discretion I'esult in a failure to con- vict, but in some circumstances it will enable the prisoner, after trial, to plead the prior proceedings in bar of any subsequent ones. These propositions need not be drawn out into their de- tails in this connection ; but a reference to some cases illus- trating them will be convenient.^ § 794. Offences within One Another — (The Indictment). — Where offences are included one within another, as before explained,^ a person indicted for a higher one may be convicted of any below it not merged in that for which he is indicted,^ unless the allega- tion should happen to be in a form not charging the lower ; ^ for 1 p. V. Gibson, 58 Mich. 368. S. ». "Williams, 10 Humph. 101 ; Lorton 2 Post, § 978 et seq. v. S. 7 Misso. 55, 37 Am. D. 179 ; Reg. r. 8 S. V. Moultrieville, Eice, 158; S. v. Bleasdale, 2 Car. & K. 765; S. v. Nelson, Benham, 7 Conn. 4U ; S. w. Fife, 1 Bailey, 29 Me. 329; S. v. Thurston, 2 McMul. 1 ; S. K. Fayetteville, 2 Murph. 371 ; S. v. 382; Rex v. Birdseye, 4 Car. & P. 386. Johnson, 12 Ala. 840, 46 Am. D. 283; In Burglary. — As to burglary, and the Rex V. Champneys, 2 Moody & R. 26, 2 lilie, see C. v. Hope, 22 Pick. 1 ; Josslyn Lewin, 52 ; Hinkle v. C. 4 Dana, 518; S. v. C. 6 Met. 236 ; S. v. Squires, 11 N. H. V.Damon, 2 Tyler, 387; Holcomb w. Cor- 37; C. v. Brown, 3 Eawle, 207; S, v. nish, 8 Conn. 375; Frasier v. S. 6 Misso. Brady, 14 Vt. 353; Jones t. S. 11 N. H. 195; P. V. Ward, 15 Wend. 231; S. v. 269; Stoops w. C. 7 S. & R. 491, 10 Am. Cooper, 1 Green, N. J. 361, 25 Am. D. D. 482; Rex v. Comer, 1 Leach, 36; Rex 490 ; S. V. Plunkett, 3 Harrison, 5 ; S. w. v. Vandercom, 2 East P. C. 519 ; s. c. nom. Coombs, 32 Me. 529 ; S. v. Maher, 35 Me. Rex v. Vandercomb, 2 Leach, 708 ; C. v. 225; Smith v. C. 7 Grat. 593; Rex o. Tuck, 20 Pick. 356 ; S. u. Moore, 12 N. H. O'Brian, 7 Mod. 378 ; Rex v. Reynell, 6 42; C. v. Dove, 2 Va. Cas. 26. East, 315 ; S. o. Spurgin, 1 McCord, 252; * Ante, § 780. Shaw V. S. 18 Ala. 547. In Larceny.— 6 Ante, § 787-789; post, § 804 et seq.; As to larcenies, see Reg. «. Brettel, Car. S. v. Burwell, 34 Kan. 312. & M. 609 ; Rex v. Jones, 4 Car. & P. 21 7 ; « Post, § 803. 480 CHAP. LIV.] THE RELATIONS OP THE OFFENCES. §795 should this occur, contrary to the ordinary course of practice, the want of averment will be fatal to any verdict for the lower.^ Thus, assuming the allegation for the heavier offence to be in such form as to include the lighter, — § 795. In Homicide — Robbery — Assault with Intent — Mayhem — Carnal Ravishment — Adultery — Fornication — Rape — Incest '■ — Riot — Second Offence — First Offence. — One indicted for murder may be found guilty of manslaughter ; ^ for robbery, may be con- victed of larceny ; ^ for an assault with intent to kill * or to commit murder,^ or manslaughter,® or mayhem,'^ or a carnal rav- ishment,^ may be convicted of either a simple assault or a com- pound assault of a less degree ; ^ indicted for adultery, may re- ceive judgment for fornication ; i° indicted for rape on the person of his daughter, convicted of incest ; ^^ indicted for rape, convicted of a felonious assault ;^^ indicted for riot and assault, convicted of assault only ; ^^ indicted for larceny as a second offence, convicted 1 Swinney v. S. 8 Sm. & M. 576 ; Reg. V. Reid, 1 Eng. L. & Eq. 595, 599, 15 Jur. 181 ; S. V. Nichols, 8 Cona. 496; Durham 0, S. 1 Blackf. 33; Wilson v. C. 12 B. Monr. 2; Reg. u. Wyirn, 1 Den. C. C. 365, 2 Car. & K. 859 ; Rex u. Compton, 3 Car. & P. 418 ; C. v. Harney, 10 Met. 422 ; Wills V. S. 4 Blackf. 457 ; Reg. v Yeadon, Leigh & C. 81, 9 Cox C. C. 91 ; Reg. v. Smith, 34 U. C. Q. B. 552 ; Heller v. S. 23 Ohio St. 582; Hanna y. P. 19 Mich. 316; Wood u. S. 48 Ga. 192, 15 Am. R. 664; Reg. v. Canwell, 11 Cox C. C. 263; Reg. V. Taylor, Law Rep. 1 C. C. 194, 11 Cox C. C. 361 ; Reg. v. Dingman, 22 U. C. Q. B. 283 ; S. <,. Arter, 65 Mo. 653 ; and the other cases cited to sections next fol- lowing. And see Smitherman y. S. 27 Ala. 23 ; post, § 803 ; Crim. Pro. I. § 418, 419. 2 Lisle's Case, J. Kel. 89-108 ; S. v. Fleming, 2 Strob. 464; Reynolds y. -S. 1 Kelly, 222 ; King v. S. 5 How. Missis. 730; Watson v. S. 5 Misso. 497 ; Plum- mer v. S. 6 Misso. 231 ; S. v. Gaffney, Rice, 431 ; C. v. Gable, 7 S. & R. 423 ; S. V. Arden, 1 Bay, 487 , S. v. Flannigan, 6 Md. 167; Gordon «. S. 3 Iowa, 410; Wroe y. S. 20 Ohio St. 460 ; S. v. Huber, 8 Kan. 447 ; Davis v. S. 39 Md. 355 ; S. V. Sloan, 47 Mo. 604, 614. 8 Hickey v. S. 23 Ind. 21 ; Allen v. S. 58 Ala. 98; Haley v. S. 49 Ark. 147; VOL. I. — 31 Stevens u. S. 19 Neb. 647 ; S. v. Graff, 66 Iowa, 482 ; P. o. Jones, 53 Cal. 58 ; C. v. Prewitt, 82 Ky. 240. And see S. v. Tay- lor, 3 Or. 10 ; Hamilton v. S. 36 Ind. 280, 10 Am. R. 22. I P. V. Odell, I Dak. 197; Territory v. Conrad, 1 Dak. 363. 5 Behymer v. S. 95 Ind. 140 ; Keeling V S. 107 Ind. 563. " Gardenheir v. S. 6 Tex. 348 ; S. v. Stedman, 7 Port. 495 ; S. y. Coy, 2 Aikens, 181 ; Stewart v. S. 5 Ohio, 241 ; Clark a. S. 12 Ga. 350. ' McBride ;■. S. 2 Eng. 374. 8 C. y. Fischblatt, 4 Met. 354 ; Rex v. Dawson, 3 Stark. 62 ; P. «. McDonald, 9' Mich. 150; S. v. Perkins, 82 N. C. 681. 9 And see Smith v. S. 35 Tex. 500; S-. y. Shepard, 10 Iowa, 126; White v. S. 13 Ohio St. 569. w Respnblica v. Roberts, 2 Dall. 124, 1 Yeates, 6 ; S. i. Cowell, 4 Ire. 231. And see S. V. Pearce, 2 Blackf. 318; S. y. Cox, N. C. Term, 165. II C. V. Goodhue, 2 Met. 193. And see Crim. Pro. I. § 419. 12 Hall y. P. 47 Mich. 636. 1=* Rex y. Hemings, 2 Show. 93 ; S. v. Townsend, 2 Harring. Del. 543 ; Rex v. Heaps, 2 Salk. 593. The like on an in- dictment for an affray. Thompson v. S. 70 Ala. 26. It would appear, however, that an indictment for riot may be so 481 § 797 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. of the larceny as a first offence ; ^ indicted for liquor-selling as a third offence, convicted of the same as a first.^ Likewise, — § 796. Burglary and Larceny, &o.— In burglary and statutory breakings into shops and dwelling-houses, if the indictment sets forth a larceny within the building, as a part of the larger of- fence,^ the conviction may be for the larceny alone.* But if the charge of burglary is simply that the defendant broke and entered the place with intent to steal, the want of allegation precludes his conviction for larceny.^ Again,. — § 797. Murder of First and Second Degrees. — ■ Where, as in many of our States, murder is by statute divided into two de- grees, one may be convicted of it in either degree if the indict- ment is in terms to charge the higher, — the statutes prescribing that the degree shall be specified in the verdict.^ Or the convic- tion may be for any lower grade of killing.'^ Beyond which, in the majority of our States, not all, an oversight first led the judges in some State, and refusals to look into the question so as to understand it caused other judges in other States to follow them, into the opinion that allegations only of simple murder, the same which were common before the statute created the first degree thereof, charged the first degree, and likewise charged the second degree, when wholly silent as to the fact which the statute set down in defining the first degree. And thereupon they hold such indictment to be a good foundation for convicting a man of murder in the first degree, — that is, for convicting him of that for framed as, on the principle stated post, 31 Me. 592 ; S. v. Grisham, 1 Hayw. 12 ; § 803, not to include an assault. Reg. u. Rex v. Withal, 1 Leach, 88, 2 East P. C. Ellis, Holt, 636. And see S. t,. Allen, 4 515, 517; C. v. Hope, 22 Pick. 1 ; S. ». Hawks, 356 ; C. v. Perdue, 2 Va. Cas. 227 ; Cocker, 3 Harring. Del. 554 ; Reg. v. Reid, Childs V. S. 15 Ark. 204. 1 Eng. L. & Eq. 595, 599, 15 Jur. 181 ; 1 Palmer u. P. 5 Hill, N. Y. 427. Barlow a. S. 77 Ga. 448. See Reg. v. 2 S. V. Gaffeny, 66 Iowa, 262. Clarke, 1 Car. & K. 421. ' Stoops V. C. 7 S. & R. 491, 10 Am. D. s pigher v. S. 46 Ala. 717 ; Bell v. S. 482; S. V. Squires, U N. H. 37 ; Crowley 48 Ala. 684, 17 Am. R. 40; P. v. Garnett, i>. C. 11 Met. 575 ; Kite w. C. 11 Met. 581 ; 29 Cal. 622. Jones y. S. 11 N. H. 269; C. v. Hope, 22 e McGee b. S. 8 Misso. 495 ; S.a.Dowd, Pick. 1; Josslyn v. C. 6 Met. 236; C. v. 19 Conn. 388; P. v. Doe, 1 Mich. 451; Tuck, 20 Pick. 356; Berry v. S. 10 Ga. McPherson u. S. 9 Yerg. 279; Thomas v. 511 , S. V. Moore, 12 N. H. 42 ; Rex v, S. 5 How. Missis. 20, 32 , Johnson v. S. 17 Comer, 1 Leach, 36 ; Rex ». Vandercom, Ala. 618. And see P. v. "White, 22 Wend. 2 EastP, C. 519; s. c. nom. Rex v. Van- 167; S. v. Town, Wright, 75 , S. e. Wil- dercomb, 2 Leach, 708; C. v. Brown, 3 liams, 3 Post. N. H. 321. Rawle, 207 ; Clarke v. C. 25 Grat. 908 ; S. ' Wroe v. S. 20 Ohio St. 460 ; S. v. V. Alexander, 56 Mo. 131 Huber, 8 Kan. 447; Davis ij. S. 39 Md. * S. B.Brady, 14 Vt. 353; Anonymous, 855; S. v. Sloan, 47 Mo. 604, 614. 482 CHAP. LIV.] THE RELATIONS OF THE OFFENCES. § 799 «rhich he is to be hung, — when it has not a word of accusation of the special thing which the statute has made the sole ground for the hanging. No judge, no bench of judges, ever held such a thing after really looking into and understanding the question ; no gift of prophecy is required to enable a writer to say, with absolute certainty, that no one ever will.^ § 798. The Conclusion — is that whatever the offence alleged, there may be a conviction for any other, if within the words of the allegation.''' Exceptions will appear as we proceed. § 795. 1. Offences not within One Another. — The rule is not confined to these cases of a crime within a crime, but it is gen- eral, tliat the defendant may receive judgment on so much of the proven allegation as constitutes an offence, whether in degree the same as the entire matter charged, or different in degree, or in nature.^ For example, — 2. In Libel — Larceny — PoBsessiug Counterfeits. — One indicted for 4)rinting and publishing a libel may be acquitted of the print- ing, and convicted of the publishing.* A person charged with a larceny of property above one hundred dollars in value maybe found guilty of it in a less value ; charged with having in posses- sion, with intent to utter, more than ten pieces of counterfeit coin, may be convicted of having less than ten.^ So, — 3.' Grand and Petit. — On an indictment for grand larceny, — that is, wherein the property is alleged to be worth more than twelve pence,^ — the conviction may be for petit larceny.'^ And — 4. Alternative Clauses of Statute. — We have seen ^ that when a statute makes punishable several things in the alternative, the indictment may be in one count for all, while the proof need cover only so much as constitutes a crime.^ Likewise, — 1 See, for a full view of this question, ' Rex v. Newton, 2 Lev. Ill, and the Crim. Pro. II. § 560-596 '; Dir. &F. §516- other cases cited to this section; also 546, and particularly § 546 and note. Crim. Pro. I. § 1009-1011. See, also, Bishop First Book, § 401 and « Eex v. Williams, 2 Camp. 646. note, 455 ; Stat. Crimes, § 472-475 ; In- ' q. „. Griffin, 21 Pick. 523. troduction to Bishop Mar. Div. & S. And • « See ante, § 679 ( 1 ) . see S.w.McCormick, 27 Iowa, 402, where, ' S. v. Bennet, 3 Brev. 515, 2 Tread, in an able opinion, the court unanimously 693 ; S. «. Wood, 1 MiU, 29 ; S. v. Mur- affirm the doctrine which I had laid down phy, 8 Blackf. 498 ; 2 Hawk. P. C. Curw. in Crim. Pro. ^d. p. 620, § 6. And see S. v. Arlin, 7 2 Criin. Pro. I. § 415-420; Benham v. Fost. N. H. 116; Wills c. S. 4 Blacki S. 1 Iowa, 542 ; Prindeville o. P. 42 111. 457. 217; S. V. Butman, 42 N. H. 490; S. v. ' Stat. Crimes, § 244; ante, § 785. Dumphey, 4 Minn. 438. ' Stevens v. C. 6 Met. 241. 483 § 802 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. § 800. Against Two or More. — Where two Or more persons are indicted together for one offence,^ a part may be convicted and the rest acquitted ; ^ or some may be found guilty of it in a higher degree, others in a lower.^ But if the acquittal of one shows the others to be innocent, the verdict is contradictory ; and though in terms it pronounces those thus appearing innocent to be guilty, it will not sustain a judgment against them.* An i|istance is — § 801. I. Conspiracy. — One of two conspirators may be pro- ceeded against after the other is dead,^ or if indicted during their joint lives they may have separate trials.^ Yet if one is acquitted where two only are alleged to have been concerned in the offence, the legal effect is the acquittal of the other also, it being impos- sible for a man to conspire alone.'' And — 2. In Grand and Petit Larceny. — If two are jointly indicted for stealing the same goods, one cannot receive judgment for grand larceny and the other for petit, because the fact could not be so ; ^ yet when the proofs disclose a grand larceny, if the jury return a verdict against both for petit, there may be sentence accordingly, because the evidence is for them, and there is no impossibility of record against this finding.^ § 802. Charge Joint or Several. — When two are On trial for an offence laid in a single count as committed jointly,^" and it appears that each in a separate, transaction did the whole while acting apart from the other, a verdict should not be taken against both ; because the conviction of one exhausts the indictment, and no charge remains for the other.^i But when the allegation is of an offence committed severally, the word " severally " separates the defendants, so that all may be convicted on the one indictment, 1 Grim. Pro, I. § 463. 6 Rex v. NicoUs, 2 Stra. 1227 ; P. v. 2 Reg. V. Dovey, 2 Den. C. C. 86, 2 Olcott, 2 Johns. Gas. 301, 1 Am. D. 168. Eng. L. & Eq. .532 ; S. v Allen, 4 Hawka, «' Grim. Pro. 1. § 1022. 356 ; Bloomhuff w. S. 8 Blackf. 205 , Ward ' S. v. Tom, 2 Dev. 569 ; Rex v. Hil- V. S. 22 Ala. 16. And see C. w. Perdue, 2 bers, 2 Chit. 163 ; C, v. Manson, 2 Ashm. Va. Gas, 227 ; S. v. Allison, 3 Yerg-428. 31. And see Reg. v. Gompertz, 9 Q. B. 8 Rex V. Butterworth, Rnss. & Ry. 824 ; S. v. Covington, 4 Ala. 603. 520 ; Shouse v. C. 5 Pa. 83 , S w. Arden, 8 Wilson v. Davis, 3 McCord, 187. 1 Bay, 487. Query aa to Rex v. Quail, 1 ^ S. v. Bennet, 2 Tread. 693, 3 Brev. Crawf. & Dix G. C. 191. 515 , Grim. Pro. I. § 988 ; ante, § 799. * Reg. „. Ellis, Holt, 636 ; S. v. Mainor, '» Grim. Pro. I. § 471. 6 Ire. 340. As to the limitations of the " Stephens v.S. 14 Ohio, 386; Reg. v- rule, see S. v. Allison, 3 Yerg. 428. And Dovey, 2 Den. C. C. 86, 2 Eng, L, & Eq. Bee Rex v. Hughes, 4 Car. & P. 373, 532 , S. v. Brown, 58 Iowa, 298. See also Elliott V. S. 26 Ala. 78. 484 CHAP. LIV.] THE RELATIONS OF THE OFFENCES. § 804 unless the court interferes with this, form of proceeding in the earlier stages of the cause.^ § 803. 1. Allegation to be Sufficient. — The law never condemns without accusation. So that, as already appearing,^ the foregoing doctrines do not apply where the thing proved is not adequately set down in allegation.^ Therefore, for example, — 2. Principal and Accessory — Assaults — Battery. — One indicted as principal in a felony cannot be convicted of being an accessory before the fact ; * or, indicted as such accessory, cannot be found guilty as a principal felon ; ^ or, indicted for an assault with intent to murder, cannot be convicted both of a simple assault and also of a battery.^ 11. The Limitations created by the Doctrines of Merger and the Like. § 804. 1. The Doctrine of Merger, — to continue the expositions of the last chapter, is, in its limits and nature, not in every par- ticular certain. Its chief element is that — 2. Felony and Misdemeanor. — The same act cannot be both felony and misdemeanor.'' And perhaps from this rule may be derived the further one, more or less modified with us as we saw in the last chapter, that if the allegation in a felony indictment includes a misdemeanor, and the proofs sustain this part, but not the felony, there must be a general acquittal, which will be no bar to a subsequent prosecution for the misdemeanor.^ A reason in- herent in the law, whether set down in the old cases or not, is that two statutes punishing a thing differently cannot stand to- 1 1 Stark. Crira. Plead. 2d ed. 43, 44; « Sweeden v. S. 19 Ark. 205. Crim. Pro. I. § 476-476. ' Ante, § 787, 788 ; S. v. Durham, 72 2 Ante, § 794, 798. N. C. 447 ; Johnson v. S. 2 Dutcher, 313, ' S. V. Shoemaker, 7 Misso. 177 ; Rex 334, and the cases in the next note. V. Hughes, 4 Car. & P. 373 ; Rex v. Fur- « 2 Hawk. P. C. Curw. ed. p. 621 ; Rex nival, Russ. & Ry. 445 ; Reg. v. Paice, 1 v Westheer, 2 Stra. 1133, 1 Leach, 12 ; C. Car. & K. 73, Vanvalkenburg i-. S. 11 v. Gable, 7 S. & R. 423; Reg. v. Eaton, 8 Ohio, 404 ; S. v. Jesse, 3 Dev. & Bat. 98 ; Car. & P. 417 ; Reg. v. Gisson, 2 Car. & K. Reg. V. Reid, 2 Den. C. C. 88, 1 Eng, L. 781 ; Reg. v. Goadby, 2 Car. & K. 782, & Eq. 595 ; Reg. v. Holcroft, 2 Car. & K. note; C. v. Roby, 12 Pick. 496, 505, 506 ; .341 ; Carpenter v. P. 4 Scam. 197 ; C. v. Wright v. S. 5 Ind. 527 ; Reg. v. Dungey, Pisehblatt 4 Met. 354 ; S. v. Raines, 3 4 Post. & P. 99 ; Reg. v. Woodhall, 12 McCord, 533 ; Childs v. S. 15 Ark. 204 ; Cox C. C. 240, 4 Eng Rep. 529 ; Reg. v. S. V. Yauta, 71 Wis. 669. NichoUs, 2 Cox C. C. 182. See Gillespie « Rex V. Plant, 7 Car. & P 575. v. S. 9 Ind. 380. 6 Rex V. Gordon, 1 Leach, 515, 1 East P. C. 352. 485 § 806 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK Tit. gether, but one must be adjudged repealed or void ; ^ so that when a statute, for example, elevates a misdemeanor to the more heav- ily punishable felony, it necessarily ceases to be misdemeanor. Yet fully to account for the further rule that there can be no con- viction for a misdemeanor on an indictment for felony, we must look more deeply into the old common law. Thus, — 3. Derivable from Procedure. — When this rule was established,'' persons indicted for misdemeanor had certain advantages at the trial, such as to make a full defence by counsel, and to have a copy of the indictment and a special jury, not permitted in felony. And it was deemed that they could not be deprived of them through the device of a too heavy allegation in the indictment. This plain dictate of justice was disregarded in a few of the early English cases,^ wherein, as it was said afterward, " the judges ap- pear to be transported with zeal too far." * But — § 805. 1. Changed Procedure — How with us. — It is inequitable to deny one charged with felony any, privilege which he ought to have in misdemeanor. Therefore the old practice has been grad- ually done away with in England, and it was never followed in this country. If, with us, there is any discrimination, it is usually in favor of those indicted for the higher crimes ; while, in pros- ecutions for the lower, any peculiar rights of defendants are merely incidental. Hence, — 2. Whether Conviction for Misdemeanor. — The courts of some of the States have permitted convictions for misdemeanor on in- dictments for felony,^ — discarding the old rule, in obedience to the maxim, Cessante ratione legis, cessat ipsa lez;^ while in other States it has been followed.'^ § 806. Further as to which. — It is a nice question whether or I Stat. Crimes, § 168, 174. Hnnter v. C. 3 Cent. Law Jour. 129 ; ante, " See ante, § 275. § 788 (2). See S. v. Bridges, 1 Mnrph. ' Rex 0. Joyner, J. Kel. 29, and cases 134; Sweeden v. S. 19 Ark. 205; P. v. cited in Rex v. Westbeer, supra. Tyler, 35 Cal. 553. * Rex V. Westbeer, as reported 2 Stra. ^ Ante, § 273 (2), 275. 1133. 7 Black K. S. 2 Md. 376; C. v. Gable, 6 Stewart v. S. 5 Ohio, 241 ; S. v. Ken- ' 7 S. & R. 423 ; Hackett w. C. 15 Pa. 95 ; nedy, 7 Blackf. 233; P. o. White, 22 Braddee w. C. 6 Watts, 530; C. v. Roby, Wend. 167; P. v. Jackson, 3 Hill, N. Y. 12 Pick. 496; C. v. Newell, 7 Mass. 245; 92 ; Burk v. S. 2 Har. & J. 426 ; S. v. S. v. Valentine, 6 Yerg. 533 ; Johnson v. Sutton, 4 Gill, 494 ; Cameron v. S. 13 S. 2 Dutcher, 313, 324. And see U. S. v. Ark. 712; S. v. Johnson, 1 Vroom, 185; Sharp, Pet. C. C. 131. As to Vermont, Hanna a. P. 19 Mich. 316 ; Foster v. P. see the notes to the next section. 1 Colo. 293 ; Canada v. C. 22 Grat. 899 ; 486 CHAP. LIV.] THE RELATIONS OP THE OFFENCES. § 807 not our changed procedure should, as thus indicated, be held to abrogate the old course of the courts. For besides the difficulty of casting off a rule solely because its original reason no longer prevails,! we discover for this rule still other reasons.^ So thought the Vermont Court, which, having in some earlier cases put aside the English practice, took it back, saying : " On an in- dictment for a felony, the prisoner must appear in person, and on trial must here be taken and retained in custody in discharge of his recognizance ; whereas, on an indictment for a misdemeanor, he is allowed to remain on bail, and may in general appear and plead by attorney. These are privileges of which the party ought not to b^ deprived by changing the mode of proceeding against him, and they appear to be of sufficient importance to require an adherence to the common-law rule." ^ Yet this court, at a later period, turned again and embraced its former doctrine, apparently without being aware of the intermediate decision.* Beyond which, — §807. Still other Reasons — remain. For example, one indicted for felony cannot be convicted on evidence showing him to have advised the act as an accessory before the fact, while one indicted for misdemeanor can ; and the judge must be embarrassed in super- vising the admission of testimony if in doubt whether the verdict, should it be against the defendant, will find him guilty of felony or misdemeanor. In England, at the present time, the before-men- tioned reasons for the rule have practically ceased, defendants there having substantially the same privileges on indictments for felonies as for misdemeanors ; yet the rule abides.^ And the Massachusetts Court, sustaining the rule, rejected altogether those more common reasons, placing it on " the broader consideration that the offences are, in legal contemplation, essentially distinct in their nature and character, and that this is manifest frOm an examination of the authorities."^ We may doubt, however, whether the Massachusetts reason is broad enough alone to sup- port the rule in all circumstances wherein it dominates the Eng- lish law. 1 Ante, § 275. ° Greaves Lord Campbell's Acts, 14 ; 2 Ante, § 274. Reg. v. Thomas, Law Rep. 2 C. C. 141, ' S. V. Wheeler, 3 Vt. 344, 347, 23 Am. 13 Cox C. C. 52. The statutes, in some D. 212, overruling S. v. McLeran, 1 Aik- special cases, provide otherwise. lb, ; ens, 3U, and S. v. Coy, 2 Aikens, 181. Reg, v. Rudge, 13 Cox C, C, 17. * S. V. Scott, 24 Vt. 127, " C. o. Roby, 12 Pick. 496, 506. 487 § 809 " TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. § 808. 1. Statutes, — we have seen, have partly or fully over- turned this rule in many of the States into which it was received from the common law.^ So that, for example, — ^ 2. Homicide — Rape, &c. — Under the later law in Massachu- setts, one tried for the felony of manslaughter or of rape may be convicted of the misdemeanor of assault and battery compre- hended in the allegation.^ And a like practice prevails under statutes in some of the other States.^ § 809. Attempt, on Charge of Substantive Felony. — An attempt to commit a felony is a misderneanor.* But aside from the com- mon-law obstruction to convicting for this misdemeanor on the indictment for the felony, the averments are not ordinarily in terms to include the attempt. Whereupon it is in England ^ pro- vided by 14 & 15 Vict. c. 100, § 9, substantially following 7 Will. 4 & 1 Vict. c. 85, § 11, now repealed,^ " that if on the trial of any person charged with any felony or misdemeanor, it shall appear . . . that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the de- fendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same." ' Tiiere are some American statutes following more or less closely these English 1 Ante, § 789. & M. 264 ; Reg. v. Eatoti, 8 Car. & P. 417 ; 2 C.K. Drum, 19 Pick. 479; C.w. Dean, Reg. ». Brimilow, 9 Car. & P. 366, 2 109 Mass. 349, 352. Moody, 122; Reg. v. Williams, 8 Car. & 3 Prindeville u. P. 42 111. 217; S. <^. P. 286; Reg..u. Saunders, 8 Car. & P. Johnson, 1 Vroom, 185; Garden v. S. 3 265; Reg. v. Cruse, 8 Car. & P. 541, 2 Head, 267. As to other American stat- Moody, 53 ; Reg. v. Folkes, 2 Moody & utes and the decisions upon them, see S. R. 460 ; Reg. v. Crumpton, Car. & M. w.rianigin, 5 Ala. 477, 482; Brittain v. S. 597 ; Reg. v. NichoUs, 9 Car. & P. 267 ; 7 Humph. 159 ; S. v. Valentine, 6 Yerg. Reg. v. Ellis, 8 Car. & P. 654 ; Reg. v. 533 ; S. V. Bowling, 10 Humph. 52 ; C. v. Pool, 9 Car. & P. 728; Reg. v. Guttridges, Newell, 7 Mass. 245; C. v. Roby, 12 Pick. 9 Car. & P. 471 ; Reg. «. Barnett, 2 'Car. 496, 506 ; C. B. Cooper, 15 Mass, 187 , & K. 594 ; Reg. v. Greenwood, 2 Car. & ante, § 789. K. 339 ; Reg. v. Holcroft, 2 Car. & K. * Ante, § 772. 341 ; Reg. o. Barratt, 9 Car. & P. 387 ; 6 Ante, § 757. Reg. v. Lewis, 1 Car. & K. 419 ; Reg. v. ' Known as Lord Denman's Act, Reg. Reid, 2 Den. C. C. 88, 1 Eng. L. & Eq. V. Dungey, 4 Post. & F 99. 595 ; Reg. v. Birch, 2 Car. & K. 193 ; ' Greaves Lord Campbell's Acts, 14. Reg. v. St. George, 9 Car. & P. 483 ; Reg. For the construction put upon these stat- v. Phelps, 2 Moody, 240 ; Reg. v. Birch, 1 utes by the English courts, see Reg. v. Den. C. C. 185; Reg. v. Gisson, 2 Car. & Bird, 2 Den. C. C. 94, 2 Eng. L. & Eq. K. 781 ; 2 Taachereau Canada Crim. Law 448 ; Reg. V. Watkins, 2 Moody, 217, Car. Acts, 254-263. 488 CHAP. LIV.] THE RELATIONS OF THE OFFENCES. § 810 ones.' This subject has not been much examined by our courts. The English Parliament is omnipotent. But while our legisla- tures may break down all barriers founded on the distinction between felony and misdemeanor, it is not clear that by our con- stitutions they can authorize a conviction for the attempt on an indictment for the full offence, where the allegation does not in- clude the less.2 § 810. Misdemeanor alleged "Feloniously." — We have seen that though under the common law there can be no conviction of mis- demeanor on an indictment for felony, yet if the indictment sets out the facts of an offence and charges them to have been done feloniously while in law they constitute only a misdemeanor, there may, it is laid down by Hawkins, be a conviction for the misdemeanor.^ But the obvious reason is that the word " feloni- ously " in the allegation is mere surplusage, which never vitiates a pleading ; so this indictment is for misdemeanor, not felony.* Still if on the trial the judge, contrary to the claim of the de- fendant, should treat the indictment as being for felony, and deny him privileges due in misdemeanor, the ruling would be erroneous, and the ordinary consequences of this sort of error would follow. Or if the defendant admitted at the trial that the charge set out was felony, and did not ask for any ruling on the ground of its being misdemeanor, the case would be the same as any other in which erroneous directions not objected to had been given, — the general doctrine being that the party cannot take ad- vantage of such an error. These propositions, too obvious to need further elucidation,^ have often lain but indistinctly in the minds of judges ; yet they are sufficiently deducible from the decisions.* 1 And see, on this subject, Wolf v. S. 477 ; Rex v. Hall, 1 T. K. 320, 322 ; P. v. 41 Ala. 412 ; Hanna v. P. 19 Mich. 316 ; Lohman, 2 Barb. 216, 220; Lohman v. P. S. V. Jarvis, 21 Iowa, 44; S. v. Wilson, 30 1 Comst. 379, Butler v. S. 34 Ark. 480; Conn. 500; Clifford v. S. 10 Ga. 422; Crim. Pro. I. § 478. Stephen w. S. 11 Ga. 225 ; S. v. Shepard, « See ante, § 140, note. - 7 Conn. 54, citing C. v. Cooper, 15 Mass. " Holmes's Case, Cro. Car. 376 ; Kex 187 ; which last case was subsequently dis- p. Scofield, Cald. 397, 2 East P. C. 1028, approved of by the Massachusetts Court, 1029 ; Rex v. Caradice, Russ. & Ry. 205 ; though for a reason not distinctly affect- Rex v. Turner, 1 Moody, 47 ; S. v. Up- ing the doctrine of the text. C. v. Roby, church, 9 Ire. 454 ; Loliman v. P. 1 Comst. 12Pick. 496 507. 379,49 Am, D. 340; P. k. Lohman, 2 Barb. 2 See Crim. Pro. I. §89-112. 216; S. u. Wimberly, 3 McCord, 190; " Ante, § 788 (2). And see Crim. Pro. Hackett v. C. 15 Pa. 95; C. v. Squire, 1 J g 537 ' Met. 258; 2 Hawk. P. C. Curw. ed. p. 4 Stephen Plead. 378,424; Lamed v. 621; S. v. Knouse, 29 Iowa, 118; S. v. C 12 Met. 240, Rex v. Redman, 1 Leach, Boyle, 28 Iowa, 522; S. v. McNally, 32 489 § 812 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. Some cases, therefore, in Massachusetts,^ Vermont,^ and Mary- land,^ which seem to hold such an indictment not adequate to sustain a conviction for misdemeanor, are not elsewhere good in law ; and in the first-mentioned State, partly by the operation of statutes which do not change the principle, the early determina- tion has been overruled.* § 811. Want of Jurisdiction — in the tribunal may prevent a conviction for the less offence on an indictment for the greater. Thus, in Tennessee, during slavery, the Circuit Court had cog- nizance of murder but not of manslaughter, committed by a slave, the latter being triable in another tribunal only ; and the consequence was that when a slave was charged in the Circuit Court with murder, the verdict could not be for manslaughter.* But in New Hampshire, a statute having given to justices of the peace exclusive jurisdiction over larcenies to the value of ten dollars and under, directing them to commit the defendants for indictment and trial in the Common Pleas Court when the value was greater, — it was held that the latter might render judgment on a verdict of guilty, valuing the property at less than ten dol- lars. The reason was that the committing magistrate had con- clusively settled the question of jurisdiction ; while the jury had determined the degree of the defendant's guilt.® In Vermont, it was adjudged that if an information in one count charges the larceny of divers articles, some valued above seven dollars and others below, and the verdict finds the respondent guilty as to one article only, of a value less than seven dollars, the court will dismiss the case ; because the verdict, by reducing the value be- low seven dollars, brings it within the jurisdiction of the lower magistrate, and, under the laws of this State, out of that of the higher tribunal.'^ § 812. Felony proved on Indictment for Misdemeanor. — It has already been explained that the same criminal thing which is a Iowa, 580. See S. i>. Bridges, 1 Murph. « C. d. Squire, 1 Met. 258. 134. And see ante, § 274, 330, note, 361, 6 Nelson v. S. 10 Humph. 518. The oote. like doctrine is also held in New York, P. 1 C. V. Newell, 7 Mass. 245; C. v. ... Abbot, 19 Wend. 192. Macomber, 3 Mass. 254. 6 S. o. Arlin, 7 Fost. N. H. 116. Over- 2 S. V. Wheeler, 3 Vt. 344, 347, 23 Am. ruled in S. ». Dolby, 49 N. H. 483, 6 Am. I*- 212. R. 588. See S. v. Brown, 24 Conn. 316 ; Black V. S. 2 Md. 376. Followed in P. o. Holland, 59 Cal. 364 ; Kennedy v. P. Delaware, S. v. Darrah, 1 Houst. Crim. 122 111. 649. 112. 7 s. t>. Nutting, 16 Vt. 261, 264. 490 CHAP. LIY.] THE RELATIONS OF THE OFFENCES. § 812 felony cannot also be a misdemeanor.^ Yet if to what consti- tutes a misdemeanor something is added, the combination may be a felony. In which case, according to Hawkins,^ if the indict- ment is for misdemeanor, and the added act which makes the felony appears at the trial, opinions are divided as to whether or not there can be a conviction for the misdemeanor. His decision is that there can be, and there is great weight in the reason ; namely, " because the king may proceed against the offender as he sees fit, either as a trespasser or a felon." This, therefore, may be deemed the better doctrine. Yet by English authorities it further appears that if on a trial for misdemeanor the wrongful act is shown to have been carried to an extent which makes it felony, the court will in its discretion, not as of course,^ order the proceedings to be suspended until an indictment can be brought ' forward for the felony.* It is not believed that this practice would be proper with us, or that it is ever resorted to ; it would lead to embarrassing complications under our constitutional guar- anties against a second jeopardy. If the judge declines to give this direction, the prisoner cannot complain ; because it is for his advantage to be prosecuted for the lighter matter rather than for the heavier.^ But we have some American authority, contrary to the better doctrine, that one cannot be convicted of a misdemeanor where the evidence discloses a felony, — a consequence more or less, or' in some of the States, deemed derivable from the stat- utes.^ Such a condition of the law, wherever existing, is greatly to be deplored ; for if the same evidence is not produced on the second trial, the party may altogether escape. As observed by Lord Denman, C. J. : " The felony may be pretended to extin- guish the misdemeanor, and then may be shown to be but a false pretence ; and entire impunity has sometimes been obtained by 1 Ante, § 787, 804 (2) ; Rex v. Cross, 1 ' Reg. v. Button, supra; Reg. v. Neale, Ld. Raym. 711. 1 I*en. C. C. 36 ; S. v. Learitt, 32 Me. 183 ; 2 Ante 5 788(2). BankProsecutions, Russ. &Ry. 378; Loh- 8 Bank Prosecutions, Russ. & Ry. 378. man v. P. 1 Comst. 379, 383, 49 Am. D. 4 See, for a full discussion of this point 340; P. v. Lohman, 2 Barb. 216, 220; S. and of the matter generally of this section v. Vadnais, 21 Minn. 382. and the next two, with citations of au- " S. v. Hattabough, 66 Ind. 223 ; S. v. thorities, Reg. v. Button, 11 Q. B. 929, 12 Parker, 13 Lea, 225 ; C. «. Roby, 12 Pick. Jur. 1017, 18 Law J. N. s. M. C. 19, 3 Cox 496, 508 ; C. v. Kingsbury, 5 Mass. 106 ; C. C. 229. And see 1 Chit. Crim. Law, Kelsey v. S. 62 Ga. 558. And see C. v. 639; 2 Hawk. P. C. Curw. ed. 621 ; Reg. Squire, 1 Met. 258, 261, 262. J). Boulton, 12 Cox C. C. 87, 93 ; Reg. v. Selsby, 5 Cox C. C. 495, 497, notes. 491 §815 TECHNICAL DIVISIONS AND DISTINCTIONS. [BOOK VI. varying the description of the offence according to the prisoner's interest ; he ha^ been liberated on both charges, solely because he was guilty upon both." ^ In confirmation of the liability to conviction for the misdemeanor, the books tell us that — § 813. Misprision of Felony or Treason. — Every treason in- cludes a misprision of treason,^ and every felony a misprision of felony ,8 for which misprision, though' only a misdemeanor,* the person guilty of the higher crime may nevertheless be proceeded against, "if the king please." § 814. Merger in Conspiracy. — A conspiracy to commit a fel- ony is a step toward the consummation, but it is only misde- meanor. There are American cases which seem to hold that if parties on trial for such a conspiracy are shown to have pro- ceeded in it to the accomplished felony, the misdemeanor is merged, and they cannot be convicted,^ — a rule, the authorities agree, not applicable where the object of the conspiracy is a mis- demeanor.^ This doctrine, the reader perceives, is contrary to just principle : it has been rejected in England ; "^ and though there may be States in which it is binding on the courts, it is not to be deemed general American law.* § 815. 1. Misdemeanor by Means of Felony. — There is author- ity for saying that if one undertakes to commit a misdemeanor by means of an act which is felony, the law stops with the felony, being the culminating point in the transaction, and punishes him for it, to the disregard of the minor consequence beyond. For illustration, — 2. False Pretences. — We have rulings to the effect that if, where the obtaining of goods by false pretences is misdemeanor, 1 Reg. «. Button, supra, 11 Q. B. 948. " S. v. Murray, 15 Me. 100; P. w. , 2 I East P. C. 140. Mather, 4 Wend. 229, 26.5, 21 Am. D. a 4 Bl. Com. 119. 122 ; P. v. Richards, 1 Mich. 216, 51 Am. * Ante, § 717. D. 75; C. v. McGowan, 2 Parsons, 341 ; 6 C. V. Kingsbury, 5 Mass. 106. And S. v. Noyes, 25 Vt. 415 ; S. v. Mayberry, see the cases cited in the next note, which, 48 Me. 218; Cm. O'Brien, 12 Cush. 84; on this point, contain mere dicta. Also, ante, § 804. C. V. Delany, 1 Grant, Pa. 224; Johnson ' Reg. v. Button, 11 Q. B. 929, 12 Jur. V. S. 5 Dutcher, 453; Elkin v. P. 28 N. Y. 1017, 18 Law J. N. s. M. C. 19, 3 Cox 177. In Kentucky, it has been laid down C. C. 229 ; Reg. iJ. Boulton, 12 Cox C. C. that a conspiracy to commit a felony, con- 87, 93. summated by committing treason, merges. '* Johnson v. S. 5 Dutcher, 453 ; S. v. C. V. Blackburn, 1 Duv. 4. In Arkansas, Setter, 57 Conn. 461, 14 Am. St. 121 ; the question is settled by a statute. Elsey ante, § 791. V. S. 47 Ark. 572. 492 CHAP. LIV.J THE RELATIONS OP THE OPPENCES. § 815 a a mail acquires possession of an article through the instrumen- tality of a .forgery, which is felony, he can be convicted only of the forgery.i But this has been questioned.^ 3. Further as to which. — The general principle, both of nat- ural justice and of law, permits the prosecuting power to bring an offender to trial for, so much of his offending as it pleases. And if its pleasure is to overlook a felony, even though it was the instrument by which a misdemeanor was accomplished, the clem- ency, according to the ordinary course of legal things, and, it would appear, according also to the dictates of the mere unedu- cated reason, is not a wrong to its recipient whereof he can com- plain. Though the opposite doctrine is not altogether without support in reason, it is believed that the foundation of reason for this one is, on the whole, the broader and firmer. § 815 a. The Doctrine of this Chapter restated. In all our States, the prosecuting officer acts under a discretion committed to him for the public good. He is not, as of course, to pursue to conviction every offender against whom he can ob- tain adequate evidence. Nor is it his duty to convict every prose- cuted person of the highest offence which can be carved out from the mass of his entire evil-doings. ' It is among the most impor- tant functions of a State's attorney to select, out of what the law permits, the charges which he will bring against offenders. They have no power to elect, and above all they cannot object if he overlooks their heavier offendings and pursues them simply for the lighter. But they have the right to defeat any attempt which he may make to take away privileges at the trial, granted them by the law. Upon these propositions rest the various doctrines of this chapter. They need not be further repeated. 1 Rex V. Evaris, 5 Car. & P. 553 ; Reg. same act may be part of several offences ; V. Anderson, 2 Moody & R. 469. the same blow may be the subject of in- 2 Thus, observed Lord Denman : " The qulry in- consecutive charges of murder misdemeanor of obtaining goods on false and robbery ; the acquittal on the first pretences consists of a series of acts, the charge is no bar to a second inquiry where false pretence, and the obtaining of the both are charges of felony ; neither ought goods, and the first step in the series may it to be where the one charge is of felony also be a felony. Where that is the case, and the other of misdemeanor." Reg. v. there appears no reason why the prisoner Button, 11 Q. B. 946, 947, 3 Cox C. C. should be allowed to defeat the charge of 229, 240. And see U. S. v. Rindskopf, the lesser offence by alleging his own guilt 6 Bis. 259. in respect of the greater offence. The § 819 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. BOOK VII. INCIDENTAL EELATIONS AND THINGS CONNECTED WITH CRIME. CHAPTER LV. QUASI CRIME IN REM, OR FORFEITURES OP THINGS IN THE WRONG. § 816. The Doctrine. — When a thing whereof there is an owner passes into a situation antagonistic to the law, he may lose his ownership in it, whether personally guilty of crime or not, be- cause the thing has offended. The punishment, if such it be called, falls on the thing, and does not visit the owner's person. Though he loses it, and it lapses to another or the State, the loss is not in the nature of a penalty for personal crime. To illus- trate this doctrine is the object of the present chapter. § 817. Relations of Subject. — While, therefore, this topic does not in terms belong to the criminal law, it is so connected there- with as to render its treatment here imperative. Indeed, the suf- fering of one through the loss of his property, to be explained in this chapter, is, though not strictly a punishment, quasi such, — to be properly, therefore, viewed in, connection with the punishment imposed by the court, and the disabilities which follow by opera- tion of law, on criminal conviction. Yet — § 818. Not all the Affinities — of this subject are with the crim- inal law. In part, they are with the civil.^ The popular mind more allies it to the criminal. In fact, it extends its roots into both departments, while its visible branches are its own. § 819. On what Principle. — Nearly every subject of property is some material thing. As matter, it depends for its existence and relations on the law of nature ; as property, on the law of the ' Snyder v. U. S. 112 U. S. 216. 494 CHAP. LV.J QUASI CRIME IN REM, FORFEITURE. § 820 land. If a man owns- a bag of coin, and drops it in mid-ocean where gravitation carries it beyond his reach, he can enjoy it no more, though it continues to be his property ; while, if he main- tains liis material grasp, yet so uses it that forfeiture takes from him, not the material substance, but the legal right to it, he no longer enjoys tlie property, which has passed from him, though he has in his hand tlie gold. Law is the creator of property ; and the province of a creator is to prescribe to the thing created the conditions of its being. When the conditions are violated, the property falls, — vesting in another, or in the State, or being de- stroyed.^ The violation may be either a criminal or a civil wrong; or it may be an act of which the tribunals take no cognizance other than simply to recognize the change of proprietorship when- ever judicially the question comes before them. § 819 a. Diversities — of situations and narrower provisions of law pervade this entire wider subject. The forfeiture, or changed ownership, sometimes transpires on the mere occurring of the event, sometimes the party newly acquiring the thing must first assert his right in pais, and sometimes he must first obtain the judgment of a court.^ Partly from this complex cause, — § 820. 1. Word to express the Transmutation. — Our language provides neither any single word, nor any convenient phrase, to signify the transmutation of which we are speaking, and nothing more. Looking for what we have, — 1 In a case, not of forfeiture, but in- ^ Oakland Rid. v. Oakland, &c. Rid. 45 Tolving the same principle, Shaw, 0. J. Cal. 365, 13 Am. R. 181 ; U. S. v. Grundy, said: "All property in this Common- SCranch, 338; U. S. i'. Sixty-fonr Barrels wealth, as well that in the interior as Spirits, 3 Clif . 308 , McNeil v. Bright, 4 that bordering on tide waters, is de- Mass. 282; Gilbert w. Bell, 15 Mass. 44; rived directly or indirectly from the Hildreth v. Thompson, 16 Mass. 191; government, and held subject to those Lindsey v. Lindsey, 45 Ind. 552; Mc- general regulations which are necessary Caughal w. Ryan, 27 Barb. 376; Caldwell u. to the common good and general welfare. Fulton, 31 Pa. 475, 72 Am. D. 760 ; Farns- Rights of property, like all other social worth y. Minnesota, &c. Rid. 92 U. S. 49; P. and conventional rights, are subject to k. Thompson, 21 Wend. 235 ; Thompson u. such reasonable limitations in their en- P. 23 Wend. 537; Hine v. Belden, 27 joyment as shall prevent them from being Conn. 384 ; Peterborough Bank v. Childs, injurious ; and to such reasonable re- 130 Mass. 519, 39 Am. R. 474 ; Quantity Btraints and regulations, established by of Manuf. Tobacco, 10 Ben. 447 ; Chap- law, as the legislature under the govern- man v. Phoenix Bank, 85 N. Y. 437 ; ing and controlling power vested in them Mason w.'Tuttle, 75 Va, 105; Summers by the Constitution may think necessary v. Clark, 29 La. An. 93 ; U. S. v. Three and expedient," C. v. Alger, 7 Cush. 53, Tons of Coal, 6 Bis. 379. 85. See also observations on pages 96, 102, 103, of the report. 495 § 821 INCIDENTAL RELATIONS AND THINGS. [BOOK TIT. 2. "Forfeiture" — is a word commonly employed, not as denot- ing everything within this chapter, but many things. We cannot . avoid using it, yet confusion comes from its use. For the doc- trine of forfeiture, as just explained, differs from various other things in the law known by the same name. It differs from a mulct, or general fine ; also, from a fine of the specific article of property, whereby under a judicial sentence pursuant to a statute such specific article, in distinction from a sum of money in gross, is transferred to the government, as will be by and by mentioned.^ And it differs from those forf9itures which in the> English law attend corruption of blood, on attainder for treason or felony. But — 3. " Destruction by Abatement " — is a phrase denoting one form of the transmutation to be brought to view in this chapter. It occurs where one permits a thing to become a nuisance which another abates without appeal to the courts. § 821. 1. Illustrations — of the transmutations or forfeitures we are considering are such as — 2. Nuisance — Taxes — Money bet — Confiscations. — If a man SO uses Iiis property that it becomes a nuisance, the nuisance is liable to be abated to the destruction, if necessary, of the prop- erty ; 2 if, in some of the States, he declines or omits to pay taxes on his lands, they are forfeited to the State;? one who, in some States, bets money on an election, forfeits the money ; * and dur- ing our Revolutionary struggle confiscation acts were in various States passed, under which the lands of absenting persons lapsed to the State.^ Again, — 1 Post, § 944. Hull V. Ruggles, 65 Barb. 432 ; P. w. Kent, 2 Lancaster Turnpike v. Rogers, 2 Pa. 6 Cal. 89. St. 114,44 Am. D. 179; Pennsylvania o. ' Gilbert v. Bell, 15 Mass. 44; Bor- Wheeling and ^elmont Bridge, 13 How. land v. Dean, 4 Mason, 174; Cooper v. U. S. 518 ; Meeker v. Van Rensselaer, 15 Telfair, 4 Dall. 14 ; Atherton v. Johnson, Wend. 397; Mills o. Hall, 9 Wend. 315, 2 N. H. 31 ; Thompson v. Carr, 5 N. H. 24 Am. D. 160; Penruddock's Case, 5 Co. 510; Dunham v. Drake, Coxe, 315; Mar- 100 b, Jenk. Cent. 260 ; Baten's Case, 9 Co. tin 7\ C. 1 Mass. 347 ; Conyngham v. C. 3 ^^*- Yeates, 471; Hinehman v. Clark, Coxe, « Blackwell on Tax Titles. 536 et seq. ; 340; Chews v. Sparks, Coxe, 56; Boyd Hodgdon v. Wight, 36 Me. 326 ; Clarke v. Banta, Coxe, 266 ; Cutts v. C. 2 Mass. V. Strickland, 2 Curt. C. C. 439. See 284; Hylton v. Brown, 1 Wash. C. C. Martin v. Snowden, 18 Grat, 100; Hard- 298, 307; Beach v. WoodhuU, Pet. C. C. ing V. Butts, 18 111. 502 ; Lee v. Newkirk, 2 ; Gratz v. Catlin, 2 Johns. 248 ; Catlin '^ J''- 550. V. Gratz, 8 Johns. 520 ; Williams v. Stokes, Doyle V. Baltimore, 12 Gill & J. 484 ; 3 Johns. 151 ; Sleght i>. Kane, 2 Johns. Hickman v. Littlepage, 2 Dana, 344. See Cas. 236; Robinson a. Munson, 1 Johns. 496 CHAP. LV.J QUASI CRIME IN REM, FORFEITURE. § 822 3. Wages for Desertion. — If a seaman deserts the ship, he for- feits his wages.^ And — 4. Revenue — and other similar laws may be and commonly are enforced by forfeitures.^ And — 5. Enemy Property — Illicit Trade, &o. — There are forfeitures of the enemy's property in times of war ; and in peace, of our own people's, employed in illicit trade, in violations of embargo laws, and the like.^ 6. Common Law — Statutes. — It is perceived that some of the foregoing forfeitures spring from the unwritten law, others from statutes. Hence those we are considering may be either of the latter sort* or of the former. § 822. Judicial or not — Effect of Sentence. — As already partly appearing,^ the forfeiture may follow instantly and in pais the violation which produces it,^ or it may come only when pro- 277 ; St. Croix v. Sands, 2 Johns. Cas. 267 ; Palmer v. Horton, 1 Johns. Cas. 27 ; Pell V. Prevost, 2 Caines, 164; McGregor v. Comstock, 16 Barb. 427; Bare b. Khine, 2Yeates, 286; Dietrick w. Mateer, 10 S & R. 151 ; Maclay v. Work, 5 Binn. 154. 1 The Rovena, Ware, 309 ; Spencer v. Eustis, 21 Me. 519, 38 Am. D. 277 ; Sher- wood V. Mcintosh, Ware, 109. 2 McLane v. U. S. 6 Pet. 404; Douglass V Roan, 4 Call, 353 ; Bentley v. Roan, 4 Call, 153 ; Brewster v. Gelston, 11 Johns. 390; Wood v. U. S. 16 Pet. 342; The Ploughboy, 1 Gallis. 41 ; Phile v. The Anna, 1 Dall. 197 ; U. S. v. Package of- Lace, Gilpin, 338 ; Bottomley v. V. S. 1 Story, 135 ; U. S. <-. Barrels of Whiskey, 1 Bond, 587 ; U. S. !'. The Queen, 4 Ben. 237 ; V. S. V. Rectified Spirits, 8 Blatch. 480 ; The Harriet, 1 Ware, 343 ; Boat Swallow, 1 Ware; 21 ; The Nymph, 1 Ware, 257 ; U. S. v. Stereoscopic Slides, ,1 Sprague, 467 ; U. S. v. Sixteen Barrels Dist. Spirits, 10 Ben. 484; Lockyer v. Offley, 1 T. R. 252, 260 ; U. S. v. Three Tons of Coal, 6 Bis. 379. s Atherton v. Johnson, 2 N. H. 31 ; Church V. Hubbart, 2 Cranch, 187 ; The Emulous, 1 Gallis. 563; The Joseph, 1 Gallis. 545; The Alexander, 1 Gallis. 532; The Rapid, 1 Gallis. 295; The Eliza, 2 Gallis. 4 ; The Rugen, 1 Wheat. 62; The Rapid, 8 Cranch, 155 , The Lord Wellington, 2 Gallis. 103; The Sally, VOL. I. — 32 8 Cranch, 382; The St. Lawrence, 8 Cranch, 434 ; Darby v. The Brig Eastern, 2 Dall. 34 ; U. S. v. Brig James Wells, 3 Day, 296; The William Gray, 1 Paine, 16 ; Amory v. McGregor, 15 Johns. 24, 8 Am. D.205 ; U. S. v. La Jeune Eugdnie, 2 Mason, 409 ; Maisonnaire v. Keating, 2 Gallis. 325; Harmony v. Mitchell, 1 Blatch. 549, 13 How. U. S. 115; U. S. v. Little Charles, 1 Brock. 347 ; The Cale- donian, 4 Wheat. 100; The Langdon Cheves, 4 Wheat. 103 ; Jecker v. Mont- gomery, 18 How. U. S. 110; U. S. V. One Thousand Nine Hundred and Sixty Bags of Coffee, 8 Cranch, 398. « Campbell v. Evans, 45 K Y. 356 ; S. V. Rum, 51 N. H. 373 ; S. n. Intoxicating Liquors, 44 Vt. 208 ; S. v. Burrows's Liquors, 37 Conn. 425 , S. v. Vaughan, I Bay, 282; S. v. Symonds, 57 Me. 148; Luther v. Fowler, 1 Grant, Pa. 176; Thompson v. Carr, 5 N. H. 510. See Jackson v. Babcock, 16 N. Y. 246; Rey- nolds V. Schultz, 4 Rob. N. Y. 282 ; Wil- kinson V. Cook, 44 Missis., 367. 5 Ante, § 819 a. 8 McLane v. U. S. 6 Pet. 404 ; Amory V. McGregor, 15 Johns. 24, 8 Am. D. 205 ; U. S. 0. One Thousand Nine Hun- dred and Sixty Bags of Coffee, 8 Cranch, 398 ; U. S. V. Brigantine Mars, 8 Cranch, 417 ; Reg. v. Whitehead,' 9 Car. & P. 429 ; Ash !■. Ashton, 3 Watts & S. 510 ; Doyle o. Baltimore, 12 Gill & J. 484 497 § 823 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. nounced by judicial sentence,^ as indicated by the nature of the case or the terms of the statute. If it proceeds from judicial sentence, it will ordinarily or always relate back to the time of the violation ; but in some circumstances, not all, the intervening interests of innocent purchasers will be protected.^ As to which, the ordinary rule seems to be that if by the statute the forfeiture is absolute and instantaneous,^ — for example, not depending on the election of an individual or the State, — no intervening rights of third persons will be respected.* But if, for an example on the other side, the government has by the statute an election to pro- ceed against either the goods or the person, the rights of one who innocently purchases them before the election is made will be respected.^ § 823. 1. Further of the Principle. — The reason of the law in these cases is that the property, ordinarily yet not necessarily or always viewed as guided by the hand of its possessor or owner, so conducts as to lose its resting-place on the law and fall. Now, — 2. Intent — Attempt — Erecting Nuisance. — A mere intent in a man's mind cannot be deemed an act of his property. Therefore neither an intent,^ nor ordinarily an attempt,' will work a forfeit- ure. For which reason, among others, a condition in a devise that it shall be void if the devisee attempts to aliene the estate is a nullity ; ^ and " if one see his neighbor erecting a thing which will be a nuisance, he cannot abate it till it become an actual nuisance;" ^ Yet this principle should be received cautiously, and as illumined by doctrines about to be stated. 1 Fire Department v. Kip, 10 Wend. » U. S. v. Barrels of Spirits, 1 Dil. 49, 266 ; The Thomas Gibbons, 8 Craneh, 2 Abb. U. S. 305. 421; The Mars, I Gallis. 192; The Cale- « Henderson's Distilled Spirits, 14 Wal. donian,4Wheat. 100; Rex w. Van Muyen, 44; Summers v. Clark, 29 La. An. 93; Rnss & Ry. 118; Parker v. U. S. 2 Wash. Oakland Rid. o. Oakland, &c. Rid. 45 Cal. C. C. 361 ; Hobson u. Perry, 1 Hill, S. C. . 365 ; Loekyer c. Offley, 1 T. R. 252, 260. 277; U. S. V. Grundy, 3 Crauch, 338; 6 u. S. v. The Reindeer, 2 Clif. 57, 68; , Hodgson I'. Millward, 3 Grant, Pa. 406 ; U. S. v. Sixty-four Barrels Dist. Spirits, Hunter v. Routlege, 6 Jones, N. C. 216; 3 Clif. 308. U. S. u. Brig Neurea, 19 How. U. S. 92 ; « Case of Le Tigre, 3 Wash. C. C. 567, U. S. !). Rectified Spirits, 8 Blatch. 480. 572. 2 Bukley w. Orms, Brayt. 124 ; The '< McQ. Hus. & Wife, 271. Mars, 1 Gallis. 192; Clark v. Protection « Pierce u. Win, 1 Vent. 321 ; Toy «. Insurance Company, 1 Story, 109; The Hynde, Cro. Jac. 697. And see Mild- Plonghboy, 1 GaUia. 41 ; TJ, S. v. Steven- may's Case, 6 Co. 40, 42 i ; Stephens ». son, 3 Ben. 119 ; U. S. y. Barrels of Whis- James, 4 Sim. 499. key, 1 Abb. U. S. 93; Dean «. Chapin, 22 » Rex v. Wharton, 12 Mod. 510, by Mich. 275. Holt, C. J. 498 CHAP. LV.] QUASI CRIME IN REM, FORFEITURE. § 825 § 824. 1. Forfeiture as Punishment. — Tn another chapter, we shall see ^ that forfeiture is sometimes a punishment for crime. It is then, as already said, a different thing from the forfeiture of this chapter.^ It may fall as well upon a criminal attempt as a substantive offence. But — 2. Non-concurrence of Intent. — Even the forfeitures of this chapter are in some circumstances, not in others, arrested if the owner's intent did not concur with the property's act. Thus, — 3. Necessity — Mistake — Owner's Agent. — The violation of the non-criminal laws for the collection of revenue ^ is excused and the forfeiture avoided, by overwhelming necessity,* and by accident and mistake.^ So is the breach of an embargo act,^ and the like doctrine is applied to many other things.'' But it is of no avail to the owner of the property that he is personally free from blame if those to whom he intrusted it are not so likewise.^ For in respect of these forfeitures, contrary to the criminal-law rule, the master suffers the same from the servant's wrongful acts as from his own.® And — § 825. The Owner's Motive, — or whether or not he committed a crime in the transaction, is generally in these cases unim- portant. If the forfeiture is purely of the sort treated of in this chapter, it transpires whenever the property is placed within the forbidden circumstances, be the owner's motives or purposes what they may.^° Yet still, if the forfeiture is created by a stat- ute, the statutory terms, always to be regarded, may work a result quite different from what is thus indicated." To illustrate, — 1 Post § 944. I V C. 1 Mass. 347. And see Stnrgess v. 2 Ante, § 820. Maitland, Anthon, 1.53 ; The Palmyra, 12 = Stat. Crimes, § 195. Wheat. 1. * Stratton v. Hague, 4 Call, 564 ; The « Phile v. The Anna, I Dall: 197 . The Gertrude, 3 Story, 68; ante, § 351 (2). Bello Corrunes, 6 Wheat. 152. But see 6 U. S. V. Nine Packages of Linen, 1 S. v. Intoxicating Liquors, 63 Me. 121. Paine, 129; Fairclough v. Gatewood, 4 And see The Porpoise, 2 Curt. C. C. 307. Call, 1.58; U. S. v. Fourteen Packages, ^ Bush f. U. S. 24 Fed. Rep. 917; U.S. Gilpin, 235, 244, But see U. S. u. Pack- v. The Malek Adhel, 2 How. U. S. 210, age of Lace, Gilpin, 338, 342. 230, 233, 234. And see U. S. v. One Cop- 6 Brig James Wells v. U. S. 7 Cranch, per Still, 8 Bis. 270. 22; The New York, 3 Wheat. 59; The i' And see The Palmyra, 12 Wheat. 1, William Gray, 1 Paine, 16; U. S. v. and particularly the observations of Story, Brig James Wells, 3 Day, 296; U. S. v. J. p. 14, 15. Gnillera, 11 How. U. S. 47. " And see C. v. Intoxicating Liquors, ' The Marianna Flora, 11 Wheat. 1 ; 115 Mass. 142 ; U. S. u. Cook, 1 .Sprague, Peisch H Ware 4 Cranch, 347; Martin 213; S. v. Burrows's Liquors, 37 Conn 499 § 828 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. § 826. 1. Piratical Aggressions. — When the master of a vessel undertakes piratical aggressions upon the high seas, contrary to an act of Congress, the owner forfeits it, though personally inno- cent.i So — 2. A Neutral's Share — in a belligerent ship is subject to con- demnation.2 Likewise — 3. Embargo Laws. — A vessel violating an embargo act with- out the owner's concurrence is forfeited, the same as with it; for she excavates from beneath her the place of rest on the law, equally whether impelled by her master and crew or by her owner.^ §827. Deodands, — familiar in the old common law of Eng- land, yet little if at all known in this country,* furnish another illustration. A deodand is anything — as, a cart, a horse, a wheel, or other like object— which occasions the death of a human being ; and all the owner's property in " the unhappy instrument," as Hawkins terms it, is " forfeited to the king, in order to be disposed of in pious uses by the king's almoner." ^ Now, the law leaves it quite immaterial whether the death were accidental or intended ; or whether the person whose property is thus forfeited participated in the ^ct or not.^ § 828. Abatable Nuisances — afford a further illustration. Whenever a subject of property, whether through its owner's fault or not, is in a situation to be a nuisance, it is not strictly forfeited ; but the nuisance may be abated, to the destruction if necessary of the property.^ If the nuisance is a private one, persons whose interests are prejudiced by it may, without resort- ing to legal proceedings, go upon the ground and abate it ; ^ if a public, it may be abated by any individual of the public, that is, 425; Attorney-General !). Municipal Court, Hale P. C. 419 et seq. And see Hanip-. 103 Mass. 456 ; 8. v. Rum, 51 N. H. 373 ; stead's Case, 1 Salk. 220 ; Rex v. Brown, U. S. V. Barrels of Whiskey, 1 Bond, 587 ; T. Raym. 208 ; Chandois's Case, Cro. XJ. S. i>. The Queen, 4 Ben. 237 ; U. S. v. Jac. 483 ; Reg. v. Wheeler, 6 Mod. 187 ; Distilled Spirits, 10 Blatch. 428. Anonymous, T. Raym. 97. 1 U. S. V. The Malek Adhel, 2 How. 7 Ante, § 821 (2). U. S. 210. 8 Gates v. Blincoe, 2 Dana, 1 58, 26 Am. '^ The Primus, 29 Eng. L. & Eq. 589. D. 440 ; MofCett v. Brewer, 1 Greene, Iowa, ' U. S. V. Little Charles, 1 Brock. 347, 348 ; Lancaster Turnpike v. Rogers, 2 Pa. 354. St. 114, 44 Am. D. 179; Great Falls Co. * See post, § 968, 970. „. Worster, 15 N. H. 412 ; Rex v. Rose- = 1 Hawk. P. C. Curw. ed. p. 74, § 3, 6. well, 2 Salk. 459. » lb. ; 3 Inst. 57 ; Foster, 287, 288 ; 1 500 CHAP. LV.] QUASI CRIME IN REM, PORPEITUKE. § 829 by anybody .1 Yet, as we have seen,? it must be in actual exist- ence, not merely prospective. So the person abating must do no needless damage : ^ as, if a house is so neglected or k^pt as to become a public nuisance, he may pull it down when the injury cannot otherwise be arrested ; * when it can, he must not proceed so far. He is not authorized, for example, to destroy a building occupied as a house of ill-fame.^ In other words, he may simply abate the nuisance, no more.^ Now, — § 829. 1. Crime or not. — The private nuisance involves no crime ; the public one does or not, according to the mental con- dition of him from whose act it proceeds. Thus, — 2. In Way — River. — An indictment ordinarily lies against one who obstructs a public way ; " but if by misfortune oi- acci- dent the owner of a vessel sinks it in a navigable river, he is not indictable.* Yet the nuisance may, like any other obstruction of a public way, be abated.^ And still, — 3. Abatement not Punishment. — Even where a nuisance is cre- ated by the commission of a crime, its abatement without judicial proceedings is not pimishment, which can follow only the con- viction of the offender. On such conviction, the court perhaps usually ,1" not always,!^ orders the abatement ; yet even this is not properly a part of the punishment. Again, — 4. A Pardon — of the offence, whereby all punishment is taken away, does not free the nuisance from being abated.^^ 1 Renwick ». Morris, 7 Hill, N. Y. 575 ; » Ely v. Niagara, 36 N. T. 297. And Arundel K. McCuUoch, 10 Mass. 70; Wet- see Miller v. Burch, 32 Tex. 208, 5 Am. more v. Tracy, 14 Wend. 250, 28 Am. D. R. 242. 525; Hall's Case, 1 Mod. 76; Low u. <■ Welch v. Stowell, 2 Doug. Mich. Knowlton, 26 Me. 128, 45 Am. D. 100 ; 332 ; Barclay v. C. 25 Pa. 503, 64 Am. D. Manhattan Manuf. &c. Co. v. Van Keuren, 715. 8 C.E.Green, 255; Reg. w. Mathias, 2 Fost. ' S. v. Knotts, 2 Speers, 692, 42 Am. & F. 570 ; Reg. v. Patton, 13 L. Canada, D. 395 ; Freeman v. S. 6 Port. 372 ; Kelley 311 ; Adams v. Beach, 6 Hill, N. Y. 271 ; v. C. 11 S. & R. 345. ante, § 490 (2). There are some late Amer- ^ Rex v. Watts, 2 Esp. 675 ; Cummins ican oases in which this proposition is in v. Spruance, 4 Harring. Del. 315. part or wholly denied. See, and for further ' Dimmett v. Eskridge, 6 Munf. 308; expositions, post, § 1080, 1081, and notes, Hopkins v. Crombie, 4 N. H. 520; Rung Bishop Non-Con. Law, § 430, 431, 1323. v. Shoneberger, 2 Watts, 23, 26 Am. D. 95. 2 Ante, § 823 (2). " Anonymous, Comb. 10. 8 Arundel v. McCuUoch, 10 Mass. 70; " Rex v. Incledon, 13 East, 164; Rex S. V. Moffett, 1 Greene, Iowa, 247 ; Mof- v. West Riding of Yorkshire, 7 T. R. 467 ; fett i: Brewer, 1 Greene, Iowa, 348 ; James S. v. Haines, 30 Me. 65 ; Rex v. Pappineau, r. Hayward, W. Jones, 221, 223 ; Reg. ^. 1 Stra. 686 ; S. ^. Noyes, 10 Fost. N. H. Mathias, supra. 2(9. * Meeker v. "Van Rensselaer, 15 Wend. ^^ Rex v. Wilcox, 2 Salk. 458. And see 397 Case of Pardons, 12 Co. 29. 501 § 832 INCIDENTAL RELATIONS AND THINGS. [bOOK VXI. § 830. Other Forfeitures — within the scope of this chapter are numerous, but the foregoing illustrations will suffice.^ § 831. Whether Statutory Forfeiture Constitutional. — The crea- tion of forfeitures unknown to the common law is a legitimate exercise of the legislative power, but it is more or less lim- ited by our differing State constitutions. In general, those con- stitutions have few, if any, direct restrictions under this head ; such as they have being secondary results from provisions prima- ' rily meant for other objects.- The guaranties for the protection of persons accused of crime seem not to extend to the forfeitures we are. considering ; for, as the reader has noted, even where a crime is committed they are not a part of the punishment. To look at a few questions, — §832. 1. Hoga at Large — Municipal By-law. — The general powers of a municipal corporation to make by-laws do not extend to the creation of forfeitures.^ Still a charter may be in terms to confer this authority. That of Vicksburg not being in such terms, an ordinance directing the city marshal to seize and sell all hogs found running at large in the city, and to pay over half the proceeds to the use of the city hospital and to retain the other half for his services, was well adjudged to be void. On ground less firm, the judge uttered a dictum to the effect that even if the charter had, undertaken to authorize the ordinance, it would be void as violating the declarations of the Constitution that no per- son " can be deprived of his life, liberty, or property, but by due course of law," and that '.' the right of trial by jury shall remain inviolate." * Now, — 2. The Better View — is pretty plainly antagonistic to this 1 The reader who is carious to follow 5 Dana, 574 ; Cooper v. Telfair, 4 Dall. this subject farther into detail may profit- 14 ; Atherton v. Johnson, 2 N. H. 31 ; ably consult Barnicoat v Six Quarter The ApoUon, 9 Wheat. 362 ; C. v. Dana, Casks of Gunpowder, Thacher Crim. Cas. 2 Met. 329; S. v. Allen, 2 McCord, 55; 596 ; Trueman v. Casks of Gunpowder, Wooldridge v. Lucas, 7 B. Monr. 49 ; Thacher Crim. Cas. 14; American Print The Palmyra, '12 Wheat. 1; Boles v. Works V. Lawrence, 3 Zab. 9 ; Hale a. Lynde, 1 Koot, 195 ; Whitfield ». Long- Lawrence, 3 Zab. 590, 57 Am. D. 420; est, 6 Ire. 268; Miller v. S. 3 Ohio St. Smith V. Maryland, 18 How. U. S. 71 ; 475. Griffin h. Potter, 14 Wend. 209; Stump » Stat. Crimes. § ?2 ; Varden w. Mount, V. Findlay, 2 Rawle, 168, 19 Am. D. 632 ; 78 Ky. 86, 39 Am. R. 208 ; Henke v. Mc- Harrisburg Bank « C. 26 Pa. 451 ; French Cord, 55 Iowa, 378. V. Rollins, 21 Me. 372. 4 Donovan v. Vicksburg, 29 Missis. '^ The reader may consult Hickman v. 247, 250, 64 Am. D. 143. And see Var- Littlepage, 2 Dana, 344 ; Violett «. Vio- den v. Mount, supra, lett, 2 Dana, 323 ; Shepherd v. Mclntire, 602 CHAP. LV.J QUASI CRIME IN REM, PORF^TURE. ■ § 833 dictum. It is competent, on general principles, for the law- making power to declare what shall be a public nuisance,^ and to provide for the forfeiture of the thing which shall become such. The forfeiture may be as well without judicial proceedings as with, and the case is entirely outside such constitutional pro- visions as those referred to by the learned judge.^ Thus, — 3. Dogs at Large — Hogs, again. — Under a statute framed for the purpose, one who finds a dog at large on his premises without its owner or keeper, however enticed there, may right- fully kill it; 3 and a doctrine like this, contrary to the Missis- sippi dictum, appears to be held elsewhere regarding hogs at large.* § 833. 1. These Forfeitures and for Crime further distinguished. — Our differing statutes, the differing views of judges, and the diverse provisions of the constitutions of our States create com- plications rendering it impossible to distinguish, by any single rule, the circumstances and statutory words under which a for- feiture should be deemed a punishment for crime,^'from those in which it should not. But the reader will ordinarily not find it difficult to apply the foregoing principles to new cases as they arise. Not attempting to draw all possible lines of distinction, — 2. Proceeding against Thing. — There is a difference between what is on its face a nuisance or otherwise dangerous, therefore to be at sight and in pais forfeited or abated, , — like a dog or hog wrongly at large, or a thing laid to obstruct a public way, — and an article not in itself harmful, yet made so by the evil purpose of its owner. In a case of the latter class, the owner should have notice,^ and there should be such further judicial inquiries into the facts as the special case or the statute demands.'^ There have been some nice questions under — 1 Post, § 1117; Stat. Crimes, § 1068. 82 N. C. 175. And see Brown v. Hobur- 2 Yet, Stray Animals. — Something ger, 52 Barb. 15; post, § 1080 and note, like this Mississippi doctrine is held in * Gosselink v. Campbell, 4 Iowa, 296 ; New York on the subject of Estrays. McKee v. McKee, 8 B. Monr. 433. Campbell v. Evans, 45 N. Y. 356, 54 Barb. * Ante, § 820, 824. . 566 ; Squares v. Capipbell, 41 How. Pr. « P. v. Fire Department, 31 Mich. 458. 193. As to Pennsylvania, see Patterson ' Lowry v. Eainwater, 70 Mo. 152, 35 V. McVay, 7 Watts, 482 ; Henry v. Rich- Am. R. 420 ; Varden u. Mount, 78 Ky. ardson, 7 Watts, 557. 86, 39 Am. R. 208 ; Conway vj Clinton, I 8 Bradford I). McKibben, 4 Bush, 545 ; Utah, 215; Rickers v. Simcox, 1 Utah, Blair w. Forehand, 100 Mass. 136, 97 Am. 33 ; Mason v. Tuttle, 75 Va. 105 ; Kirk v. D. 82, 1 Am. R. 94 ; Mowery v. Salisbury, Lynd, 106 U. S. 315. 503 § 835 INCIDEIJTAL RELATIONS AND THINGS. [BOOK VII. 3. Modern Liqtuor Laws. — In Massachusetts, a statute direct- ing the forfeiture of liquors kept with the intent to sell them was adjudged void, because the proceedings it established to en- force the forfeiture were obnoxious to constitutional guaranties for the protection of persons accused of crime. i Under a Con- necticut statute, the proceeding to enforce a forfeiture of liquor is held to be purely in rem, and to charge no personal offence against the owner or keeper.* It is plain, therefor^, that the forfeiture of liquor, provided for by a statute, is a punishment or not according tp the nature and terms of the provision. And though the same act which works a forfeiture may subject the doer to punishment, it does not necessarily follow that the for- feiture is to be deemed a part of such punishment.^ An abatable nuisance is an illustration of this proposition.* Now, — § 834. Further as to which. — There is reason for saying that if a statute subjects one to the forfeiture of any species of prop- erty by reason simply and solely of an intent which lies unex- pressed in the breast of its owner, such forfeiture is a penalty for crime, instead of being the kind of forfeiture treated of in this chap- ter. But the result is otherwise if it depends on the thing being in particular circumstances, or in a particular locality, or in prox- imity to some other thing. And it would make no difference if, added to these externals, the statute made a general ^ or particular evil purpose an element on the non-existence of which the fo,rfeit- ure would not be decreed. Still this entire question is a nice one on principle, and little illumined by authority. This view, for example, was not in the mind of the Massachusetts Court while rendering the decision above stated. § 835. In Principle, and in Conclusion, — we appear to have something like the following: Whenever the law, statutory or common, creates a forfeiture of property by reason of particular circumstances attending it, or of its being dangerous to the com- munity, or of any form or position which it assumes, this forfeit- ure is not to be deemed a punishment inflicted on its owner in 1 Fisher v. McGirr, I Gray, 1, 22, 26, 51 N. H. 373; C. v. Intoxicating Liquors, 27, 36, 37, 61 Am. D. 381. On the gen- 115 Mass. 142. eral subject of statutes similar to that of ^ S. u. Burrows's Liquors, 31 Conn. Massachusetts, see S. v. Gurney, 33 Me. 425. 527; Barnett v. S. 36 Me. 198, S v. Gur- « Ante, § 816, 819, 824, 825; liirk v. ney, 37 Me. 156, 58 Am. D. 782; Darst Lynd, 106 U. S. 315. V. P. 51 111. 286, 2 Am. R. 301 ; S. v. Rum, « Ante, § 828, 829. ^ The Saratoga, 15 red. Rep. 382. 504 CHAP. LV.j QUASI CRIME IN EEM, PORFEITURK. § 836 the criminal-law sense. It is not, therefore, within constitutional guaranties protecting persons accused of crime. Thence it fol- lows that if the law, in its clemency, permits the owner still to retain his property and avoid the forfeiture on showing himself innocent of any wrong in the transaction, there is no more a punishment than before. But if the provision is that a person shall forfeit property A for what property B does, or for what the owner does in a matter not connected with the property, or for a bare intent which does not enter into the situation and con^ duct of the property, the forfeiture is a punishment which can be inflicted only on conviction of the owner, for his act or intent, viewed as a crime.'^ , 1 In U, S. !). Three Tons o£ Coal, 6 Bis 379, Dyer, J. after approving of this pas- sage, adds : " The true test, I think, lies here. When the judgment of forfeiture necessarily carries with it and as part of it a conviction and judgment against the person for the crime, the c^se is of crimi- nal character. Bnt when the forfeiture does not necessarily involve personal con- viction and judgment for the offence, and such conviction and judgment must be obtained, if at all, in another and inde- pendent proceeding, there the remedy by way of forfeiture is of civil and not crimi- nal nature." p. 391-393. In this case it was held that a proceeding against a distillery for forfeiture under the revenue laws is not criminal within the Constitu- tion of the United States. I presume the learned judge does not mean that the case is civil whenever there is no separate judgment iot a penalty in addi- tion to the forfeiture ; for that would con- tradict the proposition he had approved. A specific forfeiture may be a punishment, and the only punishment, for a particular offence. Ante, § 820 (2), 824 (I); post, § 944. But the idea appears to be that it is civil or criminal according as the for- feiture is in the nature of punishment for a personal crime or not. And see Distilled Spirits, 2 Ben. 486; TJ. S. v. Barrels of Distilled Oil, 6 Blatch. 174; XJ. S. V. Distillery, 11 Blatch. 255; U. S. V. The Queen, 11 Blatch. 416; C. v. In- toxicating Liquors, 107 Mass. 396. 505 838 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. CHAPTER LVI. THE DEFENCE OP PERSON AND PROPERTY. § 836, 837. Introduction. 838, 839. Some General Views. 840, 8*1. Distinction of Perfect' and Imperfect Defence. 842-859. The Perfect Defence. 860-863. The Imperfect Defence. 864-874. Summary of Defence of One's Person. 875, 876. Summary of Defence of One's Property. 877. Assisting Others in Defence. § 836. Why this Chapter. — The right to defend one's person or property is a frequent subject of inquiry in criminal cases. It is specially such under the title Homicide, but it is not limited to this title. Therefore we shall avoid both repetitions and con- fusion by bringing the different branches of the subject together into one chapter. § 837. How Chapter divided. — We shall consider, I. Some General Views ; II. The Distinction of Perfect and Imperfect Defence ; III., The Perfect, Defence ; IV. The Imperfect Defence; V. Summary of the Right to defend One's Person ; VI. Summary of the Right to defend One's Property ; VII. The Right to assist Others in Defence of Person and Property. I. Some G-eneral Views. § 838. 1. Obscurities of Subject. — While in a general way it is plain that men may defend tlieir persons and property against the aggressions of others, and assist one another tlierein, the de- tails and limit of the right are not quite clear in our books. For this — 2. The Principal Reason — appears to be that though the ques- tion has often been before the courts and legal authors, they have failed to draw certain distinctions of the utmost importance. Hence, — 506 CHAP. LVI.] DEFENCE OF PERSON AND PROPERTY. § 841 3. Couise of Elucidation. — While examining this subject, we shall endeavor, whether successfully or not, to discover the true distinctions, and thereupon shall descend more into detail, and divide the matter into minuter parts, than those who have gone before have done. § 839. Preliminary Considerations. — It is in natural reason plain that one may carry the defence of his person further than that of his property ; because personal rights rank superior to those of property. It is plain also that when the defence of one's person or property involves the taking of life, the right to make it will not in all cases be perfect. The law may, and in natural reason should in various circumstances, forbid the individual to protect even his undoubted rights in so extreme a way, when the courts are ready to give' him redress. And even where the defence may be effectual without the taking of life, still it may be such a dis- turbance of the peace that the law will forbid it except under judicial mandate. Other distinctions, founded on natural reason, will occur to the reader ; and it is important he should bear all in mind while we proceed with these elucidations. II. The Distinction of Perfect and Imperfect Defence. § 840. Two Kinds of Defence, — widely separable in their natures, are possible in theory and practically familiar. The one extends,, when necessary, to the taking of the aggressor's life ; and this we shall call the perfect defence. The other does not permit him who employs it to go so far ; but he may resist trespasses on his person or property to an extent not exactly the same in all cir- cumstances, yet not involvipg the life of the trespasser ; and this we shall call the imperfect defence. § 841. The Reason for the Distinction — in a good measure ap- pears already .1 There are circumstances wherein if -men were to make no resistance, a wrong would be done beyond the power of the law to redress. Then, if this wrong is of adequate magnitude, it ought to be and it is lawful for him who is threatened with it to resist to all lengths without measuring consequences. But where the menaced injury is slight, especially if of a sort which a pro- ceeding in court can correct, the defence by the individual should not be carried so far, though still he may make some defence. 1 Ante, § 839. 507 § 843 INCIDENTAL RELATIONS AND THINGS. [BOOK Til. III. The Perfect Defence. § 842. 1. Necessity, — we have seen, is the supreme and irre- sistible master of men, of all human affairs, and of the law,i — not inquiring how it is in the intellectual and material universe above and beyond our earth. And — 2. Prom Necessity, — and limited by it, proceeds the right of self-defence and the defence of property we are considering.^ The right begins where necessity does, and ends where it ends. Therefore the defending party can exercise no power and apply no instruments beyond what will simply prove effectual.^ Thus, — § 843. 1. Shooting Felon. — While, as we shall see, one may lawfully oppose the commission of a felony by another even to the taking of his life,^ still if there is no obstacle to his arrest, it will be a felonious homicide to shoot him instead of having him arrested.^ And — 2. Needless Killing In Self-defence. — Though the right to take life in self-defence is unquestionable, one on whom another is making a mere assaplt with the fist must not instantly stab him j and thus needlessly to kill the aggressor is murder.^ Even where another is meditating the taking of one's life, this extreme de- 1 Ante, § 346 et seq. v. Ferguson, 26 Mo. Ap. 8 ; S. v. Mont 2 S. V. Beckham, 24 S. C, 283, 235. gomery, 65 Iowa, 483 ; Creighton v. C. 3 I have not seen this doctrine laid 84 Ky 103; S. v. Brittain, 89 N. C. 481 , down in words, but it embodies a prin- S. v. Downing, 74 N. C. 184 , C. v. Dona- ciple on which many of the causes proceed ; hue, 148 Mass. 529, 12 Am. St. 591 ; Davis aa, P. V. Doe, 1 Mich. 451 ; P. v. McLeod, v. P. 88 111. 350; Reg. o. Knock, 14 Cox 1 Hill.N. Y. 377, 37 Am. D. 328 ; Carroll C. C. 1 ; Reg. . Thompson, 83 Mo. 257 ; 108 111. 519 ; Logan k. S. 17 Tex. Ap. 50 ; Dolan V. S. 81 Ala. 11 ; Henderson v. S. Leonard i'. S. 66 Ala. 461 ; Jackson v. S. 77 Ala. 77 ; post, § 872. 81 Ala. 33 ; Baker «. S. 81 Ala. 38 , White 2 P. V. Sullivan, 3 Seld. 396 ; S. v. Mar- v- Maxey, 64 Mo. 552. tin, 30 Wis. 216, 1 1 Am. R. 567 ; Edwards * Philips v. C. 2 Duv. 328, 87 Am. D. V S. 47 Missis. 581; Gonzales v. S. 31 499; Bohannon v. C. supra. And see Tex. 495 ;,S. v. Shippey, 10 Minn. 223, 88 Tweedy v. S. 5 Iowa, 433 ; Dolan v. S. Am. D. 70; Atkins v. S. 16 Ark. 568; S. 81 Ala. 11 ; P. •,. Gonzales, 71 Cal. 569; V Johnson, 76 Mo. 121 ; Parrish v. S. 14 West v. S. 2 Tex. Ap. 460; post, § 851. Neb. 60 ; McPherson v. S. 29 Ark. 225 ; ^ Ante, § 348, 348 a, and the authori- Levells v. S. 32 Ark. 585. But there are ties there referred' to, 4 Bl. Com. 186. circumstances in which this is not so. « Baldwin, J. in U. S. «. Holmes, 1 Wal. Bohannon v. C. 8 Bush, 481, 8 Am. R. Jr. 1, 25, Whart. Hom. 237. 474. 509 § 849 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. ner has taken upon himself a special duty of care over the lives of the passengers. It certainly, under the laws and usages of a country wherein all human beings are equals, does not spring from any acknowledged superiority of passenger over mariner. But — 3. Distinguished. — This doctrine, applicable only to cases of innocence, has no relevancy to the law of self-defence, whereby one may protect himself against the aggressions of a wrong-doer, whose life he is not required to regard as of equal value with his own. Still — § 846. Avoid taking Life. — The combined foregoing views render it plain that under all circumstances one should, as far as practically possible, avoid taking the life even of an aggressor, and even though the precise letter of the adjudged cases might seem to justify him. For the decisions are to be interpreted, not by their letter, but by the reason of the law, whereof they are severally special and limited manifestations. Again, — § 847. Care in Permissible Defence. — Practically also, if one has it in his power to avoid tlie necessity of an allowable self- defence, prudence dictates that he should ; for he encounters the collision only at extreme pei'il. Not that he may not resist an attack, or that he must endanger his safety by playing the coward ; but if two paths are open for him, the one leading from a conflict and the other to it, and he chooses the latter, he can escape the penalties of the law only by keeping within its exact lines. Another preliminary relates to the — § 848. Old Authorities — (Special Verdicts). — The practice in early times was for the jury in these cases to render special ver- dicts, not general ones as now ; for, said Lord Hale, " the pris- oner cannot plead anything by way of justification, as that he did it in his own defence, or per infortunium, but must plead not guilty ; and upon his trial the special matter is to be found by tlie jury, and thereupon the court gives judgment." i Prom this it has resulted that the judicial utterances in the old books on self- defence are not to be regarded quite as general legal doctrine'; but rather as views such as might influence jurors contemplating the facts stated in the special verdicts.'^ Now, — § 849. 1. Course of Further Exposition. — Having thus called 1 1 Hale P. C. 478. a Vol. II. § 673, 510 CHAP. LVI.] DEFENCE OF PERSON AND PROPERTY. § 849 to mind the general doctrine of this sub-title, we shall throughout the remainder of it contemplate — The Particular CircumHtances wherein the Perfect Defence — that is, the Defence which may extend to the Taking of the Aggres- sor's Life — is permissible : — 2. Resisting Crime. — Though it is always commendable in one to prevent another's committing a crime, the law has so high a regard for human life that as the ordinary rule it does not permit this resistance to be carried to the extent of killing the wrong- doer. Looking for the exceptions to this rule, — 3. Resisting Felony. — Anciently the punishment of all felony ■was death ; i from which reason, or from some other not appear- ing, it became establislied doctrine' both in England and in our States that one may oppose another who is attempting to per- petrate any felony, to the extinguishment, if need be, of the felon's existence.2 Even — 4. Crime not to resist. — A man commits an indictable misde- meanor who neglects to oppose a felony ; or, it may be, stops in his opposition short of taking the felon's life, where that extreme measure is the only one which can be made effectual.^ Again, — 5. Suppressing Riots, Affrays, &o. — It is the duty of officers, and at least the right of private persons, to suppress riots and affrays, together with some other misdemeanors of the like na- ture.* And when the disorder can be put down only by the taking of life, this may lawfully be ^one.^ So likewise, — 6. Resisting Murderous Assault. — It is familiar doctrine that one assaulted witli murderous intent may avert the felonious result by taking the aggressor's life.^ The law of self-defence justifies him, but liis justification rests equally in the fact that he is resisting the commission of a felony.'^ On the other hand, — 1 Ante, § 61 5, 61 6. 269 ■ McClelland v. Kay, 14 B. Monr. 103 ; 2 Oliver v. S. 17 Ala. 587 ; Monroe v. Rapp v. C. 14 B. Monr. 614; P. the inside, and double- boarded on the outside, -but it was possible scattering shot might pass through the boards at places wliere because of cracks there was -not a double thiclcness of boards ; and that the travelling, public were annoyed by apprehensions of harm from the guns, — the court held that such real and substantial danger did not ap- pear as would warrant a conviction. ^ §857. Perfect Defence of Property. — This taking of life by spring-guns and other means in resistance of felony is an indirect and limited perfect defence of property. But not otherwise is sucli defence of it permissible ; the general rule is that while a man may use all reasonable and necessary force to defend his real or personal estate, of which he is in the actual possession, against another who comes to dispossess him without right,^ he cannot innocently carry this defence to the extent of killing the aggressor. If no other way is open, he must yield, and get him- self righted by resort to the law.^ A seeming exception to this rule is the — "calculated to inflict grievous bodily spring-guns and 'similar things, at the harm," under tlie above statute. Woot- common lavf and by force of this statute, ton V. Hawkins, 2 C. B. n. s. 412. A dog- opinions not quite uniform have been ex- spear, set in the woods to protect game pressed by different English judges. See iErom dogs, is not within this statute; and the above case of Jordin v. Crump; also, one cannot recover f(jr injury to his dog Deane v. Clayton, 7 Taunt. 489 ; lltrtt i.. by a dog-spear, if, knowing of its exist- Wilkes, 3 B. & Aid. 304 ; and some others ence, he walks through tlie wood and there referred to. the dog, attracted by game, runs upon it i 'S. v. Moore, 31 Conn. 479, 83 Am. D. and is wounded. And the court inti- 159. mated that it would make no difference ^ Ante, § .536 (2). though the owner of the dog was igno- ' U. S. v. Wiltberger, 3 Wash. C. C. riint of the existence of the dog-spear. .51.5; Oliver !.■. S. 17 Ala. 587; C. ». Green, .Jordin v. Crump, 8 M. & W. 782. On 1 Ashm. 289, 297 ; Carroll v. S. 23 Ala. the right to claim damages for injuries 28, 58 Am. D. 282 ; S. v. Morgan, 3 Ire. received by a man and liis dog, from 186, 38 Am. D. 714; McDauiel t). S. 8 Sm, .516 CHAP. LVI.] DEFENCE OP PERSON AND PBOPEETY. 858 § 858. Defence of the Castle. — In the early times, our fore- fathers were compelled to protect themselves in their habitations by converting them into holds of defence ; and so the dwelling- house was called a castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like, — cases not within the line of our present expositions. From this doctrine is derived another ; namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life.^ As observed by Campbell, J., in Michigan, " a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his housej or to prevent his forcible & M. 401, 47 Am. I). 9.3; S. v. Zellera, 2 Halst. 220; Harrison v. S. 24 Ala. 67, 60 Am. D. 450; C. ». Drew, 4 Mass. 391 ; Mouroe v. S. 5 Ga. 85 ; Howell v. S. 5 Ga. 48 ; Rex V. Ford, J. Kel. 51 ; S. v. Smith, 3 Dev. & Bat. 117; S. «. Lazarus, 1 Mill, 33 ; Moore v. Hussey, Hob. 93 ; Seinay ne's Case, 5 Co. 91 ; Reg. r. Sullivan, Car. & M. 209 ; U. S. r. Williams, 2 Crancli C. C. 438; Noles v. S. 26 Ala. 31, 62 Am. D. 711 ; MeA'uley v. S. 3 Greene, Iowa, 435; S. 0. McDonald, 4 Jones, N. C. 19 ; P. v. Hortou, 4 Mich. 67 ; Priester v. Aijgley, 5 Rich. 44; S. w. Buchanan, 17 Vt. 573; P. V. Hubbard, 24 Wend. 369, 35 Am. D. 628 ; C. V. Kennard, 8 Pick. 133 ; S. v. McDonald, 4 Jones, N. C. 19 ; Haynes v. S. 17 Ga. 465 ; S. a. Brandon, 8 Jones, N. C. 463 ; Kunkle v. S.'32 Ind. 220. See P. V. Payne, 8 Cal. 341 ; P. v. Batchelder, 27 Cal. 69, 85 Am. D. 231 ; S. «. Burwell, 63 N. C. 661 ; Reg. w. Archer, 1 Post. & F. 351 ; Murphy v. P. 37 111. 447 ; S. v. Vance, 17 Iowa, 138. See post, § 876. 1 1 Hale P. C. 458, where this learned author says : " A bailiff, having a war- rant to arrest Cook upon a capias ad satisfaciendum, came to Cook's house and gave him notice ; Cook menaceth to shoot him if he depart ^ot, yet the bailiff de- parts not, but breaks open the window to make the arrest ; Cook shoots, him, and kills him ; it was ruled : ( 1 ) That it is not murder because he cannot break the house, otherwise it had been if it had tieeu upon an h&bere facias possessionem. (2) But it was manslaughter, because he knew him to be a bailiff. But (3) Had he not known him to be a bailiff, or one that came upon that business, it had been no felony, because done in defence of his house." s. c Cook's Case, Cro. Car. 537. And see, as to the doctrine of the text, 1 Chit. Crini. Law, 56 ; Moore v. Hussey, Hob. 93, 96; Semayne's Case, 5 Co 91, where it is said, " Every one may assemble his friends and neighbors to defend his house against violence;" C. v. Drew, 4 Mass. 391 ; 4 Bl. Com. 223 ; Reg. c. Sul- livan, Car. & M. 209 ; S. v. Zellers, 2 Halst. 220; Hudgins v. S. 2 Kelly, 173; Carroll V. S. 23 Ala. 28, 58 Am. D. 282 ; Haynes V. S. 17 Ga. 465 ; Temple v. P. 4 Lans. 119; Corey v. P. 45 Barb. 262 ; S. v. Patterson, 45 Vt. 308, 12 Am. R. 200; S. v. Medlin, Winst. ii. 99 ; Ford's Case, J. Kel. 51 ; Weaver v. Bush, 8 T. R. 78 ; S. v. Taylor, 82 N. C. 554 ; 1 Hawk. P. C. Curw. ed. p. 98, § 36 ; Crim. Pro. I. § 195. The same right extends to the defence of an out- house when it is in law parcel of the dwelling. Parrish h. C. 81 Va. 1. Such also is plainly the ancient doctrine. Thus Britton, treating of Appeals of Homicide, says : The defendant " may say that al- though he committed the act, yet he did not do it by felony prepense, but by neces- sity in defending liimself, or his wife, or his house, or his family, or his lord, or his lady, from death." Nichols's Translation of Brit., vol. i. p. 113. 517. § 860 INCIDENTAL RELATIONS AND THINGS. [BOOK YII. enti-y, even to the taking of life." ^ And in Missouri a man's business office was held to be his dwelling within this rule.^ Still, — § 859. 1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; then if the latter does enter without a breaking,^ the two stand toward each other on different ground.* Thus, — ' 2. Putting out of Castle. — If a man enters another's dwelling- house peaceably on an implied license, he cannot be ejected ex- cept on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein.^ Yet if the entry itself is with violence or is opposed, no request to de- part need precede the act of turning out; since the trespasser knows as well without express words as with, that his absence is desired.^ Hence a needless battery, resulting in death, employed in ejecting an intruder from the dwelling-house, will constitute felonious homicide.'^ And though one has forbidden another his house, yet should the latter come peaceably, and not instantly leave on being ordered away, the former, killing him, will be guilty of murder.^ 3. Attacked in Castle. — One attacked in his home need not re- treat,^ and he may use all necessary force to eject the intruder,^" whom he may kill in doing it if this extreme measure appears unavoidable.^^ IV. The Imperfect Defence. § 860. Both Person and Property. — Though, as just seen, the perfect defence can be resorted to for the protection of property only when it. consists of the castle, or a felony is being committed 1 Pond y. p. 8 Mich. 1 50, 1 77. See De ' g. „. Lazarus, 1 MiU, 33 ; McCoy v. S. Forest v. S. 21 lud. 23. 3 Eng.451. And see Reg. w. Sullivan, Car. 2 Morgan v. Durfee, 69 Mo. 469, 33 & M. 209 ; Kex v. Longdeu, Kuss. & Ey. Am. E. 508. 228. 3 Stat. Crimes, § 290, 312. s S. o. Smith, 3 Dev. & Bat. 117. See » Crim. Pro. L § 195, 199, 200. P. v. Horton, 4 Mich. 67. 5 Post, § 862, 873; Gregorys. Hill, 8 » S. y. Harman, 78 N. C. 515; post, T. R. 299 ; Shaw v. Chairitie, 3 Car. & K. § 869. 21 ; Green o. Bartram, 4 Car. & P. 308 ; lo S. v. Dugan, 1 Houst. Crim. 563 ; Reg. 0. Roxburgh, 12 Cox C. C. 8. And Estep v. C. 86 Ky. 39, 9 Am. St. 260; see Ballard «. Bond, 1 Jur. 7. and cases cited to last section. " Tullay V. Reed, 1 Car. & P. 6; Pollc- " Post, § 869 (3) ; S. v. Peacock, 40 iuhoru K. Wright, 8 Q. B. 197, 206; Green Ohio St. 333 ; S. o. Middleham, 62 Iowa, V. Goddard, 2 Salli. 641. 150. 518 CHAP. LVI.] DEFENCE OP PERSON AND PROPERTY. § 863 upon it, the imperfect is permissible as well of the property as of the person. § 861. 1. As to Property. — One may defend his property in possession by whatever force, short of the taking of life, is neces- sary to make the defence effectual ; ^ unless it amounts to a riot, a forcible detainer, or some other like crime. Yethe cannpt pro- ceed therein beyond what necessity requires.^ For illustration, — 2. An Assault and Battery, — in defence of one's property and within the rule of necessity, may be justified.^ And — 3. Accidental Homicide. — If in the employment of such neces- sary force the aggressor is accidentally killed, the doctrine seems to be on authority,* and clearly it is in principle, that the homi- cide is not punishable. Yet consistent with this proposition is another, that one in the defence of his property should not resort to means reasonably calculated to endanger life.^ For — § 862: Dangerous Weapon — Battery — (Homicide). — If a dan- gerous weapon is used when other means would suffice and death however unintended is the result,^ a fortiori if the trespasser is purposely killed,' the party thus unlawfully resisting him commits a felonious homicide. Nor should one turn another out of his house with a kick,? or beat or tie to a horse a trespasser who yields ; ^ and he who does these things, producing death, incurs tlje guilt of felony. § 863. Defence of the Person. — Since one may protect his per- son by the perfect defence, he may by the imperfect, — a doctrine to be more exactly stated in the next sub-title. 1 Ante, § 857 ; S. u. Johnson, 12 Ala. ^ Kunkle v. S. 32 Ind. 220. And see 840, 46 Am. D. 283. Still Mr. East ob- Territory v. Drennan, 1 Mont. 41. serves: "A man cannot justify maiming ^ C. v. Drew, 4 Mass. 391; McDaniel another in defence of his possessions, but v. S. 8 Sm. & M. 401 ; S. v. Zellers, 2 Halst. only in defence of his person. This re- 220. And see Eeg. v. Sullivan, Car. & M. striction, however, cannot be intended to 209. extend to cases where a man defends him- ' Harrison v. S. 24 Ala. 67, 60 Am. D. self against a known felony, threatened to 450; McDaniel u. S. 8 Sm. & M. 401, 47 be committed with violence, against even Am. D. 93 ; S. v. Smith, 3 Dev. & Bat. his property." 1 East P. C. 402. 117. 2 Ante, § 842 (2) ; S. v. Clements, 32 ^ Wild's Case, 2 Lewin, 214. And see Me. 279 ; S. v. Lazarus, 1 Mill, 33. McCoy v. S. 3 Eng. 451. 8 Harrington v. P. 6 Barb. 607 ; S. w. ' Hollowaye's Case, Palmer, 545 ; s. c. Briggs 3 Ire. 357. And see S. u. Hooker, nom. Halloway's Case, Cro Car. 131, "W. 17 Vt. 658; Faris w. S. 3 Ohio St. 159. Jones, 198; 1 Hale P. C. 473; Foster, * The principle of the statement in the 291. text is possibly sustained in S. v. MerriU, 2 Dev. 269. 519 §866 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. V. Summary of the Right to defend One's Person. § 864. In the Last Two Sub-titles, — of -which this is a sort of continuation, much of what would be relevant in the present one has been explained. § 865. 1. Killing in Self-defence. — The right to take life in self- defence already appears. Inquiring now after the limits of the right, — 2. The Rule — is commonly stated in the American cases thus : If one who is assaulted (we have seen that there must be an overt act, rendering the danger imminent) ,i being himself without fault in bringing on the difficulty ,^ reasonably apprehends death or great bodily harm to himself unless he kills the assailant, the kill- ing is justifiable.^ More precisely as to the — 3. Limit of the Rule. — It has been held that this rule cannot be qualified by adding to it, "which [bodily harm] might probably endanger his life ; " for one attacked may destroy the assailant's life though no danger, near or remote, threatens his own, but only his safety iii a less degree.* " The law gives a person the same right to use such force as may be reasonably necessary under the 1 Aute, § 843 (2), 850 (4) ; post, § 869 (1) ; S. i;. HoUis, 1 Houst. Crim. 24; S. v. Rose, 30 Kan. 501 ; Mize v. S. 36 Ark. 653. 2 S. !/. Beckham, 24 S. C. 283 ; Tesney V. S. 77 Ala. 33; S. v. Peak, 85 Mo. 190; Story V. S. 99 Ind. 413 ; Clifford v. S. 58 Wis. 477. This clause of the rule may admit of qualifications derivable from the special facts of a case. Cartwright v. S. 14 Tex. Ap. 486, 498 ; S. «. Gilmore, 95 Mo. 554 ; P. u. Wong Ah Teak, 63 Cal. 644. 8 McDermott v. S. 89 Ind. 187, 195; Presser v. S. 77 Ind. 274, 277, 278 ; Young V. S. 11 Humph. 200; P. v. Shorter, 4 Barb. 460; Shorter v. P. 2 Comst. 193, 51 Am. D. 286 ; Stewart ;■. S. 1 Ohio St. 66, 71 ; Copeland i). S. 7 Humph. 479 ; S. v. Wells, Coxe, 424, 1 Am. D. 211 ; Holmes V. S. 23 Ala. 17; Carroll v. S. 23 Ala. 28, 58 Am. D. 282; Dill o. S. 25 Ala. 15; Rapp V. C. 14 B. Monr, 614 ; Campbell v. P. 16 HI. 17, 61 Am. D. 49; Meridlth v. C. 18 B. Monr. 49; Green v. S. 28 Missis. 687; Pond v. P. 8 Mich. 150; P. v. Colo, 4 Par. Or. 35 ; S. o. Swift, 14 La. An. 827; 520 Eippy w. S. 2 Head, 217; Payne v. C. 1 Met. Ky. 370 ; S. v. Mullen, 14 La. An. 570; Kingenw. S.45Ind.518; P. v. Lamb, 54 Barb. 342 ; S. v. Abarr, 39 Iowa, 185 ; C. V. Crawford, 8 Philad. 490; Berry i). C. 10 Bush, 15 ; Lister «. S. 3 Tex. Ap. '17 ; Marnoch «. S. 7 Tex. Ap. 269; Pharr v. S. 7 Tex. Ap. 472 ; Richardson v. S. 7 Tex. Ap. 486 ; S. v. Rogers, ?3 N. C. 523 ; Minton V. C. 79 Ky. 461 ; S. v. Shelton, 64 Iowa, 333; Jones v. S. 26 Tex. Ap. 1, 8 Am. St. 454. And see Monroe v. S. 5 Ga. 85; Pennsylvania v. Robertson, Addison, 246; Fahnestock v. S. 23 Ind. 231, 257; S. V. King, 22 La. An. 454 ; Thompson v. S. 24 Ga. 297 ; Isaacs v. S. 25 Tex. 174; Pound V. S. 43 Ga. 88; Head v. S. 44 Missis. 731 ; Evans v. S. 44 Missis, 762 ; S. V. Bertrand, 3 Or. 61 ; S. v. Conally, 3 Or. 69 ; Stoneman v. C. 25 Grat. 887 ; ante, § 305 (2). ■• Young V. S. 11 Humph. 200. And see S. V, Sloan, 47 Mo. 604 ; P. u. Camp- bell, 30 Cal. 312 ; Reg. v. Hewlett, 1 Fost. & r. 91 ; S. V. Benham, 23 Iowa, 154, 92 Am. D. 417 ; S. v. Burke, 30 Iowa, 331. CHAP. LVI.J DEFENCE OP PERSON AND PROPERTY. § 8"7 circumstances by which he is surrounded, to protect himself from' great bodily harm, as it does to prevent his life being taken. He may excusably use this necessary force to save himself from any felonious assault," — though he should thereby kill the aggressor .1 More minutely, — § 866. Defence of Limb — Chastity. — Grotius — not a common- law authority, but worthy of high respect on such a question ^ — observes : " Since the loss of a limb, especially of a principal one, is very grievous, and nearly equal to the loss of life ; and since moreover it can hardly be known whether it do not bring in its train loss of life, — if it cannot otherwise be avoided, 1 think the author of such danger may be slain. Whether the same be law- ful in defence of chastity can scarcely be doubted, since not only common estimation but the divine law makes chastity of the same value as life." ^ In harmony with this view, the reader perceives, are our common-law authorities ; * and they comprehend and pro- ceed from the double right, to defend one's self from great bodily harm, and to oppose the commission of a felony. § 867. 1. Repelling Battery.' — We have seen^ that by the teach- ings of our books one cannot lawfully kill another who comes merely to beat him, but he may repel the assault by a beating till the aggressor desists.^ Now, — 2. The Great Bodily Harm — to prevent which, it has just been stated," tlie assailant's life may be taken, is in reason not quite •distinguishable from this beating when carried to an extreme. And in form of language it does not in principle appear precisely accurate to say, as most of the cases do, that one may take the life of another to avoid great bodily harm from him. Perhaps the expression may be justified on the ground that it is less likely to mislead a jury than one scientifically- more accurate. But on principle, and more definitely, the doctrine is as follows, — 3. Resisting Attempted Felony — (Mayhem — Sodomy — Rape — Ultimate Danger to Life, &c.). — The resistance of an attempt to 1 S. V. Burke, 30 Iowa, 331. ravish her. P. v. De Los Angeles, 61 Cal. 2 See Bishop First Book, § 138, 572, 188. ■ " Grotins," note. * Ante, § 843 (2), 850. » Grotius de Jure Belli et Pacis, ii. 1, ^ 1 East P. C. 272 ; U. S. v. "Wiltber- 6 & 7, Whewell's ed. i. p. 211. ger, 3 Wash. C. C. 515; Nailor's Case, * Eape. — For instance, a woman may cited Foster, 278. And see Eeg. v. Dris- repel with a deadly weapon an attempt to coll, Car. & M. 214. ' Ante, § 865. 521 § 868 INCIDENTAL RELATIONS AND THINGS. [BOOK VIL commit any felony, such as a mayhem, the crime against nature, or a rape,i upon the person, — or, in the words of a learned court as quoted in a previous section,^ any '■^felonious assault," — comes under the head of perfect defence ; and this resistance may be to the death, without any flying or avoiding of the combat.^ More- over, danger to the life is not necessarily of immediate death, but it may be equally of such an injury as will shorten the earthly existence. And these considerations, it is submitted, should prop- erly be deemed a sufficient extension of the right to take the life of him who does not endanger the life of the person he assails. But this statement of the doctrine, let it be repeated, does not differ greatly in effect from the common form ; as, for example, the difference is not practically broad between danger of great bodily harm and danger of a felonious maim or mayhem. § 868. 1. The Attempt to take away One's Liberty, — while it may be opposed by the imperfect defence, cannot be resisted to the death. Thus, — 2. Unlawful Arrest. — If one, even an officer, undertakes to ar- rest another unlawfully, the latter may resist him. He has no protection from his office, or from the fact that the other is an offender. But the doctrine already stated * that nothing short of an endeavor to destroy life or inflict great bodily harm will justify the taking of life, prevails in this case ; so that if the person thus being unlawfully arrested kills the aggressor in resisting, he commits thereby tlie lower degree of felonious homicide called manslaughter.^ Still, in principle, life and liberty stand substan- tially on one foundation ; life being valueless without liberty. And the reason why a man may not oppose an attempt on his liberty by the same extreme measures permissible in an attempt on his life, appears to-be because liberty can be secured by a resort to the laws. And — 1 1 Gab. Crim. Law, 495 ; 4 Bl. Com. 1 Lewin, 57 ; Reg. v. PKelps, Car. & M. 181 ; Foster, 274 ; 1 Hale P. C. 485. 180 ; Rex v. Withers, 1 East P. C. 295, 2 Ante, § 865 (3). 360 ; C. v. Drew, 4 Mass. 391 ; S. v. Cra- 8 Ante, § 849, 850 (4). ton, 6 Ire. 164 ; Rex v. Curran, 3 Car. & * Ante, § 865-867. p. 397 ; Rex v. Addis, 6 Car. & P. 388; 5 Rex V. Deleany, Jebb, 88 ; Reg. v. Rex w. Davis, 7 Car. & P. 785 ; Rex u. Tooley, 11 Mod. 242; Roberts v. S. 14 Howarth, 1 Moody, 207; Rafferty „. P. Mo. 138, 55 Am. D. 97 ; Rex v. Gordon, 72 111. 37 ; Goodman v. S. 4 Tex. Ap. 349. 1 East P, C. 315, 352; Rex v. Patience, And see Rex w. Dixon, 1 Kast P. C. 313; 7 Car. & P. 775; Rex v. Thompson, 1 S. c. Ramsey, 5 Jones, N. C. 195; Vol. IL Moody, 80 ; Rex v. Gillow, 1 Moody, 85, § 699. 522 CHAP. LVI.J DEFENCE OF PERSON AND PROPERTY. § 869 3. Kidnapping. — Should the case arise of an attempt forcibly to convey a person to a place beyond the reach of the laws, and there confine him perpetually, doubtless he would be justified legally, as in every man's judgment he would be morally, in re- sisting to death. And there would be reason for extending this i-ight of extreme resistance to an attempted kidnapping of the sort ^ which consists simply of taking the victim by force out of the country.^ § 869. 1. Conflict not to be sought. — While a man attacked by another to kill him may stand and kill the assailant as already explained, still it would seem not permissible for him, knowing the other's designs, to seek the conflict.^ Thus we have seen * that one who is threatened must wait for some overt act before resorting to self-defence.^ And after a danger has passed, one is not justified in following up the adversary to take his life.^ The principle plainly is that a conflict for blood should if possible be avoided. Hence the doctrine, already mentioned,'' that, — 2. Retreating to 'Wall. — If a mere fight or an assault not mur- derously meant is followed up till the conflict is for blood, neither party can innocently avail himself of the perfect defence by kill- ing the other until he has' endeavored to extricate himself by " retreating to the wall," as the old phrase is. In the words of Lord Hale : " Regularly it is necessary that the person that kills another in his own defence fly as far as he may to avoid the violence of the assault, before he turn upon his assailant ; for though in cases of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet in cases of as- saults and affrays between subjects under the same law, the law owns not any such point of honor, because the king and his laws are to be the vindiaes injuriarum, apd private persons are not trusted to take capital revenge one of another." » But he goes on to explain, and so do the other old writers, that the assailant's 1 Yo] II § 750. 376 ; Evans v. S. 44 Missis. 762 ; S. v. 2 Creiglitonr,.C.84Ky.l03,108. And Home, 9 Kan. 119; Wortliam ... S. 70 see Williams 1). S. 44 Ala. 41. Ga. 336. 3 And see C. v. Drum, 58 Pa. 9 ; Gil- " S. v. Conally, 3 Or. 69 ; Evans v. S. leland v. S. 44 Tex. 356. 33 Ga. 4 ; S. w. Fitesimmons, 63 Iowa, 656 ; * Ante § 843 (2), 850 (4), 865 (2) ; Luby v. C. 12 Bush, 1 ; Hadley v. S. 58 post, § 872. Ga. 309. See S. v. Maloy, 44 Iowa, 104. s'Dawson v. S. 33 Tex. 491 ; Johnson ' Ante, § 850 (3). Howell, 9 Ire. 485. kills the other in his own defence, he is " 1 Hale P. 0. 482. guilty of murder. I Hawk. P. C. Curw. ' S. V. Davidson, 95 Mo. 155 ; Brown ed. p. 87, § 18, p. 97, § 26 ; Anonymous, V. S. 83 Ala. 33, 3 Am. St. 685 ; Meuly v. J. Kel. 58 ; S. v. Hill, 4 Uev. & Bat. 491, S. 26 Tex. Ap. 274, 8 Am. St. 477; S. u. 34 Am. D, 396. Smith, 10 Nev. 106. Hawkins maintains, 524 CHAP. LVI.] DEFENCE OF PEESON AND PROPERTY. §872 always open. When, therefore, a combatant to abandon the con- flict and not to gain fresh strength or a new advantage withdraws as far as he can, but the other will pursue him, if the taking of life becomes inevitable to save life, he may lawfully kill his pur- suer.i But ^ mere colorable withdrawal avails nothing.^ In one case, a party in a quarrel retreated fifty yards to avoid the con- flict, but the other pursued him with uplifted arm bearing a deadly weapon ; then, being struck by the retreating one with the fist, killed him. It was held to be murder.^ § 872. Overt steps — (Threats — Apprehended Harm). — Let US now return to the proposition that mere threats with no overt act and no imminent danger will not justify a killing.* Not in conflict with this rule, a threatened blow need not be actually given,^ — a branch of the doctrine that an assault may sometimes be met by a battery.^ And as words alone will not justify even an assault,' so no mere apprehension of what another will do, how- ever strong the fears excited, will justify one in taking 'his life.* Again, — 1 Staffer u. S. 15 Ohio St. 47, 86 Am. D. 470 ; S. V. Hill, 4 Dev. & Bat. 491 ; S. V. Ingold, 4 Jones, N. C. 216, 67 Am. D. 283; Terrell «. C. 13 Bush,. 246, 256. Hale says : " Suppose that A by malice makes a sudden assault upon B, who strikes again, and pursuing hard upon A, A retreats to the wall, and in saving his own life kills B, — some have held this to be murder and not se defendendo, because A gave the fir.st assault. But Mr. Dalton thinketh it to be se defen- dendo, though A made the fi*st assault, either with or without malice, and then retreated. ... It seems to me that if A did retreat to tlie wall upon a real intent to save his life, and then merely in his own defence killed B, it is se defendendo, and with this agrees Stamf. P. C. lib. 1, c. 7, f. 15 a. But if, on the other side. A, knowing his advantage of strength or skill or weapon, retreated to the wall merely as a design to protect himself under the shel- ter of the law, as in his own defence, but really intended the killing of B, then it is murder or manslaughter as the circum- stance of the case requires." 1 Hale P. C. 479, 480. 2 Foster, 277 ; Hodges w. S. 15 Ga. 117. 8 S. V. Howell, 9 Ire. 485, 487. " It is true," said Nash, J. "that the deceased struck the first blow, but this does not mitigate the offence of the prisoner. In every stage of the transaction he was the assailant. When he approached the de- ceased, his arm was raised in the attitude to strike, and with a deadly weapon. The law did not require the deceased to wait till the prisoner had executed his threat, but justified him in anticipating the pre- meditated assault." See post, § 872. In another case, the defendant had com- menced the affray, and he asked to have the jury instructed that if on good reason he believed himself to be " in great dan- ger of losing his life, and under that be- lief killed the deceased, he was justified." But this instruction, it was held rightly, was refused. P. v. Stonecifer, 6 Cal. 405. i Ante, § 843 (2), 850 (4), 865 (2), 869 (1); Wall u. S. 18 Tex. 682, 70 Am. D. 302 ; P. V. Butler, 8 Cal. 435. And see S. V. Barfield, 7 Ire. 299. 5 S. V. Baker, 1 Jones, N. C. 267 ; S. u. McDonald, 67 Mo 13. And see Murray V. C. 79 Pa. 311. 6 Vol. II. § 41. ' C. V. Green, 1 Ashm. 289, 297 ; Vol. II. § 40. 8 Dyson v. S. 26 Missis. 362 ; Harrison 525 § 874 INCIDENTAL RELATIONS AND THINGS. [bOOK TII. § 873. 1. Improper Force. — If a force or weapon palpably be- yond the requirements of the occasion is used for defence, even where a reasonable and just force is permissible, the person employing it will commit a felonious homicide should death accidentally result therefrom.^ And — 2. Blow for Provoking Language. — If a man returns provoking language by a blow from an instrument calculated to produce death, which follows, he is guilty of murder.^ Also, — 3. Killing Ghost. — It has been held to be.no excuse for killing a person that he was out at night dressed in white as a ghost; and this would be so even if he could not otherwise be taken ; since " the person who appeared as a ghost was only guilty of a misdemeanor." ^ 4. The Relative Strength — of the parties may be taken into the account on a question of self-defence.* §. 874. 1. Mistake of Fact. — In our exposition of the general doctrine of mistake of fact,^ we saw the rule to be that one who acts upon what to him seem the facts of a case, if he has been duly careful to inquire, and if otherwise he is without mental fault in the acting, has, should he mistake them, the same protec- tion from the criminal law as though they were truly what they appear. And within this rule are those appearances which, if true, would justify a killing or other step in self-defence.^ " A necessity apparently real is real as far as the defendant's conduct is regarded." ' Now, — 2. Reasonableness. — In some of the cases it is said that one to be justifiable in a self-defence must have reasonable cause for his u. S. 24 Ala. 67, 60 Am. T>. 450 ; Dupree Cotton v. S. 4 Tex. 260 ; Brown v. S. 58 V. S. 33 Ala. 380, 73 Am. D. 422 ; S. v. Ga. 212. Shippey, 10 Minn. 223, 88 Am. D. 70. 2 g. „. Merrill, 2 Dev. 269. See Monroe v. S. 5 Ga. 85 ; Pritchett v. S. 3 Rex v. Smith, 1 Russ. Crimes, 3d 22 Ala. 39, 58 Am. D. 250 ; Evers v. P. 6 Eng. ed. 546. Thomp. & C- 156, 3 Hnn, 716; U. S. v. i Hinch v. S. 25 Ga 699; 55. v. Ben- Carr, 1 Woods, 480. And see McGuffie ham, 23 Iowa, 154,92 Am. D. 417. i). S. 17 Ga. 497 ; Keener r. S. 18 Ga. 194, 6 Ante, § 301-310. 63 Am. D. 269 ; Atkins v. S. 16 Ark. 568 ; « Ante, § 305 (2) ; Steinmeyer ». P. 95 Cotton w. S. 31 Missis. 504 ; Lyon v. S. 22 111. 383 ; Meuly v. S. 26 Tex. Ap. 274, 8 Ga. 399 ; Balkam v. S. 40 Ala. 671 ; Aaron Am. St. 477 ; Bang v. S. 60 Missis. 571 ; V. S. 31 Ga. 167 ; S. v. Owen, Phillips, N. C. S. v. Eaton, 75 Mo. 586 ; S. v. Crawford, 425 ; S. V Benham, 23 Iowa, 154, 92 Am. 66 Iowa, 318. D. 417 ; S. w Ferguson, 9 Nev. 1 06. ■' Thornton, J. in P. v. De Witt, 68 Cal. 1 Ante, § 859 (2), 862 ; Gizler o. Witzel, 584, 587 ; Stanley v. C. 86 Ky. 440, 9 Am. 82 111. 322 ; Blake v S. 3 Tex. Ap. 581 ; St. 305. 526 CHAP. LVI.J DEFENCE OP PERSON AND PROPERTY. § 875 mistaken belief of facts or his fear,^ or the circumstances must be such as to excite the fears of a reasonable man,^ or he must hava^ acted in the defence as an ordinarily cautious and courageous mmi would have done.^ This sort of question was somewhat examined in a preceding chapter.* A doctrine like this was formerly by some courts held in the law of false pretences ; namely, that the pretence, to be indictable, riiust be calculated to mislead men of ordinary capacity and prudence ; so that a weak man, defrauded by a misrepresentation which a stronger mind would have de- tected and resisted, had no px'otection. But that doctrine is now exploded.^ The law does not punish an idiot. And it protects a man intellectually strong in the defence of his person even to the death of one mistakenly believed to be an aggressor. It would merit little respect if now it sent to the gallows or prison the weak person whose mind bordered on idiocy, because misled and frightened by a false appearance which the stronger would have comprehended, and doing what' the stronger would rightly have done under the same belief of facts. VI. Summary of the Right to defend One's Property. § 875. Already — the subject of this sub-title has been in a good degree explained.^ In Brief, — a man may defend his property by any force made necessary by the circumstances, such as assault and battery,'' short of taking the aggressor's life.^ But rather than slay him, he must yield and find his protection in the courts.® In like manner, he cannot carry his defence to the disturbance of the public peace, as already explained.^" If the wrongful act is travelling to a felony 1 Creek v. S. 24 Ind. 151, 154; S. v. ' Filkins v. P. 69 N. Y. 101, 106, 25 Collins 32 Iowa, 36 ; Patterson «. P. 46 Am. K. 143 ; Alderson v. Waistell, 1 Car. Barb. 625 ; S. w. Vines, 1 Houst. Crim. & K. 358 ; Hayling w. Okey, 8 Exch. 531 ; 424 ; S. V. Matthews, 78 N. C. 523 ; May Anderson v. S. 6 Bax. 608 ; Souther i;. S. V. S. 6 Tex. Ap. 191 ; Steinmeyer v. 7. 18 Tex. Ap. 352. 95 111 383 ; S, v. Garic, 35 La. An. 970 ; 8 Ante, § 861 ; Roach v. P. 77 111. 25 ; Parker >•. S. 55 Missis 414 ; Kendrick v. S. v. Yancey, 74 N. C. 244 ; S. v. Forsythe, S. 55 Missis. 436. And see S. v. Abarr, 39 89 Mo. 667 ; Bush v. P. 10 Colo. 566 ; S. Iowa 185 "• Thompson, 71 Iowa, 503 ; C. v. Dona- ^ Golden v. S. 25 Ga. 527, 533 ; P. t>. hue, 148 Mass. 529, 12 Am. St. 591. Williams, 32 Cal. 280. » S. v. Brandon, 8 Jones, N. C. 463 ; S. 8 S V Crawford, 66 Iowa, 318. v. Woodward, 1 Houst. Crim. 455; S. - « Ante, § 305 (2) and note. Forsythe, 89 Mo. 667 6 Vol. II. § 433, 434. ^° -A-nte, § 861 (1' » Ante, § 853-861. 527 §877 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. on the property, he may then kill to prevent it unless there is a more peaceful alternative.^ For the defence may be such, and such only, as necessity requires ; of course, within the limit which forbids the taking of life.^ Therefore — § 876. A Felonious Jlomicide — is committed by one who in- flicts death in opposing an unlawful endeavor to carry away his property.3 There is here the right to resist, but not to the taking of life.* VII. The Right to assist Others in Defence of Person and Property. § 877. 1. Ordinarily, — if not always, one may do in another's defence whatever the other might in the circumstances do for him- self.^ To explain, — 2. The Common Case — IS where a father, son, brother, husband, servant, or the like, protects by the stronger arm the feebler. And the riglit to do this is unquestioned.®- But — 3. other Cases. — A guest in a house may defend it ; '^ or the neighbors of the occupant may assemble for its defence.* And 1 Ante, § 849 (3), 861 ; "Weaver v. S. 19 Tex. Ap. 547, 58 Am. R. 389 ; P. v. Flana- gan, 60 Cal. 2, 44 Am. R. 52 ; Marks «. Borum, 1 Bax. 87, 25 Am. R. 764 ; Laws V. S. 26 Tex. Ap. 643. ^ As to this and the entire subject of this paragraph, see also Wild's Case, 2 Lewin, 214; Harrison «. S. 24 Ala. 67, 60 Am. D. 450 ; Rex u. Bourne, 5 Car. & P. 120 ; Halloway's Case, W. Jones, 198, Cro. Car. 131 ; S. v. Zellers, 2 Halst. 220; S. v. Baker, 1 Jones, N. C. 267 ; C. u. Power, 7 Met. 596, 41 Am. D. 465 ; Reg. v. Sulli- van, Car. & M. 209; S. v. Johnson, 12 Ala. 840, 46 Am. D. 283 ; S. v. Clements, 32 Me. 279 ; S. v. Lazarus, 1 Mill, 33 ; McCoy V. S. 3 Eng. 451 ; Copeland v. S. 7 Humph. 479 ; Shorter o. P. 2 Comst. 193, 51 Am. T). 286 ; 1 East P. C. 402. 8 Ante, § 857, 861. See P. u. Honshell, 10 Cal. 83. « P. V. Hubbard, 24 Wend. 369, 35 Am. D. 628; S. i;. Johnson, 12 Ala. 840, 46 Am. D: 283 ; Curtis v. Hubbard, 1 Hill, N. Y. 336, affirmed, 4 Hill, N. Y. 437, 40 Am. D. 292 ; ante, § 857. But see S. v. Buchanan, 17 Vt. 573. In Tex.ia, Lilly 528 V. S. 20 Tex. Ap. 1, 10. And see P. v. Dann, 53 Mich. 490, 51 Am. R. 151; Davison v. P. 90 111. 221 ; S. v. Carlton, 48 Vt. 636. 6 Stanley v. C. 86 Ky. 440, 9 Am. St. 305. " Estep V. C. 86 Ky. 39; Crowdert). S. 8 Lea, 669 ; S. <.-. Greer, 22 W. Va. 800 ; Ashworth u. S. 19 Tex. Ap. 182; U. S. o. Wiltberger, 3 "Wash. C. C. 515; Rex o. Bourne, 5 Car. & P. 120 ; Pond v. P. 8 Mich. 150; S. v. Bullock, 91 N. C. 614; Smurry. S. 105 Ind. 125. And seeStaten V. S. 30 Missis. 619 ; Sharp v. S. 19 Ohio, 379; Patten v. P. 18 Mich. 314, 100 Am. D. 173 ; Parker v. S. 31 Tex. 132 ; Dnpree V. S. 33 Ala. 380, 73 Am. D. 422 ; Reg. v. Harrington, 10 Cox C. C. 370 ; Stoneman V. C. 25 Grat. 887 ; Bristow v. 0. 15 Grat. 634; S. V. Johnson, 75 N. C. 174; Way- bright V. S. 56 Ind. 122; C. v. Malone, 114 Mass. 295. ' Curtis V. Hubbard, 4 Hill, N. Y. 437, 40 Am. D. 292 ; Cooper's Case, Cro. Car. 544. ^ Semayne's Case, 5 Co. 91 ; ante, § 858, note. CHAP. LVI.] DEFENCE OF PERSON AND PROPERTY. § 877 on the whole, though distinctions have been taken and doubts ex- pressed, the better view plainly is that, as just said, one may do for another whatever tlie other may do for himself, — a rule to which if there are any exceptions, they are few.^ Still, — 4. Unlawful Combinations. — Undoubtedly there may be cases in which combinations for defence will be unlawful on other grounds ; as breaches of the peace, or the like.^ 1 1 East p. C. 289, 292, 293 ; Rex v. An. 676 ; S. v. Westfall, 49 Iowa, 328. Adey, 1 Leach, 206, 1 East P. C. 329 ; C. See S. v. Shirley, 64 N. C. 610 ; Jones v. V. Drew, 4 Mass. 391 ; Reg. v. Tooley, 11 S. 20 Tex. Ap. 665 ; Hull v. S. 6 Lea, 249. Mod. 242 ; Succession of Irwin, 12 La. ^ And see Smurr i>. S. 105 Ind. 125. VOL. I.— 34 529 RgO INCIDENTAL RELATIONS AND THINGS. [BOOK VH. CHAPTER LVn. THE DOMESTIC RELATIONS. § 878, 879. Introduction. 880-884 6. Parent and Child. 885. Guardian and Ward. 886. Teacher and Pupil. 887-889. Master and Domestic Servant. 890-891 a. Husband and Wife. Compare — with Bishop Non-Con. Law, § 537-691. § 878. This Chapter — does not contain everything properly within its title, but the expositions appropriate here are largely given under other titles. It rather brings together fragments not found elsewhere, and connects them with general views of the entire subject of the chapter. § 879. 1. A Doctrine Common to aU — the domestic relations is, that they afford no protection for crime, but one doing a criminal thing is punishable equally whether in the relation or out of it. We have seen that marital coercion furnishes a partial exception. 1 And the legal rights which any relation confers are respected in the law of crime the same as in the civil department. 2. How Chapter divided. — We shall consider, I. Parent and Child ; II. Guardian and Ward ; III. Teacher and Pupil ; IV. Master and Domestic Servant ; V. Husband and Wife. I. Parent and Child. § 880. 1. GeneraL — Our law, especially in modern times, gives no countenance to the idea which once prevailed in some systems of jurisprudence that the parent is a sort of owner of the child, who exists chiefly for his profit. On the contrary, it looks always to the sunrise ; regarding the child as the man of the future, while the parent is passing away in the west. And ^ Ante, § 356 et seq. 530 CHAP. LVII.] DOMESTIC RELATIONS. § 881 it accords parental control and custody on the theory of the child's good, rather than the parent's.^ So that — 2. Authority and Chastisement. — To enable parents to rear their children for happiness and usefulness, " the law," says Kent, while compelling maintenance, " has given them a right to such authority, and in support of that authority a right to the exercise of such discipline, as may be requisite for the discharge of their sacred trust." ^ The little one is placed, helpless and untaught, in the parental hands. The helplessness is alike physical, men- tal, and moral. Parental discipline, rightly understood, is to assist the strivings and aspirations of the child's better nature. And the child, needing this assistance, is therefore entitled to it. 3. How much — Parental Right limited. — The question of what help of this sort shall be given is better left to the parent than to any other person ; because parental affection prompts more strongly than any other to a merciful judgment. But as parents are sometimes unmerciful, the law itself casts over the child such protection as it can,^ and visits them with punishment for any flagrant abuse of their trust. Consequently, — § 881. 1. Extent of Chastisement. — The doctrine, as com- monly expressed in general terms, is that the parent may inflict moderate chastisement,* or such as is reasonable under the cir- cumstances.^ The North Carolina Court, puts it somewhat differ- ently ; namely, that so long as the parent acts in good faith and without malice, the criminal law will not interfere with him however severe or unmerited the punishment, unless it produces permanent injury, — the idea being that the question of chastise- ment and its severity is for the domestic forum, " which," in the words of Smith, C. J., " the penal law is reluctant to enter unless induced by an imperious necessity." ^ And — 2. Assault and Battery — Felonious Homicide. — The parent who goes beyond this in chastisement is indictable for assault and battery ;'^ or if the child dies, for a felonious homicide.^ Still, — 1 2 Bishop Mar. Div. & S. § U.'il, 1160, « S. v. Jones, 95 N. C. 588, 593, 59 Am. 1161 1193. ^- 282. Compare with S. v. Dickerson, •^ 2 Kent Com. 203. 98 N. C. 708. 8 Faulk V. Faulk, 23 Tex. 653 ; Neal v. ' Vol. II. § 38, 72 6 (3) ; 3 Greenl. Ev. S. 54 Ga. 281 ; C. v. Coffey, 121 Mass. 66. § 63 ; S. v. Bitman, 13 Iowa, 485. « 2 Kent Com. 204 ; 1 Rnss. Crimes, 3d » Vol. II. § 656, 663, 683-685, 690 ; Ene. ed. 645. Grey's Case, J. Kel. 64 ; Rex v. Cheese- 6 1 Hawk. P. C. 6th ed. c. 60, § 23, man, 7 Car. & P. 455; Anonymous, 1 Bac. Abr. Assault and Battery, C. East P. C. 261 ; Rex v. Hazel, 1 Leach, 531 § 882 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. § 882. 1. Parental Judgment and Good Faith. — The law has provided no means whereby a parent, meditating chastisement, can first obtain a judicial opinion as to its necessity, the proper instruments, and its permissible extent. In reason, therefore, if he acts in good faith, prompted by true parental love, without passion, and inflicts no permanent injury on the child, he should not be punished merely because a jury reviewing the case dis- sents from his judgment therein. And thus we are brought nearly in accord with the North Carolina doctrine just stated.' " A very large margin," said McCay, J., in the Georgia Court, " must be left to the judgment of the parent." ^ So, in a civil cause between master mariner and seaman. Ware, J., observed : "When it is apparent that punishment has been merited, I have never been in the habit of attempting to adjust very accurately the balance between the magnitude of the fault and the quantum of punishment. Unless unusual or unlawful instruments have been used, or there have appeared clear and unequivocal marks of passion on the part of the captain, or the punishment has been manifestly excessive and disproportionate to the fault, I have not thought myself justified in giving damages." ^ But the whipping of a child with an obviously improper instrument — as, for ex- ample, a saw twenty-two inches long and three fourths of an inch wide — is in no ordinary case justifiable.*. On the other side, — 2. Too much limited. — We have cases which seem more to limit the parental right than as just stated. Partly of this sort, it has been deemed that the question whether or not the pun- ishment was excessive is for the jury, not the court, leaving out of view the honest parental judgment on the question.^ And more directly, in the case of a teacher standing in loco pa- rentis, it seems to have been deemed that the consideration of good faith or of the absence of passion, was not of primary im- portance ; but the jury was simply to determine whether or not under all the facts the punishment was reasonable and proper.^ 368, 1 East p. C. 236; Rex v. Conner, 7 * Neal ». S. supra. See C. v. Coffey, Car. & P. 438. 121 Mass. 66; Stanfield b. S. 43 Tex. 1 Ante, § 881 (1); S. v. Alford, 68 167. N- C- 322. 6 Johnson u. S. 2 Humph. 283, 36 Am. 2 Neal V. S. 54 Ga. 281, 282. D. 322 ; C. «. Eandall, 4 Gray, 36 (a case ' Butler w.McLeUan.l Ware, 21 9, 230. of teacher and pupil); Stanfield v. S. The like in C. v. Seed, 5 Pa. Law J. Rep. supra. ^®' 1 ' C. t/. Randall, supra. Improper 532 CHAP. LVII.] DOMESTIC RELATIONS. §883 3. In Principle, — the just doctrine would seem to consist of a sort of compromise between the differing views thus stated ; as, that the parental judgment, if honest and without passion or malice, should be taken as prima facie establishing the right, and should be overcome only by evidence of passion, of malice, of the use of an improper weapon, or of such excessive severity of pun- ishment as implies the absence of true parental love, or of a due appreciation of parental duty.^ § 888. Criminal Neglect. — Another branch of this general doc- trine is that if a parent under legal obligation ^ to maintain his child refuses or neglects to furnish it with needful food or cloth- ing,'^ and by reason thereof it either dies or suffers a less physical injury, — or, in like manner and with like results, exposes it to the physical elements, or imprisons or abandons it, — the law visits the act or neglect as a crime, constituting either an assault and battery or a felonious homicide.* In these cases, unlike those of chastisement for faults, there is no right in the parent Correction in Homicide. — Not contra- dictory to the North Carolina doctrine already stated, the same court deemed the homicide to be murder, not man- slaughter, where a man in loco parentis to a boy eighteen years old punished him for lying, by keeping him naked on his back, with his feet tied up, from morning to dinner every day for a week, and re- peatedly whipped him each day while in that position, the first day severely, the instruments used being a heavy leather strap, a knotted cord four double, and an iron ramrod, together resulting in his death. It showed " a heart totally re- gardless of social duty and fatally bent on mischief." S. w. Harris, 63 N. C. 1. See Vol. II. § 663, 683-685. Excessive Im- prisonment, &e. — One kept his blind and helpless boy in a. cold and damp cellar, without fire, during several days in midwinter, alleging that the boy was covered with vermin, and had to be anointed with kerosene. And this was held to be no defence to an indictment for false imprisonment. Fletcher v. P. 52 111. 395. ControUing Consoienoe of ChUd. — See, as to forcing the child out of church, &c., C. o, Sigman, 2 Pa. Law Jour. Rep. 36. 1 And compare with Bishop Non-Con. Law, § 596; Vanvactor v. S. 113 Ind. 276, 3 Am. St. 645. 2 Vol. II. § 659 et seq. ; 2 Bishop Mar. Div. & S. § 1154-1158; Stovall v. John- son, 17 Ala. 14; Hines v. MuUins, 25 Ga. 696; Tompkins i/. Tompkins, 3 C. E. Green, 303; Myers o. Myers, 2 McCord Eq. 214, 16 Am. D. 648. » Ante, § 557 ; Keg. v. Troy, 1 Crawf. & Dix C. C. 556 ; Reg v. Waters, Temp. & M. 57, 1 Den. C. C. 356, 13 Jur. 130, 18 Law J. N. 8. M. C. 53 ; Reg. v. Phillpot, Dears. 179, 20 Eng. L. &Eq. 591 ; Rex v. Saunders, 7 Car. & P. 277. * Gibson's Case, 2 Broun, 366 ; Beal's Case, 1 Leon. 327 ; Reg. v. Pelham, 8 Q. B. 959, 15 Law J. n. b. M. C. 105, 10 Jur. 659 ; Rex v. Ridley, 1 Russ. Crimes, 3d Eng. ed. 752, 2 Camp. 650, 653 ; Rex V. Squire, 1 Russ. Crimes, 3d Eng. ed. 490; Reg. V. Rensbaw, 2 Cox C. C. 285, U Jur. 615, 20 Eng. L. & Eq. 593 ; Reg. v. Morris, 2 Crawf. & Dix C. C. 91 ; Reg. v. Hogan, 2 Den. C. C. 277, 15 Jur. 805, 20 Law J. N. s. M. C. 219, 5 Eng. L. & Eq. 553; Reg. v. Mulroy, 3 Crawf. & Dix C. C. 318; Reg. v. Chandler, Dears. 453, 24 Law J. N. 8. M. C. 109, 1 Jur. n. s. 429, 29 Eng. L. & Eq. 551. 533 § 885 INCIDENTAL RELATIONS AND THINGS. [BOOK Til. to proceed in a moderate way, and no justification of the act from the ill conduct of the child. The doctrines on this subject are developed in various other places in these volumes and in " Crim- inal Procedure." But, to illustrate, — § 884. 1. Abandonment an Assault. — It was in one case ruled that the indictment for abandoning a child should aver an as- sault.i Yet this seems not to be universally required. ^ 2. Ability. — Where the fault charged is lack of sustenance, the parent's ability to supply it must be shown.^ And — 3. Injury. — In some of these cases, the child must have suf- fered an injury.* Again, — 4. To charge Parish. — An indictment for leaving a child in the highway to burden the parish with its maintenance must negative its settlement therein, or aver an injury to the child.* 6. statutes — (" Abandonment"). — There are statutes making it indictable to " abandon or expose " a child,^ and the like.'' § 884 a. 1. The Command of the Parent — does not justify the child in doing a criminal thing.^ Also — 2. Protect. — The parent may not protect his child in a crime.^ ' § 884 h. Enticing away ChUd. — It is familiar in civil jurispru- .dence that one who entices a child from his father's service is liable for the damages.i" Yet in the absence of a statutory pro- vision, he is not indictable." II. Cruardian and Ward. § 885. 1. Chastisement without Custody. — Not every guardian has the custody of the ward. And no reason appears why one without it should have the right to chastise him. But — iReg. V. Mulroy, 3 Crawf. & Dix « Reg. w. White, Law Eep. I C. C. 311, ^^\ri\~,^.. r.- ^ 12 Cox C.C. 83; Shannon «. P. 5 Mich. 71. Vol. II. § 29; Cnm. Pro. II. § 538, ? Cowley v. P. 21 Hiin, 415. i'v „,, „^„ * Ante, § 3.55(1); S. o. Herdina, 25 Reg V Pelham, 8 Q. B. 959 ; Reg. v. Minn. 161, 162 ; McDaniel v. S. 5 Tex. Hogan, 2 Den. C. C. 277, 5 Eng. L. & Eq. Ap. 475 ff ^ ^!f ■ ''a ^^^^°'^' ^^"^ ^^P- 1 C- ^- »^' ' S. V. Herdina, supra. 10 Cox C. C. 569 ; Reg. v. Rugg, 12 Cox lo Bishop Non-Con. Law, § 374; But- ' ' 4 Vnl' TT s OQ 13 T. lu ^^'^^^^^ "■ Ashley, 6 Cash. 249; Sargent TJ i^,;^ ^ ^^■"•'^^'''^™''"P''^' "• Mathewson, 38 N. H. 54; Evans v. Reg « PhiHpot, Dears. 179, 20 Eng. L. & Walton, Law Rep. 2 C. P. 615; Bundy Eq. 591 ; B. c. nom. Reg. v. Philpott, 6 Cox v. Dodson, 28 Ind. 295 ; Jones v! Tevis, 4 ^■?-^*°- ^ ^ Lit. 25, 14 Am. D. 98. r n"?: ^;P°T'' * ^^°- °- °- *^^' 3 " S. V. Rice, 76 N. C. 194. Cox C. C. 559, 2 Car. & K. 876. 534 CHAP. LVII.J DOMESTIC RELATIONS. § 886 2. With Custody. — Some haye the custody,^ — a sort of ques- tion upon which the statutes of our States differ. Such a guar- dian stands in loco parentis to the child,^ and hp may exercise the paternal power of chastisement.^ 3. Domicii. — The guardian with custody may eyen change the child's domicii;* as to which, however, the courts will hold him under some restraint.^ III. Teacher and Pupil. § 886. 1. In Another Work — is an exposition of this subject, which may be helpfully consulted in connection with the present sub-title.^ 2. Assault and Battery, — of the indictable kind, may be com- mitted by the teacher on a pupil.'' In some circumstances, his relation to the pupil will justify him ; as in — 3. Chastisement. — The books commonly assume that the teacher has the same right to chastise the pupil as the parent the child.^ He certainly has no greater right, even though acting under ex- press permission from the parent ; for the latter cannot delegate a power which he does not himself possess.^ Nor, it is plain, can the teacher of a mere day scholar, living with the parent, usurp the parental function of chastising for faults committed at home. But within the proper jurisdiction of the teacher, he may exact a compliance with all reasonable commands ; and in return for any specific offence, not in the way of general castigation,^" visit dis- obedience with kind and reasonable corporal puuishment.^i It should not be excessive and cruel, it should be proportioned to the gravity of the offence, and always within the bounds of 1 Eex V. Isley, 5 A. & E. 441 ; Bounell 6 Bx parte Martin, 2 Hill Cli. 71 ; V. Berryhill, 2 Ind. 613 ; Coltman v. HaU, Trammell v. Trammell, 20 Tex. 406. 31 Me. 196 ; Tenbrook v. McColm, 7 Halst. « Bishop Non-Con. Law, § 592-597. 97 ; In re Van Houten, 2 Green, Ch. 221 ; ' Boyd v. S. 88 Ala. 169, 16 Am. St. Woodworthw. Spring, 4 Allen, 321 ; Ward 31 ; S. v. Vanderbilt, 116 Ind. 11, 9 Am. v. Roper, 7 Humph. 111. St. 820. 2 In re Andrews, Law Eep. 8 Q. B. « 1 Hawk. P. C. 6th ed. c. 60, § 23; 153. Bac. Abr. Assault and Battery, C ; Pulton 8 Stanfield v. S. 43 Tex. 167. See also de Pace, 6 b. Pulton de Pace, 7 h; Eex v. Cheeseman, » Eeg. v. Hopley, 2 Fost. & P. 202. 7 Car. & P. 455 ; Armstrong v. Walkup, i" S. v. Mizner, 50 Iowa, 145, 32 Am. E. 12 Grat. 608. ' 128. * Townsend v. Kendall, 4 Minn. 412, " Danenhoffer v. S. 69 Ind. 295, 35 Am. 77 Am. D. 534; Ex parte Bartlett, 4 E. 216. Bradf. 221. 535 § 887 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. moderation.! But plainly the teacher's calm and honest judg- ment as to what is required should have weight, as in the case of the parent.^ And where no improper weapon has been em- ployed,^ the presumption, until the contrary appears in the proofs, will be that what was done was done rightly.* On the whole, and for reasons apparent to the reader, the extent of the teach- er's power will vary in some degree with what in the relation is special to the particular instance, and it will seldom quite equal the parental right. Yet on this question we have little direct authority.^ 4. Pupil of Age. — An adult attending a school places himself by implication under its discipline. Thereon it has been adjudged that the power of reasonable chastisement extends to the teacher.^ IV. Master and Domestic Servant. § 887. 1. Servants are of Different Kinds, — sustaining differ- ent relations to the master or employer. Some are simply agents.' And there are differences in domestic service. 2. Chastisement. — The older English books state in general terms that the master has the right of chastisement,* — not always nicely distinguishing between the different kinds of servant.* Plainly in our country and probably in England, the true rule gives the right only to the masters of apprentices and other mi- nors to whom they stand in loco parentis. In these cases, the right does exist; yet more fully, though doubtless not exclusively, where the minor is domesticated in the household.^" The relation 1 Boyd t. S. 88 Ala. 169, 16 Am. St. Bac. AbrJ tit. Assault and Battery, C; 31 ; Anderson v. S. 3 Head, 455, 75 Am. Kex v. Wiggs, 1 Leach, 378, 379, note. ■'-*■ ''*• ' Eex V. Wiggs, supra. 2 Ante, § 882 ; Vanvactor t). S. 1 13 Ind. lo 2 Kent Com. 261 ; Pulton de Pace, 276, 3 Am. St. 645 ; C. v. Seed, 5 Pa. Law 6 b ; Burn Just. tit. Servants, xxvi. ; Eeg. J. Rep. 78. V, Miles, 6 Jur. 243. In Burn's Justice ' Ante, § 882 (1). by Chitty, vol. i. p. 182, 28th ed. it is » S- V. Mizner, supra ; Vanvactor v. S. said : " The master has more authority ^"P™- over an apprentice than over a common See C. V. Randall, 4 Gray, 36 ; Ander- servant, for he may legally correct his son V. S. 3 Head, 455, and the cases gen- apprentice for negligence or other mis- erally cited to this section. behavior, provided it be done with mod- » S.f. Mizner, 45 Iowa, 248, 24 Am. R. eratiou; whereas, if the master or his wife beat any other servant, it is a good ^ Vol. II. § 332-338; Stat. Crimes, cause for departure and action. But in § 271 ; Bishop Non-Con. Law, § 692. case of gross misconduct, it is better for 1 Hawk. P. C. 6th ed. c. 60, § 23 ; the master to apply to a justice of the 536 CHAP. LVII.] DOMESTIC RELATIONS. § 889 of master and apprentice is for the instruction of the child, and there may be an analogy between it and teacher and pupil. But — 3. Hired of Father. — One who has simply hired a minor from the father is not, therefore, put in loco parentis, with the right of chastisement, where no parental consent thereto has been given.^ And — 4. Battery of Apprentice. — A master who beats his apprentice immoderately is indictable for the battery .^ It was lately said not to be settled " exactly what measure of corporal punish- ment " is permissible in this case, but it must not be " cruel and merciless." ^ § 888. Neglects. — The liability stated under Parent and Child * is incurred by the master who inflicts on an infant servant or ap- prentice for whom he is under the legal duty to provide, an injury by a neglect of such duty.^ And it is the same with other doc- trines there laid down with this one.^ Sometimes, to create thus a crime in the master, the infant must be of tender years.^ § 889. Master for Servant's Acts. — The master is criminally answerable for the acts of his servants only when done by his command or with his consent.^ But this doctrine, which is not special to domestic servants,^ is with its limitations more particu- larly explained in other connections.^" peace or the sessions, to discharge or ' S. v. Dickerson, 98 N. C. 708, 7U. punish the apprentice, than to take the * Ante, § 883. law into his own hands. The master can- ^ Rex v. Friend, Russ. & Ry. 20 ; Reg. not delegate this authority to another." v. Gould, 1 Salk. 381 ; Rex v. Ridley, 2 So Kent says : " The master may correct Camp. 650 ; Reg. v. Smith, 8 Car. & P. his apprentice, with moderation, for neg- 153; Reg. v. Edwards, 8 Car. & P. 611. ligence or misbehavior." 2 Kent Com. See Rex v. Gierke, 2 Show. 193. 264. And see Rex v. Self, 1 Leach, 137, « See also Rex ./. Meredith, Russ. & 1 East P. C. 226 ; Gates v. Lounsbury, 20 Ry. 46 ; Rex u. Booth, Russ. & Ry. 47, Johns. 427; P. i>. Phillips, 1 Wheeler, note; Rex v. Warren, Russ. & Ry. 47, Crim. Cas. 155 ; Matthews v. Terry, 10 note ; Hays v. Bryant, 1 H. Bl. 253 ; Rex Conn. 455, 458 ; C. u. Baird, 1 Ashm. 267 ; v. Wiggs, 1 Leach, 378, note ; Rex v. C. V. Conrow, 2 Pa. St. 402 ; In re Am- Smith, 2 Car. & P. 449 ; Orton u. S. 4 brose, Phillips, N. C. 91 ; S. v. Dickerson, Greene, Iowa, 140. 98 N. C. 708. ' Reg. v. S. 5 Cox C. C. 279. 1 Cooper V. S. 8 Bax. 324, 35 Am. R. ' Sloan v. S. 8 Ind. 312; Forrester v. 704 ; Davis «. S. 6 Tex. Ap. 133 ; Mat- S. 63 Ga. 349. thews V. Terry, 10 Conn. 455. And see ' S. v. Smith, 10 R. L 258; Roberts v. C. V. Baird, 1 Ashm. 267. Preston, 9 C. B. N. s. 208. 2 Rex V. Keller, 2 Show. 289. " Ante, § 316-319 ; post, § 892. 537 § 891 a INCIDENTAL RELATIONS AND THINGS. [BOOK VII. V. Husband and Wife. § 890. 1. Coverture, — as creating a presumed coercion of the wife, has been considered in a chapter by itself.^ 2. other Questions — are explained in other connections in this volume and the second. Still there remains something for this chapter. § 891. 1. Imprisonment and Chastisement. — In " Marriage, Di- vorce, and Separation," it is stated what authority the husband has to whip or imprison his wife.^ It there appears that a former supposed right of chastisement is entirely abandoned, and the power to imprison is nearly or fully so ; while yet, in special cir- cumstances,^ the husband may exercise over the wife a physical restraint not precisely defined.* And — 2. Self-defence. — The husband may defend himself against an assault by his wife.* On the other hand, — S. Assault and Battery. — By unlawfully beating her, he com- mits criminal assault and battery.^ Provocation from her may be shown in mitigation of his punishment.'' Among the provoca- tions is undue intimacy with another man.^ § 891 a. Husband for Wife's Crimes — (^Liquor-selling). — A hus- band is not to the same extent answerable for the wife's criminal wrongs ^ as for her civil torts.^" For what she does in his absence and without his knowledge or consent he is not in general crimi- nally liable.ii But the rule that one's mere presence does not make him guilty of a crime committed by another without the concur- rence of his will '2 does not apply to a husband in respect of his wife's criminal conduct. Though he may not whip her,!^ he must restrain her from violating the laws. And if, for example, she with his knowledge and in his presence makes a sale of intoxi- 1 Ante, § 356 et seq. v. Buckley, 2 Harring. Del. 552 ; S. v. 2 1 Bishop Mar. Div. & S. § 1619-1625. Mabrey, 64 N. C. 592; Memmler v. S. 75 » Post, § 891 a. Ga. 576. See also Reg. v. Bundle, Dears. « And see Reg. v. Jackson, 1891, 1 482, 24 Law J. N. s. M. C. 129, 1 Jur. N. S. Q; B. 671 ; Howard v. S. 34 Ark. 433 ; 430, 29 Eng. L. & Eq. 555. S. a. Oliver, 70 N. C. 60 ; Fulgham v. S. ' Bobbins v. S. 20 Ala. 36. 46 Ala. 143 ; C. v. McAfee, 108 Mass. 8 Qreta v. S. 10 Tex. Ap. 36. 458, 11 Am. R. 383 ; S. v. Craton, 6 Ire. « Stat. Crimes, § 1025. 164; Adams v. Adams, 100 Mass. 365, 1 M 2 Bishop Mar. Women, § 254. Am. R. Ill ; Taylor, v. Taylor, 76 N. C. n S. v. Baker, 71 Mo. 475. 433. 12 Ante, §633 (1). 5 Leonard v. S. 27 Tex. Ap. 186. 18 Ante, § 891 (1). ' Bradley v. S. Walk. Missis. 156; S. 538 CHAP. LVII.] ^ DOMESTIC RELATIONS. § 891 a eating liquor contrary to a statute, and he does not interfere, he is punishable for the sale.^ More than this, a husband must regu- late his own household ; and if the wife, contrary to his wishes and remonstrance, persists in selling 'liquor in the house in vio- lation of law, he is even liable criminally for sales made by her in his absence. Nor is it different though she owns the premises as her separate estate, and the sales are for her sole benefit.^ 1 Hensly u. S. 52 Ala. 10. 119 Mass. 211; C. v. Pratt, 126 Mass. 2 S. V. McDaniel, 1 Houst. Crim. 506 ; 462 ; S. v. CoVaj, 55 N. H. 72 ; S. v. Eob- C. V. Barry, 115 Mass. 146; C. v. Carroll, erts, 55 N. H. 483. 124 Mass. 30. And see C. v. Kennedy, 639 S 892 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. CHAPTER LVIII. PERSONAL RELATIONS OTHER THAN DOMESTIC. § 892. 1. Elsewhere. — Like the domestic relations, those within the present title are in these volumes treated of in con- nection with other topics. Yet something may be useful here. Principal and Agent,~ineluding Master and Servant other than Domestic : — 2. Agent's Liability. — An agent or servant who, knowing the facts,! does a criminal thing for his principal or master, is an- swerable to the criminal law precisely as though he had pro- ceeded self-moved, and for his own personal benefit.^ And it is the same when with the like knowledge he merely assists therein.^ Again, — 3. One acting through Agent. — The rule of civil jurisprudence, that the act of an agent brings the same liability to the principal as his own act, prevails equally, yet under slightly different modi- fications, in the criminal law.* One employing another to com- mit a felony in his absence does not thereby become a principal felon, but he is an accessory before the fact.^ In other crimes he and the agent are equally principal offenders.® An agent for civil purposes cannot by an unauthorized doing charge his prin- cipal with a breach of the criminal law.^ But for what he does under authority the principal is criminally answerable.^ And if 1 Ante, § 310; Taylor v. S. 5 Tex. Ap. ■• Ante, § 218-221, 316 (3), 317, 631 ; 529. Clay V. P. 86 111. 147 ; Hobbs v. Young, 3 2 Ante,! 355 (1). 658 (2) ; S. v. Martin, Mod. 313, 316, Holt, 66. 31 La. An. 849 ;»S. v. Jackson, 2 Barring. ' Ante, § 651, 673; S. v. Wyckoff, 2 Del. 542 ; Cutainger v. C. 7 Bush, 392 ; Vroom, 65. Murphy v. S. 6 Tex. Ap. 420, 421 ; S. w. « Ante, § 682, 685-687. Mercer, 32 Iowa, 405 ; C. u. Sinclair, 138 ' Ante, § 219, 317 (2) ; S. v. Mahoney, Mass. 493. And see Gibson v. Kauffield, 23 Minn. 181 ; Lathrope v. S. 51 Ind. 192 ; 63 Pa. 168; NaU w. S. 34 Ala. 262; Rob- Goods v. S. 3 Greene, Iowa, 566; S. «. erts V. S. 7 Coldw. 359 ; TardifE v. S. 23 James, 63 Mo. 570; Thompson v. S. 45 Tex. 169; S. v. Stucker, 33 Iowa, 395. Ind. 495; Anderson v. S. 39 Ind. 553; 8 Anderson v. S. 8 Tex. Ap. 542, 544 ; Hanson v. S. 43 Ind. 550 ; O'Leary v. S. Taylor v. S. supra ; Hannon v. S. 5 Tex. 44 Ind. 91 ; Pelton v. U. S. 96 U. S. 699. Ap. 549, 550 ; U. S. V. Rossvally, 3 Ben. 8 McCutcheon v. P. 69 111. 601 ; Tor- 157. rester v. S. 63 Ga. 349. 540 CHAP. LVIII.] OTHER THAN DOMESTIC. § 894 the business itself involves a violation of law, the authorization of an agent to conduct it will bring guilt to the principal whenever the thing done therein is a crime.^ § 893. Freedmen : — 1. During Slavery, — offences by slaves were generally punish- able under special codes. After its abolition, it was a question upon which opinions were divided whether the freedman should be prosecuted for a crime committed while a slave, under this special law, under the general law, or under neither.^ 2. After Emancipation, — the subsequent Crimes of negroes be- came punishable under the laws applicable to freemen.^ §894. 1. Recognizance by Master. — A master entered into a recognizance for his . slave's appearance in court ; before the appearance-day, the slave was emancipated ; lastly, he delivered him to the sheriff, and federal soldiers rescued him. The liability on the bail-bond was held to be, on both grounds, discharged.* 2. The Legitimacy of Children — after emancipa,tion is explained by the author in another work.^ It was held by the majority of a divided court that where a slave father has a slave child by a slave mother, and they are made free by a constitutional amend- ment, the father cannot be compelled to support the child as a bastard.^ 3. Rights of Freedmen. — Under constitutional and statutory l?bws for securing to freedmen equality with free whites, various questions have arisen, not for this connection.'^ 1 S. V. Wentworth, 65 Me. 234 ; Moli- 39 Ala. 693 ; Witherby v. S. 39 Ala. 702 ; han V. S. 30 Ind. 266 ; Anderson v. S. 22 Ferdinand v. S. 39 Ala. 706, And see Ohio St. 305; S. o. Reiley, 75 Mo. 521. Burns v. S. 48 Ala. 195, 17 Am. K. 34; See S. V. Berhman, Riley, 92, 3 Hill, S. C. Boyd v. S. 7 Coldw. 69. 90; Reg. v. Holbrook, 3 Q. B. D. 60, 4 * Lewis v. S. 41 Missis. 686. Q. B. D. 42 ; Barnett v. S. 54 Ala. 579 ; « 1 Bishop Mar. Dir. & S. § 670-678. Stevens v. P. 67 111. 587 ; Mullinix v. P. « Lewis v. C. 3 Bush, 539. And see 76 111. 211 ; Miller v. New York, 5 Thomp. White v. Ross, 40 Ga. 339. & C. 219, 3 Hun, 35 ; Second National • The following are among the cases Bank d. Curren, 36 Iowa, 555 ; Gathings which may be consulted under this head : V. S. 44 Missis. 343. U. S. v. Rhodes, 1 Abb. U. S. 28; U. S. v. " Gibson v. S. 35 Ga. 224 ; Burt v. S. Crnikshank, 1 Woods, 308 ; Ellis v. S. 42 39 Ala. 617; Nelson v. S. 39 Ala. 667; Ala. 525; Murrell v. S. 44 Ala. 367; George v. S. 39 Ala. 675 ; Peters v. S. 39 Burns v. S. 48 Ala. 195, 17 Am. R. 34 ; Ala. 68} ; Aaron v. S. 39 Ala. 684 ; Keith Gaines v. S. 39 Tex. 606 ; Donnell v. S. V. S. 5 Coldw. 35 ; Wharton v. S. 5 Coldw. 48 Missis. 661 ; Louas v. S. 3 Heisk. 287 ; 1, 94 Am. D. 214 ; Brown v. S. 35 Ga. 232 ; S. v. Gibson, 36 Ind. 389, 10 Am. R. 42. S. V. Brodnax, Phillips, N. C. 41. Other cases are cited under the sereral * Tempe 1-. S. 40 Ala. 350; Eliza a. S. minuter titles, particulai-ly in Stat. Crimes. 541 § 896 INCIDENTAL EELATIONS AND THINGS. [BOOK VII. § 895. Legal Practitioners : — 1. Capable of Crime. — A lawyer is not exempt from criminal responsibility.! He may even commit treason by an act in his profession.^ So, if he advises the friends of one accused of felony to persuade the witnesses to be absent from the hearing, which is done, he and they commit misdemeanor ; or, in the words of Coke, it is " a great contempt and misprision for which they might be fined and imprisoned." ^ And " if a client and his attorney enter into a conspiracy to resist an officer in performing his duty, both are equally guilty." * Likewise, under a statute making punishable " an attempt to employ as true " a forged writing, with knowledge of the forgery, it was held that a law- yer commits the offence who with such knowledge brings a suit upon it, intending a fraud.* Moreover, — 2. Contempt of Court — may be committed by an attorney.® 3. Privileged Communications. — Though communications be- tween counsel and client are generally privileged, a lawyer from whom one seeks advice as to how, he shall commit a crime is compellable to state as a witness what the client says.^ So, — 4. Disbarring. — An attorney is an officer of the court. He maybe suspended or disbarred for misconduct toward, the court or the client.* And otherwise he is liable to summary process in respect of his duties.^ § 896. Physician and Patient : — Elsewhere. — The doctrines governing this relation are suffi- ciently stated in other parts of these volumes.^" 1 Walker v. C. 8 Bush, 86 ; Ex parte Cox C. C. 611 ; P. v. Blakeley, 4 Par. Cr. Wall, 107 U. S. 265 ; In re McCarthy, 42 176. ~ Mich. 71 ; P. w. Treadwell, 69 Cal. 226. 8 Vol. II. § 255, note, 270; Ex parte 2 Coke's Case, J. Kel. 12, 23. Wall, 107 U. S. 265 ; In re McCarthy, 42 " Robert's Case, 3 Inst. 139; 1 Hale Mich. 71; In re WooUey, 11 Bush, 95; ^•p-^2!- S. V. Tunstall, 51 Tex. 81; Ex parte Caldwell, J. in U. S. u. Smith, 1 Dil. Trippe, 66 Ind. 531 ; Kane v. Haywood,- 2'2; 66 N. C. 1 ; In re Browne, 2 Colo. 553 ; " Chahoon v. C. 20 Grat. 733. Kepler v. Klingensmith, 50 Ind. 434 ; In " Vol. II. § 253, 255, and note, 270 ; re Baluss, 28 Mich. 507 ; In re , Ex parte Smith, 28 Ind. 47 ; Anonymous, 1 Hun, 321 ; Ex parte Walls, 64 Ind. 461 ; 1 Stra. 384 ; Daw I^ Eley, Law Rep. 7 Walker v. C. 8 Bush, 86. Eq. 49 ; P. v. Palmer, 61 111. 255 ; In re 9 Ex parte Edwards, 7 Q. B. D. 155 ; Rea, 14 Cox C. C. 139 ; Slater v. Merritt, In re Browne, supra. See S. v. McLane, 75 N. Y. 268; Ingle v. S. 8 Blackf. 574; 43 Tex. 404; Hawkins v. Smith, 56 Ga. Wells I). C. 21 Grat. 500. 571. ' Reg. V. Cox, 14 Q. B. D. 153, 15 i" Ante, § 217 (1), ^14 (3), 558 (1); Vol. II. § 36, 664, 685, 693. 542 CHAP. LIX.J PAEDON. § 898 CHAPTER LIX. PARDON. § 897. Introduction. 898-908. General Doctrine of Pardon. 909-913. To what it may Extend. 914-920. Partial or Full and Effect of Each. 921-926. Practically of Granting Pardon. 926 a. Doctrine of Chapter restated. Compare, — as to pleading the pardon, with Crim. Pro. I. § 832-848 ; Dir. & F. § 104.5. § 897, How Chapter divided. — We shall consider, I. The Gen- eral Doctrine of Pardon ; II. To what the Pardon may extend ; III. The Pardon as Partial or Pull and the Effect of each; IV. Pi-actically of Granting Pardon. I. The Creneral Doctrine of Pardon, § 898. 1. Simple. — The subject of this chapter is in England complicated, but in this country it is reasonably simple. 2. Defined. — A pardon is a remission of guilt.^ 1 1. other Definitions. — The books asitisa3.id,leveestferre,preferre grave." 3 do not abound in definitions of pardon. Inst. 233. FiomJacob, — " The remitting But we have from Coie,^ — "A pardon is or forgiving of an offence committed a work of mercy whereby the king, either against the king.' Law Diet. " Pardon," before attainder, sentence, or conviction, referring to Staundf. PI. Cor. 47. From or after, forgiveth any crime, offence, Jlfars^aZ/, C. J. in the Supreme Court of the punishment, execution, right, title, debt, United States, — "A pardon is an act of. or duty, temporal or ecclesiastical. All grace proceeding from the power intrusted that is forfeited to the king by any at- with the execution of the laws, which tainder, &c., he may restore by his char- exempts the individual on whom it is ter; but if by the attainder the blood be bestowed from the punishment the law corrupted, that must be restored by au- inflicts for a crime he has committed." thority of Parliament. We call it in U. S. v. Wilson, 7 Pet. 150, 160. And Latin pardonatio, and derive it a per et Field, J. speaks of pardon as " releasing dono: per is a preposition, and in the the offence, obliterating it in legal con- Saxon tongue is for 01 vor ; as to forgive templation." Osborn v. XJ. S. 91 U. S. is thoroughly to remit, and forethink is to 474, 478. repent, and forbear is to bear with patience, 2. The Chief Difficulty — in this de- 543 § 899 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. S. The Word "Amnesty" — does not in legal language differ" greatly from " pardon." But it is seldom or never employed where the grace is to a single individual for an ordinary crime. It commonly denotes a general pardon to rebels for their treasons and other high political offences,^ or the forgiveness which one sovereign grants to the subjects of another who have offended by some breach of the law of nations.^ " An amnesty," says Vattel, " is a perfect oblivion of the past." '^ § 899. In whom Power of Pardon. — In England, a pardon may and commonly does proceed from the Crown.* Statutes, some of fining is whether pardon shall be stated to be a " remission of guilt," or " re- mission of the punishment of guilt." As definition, in the law is legal doctrine epitomized, the question is simply what is the law on the point. And we find that, for example, after one is pardoned an offence, he cannot be accused of it by oral words without subjecting the speaker to an action of slander, the same as though it had not been committed. Thus, says Starkie : " In Cuddington v. Wilkins, Hob. 81, which was an action for publishing these words of the plaintiff, ' He is a thief,' the defendant pleaded that the plaintiff had been guilty of stealing six sheep. The plaintiff replied that after the felony, and before the publication of the words, he had been pardoned by a gengral pardon. Upon a demurrer this replication was holden to be good, inas- much as the guilt, as well as the punish- ment, is taken away by a pardon." 1 Stark. Slander, 237, 238. Turning to this case in Hobart, one of the most au- thoritative of the old reporters, we read : "The whole court were of opinion that though he [the plaintiff] were a thief once, yet when the pardon came it took away not only pcenam but reatum, for felony is contra coronam et dignitatem regis. Now, when the king had discharged it and pardoned him of it, he had cleared the person of the crime and infamy. . . . And it was said that he could no more call him thief, in the present tense, than to say a man hath the pox, or is a villain, after he be cured or manumisaed, but that he hath been a thief or villain he might say." p. 81 b, 82. And see post, § 917. Hawkins states the effect of a 544 pardon in the same way. " I take it to be settled at this day that the pardon of a treason or felony, even after a conviction or attainder, does so far clear the party from the infamy of all other consequences of his crime that he may not only have an action for a scandal in calling him traitor or felon after the time of the par- don, but may also be a good witness, not- withstanding the attainder or conviction [a point settled and practised upon in all our courts at the present time, post, § 917] ; because the pardon makes him, as it were, a new man." 2 Hawk. P. C. Curw. ed. p. .547, § 48. In line with these expositions and as sustaining our definition, we have such modern cases as Hay v. Tower Divi- sion, 24 Q. B. D. 561 ; Leyman v. Latimer, 3 Ex. D. 15, 352, 13 Cox C. C. 632, 14 lb. 51 ; Ex parte Garland, i Wal. 338; Hil- dreth v. Heath, 1 Bradw. 82 ; Edwards v. C. 78 Va. 39, 49 Am. R. 377. It is im- possible, therefore, to doubt that in the law a pardon is a remission, not merely of the punishment of guilt, but of the guilt itself. Of course, as the human law does not control the divine, no one sup- poses that before the tribunal of God a pardon from an earthly sovereign is plead- able. Therefore in a moral sense a man may he guilty after the executive of the country has pardoned him ; but, in a law- book, we treat of law, not of ethics. 1 S. i;. Applewhite, 75 N. C. 229; Knote V. U. S. 95 U. S. 149 ; Young v. U. S. 97 U. S. 39, 65. '^ Vattel Law of Nations, b. 3, o. 18, and b, 4, c. 2 ; Knote w. U. S. 10 Ct. CI. 397. 8 Vattel Law of Nations, b. 4, c. 2, § 20 ; S. V. Blalock, Phillips, N. C. 242. • Eex V. Parsons, 1 Show. 283 ; Kex CHAP. UX.] PARDON. § 900 early dates, have from time to time regulated this royal author- ity. And sometimes pardons, general and special, have been granted by acts of Parliament.^ With us, the constitutions of the United States and of the several States provide for pardons ; or, should there be a State or two in which this is not so, the defect is supplied by legislation.^ By the national Constitution, the President is given authority " to grant reprieves and pardons for offences against the United States, except in cases of impeach- ment." 2 In most of the States, the power is in the Governor, who is to exercise it with the advice of his council, or other offi- cers designated for the purpose, or alone, as the provision may be.* Sometimes special powers, of remitting fines and forfeitures are conferred on the courts.^ § 900. Pardon as Legislative Act.. — According, thei'efore, to the system of laws whence ours are derived, pardon may proceed from either the executive or the legislative department, the au- thority of neither being exclusive.^ It is the common style of our written constitutions to confer on the Governor specific ex- ecutive powers, and on the legislature general legislative ones ; the result whereof would seem to be that a Governor has only the pardoning power expressly given, and a legislature all not expressly withheld. Thus, in principle. Still it has been ad- judged; under a constitution forbidding any one department of the government to exercise powers properly belonging to an- other, that pardons, being grantable by the Governor, cannot be V. Greenvelt, 12 Mod. 119; s. c. nom. of the several States ; also, C. u. Caton, 4 Greonvelt's Case, 1 Ld. Kaym. 213, 214; Call, 5; Ex parte Birch, 3 Oilman, 134, Shugborough v. Biggins, 5 Co. 50a,- s. c. 145; S. v. Fuller, 1 McCord, 178; S. v. nom. Shaekborough v. Biggins, Cro. Eliz. Fleming, 7 Humph. 152, 46 Am. D. 73 ; 632, 682 ; Searle v. Williams, Hob. 288, Ex parte Hunt, 5 Eug. 284 ; S. u. Twitty, 293 ; Smith v. BoTven, 11 Mod. 254. 4 Hawks, 193 ; Ex parte Hickey, 4 Sm. & 1 3 Inst. 233 et seq. M. 751 ; Shoop v. C. 3 Pa. St. 126 ; S. o. 2 And see Story Const. § 1496. Simpson, 1 Bailey, 378 ; S. k. Brewer, 7 Whether Statute required. — When Blackf . 45 ; Charleston v. Corlels, 2 Bailey, the Constitution of a State vests in the 186; C. v. Lockwood, 109 Mass. 323, 12 Governor the power of pardon, he may Am. R. 699; Ex parte Scott, 19 Ohio St. exercise it though no legislation exists 581 ; Dominick v. Bowdoin, 44 Ga. 357 ; on the subject. Baldwin v. Scoggin, 15 Grubb v. Bullock, 44 Ga. 379; Wilkerson Ark. 427. No Power in Legislature.— v. Allan, 23 Grat. 10; Blair v. C. 25 Grat.. In Alabama, the legislature cannot par- 850 ; S. v. Nichols, 26 Ark. 74, 7 Am. R. don, the power being exclusively in the 600 ; S. o. Dunning, 9 Ind. 20. Governor. Haley v. Clark, 26 Ala. 439. ^ Strafford «. Jackson, 14 N. H. 16. » Const. U. S. art. 2, § 2, cl. 1. ^ S. v. Nichols, 26 Ark. 74, 7 Am. R. * See the constitutions and the statutes 600. VOL. I. — 36 545 § 902 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. given by the legislature.^ Ordinarily, as the function is both executive and legislative in the country whence we derive our unwritten laws, the vesting of the power in the Governor would appear not to make it exclusive in him. And in one way or another, pardons, and especially the broader amnesty, are widely granted by the legislatures of our States.^ Further as to which, — § 901. Another View, — as to pardon before final judgment, is that the power to make laws carries with it the power to repeal them. If a statute is repealed, no proceeding against an of- fender under it can be instituted, or if instituted, carried further. So that where there has been no final judgment, the repeal is practically a legislative pardon ; ^ and the greater power includes the less. It plainly includes the right to pass a general act of amnesty. A pardon to an individual is an amnesty to him, which on ordinary principles of legislation may' be by a special statute. But some of our State constitutions require that all laws shall be general ; and it would probably violate such a pro- vision for the legislature to undertake to pardon a single person. § 902. The Common Law — of crime, we have seen,* prevails generally in our States, and in the exceptional States the rules of the common law regulate a conferred jurisdiction; so that the English authorities on pardon are pertinent with us.^ Though our United States tribunals do not punish an offence without the aid of a statute,^ having acquired the statutory power, they too look into the common law for their rules of decision. On the question of pardon, the course was early explained by Marshall, 1 S. v. SIoss, 25 Mo. 291, 69 Am. D. 2 Bird v. Breedlove, 24 Ga. 623 ; S. v. 467. To a like effect is S. v. Nichols, Blalock, Phillips, N. C. 242 ; Haddix v. supra. And see Ogletree v. Dozier, 59 Wilson, 3 Bush, 523 ; Michael v. S. 40 Ga. 800. Cooley says ; " Whether the Ala. 361 ; S. v. Keith, 63 N. C. 140. And legislature can constitutionally remit a see Greathouse's Case, 2 Abb. U. S. 382 ; fine, when the pardoning power is vested S. v. Dunning, 9 Ind, 20. in the Governor by the Constitution, has » Stat. Crimes, § 175-185. But it is been made a question ; and the cases of not quite .so in full. After a pardon has Haley ... Clark, 26 Ala. 439, and P. v. been granted and accepted, it cannot be Bircham, 12 Cal. 50, are opposed to each withdrawn; while after a statute is re- other upon the point. If the fine is pay- pealed, a new statute may authorize prose- able to the State, perhaps the legislature cution for an offence committed under it should be considered as having the same before the repeal. lb. § 180 right to discharge it that they would have * Ante, § 35-38, 189 et seq. to release any other debtor to the State 6 p. „. Bowen, 43 Cal. 439, 13 Am. E. from his obligation." Cooley Const. Lira. 148. 2d ed. U5, note. « Ante, § 194, 199. 546 CHAP. LIX.] PABDON. § 904 C. J., thus : " As this power had been exercised from time imme- morial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it." ^ § 903. 1. Before Offence. — An offence not yet committed cannot be pardoned; for a grant of immunity before would be a license, competent only to the legislature.^ But — 2. Before or after " Conviction." — By the general law of par- don, as soon as guilt is incurred it can be remitted. The remis- sion may be before, during, or after the judicial proceeding, or when the punishment has been partly or fully endured.^ Yet by express words in a part of our constitutions, the pardoning power is forbidden to act before " conviction." * By conviction is here meant a plea or verdict of guilty, and it is immaterial whether or not judgment has been rendered thereon.^ So that though a con- stitution has this clause, there may be a pardon under it after verdict and before sentence.^ § 904. Pardons and Amnesty by President. — The Constitution of the United States does not forbid pardon before conviction. Therefore it may follow immediately the commission of an of- fence, but not, as just said, go before. To attempt the latter would be an encroachment upon powers exclusively legislative ; in other words, it would be an endeavor, to annul the law of tlie land.'^ 1 U. S. V. Wilson, 7 Pet. 150, 160; s. p. Crosby, 1 Ld. Eaym. 39 ; Anonymous, 1 Ex parte Wells, 18 How. U. S. 307, 310, "Vent. 349 ; Rex v. Castlemain, T. Raym. 311, where Wayne, J. observed: "We 379 ; post, § 904 ; C. ti. Bush, 2 Duv. 264 ; must give the word the same meaning as S. v. Woolery, 29 Mo. 300, 301 ; Dominick prevailed here and in England at the time v. Bowdoin, 44 Ga. 357 ; Grnbb v. Bullock, it found a place in the Constitution." And 44 Ga. 379; Hunnicutt v. S. 18 Tex. Ap. see Stat. Crimes, § 97 ; P. v. Bowen, supra. 498, 51 Am! R. 330. 2 Thomas o. SorreU, Vaugh. 330, 333; * Ex parte Birch, 3 Gilman, 134, 145. Case of Pardons, 12 Co. 29 ; Rex v. Wil- ' Stat. Crimes, § 348. cox, 2 Salk. 458 ; Rex v. Williams, Comb. . » C. f. Mash, 7 Met. 472 ; S. v. Fuller, 18; Shipley v. Craister, 2 Vent. 131 ; 2 1 McCord, 178; Duncan v. C. 4 S. & R. Hawk. P. C. Curw. ed. p. 540, § 28. And 449 ; Blair v. C. 25 Grat. 850 ; C. w. Lock- see lb. and § 29, for some possible excep- wood, 109 Mass. 323, 12 Am. R. 699 ; S. tions in England ; but they can probably v. Alexander, 76 N. C. 231, 22 Am. R. have no application in this country. See 675. And see S. v. Nichols, 26 Ark. 74, post, § 904 and note. 7 Am. R. 600 ; S. v. Dyches, ^8 Tex. 535. 1 Rex .- Reilly, 1 Leach, 454 ; Rex v. ' See ante, § 64. This plain truth of 547 § 905 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. § 905. 1. Procured by Fraud. — A pardon obtained by a fraud on the pardoning power is void.^ In an Ohio habeas corpus case, this proposition was by the majority of a divided court denied, as applied to a pardon fully delivered and accepted, and on a proceed- ing not for its revocation.^ A pardon being an act specially in pais, the procuring of it being altogether ex parte, and there being no provision of law for its reversal, or for any hearing of persons whose interests may be prejudiced by it, this Ohio doctrine is most unfortunate, and is contrary to the ordinary course of our jurisprudence in analogous things. For every act into which the doer has been enticed by a fraud is so far void that there is some way of avoiding it ; some sucii acts are called voidable, because the law has established steps for avoiding them and ordained that they shall not be avoided by any other ; but no such course has been provided for a pardon obtained by a fraud on the pardoning power, and the law would contradict itself, and be itself a fraud, if it refused to hold a fraudulently procured pardon void. To proceed with the common doctrine, — 2. Extent of Fraud. — According to the English books, the par- don is void whenever the king has not been truly and fully ap- prised of the nature of the case and the state of the proceedings.^ In the words of a writer on the subject, " any suppression of truth or suggestion of falsehood, in a charter of pardon, will vitiate it ; and upon this principle, if it state the party to be attainted when in fact no attainder had ever taken place, it will be alto-' gether invalid." * So likewise it is void if the party is attainted the law was in one or more instances over- ton v. U. S. 7 Ct. CI. 444 ; Waring v. U. S. looked in the form given to proclamations 7 Ct. CI. 501 ; Kiiote v. U. S. 10 Ct. CI. of amnesty during or at the close of our 397 ; Michael v. S. 40 Ala. 361 ; Haddix late Secession War. They should therefore v. Wilson, 3 Bush, 523 ; Ex parte Law, 55 not be accepted as precedents for the fu- Ga. 285 ; U. S. t. Athens Armory, 35 Ga. ture. Questions upon the effect of these 344 ; S. v. Keith, 63 N. C. 140 ; S. ». Shel- proclamations, and of the amnesty stat- ton, 65 N. C. 294 ; S. v. Haney, 67 N. C. utes, are fast passing away; those who 467; Ex parte Hunter, 2 W. Va. 122; have occasion to look into them' will find Hedges v. Price, 2 W. Va. 192, 94 Am. D. help from the following cases: Armstrong 507. V. U. S. 13 Wal. 154; Pargoud t. U. S. i C. ■;. Halloway, 44 Pa. 210', 219, 84 13 Wal. 156; Carlisle v. U.S. 16 Wal., Am. D. 431. 147 ; Lapeyre v. U. S. 17 Wal. 191 ; The 2 Knapp v. Thoma,s, 39 Ohio St. 377, Confiscation Cases, 20 Wal. 92 ; Great- 48 Am. R. 462. house's Case, 2 Abb. U. S. 382; U. S. t>. > 2 Gab. Grim. Law, 585; 2 Hawk. P. Hughes, 1 Bond, 574; Bragg v. Lorio, 1 C. Curw. ed. p 533, § 8, 9. See also S. v. Woods, 209 ; U. S. v. Six Lots of Ground, Mclntire, 1 Jones, N. C. 1, 59 Am. D. I Woods, 234 ; Brown v. U. S. McCahon, 566. 229 : Haym v. U. S. 7 Ct. CI. 443 ; Hamil- * 2 Gab. Crim. Law, 586 ; 3 Inst. 238. 548 CHAP. LIX.] PAEDON. §906 and it does no mention the attainder, the presumption from the omission being that the king was not truly informed.^ On the other hand, if the charter of pardon, drawn in general terms, contains an exception of any particular class of felony, the ex- ception applies equally whether there has been an attainder of it or not.2 So, — ■ § 906. 1. With us, — similar rules as to the quantity of fraud appear.3 If, for example, on comparing the instrument of par- don with the record in the cause, the court sees that the execu- tive may have been imposed upon by false statements, or an omission of relevant facts, it will hold the pardon void* Even though the pardoned person did not himself participate in the de- ception, the pardon is equally null if others procured it by false papers and representations. " He can claim nothing as a favor that is founded on the fraud of his friends, so as to prevent the frustration of the fraud." ^ If a pardon misrecites the offence, it will be inoperative.® But — 2. Erroneous Date of Conviction. — In the absence of fraud, a pardon will be good though it states the date of the conviction incorrectly, if it was intended to cover, and does cover, the par- ticular offence.^ And — 1 2 Hawk. p. C. Curw. ed. p. 534; Eex V. Haddocks, 1 Sid. 430 ; Anonymous, J. Kel. 28. 2 2 Hawk. P. C. Curw. ed. p. 535, § 13. > C. V. Kelly, 9 Philad. 586. * S. V. Leak, 5 Ind. 359. In this case, persons had become sureties in a recog- nizance to the amount of $2,000, for the appearance of one charged with murder. The principal and sureties were defaulted ; and after judgment on the forfeited recog- nizance, the Governor Remitted $1,500 to thesureties, by an instrument which did not state the crime or the amount of the judg- ment thu^ rendered. And the remission was held to be void, because it must be presumed the Governor was not informed of the true state of the facts. As to the necessity of supplying the information to the pardoning power, see Bird v. Breed- love, 24 Ga. 623. 5 C. V. Halloway, 44 Pa. 210, 219, 220, 84 Am. D. 431, by Lowrie, C. J. The court deemed that Stat. 27 Edw. 3, stat. 1, c. 2, is common law in Pennsylvania ; or, if not, " we think," said the judge, " the prin- ciples of the common law demand this conclusion, and they have a rather wider extent than the provisions of this statute." The statute is as follows : " In every char- ter of pardon of felony which shall be granted at any man's suggestion, the said suggestion and the name of him that mak- eth the suggestion shall be comprised in the same charter ; and if after the same suggestion be found untrue, the charter shall be disallowed and holden for none. And the justices before whom such charter shall be alleged shall inquire of the same suggestion, and that as well of charters granted before this time as of charters which shall be granted in time to come ; and if they find them untrue, then they shall disallow the charters so alleged, and shall moreover do as the law demandeth." In Knapp v. Thomas, 39 Ohio St. 377, 48 Am. R. 462, the majority opinion denies that this statute is common law in Ohio. « U. S. V. Stetter, 1 Whart. Crim. Law, 5th ed. § 766, note. ' C. V. Ohio and Pa. Eld. 1 Grant, Pa. 329. 549 S 908 INCIDENTAL RELATIONS AND THINGS. [BOOK VII, 3. Minor Errors, — that do not mislead or point to fraud, will be disregarded, as in other instruments, where the meaning of all is reasonably plain.^ § 907. 1. Delivery. — Like any other instrument, the pardon to be valid must be delivered and accepted.^ A delivery to the mar- shal or sheriff is not such to the prisoner ;3 but in some of our States a usage has rendered the delivery to the prison-keeper ade- quate, though on general principles it is difficult to see that he is the prisoner's agent to accept it.* The person who solicits the pardon is such agent.* The delivery and acceptance may be presumed from circumstances.^ 2. Not Revocable. — After delivery, a pardon cannot be re- voked ; '' but before delivery it can be, though it has passed out of the hands of the executive.® 3. A General Legislative Pardon, — Or amnesty statute, does not require delivery or acceptance. For it is a law, not a deed.^ And — 4. A General Pardon by Proclamation — is the same. There is no instrument for delivery ; and though doubtless one might de- cline to avail himself of his rights thereunder, the courts take judicial notice of it, and it goes into effect on being duly exe- cuted. It remains only for the person relying on it to comply with its conditions, if any.^" § 908. 1. Interpretation. — A pardon is interpreted like any other grant. For example, if its meaning is in doubt, it is taken more strongly against the grantor ,i^ yet not beyond the fair import of its words.^2 So, — 2. Amnesty, — by statute or proclamation, though not a deed or within its reasons, is an act of grace, to be interpreted liber- ^ Hunnicutt v. S. 20 Tex. Ap. 632. ' 337. And see U. S. v. Hughes, 1 Bond, 2 U. S. V. Wilson, 7 Pet. 150, 161 ; In 574. re Callieot, 8 Blatch. 89, 96. 8 in re De Pay, supra. s In re De Puy, 3 Ben. 307. 9 S. v. Blalock, Phillips, N. C. 242. * C. V. Halloway, 44 Pa. 210, 84 Am. i» Lapeyre v. U. S. 17 Wal. 191 ; Arm- D. 431 ; Ex parte PoweU, 73 Ala. 517, 49 strong v. U. S. 13 Wal. 154 ; Pargoud o. Am. R. 71. U. S. 13 Wal. 156 ; Greathouse's Case, 2 6 Ex parte Reno, 66 Mo. 266, 27 Am. Abb. U. S. 382 ; tJ. S. v. Hughes, 1 Bond, R. 337. 574; Hamilton v. U. S. 7 Ct. CI. 444. « Hunnicutt v. S. 18 Tex. Ap. 498, 51 « Wyrral's Case, 5 Co. 49 6; Ex parte Am. R. 330. Hunt, 5 Eng. 284. ' S. V. Nichols, 26 Ark. 74, 7 Am. R. '2 a Hawk. P. C. Curw. ed. p. 535, 539, 600 i Ex parte Reno, 66 Mo. 266, 27 Am. R. 540, § 12, 24, 25. See Rawleigh's Case, 2 Bol. 50. 660 CHAP, LIX.] PARDON. § 909 ally in favor of its beneficiaries.^ Its meaning, like that of other writing, must be "gathered from its language, to the exclusion of extrinsic information concerning the intent of the pardoning power.2 And it is nojt to be understood as attempting a violation of the Constitution by an unauthorized repeal of a statute,^ but solely as contemplating results within the Constitution.* Still, — 3. Effect. — Like any other instrument, a pardon may have an effect beyond its words, — to be explained further on.^ And — 4. Form. — There is no indispensable form for it. Thus, a writing by the President under the seal of the United States, di- recting the immediate discharge of one sentenced to imprison- ment for robbing the mail, was held to be a pardon.^ But — 6. A Promise of Pardon — is not a pardon, though it may prop- erly lead the court to continue the case until the thing promised can be obtained.' II. To what the Pardon may extend. § 909. 1. In England, — all indictdble wrongs, all ecclesiastical ones,8 and the derelictions pursuable by penal action,^ are subjects of pardon. The exception is that when a right to a penalty or to costs has vested in a private person, the pardon of the offender cannot take it away.^" 2. ■With us, — some of the State constitutions expressly extend the pardoning power to the remission of fines and forfeitures. Those of other States and that of the United States do not, yet the granted power to pardon is held to carry with it the authority to make this remission, the same as in England.^^ Still, — > S. V. Shelton, 65 N. C. 294. « Cooke v. Hall, 5 Co. 51 a; Cudding- 2 Greathouse's Case, 2 Abb. U. S. 382. ton v. Wilkins, Hob. 81 ; Rex v. Turvil, s The Confiscation Cases, 20 Wal. 92. 2 Mod. 53 ; Smith v. Shelbourn, Cro. Eliz. * Stat. Crimes, § 90. And see further 685, 686 ; Winchcombe v. Winchester, as to the interpretation of pardons, Hex Hob. 165, 167 ; Trollop's Case, 8 Co. 68 a. ,1). Johnson, 3 Mod. 241 ; Philips's Case.. " 3 Inst. 238 ; 2 Hawk. P. C. Curw. ed. I Sid. 170; Oswald x,. Everard, 1 Ld. p. 543, § 33. See Bentley y. Ely, 2 Stra. Eayra. 637 ; Pool v. Trumbal, 3 Mod. 56 ; 912. Wyrral's Case, 5 Co. 49 h ; Phitton's ^ Thomas v. Sorrell, Vaugh. 330, 333 ; Case, 6 Co. 79 b ; Littleton v. Dudley, Cooke w. Hall, 5 Co. 51a,- Pool u. Trum- 5 Co. 47 a ; Franklin^s Case, 5 Co. 46 b. bal, 3 Mod. 56 ; Howell v. James, 2 Stra. 6 Post, § 916 et seq. 1272; 2 Hawk. P. C. Curw. ed. p. 543, 6 Jones'ii. Harris, 1 Strob. 160. And § 34 ; In re Deming, 10 Johns, 232, 483. see P. V. Stewart, 1 Idaho, N. s. 546. ' " Story Const. § 1504 ; Osborn v. U. S. ' Rex V. Garside, 4 Nev. & M. 33, 2 91 V. S. 474 ; U. S. v. Harris, 1 Abb. U. S. A. &E. 266. See S. «. Baptists, 26 Lai 110; U. S. v. Thomasson, 4 Bis. 336; An. 134 • Crim. Pro. I. § 847. U. S. v. Athens Armory, 2 Abb. XJ. S 551 §910 INCIDENTAL RELATIONS AND THINGS. [BOOK VTT. § 910. 1. Vested Rights. — The books are a little ODSCure as to the effect of a pardon on vested rights.^ There is a distinction between choses in action and personal property in possession. And though the decisions are in confusion, and not all are in harmony with any principle, the doctrine seems to be that a pardon cannot take the former from an individual,^ but it can from the State ; and, as to the latter, it cannot divest even the State of money or chattels vested by possession. Nor, in Eng- land, will it be construed to intend the latter unless its words are express.^ To particularize, — 2. Costs, — coming to a ptosecutor or attorney and already taxed,* or probably in our practice if final judgment is rendered and the taxation is a mere ministerial act to be done by the clerk,^ are not affected by the pardon, but are recoverable afterward. And where the costs are to go into the treasury of the State, not every form of words in a general pardon will after judgment remit them ; and perhaps there are courts which will hold their remission impossible, being a right vested in the State.^ If the pardon comes before sentence, though after conviction, the costs are not incurred.' Even after sentence, it is believed that the 129 ; S. 0. Timmona, 2 Hairing. Del. 528 ; S. a Underwood, 64 N. C. 599 ; Libby v. Nicola, 21 Ohio St, 414. In Kentucky, "The 10th section of the 3d article of the Constitution," it was observed, " vests in the Governor power to remit fines and for- feitures, but prohibits him from remitting the fees of a commonwealth attorney, &c., in penal or criminal cases." And it was held that before judgment, in favor of the sureties, the Governor can remit the for- feiture on a recognizance. C. v. Morgan, 14 B. Monr. 392. The right of the com- monwealth's attorney, not to be remitted, does not accrue before judgment. C. o. Spraggins, 18 B Monr. 512 See also C. V Denniston, 9 Watts, 142; Haynes v. S. 3 Humph. 480, 39 Am. D. 187 ; Wilkerson V. Allan, 23 Grat. 10 ; U. S. v. McKee, 4 Dil. 128. 1 As to what rights of property are vested, see 2 Bishop Mar. Women, § 38-53. 2 See Stat. Crimes, § 178, 179; 2 Bishop Mar. Women, § 32-34, ' Toomes v. Etherington, 1 Saund. 361 ; Rex V. Turvil, 2 Mod. 53 ; Rex v. Salo- way, 3 Mod. 100; Rex v. Johnson, 3 Mod. 552 241 ; 2 Hawk. P. C. c. 37, § 54 ; Knote v. U. S. 95 U. S. 149. * Cooke V. Hall, 5 Co. 51a,- 2 Hawk. P. 0. Cnrw. ed. p. 546 ; Anglea v. C. 10 Grat. 696; S. a. McO'Blenis, 21 Mo. 272; Duncan v. C. 4 S. & R. 449 ; Smith u. S. 6 Lea, 637 ; S. v. Mooney, 74 N. C. 98, 21 Am. R. 487. See also Lyon v. Morris, 15 Ga. 480 J Routt V. Feemster, 7 J. J. Mar. 131 ; Edwards v. S. 7 Eug. 122; S. v. Fat ley, 8 Blackf. 229; Schuylkill v. Reif- snyder, 46 Pa. 446. 5 Duncan v. C. 4 S. & R. 449 ; Ex parte McDonald, 2 Whart. 440. » Libby o. Nicola, 21 Ohio St. 414; Schuylkill v. Reifsnyder, 46 Pa. 446 ; Es- tep V. Lacy, 35 Iowa, 419, 14 Am. R. 498. See Parrott v. Wilson, 51 Ga. 255. ' Harris W.White, Palmer, 412; Watts's Case, Cro. Jac. 336 ; C. v. Hitchman, 46 Pa. 357 ; White v. S. 42 Missis. 635 ; S. ». Underwood, 64 N. C. 599; C. v. AM, 43 Pa. 53. The case of Playford v. C. 4 Pa. 144, seems to hold that a pardon between verdict and sentence does not take away the costs. But evidently the case is mis- understood by the reporter. The court CHAP. LIX.] PAEDON. § 910 general American doctrine holds it to be competent for the par- doning power to remit, if it chooses, such costs as are payable to the State.^ Again, — 3. Penalties and Forfeitures. — A penalty which on Conviction is payable ta a private individual cannot be remitted by a pardon ;2 for it is vested in him, and vested property cannot be thus di- vested.^ But here we come to the distinction between a vested chattel and a vested right of action. And it appears to be estab- lished that if, for example, a judgment of forfeiture transmutes the ownership of specific things to the United States, the Presi- dent, who has no power to dispose of what belongs to the nation, cannot by his pardon divest the nation of it, and give it back to its former owner.* And it is the same with the Governor of a State.5 But — 4. Fine and Costa. — A judgment for a fine and costs differs from that for such forfeiture of a specific thing. It is a mere ■ chose in action. At all events, the accepted doctrine appears to be that a pardon may remit fines and costs yet unpaid to the State.^ Even — 5. A County, — by some opinions, is liable to have penalties, which have thus vested in it, divested by the executive pardon.'' And — 6. A Revenue Forfeiture — could be remitted by the Secretary decided whatever it did on the authority Bis. 336. Informer's Share. — In U. S. of Duncan v. C. supra, which is expressly v. Harris, it was held that after judgment the other way. And so are. the later the President may by pardon remit the Pennsylvania cases above cited. part of a fine, penalty, or forfeiture which 1 Lihby v. Nikola, supra; post, § 916. accrues to the United States, but not the " Frazier v. C. 12 B. Monr. 369 ; Rowe informer's share. In Tj". S. v. Thomas- V. S. 2 Bay, 565 ; S. u. Williams, 1 Nott & son, the latter clause of this doctrine was McC. 26 ; Rucker v. Bosworth, 7 J. J. disapproved, and it was held that both the Mar. 645; Shoop w.C. 3 Pa. St. 126. See informer's moiety and the other may be Rankin u. Beaird, Breese, 123. remitted by pardon even after judgment. 3 Osborn v. U. S. 91 U. S. 474. The court deemed the English doctrine * The Confiscation Cases, 20 Wal. 92, not applicable to the question of the Pres- 112; U. S. V. Six Lots of Ground, 1 ident's power under our Constitution. I Woods, 234 ; Bragg v. Lorio, 1 Woods, simply state these cases, not undertaking 209 • Knote 'v. U. S. 10 Ct. CI. 397. But to say how far either is sound. see Brown v. U. S. McCahon, 229 ; U. S. ' HoUiday v. P. 5 Oilman, 214. But see V. Harris, 1 Abb. U. S. 110. Shoop v. C. 3 Pa. St. 126. And see S. u. 6 Aldrich V. Jessup, 3 Grant, Pa. 158. Simpson, 1 Bailey, 378; Cope v. C. 28 8 See post, § 911, 916. S. ».Timmons, Pa. 297; C. v. Denniston, 9 Watts, 142, 2 Harring. Del. 528 ; U. S. v. Harris, 1 143. Abb. U. S. 110; U. S. V. Thomasson, 4 553 §913 INCIDENTAL RELATIONS AND THINGS. [BOOK VH. of the Treasury under the Act of March 3, 1797, c. 361, at any time before payment of the money to the collector.^ § 911. 1. Qui Tarn. — Though the remedy for a wrong is a penal action iff the civil form, the penalty to be divided between, the prosecutor and the State, it is still within the pardoning power.^ Yet it is the English doctrine that the bringing of the action so vests the right in the private plaintiff that his claim cannot then be defeated by a pardon.^ Again, — 2. Forfeiture. — Where a forfeiture is to be enforced by a seiz- ure and condemnation in rem, the private interest vests, certainly on the condemnation, probably on the seizure.* But — 3. An Indictment or Information — is, we have seen,^ different ; and the private interest does not vest even on the verdict of the . jury, but only on the final judgment of the court.® Yet subject to doubts suggested by some of the foregoing paragraphs, though the pardon cannot take away the individual claim, it can that of the State ; ' even, it appears, so far as to require under special, cir- cumstances the paying back of money which has already passed out of the hands of the convict.* -§ 912. Impeachments. — The Constitution of the United States expressly excepts out of the pardoning power cases of impeach- ment,^ and the like exception exists in most of the State constitu- tions. It is the same also in England by act of Parliament.^" § 913. 1. Of Legislative Contempts, — Story says : " The [United States] Constitution is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication ; and to make it effectual the former is excluded by implication." ^^ But — » U. S. V. Morris, 10 Wheat. 246. See Hams, 1 Nott & McC. 26 ; S. v. Timmons, The Hollen, 1 Mason, 431, 434, 435 ; The 2 Barring. Del. 528. Laura, 114 U. S. 411. 8 in re Flournoy, 1 Kelly, 606. See 2 Ante, § 909. post, § 916; Parrott v. Wilson, 51 Ga. 8 2 Hawk. P. C. Curw. ed. p. 543, § 33, 255. 34; Grosset v. Ogilvie, 5 Bro. P. C. 527. ^ ^nta_ § 899. * U. S. V. Lancaster, 4 Wash. C. C. 64; w Ueg.,w. Boyes, 1 B. & S. 311. McLane v. U. S. 6 Pet. 404. See The " Story Const. § 1503. It is the same Hollen, 1 Mason, 431, 434, 435. in England by Stat. 12 & 13 Will. 3, c. « Ante, § 910. 2. 4 Bl, Com. 261. "But after the im- ' Duncan v. C. 4 S. & R. 449 ; S. ii. peachment is solemnly heard and deter- Youmans, 5 Ind. 280. And see Greou- mined, it is not understood that the velt's Case, 1 Ld. Raym. 213, 214. king's royal grace is farther restrained ' Rowe u. S. 2 Bay, 565 ; S. v. Wil- or abridged." 2 Hawk. P. C. Curw. ed. 654 p. 547, § 44. CHAP. LIX.] PARDON. § 915 2. Contempto of Couit — are public offences, pardonable like any other.^ III. The Pardon as Partial or Full and the Effect of each. § 914. 1. General. — By the common law, unmodified by stat- utory or constitutional terms, a pardon may be full, or partial, or conditional, as tlie pardoning power pleases. Some of our State constitutions ■ expressly authorize the conditional form.^ In oth- ers, and in the Constitution of the United States, the power of pardon is expressed in general terms ; yet by construction, since the greater includes the less, it may be partial, conditional, or full, the same as in England.^ 2. PuU. — Where the pardon is full, its collateral and conse- quential effects cannot be abridged by its language ; for they de- pend on the law of the land.* 3. A Conditional Pardon — may be on condition either prece- dent or subsequent ; if precedent, — that is, if by its terms some event is to transpire before it takes effect, — its operation w, de- ferred until the event occurs.^ If. the condition is subsequent, the pardon goes into operation immediately, yet becomes void whenever the condition is broken.* § 915. 1. What Conditions. — The condition must not be im- possible, criminal, or illegal.^ But within this limit, the ap- proved conditions are quite diverse.^ One is that the prisoner shall leave, permanently or for a time, the State or country.' 1 Hawk, ut sup. p. 540, § 26 ; Trollop's * P. v. Pease, 3 Johns. Cas. 333 ; Cook Case, 8 Co. 68 a; Reg. v. Watson, 2 Ld. v. Middlesex, 3 Butcher, 637; Cook v. Raym. 817, 818; Ex parte Hickey, 4 Sm. Middlesex, 2 Dutcher, 326. & M. 751 ; S. 0. Sauvinet, 24 La. An 119, ^ Haym v. U. S. 7 Ct. CI. 443; Waring 13 Am. R. 115; In re MuUee, 7 Blatch. v. V. S. 7 Ct. CI. 501 ; Scott v. U. S. 8 Ct. 23. CI. 457 ; C. ». Haggerty, 4 Brews. 326. 2 Ex parte Hunt, 5 Eng. 284; Libby « Flavell's Case, 8 Watts & S. 197; Reg. V. Nicola, 21 Ohio St. 414, 418 ; Ex parte v. Eoxworthy, Holt, 521 ; Carr v. S. 19 Reno, 66 Mo. 266, 27 Am. R. 337. Tex. Ap. 635, 53 Am. R. 395. 8 Flavell's Case, 8 Watts & S. 197 ; S. ' Lee v. Murphy, 22 Grat. 789, 12 V. Addington, 2 Bailey, 516, 23 Am. D. Am. R. 563; P. <;. Potter, Edm. Sel. Cas. 150: S. V. Twitty, 4 Hawks, 193; Perkins 235. V. Stevens, 24 Pick. 277; P. v. Potter, I ^ Kennedy's Case, 135 Mass. 48; Arthur Par. Cr. 47*; Ex parte Wells, 18 How. U. S. o. Craig, 48 Iowa, 264, 30 Am. R. 395. 307 ; Osborn v. U. S. 91 U. S. 474 ; U. S. » S. v. Smith, 1 Bailey, 283, 19 Am. D. V. Six Lots of Ground, 1 Woods, 234; P. 679 ; P. v. Potter, 1 Par. Cr. 47; Reg. v. V. Potter, Edm. Sel. Cas. 235; Kennedy's Foxworthy, 7 Mod. 153; C. v. Philadel- Case, 135 Mass. 48. Contra, as to con- phia County Prison, 4 Brews. 320; C.v. ditional pardons, C. v. Fowler, 4 Call, 35. Haggerty, 4 Brews. 326 ; Ex parte Marks, And see R. S. of U. S. § 5330, 64 Cal. 29, 49 Am. R. 684; S. v. Barney 555 § 916 INCIDENTAL EELATIONS AND THINGS. [BOOK VII. Another is that he shall submit to a punishment mentioned, not originally pronounced.^ If the condition is of a sort not permis- sible, it is void, and the pardon is absolute.^ 2. Breach of Condition. — If the condition is violated, — as if, it being that tlie party shall leave the country and not return, yet either he declines to go ^ or goes and comes back,* — the original sentence may be enforced.^ 3. The Condition is construed — strictly ; as, if the words are " depart without delay " from the State, it is not broken, says the Arkansas Court, by the prisoner's return to the State after he has left it;^ And when the condition was that the pardoned person should leave the State within a specified time, the court deducted a period when he was sick and deranged." § 916. 1. Partial. — As already said, a pardon may be partial. In which case it is to be construed according to its special terms.' In like manner, the recital of a specific offence limits the pardon to it.9 And the pardon of one crime will not operate as a dis- charge from any other.i" 2. Effect. — A full pardon absolves the party from all the legal consequences of his crime and his conviction, direct and col- lateral ; " including the punishment, whether of imprisonment, 32 S. C. 14, 17 Am. St. 832. But see C. Ex parte Marks, 64 Cal. 29, 49 Am. E. 0. Hatsfield, 1 Pa. Law Jour. Rep. 177. 684 ; P. v. Moore, 62 Mich. 496. 1 S. V. Addington, 2 Bailey, 516, 23 6 Ex parte Hunt, 5 Eng. 284. Yet see. Am. D. 150, S. V. Smitli, 1 Bailey, 283 ; on this general question. Rex v Miller, 1 Lee V. Murphy, supra. But see S. v.- Leach, 74, 2 W. Bl. 797; Reg. v Fox- Twitty, 4 Hawks, 193. worthy, 7 Mod. 153. 2 C. V Hatseeld, supra, P. v. Potter, ^ P. v. James, 2 Caines, 57. And see supra. See U. S. o. Six Lots of Ground, Rex w. Madan, 1 Leach, 223 ; Rex v. Bad- 1 Woods, 234. cock, Russ. & Ry. 248. Mortgage.— As S. c. Fuller, 1 McCord, 178; S. u to a mortgage to secure a condition, see Addmgton, 2 Bailey, 516, S. v. Smith, 1 Rood v Vi^inslow, 2 Doug. Mich. 68. Re- Bailey, 283 ; Rex o Madan, 1 Leach, 223; lease of Damages. — for acting under a Rol)ert.s ;■. S 14 Mo. 138, 55 Am D, 97. statute claimed to be unconstitutional, see S. t>. Smith, 1 Bailey, 283 ; S. w. Timothy v. Wright, 8 Gray 522. Chancellor, 1 Strob. 347, 47 Am. D. 557; 8 Ante, § 908, 914; Libby v. Nicola, P. V Potter, 1 Par. Or. 47. And see Rex 21 Ohio St. 414 , Franklin's Case, 5 Co. V. Aickles, 1 Leach, 390; Rex o. Thorpe, 46 b. 1 Lea^h, 396, note. 9 Ex parte Weimer, 8 Bis. 321. And 5 Flavell's Case, 8 Watts & S 197 , C. see U. S. « Cullerton, 8 Bis. 166. V. Philadelphia County Prison, 4 Brews. w Hawkins v S. 1 Port. 475 27 Am. 320; C. V. Haggerty, 4 Brews, 326. See D 641 , C. o Roby, 12 Pick 496, 508; West's Case, 111 Mass. 443. How ■> - Anonymous, Sir F. Moore, 756, pi. 1044; For the manner of enforcing it, see Crim. S v. McCarty, 1 Bay, 334 , Reg. u. Har- Pro, 1 § 1382-1386 J Dir. & F. § 897, note; rod, 2 Car & K. 294 S.. Barnes, 32S. C. 14, 17Am. St. 832; "Rex v. Greenvelt, 12 Mod. 119; 556 CHAP. LIX.] PARDON. §917 pecuniary penalty, or whatever else the law has provided.^ But — 3. Vested. — We have seen ^ that rights vested in individuals, and to some extent in the State, are not divested by a pardon. So that if a fine to the government has been paid, or the owner- ship in property has been transferred by attainder, neither will be restored unless by express words in the instrument of par- don.^ And even, under our constitutions, it is the better doc- trine that express words in the pardon cannot undo what has been done, so as to entitle the recipient to have again money he has paid in the way of fine, or have compensation for his services to the State while a prisoner under sentence.* Still, — 4. Not Vested. — If a fine has not been paid, the pardoned per- son, according at least to the common opinion, can no more be made to pay it after pardon than to serve out his term of impris- onment.^ Nor will the pardon defeat a suit by an individual for damages, founded on the same transaction.^ § 917. 1. The Capacity to be a Witness, — which the convic- tion and sentence took away, is restored by the pardon.'^ Yet only d full pardon has this effect.^ Of course, a pardon on con- dition precedent will not so operate until the condition is ful- filled, for only then has it a potential existence.^ And we have a case wherein by the majority of a divided court the same was held of a pardon on condition subsequent,!" — a doctrine more Strickland v. Thorpe, Yelv. 126 ; Perte « Hedges v. Price, 2 W. Va. 192, 94 V. Cambridge, 3 Lev. 332 , In re Deming, Am. D. 507. 10 Johns, 232, 483; Carlisle w U. S. 16 ' Hoffman v. Coster, 2 Whart. 453; "Wal. 147; Wood w. Fitzgerald, 3 Or. 568 Jones o. Harris, 1 Strob. 160; Eex «. 1 Thomas v. Sorrell, Vaugh. 330, 333 ; Reilly, 1 Leach, 454 ; Rex v. Crosby, 1 Hall V. Vaughan, 5 Co. 49 a; Tombes o. Ld. Raym. 39, 5 Mod. 15, Rex v Celier, Ethrington, 1 Lev. 120; Foxley's Case, 5 T. Raym. 369; Rex u. Castlemain, T. Co. 109 0; S. t. Foley, 15Nev. 64,37Am. Raym. 379; P. v. Pease, 3 Johns. Cas. R. 458; U. S. V CuUerton, 8 Bis. 166; 333; S. v. Blaisdell, 33 N. H. 388; Hun- Armstrong's Foundry, 6 Wal. 766; Ex nicutt v. S. 18 Tex. Ap. 498, '51 Am. R. parte Gregory, 56 Missis. 164. 330 ; Rivers v. S. 10 Tex. Ap. 177 , Schell 2 Ante, § 910, 911. v. S. 2 Tex. Ap. 30, Thornton v. S. 20 8 Tombes v. Ethrington, 1 Lev! 120; Tex. Ap. 519. But a statute may be in InreChurch'sWill, llEng. L.&Eq. 240. terms to prevent this. Houghtaling v. And see ante, § 911. Kelderhouse, 1 Par. Cr. 241 ; Evans u. S. 1 Cook V. Middlesex, 3 Dutcher, 637 ; 7 Bax. 12. And see Blanc v. Rodgers, 49 Cook «. Middlesex, 2 Dutcher, 326; ante, Cal. 15. § 9,0, » Perkins v. Stevens, 24 Pick. 277, » Baldwin v. Scoggin, 15 Ark. 427; ' Ante, § 914 (3). HoUiday v P. 5 Oilman, 214, ante, >» Carr «. S. 19 Tex. Ap. 635,53 Am. §910(4). R. 395. • 557 § 919 INCIDENTAL RELATIONS AND THINGS. [BOOK VII. than doubtful in principle. A conviction for a pardoned offence may still be shown against a witness as impairing his credit.^ 2. In a Suit for Slander, — we have seen,^ a pardon of the im- puted offence is a valid answer to the plaintiff's allegation of the truth of the words, — a proposition possibly, not probably, lim- ited in a manner to take away most of its practical operation for this country ; namely, limited to cases wherein the pardon pre- cedes the conviction.^ ' Again, — 3. Criminate Self. — A pardoned witness cannot object to a question on the ground that the answer will criminate him.* § 918. 1. Corruption of Blood, — under the English common law, is not restored by a pardon from the Crown.^ And — 2. statutory Disability. — The books present a sort of seeming foundation for a doctrine neither well defined nor satisfactory, to the effect that a disability imposed expressly by a statute as a consequence of the offence is not thus taken away.® The better doctrine is embodied in a late English case which holds that the pardon of a felon qualifies him to be the recipient of a liquor- selling license, though the statute had declared " every person convicted of felony " to " forever be disqualified " therefor.^ 3. Right to vote. — Generally a pardon restores the forfeited right to vote.8 Otherwise in Rhode Island.* And, — § 919. Second Offence. — If a second offence is made by stat- ute more heavily punishable than the first, then if the first is pardoned, it is obliterated.^" The consequence of which is that a like offence afterward committed is not a second, an4 is pun- ishable only as a first.ii We have a case wherein this reasoning was overlooked, and the contrary was held ; the learned judge observing that the pardon " neither did nor could relieve from any penal consequence resulting from a different offence, com- 1 Baum V. Claiise, 5 Hill, N. T. 196. note. See Rex «. Crosby, 2 Salk. 689 1 2 Ante, § 898 (2), note. Stat. Crimes, § 139, 140; ante, § 917, » Cnddington v. Wilkins, Hob. 81 ; 2 note. Hawk. P. C. Curw. ed. p. 547, § 48 ; 1 ' Hay v. Tower Division, 24 Q. B. D. Stark. Slander, 237, 238 561. And see Hildreth w. Heath, 1 Bradw. 1 Reg, V. Boyes, IB & S. 311, 9 Cox 82. C. C. 32, 2 Fost. & F. 157. 8 Jones v. Alcorn Registrars, 56 Missis. Co. Lit. 391 b ; Walsingham's Case, 766. 2 Plow. 547, 558. 9 Opinion of Judges, 4 R. I 583. " Rex V. Castlemain, T. Raym. 379 ; " Ante, § 898 (2) and note. Anonymous, 3 Salk. 155; C. v. Fugate, 2 " Edwards v. C. 78 Va. 39, 49 Am. R. Leigh, 724; 1 Greenl. Ev. § 378 and 377. 558 CHAP. LIX.] PARDON. § 923 mitted after the pardon, and never pardoned." i True, but the pardon by annulling the one offence prevented the other from being the second. § 920. United States. — A pardon by the President of the United States does not remove disabilities imposed by State laws.^ IV. Praetically of Grranting Pardon. § 921. Of Practical Importance — not exceeded by any of the ordinary expositions in law-books, are some questions hereto- fore neglected by legal authors, relating to the principles which should guide the executive power in granting and withholding pardons. §922. 1. Public Motives, not Private. — No official person, what- ever his station or the nature of his office, is justified in perform- ing any official acts from private motives, or in pursuance of mere private views. An executive officer, asked to grant a pardon, should neither comply nor refuse merely because he would per- sonally be pleased to see the prisoner suffer or to see him go free. He should act upon public considerations. For example, — 2. Appeal from Legislature. — He does not sit as a court of ap- peal from the legislature. If he believes the law under which a prisoner is suffering to be unwise or unjust, still this opinion can- not properly incline him to grant the pardon ; because the power which makes and unmakes laws is not in him, and officially he is required to look upon the law as just and wise, however his pri- vate opinion may revolt.^ Again, — § 923. 1. Appeal from Judicial Decision. — The power of pardon does not authorize its possessor to sit as a court of appeal. Therefore it would be unlawful for him to grant a pardon simply because he differed from the judges on a question of law.* If they were divided in opinion, but the majority were against the prisoner, that, under some circumstances, might furnish ground for leaning to mercy by issuing a pardon. 2, Judges advising Pardon. — It is familiar practice in England for the judges, when deeming a conviction wrong and having no 1 Mount V. C. 2 Duv. 93, 95. ' And see. Stat. Crimes, § 235; ante, 2 Ridley i, Sherbrok, 3 Coldw. 569; § 303 a, note, 303 6. Ex parte Hunter, 2 W. Va. 122. And see * See, in connection with this question, Armstrong's Foundry, 6 Wal. 766. But for another somewhat differing one, Crim. see Jones v. Alcorn Registrars, supra. Pro. I. § 287-294. 569 § 924 INCIDENTAL EELATIONS AND THINGS. [BOOK VII. power to order a new trial, to advise a pardon from the Crown. And it issues as of course.^ With us, there is no great scope for this practice, because of the greater freedom of our courts in granting new trials. But no reason appears why it should not be followed in proper cases ; as, where a statute created an pffence of what was not malum in se, then the highest court of the State pronounced it void, thereupon one did the forbidden thing, but the same tribunal overruled the decision and held him to be rightly convicted, the judge delivering the opinion said : " In view of the decision . . . overruled, we trust that the executive of the State will find just reasons in this case why appellant should re- ceive a pardon." ^ This case shows the possibility of a question so presenting itself in our practice that for the court to advise a par- - don would be proper. It would be often proper where new facts, showing innocence, came to light after the time for & new trial had passed ; but in such a case the judges could not listen to the facts, therefore could not tender their advice, and the pardoning officer could and should act upon them without judicial aid. There is another class of questions quite different : the court mis- construes the law to the conviction of a person morally innocent, or to the too high conviction of one whose offence is slight ; there- upon, seeing that injustice will follow the sentence, recommends a commutation or pardon. Two cases of this sort have been spe- cially stated and commented upon in the present volume.^ Probably the pardoning power should act upon the judicial recommenda- tion, but it is unfortunate that the judges should have accepted the alternative of a pardon as an excuse for not looking niore deeply into the law, and thus discovering that the opinions they were pronouncing were untenable. § 924. 1. Appeal from Jury. — An appeal does not lie from the verdict of a jury to the Governor or President on a mere question of fact. Still there may be circumstances in which it is both the right and the duty of the pardoning officer to look below the ver- dict into what, at the time of the application for the pardon, may be shown to have been the real facts. And facts unknown at the trial, or within the period allowed for applications for a new 1 Post, § 1001. 348a; C. v. Mash, 7 Met. 472; Beg. v. 2 Green v. S. 58 Ala. 190, 197, 29 Am. Dudley, 14 Q. B. D. 273, 15 Cox C. C. R. 739, 745. 624. 3 Ante, § 303 a, note, par. 13-15, 303 6, 560 CHAP. LIX.] " PAEDON. § 926 trial, may properly, as just said, be considered by the pardoning officer. 2. Jury's Recommendation. — Sometimes the jury, on finding a defendant guilty, recommends him to the mercy of the court or of the executive. If the law gives the judge a discretion as to the sentence, he will take this recommendation among the other considerations into the account when determining what it shall be.i If the law gives no discretion to the court, it will not inter- fere by advising the executive, who alone will decide the question.^ § 925. Proceed by Rule. — The pardoning officer, therefore, should proceed by rule, as do the judges in the performance of judicial acts. Technically, the power of pardon is termed discre- tionary ; so are a large part of the powers of the courts. With a court, for instance, it is discretionary whether to try a cause when it is reached on the calendar, or to continue it. Yet this discretion should be exercised on public considerations, and ac- cording to rule, not from mere private impulses or views. And a judge who should continue causes or bring them on for trial as personal motives impelled, to the injury of suitors, would commit thereby a high misdemeanor in office, for which he ought to be impeached. And the same would follow if the President or a Governor should ■ act thus on private views in granting or with- holding pardons. § 926. 1. Practical Restraint — (impeachment). — In popular writings, we often meet with injuriously false views on this sub- ject. Nothing can be more pernicious than the opinion, sometimes afloat, which assigns to the President or Governor the authority to pardon without limit, and denies to the impeaching power the right to interfere. The granting of pardons is discretionary in its nature ; therefore it is necessarily the more open to control by the impeaching power. If it comes to be understood that a single man, intrusted with the high function of pardon, can open all the prisons of the country and let every guilty person go free, thus at a blow striking down the law itself, and not be himself punished for the high mi«demeanor, the most disastrous consequences to liberty and law will sooner or later follow. Such a conclusion is itself the annihilation of law, and only upon law can liberty re- pose. Still, — 1 Post, §,934, 948, 949. " Opinion of Justices, 120 Mass. 600. VOL. I. — 36 661 § 926 a INCIDENTAL RELATIONS AND THINGS. [BOOK TIL 2. Effectual. — This sort of executive abuse will not authorize the courts to decline giving effect to the executive pardon.^ § 926 a. The Doctrine of this Chapter restated. Legislative pardons are little known either in our country or in England. Practically in England they are from the Crown ; with us, from the President or Governor, according as the offence was against the United States or a State. Tlie operation of a pardon is to obliterate in law the crime and the judgment of conviction therefor, leaving the pardoned person as though it had never been committed. Still, there may be a partial pardon, which will operate less broadly. Or the pardon may be conditional, when, if the condition is precedent, it will have no effect until the thing transpires which makes it absolute ; if subsequent, on the trans- piring of the thing it will cease. Under the general law, an offence is pardonable the moment it is committed, yet not before. But most of our constitutions, not all, permit pardon only after conviction. Yet the conviction within their meaning consists of a verdict or plea of guilty, so that the pardon may transpire before sentence. 1 S. V. Ward, 9 Heisk. 100. 562 CHAP. LX.] PUNISHMENT BY SENTENCE. § 930 BOOK vni. THE CONSEQUENCES OP CEIME AND ITS PEOSECUTION. CHAPTER LX. THE PUNISHMENT BY SENTENCE OP COURT. § 927-929. Introduction. 930-932. Errors in Sentence. 933-953. Sorts and Extent of Punishment. 954-958. Specially in Joint Convictions. 958 a. Doctrine of Chapter restated. Consult, — for the practical steps, form of the sentence, record, and the like, Crim. Pro. I. § 77-94, 275-277, 1035-1037, 1289-1386, 1398-1400; Dir. & E. § 97, 1070- 1073. § 927, The Consequences of Crime — come not directly frotn the , crime itself, but from the proceedings in court, or the sentence.^ § 928. This Chapter — is in matter closely related to those in " Criminal Procedure " entitled " The Sentence," " The Execu- tion of the Sentence," " The Record," ^ and some others. Yet all is arranged to avoid repetitions. § 929. How divided. — We shall consider, I. Errors in the Sen- tence ; II. The Sorts and Extent of the Punishment ; III. Spe- cially in Joint Convictions. I. Errors in the Sentence. § 930. 1. An Erroneous Sentence — is one to which, by the record, the party is not liable. And — 2. Subject to Reversal. — Commonly on due application it will be reversed.^ But — 1 Crim. Pro. 1 § 89 et seq. 7 A. & E. 58, 1 Jur. 542 ; Silversides «. 2 Crim. Pro. I. § 1289-1374. Reg. 2 Gale & D. 617 ; Tully v. C. 4 Met. 8 Rex V. Ellis, 5 B. & C. 395, 8 D. & 357 ; Daniels v. C. 7 Pa. 371 ; Wilde v. C. E. 173 ; Bourne v. Rex, 2 Nev. & P. 248, 2 Met. 408 ; S. v. Gray, 8 Vroom, 368. 563 § 932 CONSEQUENCES. [BOOK VIII. 3. An Error in the Defendant's Favor — will not, by the practice of some of our American courts, avail him ; as, where the punish- ment is less than the law prescribes,^ — for example, imprisonment for two years, the minimum of the statute being three.^ Other of our courts^ and the English* hold that since it violates the law to inflict a less punishment than the lowest permitted by the statute,^ one may assign this sort of mistake in his favor for error. Yet — § 931. 1. Distinct Punishments. — Harmoniously with the latter view, if the law provides distinct punishments, a sentence to one of them with the other omitted will Jiot be erroneous ; ® or if a separable part of the sentence is, unlawful and the rest lawful, it may be reversed as to the former and affirmed as to the latter. Thus, — 2. Fine and Abatement. — Where the fine for a nuisance was by statute to be not less than five dollars and in the sentence it was four, with an order of abatement, the court reversed it as to the fine and affirmed it as to the abatement.'^ So, — 3. Fine and Repair. — If the law subjects a man to a fine and an order to repair a way, he cannot complain by writ of error should only the former be imposed.^ Again, — § 932. Error not affecting Prisoner. — Where the statute makes a fine payable one half to the informer and the other half to the State, yet the whole is adjudged to the State, there will be no re- versal on prayer of the defendant ; since the disposition of the fine does not concern him.® 1 Ooton V. S. 5 Ala. 463 ; C. v. Shanks, « Cole v. P. 84 111. 216. 10 B. Monr. 304 ; Barada v, S. 13 Mo. 94. 6 djuou „. S. 38 Ohio St. 586 ; Reg. u. And see Jones v. S. 13 Ala. 153 ; CampbeU Castro, 5 Q. B. D. 490, 504, 508 ; Castro V. S. 16 Ala. 144. „. Reg. 6 Ap. Cas. 229, 232-234. 2 Wattingham v. S. 5 Sneed, 64 ; Mc- 7 Taff v. S. 39 Conn, 82, on the au- Kinney, J. observing : " The rnle that a thority of In re Sweatman, 1 Cow. 144, party cannot assign for error that which and S. v. James, 37 Conn. 355. is for his own advantage applies as well 8 Kane v. P. 8 W^end. 203, 211 ; s. p. to criminal as to civil proceedings." p. McQuoid «. P. 3 Gilmau, 76; Dodge v. S. 65 ; P. V. Bauer, 37 Han, 407. And see 4 Zab. 455. See Earth y. S. 18 Conn. 432. Hoskinsi'. S. 27Ind. 470; Behleru. S. 22 » Rawlings v. S. 2 Md. 201. See Ind. 345; Crim. Pro. I. § 1374. further, on this subject. Nemo v. C. 2 8 Rice V. C. 12 Met. 246 ; Taff v. S. 39 Grat. 558; Sword v. S. 5 Humph. 102; C^0"°- 82- Daniels v. C. 7 Pa. 371 ; Logan's Case, ^ Whitehead v. Reg. 7 Q. B. 582, 9 Jur. 5 Grat. 692. 594, 1 Cox C. C. 199 ; Bourne v. Rex, 2 Nev. & P. 248, 7 A. & E. 58. 564 CHAP. LX.] PUNISHMENT BY SENTENCE. § 936 II. The Sorts and Extent of the Punishment. § 933. statutory — Common Law. — The common law provides punishments for all its offences. But ordinarily with us legisla- tion fixes the penalties for the common-law offences equally with the statutory ones. Sometimes a common-law punishment re- mains ; and often, in interpreting a statute, a knowledge of the unwritten law of the subject becomes indispensable. § 984. 1. Court or Jury. — Under the common-law procedure, the court determines in each case what within the limits of the law shall be the punishment, — the question being for the judicial discretion.! But in some of the States, the statutes require the jury to assess the punishment in their verdict.^ In some others the responsibility is divided between judge and jury.^ And — 2. Constitutional. — This sort of legislation has been adjudged not unconstitutional.* § 935. Common-law Punishment for Felony — (Rape — Petit Lar- ceny — Mayhem). — The ordinary common-law punishment for fel- onies is, as before shown,^ death by hanging ; the exceptions, it is said, are petit larceny,^ rape, and mayhem.' Therefore death is the award of the law for a statutory felony where no specific pro- vision directs otherwise.^ But — § 936. Benefit of Clergy. — Since felonies comprehend a large part of the crimes, the uniform infliction of death would be too bloody. For which evil the wisdom of our forefathers found a rem- edy in the plea of clergy, or benefit of clergy ; or, as it was some- times termed after the passage of various acts of Parliament on 1 tr. S. V. Mundel, 6 Call, 245, 248; S. Spain v. S. 59 Missis. 19; Harwell v. S. V. Bangor, 41 Me. 533. 19 Tex. Ap. 423 ; Williams i;. S. II Tex. 2 As to which see Fooxe v. S. 7 Misso. Ap. 63. 502 ; McWhirt's Case, 3 Grat. 594, 46 Am. « Cook v. V. S. 1 Greene, Iowa, 56 ; S. D. 196 ; Cook V. U. S. 1 Greene, Iowa, 56 ; v. McQuaig, 22 Mo. 319 ; Behler v. S. 22 C. !>. Frye, 1 Va. Cas. 19; Dias v. S. 7 Ind. 345; Moss v. S. 42 Ala. 546; Melton Blackf. 20, 39 Am. D. 448 ; Doty v. S. 6 v. S. 45 Ala. 56 ; Herron v. C. 79 Ky. 38 ; Blackf. 529 ; S. v. Douglass, 1 Greene, Calton v. Utah, 130 U. S. 83. Iowa, 550; Nemo v. C. 2 Grat. 558; Er- ' Rice v. S. 7 Ind. 332 ; S. v. Hockett, vine V. C. 5 Dana, 216; Hawkins v. S. 3 70 Iowa, 442. Stew. & P. 63 ; Chesley v. Brown, 2 Fairf. « Ante, § 615 (3). 143, 147 ; ■ Blevings o. P. 1 Scam. 1 72 ; « Rex v. Ellis, 5 B. & C. 395, 8 D. & R. O'Herrin v. S. 14 Ind. 420 ; S. u. Bean, 173 ; Gray v. Reg. 6 Ir. Law, 482, 502. 21 Mo. 269 ; Morton v. Princeton, 18 111. ' 2 Hawk. P. C. Curw. ed. p. 472, § 7. 383 ; Leech v. Waugh, 24 111. 228 ; Gun- » 4 Bl. Com. 98 ; S. v. Scott, 1 Hawks, ter V. S." 83 Ala. 96 ; Frye v. S. 7 Tex. 24, 34. And see ante, § 622 (2). Ap. 94 ; Johnson v. S. 5 Tex. Ap. 423 ; 565 § 937 CONSEQUENCES. [BOOK VIII. the subject, the benefit of the statutes. A word explanatory of this benefit of clergy, by way of memento of departed piety, humanity, and genius, will not be inappropriate. § 937. Clergy explained. — The privilege of clergy, says Coke, " took its roots from a constitution of the Pope that no man should accuse the priests of Holy Church before a secular judge."' Thereupon the clergy in England demanded exemption from the jurisdiction of the lay tribunals ; and to an extent not quite cer- tain, the ancient common law and acts of Parliament as early as Edward I. or earlier acceded thereto. The course seems to have been that when a priest in orders ^ was brought before a temporal judge on a charge of felony,^ his case was transferred, either with or without trial, to the ecclesiastics.* Yet the clergy frequently complained tliat their privilege was violated, and accordingly statutes were from time to time enacted to secure it, till this in- dulgence became the right not only of clerks in ord^s, but of all persons capable of becoming such ; namely, of all males, without canonical impediment, able to read.^ Later, the canonical impedi- ments, the impediment of being a woman,® and that of ignorance, were abrogated.'^ Finally, t;he privilege became pleadable only after conviction,^ and the offender was not to be delivered to the ecclesiastics.^ During almost the entire period in which this plea was allowed, the convict was burned in the hand before being dis- charged ; and for a short time, for larceny, he was burned on the left cheek, near the nose.'" Yet to prevent a general immunity from punishment for felony, statutes were also passed taking away the benefit of clergy from specific felonies ; and sometimes the same act which created a felony provided that it be punished with death without benefit of clergy." The plea was abolished in Eng- land, in 1827, by 7 & 8 Geo. 4, c. 28, § 6 j and in the following year, for Ireland by 9 Geo. 4, c. 54.12 T^jg outline the reader can fill up by consulting the older English books on the criminal law.i^ 1 2 Inst. 636. See also 1 Burn Ec. ' lb. p. 501, § 115. Law, Phillim. ed 185. 8 ib p 493^ § no. 2 Searle v Williams, Hob. 288. 9 4 Bl. Com. 369. ■' 2 Inst. 636. 10 2 Hawk. P. C. Curw. ed. p. 502-507, * 2 Hawk, P. C. Curw, ed. p. 498, § 121-135 § 110; 4 Bl. Com. 333; 2 Inst. 633 " 2 Hawk. P. C. Curw. ed. p. 483 et 5 2 'Hawk. P C. Curw. ed. p. 471, seq. § 4. 5- 12 Gray v. Reg. 6 Tr. Law, 482,' 504. 8 lb. p. 472, § 6, 8. 18 And see Duchess of Kingston's Case, 566 CfiAP. LX.] PUNISHMENT BY SENTENCE. § 940 § 938. In this Country, — the benefit of clergy is ordinarily ac- knowledged as belonging to our common law,^ and our books con- tain some cases in which it was pleaded. The Indiana^ and Minnesota ^ courts have rejected it. In North Carolina, the priv- ilege has been conceded to women, the court observing: "No reason can at this day exist why females shall not be entitled to the benefit of clergy, as well as males." * Yet, with us, as in Eng- land and Ireland, it has generally been abolished by statutes. How it is in two or three States, such as North Carolina and South Carolina,^ where it was in force at dates comparatively recent, the author is not informed. § 939. 1. Hanging, — therefore, which is the original punish- ment for felony, is little used with us, the ordinary penalty being imprisonment in the State prison.^ 2. Transportation, — in modern times a familiar pimishment in England, is unknown at the common law,'^ and it has not been introduced into our country.^ § 940. Common-Ia'w Punishment for Misdemeanor. — The ordi- nary common-law punishment for misdemeanor is fine and impris- onment, or either, at the discretion of the C(;)urt.? It is imposed whenever the law has not provided some other specific penalty.^" . For example, when a statute forbids or commands an act of a pub- lic nature," but is silent as to the punishment, the common law 1 Leach, 146; Armstrong v. L'Isle, 12 may be shown hy a witness. Keith v. Mod. 109, 110; Rex v. Mouncer, 2 Leach, Goodwin, 6 Jones, N. C. 398. 567, 2 East P. C. 639; Rex v. Byford, 5 s. v. Bosse, 8 Rich. 276; S. v. Sut- Russ. & Ry. 521. ■ cliffe, 4 Strob. 372. 1 S. V. Jernigan, 3 Murph. 12; s. c. « See ante, § 616, 935. nom. S. V. Jernagan, N. C. Term, 44; ' Archb. NewCrim. Pro. 182; 2 Hawk. S. V. Kearney, 1 Hawks, 53 ; S. v. Scott, 1 P. C Curw. ed. p. 507 et seq. ; Rex v. Hawks, 24; S. v Isham, 3 Hawks, 185, Lewis, 1 Moody, 372; Rex v. Hope, 1 S. V. Boon, Taylor, 246 , S. v Seaborn, 4 Moody, 396 ; Bullock v. Dodds, 2 B. & Dev. 305 ; S. v. Henderson, 2 Dev & Bat. Aid. 258. 543; S. V. Carroll, 2 Ire. 257; S. v. Sut- « S. v. Bosse, 8 Rich. 276. But see cliffe, 4 Strob. 372 ; C. v. Posey, 4 Call, Aldridge v. C. 2 Va. Cas. 447. 109, 2 Am. D. 560; C. v. Miller, 2 Ashm. ' S. v. Roberts, 1 Hayw. 176; North- 61; C. V. Gable, 7 S. & R. 423; Mass. ampton'sCase, 12Co. 132, 134. Such other Stat. 1784 c. 56. inflictions as are mentioned in sections " Fuller 1). S. 1 Blackf. 63. following may sometimes, under the com- ' S. V. Bilansky, 3 Minn. 246. men law of England, be added. 2 East * S. V. Gray, 1 Murph. 147. Also, in P C. 838. this State, it seems that the statutory i" Cornelison v. C. 84 Ky. 583 ; Conner pardon, incident to the,benefit of clergy, v. C. 13 Bush, 714; Syracuse, &c. Plank does not take effect until the party is Road v. P. 66 Barb. 25 ; Atchison v. S. 13 burned in the hand and delivered. If the Lea, 275. record accidentally omits this matter, it " Ante, § 237. 567 § 942 CONSEQUENCES. [BOOK VIII. provides fine and imprisonment.^ A majority of the Connecticut Court held that the fine must be for a limited sum, not for all the defendant's property ; and the imprisonment, for a stated number of years, not for life.^ But this distinction is in principle doubt- ful. Still it is held that the imprisonment may not be for an in- definite term.2 § 941. statutory Fine "and" Imprisonment — "Or." — Where the words of the statute are fine and imprisonment, both must be inflicted ; * otherwise where the conjunction is or, then only one of them can be imposed.^ § 942. other Common-law Punishments, — used chiefly for par- ticular misdemeanors, are such as — Pillory — Whipping — Ducking — Slitting Nostrils — and per- haps some other of the like disgraceful kind.^ Said an American judge : " The general rule of the common law was that the pun- ishment of all infamous crimes should > be disgraceful ; as, the pillory for every species of crimen falsi,'' as forgery, perjury, and other offences of the same kind. Whipping was more peculiarly appropriated to petit larceny, and to crimes which betray a mean- ness of disposition, and a deep taint of moral depravity." ^ But — ' TJ. S. V. Coolidge, 1 Gallis. 488, 493. with imprisonment of their bodies until 2 S. p. Danforth, 3 Conn. 112. And their hot bloods be cooled, and their dis- see Respublica v. De Longchamps, 1 Dall. temperat humors be qualified : but they do 111; S. u. Myhand, 12 La. An. 504; impose sharper and more durable punish- Shuttleworth v. S. 35 Ala. 415. And see meats upon such as do forge deeds, com- post, § 947 (2). mit or procure perjurie, or be maintainors 3 Scott «. Chambers, 62 Mich. 532. of other mens suits or quarrels: account- And see S. u. Rice, 97 N. C. 421. ing these last offences to tend more and * U. S. V. Vickery, 1 Har. & J. 427. for a longer time to the breach or blemish ^ S. V. Walters, 97 N. C. 489 ; S. v. of the peace, or hinderance of the justice Mooney, 27 W. Va. 546 ; S. p. Kearney, 1 of the realme than the former doe ; as he Hawks, 53. And see, further, Wilde v. C. that committeth (orgerie in some cases 2 Met. 408 ; Ex parte Montgomery, 79 shall be set on the pillorie, loose his eares, Ala. 275; Johnson v. S. 18 Tex. Ap. 7. have his nostrels slit, and pay to the partie That a fine is not a debt, see Dixon v. S. grieved his double costs and damages : 2 Tex. 481. and in some eases, shall be hanged as a " 4 Bl. Com. 377. And see Rex v. felon: he that committeth perjurie, shall Bland, 2 Leach, 595, 2 East P. C. 760 ; in some cases be one yeare imprisoned, be Rex i). Thanet, 1 East P. C. 408 ; Old- set upon the pillorie, and never after be field's Case, 12 Co. 71; Rex v. Howell, allowed as a witnesse : and he that main- Russ. & Ry. 253. tayneth other men's suits shaJl in some ' s. p. Lewis w. C. 2 S. & R. 551. cases be three yeres imprisoned, and 8 Taylor, C. J. in S. v. Kearney, 1 further punished at the king's pleasure: Hawks, 53, 54. Pulton says : " Our lawes and in some other cases sustaine other dis- do chastise those that breake the peace by graces." Pulton de Pace, ed. of 1615, fraies, assaults, batteries, riots, or routs, 42 b. 568 CHAP. LX.] PUNISHMENT BY SENTENCE. § 945 § 943. 1. Whipping and Pillory with us. — Though whipping ^ and tlie pillory are not absolutely unknown in this country, they are nearly so. And we may doubt whether, without the aid of a statute, a tribunal in our States would employ either. Under the national government, they were abolished by act of Congress in 1839.2 2. Ducking — is the old punishment of a common scold.^ It was inflicted by the offending woman being, as explained by Blackstone, " placed in a certain engine of correction called the trebucket, castigatory, or eucking-stool, which in the Saxon lan- guage is said to signify the scolding-stool ; though now it is fre- quently corrupted into ducking-stool, because the residue of the judgment is that when she is so placed therein, she shall be plunged in the water for her punishment." * We have few Ameri- can precedents to the question, but such as we have substitute fine and imprisonment for the ducking.^ § 944. 1 . Forfeitures of Specific Articles, — when not within the expositions of a preceding chapter,^ are a species of fine, resting on the same principle as a sentence to pay a supi of money. We have no gen&ral practice of imposing this sort of forfeiture, but it is sometimes done under the direction of a statute.^ 2. The Forfeiture of an OfBce,^ — or of the capacity to hold office,^ is another form of punishment occasionally provided for by our statutes. § 945. 1. Bonds for Peace, &c. — Under the common law, in all cases of misdemeanor, the court has an authority, which it may exercise or not in its discretion, to require as a part of the sen» fence that the defendant give bonds to keep the peace and be of good behavior.i" _^g to when practically it will order them, — 2. Gross Misdemeanor — (Gaming — Bawdy-house — Liquor-selling Libel). Our- reported decisions are not distinct on this ques- 1 C. V. Wyatt, 6 Rand. 694; S. v. » C. is Fugate, 2 Leigh, 724; In le E. Kearney, 1 Hawks, 53. 65 How. Pr. 171. 2 5 U. S. Stats, at Large, c. 36, § 5 ; ^ Doty v. S. 6 Blackf. 529; Barker v. R S. of U. S. § 5327. P- 3 Cow. 686, 20 Johns. 457, 15 Am. D. 8 Reg. w.Foxby, 6Mod. 11. 322. 4 4 Bl Com 169 '" I'""!! "• ^^S- 12 Q. B. 1031 ; O'Con- 6 James v. C. 12 S. & R. 220 ; U. S. v. nell v. Reg. 11 CI, & F. 155 ; Rex v. Hart, Royall, 3 Cranch, C. C. 620. 30 How. St. Tr. 1131, 1194, 1344, 12 Q. 6 Ante « 816-835. B. 1041, note; Reg. v. Dunn, 12 Jur. 99 ; ' Boles' «. Lynde, 1 Root, 195. Rex .. Rainer, 1 Sid. 214; Territory v. Nugent, 1 Mart. La. 103. 569 § 947 CONSEQUENCES. [bOO^ VIII. tion, and doubtless the practice in the several States differs. We have a case which holds that there need be no sureties on convic- tion for a single not aggravated act of gaming ; the misdemeanor must be gross. And Green, J., distinguished as follows : " The offence of keeping a bawdy-house is in its nature a gross misde- meanor ; so also of a gaming-house, or disorderly house. But the selling of a single half-pint of whiskey, unaccompanied by any other fact, although against law, and a misdemeanpr, would not be a gross misdemeanor. But if it were to appear in evi- dence that the party selling was surrounded with drunken, noisy, obscene men, to the great annoyance of the public, this state of things, produced by this practice, and in part by the very whiskey he might be convicted of selling, would constitute such violation of the law a gross misdemeanor. So a libel might or might not be a gross offence, according as the circumstances of the publication and its character might mitigate or aggravate it. So a game of cards might be played against law, but under cir- cumstances that would not justify, in this legal view of the sub- ject, the denomination of a gross misdemeanor. But -if played in connection with common gamblers associated at a gaming-house, or, as is sometimes the case, by the roadside on Sunday, with negroes, it would be a gross misdemeanor. These illustrations are only intended to indicate the general character of offence to which, we think, this power of requiring sureties for good be- havior pertains." ^ § 946. " Cruel and Unusual Punishment " — is forbidden by the Constitutioft of the United States.^ This clause does not bind the States.^ But largely there is a like provision in the State constitutions,* — not in all in these exact words.^ § 947. 1. Two Forms. — The " cruel and unusual punishment " may be either excessive in degree, or of a sort not permissible. Thus, — 2. Degree. — Though of a permissible kind, it may violate the Constitution by being excessive.* In reason, it would not seem 1 Estea V. S. 2 Humph. 496, 499. * S. v. Driver, 78 N. C. 423 ; S. v. Wil- 2 Const. U. S. amendm. art. 8. liams, 77 Mo. 310; Lillard i;. S. 17 Tex. ' Story Const. §1904; InreKemmler, Ap. 114, 119; Foote i>. S. 59 Md. 264; S. 136 U. S. 436, 446 ; Pervear v. C. 5 Wal. v. Pettie, 80 N. C. 367, 30 Am. R. 88. 475 ; James v. C. 12 S. & E. 220 ; Barker 6 Blydenburgh v. Miles, 39 Conn. 484. V. P. 3 Cow. 686, 20 Johns. 457, 15 Am. D. « S. v. Driver, 78 N. C. 423. 322. 570 CHAP. LX.] PUNISHMENT BY SENTENCE. § 947 possible to lay down, for example, any uniform rule as to the number of years' imprisonment allowable, so varying are the facts of cases. The North Carolina Court seems to deem five years too long for any common-law misdemeanor, while yet two years are not too much for a malignant wife-beating.^ In Cali- fornia, imprisonment for two years and a fine of four thousand dollars were adjudged permissible for an assault with a deadly weapon.^ And in Iowa a five years' imprisonment was held not excessive for an assault with intent to kill.^ Other cases are referred to in a note, but it is believed that this sort of illustra- tion will not be of great practical help.* If the statute specifies a minimum punishment, but is silent as to a maximum, a sen- tence justified by it will not he adjudged void on the ground that the statutory terms authorized what, if rendered, would be excessive.^ 3. Sort — (Fine — Imprisonment — Stripes — Disfranchisement). — The adjudged cases are not sufficiently numerous to furnish ma- terial for a rule as to what punishments in kind are " cruel and unusual." ^ Fine and imprisonment," stripes,^ disfranchisement and the forfeiture of citizenship,' are severally permissible. Evi- dently, in reason, the punishments commonly inflicted at the time when the Constitution was adopted, could not be deemed " un- usual," and no punishment is " cruel " simply because it is severe, or " cruel and unusual " because it is disgraceful. But — 4. Torture — Methods of inflicting Death. — " Punishments are cruel when they involve torture or a lingering death." So is all mere torture.^" Yet consistently with this view, the death sen- tence may be inflicted by shooting " or by electricity,^ if the stat- ute so ordains. 1 S. V. Pettie, 80 N. C. 367, 30 Am. R. ' Ligan v. S. 3 Heisk. 159. 88. 8 C. V. "Wyatt, 6 Rand. 694 ; Foote v. S. 2 Ex parte Mitchell, 70 Cal. 1. 59 Md. 264 ; Garcia v. Territory, 1 New 8 S. u. Mower, 68 fowa, 61. Mex. 415. See Aldridge v. C. 2 Va. Cas. * Garcia v. Territory, 1 New Mex. 415 ; 447. Ex parte Bedell, 20 Mo. Ap. 125; S. v. » Huber ». Eeily,53,Pa. 112. SeeWil- Upson, 64 Iowa, 248; S. v. Miller, 94 N. C. son v. S. 28 Ind. 393. 904; S. V. Williams, 12 Mo. Ap.415; Lil- " Fuller, C. J. in In re Kemmler, 136 lard v.S.n Tex. Ap. 114; S. v. Hazen, U. S. 436, 447. 39 Iowa, 648. ■'^ P- "• Wilkinson, 2 Utah, 158; Wil- 6 S. V. Williams, 77 Mo. 310. And see kerson v. Utah, 99 U. S. 130. S. V. Durston, 52 Iowa, 635 ^'^ In re Kemmler, supra ; P. v. Dur- 6 See Story Const. § 1903 ; S. v. Adams, ston, 119 N. Y. 569 ; P. v. Kemmler, 119 1 Brev. 279 ; Turnipseed v. 8. 6 Ala. 664. N, Y. 580. 671 § 948 CONSEQUENCES. [BOOK VIII. § 948. 1. Aggravation and Mitigation. — The entire transaction in which a crime was committed may embrace more of wicked- ness than the indictment charges ; or there may be other circum- stances of aggravation, on the one hand, or of mitigation, on the other. Therefore if the law has given the court a discretion as to the punishment, in pronouncing sentence it will look into any evi- dence proper to influence a judicious magistrate to make it heavier or lighter,^ yet not to exceed the limits fixed for what of crime is within the allegation and the verdict.^ Or this sort of evidence may be delivered to the jury at the trial, if with it is the assess- ment of the punishment.^ But we have authority for the propo- sition that in such a case the aggravating matter must not be of a crime separate from the one charged in the indictment,* — a rule perhaps not applicable where the court determines, after ver- dict, the punishment. 2. Guilt, — on this issue before the court, is not to be denied, the verdict being conclusive ; therefore testimony will not be heard tending to prove that no crime in law was committed.^ Yet — 3. On the Plea of Nolo Contendere, — entered by permission of court,^ innocence, it seems, may be shown.'' > Crim. Pro. I. § 1294; S. v. Towns- immediate consequence of the offence for end, 2 Barring. Del. 543 ; Bobbins v. S. which the defendant is on trial, it may 20 Ala. 36; Rex i). Mahon, 4 A. & E. 575 ; be shown; but if it is a distinct crime, Kex I'. Lynn, 2 T. R. 733 ; Rex «. Grey, not necessarily connected with the offence 2 Keny, 307; Wilson ^. The Mary, Gil- charged in the indictment, it cannot be pin, 31; Rex y. Turner, 1 Stra. 139 ; Rex received.' Baker v. S. 4 Pike, 56, 61. V. Burdett, 4 B. & Aid. 314 ; S. v. Smith, The decision in Skains v. S. 21 Ala.'218, 2 Bay, 62 ; Rex v. Sharpness, 1 T. R. 228 ; 222, is express to the point that evidence Rex «. Withers, 3 T. R. 428; Rex v. Wil- of distinct offences, not charged in the hams, Lofft, 759; Rex o. Pinkerton, 2 indictment, cannot be looked to in aggra- East, 357 ; Rex o. Mawbey, 6 T. R. 619, vatiou of the fine." 627; Morton v. Princeton, 18 111. 383; 6 g. „. Brinyea, 5 Ala. 241; 2 Gab. Sarah v. S. 18 Ark. 114 ; P. v. Stokes, 66 Crim. Law, 540. N. Y. 342. See Rex v. Cox, 4 Car. & P. 6 Crim. Pro. L § 802-804 538 ; Rex i> Esop, 7 Car. & P. 456 ; F. v. 7 Reg. „. Templeman, 1 Salk. 55, in Cochran, 2 Johns. Cas. 73. which case it is said that Lord Holt, C. J. o n. S""^" V°^^ '• ^^'^ "■ "Withers, " took a difference where a man confesses oo« 4 ' ^««='>"'^a«gli.24IU. an indictment and where he is found 228 ; ante, § 930. g„;ity ; in the first case a man may pro- 8Rosenbaumw.S.33Ala.354. • duce affidavits to prove [this was for ^gram «^S 39 Ala. 247, 253, 254, 84 assault and battery] son assault upon the Am.U. 782; R.W.Walker, J. observed; prosecutor in mitigation of the fine; It is said that 'in giving evidence of otherwise when the defendant is found matter in aggravation, the distinction is guilty." See also Rex v. Minify, 1 Stra. that where the aggravating matter is the 642. 672 CHAP, LX.] PUNISHMENT BY SENTENCE. § 953 § 949. Hanging, — ill punishment for felony, does not in its nature admit of aggravation or mitigation. Beyond which, it seems to be the English rule not to receive matter in aggravation even of a non-capital felony.^ But in principle, this practice should be applied to the higher crimes the same as to the lower, yet to none where the law gives the court no discretion ; and such is believed to be the common course in our American tribunals. § 950. This Evidence, — thus addressed to the discretion of the judge, need not be attended by the formalities required on the main issue before the jury. The court will now, if it sees no reason to order otherwise, listen to ex "parte affidavits.^ And even hearsay evidence, inadmissible on general principles, has under special circumstances been suffered on this issue.* A wit- ness may be compelled by subpoena to be present.* And counsel will be heard.^ § 951. Day of Punishment. — The day on which death or other corporal pain is to be inflicted need not be inserted in the judg- ment.® If it is not, it may be in the warrant ; ' or if it is in the judgment, and execution fails on that day, — as, where the sher- iff dies,^ or the prisoner escapes, then is retaken,^ — the court may direct it to be done on a subsequent day. And — § 952. statutoty Day. — A statute defining when, after con- viction or other period, the sentence shall be executed, is direc- tory ,10 and it may lawfully be done later." Yet if by the statutory terms it is suspended for a designated time, the prisoner may ob- ject to an earlier execution. ^^ § 953. 1. Judgment for Two or More Offences. — If one under 1 Eex V. Ellis, 9 D. & R. 174, 6 B. & C. Doyle, 1 Leach, 67. And see "Webster 145. V. C. 5 Cash. 386, 407 ; Rex v. Hartnett, 2 Reg. V. Templeman, 1 Salk. 55 ; Rex Jebb, 302 ; Crim. Pro. I. § 1311. And see V. Morgan, 11 East, 457 ; Rex v. Pinker- P. v. Murphy, 45 Cal. 137. ton, 2 East, 357 ; Reg. period of imprisonment shall commence on the termination of that next preceding.^ Thereupon, — 2. Pardon — Reversal on Error, &c. — If the earlier period is afterward shortened by good conduct, or by a pardon of the offence, or a reversal of the sentence on writ of error, the next following one commences immediately, the same as if the earlier were ended by lapse of time.^ III. Specially in Joint Convictions. § 954. In Principle, — since One who participates with others in a crime is guilty of all, the same as though he had performed the criminal act unaided,^ on a joint conviction or on a conviction of a part after the others have had their punishment, each should receive a several sentence, and the same in extent as if he had done the whole alone and had been alone convicted. And we are about to see that this is so likewise in authority. § 955. 1. Distinguished from Civil. — We have seen that the purpose of a civil suit is to compel the defendant to compensate the plaintiff for what he has unjustly suffered, while that of the criminal is punishment and the cure of a public wrong; 1 C. V. Leath, 1 Va. Cas. 151 ; Mills v. Kirk, 9 Leigh, 627; S. v. Turner, 2 Mc- C. 13 Pa. 631, 634 ; S. v. Smith, 5 Day, Mullan, 399 ; Townsend v. P. 3 Scam. 175, 5 Am. D. 132; Wilkes «. Rex, 4 Bro. 326; S. v. Davidson, 12 Vt. 300; S. u. P. C. 360, 367 ; Kite y. C. 11 Met. 581 ; Lassley, 7 Port. 526 ; Priar v. S. 3 How. P. V. Forbes,, 22 Cal. 135; Ex parte Dal- Missis. 422; S. v. Hood, 51 Me. 363. But ton, 49 Cal. 463; Williams «. S. 18 Ohio this question is more particularly for St. 46. And see Rex v. Bath, 1 Leach, Crim. Pro. I. § 458, 1327, and notes. 441 ; Cole v. S. 5 Eng. 318 ; P. v. Forbes, The case of Miller v. Allen, 11 Ind. 389, 22 Cal. 135 ; Reg. o. Cutbush, Law Rep. 391, which is contrary to the text, is sim- 2 Q. B. 379, 10 Cox C. C. 489 ; Ex parte ply a mistake, the court not having been Meyers, 44 Mo. 279 ; Ex parte Turner, 45 referred to the authorities. And see Mo. 331. As to the rule where there are James v. Ward, 2 Met. Ky. 271. convictions on several counts of one in- ^ Opinion of Justices, 13 Gray, 618 ; dictment, compare Rex v. Robinson, 1 Kite w. 0. 11 Met. 581, 585 ; Brown v. C. Moody, 413, and Gregory v. Reg. 15 Jur. 4 Rawle, 259, 26 Am. D. 130; Ex parte 79, 19 Law J. N. 8. Q. B. 366, with Carlton Roberts, 9 Nev. 44, 16 Am. R. 1. We V. C. 5 Met. 532, and Booth v. C. 5 Met. meet in the books with some qualifications 535 ; and see Baker v. S. 4 Pike, 56 ; and denials of this which is deemed the Barnes w. S. 19 Conn. 398 ; Rex v. Tandy, just doctrine ; as, see Crim. Pro. I. § 1327 ; 2 Leach, 833, 1 East P. C. 182 ; Crowley In re Lamphere, 61 Mich. 105 ; Larney v, V. C. 11 Met. 575 ; Kite v. C. U Met. Cleveland, 34 Ohio St. 599. 581 ; Josslyn v. C. 6 Met. 236 ; C. v. » Ante, § 629 et seq. 674 CHAP. LX.] PUNISHMENT BY SENTENCE. § 956 and we have obsei'ved some distinctions growing out of this diversity.^ Therefore in a civil suit, however numerous the wrong- doers, the plaintiff is to be remunerated for his sufferings only once ; in a criminal one, where each is as guilty as though the others were not guilty also, and nothing is for pay, but all is for punishment, the full penalty is to be inflicted pn each, the same as though he had committed the crime unaided.^ Even, in some cases, the mere combining with others will make a man indict- able when he would not be if he had undertaken, or actually per- formed, the same wrong singly. Bat aside from this doctrine of conspiracy, — 2. The Rule — is that where two or more are convicted together of the same offence, the sentence against them is several, each to pay the whole forfeiture, or suffer the whole of whatever other penalty or punishment the law provides, precisely as though he were the only participant in the act.^ § 956. In Penal Actions, —. which are civil,* for the recovery of penalties, — for example, an action qui tarn, — the contrary rule of the civil suit prevails, though the thing done is in its nature criminal. The element of the private interest works the difference. If the thing complained of is a single joint act, the participants may be sued jointly ; and the judgment must be joint, for one damage, contrary to the rule in the proceeding by indictment.^ And when the full penalty has been adjudged against one, and by 1 Ante, § 208, 221, 235, 256-263, 264, Law Rep. 6 Q. B. 293 ; Rex u. Maiming, 265 301. 2 Comyns, 616; McLeod v. S. 35 Ala. 2 2 East P. C. 740 ; Reg. v. King, 1 395 ; Waltzer v. S. 3 Wis. 785, 786, where Salk. 182; C. v. McAtee, 8 Dana, 28 ; S. Smith, J. said: "The guilt of one is V. Smith, 1 Nott & McCord, 13 ; Reg. «. neither mitigated nor enhanced from the Atkinson, 2 Ld. Raym. 1248, 1 Salk. 382, fact that another may be also guilty;" 11 Mod. 79, as to which see the report in Curd v. C. 14 B. Monr. 386. Husband Mod. where Holt, C. J. said, " but they and Wife, — where jointly indicted, and shall severally hare judgment ; " God- the punishment is a fine, are within this frey's Case, 11 Co. 42 a, 1 Rol. 32, 35; rule, — each is to be sentenced to pay the S. V. Smith' 1 Nott & McC. 13 ; U. S. v. whole fine severally; and where the fine Babson, 1 Ware, 450 ; S. i>. Hopkins, 7 was joint, judgment was arrested. C. v. Blackf. 494 ; S. v. Berry, 21 Mo. 504. Ray, 1 Va. Cas. 262. Sentence foUowing 3 Medis V. S. 27 Tex. Ap. 194, 11 Am. Verdict. — See Cain v. S. 20 Tex. 355. St. 192 ; Caldwell v. C. 7 Dana, 229 ; S. i>. * See for the distinctions, ante, § 32. Gay, 10 Missb. 440 ; Jones v. C. 1 Call, ^ See the cases, generally, cited to the 555 • Rex V. Morris, 2 Leach, 1096 ; C. u. next section and the last ; Warren v. Dgo- Harris, 7 Grat. 600 ; Calico v. S. 4 Pike, little, 5 Cow. 678 ; P. v. Kolb, 3 Abb. Ap. 430 ; S. V. Smith, 1 Nott & McC. 13 ; S. v. 529. Hunter, 33 Iowa, 361 ; Reg. a. Littlechild, 575 §957 CONSEQUENCES. [book VIII. him paid, no suit can afterward be canied on against others who offended with him.i For illustration, — § 957. 1. In Unlicensed Liquor-selling, — whether the prose- cution is by action or indictment, all participants may be pro- ceeded against jointly .^ But if by indictment, the judgment is several against each for the whole penalty ; ^ while if by action, it is joint, and the penalty can be collected only once out of all.* Still,— 2. Civil in Form, Act Several. — In another class of cases, the acts of the participants are in their natures several ; then, if the proceeding is civil, there must be separate actions, and the whole penalty will be a,djudged against each.^ 1 Boutelle v. Nourse, 4 Mass. 431 ; Frost u. Rowse, 2 Greenl. 130. 2 C. V. Sloan, 4 Cush. 52 ; C. o. Tower, 8 Met. 527. And see Stephens v. S. 14 Ohio, 386 ; Rex v. Crofts, 7 Mod. 397. Auctioneer — In Vaughn v. S. 4 Misso. 530, It was held that two could not be jointly indicted for pursuing the business of auctioneers without license. See also S. V. Coleman, Dudley, S. C. 32. 3 C. V. Harris, 7 Grat. 600. * IngersoU v. Slcinner, 1 Denio, 540; Tracy v. Perry, 5 N. H 504. 5 Marsh v. Shute, 1 Denio, 230 ; Cur- tis «. Hurlburt, 2 Conn. 309 ; Arnold v. Loveless, 6 Rich. 511. Further of the Distinctions. — I am sufficiently clear that the distinctions in the text are supported both by the reasonings of the law and by actual adjudication, though they seem often to have eluded the thoughts of the judges. The case of Rex v. Bleasdale, 4 T. R. 809, little considered by the court, seems perhaps adverse. In Barada v. S. 13 Mo, 94, this question was not decided ; but the case went off on the point (ante, § 932) that the defendants could not ob- ject to a joint fine, it not being to their injury. Avi. possibly there may be such a thing as the matter being in nature so far civil, while criminal in form, as to justify a joint sentence ; yet the suggestion should be received cautiously, if at all. The true doctrine pretty plainly was stated by Powell, J. in Reg. v. King, 1 Salk. 182, a case criminal in form. " This penalty," to quote from the report, " is not in the nature of a satisfaction to the party 576 grieved, but a punishment on the of- fender; and crimes are several, though debts be joint, which, per Powell, dis- tinguishes this from the case of Partridge V. Nator, Cro. Eliz. 480; and s. c. nom. Patr'idge v. Emson, Noy, 62." Partridge V. Naylor was an action against three persons, upon 1 & 2 Phil. & M. c. 12, to recover a penalty for wrongly impounding a distress; and the court held that the judgment should be joint for one penalty against all. This case was pressed upon the court in the criminal one of Rex v. Clarke, Cowp. 610, where the defendants sought to avoid an information which al- leged that they " had severalli/ forfeited the sura of £iO " for assaulting and re- sisting custom-house officers, contrary to 8 Geo. 1, c. 18, § 25. The court upheld the information ; but Lord Mansfield, not adverting to the distinction in our text, drew another, which may possibly be just in a degree when applied to cases civil in form, though probably not even to them in full ; while clearly it has no proper ap- plication to those in the criminal form, like the one before him. This will appear when we look at his observations in con- nection with a few words here interspersed in brackets. He said : " Where the of- fence is in its nature single, and cannot be severed, there the penalty shall be only single ; because though several persons may join in committing it, it still con. tinues but one offence. But where the offence is in its nature several, and where every person concerned may be separately guilty of it, there each offender is sepa- CHAP. LX.J PUNISHMENT BY SENTENCE. §958 a § 958. In Conclusion — of this topic, the foregoing distinctions have not always, when relevant, occurred to the judicial thought. Therefore the books have some enunciations of doctrine, chiefly dicta, which might seem at one or two points adverse. The care- ful reader will consult the note to the last paragraph. And he should remember that there are, in the law, as in other depart- ments of human knowledge, axiomatic and indestructible truths on which blows have no effect. There are principles which courts cannot overturn, however much they may seem to ignore or reject them,^ § 958 a. The Doctrine of this Chapter restated. Whether or not a defendant can complain of an error in the sentence beneficial to him, certainly he can of one prejudicial. So that to transcend the law in an award of punishment will rately liable to the penalty ; because the crime of each is distinct from the offence of the others, and each is punishable for his own crime. For instance : the offence enacted by Stat. 1 & 2 Phil. & M. c. 12, is the impounding a distress in a wrong place. [We have seen that the proceed- ing to recover the penalty under the stat- ute is in form civil.] One, two, three, or four may impound it wrongfully ; it still is but one act of impounding, it cannot be severed. It is but one offence ; and there- fore shall be satisfied by one forfeiture. [Suppose the object impounded was a man, and numbers were jointly indicted for the false imprisonment ;_ there would be then but one act, one offence ; yet clearly each should receive his several sentence for the full penalty of the law.] So, under the statute, 5 Anne, c. 14, for the preserva- tion of game [as to which see Hardyman V, Whitaker, 2 East, 573, note, and Rex V. Bleasdale, supra] ; killing a hare is but one offence in its nature ; whether one or twenty kill it, it cannot be killed more than once. [So of killing a man ; but if twenty kill him once, the twenty must be severally hung.] If partridges are netted by night, two, three, or more may draw the net ; but still it constitutes only one offence. [So when the partridge net is stolen, two, three, or more may jointly draw it away ; yet if all are indicted for VOL. I. — 37 the larceny, each must receive the full penalty.] But this statute relates to an offence in its nature several, a several offence at common law ; and the statute adds a further sanction against that which each man must commit severally. One may resist, another molest, another run away with the goods ; one may break the officer's arm, another put out his eye. All these are distinct acts; and every one's offence entirp and complete in its nature. [The reader will remember that accord- ing to the doctrine applicable to indict- ments, ante, § 628 et seq., 648, 649, 673, 685, each is guilty for what the other does, the same as if his own hand performed the act.] Therefore each person is liable to a penalty for his own separate offence." These views by Lord Mansfield, obviously ill-considered, have been since, with as lit- tle consideration, commended. Marsh «. Shute, 1 Denio, 230 ; IngersoU v. Skinner, 1 Denio, 540 ; and see S. f. Smith, 1 Nott & McC. 13. Contra, Curtis v. Hurlburt, 2 Conn. 309. But their palpable incor- rectness, as appears on a close inspection, shows with what, caution we should take tlie off-hand words of even the greatest judges, and how valueless is all blind commendation, however high its source. 1 See ante, § 64, note, par. 11, and § 140 and note; Bishop First Book, § 401, 455, 456. 577 § 958 a CONSEQUENCES. [book Tin. render the judgment voidable or void. Most of our punisliments are statutory ; some are the common law's fine and imprisonment, — its matter of course penalty for misdemeanor. Pillory, duck- ing, whipping, and the like are among the English common-law penalties, yet seldom or never imposed in our States. Any punishment both " cruel and unusual " is forbidden by our con- stitutions ; and by construction it must be such neither in kind nor in degree. When more persons than one join in a crime, each is to receive the full punishment, as though he did it alone, — a rule contrary to that for the damages in a civil action of tort, or for the recovery of a penalty. 678 CHAP. LXI.] OFFENCE SCBSEQUENT TO PIEST. § 960 CHAPTER LXI. THE PUNISHMENT FOR AN OFFENCE SUBSEQUENT TO THE FIRST. Consult, — for more on this subject, including the procedure, Dir. & F. § 91-97, 339; ante, § 919; Crim. Pro. I. § 101 ; Stat. Crimes, § 240, 981, 1044 a. § 959. 1. Not Voluminous — is the law of this subject. There- fore, to avoid setting apart for it a chapter in " Criminal Proced- ure," this chapter and the one in " Directions and Forms " are so arranged as to cover all of it, except what is elsewhere introduced indirectly in connection with other topics. 2. An Old Offender — should in reason be punished more se- verely for the same wrong than a first transgressor. Therefore sometimes a statute provides a heavier penalty for a second or third offence than for the first. 3. Form of Provision. — There are two forms of the provision. Under the one, the indictment for a second or third offence charges it to be such, and the heavier punishment follows a con- viction for all ; yet this form is subject to variations. The other permits the prosecuting officer to bring up from the place of con- finement prisoners who have before been convicted, and on show- ing the conviction, to have the additional penalty imposed. § 960. 1. The Statutes are Diverse — in their terms. A par- ticular consideration of their differing expressions and the results would not greatly aid the reader. Some cases, which may be helpful, are cited in a note.^ 2. A Foreign Conviction, — or one in another State, is, in reason, and on some authority, not within a general provision of this sort.^ 1 p. z,. Butler, 3 Cow. 347; Kussell v. 172, Evans v.C 3 Met. 453; Ex parte C. 7 S. & R. 489 ; Scot. v. Turner, 1 Root, Seymour, 14 Pick. 40; Rand .. C. 9 Grat. 163; Newton «. C. 8 Met. 53.5 ; C. v. Mott, 738 ; Long .. S. 36 Tex. 6; Cv Morrow, 21 Pick. 492 ; C. .. Getchell, 1 6 Pick. 452 ; 9 Philad. 583 ; S. . Ryder, 36 La. An. Phillips V. C. 3 Met. 588; Plumbly «^C. 294 ; S. «. Hyland, 36 La_ ^-^"^ ■ ««g- 2 Met 413; Bump v.C. 8 Met. 533 ; Kite «. Deane, 2 Q, B. D. 30o 13 Cox C. C. u C. 11 Met. 581 ; Smith .. C. 14 S. & R. 386 ; C. v. Daley, 4 Gray, 209 ;P. «. Cook, 69; C. V. Phillips, 11 Pick. 28; Ross's 45 Hun, 34; P. «. Harr.s, 61 Cal. 136 Ca^e, 2 Pick. 165; Riley's Ca^e, 2 Pick. ^ P. ^. Csesar, 1 Par. Cr. 645. See P. - o79 § 962 CONSEQUENCES. [BOOK VIII. 3. It is Optional — with the prosecuting officer to rely on the offence as being the second or third, and demand the full punish- ment, or simply to treat it as a first offence.^ § 961. 1. The Allegation — ill the indictment for an offence treated as the first need not charge it to be such ; for this is pre- sumed.'* But under the ordinary forms of the statutory provision, if the offence is the second or third, and by reason thereof the punishment is to be made heavier, this fact must appear in the indictment; 3 because by the rules of criminal pleading, every particular thing which makes heavier the punishment to be in- flicted must be set out in averment* Still there is no reason why the law should not, as in some localities it does,^ permit this matter to be withheld from the jury, or even omitted from the indictment, until the prisoner has been convicted of the offence itself, and then brought forward in some proper manner in aggra- vation of the punishment. A course, like this is specially fair to the prisoner, as preventing a prejudice against him by the jury from the former conviction, which is not legal evidence of the second guilt. In eitlier case, — 2. Proof of First. — The former offence or conviction, as the terms of the statute may be, must be proved.® § 962. 1. Particuiara of Allegation. — How, more minutely, the allegation should be, will depend chiefly on the statutory terms, which vary with the State. Some propositions are — 2. Jurisdiction. — It has been held that if the conviction for tlie first offence was before a court of special or limited juris- diction, the averment thereof in the indictment for the second must affirmatively disclose the jurisdiction.^ Yet general words without stating the special facts whereon it depends will suf- w. Smith, 121 N. Y. 578; Sims v. Sims, 75 C. 109 Pa. 541 ; S. v. Welch, 79 Me. 99. J'^^^' o ^*^' liowever, S. v. Smith, 8 Rich. 460 ; S. Keg. «. Summers, Law Rep. 1 C. C. v. Freeman, 27 Vt. 52.3. }^\ ,r,u c ' '^''™- Pro. I. § 77 et seq. ^ Kilbourn t,. S. 9 Conn. 560. 6 Pogt, § 964 , S. v Hudson, 32 La. An. » Rex V. Allen, Russ. & Ry. 51.3 ; Reg. 1052 ; P. v. Meyer, 73 Cal. 548. v^ Wilhs, Law Rep. 1 C. C. 363, 12 Cox, e Tnttle v. C. 2 Gray, 505 ; Reg. ». Wil- C.C 192; Smith y.C. 14 S.&R.69; C. lis, Law Rep. 1 C.C. 36.3, 12 Cox CO. 192; v.Wehh, 2 Va. Cas. 57; Wilde ... C. 2 Johnson v. P 55 N. Y 512; C. „. Briegs, Met.408;Plumbly« C. 2 Met. 413; Reg 5 Pick. 429, 7 Pick. 177; V v Smith, V. Page, 9 Car. & P. 756 ; Rand v. C. 9 121 N. Y. 578 ; P. v. King,. 64 Cal. 338; Grat. 738; Long w. S. 36 Tex. 6; S. v. P. ,.. Lewi^, 64 Cal. 401 ; post, § 963, Regan, 63Me. 127; Garvey u. C. 8Gray, 964. f -a 382; Walters v. S. 5 Iowa, 507 ; Kane v. t P v. Cook, 2 Par Cr 12 680 CHAP. LXI.J OFFENCE SUBSEQUENT TO FIRST. § 963 fice.^ Tlie necessity for this averment arises from principles explained in "Criminal Procedure." ^ Therefore this doctrine of the averment is probably correct, though for it we seem not to have much authority. Plainly, on the other hand, if the court is a superior one of general jurisdiction, as most of our tribunals for criminal causes appear to be, this jurisdictional averment may be omitted.^ § 963. 1. " Conviction." — If the Statute authorizes the increased punishment on a second " conviction," the indictment need only allege the conviction^ it need not add that sentence was rendered thereon ; because one is convicted on the mere finding of the jury that he is guilty.* 2. Averring Conviction. — The methods of averring the convic- tion are fully explained in " Directions and Forms." ^ 3. Proving Conviction. — Plainly the fact of the previous con- viction, depending chiefly upon record evidence,^ is to be estab- lished without much resort to oral testimony ; yet as the question involves that of identity, it ought to be passed upon by the jury.^ The identity may be shown by whatever proofs satisfy the jury, it not being necessary to produce a witness who was present at the former trial.^ In an English case, Lord Campbell, C. J., observed : " A statement of a previous conviction does not charge an offence. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offence ; they only find that he was previously convicted of it, as an his- torical fact." ^ It is no objection to the evidence of the former conviction that, because it shows the prisoner's character to be bad, it may prejudice him on the main issue; for being relevant, it must be admitted.'" If the defendant pleads "guilty of the 1 P. V. Golden, 3 Par. Cr. 330. And see more or less broad according to the terms P. !). Powers, 2 Seld. 50. of the statute. Wood w. P. 53 N. Y. ,^11 ; 2 Crim. Pro. I. § 663, 664. Johnson v. P. 55 N. Y. 512 ; Gibson v P. 8 And see Stroup v. C. 1 Rob. Va. 5 Hun, 542; S. v. Volmer, 6 Kan. 379. 754. 6 Dir. & F. § 92-97. * Stevens v. P. 1 Hill, N. Y 261 ; Stat. « S. v. Lashus, 79 Me. 504 ; P. u. Smith, Crimes, § 348. Contra, under a Penn- 121 N. Y. 578. sylvania statute, whieli, though the word ' Hines v. S. 26 Ga. 614; Brooks v. C. " convicted " was employed in it, was con- 2 Rob. "Va. 845. strued to embrace in meaning not only * Reg, v. Leng, 1 Post. & F. 77. the rendering of the verdict of the jury ' Reg. !•. Clark, Dears. 198, 201,3 Car. but the added sentence of the court thereon. & K. 367, 6 Cox C. C. 210, 20 Eng. L. & Smith i: C. 14 S. & R. 69. And this aver- Eq. 582. ment, like any other, will be required to be " Johnson v. P. 55 N. Y. 512. 581 § 965 CONSEQUENCES. [BOOK VIII. offence as charged in the indictment," no proof of the former conviction will be required.^ An admission of it in pais may perhaps be shown against' him ; ^ and oral evidence of it, not objected to, has been deemed competent.* § 964. Previous " Conviction " in England. — The English prac- tice in these cases has not been uniform. Park, J., at first would not permit the jury to be informed of the ^prior conviction till it had passed upon the new charge, but this course the judges at a meeting deemed wrong.* Then Parliament by 14 & 15 Vict. c. 19, § 9, incorporated the former practice into the law. Since which time the prisoner is , arraigned on the whole indictment in the usual .maimer. Thereupon if he pleads not guilty, the jury is first charged to inquire of the subsequent offence. Should the finding be guilty, it is next, without being resworn, to pass upon the other part of the indictment. And in each instance, only the part of the indictment on which it is about to pass is read.^ Similar are the later 24 & 25 Vict. c. 99, § 37, and the procedure thereon.^ §965. 1. Twice in Jeopardy — (Constitutional). — The increased punishment for a second offence does not pUt the doer a second time in jeopardy for the first, so as to violate our constitutions. The augmented punishment is for persisting in wrong by repeat- ing the crime.^ ' 2. The Leading Questions — under these statutes, have now been explained. But for the procedure, the expositions in " Di- rections and Forms " ^ ought to be considered herewith. 3. Some Further Cases — upon the general subject are cited in a nots.^ 1 p. u. Delany, 49 Cal. 394. 2 Met. 408 ; Plumbly v. C. 2 Met. 413; 2 Ex parte Young Ah Gow, 73 Cal. 438. Phillips v. C. 3 Met. 588 ; C. v. Keniston, 8 S. d. Rockett, 87 Mo. 666. 5 Pick. 420; Murray v. C. 13 Met. 514; 4 Rex w. Jones, 6 Car. & P. 391 . Cooke petitioner, 1 5 Pick. 234 ; C. v. Phil- 5 Reg. V. Key, 2 Den. C. C. 347, 3 Car. lips, 11 Pick. 28 ; Ex parte-Dick, 14 Pick. & K. 371, 5 Cox C. C. 369, 8 Eng. L. & 86; Ex parte Stevens, 14 Pick. 94; C. v. Eq. 584. Getchell, 16 Pick.. 452; Ex parte White, 8 Reg. V. Martin, Law Rep. 1 C. C. 14 Pick. 90; S. v. Longley, 79 Me. 52; 214- Rex V. Tandy, 2 Leach, 833; Kelly v. ' P. u. Stanley, 47 Cal. 113, 17 Am. R. P. 115 111. 583, 56 Am. R. 184; White ». 401 ; Ingalls w. S. 48 Wis. 647. And see C. 79Va.611. Three Convictions in One S. V. Benson, 28 Minn. 424. Term of Court. — S. v. Riley, 28 Iowa, 8 Dir. & r. § 91-97. 547 ; C. «. Tuck, 20 Pick. 356 ; Haggett 9 Evans ». C. 3 Met. 453 ; Wilde v. C. v. C. 3 Met. 457. 682 CHAP. LXII.J BY OPERATION OP LAW. § 967 CHAPTER LXII, CONSEQUENCES OF THE SENTENCE BY OPERATION OP LAW. § 966. Introduction. 967-971 a. Attainder and its Forfeitures. 972-976. Effect on Capacity to be Witness. 977. Other Consequences. § 966. Mentioned or not. — The consequences treated of in the last two chapters are set down in the sentence ; those of this chapter are not, but they flow from it by operation of law. How Chapter divided. — We shall consider, I. The Attainder and its Various Forfeitures ; 11. Its Effect on the Capacity to be a Witness; III. Other Consequences. I. The Attainder and its Various Forfeitures. § 967. 1. Attainder, — in the primary meaning of the word, is the status, or, as the law formerly was, the taint of blood, of one condemned by final judgment of the court for treason or felony ; and in a secondary sense, it is the judgment itself.^ 2. The Judgment — must be final, rendered after conviction,^ or after outlawry^ (where outlawry is known, as it is not gen- ' In Tomlins's Law Dictionary, at- of all felony and of treason was anciently tainder is defined to be " the stain or death. But in actual use in more mod- corruption of the blood of a criminal ern times, it is not limited to capital capitally condemned ; the immediate, in- felonies and to treason. Sometimes it separable consequence, by the common is even, yet not quite accurately, applied law, on the pronouncing the sentence of to one under sentence for a high misde- death." And most of the other defini- meaner. In modern language, and in tions which I have consulted speak of localities where corruption of blood is it as following the death sentence. In unknown to the law, the word "attainder" Burn's Law Dictionary, however, it is is not much employed ; still I do not un- defined to be " where sentence is pro- derstand its use to he improper in such nounced against a person convicted of circumstances, and its meaning is then treason or felony ; he is thus attinctus, as defined in my text, tainted, or stained," &c. It is natural that ^ Stat. Crimes, § 348. the old books should define it as following ' Bex v. Earbery, Fort. 37. the death sentence, because the penalty 583 § 968 CONSEQUENCES. [BOOK VIH.. erally in this country),^ and tiien the offender is said to be attaint or attainted.^ . 3. The Consequences — of an attainder are, by the ancient common law, wide and sweeping. Not attempting minute accu- racy, or tracing the doctrines through their several windings to their limits, all the property of one attainted, real- and personal, is forfeited ; his blood is corrupted, so that nothing can pass by inheritance to, from, or through him ;^ he cannot sue in a court of justice,* he may simply apply to have his attainder reversed, and he may be sued ; ^ and thus, his wife, children, and collateral relations suffering with him, the tree, falling, comes down with all its branches. These rules had some practical qualifications into which we need not inquire.^ § 968. 1. other Forfeitures — (For Flight — Homicide by Acci- dent or in Self-defence — Suicide — Standing Mute — Challenging too many Jurors. — By the old English law also, a man who, how- ever innocent, flies on being indicted for felony, forfeits his goods. And " he that committeth homicide by misadventure shall forfeit his goods ; and so shall he which doth kill a man in his own de- fence forfeit his goods ; and likewise he that killeth himself and is felo de se shall forfeit his goods ; and he that being indicted of felony will stand mute, and not answer directly, or challenge per- emptorily above twenty persons, shall forfeit his goods."' In like manner,. — 2. Deodands. — By the law of our forefathers, a deodand was any personal chattel whicli was the immediate cause of the death of a human being. It was " forfeited to the king, to be applied 1 Outlawry — is or has be^n practised * Co. Lit. 130 a. in Virginia. C. .. Hale, 2 Va. Cas. 241 ; 6 2 Gab. Crim. Law, 567 ; 3 Inst. 211. C. u. Hagerman, 2 Va. Cas. 244; C. v. 6 See the interesting exposition by An- Pearce, 6 Grat. 669; C. o. Anderson, 2 drews, J. in Avery v. Everett, 110 N. Y. Va. Cas. 245. And see Respublica y. 317. Steele, 2 Dall. 92; Dale v. Gunter, 46 ' Pulton de Pace, ed.'of 1615, 214i- Ala. 118, 137. 216a,- Hales v. Petit, 1 Plow. 253, 262, 4 Bl. Com. 380, 381 ; 2 Gab. Crim. 263. For more of the former English Law, 566; 3 Inst. 212; Skinner v. Perot, law of this subject, see Pulton de Pace, 1 Ashm. 57 ; Wells v. Martin, 2 Bay, 20. titles Forfeiture and Corruption of 'Blood; See Stat. Crimes, § 348. 2 Hawk. P. C. Cnrw. ed, c. 49; 1 Hale s Co. Lit. 392; 3 Inst. 211 ; Toomes P. C. 354 et seq. ; 2 Gab. Crim. Law 566 V. Ethermgton, 1 Saund. Wms. ed. 361 et seq. ; 4 Bl. Com. 380-390. And see 2 and note; Finch's Case, 6 Co. 63a, 68ft,- Kent Cora. 385 et seq. ,4 lb. 426; Bul- Coombes u. Queen's Proctor, 16 Jnr. 820, lock v. Dodds, 2 B. & Aid. 258 ; The Pal- 24 Eng. L. & Eq. 598 ; s. c. nom. Coombs myra, .12 Wheat. 1 ; Brown v. Waite, 2 V. Queen's Proctor, 2 Rob. Ec. 547. Mod. 130, 134. 584 CHAP, LXII.] BY OPERATION OP LAW. § 970 to pious uses, and distributed iiLalms by his high almoner." ^ By the laws of the ancient Saxons, " If one in hewing a tree hap- pened to kill a man, the relations were entitled to the tree, provided they took it within thirty days; which was ,in the nature and might perhaps be the origin of deodands."^ But a deodand was not a forfeiture for felony or treason, and it was allowed only where the killing was by misadventure or acci- dent, not felonious.^ § 969. Reasons for Old Rules. — The doctrine of forfeiture and corruption of blood is not so destitute of foundation in reason as sometimes it is assumed to be. When a man has committed against the community a wrong so flagrant as to unfit him to be a member of it, the corruption of blood isolates him, so that he cannot exercisfe the rights violated ; and the forfeiture puts back what the community had given him. And though his kindred suffer with him, it is only because of his severance from the body of persons standing toward the government as participants i of its favor. Still, — § 969 a. In England, — in 1870, Parliament by 33 & 34 Vict. c. 28, abolished these corruptions of blood and forfeitures for treason and felony, not changing the effect of outlawry, and sup- plied their place by some milder forfeitures. § 970. How in United States. — This branch of the old com- mon law has found little favor with us.* It is assumed to have its origin in reasons not applicable here, and it has seemed un- just to disinherit men for the crimes of their kindred, and take away their goods for what to them was unavoidable. Indeed, some of the ancient forfeitures do rest on no satisfactory reason ; and the others are unnecessary, since punishment can best be inflicted by direct sentence of the court. And though strictly no injustice is chargeable to a government that takes away rights because of their violation, humanity demands the avoidance of heedless injury to the innocent. Therefore, as to offences against the United States, the national Constitution provides that " no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." ^ And by statute 1 1 Bl. Con>. 300 ; ante, § 827. * Story Const. § 1300. 2 1 Reeves Hist. Eng. Law, 3d ed. 17. * Const. TJ. S. art. 3, § 3. ' Reg. o. Polwart, 1 Gale & D. 211, 1 Q. B. 818. 585 S 971 , CONSEQUENCES. [BOOK YIII. Congress has abolished all forfeitures and corruptions of blood, whether for treason or felony .1 In some of the older States, there are early traces of judicial recognitions of the common-law forfeitures, or early statutes creating like forfeitures.^ Among these States, New York is prominent ; and there we find judicial decisions and statutes acknowledging the incapacity of felons attaint, especially when imprisoned' for life, to come as plaintiffs into the courts.^ On the other side, the constitutions of some of the States and the statutes of others have interposed to prevent these forfeitures, while in most of them the courts never followed the English doctrine. Resulting from all, it has become nearly universal that forfeitures and corruptions of blood, consequent upon attainder for treason and felony, and upon accidental homi- cide and the like, are unknown in this country.* Yet — §971. 1. Exceptionally, — there may be common-law forfeit- ures, not within the ordinary reasons, and not rejected in a particular State. Thus, — 2. Forfeiture of Office — (Pardon). — It was in Virginia held that the attainder for felony of one holding the office of justice of the peace operates, without statutory aid, to forfeit his office; and that a pardon will not restore his capacity to act under his commission.^ Certainly a forfeiture of this kind is not repugnant to our institutions. And — 1 1 U. S Stats, at Large, 117, Act of Abr.3,4,11; 2 Kent Com. 386 ; 4 lb. 426; April 30, 1790, c. 9, § 24 ; U. S. of U. S. ante, § 616 (1). § 5326 ; 2 Kent. Com. 386 ; Story Const. » C. v. Fugate, 2 Leigh, 724. Brocken- §1300. brough, J. in delivering the opinion of the 2 Dietriek v. Mateer, 10 S. & R. 151 ; court, said: "In 1 Plow. 381, a case is Hinchman a. Clark, Coxe, 340 ; Dunham stated in which it was decided that where V. Drake, Coxe, 315; Ash v. Ashton, 3 a grant had been made to two persons for Watts & S. 510 ; Wells v. Martin, 2 Bay, the term of their lives, and for the life of 20; Boyd v. Banta, Coxe, 266 ; C. u. Pen- the survivor of them, of the sheriffwick of nock, 3 S. & R 199. , Cheshire, and one of them was attainted 8 Graham v. Adams, 2 .Johns. Cas. 408 ; of treason, the whole office was forfeited, Troup V. Wood, 4 Johns. Ch. 228 ; Planter because the office was entire and could not V. Sherwood, 6 Johns. Ch. 118, which last be severed. This decision is founded on case, particularly, see. A later case, im- the postulate that an attainder of treason parting pretty full information, is Avery produces a forfeiture of a freehold office, V. Everett, 110 N. Y. 317. As to Mi.s- which concerns the administration of jus- sissippi, see Beck v. Beck, 36 Missis. 72. tice. In another case, it was decided that As to Delaware, see Cannon v. Windsor, a cestui que trust of a grant for years of 1 Houst. 143. As to California, see the license of wines, who had committed Nerac's Estate, 35 Cal. 392, 95 Am. D. felony, had forfeited said office. 13 Vin. 111. Abr. Forfeiture, H. pi. 2, p. 445." And * Whitei). Fort, 3 Hawks, 251 ; 5 Dane he goes on to say that in England thii 686 CHAP. LXII.] BY OPERATION OP LAW. § 974 § 971 a. Statutoty Forfeitures — and the like under State constitutions are to some extent practised with us. Since the provisions differ, it would be needless further to particularize here.^ II. Effect on the Capacity to he a Witness. § 972. Doctrine defined. — Not particularly as resulting from attainder, which concerns only treason and felony, but as a con- sequence of the final judgment for treason, felony, or any mis- demeanor of the sort known by the term crimen falsi, whereof all are commonly called infamous crimes, one adjudged guilty of a crime of this class becomes thereby, if objected to, incompetent to be a witness in our courts. F^or he is supposed to be so regard- less of truth as to render the admission of his testimony unjust to the opposing litigant.^ Yet — § 973. The Parties themselves, — if in this situation, have ordi- narily the same rights as other men 'to make affidavits in their causes ; » -for such affidavits are always against the general policy of the law, and are permitted only from necessity, or from con- siderations of convenience in the despatch of business, — reasons which apply as well when tlie party is infamous as when he is not. § 974. What Crimes disquaUfy., — While the disqualifying crimes are in general well defined, there are doubts as to some of them. Larceny disqualifies,* because it is felony; so question cannot often arise, since felonies > Bowles v. Haberraann, 95 N. Y. 246 ; are there generally punished capitally. P. v. French, 102 N. Y. 583 , Anderson v. But what is specially important in this S. 72 Ala. 187 ; S, v Thompson, 28 La. case, the iudge con.sidered that even if An. 444 ; S. v. Jones, 82 N. C. 685 ; Sims there were no English authorities to the v. Sims, 75 N.'Y. 466; S. v. Buckman, 18 question, the forfeiture of judicial office Fla. 267; Hart v. U. S. 15 Ct. CI. 414; must, on the ordinary principles of the The Amy Warwiclc, 2 Sprague, 123; jurisprudence of the State, follow a con- Nerac's Estate 35 Cal. 392 95 Am^D, Yiction for felony. For neither the peo- 111 ; Lowe v. C. 3 Met. Ky. 237 ; U. S. v. pie nor the legislature could be presumed Barnabo, 14 Blatch. /4. to have intended "that the bench of ^ I Greenl. Ev^ § 372, 373 ; P^«. Wh.p- justice should be contaminated by the pie, 9 Cow. 707 ; C.. Green, 17 Mass. 51=, presence of a convicted and attainted 542 ; U. S. l. Brockms 3 Wash C. C 99 ; felon." p. 725, 726. The doctrine of this Reg v. Alternum, 1 Gale & B. 261, 10 case was affirmed and followed in S. v. A. & F. 699 ; Schuylkill ,•. Copley, 67 Pa Carson, 27 Ark. 469. In S. r. Pritchard, 386, 5 Am. R. 441 ; Reg^v. Webb 11 Cox 7 Vroom, 101, it wa^ held, following Page C. C. 133 ; Taylor «. S. 62 Ala. 164. See V. Hardin, 8 B. Monr. 648, that the re- S. v. Harston, 63 N, C. 294. moval of an officer for malfeasance is a ' 1 Greenl. Ev. § 374 judicial act, not competent to the Gov- * S. v. Gardner 1 Root, 485 ; Taylor v. ernor. i ■ 587 § 974 CONSEQUENCES.^ [BOOK VIII. does a felonious receiving ; ^ and, at the common law, so does even petit larceny .^ But petit larceny is in some of our States* reduced to misdemeanor, or otherwise made by the operation of statutes no longer infamous; then it does not disqualify.^ Among the disqualifying crimes are forgery,* perjury,^ "subornation of perjury,^ suppression of testimony by bribery, or a conspiracy ^ to procure the absence of a witness, or other conspiracy to accuse one of a crime, and barratry." ^ On the other hand, it seems that the mere attempt to secure the absence of a witness, not amount- ing to a conspiracy, is, though indictable, not within the meaning of our rule infamous.® It is the same also with the keeping of gam- ing ^^ and bawdy houses,*^ the commission of adultery,^ common prostitution,^^ cutting wood contrary to the New Jersey Timber Act,i* maliciously obstructing railroad cars,^* " deceits in the quality of provisions, deceits by false weights and measures, conspiracy ^^ to defraud by spreading false news,"^^ false pretences ^^ and embez- zlement 1^ under some conditions of the law, and the like.^ The test appears to be whether or not the crime shows such depravity, or such a disposition to pervert public justice in the courts, as creates a violent presumption against the truthfulness of the of- fered witness, — the difficulty being in the application of this test. stealing in Tennessee, Wilcox t>. S. 3 ' Rex v. Priddle, 1 Leach, 442 ; Bushel Heisk. no. And see C. v. McGuire, 84 v. Barrett, 1 Ryan & Moody, N. P. 434. Ky- 57. 8 1 Greenl. Ev. § 373 ; Rex v. Priddle, , -i C. ». Rogers, 7 Met. 500, 41 Am. D. 1 Leach, 442. 458. But otherwise in Pennsylvania, » S. v. Keyes, 8 Vt. 57, 30 Am. D. 450. where this offence is misdemeanor. C. o. M Rexw. Grant, 1 Ryan & Moody, N. P. Murphy, 3 Pa. Law Jour. Rep. 290. 270. 2 Rex <^. Davis, 5 Mod. 75, in notes; n Deer v. S. 14 Mo. 348. Pendock „. Mackinder, Willes, 665 ; Ly- 12 Little v. Gibson, 39 N. H. 505. ford V. Farrar, 11 Post. N. H. 314 ; Syl- " S. v. Randolph, 24 Conn. 363. vester ». S. 71 Ala. 17 ; Burns v. Campbell, » Holler v. Ffirth.'Penning, 2d ed. 531. 71 Ala. 271. , ' 16 c, V. Dame, 8 Cush. 384. 8 Barbour v. C. 80 Va. 287 ; Welsh v. is Crowther ». Hopwood, 3 Stark. 21. S. 3 Tex. Ap. 114; Carpenter v. Nixon, " l Greenl. Ev. § 373. 5 Hill, N. Y. 260; Shay v. P. 4 Par. Cr. « utley v. Merrick, U Met. 302, 303; 353 ; Pruitt v. Miller, 3 Ind. 16. See Fisher v. Crescent Ins. Co. 33 Fed. Rep. ante, § 679 (4). And see C. v. Keith, 8 544; Ritter v. Democratic Press, 68 Mo. Met. 531; Uhl v. C. 6 Grat. 706. 458. * 2 East P. C. 1003 ; Rex !;. Davis, 5 lo Schuylkill v. Copley, 67 Pa. 386, 5 Mod. 74; Poage v. S. 3 Ohio St. 229; S. Am. R. 441. V. Candler, 3 Hawks, 393. 20 And see U. S. v. Brockius, 3 Wash. Anonymous, 3 Salk. 155 ; 1 Greenl. C. C. 99 ; Clarke v. Hall, 2 Har. & McH. Ev. § 373. See Rex v. Teal, 11 East, 307 ; 378 ; Cole v. Cole, 1 Har. & J. 572 ; Hol- Heward v. Shipley, 4 East, 180. loway «. C. U Bush, 344 ; Harrison v. S. In re Sawyer, 2 Gale & D. 141 ; Ex 55 Ala. 239; P. „. Park, 41 N. Y. 21 1 parte Hannen, 6 Jur. 669. Laus. 263 588 CHAP. Lxir.] bIt operation op law. § 976 § 975. 1, Judgment necessary. — A mere plea or verdict of guilty works no infamy, for until judgment it has not reached the conclusion of guilt. So that this disqualification, like the common-law forfeiture,^ does not come from the mere crime,^ or the mere conviction of it, or the punishment, or the infamous nature of the punishment,^ but from the final judgment of the court.* Until judgment rendered, the accused or indicted person is competent to testify.^ Yet-^ 2. An HrroneouB Judgment, — reversible on 'a writ of error, will exclude until vacated,^ if pronounced by a tribunal having juris- diction.'^ § 976. 1. A Foreign or Sister State Judgment, — by the better opin- ion on a disputed question, does not disqualify ; ^ for laws do not have an extra-territorial force.^ Practically we have three variant doctrines, — first, to give the record from another State the same effect as a domestic one ; ^^ secondly, to reject it altogether ; ^^ thirdly, to admit it to impair the credibility, not the competency, of the witness.^ By our United States laws, a record from a sister State has the effect accorded it in the State whence it came.^^ Still it is believed to be the right of every State to deter- > Ante, § 967 ; Wells v. Martin, 2 Bay, ' Cooke v. Maxwell, 2 Stark. 183. 20; Foxley's Case, 5 Co. 109 a. " 8 i Greenl. Ev. § 376. 2 Free v. S. 1 McMul. 494. And see » Ante, § 109 ; Wheaton Int. Law, 6th U. S. V. Maurice, 2 Brock. 96. ed. 181. 3 Rex V. Crosby, 2 Salk. 689, 690; Rex » S. a. Candler, 3 Hawks, 393 ; Chase V. Warden of the Fleet, 12 Mod. 337, 341 ; v. Blodgett, 10 N. H. 22 ; S. u. Foley, 15 P. V. Whipple, 9 Cow. 707 ; Pendock v. Nev. 64, 37 Am. R. 4.^8. Mackinder, Willes, 655 ; s. c. nom. Pen- " Uhl v. C. 6 Grat. 706 ; Campbell v. S. dock . Ohio, 5 How. U. S. 410, 432. 13 Am. St. 159. 595 §990 CONSEQUENCES. [book viir. prosecution if instituted, or for permitting the accused person to avail himself in some way of this matter.^ At the same time, therp is just weight in the consideration that if a man, though by one act, has violated the laws of two governmental powers, it is proper both should punish him, though practically a court will incline to make the punishment less heavy where the of- fender has already suffered the penalty imposed by the other government. III. To what Classes of Offences the Doctrine is applied. § 990. 1. 'Treason and Felony. — The reader has observed the terms of this constitutional provision; namely, that there shall be' no second jeopardy of " life or limb." The construction whereof is that properly the rule extends to treason and all felonies, not to misdemeanors.^ Yet — 2. Misdemeanor — Penal Actions — Sureties of Peace. — Prac- tically and wisely, the courts by an equitable interpretation apply it to all indictable offences, including misdemeanors ; ^ but not to actions for the recovery of penalties,* because these are I See C. V. Fuller, 8 Met. 313; Harlan V. P. 1 Doug. Mich. 207, 212 ; Houston v. Moore, 5 Wheat. 1, 31, 35; P. u. West- chester, 1 Par. Cr. 659. But see S. t. Pitman, 1 Brev, 32, 2 Am. D. 645 ; Hen- drick V. C. 5 Leigh, 707 ; Manley v. P 3 Seld. 295, 302, 303 , Pox u. Ohio, 5 How. U. S. 410, 430 ; ante, § 179. See also C. V. Barry, 116 Mass. 1 In a case on 'cir- cuit before the late Chief-Justice Taney, where there was a conviction for robbing the United States mail, he said .- " As these letters, with the money within them, were stolen in Virginia, the party might undoubtedly have been punished in the State tribunals according to the laws of the State, without any reference to the Post-Office or the act of Congress ; be- cause from the nature of onr government, tlie same act may be an offence against the laws of the United States and also of a State, and be punishable in both. . . And the punishment in one sovereignty is no bar to his punishment in the other. Yet in all civilized countries it~ia recog- nized as a fundamental princi])le of jus- tice that a man ought not to be punished twice for the same offence. And if this 596 party had been punished for the larceny by a State tribunal, the court would have felt it to be its duty to suspend sentence, and to represent the facts to the Presi- dent, to give him an opportunity of ordering a nolle prosequi, or granting a pardon." U. S. v. Amy, 14 Md. 149, note, 152. 2 P V Goodwin, 18 Johns. 187, 201, 9 Am. D. 203 ; U. S. v. Gibert, 2 Sumner, 19, 45.' And see S. v. Spear, 6 Misso. 644. 3 Brink u. S. 18 Tex. Ap. 344, 348, 51 Am. R. 317 ; C. « Foster, 3 Met. Ky. 1 ; C, Olds, 5 Litt. 137 ; McCauley v. S. 26 Ala. 135, Day v. C. 23 Grat. 915; S. v. Lee, 10 R. 1. 494-; Jones v. S. 15 Ark. 261 ; S. V. Lavinia, 25 Ga. 311 ; Ex parte Brown, 2 Bailey, 323. See Campbell v. S. 11 Ga. 353 , S. V Weaver, 13 Ire. 203 ; S. v. Ran- kin, 4 Coldw. 145; Ex parte Lange, 18 Wal 163, 168. * Pruden v Northrup, 1 Root, 93; Hylliard v. Nickols, 2 Root, 176; Hanna- ball V. Spalding, 1 Root, 86 ; U. S. v. Hal- berstadt, Gilpin, 262 ; Lawyer r. Smith, 1 Denio, 207 ; Smith v. Bagwell, 19 Fla. 117, 45 Am. R. 12. And see U. S. v. Moller, 16 Blatch. 65, 67. CHAP. LXIII.j NO SECOND PROSECUTION. § 992 not criminal proceedings,^ nor to applications for sureties of the peace.^ 3. Interpretation varying with Offence. — There is, however, an apparent tendency in some of the courts to hold the doctrine more strictly in the higher crimes, especially those punishable with death, tlian in ordinary misdemeanors.^ § 991. Liberally Interpreted — (Misdemeanor, again). — We have seen elsewhere * that while so much of a statute as is against the accused is interpreted strictly, the parts in his favor are extended liberally ; and the same distinction applies to a written constitu- tion. Therefore the constitutional provision now under consider- ation should be liberally construed, as coveriiig cases within its reason while not within its words. On which principle, plainly the courts should, as we have seen they generally do, hold, it applicable to misdemeanor,^ the same as to treason and felony, , IV. How the Gruaranty is linding on the State. § 992. 1. Waiver. — This constitutional provision being for the protection of defendants, we shall see in the next sub-title that they may waive their rights under it. But there is nothing for the government to, waive; it cannot waive a subject's rigiits, or otherwise escape the force of the guaranty. To illustrate, — 2. New Trials and Other Rehearings. — After the jeopardy of the Constitution has attached to the party ,^ the government can take no step backward. If, through a misdirection of the judge on a question of law, or a mistake of the jury, or their refusal to obey the instructions of the court, or any other like cause, a verdict of acquittal is improperly ren'dered, it, can ,never afterward, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted.^ 1 Ante, § 32. " Post, § 1012-1016. 2 S. V. Vankirk, 27 Ind. 121. ' Rex o. Praed, 4 Bur. 2257 ; Rex v. 8 P. V. Olcott, 2 Johns. Cas. 301, 1 Am. Silverton, 1 Wils. 298 ; Anonymous, Lofft, D. 168 ; C. ». Cook, 6 S. & R. 577, 9 Am. 451 ; Rex v. Fenwick, 1 Sid. 153; Rex v. D. 465; Williams ». C. 2 Grat. 567, 44 Jackson, 1 Ley. 124; Rex u Mann, 4 M. Am D 403 ■ S. V. Bass, 82 N. C. 570 ; S. & S. 337 ; Rex v. Brice, 1 Chit. 352 ; P. v. V Chase 82 N. C. 575. Compare with Dye Mather, 4 Wend. 229, 263, 266, 21 Am. D. V. C. 7 Grat. 662 ; U. S w Morris, 1 Curt. 122 ; Slaughter « S. 6 Humph. 410 ; C. v. C C. 23. And see post, § 1034. Cumminga, 3 Cush. 212, 50 Am. D. 732 ; 1 Stat. Crimes, § 191, 226 et seq. S. i< Kittle, 2 Tyler, 471 ; S. u. Jones, 7 5 And see Winsor v. Reg. Law Rep. 1 Ga. 422 ; S. !•. Dark, 8 Blackf. 526 ; S. •: Q B 289 307- s. c. in all its stages, nom. .lohnson, 8 Blackf. 533; S. " Davis, 4 Keg. ^. Winsor, 10 Cox C. C. 276. Blackf. 345 ; S. u. Fields, Mart. & Yerg ^ 597 995 CONSEQUENCES. [book Villi § 993. In what Classes of Cases. — This doctrine applies as well in misdemeanor as in felony.^ It does not strictly control penal actions, civil in form ; ^ yet new trials are not commonly granted to plaintiffs in tliem.^ But the English law seems to be that a new trial may be given to the prosecutor in a criminal proceeding for the enforcement of a (iivil right.* In an ordinary criminal case, even where the issue which the prisoner tenders is that of a former acquittal, and without evidence and contrary to the. direction of the court it is found by tlie jury in his favor, the verdict must stand.^ § 994. No Fresh Indictment. —A fortiori, after an acquittal® or a conviction " on the merits, or a plea of guilty,^ n9 fresh indict- ment for the same offence can be maintained. But the views of these sections will be further unfolded in subsequent sub-titles. V. Waiver of the Gruaranty hy Defendants. § 995. Waiver in General. — It is a doctrine to which tliere are few exceptions that a party in a cause may waive any right which the law has given him, even a constitutional one.^ 137; Esmon «. S. 1 Swan, Tenn. 14; S. V. Taylor, 1 Hawks, 462 , S v. Martin, 3 Hawks, 381 ; S. «. Kanouse, Spencer, 115; 8. V. Wright, 3 Brev. 421,2 Tread. 517; S. «. Hand, 1 Eng 169, 42 Am. D. 689 ; S. (;. Deutoii, 1 Eng. 259 ; S. o. Spear, 6 Misso. 644; Rex v. Jones, 8 Mod. 201, 208 , Heg. u. Cliallicombe, 6 Jur. 481 ; S. V. Hamilton, 62 Ind. 409, S. v. Campbell, 67 Ind. 302; S. v. Prince. 63 N. C. 529; S. i-. Grottkau, 73 Wis. 589, 9 Am. St. 816; Ex parte Snyder, 29 Mo. Ap. 256; P. f. More, 71 Cal. 546; S. v. Phillips, 33 Kan. 100 ; S. u. Cox, 67 Mo. 46 ; S. w Shields, 49 Md. 301 : Rex «. Cohen, 1 Stark. 516; Rex v. Sutton, 5 B. & Ad. 52, 2 Nev,& M. 57; Rex a. Wandsworth, 1 B. & Aid. 63, 2 Chit. 282, Anonymous, Lofft, 451 , Rex v. Reynell, 6 East, 315, 2 Smith, 406 ; S. ;;. Reily, 2 Brev. 444 ; S. 1) Burris, 3 Tex. 118; S. v. De Hart, 2 Halst. 172 ; S. v. McKee, 1 Bailey, 651, 21 Am. D. 499; S. v. Brown, 16 Conn. 54; S. «. Anderson, 3 Sm. & M. 751 ; S. v. Reynolds, 4 Hayw. 109 ; P. v. Webb, 38 Cal. 467 ; S. v. Phillips, 66 N. C. 646 , S. i'. Freeman, 66 N. C. 647 ; S. v. McGrorty, 2 Minn. 224; S. o. West, 71 N. C. 263; S. 698 V. Credle, 63 N. C. 506 ; S. v. Nicholas, 2 Strob. 278. ^ Rex V. Davis, 12 Mod. 9 , Rex v. Ben- nett, 1 Stra. 101 ; and cases cited in the last note. Bnt see S. u. Grider, 18 Ark. 297 ; S. V. Goff, 20 Ark. 289. 2 U. S. V. Halberstadt, Gilpin, 262; Pruden v. Northrup, 1 Root, 93 , Hanna- ball !). Spaulding, 1 Root, 86 ; Hylliard v. Nickols, 2 Root, 176. ^ Lawyer ij. Smith, 1 Denio, 207 ; Steel V. Roach, 1 Bay, 63 ; Rex v. Bear, 2 Salk. 646 and note. 4 Reg. II. Russell, 3 Ellis & B. 942, 23 Law J. N. s. M. C. 173, 18 Jur. 1022, 26 Eng L. & Eq. 230 ; Rex v. Burbon,, 5 M. & S. 392. ^ Rex V. Lea, 2 Moody, 9. ^ S- w Spear, 6 , Misso. 644 ; Campbell V. S. 9 Yerg, 333, 30 Am. D. 417. ^ U. 8. V. Keen, 1 McLean, 429 ; S. w. Benham, 7 Conn. 414 , Mount o. S. 14 Ohio, 295 , S. 0. Norvell, 2 Yerg. 24, 24 Am. D. 458. 8 P 1). Goldstein, 32 Cal. 432. ° For an exposition of this doctrine, see Crim. Pro. L § 117-126. And see 1 Bishop Mar. Div. & S. § 1436-1440; CHAP..LXin.J NO SECOND PEOSECUTION. § 997 § 996. Further as to which. — This right of waiver comes 'from the principle of natural justice that one should not complain of that to which he consented. Still, in the criminal law, the court will sometimes for the protection of the defendant refuse him permission to make the waiver, or if he makes it will -decline to hold him to its consequences, — a proposition upon the precise limits of which there is some apparent and probably real differ- ence of judicial. opinion.^ Anciently, counsel were denied to per- sons on trial before a jury for treason or felony ; therefore the judges counselled them to the extent of preventing their doing •things prejudicial, except to plead guilty. When afterward coun- sel were allowed, it was with some dissent adjudged that even in a capital trial, the prisoner acting under their advice and the supervision of the court, might so consent to an arrangement manifestly for his benefit as to be bound by it.^ And thus far the. better doctrine now goes ; probably, further. To illus- trate, — • § 997. 1. "Waiver as to Grand Jury. — The courts will refuse to hear objections to the persons composing the grand jury, or to the manner in which it is impanelled, after the case has been tried by the petit jury ; or, indeed, after proceedings earlier than the trial.^ And — 2. Waiver as to Petit Jury. — If while the petit jury is being impanelled, the prisoner knows of a cause of challenge against one or all, but declines then to interfere, he cannot afterward ob- ject.* And by the doctrine 'of some courts, dissented from by others, if he consents to a separation of the jury before the ver- dict is reached, he cannot have it set aside.^ So, — 3. Waiver of Copy of Indictment. — One entitled to have a copy of the indictment before being put upon his trial, if he suffers Brown v. Webber, 6 Cush. 560 ; S. v. Seaborn, 4 Dev. 305. See, for a fuller Gurney, 37 M^. 156, 58 Am. D. 782. statement of doctrines, Crim. Pro. I. 1 " In capital cases, I think the court § 871-889- is so. far of counsel with the prisoner that * Lisle v. S. 6 Misso. 426 ; S. v. Under- it should not suffer him to consent to any- wood, 6 Ire. 96 ; S. v. Duncan, 6 Ire. 98 ; thing manifestly wrong, and to his own Brown v. S. 7 Eng. 623 ; Hallock «. Frank- prejudice." Foster, 31. lin, 2 Met. 558; Barlow v. S. 2 Blackf. 2 Kinloch's Case, Foster, 16, 27, 31. 114 , Glover v. Woolsey, Dudley, Ga. 85; And see S. v. Slack, 6 Ala. 676; C. v. Billis w. S. 2 MeCord, 12; Anonymous, Cook, 6 S. & R. 577, 9 Am. D. 465. cited 1 Pick. 41 ; Guykowskie o. P. 1 ' S. V. Ward, 2 Hawks, 443 ; S. v. Mar. Scam. 476 ; Crim. Pro. I. § 946. tin, 2 Ire. 101 ; S. v. Lamon, 3 Hawks, " S. u. Mix, 15 Mo. 153 ; Wesley v. S. 175; P. V. Griffin, 2 Barb. 427; S. v. 11 Humph. 502 ; Crim. Pro. I. § 998. 599 §998 CONSEQUENCES. [book VIJI. himself to go to trial without it, cannot afterward take the objec- tion that it was not f urnished.^ Likewise, — 4. Waiver of. Evidence. — A defendant who does not object to illegal evidence, but permits it to go to the jury, can claim nothing afterward on the ground of its admission.^ And — 5. Matter in Abatement — is waived by the plea of not guilty .3 6. other Illustrations — are numerous,* but these sufficiently explain the general doctrine. And thus we are prepared to consider, through the remainder of this sub-title, the law of the — § 998. Waiver of the Objection to a Second Jeopardy : — 1. Express or Implied. — Some of the waivers stated in the foregoing illustrations are express, others are implied. Though there is no impossibility of law in an express waiver ,5 commonly in the facts of a case it is implied.^ Of the latter sort is almost always the waiver of the objection to a second jeopardy. To explain, — 2. Discharge of Jury. — If during a trial the jury is discharged with the prisoner's concurrence, this consent thereto is his implied waiver of any objection to being tried anew, and he may be so tried.'^ 1 Smith V S. 8 Ohio, 294, 296 ; Lisle « S. 6 Misso. 426 ; S. v. Johnson, Walk. Missis. 392; Loper i/. S. 3 How. Missis. 429. Names ofWitnesses. — So where a statute requires the names of tlie witnesses to appear on the indictment, one who suf- fers himself to be tried without them is too late afterjvard. Eay «. S. 1 Greene, Iowa, 316, 48 Am. D. 379. 2 Bishop 1). S. 9 Ga. 121. 8 McQuillin v. S. 8 Sm. & M. 587. See Grim. Pro. I. § 744 et seq. * See C. V. Battis, 1 Mass. 95; S. o. Cross, 34 Me. 594 ; C. v, Andrews, 3 Mass. 126; P. v. Scales, 3 Scam. 351 Armstrong v. S. Minor, 160; Cravens i Grant, 2 T. B. Monr. 117; s. u. nom Cravins v. Gant, 4 T. B. Monr. 126 P. «. Rathbun, 21 Wend. 509, 542 Hazen v. C. 23 Pa. 355 ; Brooks v DaviS; 17 Pick. 148; Brooks v. Daniels, 22 Pick 498, Gracie v. Palmer, 8 Wheat. 699 Prine v C. 18 Pa. 103. Promise of Con- tinuance. — Where before going to trial the State asked a continuance, to avoid which the prisoner consented to have the 600 case withdrawn from the jury_ should a certain contingency happen, and it did happen, he was held bound by his under- taking ; so that though he objected to ful- filling it, he was lia,ble to be convicted on a second trial. Hughes v. S. 35 Ala. 351. ' C. u. Andrews, 3 Mass. 126, 131 , McFall 0. P. 18 Hun, 382; S. v. Davis, 80 N. C. 384. 6 Bishop Con. § 792. ' Elijah V. S. 1 Humph. 102 ; Williams V. C. 2 Grat. 567, 44 Am. D. 403 ; Dye v. C. 7 Grat. 662 , Ferrars's Case, T. Raym. 84 ; Kinloch's Case, Foster, 16, 27 ; s. C. nom. Rex v. Kinlock, I Wils. 157 ; Rex V. Stokes, 6 Car. & P. 151 ;* Reg. v. Deane, 5 Cox C. C. 501 ; S. V. McKee, 1 Bailey, 651, 654, 21 Am. D. 499 ; Spencer v. S. 15 Ga. 562 ; C. V. Sholes, 13 Allen. 554. And see C. V. Nix, 11 Leigh, 636. Where a juror rose after the panel was full, and stated a fact showing his own incom- petency, and the prisoner objected to proceeding to trial with the jury thus constituted, whereupon the court impan- nelled a new jury, the act was held to CHAP. LXIII.] NO SECOND PROSECUTION. § 998 So his consent to the discharge may appear as well from implica- tion as from express words.^ Again, — 3. Verdict Incomplete. — Should a verdict be accepted from the jury so imperfect in form that there can b,e no judgment upon it, the consent of both parties to it will be presumed ; because either was entitled to have it perfected when rendered.^ Therefore the prisoner may be tried anew.^ But if the indictment will sustain a sentence, the court must pronounce it instead of ordering a new trial.* And — 4. Absent at Verdict. — Where one on trial absents himself from court when he should be present at the rendition of the ver- dict,^ it is competent for the judge to order the cause to stand for another jury ; what has been done amounting only to a mistrial.^ He waives by the absence his right to treat the transaction as a jeopardy. Finally, — 5. Procuring Verdict or Judgment vacated. — Whenever a ver- dict, whether valid in form or not, has been rendered on an in- dictment either good or bad, and the defendant for any cause moves in arrest of judgment or applies to the court to vacate a judgment already entered, as for many causes he may, he will be )iave been done with the prisoner's con- u C. 2 Va. Cas. HI ; C. v. Smith, 2 Va. sent, therefore he could take no advantage Cas. 327 ; S. v. Sutton, 4 Gill, 494 ; Web- of it, though while making the objection ber v. S. 10 Misso. 4 ; S. v. Valentine, 6 he said he waived no legal right. Stewart Yerg. 533 ; S. v. Town, Wright, 75 ; Carap- r. S. 15 Ohio St. 155. Contra, Rex v. bell v. Reg. 11 Q. B. 799 ; S. v. Spurgin, Perkins, Holt, 403, where Holt, C. J. said : 1 McCord, 252 , Marshall v. C. 5 Grat. " It was the opinion of all the judges of 663 ; C. v. Hatton, 3 Grat. 623 ; S. v. Red- England, upon debate between them, that man, 17 Iowa, 329 , Turner v. S. 40 Ala. in all capital cases a juror cannot be 21 ; Waller v. S. 40 Ala. 325 ; C. v. Gib- withdrawn though the parties consent to son, 2 "Va. Cas. 70; S. v. Walters, 16 La. it; that in criminal cases not capital, a An. 400; Murphy i-. S. 7 Coldw. 516; juror may be withdrawn, if both parties Dubose v. S. 13 Tex. Ap. 418; Kendall consent, but not otherwise." And see v. S. 65 Ala. 492. And see U. S. v. Bird, Rex V. Kell, 1 Crawf. & Dix C. C. 151. 2 Brev. 85. 1 Stewart b. S. 15 Ohio St. 155; Mor- * Page v. C. 9 Leigh, 683; C. v. Fiach- gan V. S. 3 Sneed, 475. And see Lancton Blatt, 4 Met. 354 ; S. «. Arrington, 3 Murph. c. S. 14 Ga. 426, Moore v. S. 3 Heisk. 571. See Morman v. S. 24 Missis. 54. 493 ; and the cases in the last note, Crim. ' Crim. Pro. I. § 271-274. I'ro, I. § 946. " S- "■ Battle, 7 Ala. 259 ; S. v. Hughes, 2 Crim. Pro. I. § 1004 , Sargent v. S. 2 Ala. 102, 36 Am. D. 411 ; P. v. Higgins, 11 Ohio, 472 ; S. v. Underwood, 2 Ala. 59 Cal. 357 ; S. f. Hays, 2 Lea, 156. See, 744 ■ S. V. Sutton, 4 Gill, 494. for other views on this point, Crim. Pro. 3' Wright V. S. 5 Ind. 527; Reg. v. I §272; Cook u. S. 60 Ala. 39,31 Am. Woodfall, 5 Bur. 2661 ; Rex v. Hayes, 2 R. 31 ; Nolan v. S. 55 Ga. 521i 21 Am. R. Ld. Raym. 1518; Rex v. Simons, Say. 281. 34, 36 ; Wilson v. S. 20 Ohio, 26 ; Gibson 601 § 1001 CONSEQUENCES. [BOOK VUI. presumed to waive any objection to being put a second time in jeopardy ; therefore ordinarily he may be tried anew.^ § 999. Wrong Verdict from Error of Court. — If the verdict against a prisoner is wrong because of some error of the court to which he objected, a just view of the constitutional guaranty would permit him to have it corrected without relinquishing his immunity from a second jeopardy .^ Still the practice in most cases is otherwise. § 1000.' Wrong Arrest of Judgment on Good Indictment. — If, on application of the defendant, the court arrests judgment on a good indictment supposing it to be ill, he cannot be subjected to a new one in a State the laws of which provide a way for correct- ing the error ; because he is still in jeopardy under the arrested one, which a reversal of tlie judgment of arrest will revive.^ But in States where the erroneous judgment of arrest cannot be called in question, the prisoner's jeopardy has ceased, at his own re- quest and for his own benefit, therefore he may be proceeded against anew.* § lOOli 1. New Trials. — Though our constitutional guaranty excludes the granting of new trials to the government,® the' fore- going expositions show that it is otherwise on an application from a convicted private person. Then, the constitutional guaranty being waived, the question is simply one of practice. As to which, — 1 Reg. 0. Reid, 1 Eng. L. & Eq. 595 ; o. S. 63 Ga. 386 ; Dubose i: S. 13 Tex. Ap. Campbell v. Reg. 11 Q. B. 799; Monroe 418; S. v. Owen, 78 Mo. 367; S. v. Sherr V S. 5Ga. 85; Suteliffe «. S. 18 Ohio, 469, burne, 58 N. H. 535; S. v. Blaisdell, 59 51 Am. D. 459; Reg. v. Drury, 3 Car. & N. H. 328; Bedee v. F. 73 Dl. 320; Mor- K. 193, 18 Law J. N. s. M. C. 189; Sellers risette u. S. 77 Ala. 71 ; Gannon v. P. 127 V. S. 1 Gilman, 183 ; Hines v. S. 8 Humph. 111. 507, 11 Am. St. 147 ; S. v. Oliver, 39 597 ; Lane v. P. 5 Gxlman, 305, 308; Allen La. An. 470; S. o. Patterson, 88 Mo. 88, V. C. 2 Leigh, 727; S. v. Hughes, 2 Ala. 57 Am. R. 374; Territory v. Dorman, 1 102; S. u. Thompson, R. M. Charl. 80; S. Ariz. 56; S. v. Clark, 69 Iowa, 196 ; S. v. V. Battle, 7 Ala. 259 ; S. v. Abram, 4 Ala. Owens, 28 La. An. 5 ; S. v. Curtis, 29 Kan. 272; Clark o. S. 4 Humph. 254; S. o. 384. Phil, 1 Stew. 31 ; Cobia v. S. 16 Ala. 781 ; ^ poat, § 1041. ' P. D. McKay, 18 Johns. 212 ; Epes's Case, " S. u. Norvell, 2 Yerg. 24, 24 Am. D. 5 Grat. 676 ; Lane v. P. 5 Gilman, 305 ; 458. Joy ti. S. 14 Ind. 139; Cochrane v. S. 6 * P.w. Casborus, 13 Johns. 351 ; Gerard Md. 400, Younger v. S. 2 W. Va. 579, 98 v. P. 3 Seam. 362; C. v. Gould, 12 Gray, Am. D. 791 ; S. v. Knouse, 33 Iowa, 365 ; 171. See Black v. S. 36 Ga. 447, 91 Am. P. V. Barrie, 49 Cal. 342 ; S. v. Stephens, D. 772 ; Ex parte Winston, 52 Ala. 419; 13 S. C. 285; Thompson v. S. 9 Tex, Ap. P. v. Schmidt, 64 Cal. 260; S. v. Parish, 649 ; Johnson v. S. 29 Ark. 31, 43, 21 Am. 43 Wis. 395. R. 1 54 ; S. I'. Kring, 1 1 Mo. Ap. 92 ; Small * Ante, § 992, 993. 602 CHAP. LXIII.] NO SECOND PROSECUTION. §1003 2. The English Practice in Felony, — when a misdirection by the judge at the trial has resulted in a wrongful verdict against the defendant, has from the earliest times been, and it still is, to recommend his pardon by the Crown, granted as of course.^ But for an irregularity in the proceedings there may 'be a new trial equally in felony and misdemeanor.^ § 1002. In Misdemeanor, — the English rule has always been to award a new trial, instead of recommending a pardon.^ § 1003. 1. New Trials to Defendants with us. — Whatever we deem of the justice of the English pardon in felony, as the rem- edy for a judge's mistake to the prejudice of a prisoner at the trial, it has to him a softer touch of mercy than a fresh exposure to the uncertain verdict of a jury. And since our constitutional guaranty is a step beyond the English maxim toward the protec- tion of the accused, one would have supposed that our courts ' Reg. 1'. Frost, 2 Moody, 140, 171 ; U. S. «. Gibert, 2 Sumner, 19, 44-46; U. S. i;. Keen, 1 McLean, 429, 432 ; Eex V. Mawbey, 6 T. R. 619, 638; Tinkler's Case, 13 East, 416, note ; Archb. New Crim. Pro. 177. While this doctrine was generally accepted as undoubted law, there wa.s iu the Queen's Bench a decision which seemed to change the practice to the giving of a new trial instead of recom- mending a pardon, when evidence had been improperly admitted. Reg. v. Scaife, 2 Den. C. C. 281, 17 Q. B. 238 ; Archb. Crim. Plead. & Ev. 13th London ed. 154. But in a later case before the Privy Coun- cil, on a Colonial Appeal, this Queen's Bench decision was shown not to be really an authority for the new doctrine, which was thereupon discarded, and the imme- morial usage was confirmed. Reg. v. Ber- trand. Law Rep. 1 P. C. 520, 10 Cox C. C. 618. In the subsequent case of Reg. v. Murphy, Law Kep. 2 P. C. 535, the Privy Council followed without question this case of Reg. v. Bertrand. 2 Archb. Crim. Plead. & Ev. 18th ed. 188 et seq. ; 1 Chit. Crim. Law, 654. In a New York case, Sutherland, J. said : " By the common law, a new trial could be granted in a case of felony when there had been a mistrial relating to the regularity of the organization of the court, or of the impanelling of the jury, or perhaps con- duct of the ~ jury. Thus, in Arundel's Case, 6 Co. 14, where the defendant had been tried by a jury returned from a cer- tain city instead of a certain parish, and had been convicted, and moved in arrest of judgment on that ground, it was ad- judged that the jury ought to have come from the parish, and not the city, and that the trial was insufficient, and a new venire was awarded to try the issue again. So in the case of P. v. McKay, 18 Johns. 212, where the defendant was in- dicted, tried, and convicted of murder, and moved in arrest of judgment on the ground that the venire which had been issued was a nullity, and the court ad- judged that it was a nullity, a new trial was ordered." Shepherd u. P. 25 N. Y. 406, 417. , 8 Rex V. Curril, Lofft, 156 ; Rex v. Simmons, 1 Wils. 329 ; Rex v. Smith, 2 Show. 165 ; Rex v. Read, I Lev. 9; Rex V. Bear, 2 Salk. 646 ; Rex v. Mawbey, 6 T. R. 619, 638 ; Rex v. Simons, Say. 34 ; Rex V. Tremaine, 7 D. & R. 684 ; s. c. nom. Rex v. Tremearne, 5 B. & C. 254 ; Rex V. Gough, 2 Doug. 791 ; Rex v. Askew, 3 M. & S. 9. But see Read v. Dawson, 1 Sid. 49. " A court of oyer and terminer or general jail delivery, however; or the court of quarter-sessions, have no power to grant a new trial ; at least such is gen- erally understood to be the case." Archb. New Crim. Pro. 177. And see Rex v. Fowler, 4 B. & Aid. 273. 603 § 1004 CONSEQUENCES, [BOOK VIII. would not depart from the English practice by a step in the oppo- site direction. But they did depart from it by not recommending tiie matter-of-course pardon of persons wrongly convicted of fel- ony, and by some of the judges denying them new trials. Yet it is now, and for a long time it has been, settled by universal con- sent, that with us new trials may be allowed alike in treason, felony, and misdemeanor.^ Further as to which, — 2. "Waiving Constitution. — The application for a new trial is, within the foregoing explanations, a waiver of the constitutional protection.^ And though the requiring of the waiver as the sole condition on which the court will correct its mistake is ordinarily a violation of just doctrine, there are cases to which this criti- cism does not apply.* § 1004. 1. Extent of Waiver. — The waiver of the constitutional, immunity which the application for a new trial imphes, is con- strued to extend only to the precise thing concerning which relief is sought.* Thus, — 2. Guilty of Part and not Guilty of Residue. — If the verdict is that the prisoner is guilty of a part of what is charged in the in- dictment, and not guilty of another part,^ — as, guilty on one count, and not guilty on another ; ^ or, there being but one count, guilty of manslaughter and not guilty of murder,'' — and a new trial is granted him, he cannot on the second trial be convicted of the matter of which he was acquitted on the first.* But there is 1 U. S. V. Conner, 3 McLean, 573 ; Stone, 5 Wend. 39 ; McDaniel v. Cole- U. S. V. Keen, I McLean, 429 ; Grayson man, 14 Ark. 54.5. V. C. 6 Grat. 712; Weinzorpflin w. S. 7 ^ Gannon v. P. 127 111. 507, 11 Am. St. Blackf. 186; U. S. v. Fries, 3 Dall. 515; 147; P. ii. Hardisson, 61 Cal. 378; Veatch S. V. Prescott, 7 N. H. 287 ; S. r. Slack, 6 v. S. 60 Ind. 291. Ala. 676 ; Lane v. P. 5 Gilman, 305, 308 ; » C. i). Green, 17 Mass. 515. S. V. Wood, 1 Mill, 29 ; S. i>. Sims, Dud- * P. v. Cowling, 84 N. Y. 478, 484 ; S. ley, Ga. 213; Allen v. C. 2 Leigh, 727; !). Byrd, 31 La. An. 419; S. a. Dennison, S. V. Larurabo, Harper, 183 ; S. v. Merrill, 31 La. An. 847 ; Logg v. P. 8 Bradw. 99. 2 Dev. 269; C. v. Green, 17 Mass. 515; ^ Crim. Pro. L § 1009, 1010. C. V. Rohy, 12 Pick. 496; U. S. v. Halber- .6 Campbell v. S. 9 Yerg. 333, 30 Am. Btadt, Gilpin, 262 ; P. v. Morrison, 1 Par. D. 417 ; S. v. Kittle, 2 Tyler, 471 ; Esmon Cr. 625; U. S. v. Macomb, 5 McLean, v. S. 1 Swan, Tenn. 14; S. v. Kattlemann, 286; Ball c. C. 8 Leigh, 726; U. S. v. 35 Mo. 105. And see S. K. Dark, 8 Blackf. Harding, 1 Wal. Jr. 127. Contra, U. S. 526. V. Gibert, 2 Sumner, 19 ; P. v. Comstock, ^ Slaughter v. S. 6 Humph. 410. See 8 Wend. 549 ;' S. v. Douglass, 63 N. C. Livingston v. C. 14 Grat. 592 ; S. o. Flan- 500; U. S. V. Williams, 1 Clif. 5. The nigan, 6 Md. 167; S. «. Tweedy, 11 Iowa, right to grant a new trial, however, is not 350. every where held to attach to every inferior 8 Lithgow v. C. 2 Va. Cas. 297; S. v.' court. And see P. v. Judges of Dutchess Martin, 30 Wis. 216, 11 Am. E. 567 ; S. v. Oyer and Terminer, 2 Barb. 282 ; P. u. Belden, 33 Wis. 120, 14 Am. R. 748 ; S. 604 CHAP. LXIir.J NO SECOND PROSECUTION. § 1006 some authority either contrary to or qualifying this doctrine. And there are qualifications in just reason. Thus, — § 1005. Not Separable. — If, as it sometimes happens, the alle- gations whereon there is a conviction and those whereof there is an acquittal are in part or in full identical, the consequence of which will be to render the findings of guilty and not guilty con- flicting, in reason the order for a new trial must so far open all as to remove the conflict, or its effect will be imperfect. The cases within this principle are complicated and varying, and some of our courts hold that in this sort of case the new trial opens as well the finding of not guilty as that of guilty.^ The Ohio tribu- nal even laid down the doctrine " that the verdict is severable only when there is a conviction or an acquittal on different counts for separate and distinct offences, or where there are several de- fendants ; but that where there is but one defendant, and, in fact, but one offence, the verdict is entire." ^ From this the Wisconsin Court dissented.^ § 1006. Guilty of Part and Silent as to Residue. — Where the verdict is guilty of a specified part of the charge, making no men- tion of the rest, the courts differ as to its effect.* Some hold it too incomplete to sustain any judgment;^ others treat it as an ac- quittal of the part on which it is silent;® others permit the prose- cuting officer to nol. pros, the part not responded to ; " and others r. Hill, 30 Wis. 416 ; P. v. Gilmore, 4 Cal. S. 70 Ind. 247 ; P. v. Dowling, 84 N. Y. 376, 60 Am. B. 620; S. v. Smith, 53 Mo. 478; Green «. S. 17 Fla. 669; S. v. Gan- 139; S. V. Mailing, 11 Iowa, 239; S. v. non, 11 Mo. Ap. 502; Foster v. S. 88 Ala. Ross, 29 Mo. 32; Major v. S. 4 Sneed, 182; S. v. Thompson, 95 N. C. 596; S. v. 597. McNaught, 36 Kan. 624; Nntt c. S. 63 1 Jarvis v. S. 19 Ohio St. 585 ; Lesslie Ala. 180; Sylvester v. S. 72 Ala. 201 ; V. S. 18 Ohio St. 390; S. u. Stanton, 1 Ire. Cheek v. S. 4 Tex. Ap. 444; S. o. Sorrell, 424 ; S. V. The Commissioners, 3 Hill, S. C. 98 N. C. 738 ; Thomas v. P. 113 111. 531 ; 239. Kirlc v. C. 9 Leigh, 627 ; Weinzorpflin v. 2 S. V. Behimer, 20 Ohio St. 572, 578- S. 7 Blaclif. 186; Brooks v. S. 3 Humph. 580. To the like efCect are Bailey v. S. 26 25 ; Morris v. S. 8 Sm. & M. 762 ; Cham- Ga. 579; and Mitchell v. S. 8 Yerg. 514. hers v. P. 4 Scam. 351; Stoltz v. P. 4 8 S. K. Belden, 33 Wis. 120, 14 Am. R. Scam. 168; Brennau v. P. 15 111. 511, 748; following S. v. Martin, 30 Wis. 216, 517 ; S. v. Tweedy, 11 Iowa, 350; S. v. 11 Am. R. 567. To the like effect are S. Lessing, 16 Minn. 75; C. v. Bennet, 2 Va. V. Smith, 53 Mo. 139; and S. «. Ross, 29 Cas. 235; S. r. Payson, 37 Me. 361 ; S. v. jyjo 32. Hill, 30 "Wis. 416; S. v. Belden, 33 Wis. 4 See Grim. Pro. I. § 1011; 1 Stark. 120, 14 Am. R. 748. Contra, U. S. v. Crim. Plead. 2d ed. 346-350. Keen, 1 McLean, 429. See also Jones 6 S. V. Sutton, 4 Gill, 494. Contra, v. S. 13 Tex. 168, 62 Am. D. 550; S. v. Brooks i). S. 3 Humph. 25; Stoltz v. P. 4 Smith, 5 Day, 175, 5 Am. D. 132. Scam. 168. ' U. S. o. Keen, supra; C. v. Stedman, 6 S. V. Cofer, 68 Mo. 120; Dickinson v. 12 Met. 444. 605 § 1008 CONSEQUENCES. [BOOK VIII. disregard such part altogether, and proceed to judgment for that on which the voice of the jury is distinct.^ Of course, if the ver- dict is deemed too incomplete to sustain a judgment, the case is within explanations already made.^ If the silence is accepted as an acquittal, it is within other explanations.^ The consequence of which appears to be that the majority limit the renewed jeopardy to the part of the indictment to which the finding of guilty was applied.* But some hold that the new trial sdter this verdict opens the entire case, and this view is in some of the States affirmed by statutes, and they are held, to be constitutional.^ § 1007. How it should be. — In practice, the court and the par- ties should have the jury pass distinctly on the whole indictment, if it is possible for them to agree on all. But where this is not done, and even where it is, plainly it is competent for the court in granting a new trial to require tlie waiver to be express and spe- cific, extending as far as justice in the particular case demands, and then to specify in its order what part of the verdict is set aside, and what stands. Then no question can afterward arise. To the author, it appears always best that the judge who bestows the favor of a new trial should do it in this way. Yet there may be circumstances in which it would be so much a matter of right that terms could not properly be imposed. VI. Sham Prosecutions procured hy Defendants. § 1008. Fraud — is familiarly said to vitiate every transaction into which it enters.^ And still he who would avail himself of it must take tlie law's steps therefor. And for some frauds — for example, where a cause has been rightly conducted up to the time of trial, and one has been injured by a fraud therein — his only remedy is to apply for a rehearing, and within the time and ac- cording to the rules prescribed by law ; for that will give him relief in respect to every part of the transaction into which the fraud entered.' Now, — 1 S. « Coleman, 3 Ala. 14 ; Nabors w. R. 791 ; C. v. Arnold, 83 Ky. 1, 4 Am. St. S. 6 Ala. 200; Swinney v. S. 8 Sm. & M. 114; Briggs v. C. 82 Va. 554.; Patterson 576 ; Weinzorpflin y. S. 7 Blackf. 186. v. S. 70 Ind. 341. Thus, by the Constitu- 2 Ante, § 998 (3| ; S. v. Commissioners, tion, in Missouri. S. v. Simma, 71 Mo. 538. Eiley, 273, 3 Hill, S. C. 239. 6 Bishop First Book, § 66-69, 124, 125. 8 Ante, § 1004 (2), 1005. ' Greene v. Greene, 2 Gray, 361, 4 Am. * See Crim. Pro. I § 1011 ; S, v. Bel- Law Reg. 42, 61 Am. D, 454; Homer v. den, 33 Wis. 120 ; S. v. Hill, 30 Wis. 416. Fish, 1 Pick. 435, 11 Am. D. 218. And see 6 Bohanan v. S. 18 Neb. 57, 53 Am. the article in 4 Am. Law Reg. 1. 606 CHAP. LXIII.] NO SECOND PROSECUTION. § 1010 § 1009. 1. Fraud at Criminal Trial — (New Trial). — Obviously one convicted by a fraud practised at the trial may have the verdict set aside. And there is even direct English authority,^ and there are numerous judicial dicta, English and American,^ to the propo- sition that if the defendant's fraud at the hearing brings about his acquittal, the prosecutor may have a new trial. Moreover, whether this view of the law is correct or not, — 2. Second Jeopardy. — A judgment of acquittal upon a verdict procured by fraud will not bar a second trial for the same offence.^ Even if a third person fraudulently manages to be put upon the jury to acquit a prisoner, the latter will not be deemed in jeop- ardy from the panel so constituted, though himself innocent of the fraud, and the judge may direct the juror's withdrawal.* § 1010. 1. Procuring Own Conviction. — If one procures him- self to be prosecuted for an offence which he has committed, thinking to get off with a slight punishment and to bar a real prosecution in the future, — if the proceeding is really managed by himself, either directly or through the agency of another, — he is, while thus holding his fate in his own hand, in no jeopardy. The plaintiff State is no party in fact, but only such in name ; the judge indeed is ipiposed upon, yet in point of law adjudicates nothing ; " all was a mere puppet-show^ and every wire moved by the offender himself." ^ The judgment therefore is a nullity, and is no bar to a real prosecution.^ In like manner, — 2. Bail through Fraud. — Where an accused person by collusion with the witnesses, the complainant, and a justice of the peace, 1 Rex V. Furser, Say, 90. And it has R. 867 ; S. v. Simpson, 28 Minn. 66, 41 been held in Connecticut that in such Am. R. 269 ; Halloran v. S. 80 Ind. 586 ; cases a new trial will be granted the pros- Warriner ». S. 3 Tex. Ap. 104, 30 Am. ecutor on a penal statute. Pruden v. E. 124; Bradley «. S. 32 Ark. 722 ; "Wat- Northrnp, 1 Root, 93 ; Hylliard v. Nick- son v. S. 5 Tex. Ap. 271 ; S. v. Little, ols, 2 Root, 176 ; Hannaball <>. Spaulding, supra ; C. v. Jackson, 2 Va. Cas. 501 ; S. 1 Root, 86. "■ Atkinson, 9 Humph. 677 ; S. v. Lowry, 2 Rex V. Davis, 12 Mod. 9; Rex b. 1 Swan, Tenn. 34; S. «. Clenny, 1 Head, Bear, 2 Salk. 646 ; S. v. Jones, 7 Ga. 422 ; 270 ; C. v. Alderman, 4 Mass. 477 ; S. v. S. V. Wright, 2 Tread. 517 ; S. v. Brown, Colrin, 11 Humph. 599, 54 Am. D. 58; 16 Conn. ,54; S. u. Davis, 4 Blackf. 345; S. v. Yarbrough, 1 Hawks, 78; S. v. 1 Chit, Crim, Law, 657, Green, 16 Iowa, 239; S. v. Cole, 48 Mo. 3 S, V. Swepson, 79 N, C, 632, 70; C. v. Dascom, 111 Mass. 404; S. v. < S. v. Washington, 89 N. C, 535, 45 Reed, 26 Conn. 202. And see S. v. Shelly, Am. R. 700; S. v. Bell, 81 N. C. 591, 98 N. C, 673; Drake v. S, 68 Ala. 510; 6 Woodbury, J, in S. v Little, 1 N. H. S, v. Nichols, 38 Ark. 550 ; Bigham v. S. 257. 59 Missis. 529. » McFarland v S. 68 Wis, 400, 60 Am. 607 § 1012 CONSEQUENCES. [BOOK Till. is arrested and discharged on insufficient bail, he may be re- arrested upon a fresh warrant from another magistrate, and required to give bail for the same offence to a larger amount.^ To return to the fraudulently procured conviction, — 3. Fnii Penalty inflicted. — It would seem that if the legal pen- alty was an exact one,^ and the person thus carrying on the cause against himself had borne it in full, not merely in part, the State would have suffered nothing, therefore the judgment would not be deemed in law fraudulent.^ § 1011. In Conclusion — of this sub-title, while the doctrines thus stated are plain and reasonably well established, other ques- tions less easily solved are liable to arise. Then resort may be had to principles in the law of fraud developed in civil causes.* VII. Rules for determining when there has been a Jeopardy. r §1012. 1. Difficulties of Subject. — The subject of this sub- title is in its nature difficult and intricate. It is rendered more so by much conflict in the decisions. So that we are here required to accomplish the not always easy task of following the principles while not departing from the discordant cases. 2. The Constitutional Command, — let US not forget, is the su- preme authority ; and judicial decisions, however numerous, are subject to be corrected by it. True, we liave the habit of regard- ing adjudications on constitutional questions much as we do upon others. But, reflecting, we see that our constitutions provide the way in which they may be amended, and it does not consist of judicial decision. Doubtless no court, however enlightened, 1 Bnlson v. P. 31 111. 409 ; Crim. Pro. and this proceediDg was held to bar the I §263 a, 1386. earlier. " Certainly," said Battle, J. " it ^ Watkins v. S. 68 Ind. 427, 34 Am. R. is no fraud on the law for a man who has 273, 276. violated it to come forward and volun- s Hamilton v. Williams, 1 Tyler, 15 ; tarily submit to the judgment of a court McFarland v. S. 68 Wis. 400, 60 Am. R. having full jurisdiction of the offence." 867 ; S. V. Little, 1 N. H. 2.'57 ; C. v. Alder- S. v. Casey, Busbee, 209. In Texas, where man, 4 Mass. 477 ; S. v. Atkinson, 9 a like proceeding, pending a prior indict- Humph. 677. See Raynham v. Rounse- ment, was had before a justice of the ville, 9 Pick. 44; C. v. Loud, 3 Met. 328, peace, the former was held to take away 37 Am. D. 139 ; post, § 1023. One know- the justice's jurisdiction, so that what was ing himself to be indicted in the Superior done before him was a nullity. "Burdett Court, yet not being arrested, procured v. S. 9 Tex. 43. himself to be indicted for the same of- « See 1 Bishop Mar. Div. & S. § 452- fence in the^ County Court, and there 528, 545-549; 2 lb. § 1252-1258, 1539- made his submission and paid the fine; 1577. 608 CHAP. LXIII.] NO SECOND PROSECUTION. § 1014 will overrule a case on constitutional law vt^ithout distinctly dis- cerning that it was wrong. But where there is neither douht nor room for doubt, a bench of judges to-day is not justified in vio- lating the Constitution because a bench of judges yesterday did the same thing. To begin now with the specific inquiries of this sub-title, — § 1013. At what Stage, in a Criminal Cause, does the Jeopardy of the Constitution attach ? — Effect of Jeopardy Attaching. — If in a particular case the jeop- ardy has attached though for an instant only, then the prosecution is abandoned or postponed, or otherwise the proceeding so lapses that only by a new jeopardy can there be a conviction, the defend- ant may demand his discharge ; and neither can the same case be carried on against him further, nor a new one be instituted ; be- cause, in the absence of any consent or waiver by him, he cannot be brought into jeopardy a second time.^ Not even an act of the legislature can constitutionally render the rule otherwise.^ Look- ing now negatively at what is — § 1014. 1. Not a Jeopardy. — Remotely one is in jeopardy the moment he incurs legal guilt, since he is then liable to be indicted. Yet such a construction of the constitutional guaranty would nul- lify the law's provisions for punishment ; and we must and do hold that it refers to a jeopardy created, not by the crime, but by the prosecution. Moreover, the steps toward a conviction must have progressed to a point now to be ascertained, or still there cannot be said to have been a jeopardy. Thus, — 2. Discharge by Magistrate — By Grand Jury — Proceedings before Trial. — After a man is arrested and by the committing magistrate discharged;^ or after the grand jury has refused to find an indict- ment against him ; * or after he is indicted and has even pleaded 1 O'Brian v. C. 9 Bash, 333, 15 Am. Foster v. S. 88 Ala. 182; Boswell t. S. R. 71,5 ; King v. P. 5 Hun, 297 ; Hinea v. Ill Ind. 47. S. 24 Ohio St. Ij34 ; P. v. Cage, 48 Cal. ^ Williams w. C. 78 Ky. 93 ; Powell v. 323, 17 Am. R. 436 ; P. v. "Webb, 38 Cal. S. 17 Tex. Ap. 345. 467; Gruber v. S. 3 W. Va. 699; S. v. ' Marston v. Jenness, 11 N. H. 156; Leunig, 42 Ind. 541 ; Lee v. S. 26 Ark. C. v. Myers, 1 Va. Cas. 188, 248; McCanu 260, 7 Am. R. 611 ; Bell r. S. 44 Ala. 393; v. C. 14 Grat. 570; Reg. v. Waters, 12 S. V. Callendine, 8 Iowa, 288; P. v. Horn, Cox C. C. 390, 5 Eng. Rep. 469 , S. i-. 70 Cal. 17 ; Pizano v. S. 20 Tex. Ap. 139 ; Jones, 16 Kan. 608 ; C. o. Hamilton, 129 Maden v. Emmons, 83 Ind. 331 j S. v. Mass. 479. See Sorrell's Case, 1 Va. Cas. Moon, 41 Wis. 684 ; Ex parte Maxwell, 253 ; Bailey's Case, 1 Va. Cas. 258. 11 NeT. 428 ; Hilands y. C. Ill Pa. 1, 56 * C. c. Miller, 2 Ashm. 6l ; Reg. v. Am. R. 235; Adams v. S. 99 Ind. 244; Newton, 2 Moody & R. 503: S. v. Ross, VOL. I. — 39 , 609 §1014 CONSEQUENCES. [BOOK VIII. to the indictment, which is still pending ; ^ or after any other proceedings, pending or not, down to the time of the jury being fully impanelled for the trial,^ — he is still for the same offence liable to a new indictment, to which what has been done is no bar. Consequently, — 3. Two or more Indictments together. — A man may be held on two or more indictments at the same time for one offence, and the pendency of the one will be no bar to proceedings on the other .8 Yet if justice to him requires,, the court in its discretion will quash one or more of them.* Again, — 4. Nolle Prosequi before Trial. — Without prejudice to any fresh prosecution, the attorney 'for the Statd may ml. pros. — that is, discontinue — an indictment at any time after it is found, down to the moment when, the defendant having pleaded — that is, made answer — to it, a traverse jury is impanelled and sworn to try the cause.* Whereupon, — 5. When Jeopardy begins. — On the completing . and swearing 14 La. An. 364 ; Rex u. Walbourne, W. Kel. 63 ; S. V. Vincent, 36 La. An. 770 ; Ex parte Clarke, 54 Cal. 412 ; S. v. Whip- ple, 57 Vt. 637. ^ C. V. Dunham, Thacher Crim. Caa. 513 ; C. V. Drew, 3 Cush. 279 ; P. o. Fisherj 14 Wend. 9, 28 Am. D. 501 ; Lawless v. S. 4 Lea, 1 73 ; Mason v. P. 2 Colo. 373 ; S. v. McKinney, 31 Kan. 570; Stuart v. C. 28 Grat. 950; S. v. Smith, 71 Mo. 45; S. u. Hastings, 86 N. C. 596; S. o. Andrew, 76 Mo. 101 ; S. u. Eaton, 75 Mo. 586 ; U. S. V. Neverson, 1 Macliey, 152. 2 Alexander v. C. 105 Pa. 1 ; C. w. Fitzpatrick, 121 Pa. 109, 6 Am. St. 757 ; Watkins v. S. 60 Ga. 601 ; Whitmore v. S. 43 Ark. 271 ; S. v. Briggs, 27 S. C. 80. And see Brown v. S. 5 Eng. 607 ; C. v. Thompson, 3 Litt. 284 ; S. v. Flej, 2 Brev. 338, 348, 4 Am. D. 583 ; Harrimau i>. S. 2 Greene, Iowa, 270 ; S. v. BaAour, 17 Ind. 526. 3 Smith V. C. 104 Pa. 339 ; O'Meara v. S. 17 Oliio St. 515 ; S. v. Lambert, 9 Nev. 321 ; Miazza v. S. 36 Missis. 613 ; C. v. Golding, 14 Gray, 49 ; C. v. Berry, 5 Gray, 93 ; P. V. Monroe Oyer and Terminer, 20 Wend. 108. But the doctrine seems to be that where two tribunals have concurrent jurisdiction of the cause, the one first tak- ing it is entitled to retain it (1 Bishop 610 Mar. Women, § 634 ; 1 Bishop Mar. Div. & S. § 1448, 1449, 1461) ; so that if there is an indictment pending in one of them, and then an indictment is found in the other for the same offence, the latter may be abated by plea. S. o. Yarbrough, I Hawks, 78. See also Burdett v. S. 9 Tex. 43 ; S.v. Casey, Bushee, 209 ; C. v. Harris, 8 Gray, 470; C. r. Golding, supra; Mize a. S. 49 Ga. 375. * Crim. Pro. I. § 770; P. u. Monroe Oyer and Terminer, supra ; Rex v. Cham- berlain, 6 Car. & P. 93. See, as to Ar- kansas, S. V. Barkman, 2 Eng. 387. 6 C. V. Tuck, 20 Pick. 356, 364 ; Clarke V. S. 23 Missis. 261 ; S. v. McKee, 1 Bailey, 651, 21 Am. D. 499; S. v. Blackwell, 9 Ala. 79 ; Lindsay v. C. 2 Va. Caa. 345 ; Wortham «. C. 5 Rand. 669 ; C. v. Wheeler, 2 Mass. 172 ; U. S. v. Stowell, 2 Curt. C. C. - 153, 170; S. V. Thornton, 13 Ire. 256 ; S. V. Thompson, 3 Hawks, 613. And see Rex V. Roper, 1 Crawf. & Dix C. C. 185 ; Rex V. Wade, 1 Moody, 86 ; Walker v. S. 61 Ala. 30 ; Halloran v. S. 80 Ind. 586 ; S. ». Taylor, 84 N. C. 773 ; S. v. Cham- peau, 52 Vt. 313, 36 Am. R. 754. The cases of Newsom v. S. 2 Kelly, 60, Rey- nolds w. S. 3 Kelly, 53, and Durham ,i'. S. 9 Ga. 306, were decided under a Georgia statute. CHAP. LXIII.] NO SECOND PROSECUTION. §1016 of the panel, tlie indictment being good, and the other preliminary things of record to be explained further on ^ being perfected, the jeopardy of the accused begins ; ^ and it is absolute only when the panel is fuU.^ Or, — § 1015. otherwise expressed. — While there is no jury set apart and sworn for the case, the defendant has not been conducted to his jeopardy. But when, according to the better opinion, the jury is full, sworn, and added to the other branch of the court, and all the preliminary things of record are ready for the trial, the pris- oner has reached the Jeopardy from the repetition of which our constitutional guaranty protects him.* The jeopardy having thus attached, — § 1016. Nolle Prosequi during Trial — 'Withdrawing Juror. — The prosecuting officer is not authorized to enter a nolle prosequi during the trial,^ or if even with the consent of the judge he does it, pr if he stops the hearing by withdrawing a juror, the legal effect is an acquittal.^ And thereupon the defendant is entitled to a verdict of not guilty; or if it is not rendered, he may claim his discharge, and he is not subject to a further jeopardy for the same offence.^ 1 Post, § 1020 et seq. 2 C. V. Cook, 6 S. & R. 577, 9 Am. D. 465 ; S. V. McKee, 1 Bailey, 651 ; Wein- zorpflin v. S. 7 Blackf. 186; Cobia o. S. 16 Ala. 781, 784 ; In re Spier, 1 Dev. 491 ; Wright V. S. 5 Ind. 290, 61 Am. D. 90 ; McFadden v. C. 23 Pa. 12, 62 Am. D. .308 ; Morgan v. S. 13 Ind. 215 ; S. v. Redman, 17 Iowa, 329, 333 ; S. v. Walker, 26 Ind. 346 ; P. V. Webb, 38 Cal. 467 ; Grogan v. S. 44 Ala. 9, 14 ; Bell v. S. 44 Ala. 393 ; Nolan !«. S. 55 Ga. 521, 21 Am. R. 281 ; Ex parte Maxwell, 1 1 Nev. 428 ; Pizano V. S. 20 Tex. Ap. 139; P. v. Horn, 70 Cal. 17; S. w. Washington, 33 La. An. 1473; C. V. Pitzpatrick, 121 Pa. 109, 6 Am. St. 757; Whitmore v. S. 43 Ark. .271 ; Teat v. S. 53 Missis. 439, 24 Am. R. 708. 8 S. w. Burket, 2 Mill, 155, 12 Am. D. 662; P. V. Damon, 13 Wend. 351. ♦ McKenzie v. S. 26 Ark. 334 ; Bell v. S. 44 Ala. 393 ; Lee v. S. 26 Ark. 260, 7 Am. R. 611 ; Gruber v. S. 3 W. Va. 699 ; P. V. Webb, 38 Cal. 467; P. v. Cage, 48 Cal. 323, 17 Am. R. 436 ; Hines v. S. 24 Ohio St. 134; King v. P. 5 Hun, 297; O'firian v. C. 9 Bush, 333, 15 Am, R. 715; Joy V. S. 14 Ind. 139. 6 S. V. Kreps, 8 Ala. 951 ; S. v. I. S. S. 1 Tyler, 178 ; S. w. Roe, 12 Vt. 93, 109 ; C. V. Hart, 149 Mass. 7. See S. v. Davis, 4 Blackf. 345; C. v. Goodenough, Thacher Crim. Cas. 132. If, after the evidence is in, and before verdict, the prosecuting officer enters by leave of court a nol. pros, as to a part of the charge only, the jury may pass upon what remains. Baker V. S. 12 Ohio St. 214. See C. v. Kimball, 7 Gray, 328. 6 S. V. Washington, 33 La. An. 1473. And see cases cited ante, § 1014 ; Klock V. P. 2 Par. Cr. 676 ; S. u. Taylor, 84 N. C. 773. But see Swindel v. S. 32 Tex. 102; Taylor v. S. 35 Tex. 97. ' U. S. V. Shoemaker, 2 McLean, 114 ; Mount V. S. 14 Ohio, 295, 305 ; Reynolds V. S. 3 Kelly, 53 ; Harker ;;. S. 8 Blackf. 540 ; P. V. Barrett, 2 Caines, 304, 2 Am. D. 239 ; C. V. Tuck, 20 Pick. 356 ; Reg.' v. Oulaghan, Jebb, 270 ; Wright v. S. 5 Ind. 290, 61 Am. D. 90 ; Ward v. S. 1 Humph. 253 ; Gruber v. S. 3 W. Va. 699 ; Lee v. S. 26 Ark. 260, 7 Am. R. Ml ; Bell o. S. 611 § 1019 CONSEQUENCES. [BOOK VIII. § 1017. 1. Nolle Prosequi after Verdict. — After a conviction, and before judgment, the officer may 7iol. pros, a part i or even tlie whole '^ of the indictment ; ^ but there is no doubt tliat in such a case the prisoner cannot be prosecuted for the same matter anew. 2. " Submitted to Jury." — By a statute in Georgia, " no nolle prosequi shall be entered on any bill of indictment after the case has been submitted to a jury, except by the consent of the defend- ant." And it was held that a case is submitted to the jury when the prisoner is arraigned, the plea of not guilty filed, and the jury impanelled and sworir.* § 1018. Another View as to when Jeopardy begins. — While most of the decided cases clearly sustain the foregoing proposi- tions, there are a few wherein it is laid down, at least in dicta, ' that the jeopardy begins only after verdict rendered. The mean- ing of the Constitution, it is said, is " that no man shall be twice tried for the same offence." ^ But the actual adjudications, even of these judges, hardly sustain this view ; and the plain difference between the danger, or jeopardy, of a thing, and the thing itself,^ indicates the error on which these dicta proceed. Indeed, thus to substitute a word not in the Constitution for the one in it, is to take with it great liberties. And still other considerations are of the like tendency. Thus, — i § 1019. In Principle, — if the jeopardy began only on the ren- dition of the verdict, the constitutional guaranty could have no effect against a statute enacted to override it. Should the legis- lature direct (what the court might as well do witliout the direc- tion) that whenever the evidence appeared to the judge to be 44 Ala. 393. And see Grable u. S. 2 Greene, 137; S. w. Moor, Walk. Missis. 134, 12 Iowa, 559. Am. D. 541 ; U. S. v. Gibert, 2 Sumner, 1 Anonymous, 31 Me. 592 ; C. v. Briggs, 19, 60 ; U. S. v. Perez, 9 Wheat. 579 ; P. 7 Pick. 177 ; C. w. Tuck, 20 Pick. 356 ; S. v. Westchester, 1 Par. Cr. 659 ; Swindel V. Roe, 12 Vt. 93 ; S. v. Whittier, 21 Me. v. S. 32 Tex. 102, 104 ; Taylor v. S. 35 341, 38 Am. D. 272 ; S. v. Bruce, 24 Me. Tex. 97 ; O'Brian v. C. 6 Bush, 563; Wil- 71-; C. V. Jenks, 1 Gray, 490 ; S. v. Burke, son v. C. 3 Bush, 105. Contra, O'Brian 38 Me. 574. See Flanagan v. S. 19 Ala. v. C. 9 Bush, 333, 15 Am. R. 715, disap- 546. proving C. v. Olds, and O'Brian v. C. 2 S. V. Fleming, 7 Humph. 152, 46 Am. supra. D- 73. 6 << There is a wide difference," said 2 But see Weinzorpflin v. S. 7 Blackf. Duncan, J. " between a verdict given and 186. the jeopardy of a verdict. Hazard, peril, * Newsom v, S. 2 Kelly, 60. danger, jeopardy of a verdict, cannot mean ^ P. V. Goodwin, 18 Johns. 187, 202, a verdict given." C. v. Cook, 6 S. & R. 206, 9 Am. D. 203 , C. v. Olds, 5 Litt. 577, 596, 9 Am. D. 465. 612 CHAP. LXIII.J NO SECOND PROSECUTION. § 1021 insufficient to convict, he should discharge the jury without tak- ing a verdict, and hold the defendant to answer before another jury, no protection against any number of trials and any amount of harassment would be afforded to defendants. And no inter- pretation of any writing which nullifies it, not speaking of irrecon- cilable repugnance, is ever permissible.^ § 1020. Preliminary Things of Record : — Essential to Jeopardy — Doctrine defined. — TllOUgh the jury has been impanelled and sworn, there is still no jeopardy, therefore no bar to second proceedings, unless the court is so clothed with authority and the prior proceedings are such that a judgment upon a verdict duly returned will be valid.^ For the want of a better phrase, we term what is thus required the pi'eliminary things of record.^ Some particulars are, — § 1021. 1. Grand Jury. — When the grand jury is oi'ganized so imperfectly as not to be a lawful body, there is no valid in- dictment, therefore no jeopardy.^ Again, — 2. An Indictment — SO ill in its averments that any judgment thereon will be reversible for error, is too defective a preliminary thing of record for a jeopardy ^ upon it to be possible. Therefore though there has been a form of trial on it, the defendant maj' be indicted anew.^ Still, — 3. Voidable Judgment. — After a verdict of guilty on such in- dictment, and judgment rendered thereon, there can be no second 1 Stat. Crimes, § 41, 65, 82. 139 ; C. v. Keith, 8 Met. 531 ; S. v. Wil- 2 Cases cited to subsequent paragraphs; liams, 5 Md. 82; Pritchett v. S. 2 Sueed, also Johnson v. S. 82 Ala. 29; S. *'. Prieb- 285, 62 Am. D. 468; Black v. S. 36 Ga. now, 16 Neb. 131 ; Weaver u. S. 83 Ind. 447, 91 Am. D. 772; Calvin v. S. 25 Tex. 289 ; S. V. Parker, 66 Iowa, 586 ; S. v. 789 ; White v. S. 49 Ala. 344 ; Simco o. Conkle, 16 W. Va. 736; Phillips u. P. 88 S. 9 Tex. Ap. 338; Hungate v. P. 7 111. 160. - Bradw. 101 ; S. u. Taylor, 34 La. An. 8 Ante, § 1014 (5), 1015. 978; S. v. Jenkins, 20 S. C. 351 ; U. S. v. « Kohlheimer v. S. 39 Missis. 548, 77 Nagle, 17 Blatch. 258, And see Burgess w. Am. D. 689; Finley v. S. 61 Ala. 201; Sugg, 2 Stew. & P. 341 ; C. w. Chichester, 1 Weston u. S. 63 Ala. 155. Va. Cas. 312; P. w. March, 6 Cal. .543. By 6 Ante, § 1015. the New York Revised Statutes, if a party " 2 Hale P. C. 248 ; Robinson u. S. 52 is tried and acquitted upon the merits, it Ala. 587 ; P. v. Clark, 67 Cal. 99 ; U. S. «. will be a bar. Burns v. P. 1 Par. Cr. 182, Jones, 31 Fed. Rep. 725 ; P. v. Larson, 68 184. Quashed on Demurrer. — When a Cal. 18; S. v. Ward, 48 Ark. 36, 3 Am. prisoner demurs to an invalid indictment, St. 213 ; P. V. Barrett, 1 Johns. 66 ; Vaux's and is discharged on judgment being ren- Case, 4 Co. 44 a, 3 Inst. 214 ; Reg. v. Rich- dered in his favor, a second and valid pro- mond, 1 Car. & k. 240 ; S i;. Ray, Rice, 1, eeeding may be instituted against him. 33 Am. T>. 90; Rex v. Wildey, 1 M & S. Cochrane v. S. 6 Md. 400, 406. 183; C. b. Loud, 3 Met. 328, 37 Am. D. 613 S 1023 CONSEQUENCES. [BOOK VIII. prosecution while tlie judgment is unreversed,^ — not because tiiere has been a jeopardy, for there has not, but because the judg- ment is voidable only, and of the same effect while it stands as a valid one.2 To repeat, there must be judgment, the verdict alone not sufficing ; for example, under laws permitting the benefit of clergy,^ a finding of guilty on an invalid indictment, and a dis- charge of the prisoner on prayer of clergy, will not protect him from a fresh prosecution.* Hence, — 4. Nolle Prosequi of Insufficient Indictment. — In reason, and not contrary to the authorities, if on tlie verdict coming in the prose- cuting officer discovers a defect in the indictment, he may, instead of moving for sentence; enter a nolle prosequi," and indict anew.^ The Tennessee Court, without passing on this exact question, held " that a nol. pros, entered with the assent of the court, even after tlie jury is impanelled and proof heard, where the indictment is bad, does not operate as an acquittal, as there was no legal jeop- ardy." ^ Indeed, plainly, since there can be no jeopardy on an in- valid indictment, any discontinuance of it while there is no sub- sisting judgment is no bar to a subsequent prosecution for the same offence.^ Again, — § 1022. Arrest of Judgment for State. — If, on an erroneous in- dictment, final judgment has been rendered against the defendant, there is no constitutional ■ objection to the prosecutoi^'s procuring its reversal, should he choose, as generally he will not, and bring- ing forward a fresh indictment.^ § 1023. Punishment suffered. — After the erroneously convicted person has suffered the full punishment of the law, another prin- ciple, yet probably not our constitutional guaranty, intervenes to prevent a second , prosecution. It would resemble a civil suit to recover a debt already paid, and punishment paid is no more due a second time than a civil debt.^" But an attainted man who has served out a part of his term of imprisonment, if on his own 1 Vaux's Case, 4 Co. 44 a ; 2 Hale P. C. » vVhite v. S. 49 Ala. 344. And see P. 248 ; S. V. George, .'53 Ind. 434. c. March, 6 Cal. 543 ; Cochrane v. S. 6 Md. 2 And see ante, § 930, 975. 400. 3 Ante, § 937, 938 » Reg. o. Houston, 2 Crawf. & Dix * 2 Hawk. P. C. Cnrw. ed. p. 528, § 15 C. C. 310; P, v. Corning, 2 Covnst. 9, 49 s Ante, § 1014-1017. Am. D 364, P. v. March, 6 Cal. 543. " And see Branch o S. 20 Tex. Ap. And see Jones v. S. 15 Ark. SBl. 599 , S v.. Crutch, 1 Houst. Crim. 204. " See C. v. Load, 3 Met. 328, 37 Am. D. ' Walton D S 3 Rneed, 687. 139; ante, § 1010 (3). 614 CHAP. LXIII.] NO SECOND PROSECUTION. § 1026 prayer he has a reversal, has waived his jeopardy and he is sub- ject to a new prosecution .^ § 1024. Whether State have Reversal. — In England, writs of error seem allowable to.the Crown in criminal causes ; ^ but in most of our States, the courts refuse both them and appeals to the pros- ecuting government,^ except where expressly authorized by stat- ute, as in some States they are.* In Maryland, the State may have a writ of error at common law to reverse a judgment given on de- murrer in favor of a defendant.^ And in some other States ques- tions of law may, without specific statutory direction, be reviewed by this proceeding, or by appeal, on prayer of the State.^ The question is not free from difficulty ; but probably some judges have refused the writ to the State from not distinguishing suffi- ciently between cases in which the rehearing would violate the Constitution, and those in which the prosecuting power has the same inherent right to a rehearing as a plaintiff has in a civil cause. § 1025. Common-law Impediments to a Rehearing, — not within our constitutional guaranty, sometimes intervene.^ They are re- movable by legislation, — not so the impediment of a former jeopardy. §1026. 1. statutes providing for Rehearings — in criminal causes 1 Jeferies v. S. 40 Ala. 381 ; Cochrane 137 ; S. v. Norvell, 2 Yerg. 24, 24 Am. D. V. S. 6 Md. 400. 458 ; S. v. Dark, 8 Blackf . 526 ; C. o. Jef- 2 Reg. V. ehadwick, 11 Q. B. 205; ferson, 6 B. Monr. 313; C. v. Scott, 10 Reg. v. Houston, 2 Crawf. & Dix C. C. Grat. 749, 754; S. u. M&.nning, 14 Tex. 310; Reg. V. Millis, 10 CI. & F. 534. See 402; C. v. Anthony, 2 Met. Ky. 399; C. Reg. V. Russell, 3 Ellis & B. 942. v. Van Tuyl, 1 Met. Ky. 1, 3, 71 Am. D. 8 S. v: Jones, 7 Ga. 422; C. v. Cum- 455. See C. v. Thompson, 13 B. Monr.- mings, 3 Cnsh. 212, 50 Am. B. 732; S. v. 159. Daugherty, 5 Tex. 1 ; P. w. Corning, 2 ^ S. v. Buchanan, 5 Har. & J. 317, 9 Comst. 9, 49 Am. D. 364 ; U. S. v. More, Am. D. 534. See S. v. Graham, 1 Pike, 3 Cranch, 159 ; C. v. Harrison, 2 Va. Cas. 428 ; S. v. Hadcock, 2 Hayw. 162 ; Crim. 202 ; S. V. Reynolds, 4 Hayw. 109 ; P. v. Pro. I. § 1363. Royal, 1 Scam. 557 ; P. <;. DiU, 1 Scam. ^ xhis question is in all the States 257 ; Martin v. P. 13 III. 341 ; S. v. Jones, more or less affected by the terms of the 1 Mnrph. 257 ; C. v. Sanford, 5 Litt. 289 ; statutes. Consult S. v. Tait, 22 Iowa, 140; S. u. Solomons, 6 Yerg. 360, 27 Am. D. S. v. Ellis, 12 La. An. 390; S. u. Ross, 14 469; S.W.Kemp, 17 Wis. 669; S. t». Phil- La. An. 364, 366 (Cole, J. observed; lips 66 N. C. 646 ; S. v. Freeman, 66 N. C. " There does not appear to be any reason 647'; S. «.-West, 71 N. C. 263. And see why the State should not be entitled, as a S. v. Spear, 6 Misso. 644 ; C. v. Jefferson, private individual, to an appeal from one 6 B Monr. 313 ; S. v. Davis, 4 Blackf. of her inferior courts to a superior tri- 345- S. V. Heatherley, 4 Misso. 478. bunal"), S. v. Dorman, 11 Misso. 635; 4 S V. Douglass, 1 Greene, Iowa, 550 ; S. v. Thompson, 41 Tex. 523. S. V. Hicklin, 5 Pike, 190; Jones v. S. 15 ' See ante, § 983, 1010 (3), 1021 (3). Ark. 261 ; S. v. Fields, Mart. & Yerg. 615 § 1027 CONSEQUENCES. [BOOK VIII. will not ordinarily be interpreted,^ and will never have force, to violate the constitutional provision under consideration. If the jeopardy has once attached, there can be no second jeopardy with- out the consent of the def endant,^ whatever the statute may direct. It will apply only where it constitutionally may.^ Thus, — 2. Reversal by State after Trial. — A statute which, by the de- vice of an appeal by the State, undertakes to authorize the retrial of one acquitted on a valid indictment is void.* Even where the acquittal was produced by an erroneous direction of the judge at the trial, it will stand against all doings for its reversal without the defendant's consent, whatever their forms, and from whatever source proceeding.^ But — § 1027. 1. Reversals before Jeopardy — are different. Whether the applicant is the defendant or the State, they do not prejudice a fresh prosecution. Thus, — 2. Valid Indictment quashed — Judgment on Invalid. — If, with- out a trial,, the court quashes a valid indictment, or enters judg- ment for the defendant on his demurrer, believing it invalid, a trial may be had after the prosecutor has procured the reversal of these proceedings ; ^ because, as we have seen, the prisoner is not in jeopardy until the jury is impanelled and sworn. And the same consequence follows where a judgment of conviction has been rendered on an invalid indictments Yet — 3. Regular down to Trial. — If all things are regular down to the attaching of the jeopardy at the trial, the State, in the ab- sence of any waiver by the defendant, is not entitled to bring him into jeopardy again by procuring the correction of any error of its own or of the court at the trial or afterward.^ On the other hand, — 4. Quashed at Defendant's Prayer. — Where, at any stage of the proceedings, the defendant procures the indictment to be quashed, 1 Stat Crimes, § 89, 90. 6 Beg. „. Houston, 2 Crawf. & Dix " Ante, § 992-994, 1015, 1016. C. C. 310. See P. v. Gardner, 62 Mich. « P. u. Webb, 38 Cal. 467. 307 ; P. v. Varnum, 53 Cal. 830. * S. K.VanHorton, 26Iowa, 402. And ' Ante, § 1021, 1022; Mount v. C. 2 see S. V. West, 71 N. C. 263 ; S. v. Phil- Duv. 93. lips, 66 N. C. 646 ; S. v. Freeman, 66 N. C. 8 Ante, § 992 (2) ; S. v. Fields, Mart. & ^*^- Yerg. 137; S. v. Hand, 1 Eug. 169, 42 ' Black V. S. 36 Ga. 447, 91 Am. D. Am. D. 689 ; S. v. Denton, 1 Eng. 259 ; 772; O'Briau v. C. 9 Bush, 333, 15 Am. S. v. Dark, 8 Blackf. 526; S. «. Davis, 4 K. 715 ; S. y. Leunig, 42 Ind. 541 ; Hiues Blackf. 345. V. S. 24 Ohio St. 134. 616 3HAP. LSIII.] NO SECOND PROSECUTION. § 1029 he caimot in bar to a new one assert that the first was good, and he was in jeopardy under it.^ § 1028. Court without Authority. — If the court has no juris- diction of the offence,^ or if the statute creating it is unconstitu- tional,3 or the term it is holding is not authorized,^ or otherwise it has no power over the thing,^ the defendant is not in jeopardy, however far the tribunal proceeds. In most or all of these cir- cumstances, the final judgment is not voidable as mentioned in a previous section,^ but void ; so that his unreversed conviction ^ is no more a bar to another prosecution than his acquittal. But — § 1029. 1. Concurrent Jurisdiction. — If the tribunal has author- ity either concurrent with another or exclusive, — whether it is an inferior one, as a justice's court, a court-martial, or the court of a ' municipal corporation, or is a superior one, — a conviction or ac- quittal in it will be a bar to subsequent proceedings in whatever court undertaken.^ As to — 2. 'Whether Authorized. — The authority required by this rule is to adjudicate the particular matter. We have seen that the same act may be an offence against two governments, and the tribunals of neither can punish it in its aspect of a wrong to the other, nor does a prosecution under one of the governments bar the like- under the other.^ Now, there is no impossibility that this prin- ciple should be operative within a single country. Tlius, — 3. Statute and Municipal By-law. — Not repeating the elucida- 1 Joy V. S. 14 Ind. 139. Of the like Alderman, 4 Mass. 477 ; Eeg. «. SulUvau, sort are S. v. Priebnow, 16 Neb. 131 ; S. v. 15 V. C. Q. B. 198. Hart, 33 Kan. 218. « Ante, § 1021 (3). 2 S. V. Odell, 4 Blackf. 156; C. v. ' C. u. Hyde, Thacher Crim. Cas. 112; Hyde, Thacher Crim. Cas. 112; C. c. C. w. Goddard, 13 Mass. 455; S. f. Payne, Peters, 12 Met. 387; C. v. Goddard, 13 4 Misso. 376;' S. v. McCory, 2 Blackf. 455, 457; S. v. Payne, 4 Misso. 5; Rex •;>. Bowman, 6 Car. & P. 337. But 376 ; S. u. McCory, 2 Blackf. 5 ; Marston see McGiunis i'. S. 9 Humph. 43. V. Jenness, 11 N. H. 156; C. o. Myers, 1 ' C. v. Cunningham, 13 Mass. 245; S. Va. Cas. 188, 248 ; Flonrnoy v. S. 16 Tex. v. McCory, 2 Blackf. 5 ; Stevens v. Tas- 30; Norton v. S. 14 Tex. 387 ; Wilson v. sett, 27 Me. 266; S. v. Pluukett, 3 Harri- S. 16 Tex. 246; O'Brian v. S. 12 Ind. son, 5; C. o. Miller, 5 Dana, 320; S. i. 369 ; S. o. Hodgkins, 42 N. H. 474 ; Simonds, 3 Misso. 414; Wilkes v. Dins- Hodges V. S. 5 Coldw; 7, overruled in man, 7 How. V. S. 89, 123; S. v. Davis, 1 Mikels V. S. 3 Heisk. 321 ; Montross v. S. Southard, 311; C. v. Goddard, 13 Mass. C'l Missis. 429; Thompson v. S. 6 Neb. 455; Trittipo t). S. 13 Ind. 360; Bruce i). 102 ; S. V. Weatherspoon, 88 N. C. 19. S. 9 Ind. 206; Trittipo v. S. 10 Ind. 343 ; 3 Rector w. S. lEng. 187. See McGin- Handley v. S. 16 Tex. Ap. 444; S. v. nis V. S. 9 Humph. 43, 49 Am. D. 697. Bowers, 94 N. C. 910. See Wolverton v. * Dunn V. S. 2 Pike, 229, 35 Am, D. C. 75 Va. 909. i 54 ; Rex v. Bowman, 6 Car. & P. 337. » Ante, § 983-989. 5 S. V. Atkinson, 9 Humph. 677; C. v. 617 § 1031 CONSEQUENCES. [BOOK Till. tions of the subject in another volume,^ it there appears that the same act may be an offence against both a State and a municipal corporation' within it, so tliat a jeopardy under the one govern- ment will be no bar to a prosecution under the other .2 In like manner, — 4. The Military and CivU Jurisdictions — are SO distinct that one wrongful transaction, or even one wrongful act, may offend both, and be punishable by both. Perhaps there may be some distinc- tions under this head, but a minuter elucidation seems not here to be required.^ § 1029 a. The Plea, — commonly put in at the arraignment, is an essential part of the proceedings.* So that until an indicted person has pleaded, he is not in jeopardy though a jury has been sworn to try him, or even though there has been an actual trial.^ But the similiter appears not to be essential.? § 1030. Impossibilities not of Record : — And Not Known. — The foregoing impediments to a jeopardy, being " of record," ax'e of a sort to be known before trial. That ordinarily the prosecuting officer does not know them arises from his oversight or from his mistaking the law. But the im- - possibilities now to be considered are of a nature to be imknown ; yet they are just as real and just as much within the great law of necessity, which- excuses what cannot be avoided,^ as if known to the court and parties, or set down in the record. That only the evolutions of time will bring them to the light, until which no power of man can discover them, is immaterial. Let us call to mind some of them. § 1031. Term of Court ending before Verdict. — In the inner nature of things, discernible by the Infinite, it is certain how much time a trial will consume ; but man can ascertain it only by the event. If, therefore, before the cause is finished by the bringing in of the verdict, the term of the court closes, this result 1 Stat. Crimes, § 23, 24. Case, 6 Opin. Att. Gen. 413 ; Brown v. 2 Hankina y. P. 106 111. 628; S. v. Wadsworth, 15 Vt. 170,40 Am. I). 674 ; Oleson, 26 Minn. 507 ; C. v. Bressant, S. v. Rankin, 4 Coldw. 145. And see 126 Mass. 246 ; Kemper v. C. 85 Ky. 219, post, § 1067. 7 Am. St. 593; Preston v. P. 45 Mich. ■" Crira. Pro. I. § 796, 797, 801. 486 ; S. V. Lee, 29 Minn. 445 ; .lohnson v. 6 Link v. S. 3 Heisk. 252 ; U. S. i: S. 59 Missis. 543 ; Hughes v. P. 8 Colo. Riley, 6 Blatch. 204 ; White v. S. 7 Tex. 536. Ap. 374. » Coleman v. Tennessee, 97 U. S. 509 ; « Crim. Pro. I. § 796, 801, 1354. U. S. V. Cashiel, 1 Hughes, 552 ; Steiner's ' Ante, § 346, 354, 824 (3 . 618 CHAP. LXIII.j NO SECOND PROSECUTION. § 1033 shows that the prisoner was never in jeopardy ; though by himself and others believed to be. Consequently he may be tried again.i § 1082. 1. Sickness — (Judge — Juror — Prisoner). — Sickness may come, unknown till it arrives. And if while the cause is on trial, it falls on the judge '^ or a juror ^ or the prisoner,* to interrupt the proceeding before verdict, this result shows that no jeopardy existed in fact, though believed to exist ; and the prisoner may be required to answer anew. Of course, — 2. The Death or Insanity — of a juror or the judge will work the same result." § 1033. 1. The Jury's Failing to agree — calls for steps and pro- duces consequences concerning which there was formerly much diversity of opinion and practice, and even now while there is a sort of general concord, it is not .complete. As to the — 2. Ancient Practice. — It is commonly asserted that anciently in England, if the jury could not coiue to a verdict before the end of the term, they were carted after the judges into, or to the border of, the next adjoining county.^ But this has been doubted ; ' and whatever it may have been, — 1 S. V. McLemore, 2 Hill, S. C. 680 ; S. V. Battle, 7 Ala. 259; Lore v. S. 4 Ala. 17.3; Ned v. S. 7 Port. 187; Wright v. S. 5 Ind. 290; S. v. Moor, Walk. MissLs. 134, 12 Am. D. 541 ; C. v. Thompson, 1 Va. Cas. 319; S. o. Brooks, 3 Humph. 70; Powell u. S. 19 Ala. 577; Keg. o. Davison, 2 f ost. & F. 250 ; P. v. Cage, 48 Cal. 323, 17 Am. R. 436 ; Josephine v. S. 39 Missis. 613 ; In re ScrafEord, 21 Kau. 735 ; S.' V. JefEors, 64 Mo. 376 ; S. v. Mc- Gimsey, 80 N. C. 377, 30 Am. R. 90. Con- tra, In re Spier, 1 Dev. 491. And see U. S. V. Shoemaker, 2 McLean, 114; C. <;. Olds, 5 Litt. 137. A Defendant left at Large, — on the expiration of the term, may be arrested and held for trial. S. v. Tilletson, 7 Jones, N. C. 1 14, 75 Am. D. 456. ■» Nugent «. S. 4 Stew. & P. 72, 24 Am. D. 746 ; S. D. Farrow, 8 Bax. 571. Or his wife, compelling him to leave, S. u. Tat- man, 59 Iowa, 471. 3 Fletcher v. S. 6 Humph. 249 ; C. ^. Merrill, Thacher Crim. Cas; 1 ; S. w. Cur- tis, 5 Humph. 601 ; Rex v. Barrett, Jebb, 103; Rex v. Delany, Jebb, 106; Rex o. Edwards, 4 Taunt. 309, Russ. & Ry. 224, 3' Camp. 207; Rex v, Scalbert, 2 Leach, 620; Reg. v. Leary, 3 Crawf. & Dix C.C. 212 ; Reg. v. Beere, 2 Moody & R. 472 ; Hector v. S. 2 Misso. 166, 22 Am. D. 454; C. I/. Fells, 9 Leigh, 613 , Doles v. S. 97 Ind. 555 ; S. v. Emery, 59 Vt. 84 ; Mixon V. S. 55 Ala. 129, 28 Am. R. 695. The sicliness must be snch as cannot be re- moved by refreshments. C. v. Clue, 3 Rawle, 498. And proper evidence of the sickness must be produced, Rulo !•. S. 19 Ind. 298. As to Sickness of Prosecuting Officer, see U. S. v. Watson, 3 Ben. 1. * Rex V. Stevenson, 2 Leach, 546 ; Rex V. Streek, 2 Car. & P. 413 ; Rex v. Kell, 1 Crawf. & Dix C. C. 151 ; P. u. Goodwin, 18 Johns. 187,9 Am. D. 203; S. o. McKee, 1 Bailey, 651, 21 Am. D. 499; Foster, 34; Brown v. S. 38 Tex. 482 ; S. V. Wiseipan, 68 N. C. 203 ; Lee V. S. 26 Ark. 260, 7 Am. R. 611. 5 P. V. Webb, 38 Cal. 467. See Bescher u. S. 32 Ind. 480 ; Ex parte McLaughlin, 41 Cal. 211, 10 Am. R. 272. * Rex 0. Ledgingham, 1 Vent. 97 ; & Inst. 110; Co. Lit. 227 ; Foster, 31 et seq. See S. V. Hall, 4 Halst. 256, 261 ; U. S. v. Gibert, 2 Sumner, 19, 42; Reg. v. Leary, 3 Crawf. & Dix C. C. 212. ' Cockburn, C. J. in the Court of Queen's Bench, observed : " It was said 619 § 1033 CONSEQUENCES. [book viii. 3. Modern Rules and Practice. — This course was never pui- siied with us. Yet there are American tribunals wherein, at periods oven not remote, it has been held that the evidence of time alone can establisli the jury's inability to agree during the term, and that, therefore, if they are earlier discharged on any other proofs, the prisoner is exempt from being tried again.i Perhaps this is still the doctrine, either general or limited to capital cases,^ in a few of the States. But in England ^ and Ireland,* at present, and in most ^ of our States, when a reason- by the prisoner's counsel that it was com- petent to judges, and the duty of judges, to carry with them in carts a jury who could not agree to the confines o£ the county where the trial was had, or even beyond the county. 1 doubt whether there is authority for this assertion. The dicta that are to be found in the Book of Assize (19 Ass. pi. 6; 41 Ass. pi. 11) have been copied servilely by text-writers, and that has given rise to this opinion. I question very much whether such a practice ever existed ; I am sure it has not in modern times. But suppose it to have been so, we, nowadays, look upon the principles on which juries are to act, I hope, in a dif- ferent light. We do not desire that the unanimity of a jury should be the result of anything but the unanimity of convic- tion." Winsor v. Reg. Law Kep. 1 Q. B. 289, 305, 7 B. & S. 490; s. c. in all its stages, nom. Reg. v. Winsor, 10 Cox C. C. 276. 1 Ned V. S. 7 Port. 187 ; Ex parte Vin- cent, 43 Ala. 402 ; Williams v. C. 2 Grat. 567, 44 Am. D. 403, compared with Dye 0. C. 7 Grat. 662, where it appears that the rule is applied only in felonies ; Wright 0. C. 75 Va. 914, where it appears that by the Code there may be a dischai:ge for disagreement both in felony and misde- meanor; C. v. Cook, 6 S. & R. 577, 9 Am. D. 465 ; Mahala u. S. 10 Yerg. 532, 31 Am. D. 591. And see Josephine u. S. 39 Missis. 613. 2 C. V. Fitzpatrick, 121 Pa. 109, 6 Am. St. 757. 2 Winsor v. Reg. supra; In re New- ton, 13 Q. B. 716, 13 Jur. 606, 18 Law J. N. s. IVI. C. 201 ; s c. nom. Reg. v. New- ton, 3 Car. & K. 85, 86, 3 Cox C. C. 489 ; Archb. New Crim. Pro. 172. See Conway V. Reg. 7 Ir. Law, 149, 13 Q. B. 735, note, 620 1 Cox C. C. 210; Rex v. Shields, 28 How. St. Tr. 619, 646, 647. 4 Reg. I). Barrett, Ir. Rep. 4 C. L. 285. 5 C. V. Bowden, 9 Mass. 494; C. «. Purchase, 2 Pick. 521, 13 Am. D. 452; C. V. Townsend, 5 Allen, 216; S. v. Up- dike, 4 Barring. Del. 581 ; P. v. Olcott, 2 Johns. Cas. 301, 1 Am. D. 168; U. S. v. Perez, 9 Wheat. 579; S. b. McKee, 1 Bailey, 651, 21 Am. D. 499; P. v. Good- win, 18 Johns. 187, 206, 9 Am. D. 203; S. u. Woodruff, 2 Day, 504, 2 Am. D. 122 ; Hurley v. S. 6 Ohio, 399 ; P. w. Green, 13 Wend. 55 ; S. v. Hall, 4 Halst. 256 ; Wright V. S. 5 Ind. 290 (but see Miller v. S. 8 Ind. 325; Reese w. S. 8 Ind. 416); Shaffer v. S. 27 Ind. 131; P. v. Shotwell, 27 Cal. 394 ; Dobbins v. S. 14 Ohio St. 493 ; S. v. Walker, 26 Ind. 346 ; S. v. Nelson, 26 Ind. 366 ; S. 0. Qrane, 4 Wis. 400; Barrett i;. S. 35 Ala. 406 ; McCreary v. S. 29 Pa. 323 ; Avery v. S. 26 Ga. 233 ; Vanderwerker o. P. 5 Wend. 530 ; Williford v. S. 23 Ga. 1 ; Lester v. S. 33 Ga. 329; Lee i.'. S. 26 Ark. 260, 7 Am. R. 611; P. ... Cage, 48 Cal. 323, 17 Am. R. 436; S. v. Bullock, 63 N. C. 570; S. u. Alman, 64 N. C. 364 ; S. 0. Jefferson, 66 N. C. 309 ; Ex parte McLaughlin, 41 Cal. 211, 10 Am. R. 272 ; S. 0. Vaughan, 29 Iowa, 286 ; Crookhan u. S. 5 W. Va. 510; Mose- ley V. S. 33 Tex. 671 ; Ex parte Max- well, 11 Nev. 428; S. v. Pool, 4 Lea, 363 ; S. V. Washington, 90 N. C. 664; S. v. Garland, 90 N. C. 668 ; S. v. Twiggs, 90 N. C. 685; Nolan v. S. 55 Ga. 521, 21 Am. R. 281 ; Jones v. S. 55 Ga. 625 ; Varnes V. S. 20 Tex. Ap. 107 ; Kelly v. U. S. 27 Fed. Rep. 616; S. v. Copeland, 65 Mo. 497 j S. V. Shuchardt, 18 Neb. 454 , Potter i). S. 42 Ark. 29 , S. v. Blackman, 35 La. An. 483; S. f. Allen, 47 Conn. 121 ; Tiorce CHAP. LXIII.J NO SECOND PEOSECUTION. § 1034 able time for discussion . Shuchardt, 18 Neb. 454, S. v. Bass, supra; S. ... Honeycutt, 7+ 4.56; Ex parte Maxwell, 11 Nev. 428. N. C. 391. AndseetheobservationsofRanney, J. in ^ p. „. Green, 13 Wend. 55; S. o. Dobbins v. S. 14 Ohio St. 493, 501, 502. Waterhouse, Mart. & Yerg. 278. But In Indiana Elliott, J. observed : " The see contra, decided in the same State with discretionary power [to discharge the jury] the last, Mahala v. S. 10 Yerg. 532, 31 is not that absolute discretion depending Am. D. 591. See C. v. Fells, 9 Leigh, 613. upon the mere will of the judge, but is a « P. •>. Denton, 2 Johns. Cas. 275; P. sound judicial discretion, to be exercised v. Olcott, 2 Johns. Cas. 301, 1 Am. D. only upon sufficient reasons, and subject 168; P. v. EUis, 15 Wend. 371. And see to the supervision of an appellate court." P. v. The Judges 8 Cow 127. S ,> Walker 26 Ind. 346, 353. See fur- ' Dobbms «. S. 14 Ohio St. 493; In re ther, on this question. Price v. S. 36 Missis. Allison, 13 Colo. 525, 16 Am. St. 224. 531 72 Am. D. 195 ; Atkins «. S. 16 Ark. = Varnes v. S. 20 Tex. Ap. 107 ; Whit- 621 § 1036 CONSEQUENCES. [book VIII. § 1035. Necessity — is in some of the cases the assigned ground for the discharge.! y^Q have seen that ib is the one power which no combinations of men can successfully oppose, and that it over- rides all human laws, even our written constitutions.^ Certainly, therefore, it is a source sufficient for our present doctrine. Yet it does not as of course render unsound juridical elucidations wherein it is not mentioned. § 1036. In Principle, — the better doctrine is as follows : Whenever, either in felony or misdemeanor, the judge discovers anytliing which will render a verdict against the prisoner void, or subject to be avoided by him, or will render it impossible that a verdict should be reached, — anything, in other words, establish- ing that no jeopardy has really attached to the prisoner, and that any further progressing in the trial will be fruitless, — he may adjudge the fact, put the adjudication on record, and discharge the jury. Then, the prima facie jeopardy appearing of record, matter nullifying it will appear also, and the defendant will be properly held for further proceedings. But if the jeopardy is disclosed in the record without the nullifying matter, the defeud- ten V. S. 61 Missis. 717; no appeal from the order, S. v. Twiggs, 90 N. C. 685. An Exceptional Practice — prevails in Mas- sachusetts. To illustrate it, a case was submitted to the jury in the evening, un- der the agreed-to arrangement that on coming to a verdict they might reduce it to writing and return it the next morning. Then tlie judge directed the officer to dis- charge them if they did not agree in seven hours. The time having elapsed without an actual agreement, the officer told them they were discharged, they protesting that they should agree in a few minutes, which they did. They sealed up their verdict, arid returned it into court ; but it was set aside because rendered after they were lawfully dis- charged. Yet Metcalf , J. observed : " While we do not doubt the authority of the court, in its discretion, to order the discharge of a jury after seven hours' disagreement, yet a much preferable course would be to direct the officer who has charge of them that, if they should not agree by a certain hour, he should inqijire of them whether they were likely to agree, and if told by them 622 that they wene not, then to discharge them. Such is the course adopted by the members of this court in cases like this, whenever they give any order to the officer, as to discharging the jury before they have applied to the court through the officer to be discharged." C. V. Townsend, 5 Allen, 216, 218. See, in contrast to this case, S. v. Alman, 64 N. C. 364. And for other cases present- ing varieties of practice, see S. v. Honey- cutt, 74 N. C. 391 ; P. v. Jones, 48 Mich. 554 ; S. V. Sutfin, 22 W. Va. 771 ; Green V. S. 10 Neb. 102; P. v. Pline, 61 Mich. 247 ; S. V. Shuchardt, 18 Neb. 454; S. w. Twiggs, 90 N. C. 685 ; U. S. i>. Bigelow, 3 Mackey, 393. 1 S. V. Ephraim, 2 Dev. & Bat. 162; Powell V. S. 19 Ala. 577; C. «. Clue, 3 Rawle, 498 ; U. S. v. Coolidge, 2 Gallis. 364 ; "Wright v. S. 5 Ind. 290. And see U. S. V. Watson, 3 Ben. 1 ; S. v. Wise- man, 68 N. C. 203 ; S. v. Leutiig, 42 Ind. 541 ; S. V. Wamire, 16 Ind. 357 ; P. c. Jones, 48 Mich. 554 ; S. v. Bass, 82 N. C. 570; Nolan v. S. 55 Ga. 521, 21 Am. R. 281. ' Ante, § 346, 354, 824 (3), 1030. CHAP. LSIII.] NO SECOND PROSECUTION. § 1039 ant may claim to be dismissed from the cause, and be exempt from further prosecution for the same offence. This leads us to— • § 1037. Further as to when the Jury may he discharged : — 1. Doctrine repeated. — Whenever the already explained jeop- ardy has in fact attached -to a prisoner, not simply when he and others mistakenly think it has, a discharge of the jury without his consent frees him from any further or . new prosecution for the same offence.^ Thus, — 2. Evidence Defective — (Witness Absent, Sick, &c.). — When- ever, after the jury is sworn, the evidence is found not sufficient to convict ; or a material witness for the prosecution is absent ; ^ or such witness is unacquainted with the nature of an oath, and so requires instruction before testifying ; ^ or the witness is sud- denly taken too ill to proceed,* — no second trial can be had. § 1038. Any Misconduct of the Jury or a Juror, — such that no ver- dict can be rendered, — as, where a juror escapes before the ver- dict is reached, — does not, like a wrongful discharge of the jury by the judge, entitle the prisoner to go free, or protect him from a second jeopardy.^ The reason for the difference appears to be that the prisoner's constitutional rights are under the protection of the court, consisting of the presiding judge, and not of the jury. So that if the judge wrongfully orders the discharge, the prisoner takes his likewise by operation of law ; but if a juror or the panel becomes self-incapacitated, rendering a verdict impossible, the impediment is of the unseen class which on being discovered shows that there was never a jeopardy. Again, — § 1039. Juror disqualified. — If, after the trial has commenced, a juror is discovered to have been insufficiently sworn,^ or to be insane,'^ or not of the panel,^ or from any other cause incompetent,^ he may be discharged or the error corrected otherwise without 1 "Wright V. S. 5 Ind. 290 ; Hines v. S. Case, 2 Hale P. C. 295, 296 ; S. v. McKee, 8 Humph. 597; ante, § 992, 1016. 1 Bailey, 651, 654, 21 Am. D. 499; Reg. i! P. I'. Barrett, 2 Caines, 304, 2 Am. D. v. Ward, 10 Cox C. C. 573. See S. v. 239; U. S.v. Shoemaker, 2 McLean,, 114; Garrigaes, 1 Hayw. 241 ; Maden v. Em- Harker v. S. 8'Blackf. 540; Foster, 30. mons, 83 Ind. 331. ' Rex V. "Wade, 1 Moody, 86 ; Keg. v. « Rex ». Deleany, Jebb, 88. Oulaghan, Jebb, 270. See also Anony- ' U. S. v. Haakell, 4 "Wash. C. C. 402. mous, 1 Leach, 430, note. ' Reg. v. Phillips, 11 Cox C. C. 142. < Rex V. Kell, 1 Crawf. & Dix C. C. « S. v. Stephens, 11 S. C. 319; C. v. 151. Compare with ante, § 1032(1). McCormick, 130 Mass. 61j39 Am. R. 423; 6 S. V. Hall, 4 Halst. 256 ; Hanscom'a S. v. Allen, 46 Conn. 531. 623 § 1041 CONSEQUENCES. [BOOK Till. entitling the prisoner to go free. Some state the rule to be that anything discovered in a juror showing him not to be a proper one to sit in the case will work this result.^ But the better form of the doctrine is that the matter must be such as the defendant can make ground for a new trial if the verdict is against him.^ That whereof the prosecuting officer alone can complain has been waived, if he knew it, by going to trial ; and whenever the cir- cumstances are such that the court wiU hold such waiver to have been made by him, a discharge of the juror without the prisoner's consent will bar a further jeopardy.^ If a juror is under some legal incompetency, as where he is an alien, unknown to either party when the cause is opened, his discharge does not prevent a second trial.^ Moreover, — § 1040. 1. Too Few Jurors. — One tried by a jury less in num- ber than required by law is in no jeopardy, and he may be tried anew.^ And — 2. Pleadings not Ready. — It is the same, we have seen,^ when the case is put to the jury before the pleadings are ready ;'' for they will not sustain a verdict. § 1041. Revising Jury's Discharge.^ — If the judge on wrongly discharging the jilry refuses to set at liberty the prisoner, is there an appeal from his discretion to a revising tribunal ? ^ By ordi- nary doctrine, steps jn pure discretion for the despatch of busi- ness are not subjects of review,!" — matter on which the practice in our different States is not quite uniform. But a claim under this twice-in-jeopardy guaranty, or any other constitutional one, is not, in reason, within this class of questions ; though in some of the cases " observations occur indicating that the judges inconsider- 1 TJ. S. V. Morris, 1 Curt. C. C. 23. s See Ned u. S. 7 Port. 187. 2 Ante, § 1021. lo Illustrations of this principle may be S. V. McKee, 1 Bailey, 651, 21 Am. seen in C. v. Eastman, 1 Cush. 189, 48 T>. 499; Eeg. v. Wardle, Car. & M. 647; Am. D. 596; Eeg. v. Wardle, Car. & M. O'Brian v. C. 9 Bush, 333, 15 Am. R. 715. 144. ' Stone V. P. 2 Scam. 326, 335 ; S. «. " U. S. v. Haskell, 4 Wash. C. C. 402 ; Williams, 3 Stew. 454, 473, in which lat- C. v. Olds, 5 Litt. 137 ; U. S. v. Perez 9 ter case, however, the court deemed the Wheat. 579 ; P. v. Olcott, 2 Johns. Cas. discharge to be cause simply for a new 301, 1 Am. D. 168 ; C. v. Purchase, 2 Pick, trial. And see Brown v. S. 5 Eng. 607 ; 521, 524, 13 Am. D. 452 ; S. v. Shoemaker, Crim Pro. I § 946-949 b. ' a McLean, 114; U. S. v. Morris, 1 Curt. ' Brown v. S. 8 Blackf. 561. C. C. 23. Contra, C. v. Cook, 6 S. & R. , ^°'^| }°^^ "■ 577, 9 Am. D. 465 ; Wright v. S. 5 Ind, « ^' ''•/?"°°' ^ Ala. 610. 290. And see S. v. McKee, 1 Bailey, 651, 8 See Crim. Pro, I. § 818-831. 652, 21 Am. D. 499 624 CHAP. LXm.] NO SECOND PROSECUTION. § 1043 ately assumed it to be. Another distinction is that the finding of a fact by the judge is final, but his ruling on a question of law is open to review. The result wliereof would seem to be that when he concurs in and affirms the jury's conclusion of inability to agree, and discharges them, the fact so found, the existence whereof nullifies the seeming jeopardy, is absoliite and irreversible.^ But when the question is whether or not an admitted or proven state of things created or took away a jeopardy, it is a question of law, and it may be re-examined on appeal, or writ of error, or plea of former acquittal, according to the practice of the tribunal ''' and the nature of the case. § 1042. Views on Principle : — Already, — in this sub-title, wfe have seen that the Constitution, rather than judicial expositions of it, is the authority on the ques- tions examined.^ But we have followed this authority in the judicial paths, not independently as now proposed. § 1043. Prohibition of Second Jeopardy implies what. — This guaranty of immunity from a second prosecution is, in its na- ture, a restraint on the courts, not on the party. It would be absurd to promise a man protection from his own act, but rea- sonable to make the like promise as to the act of another. Moreover, it implies that in the absence of any willingness in fact, a court shall not set before him the alternative of doing what amounts to a consent to be put in jeopardy any number of times, or lose his life or liberty from a verdict wrongly rendered because of a misdirection from, it may be, an utterly incompetent judge. To say to a prisoner, " Be hung contrary to law, or consent to be put in jeopardy a second time," is, it is submitted, utterly to dis- regard the implications in this provision of the Constitution. Further as to — 1 p. V. Green, 13 "Wend. 55 ; U. S. v. rett, 2 Gaines, 304, 2 Am. D. 239 ; Ned v. Perez, 9 Wheat. 579; P. v. Olcott, 2 S. 7 Port. 187; Wright v. S. 5 Ind. 290. Johns. Gas. 301, 1 Am. D. 168; In re And see S. w. Benham, 7 Gonn. 414 ; Reg. Newton, 13 Q.B. 716, 13 Jur. 606, 18 Law v. Reid, 1 Eng. L. & Eq. 595; Mount e. J. N. s. M. C. 201 ; Winsor v. Reg. Law S. 14 Ohio, 295 ; S. v. Norvell, 2 Yerg. Rep. 1 Q. B. 289, 7 B. & S. 490; S. v. 24, 24 Am. D. 458; Rex v. Wildey, 1 M. Brooks, 3 Humph. 70. But see Williams & S. 183 ; 2 Hale P. G. 243 ; Rex v. Bow- V. C. 2'Grat. 567, 44 Am. D. 403; S. v. man, 6 Gar. & P. 101. Gontra, U. S. v. Battle 7 Ala. 259; Wright v. S. 5 Ind. Morris, 1 Gurt. C. G. 23; O'Brian v. C. 9 290- S. V. Alman, 64 N. G. 364; S. v. Bush, 333, 15 Am. R. 715; S. .;. Leunig, Jefferson, 66 N. C. 309. 42 Ind. 541. See S. v. Waterhouse, Mart. 2 S. V. McKee, 1 Bailey, 651 ; IT. S. v. & Yerg. 278. Shoemaker, 2 McLean, 114; P. v. Bar- » Ante, § 1012(2). VOL. I. — 40 625 § 1046 CONSEQUENCES. [BOOK VIII, § 1044. Misdirection taking away Jeopardy. — The underlying principle of great numbers of our decisions is that an erroj from the bench in a trial prevents the jeopardy from attaching to the prisoner ; since, should the verdict be against him, he is entitled to have it set aside. This interpretation overlooks the fact that our constitutional guaranty is a restraint upon the courts, and that it forbids them to make a blunder which shall compel one to ask a second trial. When the Constitution declares that the State sliall not put him in jeopardy twice, it is a mockery to say that it may bring him into as many jeopardies as it will, provided it misstates the law to the jury each time. The interpretation which makes a breach of the common or statutory law a good answer to a charge of violating the Constitution, has no parallel in anything else known in our jurisprudence. § 1045. In Principle, — when by valid steps the State has brought an accused person to trial, and it is ready to be com- menced, he is in jeopardy unless some patent or latent thing not under the control of this prosecuting power or its agent exists, rendering it impossible a verdict good in law should be rendered against him. The valid preparation and instantaneous readiness to begin to receive evidence is the jeopardy, — not the verdict, which is the consummation of the proceedings ; for the final judgment is a mere formal utterance of the law's approval of what is already done. Now, if the power which brings a man into and controls the jeopardy — namely, the State and its agent the court — pro- ceeds unlawfully after the jeopardy has thus attached, it is not sound in legal reasoning to say that this unlawful conduct nulli- fies the jeopardy. If it did, then the process might be repeated forever, and the constitutional guaranty be rendered void. And we may presume it was to prevent exactly this sort of thing that the constitutional inhibition was established. § 1046. Failure of Evidence— on the part of the State, it is admitted, will not nullify the jeopardy. But if to strengthen inadequate proofs against the prisoner, the judge opens to the jury the gossip of the neighborhood, and he is convicted, — has he not been equally in jeopardy, and shall he not be equally pro- tected from the hazard of a second trial ? « Oh," say the courts, " he has now been convicted, and wrongly, and. if he will consent to the hazard of being convicted rightly, he may have the first wrong — namely, the verdict illegally procured — set aside, and 626 CHAP. LXIII.] NO SECOND PROSECUTION. § 1047 enter into a realization of the second wrong, which consists of being compelled to relinquish a constitutional right or suffer an unlawful hanging or imprisonment." Such, on the one hand, is the doctrine of the Constitution ; and such, on the other hand, is that of the courts. § 1047. 1. These Views — show that the course of the courts, ap- parently adopted unthinkingly, of trying anew defendants wrongly convicted by reason of a misdirection against which they pro- tested, instead of suffering them to go free, violates our constitu- tional guaranty. If only on, the waiving of their constitutional rights, they can have the error corrected; if they can be per- mitted to take their due only on paying the price of surrendering what the Constitution secures to them ; if after they have strug- gled against a misdirection in the cause, and been borne down, they can be permitted to come up again only on giving back what the Constitution of the country gave them ; if, having opposed a conviction improperly ordered, while entitled to an acquittal, they can have the conviction set aside only on submitting to run their chance of being convicted under a different state of facts appear- ing, when either they will be unprepared for the trial or the gov- ernment will have evidence it had not before ; if the wrong done the prisoner is to be set right only on his " consenting " to receive a fresh wrong, — surely this guaranty of the Constitution is worth but little. 2. 'Why these Views. — This unfolding of the question is made, not because the author supposes that in the present condition of legal learning, while a blind reception of mere judicial authority nearly banishes the purer reasonings of the law and true juridical wisdom, many judges will so much as take the trouble to under- stand it ; but because the question lay in his path, demanding notice. And the consolation is that though the practice we are considering violates the Constitution, it is not a wide departure from natural equity to compel a prisoner who, however innocent, knows that the judge is not more erring than he, to submit to a second jeopardy after the mistake froip which lie has suffered is corrected.^ ' 1. The Common Eeason. —In an has been afterwards reversed, can be set Ohio case, the learned judge in support up as bar to another prosecution. It is of the common practice said " It is not conceded by his counsel that tn such a claimed . . . that a conviction upon a de- case the prisoner may be put^again upon fective indictment, when the judgment his trial. In such a case he says, accord- 627 1049 CONSEQUENCES. [book Till. VIII. Rules for determining when the Two Offences are the Same. § 1048. Discordant — are the decisions under this sub-title, even more than under the last. Indeed, some of them, like a class of the others, are derived from principles which, if fully adopted, would render practically void the constitutional inhibition. § 1049. 1. " Same Offence." — It is but repeating the words of , the Constitution to say that to entitle a prisoner to the protection we are considering, the second jeopardy must be for the " same offence " as the first. If, therefore, a man has been either con- victed or acquitted of one crime, he may still be prosecuted for another.! And — ' ing to the construction of all the conrts, the prisoner never was in jeopardy. But he claims that by a trial before a lawful jury upon a good indictment, and a find- ing of a verdict by that jury, the prisoner has been put in jeopardy, and cannot therefore be again prosecuted for the same offence. It is not readily perceived how any real distinction can be drawn between the cases. In both, it is but an error in the proceedings ; in the first, the error is found in the indictment ; in the sec- ond, the error is committed by the court, it may be in admitting or rejecting testi- mony, in charging or refusing to charge the jury, or in determining some other one of the various legal questions arising in the progress of the cause. If it be that when a party is convicted on a bad indict- ment for murder, he may be tried again because his life was not in jeopard)', it may with equal truth be said, under our system of laws, and since the allowance of bills of exceptions and writs of error in criminal prosecutions, he was not in jeop- ardy in case any other substantial error is found in the proceedings." Sutcliffe v. S. 18 Ohio, 469, 478, 51 Am. D. 459. This argument, by denying that there is a jeopardy in the case contemplated, differs from most others conducting to the same conclusion. Oftener the jeopardy is ad- mitted, coupled with the contention that the defendant waives the benefit of the constitutional immunity when he aslis for a new trial. See also the reasoning in P. .■. Olwell, 28 Cal. 456. 628 2. A Better View. — There is a New York case, depending perhaps somewhat on statutes, yet approximating the views stated in the text; though, in this in- stance as in some others, the judges seemed not aware that they were putting forth opinions contrary to those main- tained in otlier States. The note to the case is : "A prisoner against whom a wrong judgment was pronounced upon a regular trial and conviction cannot be subjected to another trial." A statute provided that " if the Supreme Court shall reverse the judgment rendered, it shall either direct a new trial or that the de- fendant be absolutely discharged." There was a motion in arrest of judgment and for a new trial ; and the sentence appear- ing to Ijave been wrong, the court, as the head-note discloses, directed, not .a new trial, but a discharge of the prisoner, on the ground that the first trial was a pro- tection against further proceedings for the same offence. Said Sutherland, J. : "The ^circumstance that the counsel of the pris- oner, on moving in arrest of judgment, also asked for a new trial, I regard of no consequence. The constitutional provision is, ' No person shall be subject to be twice put in jeopardy for the same offence.' This provision may be considered as ad- dre.ssed to courts ; and if the prisoner is within its protection, he ought to be dis- charged, although his counsel did formally ask for a new trial." Shepherd v. P. 25 N. Y. 406, 418. 1 Reg. V. Bird, 2 Den. C. C. 94 ; 2 Eng. CHAP. LXIII.] NO SECOND PEOSECUTION. § 1052 2. By Verdict or Plea — (Judgment). — Within this rule, a former conviction by plea of guilty is of the same effect as by verdict. The case need not have proceeded to judgment.^ § 1050. 1. Similarity of Indictments — Parol Evidence. — To make the offences the same, the indictments need not be identi- cal in language.^ For proofs of identity, beyond the words, are not altogether excluded.* Even — 2. The Name of the Offence — in the two indictments may dif- fer, and veithin our constitutional guaranty the offences be the same.* § 1051. When, in Reason, Offences Same. — Just principle seems to sustain the following : They are not the same when (1) the two indictments are so diverse as to preclude tiie same evidence from maintaining both ; or when (2) the evidence to the fifst and that to the second relate to different transactions, whatever be the words of the respective allegations ; or when (3) each indictment sets out an offence differing in all its elements from that in the other, though both relate to one transaction, — a proposition of which the exact limits are difficult to define ; or when (4) some technical variance precludes a conviction on the first indictment, but does not appear on the second. On the other side, (5) the offences are the same whenever evidence adequate to the one indictment will equally sustain the other. Moreover, (6) if the two indictments set out like offences and relate to one transaction, yet if one contains more of criminal charge than the other, but upon it there could be a conviction for what is embraced in the other, the offences, though of differ- ing names, are, within our constitutional guaranty, the same. To descend now to what is adjudged, — § 1052. 1. Variance. — When an indictment fails at the trial L. & Eq. 439; McQuoid v. P. 3 Gilman, i P. ». Goldstein, 32 Cal. 432 ; Shepherd 76 ; C. V. Goodenongh, Thacher Crim. v. P. 25 N. Y. 406. Cas. 132 ; Hite v. S. 9 Yerg. 357 ; S. v. » Hite v. S. 9 Yerg. 357 ; Thomas v. S. Ainsworth, U Vt. 91; Hawkins ». S. 1 40 Tex. 36. Port. 475, 27 Am- !>• 641 ; C. u. Somer- ' Rake v. Pope, 7 Ala. 161 ; S. v. De viUe, 1 Va. Cas. 164 ; C. v. Mott, 21 Pick. Witt, 2 Hill, S. C. 282, 27 Am. D. 371 ; 492 ; Rex v. Phillips, 1 Jur. 427 ; S. o. C. v. Sutherland, 109 Mass. 342 ; Hughes Herrick, 3 Nev. 259 ; Methard v. S. 19 v. Jones, 2 Md. Ch. 178 ; Holt v. S. 38 Ga. Ohio St. 363 ; S. v. Conlin, 27 Vt. 318 ; 187 ; "Wilkinson v. S. 59 Ind. 416, 26 Am. Davidson v. S. 99 Ind. 366 ; S. v. Morgan, R. 84 ; Bainbridge v. S. 30 Ohio St. 264 ; 95 N. C. 641 ; Rex v. Burridge, 3 P. Wms. Crim. Pro. I. § 816. 439 ; Swancoat v. S. 4 Tex. Ap. 105 ; Buh- * Hirshfield v. S. 11 Tex. Ap. 207. ler V. S. 64 Ga. 504; post, § 1070. \ 629 §1053 CONSEQUENCES. [book Tin. by reason .of a variance,^ a subsequent one wherein it is avoided is not barred. Tims, if a name in forgery is alleged as Hugh Brison, and in the writing offered in proof it is Hugh Prison;^ or the burning of Josiah Thompson's barn is charged, and the owner disclosed is Josias Thompson ;^ or of the barn of A & B, while it belonged to A & C;* or an attempt to kill Louisa Loveland, when the attempt was upon William P. Loveland ; ® or larceny of the property of a person named, yet the name is unknown,^ — in these and other like cases,'' the defendant, acquitted because of the variance, may be prosecuted on a new indictment in which the fact is truly stated. For this class of cases and numerous others, — 2. The Test — is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction ; when there could, the second cannot be maintained ; when there could not, it can be.^ And — § 1053. 1. Generality of Test. — The case of variance is merely - illustrative. In other cases also, this test is equally applicable and nearly universal.^ Thus, — 2. Wrong County. — If the acquittal is by reason of the indict- 1 Crim. Pro. I. § 484 a-488 e, 569 et seq. 2 Pennsylvania v. Huffmau, Addison, 140. s C. V. Mortimer, 2 Va. Cas. 325. * C. V. Wade, 17 Pick. 395, 400. See Williams v. C. 78 Ky. 93. s P. V. Warren, 1 Par. Cr. 338 ; Vaughan v. C. 2 Va. Cas. 273. 8 S. K. Revels, Busbee, 200. ' S. V. Risher, 1 Rich. 219 ; S. v. Kreps, 8 Ala. 951 ; Rex v. Coogan, 1 Leach, 448 ; S. V. McCoy, 14 N. H. 364 ; S. v. Staudifer, 5 Port. 523 ; Rex v. Emden, 9 East, 437 ; Bex V. Clark, 1 Brod. & B. 473 ; Martha V. S. 26 Ala. 72 ; S. v. Dunham, 9 Ala. 76 ; P. V. McNealy, 17 Cal. 332 ; S. v. Stebbins, 29 Conn. 463, 79 Am. D. 223 ; Conway v. S. 4 lud. 94; Canter v. P. 38 Hovr. Pr. 91 ; C. V. Chesley, 107 Mass. 223 ; Oneil v. s! 48 Ga. 66 ; Nance v. S. 17 Tex. Ap. 385 ; S. V. Sherrill, 82 N. C. 694 ; Burress v. C. 27 Grat. 934; Ex parte Rogers, 10 Tex. Ap. 655, 38 Am. R. 654. See C. v. Brisht, 78Ky. 238. 8 Hite V. S. 9 Yerg. 357 ; P. ». Warren, 1 Par. Cr. 338; P. v. Allen, 1 Par. Cr. 445; Durham v. P. 4 Scam. 172, 39 Am. 680 D. 407 ; C. V. Curtis, Thacter Crim. Cas. 202 ; S. V. McMinn, 34 Ark. 160. » V. S. V. Nickerson, 17 How. U. S. 204, 208; Price w. S. 19 Ohio, 423; Burns V. P. 1 Par. Cr. 182 ; Rex v. Vandercomb, 2 Leach, 708; s. c. nom. Bex v. Vander- com, 2 East P. C. 519 ; Rex v. Taylor, 5 D. & E. 422, 3 B. & C. 502 ; S. u. Jesse, 3 Dev. & Bat. 98; Beg. v. Henderson, 2 Moody, 192; Bex v. Parry, 7 Car. & P.- 836; S. V. McClintock, 1 Greene, Iowa, 392 ; C. V. McChord, 2 Dana, 242 ; Bex v. Dann, 1 Moody, 424 ; Boutelle v. Nourse, 4 Mass. 431 ; Frost v. Bowse, 2 Greenl. 130; Hughes v. S. 12 Ala. 458; Bex v. Plant, 7 Car. & P. 575 ; Heikes v. C. 26 Pa. 513 ; S. v. Birmingham, Busbee, 120; Freeland v. P. 16 111. 380; S. v. Keogh, 13 La. An. 243 ; C. v. Bakeman, 105 Mass. 53 ; Morey c. C. 108 Mass. 433 ; C. v. Ear- rell, 105 Mass. 189; Simco v. S. 9 Tex. Ap. 338; Potter v. 8. 9 Tex. Ap. 55; Wright V. S. 17 Tex. Ap. 152; Parch- man v. S. 2 Tex. Ap. 228, 28 Am. E. 435; C. 0. Trimmer, 84 Pa. 65 ; S. v. McMinn, 34 Ark. 160. CHAP. LXIII.] NO SECOND PROSECUTION. §1054 ment being brought in the -wrong county, it will not bar fresh proceedings in the right one.^ So, — 3. other Person injured. — An acquittal for the larceny of the goods of one person will not bar an indictment for the same lar- ceny charging them to be another's.^ Again, — 4. Larceny and False Pretences. — One acquitted of petit larceny, then indicted for obtaining the same goods by false pretences, may on the former evidence, if in law incompetent for conviction on the former charge, be found guilty of the latter.^ Also, — 5. Larceny and Conspiracy — Or Receiving. — After an acquit- tal for larceny, the defendant may be convicted of obtaining the same chattels through a conspiracy with third persons,* or of receiving them as stolen goods. ^ And — 6. Homicide by Differing Means. — An acquittal for a homicide, charged to have been accomplished by specified means, will not bar a subsequent indictment for the same by means which the form of the first indictment excluded from proof.® In like manner, — 7. " Overcoats " and " Cloth." — It is no defence to an indictment for embezzling overcoats that the accused person has been ac- quitted of embezzling the cloth of which they were made, though the evidence at both trials is the same ; because overcoats and cloth to make them are different things, and proof of the one will not sustain an allegation of the other.'^ 8. Limit of Test. — Probably the test in contemplation is always applicable when its effect is to bar proceedings,^ while still they may be barred by other principles when this one fails.^ § 1054. 1. Crime within Crime. — Where crimes are so included within one another that a higher comprehends whatever a lower one does and more, as previously explained,!" ^ conviction for any higher one bars a prosecution for any lower ; since, if the defend- ant is guilty of all, he is necessarily so of each particular part. 1 C. V. Call, 21 Pick. 509, 32 Am. D. 6 Quedel v. P. 43 111. 226. And see 284; Methard o. S. 19 Ohio St. 363; Moore „. S. 59 Missis. 25 ; S. <-. Elder, 65 Campbell v. P. 109 111. 565, 50 Am. R. Ind. 282, 32 Am. R. 69. 621. ' C. I'. Clair, 7 Allen, 525. 2 Morgan v. S. 34 Tex. 677 ; ante, ' But see, and query, Reg. v. Gisson, 2 I 1052 (1) Car. & K. 781 ; Reg. v. Henderson Car. & 8 Dominick v. S. 40 Ala. 680, 91 Am. M. 328. See Reg. v. Bird, 2 Eng.^L. & D_ 495_ Eq. 448, 2 Den. C. C. 94, 5 Cox C. C. 20. ' 1 S.' V. Sias, 17 N. H. 558. ^ See post, § 1057 et seq. e Foster v. S. 39 Ala 229, 233. And « Ante, § 780. see C. i/. Tenney, 97 Mass. 50. 631 § 1055 CONSEQUENOJIS. [BOOK Vm. It is believed tliat there is no exception to this rule. In general, the same consequence follows an acquittal ; because generally there can be a conviction for the lower on an indictment for the higher.! But the effect of an acquittal is not, like that of a con- viction, universallj' so. Thus, — 2. In Liquor- selling, — if one is convicted of being a "common seller " contrary to a statute, — an offence consisting of specific sales with other facts,^ — he cannot afterward be tried for making at the same time a single sale, contrary to another statute; for the latter offence is a part of the former.^ But where the jury, instead of convicting the defendant, acquit him, he may be indicted for a single act of selling during the same period ; _ because, in the words of Dewey, J.,~ " such acquittal is entirely consistent with the fact having been shown of one or two single sales by the defendant, but a failure to show a third sale, or evidence sufficient to convict of the offence of being a common seller."* Again, — § 1055. 1. Felony and Misdemeanor — Form of Allegation. — If, owing to the form of the allegation,^ or to the lower offence being a misdemeanor while the higher is a felony,^ there can be no conviction of the less 'on the prosecution for the greater, an acquittal of the greater will not bar an indictment for the less.'' Yet a conviction would bar ; because, independently of forms of averment and of the distinctions of felony and misdemeanor, the whole of a thing includes all its several parts.* This distinction does not apply to well-constructed indictments for offences of one grade ; as, — 2. Robbery and Larceny — being both felonies, and the latter included in the former, an acquittal for robbery will bar an indict- 1 Ante, § 794 ; S. v. Standifer, 5 Port. Brannon, 55 Mo. 63, 17 Am. R. 643 ; Eeg. 523; Rex v. Heaps, 2 Salk. 593 ; Eeg. «.- u. Elrington, 9 Cox C. C. 86, 90. Gould, 9 Car. & P. 364.; Reg. v. Bird, 2 2 gtat. Crimes, § 1018, 1035. Eng. L. & Eq. 448, 2 Den. C. C. 94, 5 « S. v. Nutt. 28 Vt. 598, 602, 603. Con- Cox C. C. 20; Dinkey v. C. 17 Pa. 126, tra, post, § 1065. 55 Am. D. 542; Murphy v. C. 23 Grat. * C. v. Hudson, 14 Gray, 11, 12. 960 ; Thomas v. S. 40 Tex. 36 ; Hamilton » Ante, § 794-796, 803. See Severin V. S. 36 Ind. 280, 10 Am. R. 22; Reg. w. v. P. 37 111. 414; Wilson v. S. 24 Cona Smith, 34 U. C. Q. B. 552 ; Canada ;;. C. 57 ; Dedien v. P. 22 N. Y. 178. 22 Grat. 899 ; S. v. Smith, 43 Vt. 324, 326 ; " Ante, § 804 et seq. ; P. v. Saunders, Reg. V. Webster, 9 L. Canada, 196 ; S. w. 4 Par. Cr. 196 Pitts, 57 Mo. 85 ; Fritz v. S. 40 Ind. 18 ; ^ Muntord v. S. 39 Missis. 558. Wemyss o. Hopkins, Law Rep. 10 Q. B. 8 Ante, § 1054 (1). 378; Munford e. S. 39 Missis. 558; S. v. 632 CHAP. LXITI.] NO SECOND PROSECUTION. § 1057 - ment tor the larceny of the same things.^ And equally an acquit- tal for the larceny will bar the robbery indictment.^ §1056. 1. Conviction of Part. — If the indictment covers one of the larger crimes, and there is a conviction of a smaller in- cluded in it, there can be no new prosecution for the larger.^ Thus, — 2. Murder and Manslaughter. — One indicted for murder, and found guilty of manslaughter, can be no more prosecuted for the murder.* § 1057. Indictment covering Part only. — We now come to ques- tions inherently difficult, and made more so by contradictory and confused decisions from many of the courts. In reason, in these cases of offences included within one another, wherein if, as we have seen, a man has been put in jeopardy for the one which in- cludes all the rest he has been so also for each one of the others, it cannot be competent for the government to indict him first for the lowest, then for the one next above it, then for the next, and so on through all the gradations to the highest. When he has been put in jeopardy for the lowest, then, for example, is prose- cuted for the highest, our constitutional guaranty stands in the way of his being convicted a second time for the lowest. For a jeopardy of the highest is equally a jeopardy of the lowest. And since the government confessedly cannot begin with the highest, and then go down step by step bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest with precisely the same result. Some apparent authority, therefore, English ^ and American,^ that a jeopardy for the less will not bar an indictment for the greater, must be deemed unsound in principle. And even in authority, the doctrine which holds it to be a bar is sufficiently established in general;'' though possibly it admits some real or apparent exceptions, as by and by we .shall see. Thus, — 1 p. V. McGowan, 17 Wend. 386. And 327. See Reg. v. Tancock, 13 Cox C. C. Bee S. V. Pitts, 57 Mo. 85. " 217. . 2 S. V. Mikesell, 70 Iowa, 176. « Scott r. U. S. Morris, 142; Freeland 8 Ante § 1006 ; P. v. Apgar, 35 Cal. v. P. 16 111. 380; S. v. Hattabough, 66 Ind. 389; S. «.' Pitts, 57 Mo. 85. 223; Allen e. S. 7 Tex. Ap. 298; post, i Brennan v. P. 15 111. 511, 517 ; Hurt § 1058, note. V. S. 25 Missis. 378, 59 Am. D. 225. ' Reg. u. Walker, 2 Moody & R. 446 ; 6 2 Hawk. P. C. Curw. ed. p. 518, § 5 ; S. v. Shepard, 7 Conn. 54 ; C. v. Squire, 1 Reg. V. Button, 11 Q. B. 929, 947, 948, 12 Met. 258; C. v. Kinney; 2 Va. Cas. 139 ; Jnr 1017 • 1 Stark, dim. Plead. 2d ed. Lohman v. P. 1 Comst. 379, 49 Am. B. 633 § 1059 CONSEQUENCES. [BOOK Till. § 1058. 1. In Aggravated Arson and Murder. —If a man burns a dwelling-house in violation of one Idw, and thereby takes the life of a human being therein in violation of another, he cannot after being convicted of the less offence of arson be held to an- swer for the higher one of miirder.^ So, — 2. Murder and Manslaughter. — If, on an indictment for man- slaughter, the judge mistaiiing his duty discharges the jury because the proof shows the crime to have been murder, the' defendant cannot be afterward brought into jeopardy for the murder.2 And — 3. Assaults with their Aggravations. — A man convicted of an assault cannot afterward be prosecuted for the battery in which it terminated ; because, said Totten, J., " the one is a necessary part of the other ; and if he be now punished for the battery, he will thereby be twice punished for thv assault." ^ And by the general and better doctrine, a conviction or acquittal of a common assault will bar proceedings for an assault with intent to do great bodily harm, and other assaults aggravated in like manner.* 4. No Jurisdiction of Higher Offence. — It has been supposed that if the tribunal trying the less offence has no jurisdiction over the higher, the case will be different ; ^ yet there does not seem to be any just foundation for this distinction.^ Tiie fact that one has been in jeopardy for a lower offence is true equally whether the court had authority to try the higher or not. § 1059. Assault and Subsequent Death — (Homicide). — If within a year and a day after a battery the injured person dies, the offence becomes a felonious iiomicide.^ Then, though there should have been an intermediate conviction for assault and bat- 340, 2 Barb. 216 ; S. v. Townsend, 2 Har- that when one offence js a necessary Be- ring. Del. 543 ; Thayer v. Boyle, 30 Me. ment in and constitutes an essential part 475; Hickey v. S. 23 Ind. 21 ; S. v. Wiles, of another offence, and both are in fact 26 Minn. 381 ; Mocre v. S. 71 Ala. 307. but one transaction, a conviction or ac- 1 S. u. Cooper, 1 Green, N. J. 361, 25 quittal of one is a bar to the prosecution Am. D. 490. for the other." Contra, when the offence 2 P. i;. Hunclieller, 48 Cal. 331. And first proceeded against is the less, S. i'. see Hurt v. S. 25 Missis. 378, 59 Am. D. Foster, 33 Iowa, 525. And see Prine v. 225. S. 41 Tex. 300; Scott v. U. S. Morris, s S. V. Chaffin, 2 Swan, Tenn. 493. 142 ; Burns ». P. 1 Par. Or. 182. * Reg V. Elrington, 9 Cox C. C. 86, 1 '^ C. v. Curtis, 11 Pick, 134; White v. B. & S. 688 ; S. V. Smith, 43 Vt. 324, 326. S. 9 Tex. Ap. 390; Boswell v. S. 20 Fla. " There is," said Pierpoint, C. J. in the 869 ; Achterberg v. S. 8 Tex. Ap. 463. case last cited, " considerable conflict in o Reg. v. Walker, 2 Moody & R. 446. the authorities u{)on this subject, but we ' Vol. II. § 640. think the rule is now well established 634 CHAP. LXIII.] NO SECOND PROSECUTION. § 1060 teiy, there may be a prosecution for the homicide ; not, it ap- pears, because the battery is the less offence, but because the blow which had not produced death is, when viewed in the light of its results, a thing different from the blow which had pro- duced death. 1 § 1060. One Transaction, Act, Crime. — We find in the books more or less matter from which it might be assumed that it is com- petent for legislation to make out of one transaction any number of crimes, rendering each independent of the other, and a jeopardy for one no bar to the same for another.^ Perhaps, in our compli- cated system of government, one act may be an offence against both the United States and a pai-ticular State, and both may punish it.8 But in principle, and by what is believed to be the better judicial view, while the legislature may pronounce as many combinations of things as it pleases criminal, resulting not unfre- quently in a plurality of crimes in one transaction or even in one act, for any one of which there may be a conviction without regard to the others,* " it is," in the language of Cockburn, C. J., " a fundamental rule of law that out of the same facts a series of charges shall not be preferred." ^ To give our constitutional pro- vision the force evidently meant, and to render it effectual, " the 1 C. V. Roby, 12 Pick. 496 ; C. v. Evans, in fact or law till the death of the party 101 Mass. 25; Burns v. P. 1 Par. Cr. 182; assaulted. Therefore it cannot be said Reg. V. Salvi, 10 Cox C. C. 481, note ; S. that one is tried for the same crime when V. Littlefield, 70 Me. 452, 35 Am. K. 335 ; he is tried for assault during the life, and Johnson ». S. 19 Tex. Ap. 453, 53 Am. R. tried for murder after the death, of the 385. See Wright v. S. 5 Ind. 527. In an injured party. That new element of the English case of this sort, after the con- injured person's death is not merely a victed assailant had served out his im- supervening aggravation, but it creates prisonment, the injured person died, a new crime." Stewart's Case, 5 Irvine, Thereupon followed an indictment for 310, 314. manslaughter. By 24 & 25 Vict. c. 100, 2 g. o. Inness, 53 Me. 536; S. v. Tay- § 45, when on complaint of the aggrieved Ipr, 2 Bailey, 49 ; C. v. Triekey, 13 Allen, party, which was the present case, one 559 ; , S. v. Rankin, 4 Coldw. 145 ; C. v. has suffered an awarded imprisonment. Shea, 14 Gray, 386 ; Teat v. S. 53 Missis. " he shall be released from all further or 439, 24 Am. R. 708 ; Greenwood v. S. 64 other proceedings, civil or criminal, for Ind. 250. See aute, § 779, 782, 793 ; post, the same cause." And the majority of § 1067. the judges, Kelly, C. B. dissenting, held ' S. v. Rankin, supra. See more ex- that what had taken place was not a bar actly as to this, ante, § 989. to the indictment for manslaughter. Reg. * See, for illustration, Fant v. P. 45 111. V. Morris, Law Rep. 1 C. C. 90, 10 Cox 259; S.u.Crummey, 17 Minn. 72; Crocker C. C. 480. In a Scotch case, decided in v. S. 47 Ga. 568; post, § 1068. accordance with the doctrine of the text, * Reg. v. Elrington, 9 Cox C. C. 86, 90, Lord Ardmillan said : " There never can 1 B. & S. 688. Of the like sort, S. v. Cross, be the crime of murder till the party as- 101 N. C. 770, 9 Am. St. 53. saulted dies ; the crime has no existence 635 § lOGl CONSEQUENCES. [BOOK VIII. same offence " must be interpreted as equivalent to the same criminal act. And judicial utterances have even gone apparently to the extent that there can be only one punishment for one crim- inal transaction.^ But this is carrying the rule, at least accord- ing to the greater number of the authorities, too far the other way .2 To illustrate, — § 1061. 1. One Blow wounding Two — Killing Two. — Where the same one blow wounds or kills two meh, it is competent for the pleader to charge it as inflicted on the two ; ^ in other words, the prosecuting power may, if it pleases, treat it as one offence. But the indictment will be equally good if it alleges the beating or killing of one of them.* Should the prosecutor choose the latter form, there is authority for saying that a jeopardy for the act viewed as a battery or homicide of one of the men will bar an indictment for it as an offence to the other ; ^ and there is other authority that it will not.^ Obviously there is a difference be- tween one volition and one transaction. And on a view of our combined authorities, there is little room for denial that in one transaction a man may commit distinct offences of assault or homicide upon different persons, and be separately punished for each.'' But if one by^a single volition should discharge into a congregation of people a fire-arm loaded with peas for shot, and each of fifty different persons should be hit by a pea, it would be startling to affirm that he could be punished for assault and battery fifty times, and once for disturbing the meeting. Cer- tainly it would violate the spirit, if not the letter, of our " twice-in-jeopardy " guaranty ; and every provision for the ease 1 Holt V. S. 38 Ga. 187; post, § 1064. Ross, 4 Lea, 442. Within this priociple 2 C. V. Bakemau, 105 Mass. 53. may prgbably be brought a case stated in » Crim. Pro. II. § 60 ; Chivarrio v. S. P. i>. Majors, supra. " We refer," says 15 Tex. Ap. 330 ; Forrest k. S. 13 Lea, 103. the court, " to the case of P. v. Alibez, 49 * Forrest v. S. supra, at p. 104, 105. Cal. 452, where it was held that an ' indictr 5 S. V. Damon, 2 Tyler, 387 ; Clem v. ment which charges the defendant with S. 42 Ind. 420, 13 Am. R. 369. And see the murder of three persons, charges three Crocker v. S. 47 Ga. 568 ; Ben v. S. 22 offences.' The charge was that the de- Ala. 9, 58 Am. D. 234. fendant admini.itered a poisonous drug, " P. u. Majors, 65 Cal. 138, 52 Am. R. to wit, strychnine, to three persons at one 295> and the same time," and it was decided ' Forrest v. S. snpra ; ?. w. Vines, 34 that there were three offences, not one. La. An. 1079 ; Teat v. S. 53 Missis. 439, p. 302, of Am. R. Here it is difficult to 24 Am. R. 708 ; Jones v. S. 66 Missis, see how there could have been simply one 380, 14 Am. St. 570; Williams v. S. 77 volition, like the pulling of the trigger of Ala. 53 ; Olathe v. Thomas, 26 Kan. 233 ; a gun, and killing three persons by the Greenwood v. S. 64 Ind. 250. See S. v. same charge. 636 CHAP. LXIII.] NO SECOND PROSECUTION. § 1061 of persons accused of crime is, it is settled beyond dispute, to be interpMed liberally, as extending to cases within its spirit, whethei* within the letter or not.^ Again, — 2. Non-repair of Streets. — Where a municipal corporation was under the duty to keep the streets of a town in repair, and several indictments were found on the same day for breaches of this duty in respect of as many streets, a conviction on one of them was held, it is believed correctly, to bar proceedings on the others.^ As to tliis sort of question — 3. In Larceny, — the cases present contradictions quite irre- concilable. It would be reasonable to hold that one act or even one transaction of feloniously taking and carrying away chattels constitutes, within our constitutional guaranty, but one offence. Of course, if the pleader did not specify all the articles stolen, the indictment would be sustained the same as if he did, just as it would not fail should a part of those alleged not be proven.^ And since the averment of ownership is merely to identify the things,* if they have different owners all could as well be included in one count as though their identifying particulars differed in any other respects.^ Turning now to the decisions, an English judge once ruled that where a man stole at one time two pigs be- longing to the same person, he might first be convicted of the larceny of the one pig, and afterward of the larceny of the other;* and if the pigs had different owners, there would be American authority the same way.'^ But yhere the articles have all one owner, our authorities are pretty distinct that the transaction cannot be cut up in this English fashion.^ Even where there are diverse owners, the same conclusion, it is believed, is the one bet- ter supported by our authorities,^ as certainly it is the better in legal reason. And — 1 Stat. Crimes, § 227, 239, 240. ' Reg. v. Brettel, Car. & M. 609. And 2 S. V. Fayetteville, 2 Murph. 371. And see S. v. Clark, 32 Ark. 231. compare with ante, § 793 ; C. v. Robinson, ' S. v. Thurston, 2 McMul. 382 ; Phil- 126 Mass. 259, 30 Am. R. 674. And see lips w. S. 85 Tenn. 551. further as to the doctrine of this para- * Fisher ». C. 1 Bush, 211, 89 Am. I). graph and the last, S. v. Fife, 1 Bailey, 1 ; 620 ; S. v. Ward, 19 NaT. 297 ; S. v. Mc- Rex V. Champneys, 2 Moody & R. 26, 2 Cormack, 8 Or. 236 ; S. v. Augustine, 29 Lewin, 52 ; Smith u. C. 7 Grat. 593 ; S. v. La. An. 119 ; Jackson v. S. 14 Ind. 327, Standifer, 5 Port. 523. 328. See Vol. II. § 888. * Crim. Pro. 11. § 767, 768. ' Lowe v. S. supra; Hoiles v. TJ. S. 3 4 lb. I. § 566, 571, 575, 581 ; IL § 718. MacAr. 370, 36 Am. R. 106 ; Hudson v. 6 Lowe V. S. 57 Ga. 171 ; Hozier v. S. S. 9 Tex. Ap. 151, 35 Am. R. 732 ; Terri- 6 Tex Ap. 542; Kelly v. S. 7 Bax. 323. tory v. Heywood, 2 Wash. 180 ; Goode v. 637 §1062 CONSEQUENCES. [book VIII. 4. Further as to which. — Equally in authority and in reason, there is a limit to the right of multiplying indictments,^ though the cases are not in distinct accord as to exactly what it is. For example, while a complete larceny is committed in every county through which the thief carries his stolen good§, clearly he can be convicted in no more than one county. ^ Likewise a conviction for petit larceny will bar an indictment for grand larceny .^ § 1062. Burglary and Larceny. — If in the night a man breaks and enters a dwelling-house to steal therein, and steals, he may be punished for two offences or one, at the election of the prose- cuting power. An allegation simply of breaking, entering, and stealing states the burglary in a form which makes it single, and a conviction therefor will bar an indictment for the larceny or the burglary alone.* But equally well a first count may set out a breaking and entering with intent to steal, and a second may allege the larceny as a separate thing, and thereon the defendant S. 70 Ga. 752 ; Nichols v. C. 78 Ky. 180 ; S. V. Moore, 66 JIo. 372. See further on this question, S. v. Williams, 10 Humph. 101 ; Lorton v. S. 7 Misso. 55, 37 Am. D. 179; Reg. v. Bleasdale, 2 Car. & K. 765; S. y. Nelson, 29 Me. 329 ; Rex v. Birdseye, 4 Car. & P. 386. 1 Plumbly V. C. 2 Met. 413 ; S. o. John- son, 12 Ala. 840, 46 Am. D. 283 ; Hinkle «. C. 4 Dana, 518. See post, § 1064. 2 Tippins v. S. 14 Ga. 422 ; 2 Hawk. P. C. Cuiw. ed. p. 517, § 4. And See Strickland v. Thorpe, Yelv. 126. See further, as illustrating the matter of the several paragraphs of this section, S. v. Parish, 8 Rich. 322; Freeland v. P. 16 111. 380; Fiddler v. S. 7 Humph. 508; Rex V. Carlile, 3 B. & Aid. 161 ; s. c. nom. Rex v. Carlisle, 1 Chit. 451 ; Copen- haven k. S. 15 Ga. 264 ; Rex v. Britton, 1 Moody & R. 297 ; Bank Prosecutions, Russ. & Ry. 378 ; S. v. Cameron, 3 Heisk. 78. Act constituting One Offence and Part of Another. — Some courts main- tain that, in the words of Gray, J. : " 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 under either statute does not exempt the defendant from jjrosecutlon and punish- ment under the other." Morey v. C. 108 Mass. 433, 434. And see C. .. Bakeman, 638 105 Mass. 53 ; C. v. Shea, 14 Gray, 386 ; C. u. McConnell, 1 1 Gray, 204. But this question has been, in effect, already con- sidered in the text. Ante, § 1054 et seq. By all the authorities, this would not be so if the conviction was for the larger crime. Ante, § 1054. And on the better reason and better authorities it would not ' be so if the conviction was for the smaller. Ante, § 1057. But the State could choose under which statute the one prosecution should be. ' S. V. Murray, 55 Iowa, 530 ; South- worth V. S. 42 Ark. 270; S. v. Gleason, 56 Iowa, 203. See Gregg v. S. 55 Ala. 116. * S. V. Squires, 11 N. H. 37; S. ». Moore, 12 N. H. 42 ; S. v. Brady, 14 Vt. 353 ; Rex v. Comer, 1 Leach, 36 ; Rex v. Vandercomb, 2 Leach, 708; s. c. nom. Rex V. Vandercom, 2 East P. C. 519 ; C. V. Brown, 3 Rawle, 207; Jones w. S. 11 N. H. 269; Stoops v. C. 7 S. & R. 491, 10 Am. D. 482 ; C. v. Tuck, 20 Pick. 356 ; C. V. Hope, 22 Pick. 1 ; P. w. Smith, 57 Barb. 46 ; Gordon v. S. 71 Ala. 315. Of course, if the name of the owner of the goods was wrongly stated in the first indictment, and there was an acqnittal for the variance, — ante, § 1052, 10.53 (3),— the second would not be barred. C. v. Hoffman, 121 Mass. 369. CHAP. LXIII.] NO SECOND PROSECUTION. § 1064 may be convicted and sentenced for both.^ Therefore a jeopardy on an indictment charging the burglary as committed by break- ing and entering with intent to steal is no bar to a prosecution for the actual tlieft.^ So, almost unanimously, are the authorities; and they do not differ in principle from what we have seen to be the majority doctrine in some other offences. Still, to make a burglary thus double, and punish it twice, first as burglary and secondly as larceny, hardly accords with the humane policy of our law, and we have cases which refuse this double punishment. They proceed on the highly reasonable ground that "where a crim- inal act has been committed, every part of which may be alleged in a single count in an indictment and proved under it, the act cannot be split into several distinct crimes and a several indict- ment sustained upon each." * In reason, where the law permits a defined combination of things to be punished as one crime, how can a prosecutor select from this whole a part, and punish it pr-e- cisely as it would the whole, then take up the rejected part and punish it, and deny that the latter is " the same offence " with the former ? Harmoniously with this better view, — . § 1063. Robbery, Larceny, and Burglary. — The North Carolina and Georgia courts refused the plurality of punishments under the following facts. One in the night broke and entered a dwell-^ ing-house with intent to steal therein, and there from the person of an inmate committed the purposed larceny by such violence as amounts to robbery. Consequently the transaction comprehended what would constitute the several three offences of burglary, rob- bery, and larceny. In North Carolina, the first indictment was for the burglary, accomplished by the actual commission of the larceny ; and the conviction on it was for the larceny only. The second indictment was for the robbery, and it was held to be barred by the first.* Here the first indictment covered a part — namely, the larceny — of the second; so the case falls within a principle stated a few sections back.^ § 1064. On Like Pacta — in Georgia, the first indictment seems 1 Josslyn V. C. 6 Met. 236 ; Dodd v. S. from the dissenting opinion in Wilson v. S. 33 Ark. 517. But see post, § 1064. supra, at p. 70; S. o. De Graffenreid, 9 2 S. V. Warner, 14 Ind. 572 ; Wilson v. Bax. 287. S. 24 Conn. 57 ; S. v. Martin, 76 Mo, 337 ; * S. «. Lewis, 2 Hawks, 98, 11 Am. D. S. V. Kelsoe, 76 Mo. 505 ; Howard v. S. 8 741. Tex. Ap. 447. « Ante, § 1057. s Triplett v. C. 84 Ky. 193, 195, quoting 639 § 1065 CONSEQUENCES. [BOOK Till. the report being indistinct — to have been for the burglary, as including only the intent to steal ; the second, for the robbery, which includes the actual stealing. On the trial of the first, evi- dence of the robbery was introduced to establish the burglary, a conviction was obtained, and it was held to bar proceedings under the second. Atid the court laid down the broad doctrine that a jeopardy on one indictment will bar a second " whenever the proof shows the second case to be the same transaction with the first." 1 We have already seen that this wide proposition is in effect contrary to many authorities elsewhere.^ It is difficult to draw the just line in principle; but if we should accept this proposition we should still be required to append to it seeming if not real exceptions. Yet certainly it lies nearer the abstract truth of the law than most of the judicial utterances of the con- trary sort. § 1065. 1. Same Evidence to Two Offences. — The foregoing doctrines should' not be confounded with questions of evidence. Often the proof of one crime is properly received to estfib- lish another ; but it does not bar the offence not under trial. Thus, — 2. Liquor Laws. — Our complicated and varying statutes in regulation of the sale of intoxicating drinks furnish illustrations of this, but we shall not here consider them minutely. It is in Maine held,^ contrary to what was laid down some sections back,* that specific sales may be prosecuted under a statute forbidding them, after the party has been convicted under another statute for having been then a common seller ; ^ though it is familiar that they were competent evidence to the charge in the firgt indictment.^ Likewise it has been adjudged not to be a violation of our constitu- tional guaranty " to punish a person for keeping a drinking-house and tippling-shop, and also for being a common seller of intoxicat- ' ing liquors, although the same individual act contribute to make up each offencei" ' So in Massachusetts the statutory nuisance > Roberts v. S. U Ga. 8, 58 Am. D. ^ g, „. Maher, 35 Me. 225 ; S. o. 528. See also Copenhaven n. S. 15 Ga. Coombs, 32 Me. 529. And see C. v. 264; Wilcox o. S. 6 Lea, 571, 40 Am'. Keefe, 7 Gray, 332; C. v. Hudson, 14 R. 53 ; %.v. Colgate, 31 Kan. 511, 47 Am. Gray, 1 1 . R. 507; S.t). Christian, 30 La. An. 367. « C. u. Tubbs, 1 Cush. 2. 2 Ante, § 1061, 1062. And see ante, ' S. v. Inness, 53 Me. 536, 537, opinion § 1060. by Walton, J. But see S. w. Layton, 25 ' See ante, § 782. Iowa, 193. * Ante, § 1054 (2). . 640 CHAP. LXIII.] NO SECOND PROSECUTION. § 1067 of keeping a tenement for the sale of intoxicating liquor is held to be a distinct offence from, the statutory one of being a common seller of intoxicating liquor ; therefore a conviction of the former is no bar to an indictment for the latter.^ Neither is an acquittal a bar to a prosecution for keeping the liquor with intent to sell it.^ Under statutes of this class various other like questions have arisen; 8 but we shall not inquire further after them here, or after the intrinsic propriety of the decisions. § 1066. 1. Forgery and Uttering. — An acquittal for forging a certificate of deposit on one bank is no bar to a prosecution for obtaining money from another by a forged letter enclosing it.* Nor is an acquittal for forging an instrument any obstruction to an indictment for uttering the same.^ So, — 2. Larceny and Conspiracy. — As we have seen,® an acquittal for larceny will not bar an indictment for a conspiracy unlaw- fully to obtain the same goods.^ And — 3. other Cases — governed by the same principle are nu- merous 8 §. 1067. - 1. Penal Actions and Indictments. — On a question alluded to elsewhere,* it seems that since a civil suit for damages and a criminal prosecution may be carried on together or succes- sively for the same wrong,^" so also may the indictment and an ac- tion for a penalty, which latter is likewise civil. i^ Thus it was held that if a statute creates an offence and imposes a penalty recover- able civilly, and also declares it to be punishable by fine and im- prisonment, there may be both an indictment and a penal action for one violation, neither of which will bar the other.^^ So, — 1 C. V. Hardiman, 9 Allen, 487 ; C. v. Par. Cr. 445 ; V. S. v. Miner, H Blatch. Bnbser, 14 Gray, 83 ; 0. ». Cutler, 9 Allen, 511. 48iS. And see C. v. Lahy, 8 Gray, 459 ; ^ Harrison v. S. 86 Ala. 248. S. V. Graham, 73 Iowa, 553. « Ante, § 1053 (5). . 2 C. u. McGauley, 105 Mass. 69 ; C. v. ' S. v. Sias, 17 N. H. 558, Parker, C. J. Sheehan, 105 Mass. 192 ; C. v. Hogan, 97 observing : " The defendant could not have Mass. 122. ' been convicted of a conspiracy on the for- ' See.S.f. Andrews, 27 Mo. 267; San- mer indictment. He cannot be convicted ders V. S. 2 Iowa, 230; S. t>. Glasgow, of larceny on this." p. 559. Dudley, S. C. 40 ; S. v. Rollins, 12 Rich. * C. v. Chilson, 2 Gush. 15 ; S.v. Jesse, 297 ; S. V. Conlin, 27 Vt. 318 ; C. v. Welch, 3 Dev. & Bat. 98 ; S. v. Davis, 19 Ala. 13-. 97 Mass. 593 ; C. v. Farrell, 105 Mass. 189 ; See P. v. Burden, 9 Barb. 467. C. V. Connors,. 116 Mass. 35; S. v. Harris, » Stat. Crimes, § 171 and note. 64 Iowa, 287 ; -S. «. Sterrenberg, 69 Iowa, i" Ante, § 264 et seq. 544 ; S. V. Moriarty, 50 Conn. 415. " Ante, § 32 and note. * P. 0. Ward, 15 Wend. 231. And see ^^ P. i- Stevens, 13 Wend. 341 ; Blatch- C. V. Quann, 2 Va. Gas.. 89 ; P. v. Allen, 1 ley v. Moser, 15 Wend. 215. VOL. I.— 41 641 § 1070 CONSEQUENCES. [BOOK VIII. 2. Contempt and Indictment. — It appears that an act which is a contempt of court and also a crime ^ may be pursued both by the summary process and by indictment, and neither will bar the other.^ 3. other Cases — there are depending on this principle, but the limits of the doctrine are not distinct.* § 1068. statutes and By-laws, — as severally forbidding the same act, and their effect upon a double jeopardy, are mentioned in a preceding section.* § 1069. 1. Civil Proceedings — do not bar criminal ones.* Therefore — 2. Damages for Loss of Life. — A statute giving civil damages to the representatives of one deprived of life through another's neglect, does not conflict with the constitutional provision we are considering ; even though, for the same neglect, an indictment is also provided.® IX. The Doctrine of Autrefois Attaint. § 1070. General. — When this country was settled, the English law, with some exceptions, did not permit a person attainted of one felony to be prosecuted for another.^ This doctrine was recognized in one or two early American cases,^ but otherwise we have no trace of it in the jurisprudence of this country .» In England it was long ago abolished by act of Parliament.!" It probably originated in the idea that after a man was condemned to death it would be useless to proceed against him for a second capital offence, since he could die only once. \ "Vol. II, § 264-267. Gardner v. P. 20 Dl. 430; Fant ». P. 45 Rex V. Lord Ossulston, 2 Stra. HOT. 111. 259. s See S. V. Plunkett, 3 Harrison, 5; 6 Xnie, § 1067. S. V. Sonnerkalb, 2 Nott & McC. 280; « Chiles v. Drake, 2 Met. Ky. 146, 74 Hodges V. S. 8 Ala. 55 ; S. v. Keen, 34 Am. D. 406. Me. 500; Simpson v. S. 10 Yerg. 525 ; 7 4 Bl. Com. 336 ; 3 Inst. 213 ; 2 Hale S. V. Tappan, 15 N. H. 91; S. v. Thomp- P. C. 252-254; Armstrong v. L'Isle, 12 son, 2 Strob. 12, 47 Am. D. 588; ante, Mod. 109. See Eex v. Birkett, Russ. & §1029(4). By. 268. < Ante, § 1029 (3) ; Stat. Crimes, § 23 ; 8 Crenshaw v. S. Mart. & Yerg. 122, 17 S. V. Thornton, 37 Mo. 360, 361 ; S. v. Am. D. 788. Cowan, 29 Mo. 330; Levy v. S. 6 Ind. 9 See Peri w. P 65 111 17 281 ; Waldo v. Wallace, 12 Ind. 569 ; W Stat. 7 & 8 Geo. 4, c. 28 S 4 642 • CHAP. LXm.] NO SECOND PROSECUTION. § 1070 a § 1070 a. The Doctrine of this Chapter restated. The common law, following natural justice, embodies tlie prin- ciple that a man shall not be twice brought to trial for the same offence. The constitutions of the United States and most of our States have given shape and permanence to this principle, by provid- ing that no one shall be " subject for the same offence to be twice put in jeopardy of life or limb." ^ This guaranty, which by a literal interpretation would extend only to treasons and felonies, is, as it should be, by construction of the courts made to include also mis- demeanors ; for its purpose is to benefit accused people, and laws with this purpose are always rendered liberally so as to compre- hend what is within their spirit though not within their letter. In other respects, this rule of interpretation is in many of the cases not thought of by the courts, and other obvious principles are overlooked, so that our books contain numerous decisions wherein this constitutional right has been denied to the prisoner. Thereby a blemish has been wrought in our adjudged law. Still, on the whole, the cases within this chapter are fairly well con- sidered. It is deemed not necessary here further to retrace our steps. 1 Const. U. S. ameudm. 5. 643 s 1072 NUISANCE. [book ix. BOOK IX. NUISANCE. CHAPTER LXIV. THE GENERAL DOCTRINE OP NUISANCE. § 1071. Introduction. 1072-1078 6. As Indictable. 1079-1082. As Abatable. Order of Arrangement. — By the natural order of arrangement, and as in Crim. Pro. it is, the several chapters of this Book should be alphabetically interspersed with those of the second volume. The departure from that, order here is to keep the volumes duly balanced in size. Consult, — for the pleading, evidence, and practice, Crim. Pro. II. § 860-878. And — Compare with — Bishop Non-Con. Law, § 409-432, for the private wrong. § 1071. Elsewhere. — In preceding chapters, much on this sub- ject appears interspersed with other matter .^ And some of the secondary nuisances, not included in this Book, are treated of in the second volume ^ and in " Statutory Crimes." ^ How Chapter dividea. — We shall consider, I. Nuisance as Indictable; II. Nuisance as Abatable. I. Nuisance as Indictable. § 1072. 1. Defined. — A public or common nuisance is any act or neglect the product of which works an annoyance or in- jury to the entire community ; or, the product itself is termed a nuisance.* 1 Ante, § 221, 227,236, 243-245, 265, Day; Hiot; Sepultube; Threatening 316, 341, 419-422, 433, 490, 491, 531, 686, Letters; Way. 792, 816-835, and some other places. 'As, Drunkenness; Liquor Nn- 2 For example, Barratry ; Blasphb- sance ; Tippling-shops. MY AND Peopanenebs; Libel ; Lord's * Hawkins defines it as "an offence 644 CHAP. LXIV.] GENERAL DOCTRINE OP NUISANCE. § 1075 2. Common-law or Statutory. — This is a common-law offence ; but like others it is subject to be, and it often is, enlarged and otherwise defined by statutes.^ § 1073. Abatable and Indictable. -^ This offence is peculiar in that, besides being punishable, it has a product liable to be abated, as mentioned in a preceding chapter 2 and to be further explained in our next sub-title. Again, — § 1074. 1. Actionable add Indictable.^ — While this offence is indictable, it is also, like others, actionable by one who has been specially damaged .^ But — 2. Intensity of Evil. — No intenser evil is required to render it indictable than actionable.* Moreover, — 3. CivU in Essence. — The doctrine^ that in exceptional circum- stances a proceeding in the criminal form may be in effect civil, and partly governed by'the rules of civil suits,' has its most apt illustrations in nuisance.' Thus,— § 1075. Obstructing River — (latent — Acts of Servants). — One in England was indicted for obstructing the navigation of a river by his manner of carrying on some works near its bank. His workmen had deposited rubbish where it had fallen into the river ; and he offered to s];iow in defence that they did it in viola- tion of his express orders, while still it was in the general course of the business. In an ordinary criminal case, this fact would have constituted a complete defence, as showing an absence of the criminal intent,^ but the court rejected it. For though the against the public, either by doing a thing act " should be an offence so inconvenient which tends to the annoyance of all the and troublesome as to annoy the whole king's subjects, or by neglecting to do a community, and not merely particular thing which the common good requires." persons." S. v. Baldwin, 1 Dev. & Bat. 1 Hawls. P. C. Curw. ed. p. 692, § 1. See, 195,197. As to which see ante, § 243- for the definition of a private nuisance, 245; post, § 1077, 1078. Bishop Non-Con. Law, § 41 1 and note. l McLaughlin v. S. 45 Ind. 338 ; S. v. Nuisance, whether public or private, is in Fisher, 52 Mo. 174; Watertown v. Mayo, its nature difficult to be defined. The 109 Mass. 315, 12 Am. R. 694; Overman criticism of this definition of Hawkins's, v. S. 88 Ind. 6 ; S. i). Archibald, 59 Vt. which in a sort of general way is followed 548, 59 Am. R. 755; S. v. Wheeler, 15 by Blackstone, is that it is so indefinite Vroom, 88 ; S. v. Cainan, 94 N. C. 880 ; as to comprehend any amount of wrong S. v. Howard, 72 Me. 459 ; S. v. Pierce, other than nuisance. My own definition 65 Iowa, 85 ; North Chicago City Ry. v. is certainly more definite, but I do not Lake View, 105 111. 207, 44 Am. R. 788. think our language supplies the words to ^ Ante, § 821-835. express the idea exactly, comprehensively, ' Ante, § 265. in a single sentence, and in a way fully to * Ante, § 236. satisfy legal criticism. Gaston, J. in a « Ante, §33, 264-267, 531, 713,954-957. North Carolina case, observed that the ' See ante, § 316 (3). 645 § 1077 NUISANCE. [book ly. suit was in form criminal, " I think," said Mellor, J., " it is in the nature of a civil proceeding, and I can see no reason why a different rule should prevail," in a case of this nature, " between proceed- ings which are civil and proceedings which are criminal. I think there may be nuisances of such a character that the rule I am applying here would not be applicable to them ; but here it is per- fectly clear that the only reason for proceeding criminally is that the nuisance, instead of being merely a nuisance affecting an in- dividual, or one or two individuals, affects the public at large, and no private individual without receiving some special injury could have maintained an action. . . . The prosecutor cannot proceed by action, but must proceed by indictment ; and if this were strictly a criminal proceeding, the prosecution would be met with the objection that there was no mens rea, that the indictment charged the defendant with a criminal offence when in reality there was no proof that the defendant knew of the act, or that he himself gave orders to his servants to do the particular act he is charged with. . . . Inasmuch as the object of this indictment is not to punish the defendant, but really to prevent the nuisance from being continued, I think that the evidence which would support a civil action would be sufficient to support an in- dictment." ^ § 1076. The Doctrine — of this English case may almost be deemed new in the criminal law, yet there- were before some familiar cases lying near it.^ And, properly limited, the doctrine is eminently worthy to be followed hereafter. § 1077. 1. Already, — in preceding chapters, the leading doc- trines of this chapter are pretty fully unfolded; as, under the title " How far the Wrong must be Public," ^ and in successive chapters further on wherein it is explained how far the criminal law affords protection to the " Public Health," to " Religion, Pub- lic Morals, and Education," to the " Population and the "Wealth of the Country," to the " Public Convenience and Safety," and to the " Public Order and Tranquillity." * Also, — 2. How many annoy. — In a general way, we have seen how many of the public a nuisance must annoy to render it indictable.^ Said a learned judge : " Every nuisance is annoying to only a few ' Reg. V. Stephens, Law Eep. 1 Q. B. ' Ante, § 229 et seq. 702, 708, 709, 710. « Ante, § 489-542. 2 See ante, § 219-221, 316 (3), 317. 6 Ante, § 243-245, 1072 and note. 646 CHAP. LXIV.J GENERAL DOCTRINE OP NUISANCE. § 1079 of the citizens of the particular place. They are the public of that, locality. It is a public nuisance if it annoy such part of the public as necessarily come in contact with it." ^ But — § 1078. In Disorderly House. — We have a case holding that where one lived remote from any public road, and his five sons often when drunk kept up loud noises and fiproar in the house, yet the only encouragement he gave them was by getting drunk himself, and he sometimes endeavored to quiet them, the result of all which was a disturbance to two families only, — the nuisance of keeping a disorderly house was not committed. The court deemed that assuming this conduct to be such as would have ren- dered the house disorderly if on a public street in a populous place, it was not so here, " having been committed in the country, to the disturbance of only two families residing in the vicinity." ^ § 1078 a. Prescription and Usage. — One by committing an offence to-day does not gain the right to do the like to-morrow. And no prescription and.no usage can justify crime. In this respect the criminal law does not follow the analogies of the civil. Therefore, as we shall more particularly see by and by,^ a nuisance is not the less indictable because it is of long stand- ing,* or because like nuisances are common and tolerated.^ § 1078 h. 1. Misdemeanor, — punishable by fine and imprison- ment, is the common-law grade of nuisance. And none of our statutes, it is believed, make it felony. Consequently, — 2. All Participants, — whether before or at the fact, present or absent, are principal offenders, and to be dealt with as doers.® We shall see, under the title Bawdy-house, more specifically how this is.'' But the doctrine applies also to other nuisances.^ II. Nuisance as Abatable. §1079. 1. By Judicial Order. — When the indictment has the nocessary allegations, the judgment on conviction may contain an 1 Stuart, J. in Hackney v. S. 8 Ind. 494, Rankin, 3 S. C. 438, 16 Am. R. 737 ; P. v. 495. Mallory, 4 Thomp. & C. 567. 2 S. V. Wright, 6 Jones, N. C. 25, 27, * C. v. Perry, 139 Mass. 198. opinion by Pearson, C. J. And see S. v. » Ante, § 629-633, 656 et seq., 685-689. Hathcock, 7 Ire. 52 ' Post, § 1090-1096. ' Post, § 1131, 1139-1141. ' S. V. Potter, 30 Iowa, 587 ; Edelmath 1 Douglass v.'s. 4 Wis. 387 ; Mills v. o. McGarren, 4 Daly, 467 ; Stevens v. P. HaU, 9 Wend. 315, 24 Am. D. 160; S. v. 67 lU. 587; Dorman ». Ames, 12 Minn. Franklin Palls Co. 49 N. H. 240, 6 Am. 451. See IT. S. v. Chenoweth, 6 McLean, R. 513 ; Taylor v. P. 6 Par. Cr. 347 ; S. v. 139. 647 §1079 NUISANCE. [book IX. order that the defendant abate the nuisance,^ " at," says Hawkins, " his own costs." ^ Such order is not a necessary part of the judg- ment, or strictly in punishment.^ 2. Summary Steps, — of various sorts and with various effects, are sometimes provided by statutes to. secure the speedy abate- ment of nuisances.* 3. Equity — furnishes another remedy for abating ^ or enjoin- ing^ nuisances, sometimes resorted to. And an acquittal on an indictment for the particular nuisance will not bar this remedy.' 4. A Voluntary Abatement — having been made by the offend- ing person is a just ground of appeal to any discretionary power of the court in his favor.^ Also — 5. Acted aa Agent. — The court at the sentence will consider favorably to the prisoner the fact, if such it is, that he acted only as another's agent.^ 1 Crim. Pro. II. § 866, 870-872 ; Mun- Bon ■;. P. 5 Par. Cr. 16 ; Smith v. S. 22 Ohio St. 539 ; Delaware Division Canal v. C. 60 Pa. 367, 100 Am. D. 570. ^ 1 Hawk. P. C. Curw. ed. p. 695, § 14, 15. s Ante, § 829 (3) ; Camphell v. S. 16 Ala. 144. And see Willis v. Warren, 1 Hiltou,590. The order will be made only where the nuisance is alleged to be con- tinuing. S, V. Noyes, 10 Fost. N. H. 279 ; Ciim.JPro. I. § 393 ; II. § 866 ; Wroe v. S. 8 Md. 416 ; Munson v. P. 5 Par. Cr. 16 ; Bex V. Stead, 8 T. E. 142. In the la8^ cited case. Lord Kenyon, C. J. said : " When a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition ; it is so stated in Bex u, Pappineau, 1 Stra. 686, ' et adhuc existit ; ' and in such case the judgment should be that the nuisance be abated. But in this case it does not ap- pear in the indictment that the nuisance was then in existence, and it would be absurd to give judgment to abate a sup- posed nuisance which does not exist. If, however, the nuisance still continue, the defendant may be again indicted for con- tinuing it." p. 144. A Pennsylvania case holds that the order should not be first on the sheriff to abate the nuisance, but on the defendant ; then, if he fails, the com- mand may go to the sheriff to abate it at 648 his cost. Barclay «. C. 25 Pa. 503, 64 Am. D. 715. And see Mayor of Liver- pool, 8 Ellis & B. 537. One being found guilty of nuisance in maintaining a mill- dam, and a judgment for the removal of the dam being entered, with an order to the sheriff to remove it, it was held that error would lie thereon. It was adjudged further that the order for removal must constitute a part of, not precede, the sen- tence determining the punishment. Crip- pen V. P. 8 Mich. 117. See also Maxwell V. Boyne, 36 Ind. 420. Cruel and Un- usual Punishment, — an order for abate- ment is not. McLaughlin v. S. 45 Ind. 338. ^ See, for illustrations. Ex parte Whit; church, 6 Q. B. D. 545 ; Applegate v. Winebrenner, 66 Iowa, 67 ; Scarborough ». Scarborough, 1 Ex. D. 344 ; Ex parte Bradlaugh, 3 Q. B. D. 509; Beg. a. Llewellyn, 13 Q. B. D. 681 ; Watuppa Reservoir u. Mackenzie, 132 Mass. 71 ; Cavanagh v. Boston, 139 Mass. 426, 52 Am. R. 716 ; Cole «. Kegler, 64 Iowa, 59. ^ Bishop Non-Con. Law, § 429 ; Hoole V. Attorney-General, 22 Ala. 190. 8 Crim. Pro. I. § 1414, 1417. ' Minke v. Hopeman, 87 lU. 450, 29 Am. R. 63. ^ Reg. V. Macmichael, 8 Car. & P. 755. See also Rex v. Grey, 2 Keny. 307 ; Rex V. Green, 1 Keny. 379. » S. V. Bell, 5 Port. 365. CHAP. LXIV.J GENERAL DOCTRINE OP NUISANCE. §1080 § 1080. 1. Private Abatement in Pais, -^ of a public nuisance as well as a private, we have already seen to be, within proper limits, permissible.^ Thus, — 2. A Dog — that has become publicly ferocious and dangerous is a public nuisance, and it may be killed by any person.^ 1 Ante, § 490 (2), 828, 829 ; Stat. Crimes, § 169, 252, 1070 and note. 2 Bishop Non-Con. Law, § 1239. And see tlie entire chapter on dogs, § 1233- 1241. Further of this subject, — Dogs and Abatement. — 1. The ques- tion of one's right to kill another's dog, because a public nuisance, is in the facts of cases often blended with that of his right to kill the dog for the protection of himself or property. The topic has been frequently before the courts ; and, oddly, the digest-makers have in some instances the special title Dog. Let us look a little at what the courts have held. 2. In an old case it was by " Holt, C. J. and Turton, J." gaid, according to one report, that "there is a great difference between horses and oxen, in which a man has a valuable property and which are not so familiar to mankind, and dogs ; the former the owner ought to confine, and take all reasonable caution that they do no mischief, otherwise an action will lie against him ; but otherwise of dogs before he has notice of some mischiev- ous quality." Mason v. Keeling, 1 Ld. Eaym. 606, 608. According to another report of the case, " Holt, C. J." said : "The difference is between things in which the party has a valuable property, for he shall answer for all damages done by them ; but of things in which he has no valuable property, if they are such as are naturally mischievous in their kind, he shall answer for the hurt done by them without any notice; but if they are of a tame nature, there must be no- tice of the ill quality. And the law takes notice that a dog is not of a fierce nature, but rather the contrary. ... If any beast in which I have a valuable property do damage in another's soil, in treading his grass, trespass will lie for it ; but if my dog go into another man's soil, no action will lie." Mason v. Keeling, 12 Mod. 332, 335. Therefore a man bitten or otherwise injured by a dog cannot have recompense from its owner for the injury unless the latter had some knowledge or warning of its vicious propensities. Hogan V. Sharpe, 7 Car. & P. 755; Thomas v. Morgan, 2 Cromp. M. & R. 496, 4 Dowl. P. C. 223 ; McKone v. Wood, 5 Car. & P. 1 ; Judge V. Cox, 1 Stark. 285 ; Vrooman V. Lawyer, 13 Johns. 339. 3. One attacked by another's dog may , kill it in self-defence, and the owner can recover no damages. And he may do the same for the protection of his property. Leonard v. Wilkins, 9 Johns. 233 ; Brown V. Hoburger, 52 Barb. 15; Kingu. Kline, 6 Pa. 318; Barrington v. Turner, 3 Lev. 28; Hanway v. Boultbee, 4 Car. & P. 350, 1 Moody & R. 15 ; Janson v. Brown, 1 Camp. 41. But where a defendant in justification of killing the plaintiff's dog alleged that it ran violently upon and bit his dog, not enough was disclosed; it should have been further shown that he could not otherwise separate the attacking dog from his own. Wright v. Ramscot, 1 Saund. 84 ; 8. c. nom. Wright v. Rain- sear, 1 Sid. 336 ; s. c. nom. Wright v. Wrainscott, 1 Lev. 216 ; s. o. nom. Wright K. Wranscot, 2 Keb. 237. And Lord Den- man, C. J. once said in a jury case that "the circumstance of a dog being of a ferocious disposition and being at large is not sufficient to justify shooting him ; to justify such a course the animal must be actually attacking the party at the time." Morris v. Nugent, 7 Car. & P. 572. And see Hartley v. Harriman, 1 B. & Aid. 620 ; Clark V. Webster, 1 Car. & P. 104 ; Han- way V. Boultbee, 4 Car. & P, 350, 1 Moody & R. 15; Janson v. Brown, 1 Camp. 41. Also, when, after the plaintiff's dog had worried some sheep belonging to the de- fendant, and gone into another field, the latter shot the dog, — Alderson, J. in an action theiofor, directed a verdiet for the plaintiff, saying, " It was clear that the * dog was not shot in protection of the de- fendant's property, as it was after he had left the field in which the sheep were." 649 § 1081 NUISANCE. [book IX. § 1081. 1. Further of Private Abatement. — While the private abatement of public nuisances should not be carried too far, Wells V. Head, 4 Car. & P. 568. In a North Carolina case, where a dog kept on the owner's premises ran at a person going to the house, but was by the family called off, yet he shot the dog, the court held that a fierce dog if kept on its owner's premises is not a nuisance entitling any one to kill it, and that in this instance there was no necessity for the killing, since the dog was driven off. Hence the shooting was not justifiable. Perry v. Phipps, 10 Ire. 259, 51 Am. D. ^87. 4. Some of the before-mentioned cases seem to favor the proposition that if a dog is dangerous to go at large, still a person whom or whose property it is not molest- ing may not kill it. Yet it is submitted that the law is directly the other way ; namely, though a dog may not lawfully be killed by any one simply because of having some vicious propensities, if it is going at large and is so vicious as to be dangerous to the community, any person may kill it whether individually in danger or not, and whether the owner has knowl- edge of the vicious propensities or not. I will state the cases at hand relating to this proposition, leaving the reader to de- cide whether or not it is sustained by them. In New York it was laid down in an action of trespass for killing a dog, that where the defence of its ferocious character is set up, it is sufficient that it was in the habit of attacking people, and a scienter on the part of the owner need not be shown. Said Nelson, C. J. : "If the dog be in fact ferocious, at large, and a terror to ibe neighborliood, the public should be justified in despatching him at once. It seems to be settled that such proof is not necessary when a dog is in the habit of chasing conies in a warren, or deer in a park, and that he may be killed for the protection of those animals. How much more proper is it that this should be the rule, and moat singular would it be were it otherwise, when the persons and lives of rational beings are in danger ! " Max- well V. Palmerton, 21 Wend. 407, 408. In a Pennsylvania case, — where, indeed, the matter adjudged was that a man may kill his neighbor's dog to protect his own property, — Coulter, J. said : " A dog may 650 be so ferocious as to become a public nui- sance ; and in siich cases if his owner per- mits him to run at large, any person may kill him." King u. Kline, 6 Pa. 318. Also we have the following decisions : Tres- pass, vi et armis, for killing a dog. Held, that the dog, having bitten the defendant, was a nuisance, and anybody might abate a nuisance. Aliter, if the dog had been set to guard property, and the defendant had interfered. Bowers v. Fitzrandolph, Addison, 215. If a dog is so ferocious that of his own disposition he will bite men in the street, and is at large, he is a nuisance, and may be killed by any one. Dunlap V. Snyder, 17 Barb. 561. No action lies against one for killing a dan- gerous dog which its owner permits to run at large, or which escapes through negligent keeping, the owner having no- tice of its vicious disposition ; or for kill- ing a dog bitten by a mad dog. Putnam V. Payne, 13 Johns. 312. If a dog attacks persons, or attacks and kills domestic ani- mals on the owner's land, it may be killed as a common nuisance. But if it merely chases and worries cattle, the owner of them may not kill it ; his remedy is by action against the owner of the dog, upon proof that he knew the dog to be in the habit of doing thus. Hinckley v. Emer- son, 4 Cow. 351, 15 Am. D. 383. A fu- rious dog, accustomed to bite mankind, is a common nuisance. In an action for kill- ing it, the defendant need not prove he was obliged to kill it in self-defence. And Redfield, C. J. observed: "Some animals are common nuisances, if suf- fered to go at large, from their known and uniform instincts and propensities, such as lions and bears, and probably wolves and wild-cats; and domestic ani- mals, from their ferocious and dangerous habits becoming known to their keepers, thus become common nuisances if not re- strained." Brown v. Carpenter, 26 Vt. 638, 643, 62 Am. D. 603. The inhabit- ants of a dwelling-house may destroy an- other's dog that disturbs their quiet, if the disturbance cannot be otherwise pre- vented; Nelson, C. J. observing: "The demurrer admits that the dog was in the constant habit of coming on the premises, CHAP. LXIV.] GENERAL DOCTRINE OP NUISANCE. §1081 properly limited the doctrine is one of the most beneficial in our law. It is essential to the repose of the community. Without it, one man might put a million in danger, or destroy human lives by thousands, in the presence of another who, having the power, would not be permitted to interpose. An infernal machine might be hidden where throngs were passing, a bridge about to be packed with human beings might be so weakened that it would fall, or any number of other dangers might be created, yet, but for this doctrine, they could not be arrested to prevent the calamity. Without it, .no man could shoot a mad dog running in the street, or throw into the street the torch which an incendiary had left in another's building to burn the city. This doctrine, indeed, is an expression of those better instincts of our nature which impel men to watch over and shield one another from harm.^ There- fore it is impossible to contemplate, except with the deepest regret, various modern cases wherein it seems to be laid down ,in terms absolutely unqualified that no one may abate a public nuisance unless personally and specially injured by it.^ So far and about the dwelling of the defendants, day and night, barking and howling, to the great annoyance and disturbance of the peace and quiet of the family; that the plaintiff was fully advised of this mis- chievous propensity of the animal, and wilfully neglected to confine him ; and that defendants, unable to remove the nuisance in any other way, killed him. No other authority than the experience and observation of every man is necessary to enable him to determine that the mat- ters set forth in this plea constitute a pri- vate nuisance to the inmates of the family, and upon general principles justify all reasonable means to remove it." Brill v. Flagler, 23 Wend. 3.54, 357. Still, if a statute authorizes the killing of a dog at large without a collar, one cannot convert the animal to his own use instead of killing it; for the object of the statute is, in the words of Shaw, C. J. " to rid society of a nuisance. . . . This object would not be accomplished by a person's taking the dog to himself." Cummings V. Perham, 1 Met. 555, 556. 5. In some of the States, there are statutes regulating the custody and re- straint of dogs, and they are held to be constitutional. Blair v. Forehand, 100 Mass. 136, 97 Am. D. 82, 1 Am. B.. 94. And see further of these statutes, C. v, Canada, 107 Mass. 405 ; C. v. Gorman, 16 Gray, 601 ; C. «. Kelliher, 12 Allen, 480; Kerr v. Seaver, 11 Allen, 151 ; McAneany V. Jewett, 10 Allen, 151 ; Jones v. C. 15 Gray, 193 ; Bishop v. Fahay, 15 Gray, 61 ; Tower v. Tower, 18 Pick. 262 ; C. v. Dow, 10 Met. 382 ; Campbell v. Brown, 1 Grant, Pa. 82. And see ante, § 832 (3). 1 Bishop Non-Con. Law, § 430, 431, 1323 ; Stat. Crimes, § 1070, note ; Man- hattan Manuf., &c. Co. v. Van Keuren, 8 C. E. Green, 251, 255. But see Miller v. Forman, 8 Vroom, 55. And see Gunter V. Geary, 1 Cal. 462 ; Reg. v. Patton, 13 L. Canada, 311 ; Reg. v. Mathias, 2 Fost. & F- 570 ; James v. Hayward, Cro. Car. 184; Ruff V. Phillips, 50 Ga. 130. By Municipal Odrporations. — As to abate- ment by municipal corporations, see Yates V. Milwaukee, 10 "Wal. 497 ; Weil v. Ricord, 9 C. E. Green, 169 ; Babcock v. Buffalo, 56 N. Y. 268. 2 See Clark v. Lake St. Clair, &c. Ice Co. 24 Mich. 508 ; McGregor v. Boyle, 34 Iowa, 268; Brown ». Perkins, 12 Gray, 89, 101 ; Miller v. Forman, 8 Vroom, 55 ; Ruff V. Phillips, 50 Ga. 130; S. v. Parrott, 71 N. C. 311, 17 Am. R. 5 ; Bateman a 651 §1081 NUISANCE. [book IX. have these modern expressions gone that they are even sometimes said, in delusive language which is itself a peril to the law, to constitute " the weight of authority." ^ Not inquiring whether or not the decisions themselves, wherein such language is uttered, were right or wrong, let us imagine another decision. When a scoundrel is found to have laid before a train of passenger-cars a bomb which on being exploded will destroy the cars and the lives of half of the people within them, if tlien any court on suit by the owner of the bomb awards damages against the man who abates the nuisance and averts the scene of horror and death, moved thereto by "the weight of authority," we may be sure that even " authority," with alL its weight, is capable of erring. Still, — 2. Limit of Doctrine. — Not every imaginable thing can be done under the name of abating a public nuisance. Thus, we have seen ^ that there should not be needless damage. And it has been said that though ^' the right to abate a public nuisance be- longs to every citizen, yet it cannot be lawfully exercised if its exercise involve a breach of the peace. When such is the case, the party erecting the nuisance must be proceeded against legally." ^ Bluck, 18 Q. B. 870 ; Owens v. S. 52 Ala. 400. ' Bidingei v. Bishop, 76 Ind. 244, 248. Concerning the Weight of Authority. — This expression, too often recurring in our reports, shows the liability of judges, the same as of practitioners, to overlook the obvious things. As to which, see Bishop Mar. Div. & S. Pref. and Int. One court lays down a doctrine which perhaps is, though it is not always, correct as applied to the facts in contemplation, then another court blindly follows it as being estab- lished by the decision, then a third, a fourth, or a twentieth court just as blindly jumps after the bell-wether, whereupon all cry, " Here is ' the weight of author- ity ! ' " It has been thousands of times repeated by all classes of legal persons, and justly, that our law is a system of reason. This proposition, one should be happy in saying, is affirmed by "the weight of authority" in all countries where the common law prevails. But to il- lustrate by the case now before us, if " the weight of authority " compels me to stand by and see a mad dog, or a bear let loose, or any other public nuisance devour the baby whose mother has no relationship to 652 me, contrary to reason, contrary to hu- manity, and contrary to the highest be- hests of the moral law, then there are two weights of authority clashing and making terrible discord. ^ Ante, § 828 ; S. v. Paul, 5 R. I. 185 ; S. V. Keeran, 5 R. I. 497 ; Roberts v. Rose, 3 H. & C. 162. » Day V. Day, 4 Md. 262, opinion by LeGrand, C. J. So, although an obstruc- tion in the channel of a navigable river is a nuisance, yet it is not to be abated with total disregard of the rights of others. A raft of timber was driven into the mouth of Bayou Lafourche, which it obstructed. Its captain the next morn- ing endeavored to hire an inward-bound steamer to tow it out, but was refused. While he was seeking other assistance, the steamer's captain cut it to pieces in order to pass, whereupon the steamer was held liable. Lallande i>. The Steamboat C. D. 1 Newb. Adm. 501. Probably the true view of this case is that since the raft was forced in by necessity, it was not a nuisance so long as its owner was making all possible exertions to remove it. As to abating a bridge which obstructed navi- gation, see S. V. Parrott, 71 N C. 3 1 1 CHAP. LXIV.] GENERAL DOCTEINHi OP NUISANCE. § 1082 Undoubtedly iu some circumstances it will lend strength to one's right to abate a public nuisance that he suffers a special injury from it, because this fact will authorize even the abatement of a private nuisance ; ^ yet when it is clearly public, the person abating need not as a general proposition be a special sufferer from the thing abated.^ § 1082. A Municipal Corporation, — given by its charter the authority and collateral powers required to preserve the public health and remove nuisances, is indictable if it does not cause to be abated a public nuisance, like a slaughter-house, kept to the detriment of the public health on land within the corporate limits.^ 'Ante, § 828; Gates u. Blincoe, 2 declared the Neuse River between certain Da,na, 158, .26 Am. D. 440. The assent points navigable, it is a nuisance to buUd of a- party to a nuisance will not take a bridge across it, between those points, away his right to abate it afterward, if preventing the passage of boats ; and such he thinlcs proper. Pilcher v. Hart, 1 nuisance may be abated by any one. S. v. Humph. 524. Dibble, 4 Jones, N. C. 107. ii Ante, § 828, 829, 1080 and note; « S. y. Shelbyville, 4 Sneed, 176. Corn- King V. Sanders, 2 Brev. 111. And see pare with Bishop Non-Con. Law, § 754. previous notes. Various statutes having 653 § 1084 NUISANCE. [book IX. CHAPTER LXV. BAWDY-HOUSE. § 1082 a. Introduction. 1083-1089. Keeping Bawdy-house. 1090-1096. Letting or Selling House for Bawdry. Consult, — for the pleading, evidence, and practice, Crim. Pro. II. § 104-122; Dir. & F. § 780-787, 821. § 1082 a. How Chapter divided. — We shall consider, I. Keep- ing a Bawdy-liouse ; II. Letting or Selling a Hpuse for Bawdry. , I. Keeping a Bawdy-house. § 1083. 1. Defined. — A bawdy-house is any place, whether of habitation or temporary sojourn, kept open to the public either generally or under restrictions, for licentious commerce between the sexes.^ 2. House of Ill-fame — is another name for the same thing. . It is one form of disorderly house.^ Therefore — 3. The Keeping — is an indictable misdemeanor .^ "For al- though," says Coke, " adultery and fornication be punishable by the ecclesiastical law, yet the keeping of a house of bawdry, or stews, or brothel-house, being as it were a common nuisance, is punishable by the common law ; and is the cause of many mis- chiefs, not only to the overthrow of the bodies and wasting of their livelihoods, but to the endangering of their souls." * § 1084. 1. The Keeper — may be a man or a woman. And a married woman may be indicted for the offence either alone or with her husband. " Keeping the house does not necessarily import property, but may signify that share of government which the wife has in the family, as well as the husband." ^ So that — 1 " A house of ill-fame kept for the re- ». S. 12 Tex. Ap. 231 ; Burton w. S. 16 Tex. sort and convenience of lewd people of both Ap. 156. sexes." Bouv. Law Diet. Bawdy-house; ' Ante, § 500 (2), 734 (2) ; 4 Bl. Com. S. V. Evans, 5 Ire. 603; Harwood v. P. 26 163 ; 1 Russ. Crimes, 3d Eng. ed. 322. N. Y. 190, 191, 84 Am. B. 175. ♦ 3 Inst. 205 ; Jacobowsky v. P. 6 Hun, '■i Crim. Pro. II. § 106 ; S. v. Galley, 524. 104 N. C. 858, 17 Am. St. 704 ; McElhaney ^ Reg. ». WiUiams, 10 Mod. 63, 1 Salk. 654 CHAP, LXV.J BAWDY-HOUSE. § 1086 2. Husband for "Wife. — Though a statute has authorized the wife to own property and carry on business separately from her husband, and though she keeps a bawdy-house as her own ven- ture and for her separate profit, if the husband knowing this lives with her and does not by his marital power restrain her,^ he is indictable also as keeper. For such a statute refers to legitimate business, and does " not take away his power to regulate his house- hold." 2 And, in general, a man who suffers his wife and daugh- ters openly to do the forbidden things, and does not dissent, becomes thereby guilty of the offence.* § 1085. 1. What the Keeping. — The gist of the offence appears to consist in the allurement which the place holds out to a mis- cellaneous and common bawdry, corrupting to the public morals. Therefore, for example, it is not committed by permitting in a house a single illicit act,* or by being a woman or even a prostitute and Hying in a bawdy-house,^ or by a loose woman simply dwelling alone, or having her daughters with her, and she and they indulging at times in illicit intercourse with men not their hus- bands, while the place is not one of " common resort" for lewd- ness.^ The author is not able to refer to cases covering in their facts the entire ground, but the doctrine appears to be that as an inn is for all travellers, so a bawdy-house is for all persons lewdly inclined. It need not, but commonly does, supply the girls, who may either dwell in the house, or visit it with or without the men accompanying, for the evil practice.^ 2. The House — may consist of no more than a single room in a dwelling-house.8 Or it may be a tent,* or a boat on a river.!" Not even need the place be used for habitation." § 1086. Lucre. — Overcoming an early doubt,!^ it is settled that 384 ; S. V. Bentz, 1 1 Misso. 27 ; C.v. Lewis, ' And see Sparks v. S. 59 Ala. 82 ; S. 1 Met. 151 ; C. V. Cheney, 114 Mass. 281 ; v. Garing, 75 Me. 591 ; Territory v. Chart- ante, § 361 ; Crim. Pro. II. § 109. rand, 1 Dak. 379 ; P. v. Hampton, 4 Utah, 1 Ante, § 891 a. 258 ; King v. P. 83 N. Y. 587. 2 C. V. Wood, 97 Mass. 225. ' Reg. v. Pierson, supra ; S. v. Garity, » Scarborough v. S. 46 Ga. 26. 46 N. H. 61 ; S. v. Main, 31 Conn. 572; C. * C. V. Lambert, 12 Allen, 177 ; S. v. v. Howe, 13 Gray, 26 ; P. v. Buchanan, 1 Garing, 74 Me. 152. , Idaho, n. s. 681. 6 P. V. Ah Ho, 1 Idaho, N. s. 691 ; ' KiUman v. S. 2 Tex. Ap. 222, 28 Am. Moore v. S. 4 Tex. Ap. 127. R. 432. 6 S. V. Galley, 104 N. C. 858, 17 Am. " S. u. Mullen, 35 Iowa, 199. St. 704 ; S. V. Evans, 5 Ire. 603 ; Reg. v. " S. o. Powers, 36 Conn. 77. Pierson, 1 Salk. 382 ; s. c. nom. Beg. v. ^ Jennings ». C. 17 Pick. 80. Peirson, 2 Ld. Raym. 1197. And see S. !>. Clark, 78 Iowa, 492. 655 §1089 NUISANCE. [BOOK IX to constitute a bawdy-house it need not- be kept j for lucre. The offence consists in its being a public nuisance, and the form of corrupt motive is immaterial.^ And — § 1087. Outward Indecency — is not a necessary element.. The allurement is as effectual,' or even more so, though no indecency or disorder is discernible from without.^ § 1088. Statutory Modifications : — 1. General. — Some of our statutes have directly or indirectly wrought modifications in the law of this subject. Thus, — 2. Reputation of House. — We have statutes in terms making punishable the " keeping of a house of ill-fame, resorted to," etc. And there are courts which hold that the words " ill fame " refer to the reputation of the house, so that it must both be a bawdy- house and be reputed such.^ But the common and.better inter- pretation is believed to be that the term "house of ill-fame" is a mere synonym for " bawdy-house," * denoting the fact, not the "fame ": of it. And still in matter of evidence, some courts allow the proof of the fact to be aided by the fame.^ Beyond which, — 3. Express Provisions — in the statutes of, a few of our States authorize, in these cases, proof of the reputation of the house in aid of the other proofs. And they are held not to. violate our constitutions, though it would be otherwise if they made punish- able the mere reputation regardless of the fact.^ § 1089. By-laws. — The power of municipal corporations to make by-laws is considered in another connection.^ Under it, ordinances not unfrequently provide penalties for the keeping of houses of ill-fame.* 1 Ante, § 500, 734(2); post, § lll2; « Grim. Pro. II. § 112-115; S. v. S. u. Bailey, 1 Post. N. H. 343,345; S. v. Brunell, 29 Wis. 435; S. v. Lyon, 39 Nixon, 18 Vt. 70, 46 Am. D. 135; C. u. lowa, 379; S. v. Boardman, 64 Me. 523; Wood, 97 Mass. 225 ; S. v. Smith, 29 U. S. v. Jourdine, 4 Crajich C. C. 338 ; Minn. 193; S. v. Porter, 38 Ark. 637; U. S. v. Nailor, 4 Cranch C. C. 372. As Grim. Pro. II. § 108, 274. to the Massachusetts statutes, see G. v. 2 Reg. V. Bice, Law Eep. 1 G. G. 21 ; Davis, 11 Gray, 48. Sylvesters. S. 42 Tex. 496; King w. P. « S. v: Haberle, 72 Iowa, 138; S. i>. 83 N. Y. 587 ; Grim. Pro. II. § 116. Kartz, 13 R. I. 528. 8 CadweU v. S. 17 Conn. 467; S. v. ' Stat. Crimes, § 18-26. Blakesley, 38 Conn. 523. See S. w. Main, » Childress «. Nashville, 3 Sneed, 347 ; 31 Conn. 572; S. v. Morgan, 40 Conn. 44; New Orleans v. Costello, 14 La. An. 37 ; Morris v. S. 38 Tex. 603 ; O'Brien v. P. McAlister v. Clark, 33 Conn. 91; Wong 28 Mich. 213. «. Astoria, 18 Or. 538 ; Buell ». S. 45 Ark. * Ante, § 1083 (1, 2). 336 ; Stat. Crimes, § 21. 656 CHAP. LXV.J BAWDT-HOUSB. § 1091 II. Letting or Selling a Mouse for 'Bawdry. § 1090. 1. Liability as Keeper. — One can commit any crime with- out doing in person any part of the criminal thing. It is enough that his will contributes to the act, by whomsoever performed ; ^ and in misdemeanor, to which grade our present offence belongs, one to be a principal offender need not even be present at the doing.2 This principle and the doctrine of attempt govern our present sub-title. Thus, — 2. Permitting Keeping by Inmates and Lodgers. — A person who knowingly suffers mere lodgers or other inmates of his house to use it as a brothel, keeps, in law, however the outward fact may appear, a bawdy-house.^ Further of the — 3. Form of Doctrine. — This doctrine may assume different outward shapes under differing circumstances. A mere attempt to commit an offence is ordinarily, we have seen, indictable ; * and a solicitation is an attempt of a particular kind.^ On this principle, the letting of a house for a brothel is, even before it is used, a punishable misdemeanor .« Then, if the house is after- ward kept for bawdry, he whose will contributed to it by letting it therefor is, within the principle just explained,^ indictable as keeper.8 Further to particularize, — § 1091. Attempt — Pull Offence. — In the chapter on Attempt,^ we saw that there are substantive offences so small, or otherwise of such a nature, as to render the mere unaccomplished endeavor to commit them not punishable. On which or some other reason, the majority of the New York Court held, contrary to authorities just cited, that a letting under which nothing is done by the lessee is not a crime ■,'^^ though when afterward the premises are put to the evil use, the lessor and lessee may be proceeded against jointly for keeping the house." And the Kentucky tribunal, I. 1 Ante, § 629 et seq. 47 Am. D. 254 ; C. v. Johnson, 4 Pa. Law a Ante, § 685-687. Jo"r. Rep. 398 ; P. v. Saunders, 29 Mich. 8 S. V. Smith, 15 R. I. 24 ; Graeter v. S. 269 , S. v. Leach, 50 Mo. 535. 105 Ind. 271. See S, v. Wheatleyi 4 Lea, ' Ante, § 1079 ; Stevens v. P. 67 lU. 230. 587 ; S. a. Potter, 30 Iowa, 587 ; Wilson * Ante, § 723 et seq. "• Stewart, 3 B. & S. 913. 6 Ante, « 767, 768. ' And see post, § 1091, 1093. 6 C «. Harrington, 3 Pick. 26 ; Smith » Ante, § 759, 761, 764, 767 (4), 768. i> S 6 GiU 425. And see C. o. Moore, 11 " Brockway v. P. 2 Hill, N. Y. 558. Gush. 600; Fish 0. Dodge, 4 Denio, 311, " P. v. Erwin, 4 Denio, 129. VOL. 1. — 42 657 § 1095 NUISANCE. [book IX. while holding to the general doctrine, seems to favor the opinion that the house must be actually used for bawdry .^ § 1092. How in Principle. — We have seen ^ that one is not indictable for bargaining to sell spirits where only the sale is for- bidden, yet he is for procuring an obscene print with the intent to publish it. In other words, an attempt to sell intoxicating liquors contrary to a statute is not pursuable criminally, but an attempt to set up public obscenity is. Plainly, an attempt to establish a bawdy-house is of the latter class ; consequently, it is indictable. § 1093. Selling House for Bawdry. — The Kentucky Court seemed to regard the selling of a house for bawdry as no crime.^ But if the vendor knows the purposed use, why should it not be, at least, an attempt ? It is difficult to distinguish between the sale in fee and a sale for a term of years. In both instances, the transfer carries the entire present possession. § 1094. 1. Neglect to eject Tenant. — If linsuspectingly one lets what the lessee converts into a bawdy-house, he will in rea- son be punishable or not according as, assuming that the law gives him power to suppress the use, he exercises it or not. Yet perhaps there is some judicial authority, and possibly a shadow of legal reason, for requiring from him a little more of evil before holding him responsible as keeper of the house.* 2. The Owner's Agent. — who lets a house for bawdry and collects the rents, incurs the same criminal liability as though himself the owner.^ And — 3. A Letting for any Other Unlawful Purpose — as, to become an ordinary disorderly house, or a nuisance of any other sort — is governed by the same rules as for bawdry.^ § 1094 a. statutes — in some of the States have affirmed and more or less modified the unwritten rules stated thus far in this sub-title.^ § 1095. Late English Doctrine. — In England, the doctrine of this sub-title has of late received a heavy blow, perhaps has been 1 Eoss V. C. 2 B. Monr. 417. As to ity. Reg. y. Barrett, Leigh & C. 263,268, the failure to expel a tenant who keeps 269. But it is open to the criticism in a bawdy-house, see Abrahams w. S. 4 § 1096 of the text. Iowa, 541. B Lowenstein v. P. 54 Barb. 299. Ante, § 761. 6 s. v. WlUiams, supra ; ante, § 1078 6. ' Ross V. C. 2 B. Monr. 417. 7 Crofton v. S. 25 Ohio St. 249 ; Terri- S. «. Williams, 1 Vroom, 102. See tory v. Stone, 2 Dak. 155 ; Drake v. S. 14 Vaaon v. Augusta, 38 Ga. 542. There is Neb. 535. an English case direct against such liabil- 658 CHAP. LXV.j BAWDY-HOUSE. § 1096 overturned. The owner of a house let it out in rooms to prosti- tutes, knowing the purposed use to be for bawdry, and directly or indirectly consenting. But he did not reside in the house, or retain the keys. He collected the rents weekly, had the power to eject the women but refused, yet received nothing of their earn- ings other than came from their greater ability to pay the rents. When pressed by complaints of disturbed neighbors, he sometimes •endeavored to persuade his tenants to be more orderly. And a conviction was adjudged ill on the allegation that he " unlaw- fully did keep and maintain a certain common bawdy-house," &c. Said Pollock, C. B. : " 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." There was no distinct intima- tion that the defendant could be held under any other form of the indictment, though the learned judge said : " Whatever of- fence against morality or law he may have committed, he did not keep a disorderly house." ^ Now, — § 1096. As to which. ^ — If the English judges were as little informed on the criminal law as most of those American ones who sit in the shadows of our commercial cities, this eclipse of the judicial understanding would not be remarkable. But it is not easily accounted for in them. " He had no power," it was said, " 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." No, he was satisfied to let the opening and shutting of the door be done by the women ; while he provided the door and the rooms to which it led, smiled on and encouraged their infamy, and every week took his agreed share of the profits ; 1 Reg. V. Stannard, Leigh & C. 349, Shenton, 3 Q. B. 449; Rich v. Basterfield, 354. Perhaps the most pertinent of the 4 C. B. 783 ; Gandy v. Jubber, 5 B. & S. cases referred to on behalf of the prose- 78 ; Todd v. Flight, 9 C. B. n. s. 377. Bnt cution is Rex v. Pedly, 1 A. & E. 822. he is not punishable where the nuisance, See ante, § 1090, 1091. And see, for the like the keeping of a house for bawdry, English doctrine on this subject, 1 Russ. is the entire act of his lessee, whom he Crimes, 5th Eng. ed. by Prentice, 440- could restrain, but will not, unless he re- 442. As in the latter place stated, it ceives an increased rent on account of the seem.? to be that if one creates a perma- unlawful use. Now, according to Amer- nent nuisance on his land, — as, by the ican doctrine (ante, § 1086), the motive erection of a building which is or is likely of lucre is unimportant ; consequently the to become such, — then makes a lease question of what rent was paid, or whether of the land, he is punishable for the nui- or not the letting was gratuitous, could sance while in the possession of the lessee, not vary the case. Rex V. Pedly, supra. And see Russell v. 659 § 1096 NUISANCE. [book IX. only, being clearer-headed, he advised them to be more discreet in their violations of decency and law ! Here, therefore, was a joint operation, where each had his several part to perform ^ in carrying out one common object, — the keeping of a bawdy- house. And it is English law, as well as American, that he whose will contributes to an act done by another is, if a felony, to be regarded as a joint doer of it when done in his presence ; ^ or if, as in this nuisance, it is misdemeanor, he is a joint doer whether, present or absent.^ Thus, a woman, who has less capacity to penetrate another woman than this man had to open the door of the house, can, by joining her will to that of a man who has the capacity, commit rape.* The indictment may, if the pleader chooses, set out the offence according to the legal import of the facts, instead of their outward form.^ In the same way, a man whose part of the criminal transaction does not consist in passing upon the eligibility of candidates for admission to the bawdry may, in law, keep a bawdy-house. And this is part of a wider doc- trine extending through the entire law of crime. But the doctrine of the case in contemplation, carried into its full consequences, would overturn one .half of our criminal law. It is impossible, therefore, that it should be accepted in the United States. 1 See ante, § 630, 632, 638, 650. * Ante, § 689 (2) ; Vol. II. § U35. 2 Ante, § 647, 648. 6 Crim. Pro. I. § 332 : II. § 957. 8 Ante, § 685, 686. 660 CHAP. LXVI.J COMBUSTIBLE ARTICLES. § 1100 CHAPTER LXVI. COMBUSTIBLE ARTICLES. Consult, — for the indictment, Dir. & F. § 788-790; for the civil liability, Bishop Non-Con. Law, § 321, 417, 430, 456, 1029, 1030. § 1097. The Keeping of Q-unpowder — in large quantities in populous places, being a peril to the public safety, is indictable.^ § 1098. Dangerous. — It was by a majority of the court in New York held that the mere keeping of it near the dwellings of divers citizens, and near a public street, does not fill the measure of the mischief ; but to be a punishable nuisance, it must be in manner and place dangerous.^ The Tennessee Court adjudged a powder magazine, in which large quanties of gunpowder are stored, to be, when in a populous part of a city, jper se a public nuisance.' § 1099. Kept before Houses built. — It seems to be the doctrine of an old case, following a rule in offensive trades,* that if the place in which the gunpowder is kept was used for the purpose before dwelling-houses were built in the neighborhood, it is not indictable.^ Considbring that it is a necessary article, which must be in store somewhere, perhaps this doctrine is just in modern law ; yet the question should be examined in connection with related ones, the result whereof will probably be some modi- fications of the doctrine.® § 1100. Statutes and Municipal By-laws, — in some of the States, provide the rules on this subject.' 1 Ante, § 531 (2) ; Bradley v. P. 56 Casks of Gunpowder, Thacher Crim. Cas. Barb. 72. And see Wier's Appeal, 74 14 ; Wier's Appeal, 74 Pa. 230. Pa. 230. •• Post, § 1139-1141. " P. V. Sands, 1 Johns. 78, 3 Am. D. 296. » Anonymous, 12 Mod. 342. ' Cheatham v. Shearon, 1 Swan, Tenn. ' See further, on this subject, post, 213. See also Williams v. East India § 1139, note. And see ante, § 1078 a. Company, 3 East, 192, 201 ; Trueman v. ' Williams v. Augusta, 4 Ga. 509. 661 S 1102 NUISANCE. [book IX. CHAPTER LXVII. COMMON SCOLD. Consult, — for the pleading, practice, and evidence, Crim. Pro. II. § 199-201; Dir. & F. § 791, 792. § 1101. Nature of Offence. — A common scold is an indictable common-law nuisance,^ — a doctrine derived by us from the ■ law of Bngland.2 The offence is generally regarded as con- fined to the female sex,^ but this probably has not been directly adjudged.* § 1102. 1. Defined. — The decisions are not suiBciently numerous to enable one to define this offence with absolute accuracy in its entire outline. But it is not far amiss to say that a common scold is a woman who, by the practice of frequent scolding, dis- turbs the repose of the neighborhood. 2. How many Instances. — We shall in the second Tolume ^ see that common barratry requires, for one of its elements, at least three repetitions of the thing ; whether it is the same with the offence of common scold is uncertain on the authorities. On principle, the same rule appears applicable, with perhaps this small difference, that as a single act of barratry is more injurious than one of scolding, possibly there might be required a greater number of repetitions of the scolding than of the barratry. Yet almost the only light we have on the question is a dictum by Buller, J., who said : " In the case of a common scold, it is not necessary to prove the particular expressions used ; it is suflicient to prove generally that she is always scolding." * 1 Ante, § 540 (6) ; 4 Bl. Com. 168 ; 1 use of their tongue, it is enough to say Hawk. P. C. Cnrw. ed. p. 693, 695 ; 1 that the common law, which is the ex- Euss. Crimes, 3d Eng. ed. 327. pressed wisdom of ages, adjudges that it 2 Jamesu. C. 12 S. & R. 220; U. S. u. is not unreasonable." p. 246. EoyaU, 3 Cranch C. 0. 620 ; C. v. Mohn, » 4 Bl. Com. 169 ; 1 Russ. Crimes, 5th 52 Pa. 243, 91 Am. D. 153. Contra, as Eng. ed. by Prentice, 438. to Pennsylvania, but since overruled. C. * And see post, § 1105 (2). V. Hutchinson, 3 Am. Law Reg. 113. In ^ Vol. II. § 65. C. V. Mohn, supra. Woodward, C. J. said : ^ J' Anson v. Stuart, 1 T. R. 748, 754. "As to the unreasonableness of holding And see Reg. v, Foxby, 6 Mod. 11. women liable to punishment for a too free 662 CHAP. LXVII.] COMMON SCOLD. § 1105 § 1103. 1. Anger — is not necessary in this offence.^ But — 2. " Common Scold." — The indictment charges that the woman is a common scold ; and no other words, such as that she is a common slanderer, will do.^ § 1104. Misdemeanor — Punishment. — This offence is misde- meanor. The punishment, under the English common law, is hy the ducking-stool ; ^ our courts substitute fine and imprisonment.* § 1105. 1. Statutes — in some of our States have affirmed this common-law offence, or created a new one of a like kind. Thus,— 2. Common Railers and Brawlers. — A Massachusetts statute makes " common railers and brawlers " punishable.^ And loud outcries in altercations in the defendant's own house, repeated several times each week and attracting to it crowds, and disturb- ing the neighborhood, were held to justify a conviction. In this instance, the offender was a man.^ 1 IT. S. V. Royall, 3 Cranch C. C. 620. preasions in the heat of an altercation ^ Reg. c. Foxby, 6 Mod. 11. suddenly arising with persons with whom 8 Ante, § 943 (2) ; 1 Hawk. P. C. Curw. he came in contact, and these expressions ed. p. 695, § 14 ; Reg. v. Foxby, 6 Mod. aimed at the party with whom he was in 11. altercation,' were properly regarded as ♦ Ante, §943(2); James u.C. 12 S.&R. furnishing eridence against him if they 220 ; IT. S. V. Royall, 3 Cranch C. C. 620. were frequent and habitual, and the lan- ' Gen. Stats, c. 165, § 28. gnage so immoderate and vituperative 6 C. V. Foley, 99 Mass. 497, Hoar, J. and uttered so freely, publicly, and con- observing : " If the defendant in his own tinuously, as to disturb the peace of the dwelling-house was in the habit of using neighhorhood. The evidence tended to loud and violent language, consisting of show that he had no control over his tem- opprobrious epithets and exclamations, in per or his tongue, and thereby made him- such a manner as to attract crowds of per- self a nuisance. The merits of his quarrels sons passing and living in the neighbor- had little to do with the question before hood, on Sundays as well as other days, the jury, which chiefly concerned his man- and in the night as well as in the daytime, ner of conducting them." p. 499. By he was a disturber of the public peace by how much less the defendant might have railing and brawling. And ' occasions incurred guilt, the opinion cautiously does when he was betrayed into violent ex- not attempt to show. 663 I 1106 NUISANCE. [book IX, CHAPTER LXVIII. DISORDERLY HOUSE. § 1105O. Introduction. 1106-1112. The Offence in General. 1113-1117. Tippling-shops. 1118. Disorderly Inns. 1119-1121. Houses wherein Offences committed. Consult, —for the pleading, practice, and evidence, Grim. Pro. II. § 272-283; Dii. & F. § 793-795. § 1105 a. How Chapter divided. — We shall consider this sub- ject as to, I. The Offence in General ; II. Tippling-shops ; III. Disorderly Inns ; IV. Houses wherein Offences are committed. I. The Offence in Creneral. §1106. 1. The Term " Disorderly House " 1 — is of wide meaning. It includes bawdy-houses, ^ common gaming-houses,^ and other places of the like character, to which people promiscuously resort for purposes injurious to the public morals,* or health,* or con- venience, or safety ; ^ all of which are indictable as public nuisances. Still, not every nuisance in the name whereof oc- curs the word " house " is a disorderly house ; as, one kept in a way to become punishable from its filthiness ^ evidently is not. Consequently, — 2. Restricted Meaning. — It is better in our legal classification and language, because more definite and precise, to restrict, as some do, this term to denote only a house or other like place in which people abide, or to which they tesort, disturbing the repose of the neighborhood. In this sense, it is a violation of what in > Ante, § 504 (2). « Ante, § 495 et seq. 2 Ante, § 1082 a et seq. ; U. S. v. Gray, « Ante, § 489 et seq. 2 Cranch C. C. 675 ; C. w, Stewart, 1 S. & « Ante, § 530 et seq. H. 342. 7 S. u. Pnrse, 4 McCord, 472. 8 Post, § 1135 et seq. ; Cheek v. C. 79 Ky. 359. 664 CHAP. LXVIII.J DISORDERLY HOUSE. § IHQ an earlier chapter is called the public order and tranquillity .1 Still properly mere bawdry, for example, is disorder. Thus, — § 1107. 1. Disorder of Bawdry. — An indictment charging the defendant with keeping " a certain common, ill-governed, and disorderly house," specifying acts which show it to be a bawdy- house, is good, and is sustained by proof of bawdry committed within the house, though nothing disorderly appears from with- out.2 And as we have seen,^ — 2. Single Room. — It is Sufficient that the disorder extends to but a single room.* So, — 3. Disorder Outside. — It may be adequate though not within the walls of the house, but around it outside.^ § 1108. Reputation or Pact. — The house need not be reputed disorderly ; it must be so in fact, and no more is required.^ § 1109. Injure Others than Inmates. — Though the disturbance need not be perceptible to the eye or hearing from without,' yet a house so kept that only its inmates are liable to be disturbed by it, or corrupted in their morals, or the like,^ is not in law a disorderly house.^ It is subject in this to the same rules aS other nuisances.^" It must in some way tend to the disturbance or otherwise to the injury of the public, not simply the inmates or one or more " neighbors." ^^ On the Other hand, — § 1110. A Disorderly Inn, — to be mentioned again further on,^^ follows a somewhat different rule. So also would any other house within the same reason. It is distinguished from a private dwell- ing by this, — that " as all have a right to go there and be enter- tained, they are not to be annoyed there by disorder. And if the innkeeper permits it, he is subject to be indicted as for a nuis- ance." ^3 So that the inmates of the inn, unlike those of a private house, are the public within the rule we are considering. And — " Ante, § 533 et seq. 7 Ante, § 1107 (1). 2 Reg. V. Eice, liaw Rep. 1 C. C. 21 ; « Ante, § 1077 (2). Thatcher v. S. 48 Ark. 60 ; Crim. Pro. II. » Hunter v. C. 2 S. & R. 298 ; S. v. § 106 ; ante, § 1087. And see post, § 1109, I^athews, 2 Dev. & Bat. 424. See U. S. nil ; Beard v. S. 71 Md. 275, 17 Am. St. v. Jourdine, 4 Cranch C. C. 338 ; ante, 536. § 1106, 1107. » Ante, §, 1085 (2). '« Ante, § 1077 (2). * S. V. Garity, 46 N. H. 61 ; C. a. Bui- " Hunter v. C. supra; Mains v. S. 42 man, 118 Mass. 456, 19 Am. R. 469; Beard Ind. 327, 13 Am. R. 364; C. v. Hopkins, V. S. supra. 133 Mass. 381, 43 Am. R. 527. 6 S. V. Webb, 25 Iowa, 235. " Post, § 1118. « S. V. Foley, 45 N. H. 466 ; S. o. Max- i' S. v. Mathews, 2 Dev. & Bat. 424. well, 33 Conn. 259 ; ante, § 1088. See U. S. u. Columbus, 5 Cranch C. C. 304. 665 S 1114 NUISANCE. [book IX.' § 1111. Open House. — If the doors of a house are practically open to the public, alluring the young and the unwary into it, to indulge in or witness what is corrupting to their virtue or sobriety or general good morals, it will not excuse the keeper that the pub- lic are not disturbed. He should at least see that the doors are kept shut to the outer world if he permits corrupting practices within.i § 1112. Lucre —need not be the motive for the keeping." II. Tippling-shops. § 1113. General. — Aside from statutory inhibitions, it is not a crime to sell intoxicating liquor.^ But to maintain an open house or shop and therein by sales or otherwise to distribute, to persons drawn or congregated there, intoxicating liquor stimulating them to make disturbance, or commit acts of immorality, or in any manner violate public decency and decorum, is to keep a dis- orderly house, rendering the keeper indictable.* And though he has a license for the selling, it will not protect him on this charge.® § 1114. 1. The Nature and Extent — of the permitted disorder to render the keeper indictable, must necessarily depend largely on varying complications of facts. Thus, — 2. Lord's Day. — Conduct on Sundays, may make the place dis- 1 See ante, § 1106, 1107. in which Cranch, C. J. said : " If the de- 2 S. 0. Bailey, 1 Fost. N. H. 343 ; S. v. fendant had the most favorable license Williams, 1 Vi'oom, 102; ante, § 1086. which the law allows, it could not have See S. V. Bertheol, 6 Blackf. 474, 39 Am. justified him in suffering idle, disorderly, D. 442. suspicious, and drunken persons to meet 8 Ante, § 505. together in and frequent his house ; nor * S. V. Thornton, Busbee, 252 ; Bloom- to suffer inhabitants of this city, not being huff V. S. 8 Blackf. 205 ; Smith a. C. 6 B, lodgers or boarders in his house, to remain Monr. 21 ; Wilson u. C. 12 B. Monr. 2 ; there drinking and tippling, for his lucre S. 0. Mullikin, 8 Blackf. 260 ; S. v. Ber- and gain, at any time ; and especially on theol, 6 Blackf. 474, 39 Am. T>. 442 ; U. S. Sundays." 8. p. S. v. Mullikin, 8 Blackf. V. Coulter, 1 Cranch C. C. 203 ; U. S. v. 260, the court saying : " The license to Prout, 1 Cranch C. C. 203 ; U. S. v. Lind- retail is not in the eye of the law a license say, 1 Cranch C, C. 245 ; U. S. o. Colum- to keep a nuisance." And in Delaware it bus, 5 Cranch C. C. 304 ; XT. S. v. Bede, 5 was laid down that if one selling liquor in Cranch C. C. 305, note ; U. S. o. Benner, his store, whether lawfully or unlawfully, 5 Cranch C. C. 347 ; XJ. S. o. Elder, 4 permits persons to collect therein or on Cranch C. C. 507 ; Stephens v. Watson, 1 the sidewalk in crowds, and under the Salk. 45 ; S. v. Burchinal, 4 Harring. Del. influence of the liquor to be noisy and 572 ; ante, § 318 (2). See the civil case of riotous, and cursing and swearing, to the Walker v. Brewster, Law Eep. 5 Eq. 25. annoyance of the neighborhood, he keeps And see post, § 1146, note. a disorderly house. S. v. Buckley, 5 Har- « XJ. S. V. Elder, 4 Cranch C. C. 507, ring. Del, 508. 666 CHAP. LXTIII.] DISORDERLY HOUSE. § 1117 orderly while the same on other days would not ; ^ because the Sabbath is for religious observances, for quiet, and for repose. And — 3. During Slavery — it was particularly reprehensible to draw together in this way congregations of slaves.^ So, — § 1115. Dissolute Persons — Outside Disturbances. — A liquor- shop around and within which, at night and in the day, dissolute persons are permitted to be drinking, tippling, carousing, swear- ing, hallooing, and the like, located in a town, has been held to be at the common law an indictable disorderly house.^ And it is the same though the proprietor of the shop has a license to sell the liquor.* It is the same also where the disturbances are alto- gether outside of the proprietor's premises, if they are such as he might know would probably follow his acts.^ Again, — . § 1116. Differing with Location. — It is also to be considered whether many or few people reside near, whether the house is on or off a highway, and the like.^ Indeed, the question of indict- ability may depend on complications of facts and surroundings which cannot be analyzed in advance, while yet the skilful prac- titioner will have no difficulty in dealing with them.'' § 1117. statutory Tippiing-shops — are treated of in another connection.^ Our constitutions do not restrain the legislative power from making it an indictable nuisance to use one's premises for the- unlicensed selling of intoxicating drinks.^ But the eluci- dations given in the other place need not here be repeated.^" 1 U. S. V. Columbus, 5 Cranch C. C. 1 Cranch C. C. 203 ; U. S. v. Coulter, 1 304 ; U. S. V. Prout, 1 Cranch C. C. 203 ; Cranch C. C. 203 ; U. S. v. Lindsay, 1 U. S. V. Elder, 4 Cranch C. C. 507 ; Hall Cranch C. C. 245 ; U. S. v. Elder, 4 Cranch V. S. 4 Harring. Del. 132, 145. And see C. C. 507 ; U. S. v. Columbus, 5 Cranch S. V. Williams, 1 Vroom, 102. C. C. 304; U. S. v. Bede, 5 Cranch C. C. 2 TJ. S. V. Prout, 1 Cranch C. C. 203 ; 305, note; U. S. v. Benuer, 5 Cranch C. C. Smith f. C. 6 B. Monr. 21 ; Wilson v. C. 347. 12 B. Monr. 2. See also S. v. Boyce, 10 6 Ante, § 1077 (2), 1078, and the sec- Ire. 536. tions there referred to, and the cases there 8 S. V. Berthed, 6 Blackf. 474, 39 Am. cited; also, ante, § 1109-1111. D. 442. It is, perceived that this is an ' And see post, § 1119-1121. early Indiana case; later there are no ^ Stat. Crimes, § 1064-1070. common-law offences in this State. Ante, ' McLaughlin v. S. 45 Ind. 338 ; C. v. § 35. Howe, 13 Gray, 26 ; S. o. Paul, 5 R. I. * S. V. Mullikin, 8BIaekf.260; Bloom- 185 ; §. v. Keeran, 5 R. I. 497. huff V. S. 8 Blackf. 205. i" And see C. v. Gallagher, 1 Allen, 6 S. V. Thornton, Busbee, 252. And 592 ; Wallace v. S. 5 Ind. 555 ; Robinson see a series of cases decided in the Dis- v. C. 6 Dana, 287 ; S. v. Hopkins, 5 B. I. trict of Columbia ; namely, U. S. v. Prout, 53 ; S. v. Knott, 5 R. L 293. 667 § 1119 NUISANCE. [book IX. III. Disorderly Inns. § 1118. General. — These are a not uncommon form of disorderly- house.^ " The keeper of an inn, tavern, or house of entertain- ment, who conducts himself in such a manner — ^ either in the entertainment of travellers or other persons, or in permitting improper assemblages in or about his house on Sunday — as pro- fanes the Lord's Day, or violates public order and decorum, or shocks the religious sense or feelings of the neighborhood, is guilty of a nuisance at common law ; and may be indicted, fined, imprisoned, and his house suppressed ; according to the aggra- vated nature or enormity of his offence." ^ A peculiarity in the law of disorderly houses of this class is noticed in a preceding section.^ IV. Rouses wherein Offences are committed. § 1119. The Doctrine — of this sub-title appears first to have been developed in the Kentucky Court. It is that a house or other like place for the habitual commission of petty offences, such as those punishable by fine, is a disorderly house, however well in other particulars conducted. The original case at the foundation of this doctrine was an indictment against one who kept an estab- lishment for the common selling of liquor to slaves, the particu- lar sales being forbidden by law. " The habitual perpetration," said Ewing, C. J., " of the prohibited offences, in a house kept for the purpose, constitutes the house a public nuisance, as it tends in a greater degree to the spread of the evil which was intended to be prohibited by these enactments. There is a specific penalty for fornication and adultery ; yet it is an offence, and a much higher grade of offence, to keep a bawdy-house, or a house where those practices are indulged. And though the single offence may be punished by a specific fine, the keeping of a house where those offences are habitually encouraged and indulged, is an offence of a much higher grade, and is punishable as such by an indictment at common law." * 1 Ante, § 504 (2), 505. As to what is Dev. & Bat. 424 ; Bloomhuffi v. S. 8 Blackf. an inn, see Stat. Crimes, § 297. As to an 205. innkeeper's refusing to entertain travel- ' Ante, § 1110. lers, see ante, § 532. < Smith v. C. 6 B. Monr. 21, 23; Wil- ^ Booth, C. J. in Hall v. S. 4 Harring. son v. C. 12 B. Monr. 2. Del. 132, 145. And see S. v. Mathews, 2 668 CHAP. LXVIII.] DISORDERLY HOUSE. § 1121 § 1120. 1. The Principle. — While in form this doctrine appears new, in substance it is as old as the law itself. Where one draws together persons to commit with one another or with him petty offences, and provides the place and the occasion, and those dwelling in the neighborhood are either silently or by proclama- tion allured to it, he establishes a " disorder," equal to anything known in former days as a " disorderly hou^e." Such a house disturbs the neighborhood, corrupts the morals of the young, im- pairs the governmental repose, and in other respects is an evil of the same sort with the more familiar forms of disorderly house. And whether the people assemble in a mass, or come one after another, only a single one or two. presenting themselves at a time, the effect is the same, the offender's guilt is the same. On this principle proceed many determinations in our books.^ And — 2. Judicially affirmed. — This doctrine, with this application of it, has been expressly affirmed in New Jersey .^ But — § 1121. 1. The Individual Acts — done in the house, to bring a case within this principle, must be either indictable or in some other sense unlawful. Therefore, — 2. Delivery of Pregnant Women. — In England, an indictment was quashed which alleged that the defendant converted a house into a hospital for taking in and delivering lewd, idle, and dis- orderly unmarried women, " whp, after their delivery, went away and deserted their children, whereby the children became charge- able to the parish." " By what law," asked Lord Mansfield,. " is it criminal to deliver a woman when she is with child ? " ' 1 And see particularly Vol. II. § 965. ' Rex v. McDonald, 3 Bur. 1645. 2 S. V. Williams, 1 Vroom, 102, 110; Meyer v. S. 13 Vroom, 145, 12 Vroom, 6. 669 § 1124 NUISANCE. [book IX. CHAPTER LXIX. EAVESDROPPING. Consult, — for the procedure, Grim. Pro. II. § 312, 313 ; Dir. & F. § 796, 797. §1122. 1. At Common Law — eavesdroppiiig is indictable, both in England and in our States.^ But — 2. Little used. — The prosecutions for it are rare. So that we have too few decisions to enable one to define it with absolute precision and certainty in all, its lines. Approximately, — 3. Defined. — Eavesdropping is the common nuisance of hanging about the dwelling-house of another, hearing tattle, and repeating it to the disquiet of the neighborhood. Or, — 4. More fully described. — Blackstone, whose brief exposition is as comprehensive as anything on the subject in our boOks, says : " Eavesdroppers, or such as listen under walls or windows or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance, and punishable at the court leet ; or are indictable at the sessions, and punishable by fine and finding sureties for their good behav- ior." ^ It was said in one of our courts that the offence consists, not in peeping or looking, which is not indictable, but in listening.^ § 1123. Listening about Grand Jury Room. — It was in Tennessee adjudged that one who secretly and stealthily comes near the room of the grand jury, while in the performance of their duties, to overhear what they say and do, commits thereby eavesdropping.* § 1124. In Conclusion, — the paucity of decisions upon this of- fence, and the infrequency of occasions for its prosecution, render further attempts at its elucidation undesirable. It never occu- pied much space in the law, and it has nearly faded from the legal horizon. 1 Ante, § 540 (5) ; S. v. Williams, 2 ' C. w. Lovett, 4 Pa. Law Jour. Rep. Tenn. 108. 5, 6. 2 4 Bl. Com. 168 ; 1 Hawk. P. C. Curw. * S. v. Pennington, 3 Head, 299, 75 ed. p. 695 ; 1 Russ. Crimes, 3d Eng. ed. Am. D. 771. 327; 1 Gab. Crim. Law, 319. And see ante, § 544-549. 670 CHAP, LXX.] EXPOSURE OP PERSON. § 1126 CHAPTER LXX. EXPOSURE OP PERSON. Consult, — for the pleading, evidence, and practice, Crim. Pro. II. § 351-356 ; Dir. & F. § 802-804. § 1125. 1. Defined. — Exposure of the person is any such inten- tional exhibition, in a public place, of the naked human body as is calculated to shock the feelings of chastity in those who wit- ness it, or to corrupt their morals. 2. Viewed as Public Show. — As judicially observed: "Every public show and exhibition which outrages decency, shocks hu- manity, or is contrary to good morals, is punishable at common law." ^ Of which sort is exposure of the person.^ § 1126. 1. Distinguished from Other Nuisances. — This nuisance differs from most others in that while they are adapted to create a permanent inconvenience or injury in the place where they are, this one is temporary, coming and going at once. Therefore, — 2. Seen. — Contrary to the rule for most nuisances, — for ex- ample, the obstruction of a highway, — this one, being momen- tary and fleeting, and addressed to the eye, is not committed when not seen, — a proposition not possible to be tested by the adjudications ; for only when it is seen, can there be witnesses to bring it to the attention of a court. And we have a case wherein the element that it was not seen was in judicial dicta deemed unimportant.^ But this case does not subvert another proposi- tion ; namely, that the fact of its being seen, or of the numbers seeing, or of the numbers present and how many did or did not see, is often or commonly important on the question of guilt. To look at some of the cases, — 1 Knowles v. S. 3 Day, 103, 108. is indictable at common law, for whatever 2 In S. V. Rose, 32 Mo. 560, 561, Bay, outrages decency and is injurious to the J. observed: "The indictment in this case public morals is a misdemeanor at com- does not allege, in the words of the statute, mon law, and punishable as such." that the act of public indecency was open ' Van Houten ». S. 17 Vroora, 16, 50 and notorious, and is therefore not good Am. K. 397. under the statute : but the offence charged 671 I 1128 ' NUISANCE. [BOOK IZ. § 1127. Numbers — Seeing — Circumstances. — The Irish Court of Criminal Appeal held it not indictable for a man to expose his person to one woman, though in a public way, unless there were other persons in a situation to see him ; but the latter circum- stance would complete the offence, even though they did not in fact witness the exhibition.^ In an English case, it appearing that a man and woman openly committed fornication on a com- mon beside a public way, and one passer-by saw them, but there was no evidence that there were, or were not, others in situations to see, the court was divided on the question whether the offence was complete, and no judgment was given.^ The private exhibi- tion to one person, the authorities agree, constitutes no offence.^ But it has been adjudged sufficient in allegation of the offence to say that the ' defendant exposed his person in " public view in a public place;" the court deeming it "not necessary to the constitu- tion of the criminal act that the disgusting exhibition should have been actually seen by the public. It is enough if the circufn- stances under which it was obtruded were such as to render it probable that it would be publicly seen ; thereby endangering a shock to modest feeling, and manifesting a contempt for the laws of decency." * Moreover, — § 1128. 1. Public Place. — The exhibition must be, certainly according to the English doctrine, in a public plaee.^ We have likewise other offences, such as the common-law affray ^ and some forms of statutory gaming, which can be committed only where the place is public. A s to — 2. What is a Public Place. — In another connection '' we saw something of this, particularly with reference to gaming. Yet not unreasonably the rule may perhaps, in a degree not large, vary with the offence. In England it has been held that a public omnibus is a public place for the commission of tlie indecency we are considering.^ So may be a urinal on a public foot-path, visi- 1 Beg. V. Farrell, 9 Cox C. C. 446. ion by Gaston, J. See also S. v. Millard, And see ante, § 244 (2). 18 Vt. 574, 46 Am. D. 170. 2 Reg. .,. Elliot, Leigh & C. 103. 6 Reg. v. Orchard, 3 Cox C. C. 248, 20 'See, among other cases, Reg. v. Eng. L. & Eq. 598 ; Reg. u. Holmes, Dears. Webb, 1 Den. C. C. 338, 2 Car. & K. 207, 3 Car. & K. 360, 20 Eng. L. & Eq. 933, Temp. & M. 23, 13 Jur. 42, 18 Law 597, 22 Law J. N. s. M. C. 122, 17 Jnr. J. N. s. M. C. 39; Reg. v. Watson, 20 562; Reg. «. Thallman, Leigh & C. 326. Eng. L. & Eq. 599, 2 Cox C. C. 376. « Vol. II. § 1, 2. * S. V. Roper, 1 Dev. & Bat. 208, opin- 7 Stat. Crimes, § 298, 878. 672 8 Reg. V. Holmes, supra. CHAP. LXX.] EXPOSURE OP PERSON. § 1129 ble from the windows of dwelling-houses fourteen and a half feet away.i And where the exposure was from the roof of a house, in a position to be seen and seen in fact, from the back windows of several other houses, yet not from the street, the place was held to be public within this branch of the law.^ And any place where people are assembled is for this purpose public.'* §1129. With us. — The foregoing cases are English. In New York, six women in a room in a bawdy-house exposed their per- sons for hire to five men, the doors, windows, and shutters being closed, and it was held that thereby they committed tiiis offence. The place was deemed public* There are American cases per- haps indicating that neither the place need be public, nor neces- sarily the exposure be to more persons than one, though doubtless something more than the mere indecent exhibition would in such a case be required. Thus, it is in Vermont made punishable by statute "if any man or woman, married or unmarried, shall be guilty of open and gross lewdness and lascivious behavior ; " and thereupon an indecent exposure, by a man, of his person to a woman whom he solicited to acts of sexual intercourse, persisting in the solicitation in spite of her denial and remonstrance, was held to be within the inhibition. The learned judge who deliv- ered the opinion said : " I am not prepared to say that the con- duct of the respondent \(rould not have been indictable at common law, notwithstanding. the intimation to the contrary in the case of 1 Reg. V. Harris, Law Rep. 1 C. C. 282. supra, before the Central Crimiual Court, Said Bovill, C. J. the other judges concur- a urinal situated in an open marliet, with ring : " If the judge was bound to tell the boxes or divisions for the convenience of jury that a urinal could not be such a the public, was deemed not to be a public place, of course the conviction was wrong place at which this offence could be com- and must be set aside, but not otherwi.se. mitted; but this ruling seemed not _ to Now, it appears that the urinal was open meet with favor in Reg. u. Harris, before to the public; that it was in Hyde Park the Court of Criminal Appeal, upon a public foot-path ; and that the en- ^ Reg. v. Thallman, supra. The re- trance to it was from that foot-path. I porter observes: "This case somewhat think it was just as much a public plaxie, resembles Rex u. Crunden, 2 Camp. 89, with respect to that portion of the public in which it was held that it is an indict- who use it, as a public higliway. Every able offence for a man to undress himself place must be more or less screened from on the beach, and to bathe in the sea, ■ view on some side, and the size of an en- near inhabited houses, from which he closure does not necessarily affect the may be distinctly seen." p. 329, note, question whether it is, a public place or Of a like sort with Rex o. Crunden, is not. We are onlybound to decide whether Reg. v. Reed, 12 Cox C. C. 1, 2 Eng. this could be a public place. But I think Rep. 157. And see post, § 1131. it clearly was so; and just the sort of ' Reg. v. Wellard, 14 Q. B. D. 63, 15 public place to which the law ought to be Cox C. C. 559. applied " p. 283. In Reg. v. Orchard, * P. e. Bixby, 4 Hun, 636. VOL. I.— 43 673 § 1132 NUISANCE. [book IX. Fowler v. The State.^ There is a precedent of an indictment against one Bennett, in 2 Chitty, 41, on which he was convicted, which would hare been sustained by the same evidence produced against this respondent. Of the soundness of the decision in Commonwealth v. Catlin ^ we have nothing to say, and only re^ mark that in that case the lewdness was designed to be private, and it was rather accidental that the offenders were discovered ; and in this particular, the case is essentially different from the one before us," ^ And in Pennsylvania it was decided that the exhibition of an obscene print need not be public to be indictable ; for " an offence may be punishable if in its nature and by its ex- ample it tends to the corruption of morals, although it be not committed in public." * § 1130. In Principle, — this offence being a nuisance, punishable because injurious to the public, the place should as a general rule be public, or the act will be only a private nuisance. Yet a place not permanently public may be so for the occasion.^ Undoubt- edly private attempts to corrupt the morals of the young, of even of the old, are serious offences against the moral law. But our common law has not made them indictable, so that if they are now to be made so it can be only by the legislative mandate. § 1181. Custom of Expoaure. — We have seen ^ that the right to carry on a public nuisance cannot be acquired by usage. If there has always been open bathing in a place, yet if it is upon a public footway frequented by females, men cannot innocently make there the exposure of their nude bodies necessary for the bath, unpro- tected by screen or covering.'^ And where one was indicted for nudely bathing in the sea, observable from windows of dwelling- houses, he was not permitted the defence that before the houses were built it was a bathing-place for whole regiments of soldiers. " Whatever place," said McDonald, C. B., « becomes the habi- tation of civilized man, there the laws of decency must be enforced." ^ § 1182. How Much ana What Exposed. — The exposure must be 1 Fowler v. S. 5 Day, 81. » ^nte, § 1078 a. ^ C. V. Catlin, 1 Mass. 8. 7 Reg. „. Reed, 12 Cox C. C. 1, 2 Eng. ' S. V. Millard, 18 Vt. 574, 46 Am. D. Kep. 157. 170 opinion by Williams, C. J. 8 Rex „. Crunden, 2 Camp. 89, 1 Euss. ^ C. «. Sharpless, 2 S. & E. 91, 102, 7 Crimes, 3d Eng. ed. 326 ; s. c. nom. Eex 5 Z: .^ ■ . "• Cranden, 1 Gab. Crim. Law, 744, 745. ' Stat. Crimea, § 298. 674 CHAP. LXX.] EXPOSURE OP PERSON. § 1134 of those parts of the human body which cannot properly be ex- hibited in public.^ That of the private member, which is the ordinary case, suffices ; equally, therefore, does that of the entire naked- body.^ It is believed that there may be an indictable ex- posure which will not include the distinctively private part, but in mere authority this proposition does not appear to be conclusive. In an old case, an indictment, says the report, " for running in the common way, naked down to the waist, the defendant being a woman," was quashed ; the recorded observation of the court be- ing that "nothing appears immodest or unlawful." ^ But we should hesitate to say that a common woman could go thus through a principal street in one of our cities without subject- ing herself to this prosecution.* § 1133. Intent. — Obviously this offence is not committed where the mind is pure. One in a place however public, having by care- ful looking satisfied himself that no person was in a position to see him, might innocently do what would constitute an exposure if people were present. Then if in fact he was seen he would not be a subject for punishment. We have a case which holds that the indictment must allege an evil purpose, and it must be proved to the jury.^ How the authorities are on this sort of question is explained elsewhere.^ § 1134. " Public Indecency." — A statute having made indictable " notorious lewdness or other public indecency," the latter term was adjudged too indefinite to 'create an offence outside the com- mon-law definings.^ 1 Tucker v. S. 28 Tex. Ap. 541. court was of the same opinion," and 2 Rex V. Sedley, 17 How. St. Tr. 155, quashed the indictment, s. c. nom. Rex note ; s. c. nom. Rex v. Sidley, 1 Sid. 1 68 ; v. Gallard, 1 Sess. Cas. 231. I apprehend s. c. nom. Sydlyes Case, 1 Keh. 620; Rex that at the present day, a court sliould V. Crunden, 2 Camp. 89. apply, not the outward shell of the old 8 Rex V. Gallard, W. Kel. 163.- rule to subvert the modern manners, but « So it seems that according to the old its inner substance for sustaining and books a man is not punishable for passing perfecting the new. Such, in many in- throngh a thronged public way, stripped stances, is the proper use to be made merely to the waist. Rex v. Tallard, 2 of cases from the old books, decided Barn. 328, 345. The counsel for the defend- when modes and fashions of life now ant argued "that a man's being stripped antiquated prevailed, from the middle upwards could be no in- ' Miller v. P. 5 Barb. 203. decent sight. If it was so, the legi-slature « Crim. Pro. II. § 351, 352 ; Dir. & P. would not have ordered that men shall be § 802-804. whipped in that manner, as they have ' Hanna, J. in McJunkins v.S. 10 Ind. done by several acts of Parliament. The 140, 145. ' 675 §1135 NUISANCE. [book IX. CHitPTBR LXXI. GAMING-HOUSE. Consult, — for the pleadings practice, and evidence, Crim. Pro. II. § 487-494 ; Dir. & F. § 805-809. § 1135. 1. Defined. — A common gaming-house is a species of disorderly house, the disorder consisting of its allurements tend- ing to evil. 2. Indictable and why. — Simple gaming, with no objectionable accompaniments, is not ordinarily punishable at the common law; but in most of our States there are statutes making it an offence either generally or in specified circumstances.^ Yet even at the common law a common gaming-house may be a public nuisance, being ranked as a disorderly house, and the keeper indictable.^ The reason is that persons attracted to it, especially youths, are there lured to vice.^ 1 Stat. Crimes, § 846 et seq. 2 Ante, § 504 (2) ; BloomhufC v. S. 8 Blackf. 205 ; S. v. Haines, 30 Me. 65 ; U. S. 17. Dixon, 4 Cranch 0. C. 107; S. m. Doon, E. M. Charl. 1 ; Barada v. S. 13 Mo. 94 ; Vanderworker v. S. 8 Eng. 700 ; Rex v. Medlor, 2 Show. 36 ; S. v. Savannah, T. U. P. Charl. 235, 4 Am. D. 708 ; Rex V. Dixon, 10 Mod. 335, 336; P. v. Jack- son, 3 Denio, 101, 45 Am. D. 449; West V. C. 3 J. J. Mar. 641 ; P. v. Sergeant, 8 Cow. 139 ; C. V. TiltoD, 8 Met. 232, 235 ; P: V. Eaynes, 3 Cah 366. The same has been held, on great'consideration, in Scot- land. GreenhufE's Case, 2 Swinton, 236. » 1 Hawk. P. C. Cnrw. ed. p. 693, § 6 ; Vanderworker v. S. 8 Eng. 700 ; S. v. Doon, R. M. Charl. 1 ; U. S. v. Dixon, 4 Cranch C. C. 107 ; C. v. Stahl, 7 Allen, 304 ; Lord v. S. 16 N. H. 325^ 41 Am. D. 729. In an old case we read : " It is a public nuisance, not for the unlawful- ness of the thing itself, but for keeping houses to decoy idle persons and appren- tices, and consequently it becomes a means 676 of debauching the youth of the nation ; it must be done for lucre's sake [no, post, § 1137]; it must be done often, and not once only." Rex v. Medlor, 2 Show. 36. " It draws together evil-disposed persons ; encourages excessive gaming, idleness, cheating, and other corrupt practices ; and tends to public disorder." Bron- son, C. J. in P. v. Jackson, 3 Denio, 101. " Such a house is an encouragement to idleness, cheating, and other corrupt practices ; tends to produce public dis- order by congregating many people ; and to draw the young and unwary from the paths of virtue. A disorderly house is a nuisance, if the persons there assem- bled annoy the .neighborhood by loud noises, cursing, or swearing; a gaming- house is also a nuisance, if it hold out inducements and attractions to bring together persons in such numbers, or so often, as to make it injurious to the public, and dangerous to the neighbor- hood, by drawing the sober and indus- trious into habits of idleness and vice, CHAP. LXXI.] GAMING-HOUSE. §1137 § 1136. A Quiet Billiard-room and Bowling-alley, — without noise disturbing the neighborliood, appears to have been deemed in New York not a public nuisance.^ But the authorities cited to the last section show this not to be the general doctrine; for youth may be as effectually lured to vice by a noiseless process as by any other. A bowling-alley is as harmless as a billiard-table, yet a common one seems to be indictable. ^ § 1137. 1. Public. — A common gaming-house may be such though not open to all persons, but only to people generally .^ 2. Lucre. — The language of some of the cases implies that the house must be kept for lucre;* but we have seen* that by the- bet- ter doctrine it is not fessential in this class of offences. And — 3. Ownership. — It is immaterial whether the keeper of the house is the owner of the building or not.^ 4. The Extent of Gaming required — depends on familiar prin- ciples not much illustrated by the decisions.^ 6. Misdemeanor. — This offence is misdemeanor .8 6. Statutes — have largely regulated or forbidden this keeping of gaming-houses.^ They are commonly parts of a wider legisla- tion in restraint of gaming.^" and corrupting the young and unwary." Harrington, J. in S. v. Layman, 5 Har- ring. Del. 510. Bowling-alleys have been held to be a public nuisance " from their tendency to withdraw the young and in- considerate from any useful employment of their time, and to subject them to various temptations ; from their affording to the idle and dissolute encouragement to continue in their destructive courses. Clerks, apprentices, and others are in- duced, not only to appropriate to them hours which should be employed to in- crease their knowledge and reform their hearts, but too often to violate higher moral duties to obtain means to pay for the indulgence. Other bad habits are in such places often introduced or con- firmed." Shepley, C. J. in S. v. Haines, 30 Me. 65. 1 P. V. Sergeant, 8 Cow. 139. But see S. V. Layman, 5 Harring. Del. 510. 2 S. V. Haines, 30 Me. 65. But there seems to have been a statute on the sub- ject. S. V. Currier, 23 Me. 43. In New Jersey, a ten-pin alley in a populous vil- lage is not deemed per se a nuisance. S. V. Hall, 3 Vroom, 158. And see, as to bil- liards, 3 Chit. Crim. Law, 677. 3 Rice K. S. 10 Tex. 545; Lockhart v. S. 10 Tex. 275. 4 Rex V. Medlor, 2 Show. 36 ; ante, § 1135, note; S. v. Layman, 5 Harring. Del. 510. See S. v. Leighton, 3 Fost. N. H. 167 ; Bloomhuff v. S. 8 Blackf. 205 ; S. V. Haines, 30 Me. 65 ; C. v. Tilton, 8 Met. 232, 235. 6 Ante, § 1086, 1112. « S. V. Haines, 30 Me. 65. See S. v. Currier, 23 Me. 43. ' And see Armstrong v. S. 4 Blackf. 247. ' Ante, § 1078 6; S. w. Crummey, 17 Minn. 72 ; P. v. Raynes, 3 Cal. 366 ; Bu- ford 0. C. 14 B. Monr. 24. 8 Consult, for illustrations, Jenks «. Turpin, 13 Q. B. D. 505, 15 Cox C. C. 486 ; Campbell v. S. 55 Ala. 89 ; Robbins V. P. 95 111. 175 ; P. u. Cutler, 28 Hun, 465; P. V. Sponsler, 1 Dak. 289'; Cheek V. C. 79 Ky. 359 ; P. v. Goldman, 1 Idaho, N. s. 714. w Stat. Crimes, § 844-930. 677 §1138 NUISANCE. [book IX. CHAPTER LXXII. OFFENSIVE TRADES. Consult, — for the pleading, practice, and evidence, Crim. Pro. II. § 875-878; Dir. & F. § 827-831. For the private tort, and some related nuisances, Bishop Non-Con. Law, § 411-432. § 1138. 1. Defined. — An offensive trade is any business, whether of public benefit or not, whereby a common nuisance is created. 2. Indictable and Why. — The carrying on of such a trade in a populous place, however commendable it might be remote from habitations, is punishable if injurious to the public health,^ dis- turbing to the public convenience,^ or otherwise a public nuisance. Thus, — 3. Noise — Smell — Health. — It is such if the senses are offended by the smell,^ by the noise,* or by the smoke,^ though no disease is produced.^ 4. How many Persons — must be injufed or put to incon- venience, to render the nuisance indictable, we have already considered.'^ 1 Ante, § 489 et seq. 2 Ante, § 530 et seq. " Rex B. Neil, 2 Car. & P 485 ; Rex v. White, 1 Bur. 333 ; Rex v Pierce, 2 Show. 327; C. V. Brown, 13 Met. 365; S. v. Wetherall, 5 Barring Del. 487; Lipp- man u. South Bend, 84 Ind. 276 ; C. ». Perry, 139 Mass. 198. And see Aldred's Case, 9 Co. 57 6,- P. v. Cunningham, 1 Denio, 524, 43 Am. D. 709 ; Rex v Davey, 5 Esp. 217. * Anonymous, stated 2 Show. 327 ; C. V. Spratt, 14 Philad. 365 ; Sawyer v. Davis, 136 Mass. 239, 49 Am. R. 27. See S. ». Riggs, 22 Vt. 321 ; C. u. Smith, 6 Cnsh. 80; Rex v. Smith, 1 Stra. 704; C. v. Har- 678 rig, 101 Mass. 29; 8. v. Russell, I Honst. Crim. 122 ; Sturges v. Bridgman, 11 Ch. D. 852 ; ante, § 531 (2), 537. 6 Weel^es w. King, 15 Cox C. C. 733. 8 Ashbroolc u C 1 Bush, 139, 89 Am. D 616 A Livery Stable — is a nui- sance or not according to its location, construction, and the manner in which it is kept. And Wheeler, J. said : " What constitutes a nuisance is well defined. The word means, literally, annoyance ; in law, it signifies, according to Blackstone, 'anything that worketh hurt, inconve- nience, or damage.' " Burditt v. Swenson^ 17 Tex. 489, 502, 67 Am. D. 66?. 7 Ante, § 243-245, 1077 (2), 1078. CHAP. LXXII.] OFFENSIVE TRADES. § 1140 § 1139. 1. Useful Trades and Pleasant Homes — are each a pub- lic benefit, and the law of nuisance is so adjusted to this idea that neither shall put an end to the other .^ Hence, — 2. Business established before Houses. — Contrary to what we have seen to be the law of ordinary nuisance,^ it is widely held in this one that^ whenever a man has established himself in a busi- ness both lawful and useful to the community, at a place remote from habitations, those who afterward settle near him are not entitled to complain of its offensiveness, and he is not indictable for continuing it.^ Even if, after the coming of inhabitants, he makes in the form of it slight changes, so as to vary a little its noxious character, but not increase it in degree, he* may still, it seems, rely on his prior occupancy of the place. And his acquired rights will pass to his successors.* According to an English ruling to the jury, a man may set up a new manufactory in the neighborhood of old ones, if the new, though noxious, does not materially enhance the discomfort of persons dwelling near.^ Where it increases the mischief, the result is otherwise.^ But without a prior occupancy, tlie right to carry on an offensive trade cannot be acquired by prescription,''' — a proposition a little wea,kened by some English cases.^ And — § 1140. Limited to Useful Trades — is this doctrine ; for, as just said, one who commits an ordinary nuisance to-day cannot justify it by showing that he did the like yesterday.® Even, as we have also seen,^" nude bathing in the sea, after inhabitants 1 Bidiop Non-Con. Law, § 418. gunpowder be a necessary thing, and a Ante, § 1078 a. for defence of the kingdom, yet if it he !> Ellis V. S. 7 Blackl. 534 ; Rex v. Cross, kept in such a place as it is dangerous to 2 Car, & P. 483. Gunpowder. — Where the inhabitants or passengers, it will be a one was indicted for the nuisance of keep- nuisance." Anonymous, 12 Mod. 342. ing several barrels of gunpowder in a * I do not see any case exactly cover- house in a village, sometimes for two ing the points in the last two sentences; days, sometimes a week, till they could but they are within the doctrine of the he conveniently sent to London, it was by cases cited in the next two notes. "Holt, C. J. resolved: (1) Thai to sup- ^ Rex «. Neville, Peake, 91. port this indictment, there must be ap- " Rex v. Watts, Moody & M. 281. parent danger, or mischief already done; ' P. o. Cunningham, 1 Denio, 524, 43 (2) Though it had been done for fifty or Am. D. 709; Wright v. Moore, 38 Ala, sixty years, yet if it be a nuisance, time 593, 82 Am. D. 731. See Ashbrook v. C. will not make it lawful; (3) If at the 1 Bush, 139, 89 Am. D. 616, time of setting up this house in which ^ Rex v. Watts, Moody & M. 281; the powder was kept, there had been no Rex v. Neville, Peake, 91, 93. houses near enough to be prejudiced by ' Ante, § 1078 a. it, but some were built since, it would be "• Ante, § 1131. at the peril of the builder; (4) Though 679 § 1142 NUISANCE. [book IX. Gome to the place, is not made lawful by a cii|Stom of bathing there before. Tlie distinction is between a necessary trade and a mere innocent recreation. And it suj^tgests another ; namely, be- tween such trade and an immoral business, — the latter clearly not being protected by any prior occupancy of the ground. But — ^ 1141. Further of Business before Houses. — We have American cases which seem to obliterate this distinction, and to hold that one who establishes, at whatever expense, and however remote from habitations^ a business however beneficial to the community, is, if it would be an offence to habitations, liable to be driven away by. people who choose to erect their dwelling-houses near his works ; and that no length of prior occupancy will constitute his protec- tion. But a part if not all the cases to this contain the further fact, deemed by the author material, that the public authorities have established and maintained highways for the accommoda- tion of the newly erected dwelling-houses; thus by implication ap- proving the changed use of the place, and promising protection.i It is, on the one hand, against reason and justice that a man who by large expenditures in the erection and carrying on of works of a public benefit, should, as his reward for the double benefaction of the output of his works and the drawing and supporting of settlers there, be ruined by a judicial mandate to relinquish them ; and it is equally so, on the other hand, that his being first to locate there should enable him to shut off future improve- mefits, and depreciate for all time the value of adjacent lands. To adjust this sort of case to natural equity may often be diffi- cult. The power of adjustment is, therefore, primarily in the legislature, and secondarily in the courts, the managers of the pubUc ways,' and other like official persons.^ And plainly, in all cases wherein .the continuing of the works is allowable, the pro- prietor should adopt all practical means, in the manner of carry- ing them on, to reduce their offensiveness to dwellers in the neighborhood. § 1142. 1. What Trades are Nuisances. — We sometimes read in the books that a particular trade is, or is not, a nuisance per ' C. V. Upton, 6 Gray, 473 ; Ashbrook v. Johnson, 56 Ind. 139 ; Brady v. Weeks, V. 0. 1 Bush, 139, 89 Am. D. 616 ; Taylor 3 Barb, 157 ; Howell v. McCoy, 3 Eawle, ". P. 6 Par. Cr. 347 ; C. v. Van Sickle, 256. Brightly, 69, Philadelphia's Appeal, 78 ^ And see Bishop Non-Con. Law, §418- Pa. 33; Douglass v. S. 4 Wis. 387 ; Pettis 421. 680 CHAP. LXXII.J OFFENSIVE TRADES. § 1143 «e.^ Now, in reason, no useful trade can be a nuisance 'per se ; because every such trade must be carried on somewhere, and it is a nuisance or not according to the manner in which it is con- ducted, and its proximity to habitations and public ways. And no one can foretell what means may yet be found to conduct a business now offensive in a manner not t9 be so. Looking fur- ther into the books, — 2. Brewer — Chandler. — Hawkins says : " It hath been holden that it is no common nuisance to make candles in a town,^ be- cause the needfulness of them shall dispense with the noisome- ness of the smell. But the reasonableness of this opinion seems justly to be questionable, because, whatever necessity there may ' be that candles be made, it cannot be pretended to be necessary to make them in a town ; and surely the trade of a brewer is as necessary as that of a chandler, and yet it seems to be agreed that a brew-house, erected in such an inconvenient place wherein the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance ; and so in the like case may a glass-house, or swine-yard." ^ § 1143. other Specific Nuisances, -^ or things which may be such, are, for example, a lime-kiln,* a manufactory of acid spirit of sulphur,^ a soap-boiling establishment,^ one for the rendering of petroleum,'' a livery stable,^ a pig-sty,^ a slaughter-house,^" a tannery," brick-burning,^''^ and keeping a dairy.^^ Yet the name of the business is not the test ; it is its effect in the particular instance, as creating a nuisance or otherwise. 1' As, see, Huckenstine's Appeal, 70 Pa. ^ Aldred's Case, 9 Co. 57 6. 102, 10 Am. R. 669; S. v. Trenton, 7 6 Rex u. White, 1 Bur. 333. Vroom, 283 ; Wier's Appeal, 74 Pa. 230 ; ^ Rex v. Pierce, 2 Show. 327. As to a C. V. Van Sickle, Brightly, 69 ; Fairbanks blacksmith's shop in a village, see Ray v. V. Kerr, 70 Pa. 86, 10 Am. R. 664 ; Waupun Lynes, 10 Ala. 63. V. Moore, 34 Wis. 450, 17 Am. R. 446. ' C. v. Kidder, 107 Mass. 188. '■' s. p. Allen V. S. 34 Tex. 230. 8 Ante, § 1138, note. ' 1 Hawk. P. C. Curw. ed. p. 694, § 10. » C. v. Van Sickle, Brightly, 69. In a civil case it was held that the ercc- i" Ante, § 1141 ; [.^st, § 1144; Phillips tion of a tallow furnace, by a chandler, v. S. 7 Bax. 151 ; Reichert v. Geers, 98 to the annoyance of an innkeener and his Ind. 73, 49 Am. R. 736 ; Seifried v. Hays, guests, is a nuisance for which an action 81 Ky. 377, 50 Am. R. 167. will lie. " And so," added the court, " in " S. v. Trenton, 7 Vroom, 283. Taohyles's Case, who erected a tallow fur- " Huckenstine's Appeal, 70 Pa. 102, 10 nace 'acros.s the street of Denmark-house Am. R. 669 ; S. v. St. Louis Board of in the Strand, it was found a nuisance Health, 16 Mo. Ap. 8. upon the indictment, and adjudged to be " S. v. Boll, 59 Mo. 321. removed." Morley v. Pragnell, Cro. Car. 510. 681 g 1 144 NUISANCE. [book IX. § 1144. Legislation — may, as already intimated, either directly or indirectly regulate whatever pertains to indictable nuisances.^ For example, it may prohibit the use of any building, in a town of a specified population, as a slaughter-house, without permission from the town officers.^ And where it has authorized a citizen to establish a dam of a specified height, at a place named, he is not liable to an indictment for any nuisance thereby created.^ So works of internal improvement, erected under legislative act by the State, do not become public nuisances in law, whatever may be their character or consequences in fact ; nor. is it otherwise though they are transferred to a private corporation, obligated to keep them up for the purposes of their creation.* For the State cannot complain of what it authorizes by its statute.^ 1 Ante, § 1141 ; Stat. Crimes, § 1059, 12 Am. B. 694. And see Taylor v. S. 35 1068; McLaughlin o. S. 45 Ind. 338; Wis. 298. Mobile, &c. Eld. w. S. 51 Missis. 137; ^ Stoughton ». S. 5 Wis. 291 ; one judge Lake View v. Rose Hill Cemetery, 70 111, dissenting, on the ground that the statute 191," 22 Am. R. 71 ; S. v. Fisher, 52 Mo. should not be construed to authorize the 174; Blydenburgh w. Miles, 39 Conn. 484; nuisance, but merely the erection of the C. I). Kidder, 107 Maas, 388 ; Ex parte Ah , dam as far as possible without becoming Fook, 49 Cal. 402; S. w/ Williams, US. C. such. ' 288; Sugar Refining Co. W.Jersey City, U » C. v. Reed, 34 Pa. 275, 75 Am. D. C. E; Green, 247 ; Davis v. S. 2 Tex. Ap. 661. See Delaware Division Canal v. C. 425 ; Sawyer v. Davis, 136 Mass. 239, 49 60 Pa. 367, 100 Am. D. 570. Am. R. 27. 6 p. „. Detroit, &c. Plank Road, 37 2 Watertown v. Mayo, 109 Mass. 315, Mich. 195; S. v. Davenport, &c. Ey. 47 Iowa, 507. 682 CHAP. LXXIIl.] PUBLIC SHOWS. § 1147 CHAPTER LXXIIl. ' PUBLIC SHOWS. Consult, — for the procedure, Crim. Pro. II. § 865; Dir. & F. § 1000. For the civil toit, Bishop Non-Con. Law, § 421, 1261. § 1145. Doctrine defined. — As already sufficiently appearing, any public exhibition tending to corrupt the morals, or to disturb the peace, or to create any breach of the good order of the com- munity, is, if adequate in magnitude, indictable at the common law.i Thus,— § 1146. 1. Collecting Cro'wd — (EfiSgies or Pictures at Windows). — If one having a house on a street exhibits effigies at his win- dows, attracting a crowd, and causing the footway to be obstructed, he commits an indictable nuisance, even though the effigies are not libellous.^ If the exhibition is libellous as being obscene, offensive, or disgusting,— for example, the picture of a man naked to the waist and covered with eruptive sores, — it is punishable without regard to the collecting of any crowd.^ Thus, — 2. Obscene Pictures — exhibited are a common-law nuisance.* 3. The Entire Doctrine — of this chapter is a branch of that of obscene libel. It is not very important to preserve the distinc- tion. These illustrations cover only a fragment of what might be arranged under this title. § 1147. Statutory Provisions in Aid of Common Law : — We have many of this sort ; for illustration, — Puppet-shows, &c. — A statute made it punishable for one to " exhibit or perform for gain or profit any puppet-show, any wire 1 Ante, § 500-504 ; Rex v. Bradford, bors, that is a nuisance for which he is Comb. 304; Hall's Case, 1 Mod. 76. answerable." The Making of a Speech 2 Rex V. Carlile, 6 Car. & P. 636 ; — in the street is not per se a nuisance. "Walker v. Brewster, Law Rep. 5 Eq. 25. Fairbanks v. Kerr, 70 Pa. 86, 10 Am. R. In Rex V. Moore, 3 B. & Ad. 184, 188, 664. Lord Tenterden, C. J. said : " The de- » Reg. v. Grey, 4 Fost. & F. 73. And fendant asks us to allow him to make a see Reg. v. Saunders, 1 Q. B. D. 15, 19, 13 profit to the annoyance of all his neighbors. Cox C. C. 116. ... If a person collects together a crowd ^ Willis v. Warren, 1 Hilton, 590. of people to the annoyance of his neigh- 683 § 1149 NUISANCE. [book IX. or rope dance, or any other idle shows, acts, or feats, which common showmen, mountebanks, or jugglers usually practise or perform ; " and the majbrity of a divided court held it to be violated by white persons appearing in public, dressed as negroes, singing negro songs, and doing pretended feats as physiologists, mesmerizers, and the like.^ § 1148. Shows, Amusements, &c. — Dancing-school. — A statute made indictable the unlicensed setting up of public shows, amuse- ments, and exhibitions " to which admission is obtained upon payment of money, or the delivery of any valuable thing, or by any ticket, or voucher obtained for money or any valuable thing." And it was adjudged not applicable to a school for teaching dancing, to which the admission was by a payment of money for each evening.^ § 1149. Theatrical Exhibitions. — Under a provision that " if any company of players or persons whatever shall exhibit any tragedies, &c., in any public theatre or elsewhere, for money, &c., each person so exhibiting shall forfeit," &c., it was held that the offence, whatever it may be, cannot be committed by a single individual ; so that an indictment against one, not alleging any connection with others, is ilU^ A license to keep a theatre will not protect the exhibition therein of feats of legerdemain or sleight of hand.* 1 Thnrber v. Sharp, 13 Barb. 627. Bowers, 14 lad. 195 ; Gate a. S. 3 Sneed, ' C. u. Gee, 6 Gush. 174. See also as" 120. to this sprt of statute, G. v. Twitchell, 4 ' S. v. Pox, 15 Vt. 22. Gush. 74 ; Pike v. S. 35 Ala. 419 ; S. v. * Jacko v. S. 22 Ala. 73. 684 CHAP. LXXIV.J WOODEN BUILDINGS, ETC. § 1151 CHAPTER LXXIV. WOODEN AND OTHER OBJECTIONABLE BUILDINGS. § 1150. Protection against Fire. — There are statutes and ordi- na^nces for the protection of populous places aigainst fire; foi\ bidding, under qualifications, the erection of wooden buildings. These provisions differ ; therefore we need only refer to the work on Statutory Crimes, in which some interpretations are stated,^ and to the cases. ^ § 1151. 1. Buildings for Particular Purposes. — Likewise there are enactments against the erection of buildings, in particular localities, and for particular purposes.^ 2. Contracted for. — Though one has dug the cellar and con- tracted for the erection of a wooden building, he cannot proceed if by a city ordinance afterward passed it becomes unlawful.* So, — 3. Alter or Repair. — An ordinance prohibiting the altering or repairing of wooden buildings within the fire limits, without per- mission, does not violate the national Constitution.^ * Stat. Crimes, § 208, 292. 326 ; Charleston w. Eeed, 27 W. Va. 681, 2 Stewart B.C. 10 Watts, 306; Tuttle 55 Am. E. 336; S. v. Elizabeth Tire I.'. S. 4 Conn. 68 ; Booth v. S. 4 Conn. 65 ; Department, 14 Vroom, 172; Eeg. v. Daggett V. S. 4 Conn. 60, 10 Am. D. 100; Sidebotham, Bell C. C. 171, 8 Cox C. C. Douglass V. C. 2 Rawle, 262 ; S. v. Brown, 206. 16 Conn. 54 ; Rex v. Gregory, 2 Nev. & ' Eex v. Watts, 2 Car. & P. 486. M.478, 5B.&Ad.555; Waupun u. Moore, *, Salem v. Maynes, 123 Mass. 372; 34 Wis. 450, 17 Am. E. 446 ; Updyke v. Knoxville v. Bird, 12 Lea, 121, 47 Am. E. Skillmau, 3 Dntcher, 131 ; S. ». Parker, 5 326. Vroom, 352 ; Klingler v. Bickel, 117 Pa. ' Ex parte Fiske, 72 Cal. 125. 685 INDEX TO THE CASES CITED IN BOTH VOLUMES. * NoTB. — Where the plaintiff is the king or queen (Rex or Beg. ), the State, Commonwealth, People, United States (abbreviated S., C, P., U. S.), or the like, the defendant'3 name is put first. The plain- tifi'^a is first in the other cases. The figures denote th^ sections ; the letters (i. and ii.), the Tolume. A. V. B. (R. M. Chart. 228) i. 617 ; ii. 1054 Aaron v. S. (39 Ala. 684) i. 893 V. S. (31 Ga. 167) i. 849, 850, 853, 872 , S. «. (1 Southard, 231 ; 7 Am. D. 592) i. 370 Abarr, S. ... (39 Iowa, 185) i. 865, 874 Abbot, P. e. (19 Wend. 192) i. 8U Abbott V. Mills (3 Vt. 521 ; 23 Am. n. 222) i. 266 , P. V. (53 Cal. 284; 31 Am. R. 59) ii. 802 , Reg. V. (1 Den. C. C. 273; 2 Car. &K. 630) ii, 449,483 V. Rose (62 Me. 194; 16 Am. R. 427) ii. 533 , S. ..-. (20 Vt. 537) ii. 986 , S. «. (8 W. Va. 741) i. 305; ii. 746 Abby, The (6 Hob. Adm. 261) i 441 Abingdon, Rex v. (1 Esp. 226; Peake, 236) ii. 917 Able V. C. (5 Bush, 698) i. 670 Abienian v. Booth (21 How. U. S. 606) i. 63 Abney, C. v. (4 T. B. Monr. 477) ii. 1267 Abraham, Reg. v. (1 Cox C. C. 208) ii. 741 Abrahams v. 8. (4 Iowa, 641) i. 1091 Abrahat, Bex v. ( 2 Leach, 824 ; 2 East P. C. 569) ii. 366, 758, 832 Abram, S. v. (i Ala. 272) i. 998 , S. V. (10 Ala. 928) i. 428 ; ii. 1004, 1006, 1007 Abrams, U. S. v. (21 Blatch. 553; 18 Fed. Rep. 823) ii. 281 o, 290 Absence, S. 0. (4 Port. 397) i. 342, 635, 636; ii. 1004, 1008 Absolon, Reg. v. (1 Fost. & F. 498) ii. 209 Aohterberg v. S. (8 Tex. Ap. 463) i. 1068 Actions against Foreigners (1 Opin. Att. Gen. 81) i. 132 Adams, Ex parte (25 Missis. 888 ; 69 Am. D. 284) ii. 243, 268 Adams v. Adams (100 Mass. 365; 1 Am. R. Ill) i. 891 V. Barrett (6 Ga, 404) i. 271, 615 ; ii. 1004, 1008 V. Beach (6 Hill, N. Y. 271) i. 828 ; ii. 1273 V. Buford (6 Dana, 406) ii. 140 , C. V. (114 Mass. 323; 19 Am, R. 362) i. 333, 336 ; ii. 72, 72 a , C. V. (3 Met. Ky. 6) i. 468 V. Gay (19 Vt. 368) ii. 968 V. Harrington (114 Ind. 66) Ii. 1268 V. Haskell (6 Cal. 316; 66 Am. D. 517) ii. 268 V. P. (1 Corast. 173) i. 120, 1.34, 310, 631, 651 ; ii. 1061 i.-. P. (47 111. 376) i. 305, 844 , P. V. (3 Denio, 190 ; 45 Am. D. 468) i. 110, 111 , P. ». (16 Hun, 549) i. 336; ii. 1279 , P. V. (52 Mich. 24) i. 780 , Reg. V. (Car. & M. 299) i. 729 ; ii. 994 , Reg. w. (1 Den. C. C. 88) i. 683; ii. 812, 813 , Reg. V. (1 Fost. & F. 86) ii. 11.S8 , Rex V. (Russ. & Ry. 225) i. 683 ; ii. 809,812, 813.823 V. S. (65 Ind. 666) ii. 731 V. S. (99 Ind. 244) i. 1013 V. S. (16 Vroom, 448) ii. 790 , S. V. (14 Ala. 486) i. 141, 984 , S. V. (4 Blaokf. 146) 1. 178 ; ii. 1022, 1023 , S. V. (1 Brev. 279) i. 947 , S. V. (92 Ind. 116) ii. 605 , S. V. (76 Mo. 365) i. 368 V. Tator (42 Hun, 384) i. 464 V. Tertenants of Savage (Holt, 179) - i. 469;ii. 392 , U. S. V. (2 Dak. 305) i. 343 Adams Express v. Board of Police (66 How. Pr. 72) ii. 962 687 ALA INDEX TO THE CASES CITED. ALL Adamson, Reg. v. (1 Car. & K. 192 ; 2 Moody, 286) ii. 437, 444, 483 Adilatte, U. S. v. (6 Blatcli. 132) ii. 281 a Addington, S. v. (2 Bailey, 516; 23 Am. D. 150) i. 914, 915 Adilis, Bex v. (6 Car. & P. 388) i. 868 Addison v. S. (3 Tex. Ap. 40) ii. 888 Aden, Beg. v. (12 Cox C. C. 612; 6 Kng. Bep. 337) ii. 857 Adey, Reg. v. (19 Law J. N. 8. M. 0. 149; Archb. New CrIm.'Pro. 453) ii. 354 , Bex. V. (1 Leach, 206; 1 East P. C. 329) i. 877 Adgate, P. v. (2 Cow. E04) ii. 255 Adlcinson r. S. (5 Bax. 669; 30 Am. E. 69) ii. 97 Adler, P. v. (3 Par. Cr. 249) i. 679 u. S. (55 Ala. 16) i. 302, Adolph, The (1 Curt. C. C. 8T) i. 129 Adwards, P. w. (5 Midi. 22) i. 339, 491 ; ii. 740 Ady, Rex v. (7 Car. & P. 140) i. 262, 441 ; ii. 463' Agar's Case (Sir F. Moore, 627) ii. 1031 A gee V. S. (64 Ind. 840) ii. 72 b Agitone v. S. (41 Tex. 501) ii. 82 Agnew V. Jobson (13 Cox C. C.625; 19 Eng. Rep. 612) ■ - ii. 72 Ahearne, Beg. v. (6 Cox C. C. 6) ii. 188 Ah Fat, P. V. (48 Cal. 61) i.' 648 ; ii, 638 Ah Foolc, Ex parte (49 Cal. 402) i. 1144 , P. V. (62 Cal. 493) ii. 86 a, 88 Ah Ho, P. V. (I Idaho, n. s. 691) i. 1085 Ah Jow, Ih re (12 Saw. 88; 2» Fed. Rep. 181) i. 291 Ahl, C. V. (43 Pa. 53) i. 910 Ah Lee, In re (6 Saw. 410) i. 464 Ah Men, Ex parte (77 Cal. 198; 11 Am. St. 263) , ii. 242 a Ah Moolc, S. i». (12Nev. 369) ii. 728 Ah Ping, P. V. (27 Cal. 489) i. 633 Ah Sam, P. v. (41 Cal. 646) ii. 605 Ahsee, Bex v. (2 Am. Law Rev. 794) ii. 1187 Ah Ying, P. V. (42 Cal. 18) i. 396 Aiokles, Rex w. (1 Leach, 294; 2 East P. C. 675) i. 583 ; ii. 786, 812, 817 , Rex V. (1 Leach, 890) i. 916 , Rex V. (1 Leach, 438; 2 East P. C. 968) i. 672; ii. 583 Aiken v. S. (10 Tex. Ap. 610) i. 314 ; ii. 656 b Aikenhead's Case (13 How. St. Tr. 918) ii.i76 Aikens, S. ». (82 Iowa, 403) ii. 1030 Ainsworth v. S. (11 Tex. Ap. 339) ii. 840 , S. v. (11 Vt. 91) i. 1049 Airey, Bex «. (2 East P. C. 831) ii. 446 Ake V. S. (30 Tex. 466) ii. 723, 728 V. S. (31 Tex. 416) ii. 728 )'. S. (6 Tex. Ap, 898; 82 Am. R.586) i. 368 Alabama v. Georgia (28 How. U. S. 605) i, 150 688 Albany, P. v. (11 Wend. 539) i. 419 Albany, &c. Rid. P. v. (56 Barb. 344) i. 464 Albee v. May (2 Paine, 74) Albrecht «. S. (8 Tex. Ap. 313) Albricht v. S. (6 Wis. 7'4) Alburger, C. v. (1 Wliart. 469) Alburgh, S. v. (23 Vt. 262) Alden v. Fitts (25 Me. 488) Alderman, C. o. (4 Mass. 477) i. 279 ii. 968 a ii. 686 ii. 1267 ii. 1267 i. 44 i. 1010, 1028 V. P. (4 Mich. 414; 69 Am. D. 321) ii. 175 Alderson v. Waistell (1 Car. & K. 358) i. 875; ii. 37 Aldred's Case (9 Co. 57) i. 1138, 1143 Aldrich v. Blackstone (128 Mass. 148) ii. 960 V. Jessup (3 Grant, Pa. 158) i. 910 V. P. (101 III. 16) ii. 1138 V. Press Printing Co. (9 Minn. 133 ; 86 Am. D. 84) ii. 935, 9Z7 Aldridge v. C. (2 Va. Cas. 447) i. 939, 947 V. Kincaid (2 Lilt. 390) ii. 140 Alexander's Case (1 Broun, 28) ii. 51 Alexander, The (1 Gillis. 532) i. 821 Alexander!) Blodgett (44 Vt.476) ii. 1136 V. Card (3 B. I. 145) i. 460 V. C. (105 Pa. 1) i. 1014 , C. V. (4 Hen. & Munf. 522; 1 Va. Cas. 156) i. 462 V. Oshkosh (33 Wis. 277) ii. 969 V. Polk (39 Missis. 737) ii. 136, 138 V. S. (12 Tex 540) i. 262, 263; ii. 758 , S. V. (4 Hawks, 182) ii. 1020 , S V. (50 Mo. 131) i. 798 , S. V. (74 N. C. 232) ii. 797 , S. V. (76 N. C. 231 ; 22 Am. B. 675) i. 903 , S. u. (7 Rich. 5) ii. 1148, 1162 , S. V. (14 Rich. 247) i. 429 , S. V. (30 S. C. 74 ; 14 Am. St. 879) i. 383 b, 384, 387 ; ii. 676 Alford, S. V. (68 N. C. 822) i. 882 , S. «. (80 N. C. 446) ii. 728 Alfred v. S. (83 Ga. 303) ii. 694 Alger, C. II. (7 Cush. 58) i. 145, 174, 531, 819 ; ii. 1271 Alibez, P. V. (49 Cal. 452) i. 777, 1061 Alison, Reg. v. (8 Car. & P. 418) i. 259, 510,652; ii. 744, 1187 Allan, Reg. v. (Car. & M. 295 ; 6 Jur. 296) i. 465, 466, 467, 697, 707 ; ii. 1072 AUday, Beg. v. (8 Car. & P. 186) i. 287, 303, 846 Allen's Case (3 City H. Reo. 118) ii. 474 Allen V. Colby (47 N. H. 544) i. 66 u. C. (2 Leigh, 727) i. 998, 1003 , C. V. (11 Met. 403) ii. 1277 V. Crofoot (6 Wend. 506) i. 208 V. Hawks (13 Pick. 79) ii. 132 K. Lyon (2 Root, 213) i. 205; ii. 1273 V. Monmouth (2 Beasley, 68) i. 266 , P. V. (6 Denio, 76) ii. 327, 842 , P. V. (1 Par. Cr. 445) i. 1052, 1066 AME INDEX TO THE CASES CITED. AND Allen, Keg. y. (9 Car. & P. 31) li. 1129 , Reg. V. (1 Den. C. C. 364; Temp. & M. 55 ; 2 Car. & K. 869 ; 13 Jur. 108 ; 18 Law J. n. s. M. C. 72) ii. 1193 , Keg. V. (2 Moody, 179) i. 788; ii. 66 , Kex V. (7 Car. & P. 153) i. 217, 314 ; • ii. 667, 669 , Kex V. (7 Car. & P. 664; 1 Moody, 494) 1. 117 , Rex w. ( Riiss. & Ry. 513) 1.961 u. Smith (B Blackf. 527 1 ii. 137 V. Smith (1 Leigh, 231) ii. 139 V. S. {40 Ala. 334 ; 91 Am. D. 477) ii. 91 V. S. (52 Ala. 391) li, 697 V. S. (58 Ala. 98) ' i. 795 V. S. (74 Ala. 557) ii. 560 V. S. (79 Ala. 34) ii. 576 V. S. (28 Ga. 395 ; 73 Am. D. 760) i. 750 ; ii. 41 V. S. (51 Ga. 264) i. 616 V. S. ( 10 Ohio St. 287) i. 35 ; ii. 13, 17 V. S. (34 Tex. 230) t>. S. (7 Tex. Ap. 298) , S. «. (5 Yerg. 453) , S. D. (46 Conn. 531) , S. V. (47 Conn. 121) > S. V. (4 Hawks, 366) 1142 i. 1057 ii. 701 i. 1039 i. 633 a, 1033 i. 535, 796, 800 ; ii. 3 i, 135 i 831 i. 678 ; , S. V. (2 Humph. 258) , 8. V. (2 McCord, 55) , S. V. (R. M. Charl.518) ii. 767, 786, 786 V. Tobias (77 111. 169) i 536 Alley, S. ■;. (68 Mo. 124) i. 305 Ailing, S. V. (12 Ohio, 16) i. 464 AUington, Rex v. ( 1 Stra. 678) i. 460, 462 ; ii. 973 Allison, In re (13 Colo. 525 ; 16 Am. St. 224) 1. 1033 1034 — V. Parmers' Bank (S Rand. 204) — V. S. (60 Ala. 54) — V. S. (42 Ind. 354) — , S. i>. (3 Yerg. 428) i. i. 800; ii i. 271 468 a i. 531 1144 Alman, S. v. (64 N. C. 364) i, 1033, 1034, 1041 Almon, Rex v. (6 Bur. 2686) i. 219 Alsop, Reg. V. (11 Cox C. C. 264) ii. 1030 Alston's Case (1 Swinton, 433) i. 41 Alternum, Reg. v. (1 Gale & D. 261 ; 10 A. & E. 699) i. 972 Amarro, Rex v. (Russ. & Ry. 286) i. 117 Ambrose, In re (Phillips, N. C. 91) i. 887 , U. S. w. ( 108 U. S. 336) ii. 1053 6 Arabs, S. V. (20 Mo. 214) 11. 951 Amedy, U. S. v. (11 Wheat. 392) i. 570 American Ins. Co. v. Canter (1 Pet. 611) i. 14 American Print Works v. Lawrence, (3 Zab. 9) i. 830 Ames's Case (2 Greenl. 365) i. 572; ii. 529, 535 Ames, S. v. (64 Me. 386) i. 468 . VOL. I. — 44 Amistad, The, U. S. u, (15 Pet. 518) i. 564 Amraons, S. v. (3 Murph. 123) U. 1031 Amor, S. v. (77 Mo. 568) i. 32 Amory v. Fly n (10 Johns. 102 ; 6 Am. D. 316) ii. 779 «. McGregor (15 Johns. 24; 8 Am. D. 205) i 821, 822 Amos V. S. (83 Ala. 1 ; 8 Am. St. 682) i. 629, 633 Amy, U. S. i). (14Md. 149, n.) i. 989 Amy Warwick, The (2 Sprague, 123) i. 971a Anders, S. v. (8 Ire. 16) ii. 501, 514 Andersen v. S. (43 Conn. 514; 21 Am. R. 669) i. 387. Anderson v. Anderson (4 Wend. 474) i. 641;ii. 139 V. Bosworth (15 R. I. 443) il. 255 V. C. (6 Rand. 627 ; 16 Am. D. 776) i. 2.39, 601, 592 ; ii. 226, 235 , C. V. (2 Va. Cas. 245) i. 967 V. Dunn (6 Wheat. 204) i. 461 ; ii. 247 V. How (116 N. Y. 336) 1. 428 , P. V. (44 Cal. 65) i. 303, 305 , P. V. (80 Cal. 206) ii. 1178 , P. V. (14 Johns. 294; 7 Am. D. 462) i. 207 ; ii. 768, 838, 882 w.Radcliffie (Ellis B.&E. 806) ii. 133 , Reg. V. (Law Rep. 1 C. C. 161 ; 11 Cox C. C. 198) i. 112, 117 , Reg. V. (2 Moody & R. 469) i. 816 ; ii. 560, 612 , Rex V. (2 East P. C. 772) i. 141. V. Solon, The (Crabbe, 17) i 351 V. a (72 Ala. 187) i. 971 a V. S. (6 Bax. 608) i 875 u. S. (42 Ga. 9) i. 383i y. S. (3 Head, 456; 75 Am. D. 774) i. 886 0. S. (3 Heisk. 86) ii. 681 V. S. (10 Humph. 119) ii. 1267 V. S. (39 Ind. 553) i. 317, 892 V. S. (104 Ind. 467) ii. 1122 V. S. (22 Ohio St. 306) i. 317, 892 V. S. (5 Pike, 444) i. 429 V. S. (31 Tex. 440) ii. 723 .;. S. (8 Tex. Ap. 542) i. 892 V. S. (17 Tex. Ap. 305) ii. 118 y. S. (20 Tex. Ap. 595) ii. 533, 538 V. S. (20 Tex. Ap. 598) ii. 605 V. S. (27 Tex. Ap. 177; 11 Am. St. 189) ii. 659 , S. V. (1 Hill, S. C. 327) ii. 647 , S. II. (40 Iowa, 207) ii. 265 , S. ■;. (47 Iowa, 142) ii. 477 , S. V. (30 La. An. 567) ii. 006 , S. V. (25 Minn. 66 ; 33 Am. R. 465) ii. 812 , S. V. (89 Mo. 312) i. 642 , S. V. (3 Sm. & M. 761) i. 992 , S. V. (24 S. C. 109) ii. 104 , S. 17. (2 Tenn. 6 ; 5 Am. D. 648) ii. 696 Andrew v. New York Bible and Common Prayer Book Society (4 Sandf. 156) ii. 74 ANO INDEX TO THE CASES CITED. ANO Andrew, S. v. (76 Mo. 101) i. 1014 Andrews, Ex parte (18 Cal. 678) ii. 961 , In re (Law Rep. 8 Q. B. 153) i. 885 , C. V. (2 Mass. 14 ; 3 Am. U. 17) i. 141, 700 ; ii. 1142 a , C. V. (3 Mass. 126) i. 667, 997, 998 V. P. (60 111. 354) ii. 1138 V. S. (78 Ala. 483) ii. 1010 , S. V. (27 Mo. 267) i. 1065 V. Thayer (30 Wis. 228) ii. 122 V. Worceater County Mut. Fire Ins. Co. (5 Allen, 65) i. 280 Angell, Rex v. (Cas. temp. Hardw. 124) i. 459, 462 V. Smith (36 Tex. 542) i. 328 Angelo K. P. (96 111. 209 ; 36 Am. R. 182) i. 868, 370 Anglea v. 0. (10 Grat. 696) i. 910 Ann, The(l Gallis. 62) i. 104, 290 , The, V. S. (11 Humph. 159) i. 314; ii. 641, 691, 693 Anna, The (5 Rob. Adm. 373) i. 104 Annis, C. v. (15 Gray, 197) ii. 901 Anone, S. v. (2 Nott & McC. 27) i. 263, 686 Anonymous (4 A. & E. 576, n.) i. 247, 266 (12 Abb. N. Cas. 455) ii. 969 (12 Abb. N. Cas. 458) ii. 954, 969 (1 Anderson, 101) ii. 573 (l Anderson, 115) , ii. 92 (IB. & Ad. 382) ii. 1196 (stated 6 Car. & P. 368) i. 768 d (4 Co. 48 o) ii. 495 (Comb. 10) i. 829 (Comb. 16) ii. 160 (Comb. 46) i. 235, 470 ; ii. 946 (1 Cox C. C. 250) i. 257; ii. 605, 607 (Dalison, 1) ii. 1090 (Dalison, 16) i. 681 (Dalison, 22) 1. 342, 437; ii. 92, 110 (1 Dy. 99 a, pi. 58) ii. 105 (1 Dy. 99, pi. 60) i. 466, 697; ii. 1070 (2 Dy. 122, pi 24) ii. 495, 514 (3 Dy. 296, pi. 19) i. 512 (1 East P. C. 261) i 881 ; ii. 663, 685 (1 East P. C. 805) i. 848 ; ii. 39 (2 East P. C. 556; 1 Leach, 321, n.) ii. 758, 795 (2 East P. C. 559) ' ■ i. 862 '(2 East P. C. 662) ii. 1181 (14 Eng. L. & Eq. 151 ; 16 Jur. 995) i. 299, 460, 462 ; ii. 972 (1 Exoh. 453) ii. 270 (Foster, 265) i. 303 (Gouldsb. 96) i. 18 (1 Hale P. C. 553) ii. 92 (l Hale P. C. 554; J. Kel. 67) ii. 92, 97, 100 (J. Kel. 19 ; Dalison, 14) i. 681 ; ii. 1213, 1231 (J. Kel. 28) i. 905 (J. Kel. 35, 81, 82, 83, 84) i. 583 ; ii. 106, 811,833, 834 (J. Kel. 53) i. 310, 651 (J. Kel. 56) ii, 711 690 Anonymous (J. Kel. 58) i. 850, 870; ii. 702 (J. Kel 64) (Jenk. Cent. 171) ii. 683 i. 466 (2 Keny. 372) ii. 255 (1 Leach, 430) i. 1037 (2 Lewin, 48) ii. 37, 41 (Lofft, 44) U. 973 (Lofft, 146) i. 571 (LoflEt, 185) i. 235,459; ii. 973 (Lofft, 272) i. 247, 256 (Lofft, 285) 1. 468o (Lofft, 314) Lofft, 821) 1.266 ii. 256 (Lofft, 451) i. 992 ; ii. 256, 269 (Lofft, 462) i. 468 ; ii. 936 (Lofft, 544, 780) i. 221 (81 Me. 592) 1. 796, 1017 (March, 6, pi. 12) ii. 514 (March, 81, pi. 132) i.468 (March, 83, pi. 136) i.226 (1 Mod. 55) ii. 1026 (3 Mod. 97) i. 541 ; ii. 66 (6 Mod. 43) ] . 534, 634, 642; ii. 1147, 1160 (6 Mod. 88) ii. 993 (6 Mod. 96) i. 459 (6 Mod. 105) i. 571,582; ii. 146, . 157 (6 Mod. 115) ii. 614 (6 Mod. 137) ii. 256 7 Mod. 10) i. 468 ; ii. 1188 (7 Mod. 40) i. 671; ii. 157 (11 Mod. 3) i. 616 (11 Mod. 132) i. 246 ;( 12 Mod. 342) i. 531, 1099, 1139 (12 Mod. 559) i. 417 (2 Moody, 40) i.429 (cited 1 Pick. 41) i.997 (2 Russ. Crimes, 3d Eng. ed. 14) ii. 882 (2Salk. 586; Holt, 628) ii. 1090 (3 Salk. 155) i. 918, 974 3 Salk. 182) ii. 1283 — '- (3 Salk. 248) ii. 1019 (2 Show. 155) i. 508 (2 Show. 327) i. 1138 (1 Sid. 69) i. 266 (1 Sid. 454) ii. 1025 (SirF. Moore, 8) i. 267, 710 Sir F. Moore, 756, pi. 1044) i. 916 (1 Stra. 384) i. 895; ii. 556 (cited 6 T. R. 628) ii 216 (T. Raym. 97) i. 827 (stated 3 Tyrw. 692) ii. 334 (1 Vent. 31) ii. 927 (1 Vent. 256) ii. 28 (1 Vent. 849) i. 908 (2 W. Bl. 1324) i. 63 (1 Wash. C. C. 84) i. 199 ; ii. 1023 (23 Wend. 102) ii. 266 (1 Wheeler Crim. Cas. 381, n.) ii. 1122 (W. Jones, 444) ii. 28 , In re (1 Hun, 321) i. 895 ARN INDEX TO THE CASES CITED. ATH Antelope, The (10 Wheat. 60) , i. 564; ii. lOel Anthony, C. v. (2 Met. Ky. 899) i. 1024; ii. 740, 744 B, S. (29 Ala. 27) ii. 740 V. S. (Meigs, 265; 33 Am. D. 14.3) ii. 728 «. S. (13 Sni. &M. 263) i. 429 , S. .;. (7 Ire. 2.S4) ii. 1179 a , S. V. (1 McCord, 285) i. 648 , U. S. B. (11 Blatch. 200) i. 809, 336 Antonio, S. w. (3 Brey. 562; 2 Tread. 776) i. 178 Apel, S. V. (14 Tex. 428) ii. 881 Apgar, P. V. (35 Cal. 389) i. 1056 Apollon, The (9 Wheat. 362) i. (106, 115, 121, 831 Applegate, S. v. (2 MoCord, 110) ii. 244,263 -: — V. Wlnebrenner (66 Iowa, 67) i. 1079 Applewhite, S. r. (75 N. C. 229) i. 898 Appling, S. V. (25 Mo. 315 ; 69 Am. D. 469) ii. 943, 946 Aroeneaux v. Benoit (21 La. An. 678) 1. 14 Archeri Reg; a. (Dears. 449 ; 1 Jur. N. 8. 479; 83 Eug. L. & Eq. 528; 6 Cox C. C. 515) ii. 438 , Reg. V. (1 Fost. & F. 351) i. 857 ; ii. 706 , Rex V. (1 Moody, 148) i. 862 — ^, Rex V. (2 T. R. 203) i. 950 , S. w. (54 N. H. 465) i. 772, 791 Archibald, S. v. (59 Vt.548; 59 Am- R. 755) i. 1072 Arden i>. Patterson (5 Johns. Ch. 44) ii. 121, 135 V. S. (U Conn. 408) ii. 1026 , S. u. (1 Bay, 487) i. 648, 795, 800 ; ii. 745 Ardley, Reg. v. (Law Rep. 1 C. C. 301) ii. 456 Argo, The (1 Gallis. 150) i. 352 Arlen, S. v. (71 Iowa, 216) i. 32 Arlin, S. v. (7 Fost. N. H. 116) i. 799, 811 , S. «. (39 N. H. 179) i. 279 Arman, Reg. v. (Dears. 575) ' , ii- 353 Armfield, S. v. (5 Ire. 207) i. 5.36, 538; ii. 505, 519 Armstrong's Foundry (6 Wal. 766), i. 916, 920 Armstrong, C. w. (11 Philad. 656) ii. 1143 w. L'Isle (12 Mod. 109) i. 9.37, 1070 , Reg. u. (13 Cox C. C. 184) i. 117 , Rex V. ( 1 Vent. 804) i. 591, 592 ; ii. 145, 217 V. S. (4 ;Blaekf.,247) i. 1187 V. S. (Minor, 160) i. 997 V. S. (28 Tex. Ap, 526) , i. 666 w. U. S. (13 Wal. 154) i. 904, 907 0. Walkup (12 Grat. 608) : i. 885 V. Winfrey (61 Mo. 354) ii. 138 Arnold's Case (16 How. St., Tr. 695) i. 378 Arnold ». C. (8 B. Monr. 109) i. 469 i>. C. (80 Ky. 300; 44 Am. R. 480) ii. 269 , C. I). (88 Ky. 1 ; 4 Am. St. 114) . i. 1006 V. Loveless (6 Rich. 511) i. 957 , P. V. (40 Mich. 268) i.'789 ; u. 239 , S. V. (13 Ire. 184) i. 368 , S.,!). (8 Rich. 39) i. 266 Aro, P. V. (6 Cal. 207; 65 Am. D. 503) ii. 673 a Arrest, Who Privileged from (1 . Opin. Att. Gen. 26) i. 126 Arrington, S. v. (3 Murph. 571) i. 998 Arscott, Rex v. (6 Car. & P. 408) ii. 564, 670 a, 582 Arter, S. w, (65 Mo. 653) i. 794 Arthur v. Craig (48 Iowa, 264; 30 Am. R. 395) i. 915 Arundel's Case (6 Co. 14) i. 1001 Arundel v. McCuUoch (10 Mass. 70) i. 828 Ash V. Ashton (3 Watts & S. 510) i. 822, 970 V. S. (81 Ala. 76) ii. 1069, 1106 Ashhrook v. C. (1 Bush, 139; 89 Am. D. 616) i. 11.38, 1189, 1141 Ashburn, Rex v. (8 Car. & P. 50) i. 266 -^B. 8.(15 Ga. 246) ii. 1018 Ashby V. White (2 Ld. Raym. 938 ; 6 Mod, 45) i. 287, 265 Ashley's Case (12 Co. 90) i. 468 ; ii. 220 (1 Rol. 109) ii. 1147 Ashley, Reg. v. (1 Car. & K. 198) i. 567 ; , S. B. (Dudley,, Ga. 188) Ashton's Case (12 Mod. 256) ii. 828 i. 287 i. 636 ; ii. 653 Ashton, Reg. v. (16 Erig. L. & Eq. 846; 1 Ellis &B. 286) i. 504 , CJ. S. ». (2 Sumner, 13) i. 564 Asliwell, Reg. i>. (16 Q. B. D. 190 ; 16 Cox C. CI) ii. 812 Ashworth v. S. (19 Tex. Ap. 182) i. 877 Askew, Rex v. (3 M. & S. 9) i. 1002 Aslett, Rex v. (1 New Rep. 1; 2 Leach, 954; Russ. & Ry. 67) ii. 359, 785 Aspinall, .Reg. v. (2 Q. B. D. 48; 13 . Cox C. C. 563) ii. 191 Asterley, Rex v. (7 Car. & P. 191) ii. 423 Astley, Rex v. (2 East P. C. 729) , i. 553; ii. 1171 Aston, Reg. v. (2 Car. & K. 413) ii. 361, 376 Atcheson, &c. Ey. U. S. v. (16 Fed. Rep. 853) ii. 260 Atchison ;;. S. (13 Lea, 275) i. 940 r , S. B. (3 Lea, 729) ii. 935 Athay, Rex v. (2 Bur. mZ) ii. 973 Athens Armory, U. S. v. (2 Abb. U. S. 129 ; 35 Ga. 344) i. 904, 909 Atherton v. Johnson (2N. H. 31) i. 821, 831 , S. V. (50 Iowa, .189; 32 Am. R.il34) i. 733; ii. 1121, 1123 691 AUS INDEX TO THE CASES CITED. BAG Atkins V. S. (16 Ark. 568) i. 844, 872, 1034; ii. 716 w. S. (11 Tex. Ap. 8) i. 736 , S. v.m Vt. 252) ii. 929, 982 , U. S.v.n Sprague, 558) i. 320 ; ^ ii. 1047 Atkinson, Reg. tf. (11 Cox C. C. 330) i. 633 ; ii. 1153 , Reg. V. (2 Ld. Eaym. 1248 ; 1 Salk. 38-2 ; 11 Mod. 79) i. 364, 955 , Reg. i: (2 Moody, 215) ii. 565 , Keg. V. (2 Moody, 278; Car. & M. 525) ii. 337, 370 V. Rex (3 Bro. P. C. 517) i. 951 , Rex V. (7 Car. & P. 669) ii. 580, 600 , Rex V. (2 East P. C. 673) i. 585 ; ii. 812, 813 !). Sellers (5 C. B. n. s, 442) ii. 964 V. S. (20 Tex. 522) ii. 728 , S. V. (9 Humph. 677) i. 1010, 1028 , S. V. (24 Vt. 448) i. 245 ; ii. 1266, 1267, 1269 Atkyns, Rex v. (3 Bur. 1706) i. 538 ; ii. 985 Atlantic, &c. Rid. v. Jolinston (70 N. C. 348) ii. 505 a Atlee 0. Packet Co. (21 Wal. 389) ii. 1271, 1272 Attorney-General, In re (Mart. & Yerg. 285) i. 32 V. Hudson River Rid. (1 Stock. 526) ii. 1269 ^ V. Kwok-a-Sing (Law Rep. 5 P. C. 179; 8 Eng. Rep. 143) i. 112, 120; ii. 1058, 1059 V. Municipal, Court (103 Mass. 456) i. 825 f. Radloff (10 Exch. 84; 23 Law J. N. s. Excli. 240; 18 Jur. 565 ; 26 Eng. L. & Eq. 413) i. 32 V. Read (2 Mod. 29!)) i. 246, 458 V. Riddle (2 Cromp. & J. 493) i. 219 i'. Ridell (2 Tyrw. 523) i. 219 V. Shield (11 Bear. 441) ii. 270 ,'. Siddon (1 Cromp. & J. 220; 1 Tyrw. 41) i 219 w. Sillem (3 Post. & F. 646) i. 482 i;. Sillim (2H. &C. 431) i. 482 V. Stevens (Saxton, 869; 22 Am. D. 526) i. 174 Aubrey, In re (26 Fed. Rep. 848) i. 122 P. D. (53Cal. 427) ii. 740 Aacarola, U. S. ». (17 Blatch. 423) ii. 753 Audley's Case (3 How. St. Tr. 401) ii. 1132, 1135 Augusta, &c. Rid. w. Renz (55 Ga. 126) i ii. 954, 960 Augustine, S. v. (29 La. An. 119) i. 1061 ; ii. 888 Aulanier «. Governor (1 Tex. 653) i. 464 Aulger t: P. (34 111. 486) ii. 314 Austen, Rex v. (Russ. & Ry. 490) i. 595; ii. 986, 996 692 Austin, P. t. (1 Par. Or. 154) i. 305 ; ii. 721 , Rex V. (7 Car. & P. 796) i. 699 Austine v. P. (110 111. 248) ii. 1122 Autey, Reg. v. (Dears. & B. 294; 7 CoxCC. 329) ii. 560 Averitt v. Murrell (4 Jones, N. C. 322) ii. 987 Avery v. Everett (110 N. Y. 317) i. 967, 970 w. Fox (1 Abb. U. S. 246) i. 174; ii. 1272 , Reg. V. (Bell C. C. 150 ; 8 Cox C. C. 184) ii. 873 , Reg. V. (8 Car. & P. 596) i. 572 0. S. (52 Ala. 340) i. 469 V. S. (26 Ga. 233) i. 1038 , S. V. (7 Conn. 266) i. 501, 759, 767, 768; ii. 927, 933 , S. V. (44 N. H. 392) i. 402 ; ii. 12 , S. V. (64 N. C. 608) ii. 708 V. Ward (160 Mass. 160) ii. 105S Avila, P. V. (4.3 Cal. 196) ii. 1138 Axtell's Case (J. Kel. 13) ii. 1213 Aver, C. v. (3 Cush. 150) i. 572; ii. 529, 557 V. Norwich (39 Conn. 376 ; 12 Am. R. 396) ii. 1273 , S. V. (3 Post. N. H. 301) ii. 116 Ayers v. S. (60 Missis. 709) ii. 645 Ayes, Rex v. (Russ. & Ry. 166) i. 400, 401 ; ii. 699, 701 Ayiett, Rex v. (1 T. E. 63) i. 468 ; ii. 1031 Ay res v. Lawrence (63 Barb. 454) i. 265 Azzopardi, Reg. v. (1 Car. & K. 203 ; 2 Moody, 288) w 1.121 Baal V. Baggerley (Cro. Car: 326) ii. 531 Babb, Rex v. (3 T. R. 579) ii. 256 Babcock v. Buffalo (56 N. Y. 268) i. 1080 , P. V. (7 Johns. 201 ; 5 Am. D. 256) i. 571, 582, 585, 592 ; ii. 145, 204 ,P. .7. (11 Wend. 586) i. 143; ii. 1269 , S. M. (1 Vroom, 29) i. 150 , U. S. V. (4 McLean, 113). i. 199, 320 ; ii. 1021, 1046 Babson, U. S. v. (Ware, U50) i. 955 Baehman v. Sulzbaeher (5 S. C. 58) i. 93 Backarow, S. v. (38 La. An. 316) ii. 753 Backus V. Byron (4 Mich. 536) ii. 132 Bacon's Case (1 Lev. 146) i. 327 Bacon, Reg. v. (11 Cox C. C. 540) ii. 1020 Badcock, Rex v. (Russ. & Ry. 248) i. 915 , Rex V. (Russ. & Ry. 249) i. 649, 676 ; ii. 609 Baden, S. v. (87 Minn. 212) i. 658 Badger, Reg. v. (6 Ellis & B. 137 ; 84 Eng. L. & Eq. 326) ii. 403 , Reg. V. (6 Jur. 994) i. 299, 460 ; ii. 972, 973 , Reg. V. (7 Jur. 216 ; 12 Law J. N. 8. M. C. 66) ii. 972 Baer, U. S. v. (18 Blatch. 493) ii 1018 Bagan, S. v. (41 Minn. 285) ii. 1122 BAK INDEX TO THE CASES CITED. BAN Bagley, C. v. (7 Pick. 279) i. 294, 673 ; ii. 392, 395, 399, 404 V. P. (43 Mich. 355) ii. 1267 Bailey's Case (1 Va. Cas. 258) i. 1014 Bajley v. Buck (11 Vt. 252) i. 714 «. C. (82 Va. 107) ii. 1122 V. Jamieson ( 1 Q. P. D. 329) ii. 1268 V. O'Mahony, (33 N. Y. Super. 239) i. 482 V. Pliiladelpliia Rid. (4 Barring. Del. 389 ; 44 Am. D. 893) i. 174 ; ii, 1271 , Reg. V. (12 Cox C. C. 56) ii. 341, 370 , Reg. V. (Law Rep. 1 C. C. 347 ; 12 Cox C. C. 129) i. 465 ; ii. 846 , Rex V. (1 Moody, 23) i. 559 , Rex V. (Russ. & By. 1) i. 296, 341, 735 , Bex V. (Russ. & By. 341) i. 559 ; 11. 92, 95, 120 V. §. (58 Ala. 414) ii. 802 V. S. (26 6a. 579) i. 1005 V. S. (26 Ind. 422) i. 406 V. S. (52 Ind. 462 ; 21 Am. E. 182) ii, 882 , S. V. (I Post. N. H. 185) i. 239 ; ii. 982 , S. 1!. (1 Post. N. H. 343) i. 500, 504, 1086, 1112 , S. V. (21 Me. 62) i. 471 , U. S. V. (1 McLean, 234) i. 154 , U. S. V. (9 Pet. 238) i. 177; ii. 1023 Baily v. Milner (35 Ga. 330) i. 14 — ■-, Rex V. (Comb. 10) i. 553 ; ii. 756 Bain, Reg. v. (Leigh & C. 129; 9 Cox C. C. 98) ii. 119 a V. S. (61 Ala. 75) i. 302 Bainbridge v.S. (30 Ohio St. 264) i. 1050 Baines, Rex v. ( 6 Mod. 192 ; W. Jones, 65) i. 573 ; ii. 390, 392, 393, 395 Bains v. The James (Bald. 544) i. 194 Baird, 0. «. (1 Ashm. 267) i. 887 Bake, Rex v. (3 Bur. 1731) i 538 ; ii. 490, 505 Bakeman, C. v. (105 Mass. 53) i. 1060, 1061 Baker v. Greenhill (2 Gale & D. 435 ; 6 Jur. 710) ii. 1281 V. P. (40 Mich. 411) ii. 726 , P. V. (96 N. Y. 340) ii. 430 , Reg. V. (3 -Cox C. C. 581) ii. 105 , Rex !;.,(1 Leach, 112; 1 East P. C. 323) ii. 652 , Rex 0. (1 Leach, 290; 2 East P. C. 702) ii. 1167 , Rex V. (1 Mod. 35) ii. 931, 934, 946 V. S. (81 Ala. 38) i. 844 «. S. (17Pla. 406) ii. 851 V. S. (82 Ga. 776 ; 14 Am. St. 192) ii. 253 a V. S. (12 Ohio St. 214) i. 686, 1016 !,-. S. (29 Ohio St. 184 ; 23 Am. R. 731) ii. 882 v. S. (4 Pike, 56) i. 948, 953 V. S. (6 Tex. Ap. 344) u. 357 a Baker v. S. (14 Tex. Ap. 332) ii. 484 , S.«. (1 Jones, N.C. 267) i. 872, 876; ii. 638 , S. V. (71 Mo. 475) , S. c. (65 N. C. .332) , S. V. (83 N. C. 649) V. Townsend (7 Taunt. 422) I. 891 a ii. 26 ii. 2 i. 713, 714 Bakewell, Rex v. (2 Leach, 943 Russ. & Ry. 36) ii. 359, 366 Balch, S. V. (31 Kan. 466) ii. 918, 937 Baldwin, C. v. (11 Gray, 197; 71 Am. D. 703) ii. 643, 583, 585 V. Hayden (6 Conn. 453) ii. 37 V. Herbst (54 Iowa, 168) ii. 1267 V. P. (1 Scam. 304) ii. 806 , Rex V. (3 Camp. 265; Russ. & Ry. 241 ; 2 Leach, 928) i. 668 «. Scoggin(15 Ark.427) i. 899, 916 V. S. (76 Ga. 482) ii. 41 a V. S. (11 Ohio St. 681) ii. 253 «. S. (15Tex. Ap. 275) ii. 1121, 1123 , S. t. (1 Dev. & Bat. 196) i. 1072 , S. V. (57 Iowa, 266) ii. 242 a , S. u. (39 Tex. 76) , S. V. (39 Tex. 155) Bales V. S. (3 W. Va, 686) Baley v. Deaklns (5 B. Monr. 159) ii. 123, 140 Balkumw. S, (40Ala, 671) 1,872 Ball, Ex parte (10 Ch. D, 667) i. 269 y. Baggarly (1 Rol: Abr. 68) ii. 531 V. C. (8 Leigh, 726) u. Gilbert (12 Met. 397) ■', Reg. V. (Car. & M. 249) ii. 430, 464, 488 , Reg. V. (6 Cox C. C. 360) i. 462 i. 462 ii. 781 1003 .504 -, Rexu. (1 Moody, 30) -, Rex V. (1 Moody, 330) -, Rex V. (1 Moody, 333) ii. 1026, 10.30 ii. 106 ii. 662 ii. 652 ii. 782 a i. 869 V. White (39 Ohio St. 650) Ballard v. Bond (1 Jur. 7) Bailer, S. o. (26 W. Va. 90 ; 53 Am. R. 66) i, 768 c ,- ii. 86 a Ballew V. Alexander (6 Humph. 433) i. 271, 272 Balliet v. C. (17 Pa. 509 ; 55 Am. D. 681) ii. 1267 Baltimore and Ohio Rid. v. Wheeling (ISGrat. 40) ii. 268 Baltimore, &c. Rid. S. v. (24 W. Va. 783 ; 49 Am. R. 290) ii. 951, 952 Baltimore Steam Co. S. o. (13 Md. 181) i. 307 Baluss, In re (28 Mich. 507) i. 895 Bamber, Reg. v. (13 Law J. n. s. M. C. 13; 8 Jur. 309) ii. 1267 , Reg. I', (5 Q. B. 279 ; Dav, & M, 367) i. 346; ii. 1281 Bamfield, Rex v. (1 Moody, 416) ii. 660 Bancroft v. Blizzard (13 Ohio, 30) i. 4.30 V. Mitchell (Law Rep. 2 Q. B. 649) i. 32 , S. 0. (10 N. H. 105) i. 559 ; ii. 101 693 BAR INDEX TO THE CASES CITED. BAK Bang V. S. (60 Missis. 571) i. 874 Bangor, S. v. (41 Me. 533) i. 934 Bank Prosecutions (Russ. & By. 378) i. 812, 1061 Bank, S. v. (Phillips, N. C. 577) ii. 891 Bank of Hamilton v. Dudley (2 Pet. 492) i. 194, 279 Bank of Rome v. Mott (17 Wend. 554) i. 237 Bapk of Salina v. Henry (2 Denio, 155) ii. 1262 Banks, Reg. v. (8 Car. & P. 674) i. 260, 261 — , Rex V. (Russ. & By. 441) ii. 833, 864 K. S. (78 Ala. 14) ii. 1030 Bankus v. S. (4 Ind. 114) ii. 1143, 1148 Bannen, Keg. • r. (2 Moody, 309 ; 1 Car. & K. 296) i. 310 ; ii. 299, 609 Bantley, S. v. (44 Conn. 637 j 26 Am. R. 486) ii. 687 Baptiste v. De Volunbruu (5 Har. &J. 86) i. 351 ' , S. V. (26 La. An. 134) i. 908 Barada v. S. (13 Mo. 94) i. 930, 957, 1135 Barbee v. Hereford (48 Mo. 323) i. 429 , S. K. (92 N. C. 820) 1. 413 Barber v. Gingell (3 Esp. 60) i. 975 , Reg. V. (1 Car. & K. 434) ii. 638, 544 , Reg. V. (1 Car. & K. 442) ii. 609 V. S. (34 Ala. 213) ii. 1137 Barbour 1-. C. (80 Va. 287) i. 974 , S. V. (17 Ind. 626) 1. 1014 Barclay v. Breckinridge (4 Met. Ky. • 374) ii.367a V. C. (25 Pa. 603 ; 64 Am. D. 715) i. 490, 828, 1079 BarcuB v. S. (49 Missis. 17 ; 19 Am. R. 1) i. .328 Barden v. Crocker (10 Pick. 383) i. 237, 265 V. Southerland (70 N. C. 528) i. 93 , S. r. (1 Dev. 618) i. 679, 680 Bare v. Rhine (2 Yeates, 286) i. 821 Barefield v. S. (14 Ala. 603) Barefoot, S. v. (89 N. C. 566) ' Barfieldw. S. (29 Ga. 127; 74 Am. 468, 734 ; ii. 89 ii. 517, 519 D. 49) , S. V. (7 Ire. 299) , S. 0. (8 Ire. 344) Barham, S. v. (79 N. C. 646) Barker v. C. (19 Pa. 412) 457: ii. 587 i. 872 ii. 704 ii. 946 ii. 943, 946, 1275 , C. t;. (133 Mass. 899) ii. 1084, 1106 V. P. (8 Cow. 686; 20 Johns.- 15Am. D. 322) i. 944,946, 977, 981 ; ii. 317 . Rex V. (3 Car. & P. 589) ii. 1119 , Rex «. (D. & R. N. P. 19) ii. 340, 342 , S. 0. (28 Ohio St. 583) ii. 657 , U. S. w. (5 Mason, 404) i. 564 «. Wilford (Kirby, 232) ii. 2.53 V. Worcester (139 Mass. 74) ii. 964 Barkhamsted v. Parsons (3 Conn. 1) i. 110, 673 694 Barkman, S. v. (2 Erig. 387) ' 1. 1014 Barksdale, S. v. (5 Humph. 154) i. 419,424; ii. 1282 Barlee v. Barlee (1 Add: Ec. 301)- ii. 271 Barlett, Rex v. (2 Deac. Crim. Law, 1687) ii. 986 Barlow, C. v. (4 Mass. 439) i. 622, 705, 759,772; ii. 55, 743 «. Lambert (28 Ala. 704; 65 Am. D. 374) • i. 35 V. S. (2 Blackf. 114) i. 997 V. S. (77 Ga. 448) i. 796 Barna, S. v. (N. G. Term R. 44) i. 263 Barnabo, U. S. v. (14 Blatch. 74) i. 971 a Barnard, Rftx v. (7 Car. & P. 784) ii. 430, 438 , Rex V. (Comb. 416) i. 246 , S. i>. (88N. C. 661) i. 291 Barnes, C. w. (138 Mass. 511) i. 304 , Reg. V. (10 Cox C. C. 539) ii. 1026 , Reg. V. (1 Eng. L. & Eq. 679; 2 Den. c; C. 59 ; Temp. & M. 387 ) 1.583; ii. 812 V. S. (19 Conn. 398) i. 219, 963 . V. S. (9 Tex. Ap. 128) ii. 1158 , S. V. (34 La. An. 396) ii. 638 , S. i>. (32 S. C. 14; 17 Am. St. 832) i. 915 ^— !). Strong (IJones Eq. 100) ii. 131 Barnett v. Allen (3 H. & N. 376) ii. 926 !). P. (54 111. 325) i.792 ^, Reg. V. (2 Car. & K. 594) ' i. 809 V. S. (54 Ala. 579) ,i. 892 V. S. (100 Ind. 171) i. 844 V. S. (36 Me. 198) i. 833 , S. V. (3 Kan. 260; 87 Am. D. 471) ii. 1156 Barney, C. «. (10 Cush. 478) ii. 11 , Rex V. (Comb. 405) i. 657 , U. S. V. (5 Blatch. 294) 1. 159 Barnicoat v. Six Quarter Casks of Gunpowder (Thacher Crim. Cas. 596) i. 880 Barnoldswick, Eeg. v. (12 Law J. N. 8. M. C. 44) ii. 1281 Bamum v. S. (15 Ohio, 717; 45 Am. D. 601) i. 572, 748 Baron v. P. (1 Par. Cr. 246) i. 667 Barr, S. v. (28 Mo. Ap. 84) ii. 1200 Barrackmore, S. i>. (47 Iowa, 684) i. 808 Barrat, Rex v. (2 Doug. 465) i. 299 ; ii.982 Barratt, Reg. v. (9 Car. & P. 387) i. 809 , Reg. V. (LawiRep. 2 C. C. 81; 12 Cox C. C. 498) ii. 1121, 1123 Barrels of Distilled Oil, U. S. v. (6 Blatch. 174) i. 835 Barrels of Spirits, U. S. v. (1 Dil.49 ; 2 Abb. U. S. 305) i. 822 Barrels of Whiskey, U. S. v. (1 Abb. U. S. 93) i. 822 , U. S. V. (1 Bond, 587) i. 821, 825 Barretry, Case of (8 Co. 36 b) i. 541 ; ii. 64, 65, 69 Barrett, C.w. (108 Mass. 302) • i. 260 BAT INDEX TO THE CASES CITED. BEA Barrett, P. v. (2 Caines, 304 ; 2 Am. O. 239) i. 1016, 1037, 1041 , P. V. (1 Jolins. 66) i. 1021 , Reg. V. (2 Car. & K. 343) i. 217, 314 ; ii. 665 , Eeg. V. (It. Rep. 4 C. L. 285) i. 1033 , Reg. V. (Leigh & C. 263) i. 1094 , Rex u.-(Jebb, 103) i. 1032 V. S. (35 Ala. 406) i. 1033 , S. V. (42 N. H. 466) i. 467 Bairic, P. v. (49 Cal. 342) i. 998 Barrington v. Turner (3 Lev. 28) 1. 1080 Barronet, Reg. i>. (Dears. 51) i. 294, 654; ii. 311 Barrow v. Page (5 Hayw. 97) i. 349 , Reg. V. (Law Rep. 1 C. C. 156) ii. 1122. Barry, Ex parte (86 Cal. 603) ii. 259 , C. V. (Hardin, 237) ii. 270 , Co. (115 Mass. 146) i. 363, 891 a , C. «. (116 Mass. 1) i. 178, 989; ii. 830 , C. u. (124 Mass. 325) ii. 812 , , C. .-. (125 Mass. 390) ii. 813 , P. V. (31 Cal. 357) i. 842 ; ii. 676 Barter v. Martin (5 Greenl. 76) ii. 978 , S. V. (58 N. H. 604) ii. 346 Barth v. S. (18 Conn. 432) i. 931 Barthelemy v. P. (2 Hill, N. Y. 248) i. 591 ; ii. 920 Barthelow v. S. (26 Tex. 175) ii. 1106 Bartlett, Ex parte (4 Bradf. 221) i. 885 V. Bangor (67 Me. 460) ii. 1268 V. Churchill (24 Vt. 218), ii. 38, 41 V. Draper (23 Mo. 407) ii. 490 , Reg. V. (2 Moody & R. 362) ii. 562 , S. V. (30 Me. 132) i. 287 ; ii. 178, 193 , S. V. (11 Vt. 650) i. 141 Barton, Reg. v. (3 Cox C. C. 275) i. 387 , U. S. V. (Gilpin, 439) i. 177 ; ii. 1023 Bartow i). P. (18 Hun, 22) ii. 376 V. P. (78 N. Y. 377) ii. 376 ,P. V. (1 Wheeler Grim. Gas. 378) ii. 1122 Bass V. Irvin (49 Ga. 436) ii. 968 , Rex V. (1 Leach, 251; 2 East P. C. 566) ii. 365, 824, 836, 855 , S. V. (82 N. C. 570) i. 990, 1034, 1035 Bassett v. Spofford (45 N. Y. 387 ; 6 Am. R. 101) ii. 812 Batchelder, P. v. (27 Cal. 69 ; 85 Am. D. 231) i. 857 , S. V. lb N. H. 549) i. 537 ; ii. 504, 1148 V. Tenny (27 Vt. 578) ii. 376 Bateman v. Bluck (18 Q. B. 870) i. 1081 ; ii, 1268 , Reg. V. (1 Cox C. C. 186) ii. 580 Baten's Case (9 Co. 53) i. 821 Bates, Reg. v. (3 Cox C. C. 201) ii. 424 , S. V. (23 Iowa, 96) ii. 1106 Bath V. Pinch (4 Scott, 499) ii. 256 , Rex V. (1 Leach, 441) i. 953 Batt, Rex v. (6 Car. & P. 329) i. 389, 340 ; ii. 994 Batten u. S. (80 Ind. 394) i. 805 Batting, P. .;. (49 How. Pr. 392) i. 409 Battis, C. V. (1 Mass. 95) i. 997 Battiste, U. S. v. (2 Sumner, 240) i. 564 Battle, S. V. (7 Ala. 259) i. 998, 1031, 1041 Batty, Reg. v. (2 Moody, 257) ii. 341, 345 Bauer, P. v. (37 Hun, 407) i. 930 Bauld, Reg. v. (13 Cox C. C. 282) ii. 230 Baum w. Clause (5 Hill, N. Y. 196) i. 917 Baumliager, S. o. (28 Minn. 226) ii. 372 Bauson v. Offley (3 Salk. 38) i. 648 Bawcom K. S. (41 Tex. 189) ii. 1018 Baxter's Case (3 Mo(J. 69) ii. 925 Baxter v. P. (3 Gilman, 368) i. 670 V. Winooski Turnpike (22 Vt. 114; 52 Am. D. 84) i. 265 Bayard v. Passmore (3 Yeates, 438) ii. 259 Bayer, U. S. k. (13 Bankr. Reg. 400 ; 4 Dil. 407) i. 629, 657, 685 Baylis, Rex v. (3 Bur. 1318) i. 462 ; ii.972 Baysinger v. 8. (77 Ala. 68; 54 Am. R. 46) ii. 627 a Bazeley, Rex v. (2 Leach, 835) ii. 830 Bazely's Case (2 East P. C. 571) ii. 830 Beacall, Rex ii. (1 Car. & P. 310) i. 257 ; ii. 353, 376 , Rex V. (1 Car. & P. 454, 457) ii. 339, 340, 354 , Rex V. (1 Moody, 15) ii. 834 Beach v. Hancock (7 Fost. N. H. 223; 59 Am. D. 373) ii. 82 w. P. (U Mich. 106) ii. 1272 , P. V. (77 111. 52) i. 464 V. WoodhuU (Pet. C. C. 2) i. 821 Beal's Case (1 Leon. 327) i. 883; ii. 641 Bealt). S. (16Ind. 378) i. 35, 141 , S. ti. (37 Ohio St. 108; 41 Am. R. 490) i. 744 Beale, Rex v. (1 East, cited 183) ii. 85, 86 Bealoba, P. v. (17 Cal. 389) ii. 728 Beals, C. i: (133'Mass. 396) ii. 41a V. Thurlow (63 Me. 9) i. 32 Beaman, C. « (8 Gray, 497) ii. 774 , Rex V. (Car. & M. 595) ii. 365, 813, 836 Bean v. Bean (12 Mass. 20) i.692; ii. 198, 206 , C. V. (117 Mass. 141) ii. 1138 , S. V. (21 Mo. 269) i. 934 Bear, Rex v. (Carth. 407) ii. 948 , Rex V. (2 Salk. 417) i. 665, 681 ; ii. 918, 927, 946 , Rex !-. (2 Salk. 646) i. 993, 1002, 1009 Beard, Reg. B. (8 Car. & P. 143) 1.572; ii. 579, 598 , Rex V. (Jebb, 9) ii. 758, 882 V. S. (71 Md. 275 ; 17 Am. St. 5.36) i. 1107 Beare, Rex t>. (1 Ld. Raym. 414) i. 681 ; ii. 946 Bearss, P. v. (10 Cal. 68) 1. 670 695 BEL INDEX TO THE CASES CITED. BEN Beasley v. S. (50 Ala. 149 ; 20 Am. R. 292) i. 387, 406 Beatty v. Gillbanks (9 Q. B. D. 308 ; 18 Cox C. C. 138) i. 20C ; ii. 1258 a V. Gilmore (16 Pa. 463; 55 Am. D. 614) i. 244; ii. 1273 V. S. (til Missis. 18) ii. 802 Beaty v. S. (82 Ind. 228) ii- 879 , U. S. V. ( Hemp. 487)' i. 303 a Beaubien, P. v. (2 Doug. Mich. 256) ii. 1267 Beauohamp v. Morris (4 Bibb, 312) i. 536 ; ii. 501 -^— V. S. (6 Blackf. 299) i. 429 ; ii. 675, 677, 704, 713 Beauclerl£, Ex parte (7 Jur. 373) i. 247, 256 Beaudien w. S. (8 Ohio St. 634) ii. 728 Beaumont, Eeg. ■/. (12 Cox C. C. 183) i. 572 a , Reg. V. (Dears. 270 ; 24 Eng. L. & Eq. 558) ii. 340, 346 Beaver, S. v. (5 Barring. Del. 608) i. 736 ; ii. 741 Becht, S. V. (23 Minn. 411) ii. 242 Bechtelheimer v. S. (54 Ind. 128) ii. 727 Beck V. Beck (36 Missis. 72) i. 970 V. Ingram (1 Bush, 356) i. 66 V. S. (76 Ga. 452) i. 406 V. S. (72 Ind. 250) ii. 241 , S. K. (1 Hill, S. C. 363; 26 Am. D. 190) i. 260 Beckford v. Hood (7 T. E. 620) i. 237 Beckham v. Nacke (56 Mo. 546) i. 804 , S. 0. (24 S. C. 283) i. 842, 865 Beckworth, S. v. (68 Mo. 82) i. 780 Becomb, Pennsylvania v. (Addison, 386) ii. 768, 804 Bede, U. S. a. (5 Cranch C. C. 305, n.) i. 1113, 1115 Bedee v. P. (73 111. 320) i. 998 Bedell, Ex parte (20 Mo. Ap. 125) i. 947 Bedford v. Rice (58 N. H. 446) i. 464 Bee, The (1 Ware, 332) ii. 876 Beebees, Ex parte (2 Wal. Jr. 127) ii. 269 Beecham, Reg. o. (5 Cox C. C. 181) ii. 841 a Beechey, Rex v. (Russ. & Ry. 319) ii. 361 V. Sides (9 B. & C. 806) i. 291 6 Beekman, S. v. (3 Dutcher, 124; 72 Am. D. 352) ii. 992 Beekman Street, In re (4 Bradf. 503) ii. 1188 Beeler, S. v. (1 Brev. 482) i. 765; ii. 288 Beeman, S. v. (35 Me. 242) ii. 1267 Beere, Reg. v. (2 Moody & R. 472) i. 1032 Beeson, C. t. (3 Leigli, 821) ii. 1267 , Rex V. (7 Car. & P. 142) ii. 713 Beets V. S. (Meigs, 106) i. 642 Begbie v. Levi (I Cromp. & J. 180) ii. 954 Behimer, S. v. (20 Ohio St. 672) i. 1005 Beliler w. S. (22 Ind. 345) i. 930, 984 Behvmer v. S. (95 Ind. 140) i. 795 Belclier ;•. Johnson (1 Met. 148) i. 32 Belden, P. v. (37 Cal, 81) ii. 824 696 Belden, S. v. (35 La. An. 823) ii. 373 , S. V. (33 Wis. 120 ; 14 Am. R. 748) i. 1004, 1005,1006 Belding, C. «. (13 Met. 10) i. 341; ii. 1267 Belencia, P. v. (21 Cal. 544) i. 409 Beley v. Wingfleld (11 East, 46) i. 713,. 714 Belknap v. Ball (83 Mich. 583 ; 21 Am. St. 622) ii. 936 a, 937 V. Milliken (23 Me. 381 ) i. 267, 271 Bell V. Graham (lNott&McC.278; 9 Am. D. 687) , i. 542 V. Mallory (61 111. 167) ii. 1143, 1144, 1149 V. Miller (5 Ohio, 250) i. 686 , P. V. (49 Cal. 488) i. 387, 406 , Rex V. (1 East P. C. 169 ; Fos- ter, 430) ii. 288 t!. S. (44 Ala. 393) i. 1013, 1014, 1016, 1016 V. S. (48 Ala. 684 ; 17 Am. R. 40) i. 796 V. S. (i Bax. 426) ii. 765 V. S. (42 Ind. 336) ii. 888 ». S. (1 Swan, Tenn. 42) i. 600; ii. 943, 946 V. S. (18 Tex. Ap. 63 ; 51 Am. R. 293) ii. 53 !X S. (20 Tex. Ap. 445) i. 305 , S. V. (29 Iowa, 316) i. 411 ; ii. 110 , S. V. (81 N. C. 891) i. 1009; ii. 745 , S. V. (5 Port. 366) i. 355, 1079 V. Tooley (11 Ire. 605) i. 44, 464 V. Troy (35 Ala. 184) i. 271 . V. Wood (1 Bay, 249) i. 267, 714 Bellingham's Case (1 CoUinson LunT 686 ; Shelf. Lun. 462) i. 384 Bello Corrunes, The (6 Wheat. 152) i. 824 Beloit, S. o. (21 Wis. 280 ; 91 Am. D. 474) i. 464 Beltram v. S. (9 Tex. Ap. 280) ii. 728 Belwood, Reg. v. (U Mod. 80) i. 218 Bembridge, Rex v. (cited 6 East, 136 ; 8 Doug. 327) ii. 163, 982 Ben V. S. (22 Ala. 9 ; 68 Am. D. 234) i. 1061 , S. V. (1 Har. & J. 99) ii. 744 Benedict, S. v. (11 Vt. 236 ; 34 Am. D. 688) ii. 27 V. Stuart (23 Barb. 420) ii. 132 Benesech, Rex v. (Peake Ad. Cas. 93) ii. 1038 Beiifleld, Rex v. (2 Bur. 980) ii. 929, 946, 948 Benge, Reg v. (4 Fost. & F. 604) ii. 662 a Benham v. S. (1 Iowa, 642) i 798 , S. u. (7 Conn. 414) i. 793, 994, 1041 ; ii. 605 , S. V. (23 Iowa, 164 ; 92 Am. D. 417) i. 842, 850, 865, 872, 873 Benjamin, S. v. (2 Or. 125) ii. 961 V. Storr (Law Rep. 9 C. P. 400) i. 265 Benner, U. S. i^. (Bald. 234) i. 127, 128, 334 ; ii. 26, 51 BEE INDEX TO THE CASES CITED. BIG Benner, U. S. ... (5 Cranch C. C. 347) i. 1113, 1115 Bennet, C. v. (2 Va. Cas. 235) i. 1006; ii. 1133 0. Montgomery (3 Halst. 48) ii. 501 , S. V. (3 Brev. 615; 2 Tread. 693) i. 679, 799, 801 Bennett v. Brooks (9 Allen, 118) ii. 956, 957 B. Butterworth (11 How. U! S. 669) i. 194 V. C. (8 Leigh, 745) ii. 728 V. Judson (21 N. Y. 238) i. 320 , P. V. (4 Paige, 282) ii. 270 , Reg V. (Bell C. C. 1) i. 317 , Reg. u. (4 Fost. & F. 1105) ii. 72 b , Rex ». (1 Stra. 101) i. 993 — ^ y. S. (Mart. & Yerg. 133) i. 406 V. S. (16 Tex. Ap. 236) i. 566 V. S. (57 Wis. 69; 46 Am. R. 26) , S. V. (4 Dev. & Bat. 43) , S. V. (14 Iowa, 479) , U. S. V. (3 Hughes C. C. '. Benson v. Manufacturing Co. Met. 562) • , S. V. (28 Minn. 424) V. Strode (2 Show. 150) Bensted's Case (Cro. Car. 583) i. 376 i. 536; ii. 501, 505 i. 140, 141 466) i. 117 (9 i. 420 i. 965 ii. 499 i. 701 ; ii. 1213 i. 471 ii. 2 ii. 740 Bent, Rex v. (1 Den. C. C. 157) Benthal, S. v. (5 Humph. 519) Benthall, S. v. (82 N. C. 664) Bentinck v. Franklin (38 Tex. 458) ii. 131 Bentley v. Ely (2 Stra. 912) i. 909 V. Roan (4 Call, 153) i. 821 Bentz, S. v. (11 Mo. 27) i. 361, 363, 1084 Bordeaux v. Davis (58 Ala. 611) ii. 886 Berdetta, S. u. (73 Ind. 185 ; 38 Am. R. 117) ii. 1273 Bergen, P. o. (53 N. Y. 404) ii. 268 V. S. (13 Vroom, 263) ii. 1281 S. V. (1 Dutcher, 209) ii. 253 Bergin, In re (31 Wis. 383) i. 623 Berhraan, S. v. (Riley, 92; 3 Hiil, S. C. 90) i. 892 Berkshire, S. v. (2 Ind. 207) i. 218, 240, 287 ; ii. 978 Berlin, S. v. (21 S. C. 292; 53 Am. R. 677) i. 140 Bernard, Eeg. v. (1 Fost. & F. 240) i. 112, 636 , Rex V. (Holt, 152) i. 246 Berne v. Bank of England (9 Ves. 347) • i. 119 Bernhard v. S. (76 Ga. 613) i. 411 Berry v. C. (10 Bush, 15) i. 305, 865 , C. 0. (5 Gray, 93) i. 1014 , C. V. (99 Mass. 428; 96 Am. D. 767) ii- 367, 373 , Reg. V. (Bell C. C. 46; 8 Cox C. C. 121) ii. 1026, 1030 , Reg. V. (Bell C. C.95; 8 Cox C. C. 117) ii. 873 Berry, Reg. v. (1 Q. B. D. 447; 13 Cox C. C. 189) i. 895, 396 V. S. (10 Ga. 511) i. 652, 796 V. S. (31 Ohio St. 219; 27 Am. R. 506) ii. 758, 841 a V. S. (4 Tex. Ap. 492) i. 629, 668 , S. V. (21 Mo. 504) i. 955 V. Williams (1 Zab. 423) ii. 505 Berryman, S. v. (8 Nev. 262) ii. 765, 766 Bertheol, S. v. (6 Blackf. 474 ; 39 Am. D. 442) i. 504, 1112, 111.3, 1115 Bertrand, Reg. v. (Law Rep. 1 P. C. 520; 10 Cox C. C. 618) i. 1001 , S. «. (3 Or. 61) i.865 Bescher v. S. (32 Ind. 480) i. 1032 Bessell v. Wilson (1 Ellis &B.489; 22 Law J. N. 8. M, C. 94 ; 17 Jur. 664 ; 18 Eng. L. & Eq. 294) i. 460 Best, P. V. (39 Cal. 690) i, 376, 384 , Reg. V. (2 Ld. Raym. 1167 ; 1 Salk. 174 ; 6 Mod. 137 ; 8 Mod. 321 ; Holt, 151) i. 264, 591, 592 ; ii. 192, 217 219 , Reg. V. (2 Moody, 124 ; 9 Car. &P. 368) i. 573, 712; u. 393 Bethune v. S. (48 Ga. 505) ii. 118 Bethurum, Ex parte (66 Mo. 545) i. 280 Bettilini, U. S. k. (1 Woods, 654) i. 488 Bettison, In re (12 Eng. Rep. 654) ii. 1190 Betts V. Armstead (20 Q. B. D. 771) i. 304 , Eeg. V. (Bell C. C. 90; 8 Cox C. C. 140) ii. 376, 855 , Reg. V. (16 Q. B. 1022; 22 Eng. L. & Eq. 240) i. 341 ; ii. 1271, 1272 Bettsworth, Rex v. (2 Show. 75) i. 246 Bevans, S. v. (37 Iowa, 178) ii. 978 - — , U. S. V. (3 Wheat. 336) i. 145, 147, 159, 176, 201 Beverley's Case (4 Co. 123 b) i. 375, 400, 401 Bevington v. S. (2,0hio St. 160) ii. 606, 608 Bibithe's Case (4 Co. 43) i. 664, 668, 678 Biukerstaff, Reg. v. (2 Car. & K. 761) ii. 904 Biokerton, Rex v. (1 Stra. 498) i.256; ii. 918 Bickley v. C. (2 J. J. Mar. 572) ii 268 Bicksler, U. S. u. (1 Mackey, 341) ii. 281 a Bidinger v. Bishop (76 Ind. 244) i. 1081 Bieber v. S. (45 Ga. 569) i. 700 ; ii. 1137 Bielschofsky u. P. (5 Thomp. & C. 277) ii. 418 Bigelow, S. V. (34 Me. 243) ii. 1267 , U. S. u. (3 Mackey, .393) i. 1034 Bigg, Rex V. (1 Stra. 18 ; 2 East P. C. 882 ; 3 P. Wms. 419) ii. 570 a, 573 BiggerstafE v. C. (11 Bush, 169) i. 464 Biggins, P. !'. (65 Cal. 564) ii. 703 Biggs V. P. (8 Barb. 547) ii. 1200 V. S. (29 Ga. 723; 76 Am. D. 630) . ii. 708 Bigham v. S. (59 Missis. 529) i. 1010 Bigley v. Nunan (53 Cal. 403) i. 265 697 BIS INDEX TO THE GASES CITED. BLA Bigley, Eex v. (1 Crawf. & Dix C. C. 202) i. 262 Bilansky, S. v. (3 Minn. 246) i. 938 Biles V. C. (32 Fa. 529; 75 Am. D. 5B8) ii. 629, 686 Billard v. Erliart (35 Kan. 611) i. 265 Billingham, Rex v. (2 Car. & P. 234) ^ i. 632 J ii. 35 Billings, S. v. (72 Mo. 662) il. 2 Billis V. S. (2 McCord, 12) 1. 997 Bingham, In re (32 Vt. 329) ii. 244 Binghanipton: Bridge, The (3 Wal. 51) ii. 1269 Bingley, Eex v. (5 Car. & P. 602) i. 224; ii. 767, 1162 , Rex V. (Russ. & Ry. 446) i. 050 ; Binney's Case (2 Bland, 99) Binns v. S. (66 Ind. 428) Birch, Ex parte (3 Gilman, 134) ii. 609 i. 150 ii. 728 i. 899, 908 ^, Reg. V. (2 Car. & K. 198 ; 1 Den. C. 0. 185) i. 809 Birchall, Reg. v. (4 Post. &P. 1087) ii. 662 a Bircham, P. ;•. (12 Cal. 50) i. 900 Bird, Ex parte (19 Cal. 130) ii. 951 V. Breedlove (24 Ga. 628) i. 900, 906 V. C. (21 Grat. 800) i. 203 V. Holbrook (4 Bing. 628) i. 856 V. .Jones (7 Q. B. 742) ii. 26, 748 , Reg. V. (9 Car. & P. 44) ii. 92, 758, 789 , Reg. V. (12 Cox C. C. 267 ; 4 Eng. Rep. 533) ii. 812 ■-, Reg. V. (2 Eng. L. & Eq. 448 ; 2Den. C. C. 94; 5 Cox C. C. 20) i. 785, 809, 1049i 1053, 1054 V. S.- (16 Tex. Ap. 528) i. 021 -:— , U. S. V. (2 Brer. 85) i. 998 Birdsall v. Pixley (4 Wend. 196) ii. 256 Birdseye, Rex v. (4 Car. & P. 386) i. 793, 1061 ; ii. 889 Birkett, Eex u. (Bayley Bills, 6th ed. 586) - ii. 603 , Rex f.'(Russ. & Ry. 86) ii. 629, 698 , Rex V. (Russ. & Rv. 251) ii. 562, 574 , Rex V. (Russ. & Ry. 268) i. 1070 Birmingham, S. v. (Busbee, 120) i. 1053 Birmingham & Gloucester By. Reg. w. (1 Gale & D. 467 ; 5 Jur. 40) i. 419 , Reg. V. (2 Gale & D. 236 ; 9 Car. & P. 469; 6 Jur. 804; 3 Q. B. 223) i. 419, 422 Biron, C. v. (4 Call. 125) ii. 701 Birt, Rex v. (5 Car. & P. 154) i. 534 ; 11. 1161, 1258 Bishop V. Fahay (15 Gray, 61) i. 1080 , P. V. (5 Wend. Ill) i. 718 , Reg. V. (Car. & M. 302) ii. 1028 , Reg. V. (5 Q. B. D. 259 ; 14 Cox C. C. 404) i. 311 , Rex V. (5 B. & Aid. 612) i. 247, 462 w. S, (9 Ga. 121) i. 997 698 Bishop i». S. (55 Md. 138) ii. 567 a Bitman, S. v. (13 Iowa, 485) i. 881 Bivens v. S. (6 Eng. 455) ii. 720, 723, 728 Bixby, P. V. (4 Hun, 636) i. 600, 1129 , U. S. V. (10 Bis. 238) ii. 349 Biornsen, Reg. v. (Leigh & C. 545) i. 112, 117 Black I'. S. (86 Ga. 447 ; 91 Am. D. 772) i. 1000, 1021, 1026 V. S. (2 Md. 376) i. 669, 805, 810 ;. ii. 1000 V. S. (8 Tex. Ap. 329) Blackbourne, Rex o. (Trem. 101) Blackburn, C. v. (1 Duv. 4) v.S. (22 Ohio St. 102) V. S. (23 Ohio St. 146) Blacket, Reg. v. (7 Mod. 39) ii. 740 P. C. ii. 152 i. 814 ii. 1118, 1131, 1136 ii. 1187 i. 692; ii. 160, 236 Blackham, Eex v. (2 East P. C. 711) i. 329, 582 ; il. 807 Blackman v. S. (12 Ind. 656) i. 464 , S. V. (35 La. An. 488) i. B21, 1033 Blackmore v. Brider (2 Pbillim. 359 n.) i. 38 Blackson, Eex v. (8 Car. & P. 43) i. 664 Blackwell ... Old Colony Rid. (122 Mass. 1) ' i. 266 , S. V. (9 Ala. 79) i. 548, 1014 ; ii. 32, 34 Bladen, XJ. S. «. (1 Cranch C. C. 548) i. 115 Blair v. C. (25 Grat. 850) i. 899, 903 V. Forehand (100 Mass. 136; 97 Am. D. 82 ; 1 Am. R. 94) i. 832, 1080 , S. V. (13 Rich. 93) ii. 1149 Blaisdell, C. t>. (107 Mass. 234) ii. 1273 — -, S. V. (33 N. H 388) i. 917 , S. V. (59 N. H. 328) i. 998 Blake i;. Allen (Sir F. Moore, 619) i. 572 ; ii. 674, 600 V. Barnard (9 Car. & P. 626) i. 648; ii. 28, 32, 84 V. Beech (2 Ex. K. 336) i. 32 , P. V. (65 Cal. 275) i. 406 , P. w. (1 Wheeler Grim. Cas. 490) i. 749 , Eeg. V. (6 Q. B. 126) ii. 225 J). S. (3Tex. Ap. 681) i. 873 Blakeley, P. v. (4 Par. Cr. 176) i. 896 Blakely's Will, In re (48 Wis. 294) i. 380 Blakemore, Reg. v. (2 Den. C. C. 410; 5 Cox 0. C. 618; 9 Eng. L. & Eq. 641) ii. 1267 Blakesley, S. «. (38 Conn. 623) i. 1088 Blalock, S. V. (Phillips, N. C. 242) i. 898, 900, 907 Blanc V. Rodgers (49 Cal. 15) i. 917 Blanohard, Exparte (9Nev. lOl) i. 36 , P. V. (90 N. Y. 814) i. 571 ; ii. 419 V. Sprague (3 Sumner, 585) i. 279 Blapd, Rex v. (2 Leach, 696 ; 2 East P. C 760) i. 942 BOA INDEX TO THE CASES CITED. BOO Bland v. S. (2 Ind. 608) i. 951 '. V. WJiitfteld (1 Jones, N. C. 122) ii. 968 Blanding, C. v. (3 Pick. 304) i. 110, 691; ii. 915, 918, 922 Blassingame v. Glares (6 B. Monr. 38) i. 264 Blatchley v. Moser (15 Wend. 216) i. 1067 Blaufus V. P. (69 N. Y. 107 ; 25 Am. R. 148) i. 975 Bleasdale, Eeg. v. (2 Car. & K. 765) i. 310, 793, 1061 ; ii. 888, 889 — ^, Rex V. (4 T. R. 809) i. 957 Bledsoe V. Little (4 How. Missis. 13) ii. 136, 137 Blenkinsop, Beg. .v. (1 Den. C. C. 276 ; 2 Car. & K. 631) i. 572 ; ii. 576, 588, 591 Blevings v. P. (1 Scam. 172) i. 934 Blige V. S. (20 Fla. 742 ; 51 Am. E. 628) ii. 680 Blight V. Fisher (Pet. C. C. 41) ii. 252 Blimm v. C. (7 Bush, 320) i. 401 Bliss,. C. V. (1 Mass. 32) i. 264, 266 , C. V. (12 Philad. 580) ii. 175 I). Connecticut and Pass. Rid. (24 Vt. 424) i. 406 Blisset, Rex v. (1 Mod. 13) i. 534 ; ii. 1258 BWck, U. S. V. (4 Saw. 211) i. 200 Blocker v. S. (27 Tex. Ap. 16) ii. 728 , S. V. (14 Ala. 450) ii. 273 Blodget V. Eoyalton (14 Vt. 288) ii. 1267 Blodgett, C. V. (12 Met. 56) 1. 45, 132, 153, 355 ; ii. 753 , S. V. (50 Vt. 142) ii. 37 Bloedow, S. K. (45 Wis. 279) ii. 72 e Blood V. Bates (31 Vt. 147) ii. 968 Bloodworth v. S. (6 Bax. 614; 32 Am. R. 546) ii. 1121 Bloom V. Richards (2 Ohio St. 387) i. 35 ; ii. 954, 968 Bloomer v. S. (3 Sneed, 66) ii. 27 Bloomfield v. Blake (6 Car. & P. 75) ii. 211, 212, 221 ,.Rexw. [Car. &!VI. 537) ii. 4.39, 537 Bloomhufe V. S. (8 Blackf. 205) i. 504, 800, 1113, 1115, 1118, 1135, 1137 Bloss V. Tobey (2 Pick. 320) i. 659, 576 ; ii. 12 Blount, S. V. (85 Mo. 543) i. 516 V. Wells (55 Ga. 282) . i. 464 Blue V. Christ (4 Bradw. 351) i. 633 Blum, In re (2 Sprague, 73) i. 64 V. S. (20 Tex. Ap. 578; 54 Am. R. 530) ii- 430 Blunt's Case (1 How. St. Tr. 1409) i. 638 Blunt V. C. (4 Leigh, 689 ; 26 Am. D.341) ii. 801, 840 Blydenburgh v. Miles (39 Conn. 484) i. 946, 1144 Blyth, S. V. (1 Bay, 166) .i. 266 BIythe v. Wright (2 Ashm. 428) u. 493 Boardman v. Gore (15 Mass. 331) i. 271 Boardman, S. v. (64 Me. 523) i. 1088 Boasso, S. V. (38 La. An. 202) ii. 529, 606 Boat Swallow (1 Ware, 21) i. 821 Bob «. Respublica (4 Ball. 145) ii. 728 V. S. (29 Ala. 20) i. 764 Bock V. S. (50 Ind. 281) ii. 520 a. Bode V. S. (6 Tex. Ap. 424) i. 305 Bodwell V. Osgood (3 Pick. 379; 15Am. D. 228) i. 308; ii. 914 Bogart V. Electrical Supply Co. (23 Blatch. 652 ; 27 Fed. Rep. 722) ii. 242 , U. S. V. (9 Ben. 314) ii. 281 a, 291 Boggs, D. S. V. (31 Fed. Rep. 337) ii. 1053 b Bohan, S. v. (19 Kan. 28) i. 306 Bohanan v. S. (18 Neb. 57 ; 53 Am. R. 791) i. 1006 Bohannon v. C. (8 Bush, 481; 8 Am. B. 474) i. 842, 844 , S. V. (21 Mo. 490) ii. 1004 Bohl V. S. (3 Tex. Ap. 683) ii. 951 Bohles, S. V. (Rice, 145)' i. 287 Boice, S. V. (1 Houst. Crim. 355) ii. 727 Boies,; S. V. (34 Me. 235) i. 464; ii. 1149 Boland, S. v. (12 Mo. Ap. 74) ii. 1014 Bolander, S. v. (71 Iowa, 706) ii. 796, 845 Bolden v. 8. (64 Ga. 361) ii. 1143, 1144 Boles V. Lynde (1 Root, 195) i, 831, 944 V. Pinkerton (7 Dana, 453) ii. 38 V. S. (9 Sm. & M. 284) ii. 720 Boling V. Luther (N. C. Term R. 202) ii. 1020 Boll, S. V. (69 Mo. 321) i. 1143 BoUand, Rex v. (1 Leach, 83; 2 , East P. C. 968) i. 572, 748 BoUman, Ex parte (4 Cranch, 75) i. 201, 226, 456, 684; ii. 1202, 1228, 1231, 1232 , U. S. t). (1 Cranch C. C. 373) ii. 1202 Bolster V. Cushman (34 Me. 428) ii. 13 Bond, C. w. (1 Gray, 564) ii. 298 V. Padelford (13 Mass. -394) ii. 791 , Reg. w. (14 Cox C. C. 2) i. 842 u. S. (20 Tex. Ap. 421) ii. 1156 , S. V. (8 Iowa, 540) i. 297 V. Wilder (16 Vt. 393) i. 208 Bonds V. S. (Mart. & Yerg. 143 ; 17 Am. D. 795) i 396 , S. V. (2 Nev. 265) . ii. 704 Bone V. S. (18 Ark 109) i. 713 Bonfanti v. S. (2 Mhm. 123) J. 736 ; ii. 742 Bonker v. P. (37 Mich. 4) 1. 302 Bonnard v. S. (25 Tex. Ap. 173; 8 Am. St. 431 ) ii. 716 Bonner, C. v. (9 Met. 410) i. 429, 691 ; u. 920, 922 i. 658 i. 777, 792; ii. 1167 Bon sell v. U. S. (1 Greene, Iowa, 111) i. 670 Bontien, Bex v. (Russ. & Ry. 260) i. 572 ; ii. 683 Boober, Reg. v. (4 Cox C. C. 272) i. 363 Boody V. Keating (4 Greenl. 164) i. 271 , S. V. (53 N. H. 610) ii. 849 699 , S. v.(2 Head, 136) Bonsall t>. S. (36 Ind. 460) BOU INDEX TO THE CASES CITED. BOY ii. 934 i. 490 ii. 699 i. 938 ,801 ,953 .267 .431 11. I Boogher, S. v. (3 Mo. Ap. 442) Boom !). Utica (2 Barb. 104) Boon, S. !,•. (82N.C. 637) -^—, S. V. (Taylor, 246) Booth V. C. (4 Grat. 525) V. C. (5 Met. 535) V. Hodgson (6 T. R. 405) , P. V. (32 N. Y. 397) , Rex V. (Russ. & Ry. 47) i. 557, 888 ; ii. 29 V. Shepherd (8 Ohio St. 243) i 150 V. S. (4 Conn. 65) i. 1150 Bootie, Rex v. (2 Bur. 864) i. 459, 707 ; ii. 1104 Booty, Rex v. (2 Keny. 675) i. 459, 707 ; ii. 1104 Bordeaux, S. v. (2 Jones, N. C. 241) i. 538; ii. 499, 505 Borden, U. S. k. (1 Sprague, 374) i. 564 Boreham, Reg. o. (2 Cox C. C. 189) ii. 560 Borgman, S. v. (2 Nott & McC. 34, n.) i. 686 Boric V. P. (91 N. Y. 6) ii. 349 Borlapd v. Dean (4 Mason, 174) i. 821 Borrett, Rex v. (6 Car. & P. 124) i. 464 ; ii. 376, 392 Borron, Rex «. (3 B. & Aid. 432) i. 462, 972 Borthwick, Rex v. (1 Doug. 207) i. 653 Bosley v. McAllister (13 Ind. 565) ii. 968 Bosse, S. V. (8 Rich. 276) i. 35, 938, 939 ; ii. 18 Bostick, S. V. (4 Barring. Del. 563) i. 370 Boston, The (1 Sumner, 328) ii. 876 Boston, &c. Rid. C. v. (134 Mass. 211) ii. 662 a , C. V. (136 Mass. 650) ii. 1282 , S. V. (.58 N. H. 410) ii. 662 a Boston and Worcester Rid. «. Dana (1 Gray, 83) Bostwick V. Lewis (2 Day, 447) Boswell V. C. (20 Grat. 860) V. S. (63 Ala. 307 ; 35 Am. R. 20) V. S. (20 Fla. 869) -;. S. (Ill Ind. 47) Bothe's Case (Sir F^ Moore, 66 Bothwellw. Brown (51 111.234) Bott, S. V. (31 La. An. 663 ; 33 Am. R. 224) ii. 9-52 Bottomley v. U. S. (1 Story, 135) i. 821 Botwright, Rex v. (Say. 147) ' i. 582 ; ii. 145 Boucher, Rex v. (4 Car. & P. 562) ii. 1200 271 i. 264 i. 406 ' i. 387 i. 1058 i. 1013 ii. 609 i. 710 Boiilo V. S. (49 Ala. 22) Boult, Reg. V. (2 Car. & K. 604) i. 516 i. 572 ; ii. 606 Boulton, Reg. v. (12 Cox Q. C. 87) i. 812, 815 , Reg. V. (1 Den. C. C. 508 ; 2 Car. & K. 917 ; 19 Law J. n. s. M. C. 67 ; 13 Jur. 1034) ii. 477 Bounell v. Berryhill (2 Ind. 613) i. 885 Bourke v. Mealy (14 Cox C. C. 329) i. 711 700 Bourne v. Rex (2 Nev. & P. 248 ; 7 A. & E. 58 ; 1 Jur. 642) i. 930 , Rex V. (5 Car. & P. 120) i. 876, 877 Boutelle v. Nourse (4 Mass. 431) i. 966, 1053 Boutwell, C. V. (129 Mass. 124) ii. 673 Bovard v. S. (30 Missis. 600) i. 384, 398 Bowden v. Adams (22 Fla. 208) ii. 1267 , C. V. (14 Gray, 103) ii. 108 , C. V. (9 Mass. 494) 1. 1033 Bowe, P. V. (34 Hun, 628) ii. 1019 Bowen, C. v. (13 Mass. 366 ; 7 Am. D. 164) i. 510, 652 ; ii. 1187 V. Hunter (45 How. Pr. 193) ii. 244 , P. «. (43 Cal. 439 ; 13 Am. R. 148) i. 902 , Beg. V. (Car. & M. 149) i. 340 ; ii. 53 , Reg. «. (13 Q. B. 790; 18 Jur. 1045) ii. 471 V. S. (9 Bax. 45 ; 40 Am. R. 71) a 429 6, 434 V. S. (25 Fla. 646) i. 666 , S.v.tl Houst. Crim. 91) i. 410; ii. 728 Bower, Rex v. (Cowp. 323) i. 582 ; ii. 145, 163 Bowerman, Reg. v. (1891, 1 Q. B. 112; 17 Cox C. C. 151) ii. 786 Bowers v. Fitzrandolph (Addison, 215) i. 1080 V. Jewell (2 N. H. 543) ii. 676 , Reg V. (Law Rep. 1 C. C. 41) ii. 341, 348 , S. V. (14 Ind. 196) i. 1148 , S. V. (94 N. C. 910) i. 1029 Bowery Savings Bank v. Richards (6 Thomp. & C. 59; 3 Hun, 366) ii. 269 Bowler's Case (1 CoUinson Lun. 673; Shelf. Lun. 461) i. 384 Bowler v. S. (41 Missis. 570) ii. 415, 471, 486 Bowles V. Habermann (96 N. Y. 246) i. 971 a V. S. (37 Ohio St. 35) ii. 567 o Bowling, S. V. (10 Humph. 52) i. 808 Bowman v. Blyth (7 Ellis & B. 26) ii. 400 , C. !). (3 Pa. St. 202) ii. 1269 , Rex V. (6 Car. & P. 101) i. 1041 , Rex V. (6 Car. & P. 337) i. 1028 , S. !). (6 Vt. 594) ii. 288 Bowray, Reg. w. (10 Jur. 211) i. 531 Box, Reg V. (9 Car. & P. 126) ii. «01, 816 Boyall, Rex v. (2 Bur. 832; 2 Keny. 849) i. 240 Boyce, Rex v. (1 Moody, 29) i. 341, 729 , S. «. (lOIre. 536) i. 1114 I). Tabb (18 Wal. 546) i. 194 Boyd V. Banta (Coxe, 266) i. 369, 821, 970 1!. C. (1 Rob. Va. 691) i. 578; ii. 769 V. S. (88 Ala. 169; 16 Am. St. 31) i. 886 I). S. (7 Coldw. 69) i. 893 V. S. 2 Humph. 39) , ii 996 «. S. 19 Neb. 128) ii. 242 a '«. S. (18 Tex. Ap. 339) ii. 851 BRA INDEX TO THE CASES CITED. BEE Boyd V. S. (19 Tex. Ap. 446) li. 1010 , S. V. (36 Minn. 538) ii. 882 V. U. S. (14 Blateh. 317) 1. 488 Boyden, S. v. (13 Ire. 605) i. 735, 759, 772; ii; 743 , U. S. ... (1 Low. 266) i. 488 Boyes, Reg. w. (1 B. & S. 311 ; 9 Cox C. C. 32; 2 Fost. & F. 167) i. 912, 917 Boyett, S. v. (10 Ire. 336) i. 295, 298 V. Vaughan (89 N. C. 27) ii. 271 Bovle, In re (9 Wis. 264) i. 464 V. S. (57 Wis. 472 ; 46 Am. B. 41) ii. 722 , , S. V. (28 Iowa, 522) i. 810 , S. V. (13 R. I. 537) i. 3^9 Boynton, C. v. (2 Allen, 160) 1. 303 a , C. V. (2 Mass. 77) i. 571 ; ii. 148, 594 , C. V. (116 Mass. 343) i. 658 Boys, Rex v. ( Say. U.3) i. 240 Brabham *. S. (18 Ohio St. 485) ii. 1200 Bracey v. S. (64 Missis. 26) ii. 471 Braclcett, Reg. v. (4 Cox C. C. 274) ii. 812 Bradberry v. S. (7 Tex. Ap. 375) ii. 1032 Bradcat v. Tower (1 Mod. 89) ii. 766 Braddee v. C. (6 Watts, 530) i. 805 Bradden, Rex v. (Trem. P. C. 35) i. 32 Braden, S. w. (2 Tenn. 68) i. 207 ; ii. 758, 786, 799 Bradford, C. v. (9 Met. 268) i. 298, 428 V. McKibben (4 Bush, 545) i. 832 , P. !;. (1 Wheeler Crim. Cas. 219) ii. 212 , Reg. V. (Bell C. C. 268; 8 Cox C. C. 309) i. 531 , Reg. V. (2 Crawf. & Dix C. C. 41) _ -, Reg. V. (2 Fost. & F. 859) -, Rex V. (Comb. 304) i -, Rex V. (1 Ld. Raym. 366) ii. 290 ii. 598 504, 1145 i) i. 582 ; ii. 419 ii. 766 B. D. 309, 1079 V. S. (6 Lea, 634) Bradlaugh, Ex parte (3 Q. 509) , Reg. w. (15CoxC. C. 217) ii. 74 Bradley v. Davis (14 Me. 44 ; 30 Am. D. 729) i. 208 V. Fisher (13 Wal. 335) i. 460, 462 u. Heath (12 Pick. 163 ; 22 Am. D. 418) V i, 308;ii. 914 V. P. (56 Barb. 72) i. 531, 1097 V. P. (8 Colo. 599) i. 291 6 V. S. (32 Ark. 722) i. 1010 V. S. (31 Ind. 492) i. 383, 387, 406 V. S. (10 Sm. & M. 618) i. 736 ,). S. (Walk. Missis. 156) i. 891 Bradshaw, Reg. v. (14 Cox C. C. i i. 836 , Brad way v. Le Worthy (9 Johns. 251) i. 713 Brady, C. v. (5 Gray, 78) i. 320 , P. V. (56 N. Y. 182) ii. 198 , Reg. V. (26 U, C. Q. B. 13) ii. 481, 483 , S. V. (9 Humph. 74) i. 226, 659 Brady, S. v. (44 Kan. 435; 21 Am. St. 296) ii. 929, 930 , S. «. (14 Vt. 353) i. 793, 796, 1062; ii. 116 V. Weeks (3 Barb. 157) i. 1141 Bragg V. Lorio (1 Woods, 209) i. 904, 910 , S. V. (86 N. C. 687) ii. 766, 784 Braidy v. Theritt (17 Kan. 468) i. 464 Brain, Rex v. (6 Car. & P. 349) ii. 632 Braman, P. v. (30 Mich. 460) ii. 1200 Bramley, Rex v. (Russ. & Ry. 478) ii. 758, 793 Branch v. S. (41 T6x. 622) i. 694 V. S. (20 Tex. Ap. 599) i. 1021 Branch Bank of Mobile v. Murphy (8 Ala. 119) i. 296 Brandon, Rex v. (stated Cas. temp. Hardw. 372) i. 204 , S. V. (8 Jones, N. C. 463) i. 384, 387, 849, 857, 875 Brandreth's Case (32 How. St. Tr. 756) ii. 1213 Brandt v. C. (94 Pa. 290) i. 670 Branhara, S. v. (13 S. C. 389) ii. 118 Brannon, S. v. (66 Mo. 63; 17 Am. R. 648) i. 1054; ii. 1182 Branny, Rex v. (2 East P. C. 704 ; 1 Leach, 241, n.) ii. 897 Bransby, P. v. (32 N. Y. 526) ii. 25, 35 Branworth, Reg. «. (6 Mod. 240) i. 515 Brasier, Rex v. (1 Leach, 199) Bratton v. S. (10 Humph. 10.3) ii. 1118 ii. 723, 728 ii. 1018 Bray v. S. (41 Tex. 560) Braynard, C. v. (Thacher Crim. Cas. 146) ii. 258 Brazier, Rex v. (Russ. & Ry. 337) ii. 834, 870 Breck v. Blanchard (2 Fost. N. H. 303) i. 553 Breedlore w. S. (26 Tex. Ap. 445) ii. 719 Breeme, Rex v. (1 Leach, 220; 2 East P. C. 1026) i. 569, 577 ; ii. 13 Breen, Reg. v. (3 Crawf. & Dix C. C. 30) ii. 758, 882 Breese v. S. (-12 Ohio St. 146; 80 Am. D. 340) i. 650, 053 Bremner v. Williams (1 Car. & P. 414) 1. 301 Bren, Reg. v. (Leigh & C. 346) ii. 343 Brennan v. P. (16 111. 611) i. 635, 636, 648, 670, 1006, 1056 , P. I,. (45 Barb. 344) ii. 256 , Reg. V. (1 Crawf. & Dix C. C. 660) ii. 802 V. Tracy (2 Mo. Ap. 540) ii. 984 Brennon v. S. (25 Ind. 403) ii. 1159, 1168, 1179 Brery v. Levy (1 W. Bl. 443) i. 713 Bressant, C. v. (126 Mass. 246) i. 1029 Brettel, Reg. «. (Car. & M. 609) i. 778, 793,1061; ii. 888 Brewer, S. v. (7 Blackf. 45) i. 899 BrewiDgton, S. v. (84 N. C. 783) ii. 946 Brewster v. Gelston (11 Johns. 890) i. 821 701 BRI INDEX TO THE CASES CITED. BRO Brewster, S. v. (7 Vt. 118) i. 135 , U. S. V. (7 Pet. 164) ii. 694 Brlce, Rex v. (1 Chit. S52) i. 992 , Rex ». (Russ. & Ry. 450) ii. 91, 95 Bridges, Ex parte (2 Woods, 428) ii. 1023 , S w. (1 Murph. 134) i. 805, 810 Brig Alexander (3 iVtason, 175) i. 564 Brig Caroline (1 Brock. 884) i. 564 Brig James Wells, U. S. v. (3 Day, 296: 7 Cranch, 22) i. 851, 352, 821, 824 Brig Neurea, U. S. v. (19 How. U. S. ■ 92) i. 822 Brig Tryphenia v. Harrison (1 Wash. C. C. 522) , i. 564 Brig Wilson v. TI. S. (1 Brock. 423) i. 173 Brigantine Mars, U. S. v. (8 Cranch, 417) i. 822 Briggs V. C. (82 Va. 554) i. 1006 ; ii. 652 , C. V. (5 Met. 559) ii. 1084 , C. „. (5 Pick. 420; 7 Pick. 177) i. 961, 1017 , S. V. (3 Ire. 357) i. 536, 861 ; ii. 37 , S. V. (27 S. C. 80) i. 1014 , S. V. (34 Vt. 501) ii. 683 Brigham, P. v. (2 Mich. 550) i. 618 Bright, Ex parte (1 Utah, 145) i. 45 — ^, C. V. (78 Ky. 238) i. 1062 , S. V. (2 Car. Law Repos. 634) ii. 396 , U. S. V. (1 Whart. Pa. Dig. 806) i. 153 Brightside Bierlow, Reg. v. (4 New Sess. Cas. 47 ; 14 Jur. 174) i. 791 BrightweU v. S. (41 Ga. 482) i. 962 Brigstock, Rex v. (6 Car. & P. 184) ii. 936 Briley, S. v. (8 Port. 472) ii. 1004, 1006 Brill V. Flagler (23 Wend. 354) i. 1080 Brimilow, Reg. v. (9 Car. & P. 366 ; 2 Moody, 122) i. 873, 809 ; ii. 1117 Bringard, P. v. (89 Mich. 22; 33 Am. R. 844) , ii. 374, 375 Brink w. S. (18 Tex. Ap. 344; 51 Am. R. 317) i. 990 Brinkley v. S. (58 Ga, 296) i. 883 6 Brinley v. Whiting (5 Pipk. 348) i. 307, 641 ; ii; 136, 137, 138 Brinyea, S. v. (5 Ala. 241) i. 896, 948 Brishy, Reg. o. (3 New Sess. Cas. 591 ; Temp. & M. 109; 1 Den. C. C. 416 ; 13 Jur. 520) i. 240 Bristol ». Dann (12 Wend. 142; 27 Am. D, 122) ii. 128 , P. V. (23 Mich. 118) i. 789 Bristow V. C. (15 Grat. 634) i. 877 Britain v. S. (8 Humph. 203) 1. 500 British Prisoners (1 Woodb. & M. 66) i. 185 ; ii, 1061 Britt V. S. (7 Humph. 45) i. 553 ; ii. 1172, 1178 V. S. (9 Humph, 81) ii, 472 , S. i\ (3 Dev. 122) ii, 608 Brittain v. Bank of London (SFost. & P. 466) ii, 541 i>, S. (7 Humph. 159) i, 808 702 Brittain, S. v. (89 N, C. 481) i. 842 Brittin u. S. (6 Eng. 299) i, 343 ; ii. 970 Britton v. C. (1 Cash. 302J ii. 1000 , Rex V. (1 Moody & R. 297) i. 572 a, 777, 1061 V. S, (77 Ala, 202) ii. 374, 376 , U. S. V, (2 Mason, 464)- . ii. 611 , U.S. !;. (107 U.S. 656) ii, 529 Brock V. King (2 Jones, N. C. 302) il. 1104 Brockius, U, S, k, (8 Wash, C, C, 99) Brockway v. P. (2 Hill, N. Y. i. 972, 974 558) i, 35, 1091 i. 1167 i, 140 1,893 i, 429 1.135 1.114 11, 259 ii. 1129 i. 65 ii. 927 11. 699 1.963 ii, 1174 i, 361 1.997 i. 997 Broderick, S. v. (69 Mo. 318) , S, V. (70 Mo, 622) Brodnax, S. v. (Phillips, N. C. 41) Bromage v. Prosser (4 B. & C. 247) Bromley v. Hutchins (8 Vt, 194; 30 Am, D. 466) w. P. (7 Mich. 472) Bronson's Case (12 Johns, 460) Brook's Case (2 Lewin, 267) Brooke v. Filer (36 Ind. 402) , Reg. V. (7 Cox C. C. 251) , Rex V. (2 T. E. 190) i. 462; Ii. 973, 976 Brooker v. C. (12 S. & R. 175) il. 244, 265 Brookin v. S. (27 Tex. Ap. 701) ii. 1046 Brooks V. Adams (11 Pick. 441) 1. 44 V. C, (61 Pa, 352; 100 Am, D. 645) V. C, (2 Rob. Va, 845) ,C.v. (IDuv, 150) , C, V. (99 Mass. 434) 'J. Daniels (22 Pick. 498) V. Davis (17 Pick. 148) , P. u.'(l Denio, 457 ; 43 Am, D. 704) ii. 976 , Reg, V. (8 Car, & P. 295) i. 207 ; 11, 801, 802, 864 , Reg. V. (Dears, 184 ; 14 Eng, L. & Eq. 580) ii. 1142 , Rex V. (4 Car. & P. 181) 1, 578 ; ii. 779 ii. 17 1. 1006 ii. 882 1.500 ii. 118 i. 534 ; ii. 1147 , S. V. (3 Humph, 70) 1, 1031, 1041 , S. V. (39 La. An. 817) 1. 464 , S. II, (76 N, C, 1) 1,736; 11, 1136 , S, V. (42 Tex, Q2) ii, 849 , U. S, V. (3 MacAr, 315) 11. 605 V Warwick (2 Stark. 389) 1. 207 Brooksbank, S, v. (6 Ire. 73) 1. 499 ; 11, 968 Broome i>. Wellington (1 Sandf. 664) il, 968 Brotherton, Rex v. (1 Stra. 702 ; 1 Taunt, 133) ii 950 Broughton v. Jackson (11 Eng, L, & Eq. 386) ii. 37 , Rex V. (Trem, P, C. Ill) ii. 894 V. S, (51 Ga, 612) V. S, (3 Humph, 25) V. S. (35 Ohio St, 46) V. S. ■{2 Yerg. 482) , S. V. (4 Conn. 446) , S. ... (1 Hill, S, C, 861) BRO INDEX TO THE CASES CITED. BRU Broughton v. Singleton (2 Nott & ■ MeC. 338) i. 578 ; ii. 776 Brounsall, Ex parte (Cowp. 829) ii. 264 Brown's Case (2 East P. C. 702) ii. 896 Case (3 Greenl. 177) 1. 6B9; ii. 985 Cask (1 Lewin, 42) i. 204 Brown, Ex parte (66 Ala. 446) ii. 680 , Ex parte (2 ISailey, 323) i. 990 V. Beauchanip (5 T. B. Monr. 413 ; 17 Am. D. 81) i. 541 ; ii. 121, 123, 131 Ii. 920 ; 62 i. 1080 ii. 543, 598 ii. 288 i. 777 V. Brine (1 Ex. D. 5) V, Carpenter (26 Vt. Am. D. 603) v. C. (2 Leigh, 769) V C. (8 Mass. 59) V. C. (76 Pa. 319) V. 0. (4 Rawle, 259 ; 26 Am. D. 130) i. 953 V. C. (82 Va. 653) Ii. 1122 ^, C. ... (15 Gray, 189) i. 572 a , C. u. (4 Mass. 580) ii. 824, 834, 858, 860 , C. V. (13 Met. 365) i. 531, 1138 -^, C. V. (3 Rawle, 207) i. 79.3, 796, 1062 ; ii. 116 V. Davidson (59 Iowa, 461) ii. 248 w. Hoburger (52 Barb. 15) i. 832, 1080 V. Howard (14 Johns. 119) i. 355 ; ii. 37 ii. 60 1.464 1.32 ii. 268 1. 711, 715 ii. 541 (86 111. 239; 29 Am. R. 25) ■ . ii. 529, 533 V. P. (36 Mich. 203) "" , P. V. (47 Cal. 447) , P. V. (54 Mich. 15) V. Perkins (1 Allen, 89) V. Perkins (12 Gray, 89) V. Preston (38 Conn. 219) , Reg. V. (Car. & M. 314) i. 469, 535 ; ii. 35 , Reg. u. (7 Cox C. C. 442) ii. 209 , Reg. u. (14 Cox C. C. 144) i. 675 , Reg. V. (Dears. 616) ii. 802, 813 , Reg. b. (11 Mod. 86) ii. 918, 925 , Reg. V. (24 Q. B. D. 357 ; 16 CoxC. C. 715) . i. 741; ii. 1192 , Rex V. (2 East P. C. 487 ; Leach, 1016, n.) , Rex V. (2 East P. C. 781) V. Kendall (6 Cush. 292) V. Lunt (37 Me. 423) V. Mobile (23 Ala. 722) V. Moore (61 Cal. 432) V. Padgett (36 Ga. 609) V. P. (8 Hun, 562) u. P. (8 11, 1123 i. 786 ii. 1019 1.658 1. 1081 ii. 1269 2 11.96 i. 553 ; ii. 1171 ii. 152 , Rex V. (2 East P. C. 1007) , Rex V. (1 Leach, 148; 1 East P. C. 231 , 245, 274 ) 1. 828 ; ii. 719 , Rex V. (Russ. & Ry. 32, n.) ii. 904 , Rex V. (8 T. R. 26) i 515 , Rex «. (T. Raym. 208) i. 827 V. S. (46 Ala. 175) ii. 309, 310 V. S. (55 Ala. 128 ; 28 Am. E. fi9S> U. 99 Brown ». S. (74 Ala. 42) V. S. (83 Ala. 33 ; 3 Am 685) 11.40 St. 1.870 ii. 1162 a 1. 1040 i. 1014, 1039 i. 997 i. 634, 642, 648 i. 893 S. (28 Ark. 126) V. S. (8 Blackf. 561) V. S. (5 Eng. 607) w. S. (7 Eng. 623) V. 8. (28 Ga. 199) V. S. (35 Ga. 232) — — K. S. (58 Ga. 212) i. 873 ; ii. 740 V. S. (76 Ga. 623) ii. 1132 V. S. (110 Ind. 486) ii. 731 M. S. (l8 0hioSt. 496) i. 667 V. S. (26 Ohio St. 176) i. 594 V. S. (38 Tex. 482) i. 1032 ; ii. 638 V. S. (43 Tex. 478) i. 302, 468 V. S. (7 Tex. Ap. 569) i. 772 , S. v. (9 Bax. 53; 40 Am. E. 81) ii. 773 , S. i>. (16 Conn. 54) 1. 992, 1009, 1150 , S. V. (24 Conn. 316) i. 811 ,S.v. (1 Hayw. 100; 1 Am. D. 548) i. 141, 984 , S. V. (1 Houst.Crim.639) i. 336,384, 387 ; ii. 728 , S. V. (69 Ind. 95; 35 Am. E. 210) ii. 1143 , S. V. (25 Iowa, 561) ii. 812 , S. V. (58 Iowa, 298) i. 802 , 8. V. (38 Kan. 390) i. 291 , S. V. (21 La. An. 347) ii. 53 , S. V. (31 Me. 520) 1. 686 , S. V. (12 Minn. 490) ii. 404 , S. V. (60 Mo. 141) i. 772 a , S. V. (64 Mo. 367) i. 305 , S. c;. (79 N. C. 642) ii. 1035 , S. V. (95 N. C. 686) ii. 884, 389 , S. V. (2 Or. 221) i. 155, 178 ; ii. 611 , S. V. (7 Or. 186) ii. 727 , S. V. (3 Strob. 508) ii. 806, 843 V. Thompson (59 Me. 372) ii. 540 V. U. S. (McCahon, 229) i. 904, 910 V. U. 8. (U. S. Cir. Ct. N. Dist. Ga. May 24, 1875) ii. 1023 , U. S. V. (Deady, 566) i. 82 V. Wadsworth (15 Vt. 170; 40 Am. D. 674) i. 1029 V. Waite (2 Mod. 130) i. 968 V. Watson (47 Me. 161 ; 74 Am. D. 482) i. 265 V. Webber (6 Cush. 560) i. 995 V. Wylie (2 W. Va. 502; 98 Am. D. 781) 1. 464 Browne, In re (2 Colo. 653) 1. 895 , Reg. V. (Holt, 425) ii. 925 V. U. S. (1 Curt. C. C. 15) 11. 349 Brownell v. Manchester (1 Pick. 282) ii. 791 «. P. (38 Mich. 732) 1. 305 Browning u. Morris (Cowp. 790) i. 658 Brownlow, Reg. v. (14 Cox C. C. 216) 11. 370 Bruce, Rex v. (Russ. & Ey. 248; 2 Leach, 1098) i. 146, 176 V. S. (9 Ind. 206) i. 1029 703 BUG INDEX TO THE CASES CITED. BUR Bruce v. S. (87 Ind. 450) i. 204 , S. V. (24 Me. 71) i. 762, 1017 ; ii. 404, 407, 1181, 1200 , S. V. (1 Tread. 165) i. 32 Brucker v. Froniont (6 T. R. 6-39) i 682 Bruguier v. U. S. (1 Dak. 5) i. 617 a Brunell, S. v. (29 Wis. 435) i. 1088 Bruner v. S. (58 Ind. 159) ■ ii 731 BruDson v. Martin (17 Ark. 270) i 271 , S. V. (2 Bailey, 149) i. 601 Bryan, Reg. v. (Dears. & B. 265; 7 Cox C. C. 312 ; 40 Eng. L. & Eq. 589) ii. 449, 454 , Reg. V. (2 Fost. & F. 567) ii. 483 , Rex V. (2 Stra. 866) i. 582, 761 ; ii. 145, 168 . ,S.v. (89N. C. 531) Bryant v. Biddetord (39 Me. 193) V. Ketchum (8 Johns. 479) V. 8. (76 Ala. 33) V. S. (41 Ark. 359) V. S. (16 Neb. 651) , S. t>. (14 Mo. 340) , S. V. (74 N. C. 124) Bryson, S. v. (81 N. C. 695) , S. V. (82 N. C. 573) , S.v. (Winst. ii. 86) Bubb, Reg. u. (4 Cox C. C. 455) li. 9B« ii. 968 ii. 140 i. 789 i. 780 ii. 1010 i. 355, 658 ii. 807 i. 294 ii. 304 i. 305, 844 ii. 660 Bubser, C. v. (14 Gray, 83) i. 1065 Buchanan, P. v. (1 Idalio, N. 8. 681) i. 1085 V. S. (24 Ga 282) ii. 731 , S. V. (5 Har. & J. 317 ; 9 Am. D. 534) i. 432, 592, 1024 ; ii. 174, 175, 176, 192, 195, 198, 204, 217 , S. V. (5 Har. & J. 500) ii 1022 , S. V. (1 Houst. Grim. 79) ii. 704, 728 , S. c. (17 Vt. 573) i. 465, 467, 857, 876 Buck V. Albee (27 Vt. 190) i. 268 V. C. (107 Pa. 486) i. 666, 668 , Reg. V. (6 Mod. 306) i. 459 ; li. 392 , Rex V. (1 Stra. 679) i. 594 Buckland v. C. (8 Leigh, 732) ii. 539 , P. V. (13 Wend. 592) i. 710 Buckle, Rex v. (1 Ruas. Crimes, 3d Eng. ed. 408) i. 715 Buckley, In re (69 Gal. 1) ii. 242 a , C. V. (148 Mass. 27) ii. 1201 V. Knapp (48 Mo. 152) i. 429 , S. V. (2 Barring Del. 552) .. i, 891 , S. V. (5 Harring. Del. 608) i. 1113 Buckman, S. v. (18 Fla. 267) i 971 a , S. V. (8 N. H. 203 ; 29 Am. D. 646) i. 491 Buckmaster, Reg. v. (20 Q. B. D. 182, 16 Cox G. G. 839) ii. 813 BucknRm v. Ruggles (15 Mass. 180) i. 464 Buoknell, Reg. v. (Hole, 128; 7 Mod. 55) ii. 1281 Buckner v. Beck (Dudley, S. C. 168) i. 268 V. C. (14 Bush, 601) i. 780; ii. 745 , S. V. (Phillips, N. C. 558) ii. 1274 Bucks, Bex y. (12 East, 192) ii. 1269, 1281 704 Buckwalter v. U. S. (11 S. & R. 193) i. 32 ; ii. 1022 Budd V. S. (3 Humph. 483 ; 39 Am. D. 189) ii. 347, 381 Buelw. P. (78 N. Y. 492; 34 Am. R. 555) if. 724, 727 Buell V. S. (45 Ark. 336) i. 1089 ; ii. 1020 Buffalo City Bank v. Codd (25 N. Y. 163) . i. 658 Butfum's Case (13 N. H. 14) ii. 256, 269 Buford V. G. (14 B. Monr. 24) i 618, 1137 Bugbee, S. v. (22 Vt. 32) i. 355, 668, 782 . ... ii. X127 i. 1049 i. 822 i. 850 ii. 415 ii. 664 ii. 982 Buggery, Case of (12 Co. 36) Buhler v. S. (64 Ga. 504) Bulkley v Ormes (Brayt. 124) Bull, Reg V. (9 Car. & P. 22) , Reg. V. (13 Gox C. C. 608) , Reg. V. (2 Fost. & F. 201) , Rex V. [1 Wils. 93) BuUard v. Gopps (2 Humph. 409 37 Am. D. 561) ii. 136, 137 BuUis V. Montgomery (50 JN. Y. 352) i. 273 Bullock V. Babcock (3 Wend. 391) ii. 60 V. Dodds (2 B. & Aid. 258) i. 939, 968 V. Koon (4 Wend. 531) i. 207; ii. 10-30 , S. V. (13 Ala. 413) i. 400, 401, 409, 413, 735 ; ii. 741 , S. V. (63 N. C. 570) i. 1033 , S. V. (91 N. G. 614) i. 877 Bulman, G. v. (118 Mass. 456; 19 Am. R. 469) i. 1107 Bulson V. P. (31 111. 409) i. 1010 Bumgardner v. Taylor (28 Ala. 687) ii. 968 Bump V. C. (8 Met. 633) i. 960 Bunce, Reg v. (ITost. & F. 523) ii. 429a Buncombe, Reg. v. (1 CoxG. C. 183) i 358 Bundy v. Dodson (28 Ind. 295) i. 884 6 S. V. (24 S. C. 439 ; 58 Am. R. 262) i. 376, 384 Bunkall, Reg. v. (Leigli & G. 371) ii. 881 Bunn, Reg. v. (12 Gox C. C. 316; 4 Eng. Rep. 664) ii. 229, 230 Running, Rex v. (1 East P. G. 180, 2 Leach, 621) ii. 293 Buntain ». S. (15 Tex. Ap. 515) ii. 414, 471 Buntin v. S. (68 Ind. 38) ii. 72 e Bunts, Rex v. (2 T. R. 683) i. 960 Burbon, Rex v. (5 M. & S. 392) i. 993 Burchinal, S. v. (4 Harring, Del. 572) i. 318, 1113 Burd V. G. (6 S. & B. 252) ii. 501 Burden v. P. (26 Mich. 162) i. 842 , P. M. (9 Barb. 467) i. 1066; ii. 1044 Burder, Rex w. (4 T. R. 778) i. 468 Burdet, Rex v. (4 B. & Aid. 95 ; 3 B. & Aid. 717) i. 457, 591, 759, 761 ; ii. 82, 913, 918, 927 , Rex V. (4 B. & Aid. 314) i. 948 ; ii. 918 , Rex V. (1 Ld. Raym. 148) i. 468, 673; ii. 392, 394, 401,916 V. S. (9 Tex. 43) i. 1010, 1014 Burdick, G. «. (2 Pa. St. 163; 44 Am. D. 186) 11. 487 BUR INDEX TO THE CASES CITED. BUS Burditt V. Swenson (17 Tex. 489; 67 Am. D. 665) i. 1138 Burford, Rex w. (1 Vent. 16) ii. 946 Burgaine, Rex v. (1 Sid. 409) ii. 146 Burgdorf, S. v. (53 Mo. 65) ii. 1122 Burge V. S. (62 Ga. 170) ii. 901, 902 BurgesS v. Burgess (1 Hag. Con. 384) ' i. 38 , P. V. (45 Hun, 157) ii. 740 Reg. V. (Leigh & C. 258; 9 Cox C. C. 247) — , Reg. t. (Leigh &C. 299) , Reg. V. (16 Q. B. D. 141; Cox C. C. 779) , Rex V. (T. Raym. 84) V. S. (44 Ala. 190) V. Sugg (2 Stew. & P. 341) , U. S. V. (33 Fed. Rep. 833) Burgh 0. S. (108 Ind. 132) Burgon, Reg. v. (Dears. & B. 11 ; 3C Eng. L. & Eq. 615 ; 7 Cox C. C ii. 1187 ii. 792, 793 15 i. 711 ii. 514 i. 694 i. 1021 i. 488 i. 486 131) ii. 419, 426, 444, 458 ii. 137 i. 359 i. 805 i. 207 i. 780 i. 791 Burgson, S. v. (53 Iowa, 318) i. 776 ; ii. 605 Burhans i/. Burhans (2 Barb. Ch. 398) Burk, C. 0. (11 Gray, 437) V. S. (2 H.ir. & J. 426) , S. V. (4 Jones, N. C. 7) , S. V. (89 Mo. 635) Burke, C. w. (14 Gray, 100) , C. V. (105 Mass. 376; 7 Am. R. 531) ii. 1114, 1115, 1121 V. Elliott (4 Ire. 355 ; 42 Am. D. 142) i. 464 V. P. (4 Hun, 481) ii. 1006 , P. V. (11 Wend. 129) i. 141, 143, 984 , Rex V. (Russ. & Ry. 496) i. 572, 748 ; ii. 538, 539 ii. 560 ii. 258, 269 i. 464 i. 842, 865 i. 1017 ii. 1179 a V. S. (66 Ga. 157) V. S. (47 Ind. 528) V. S. (34 Ohio St.'79) , S. V. (30 Iowa, 331) , S. V. {H8 Me. 574) , S. V. (73 N. C. 83), Burket, S. v. (2 Mill, 155 ; 12 Am, D. 662) Burkhard v. S. (18 Tex. Ap. 599) i. 1014 i. 400, 409 ii. 577 i. 420 Burkholder v. Lapp (31 Pa. 322) Burlington, S. v. (36 Vt. 521) Burn, Rex v. (7 A. & E. 190 ; 1 Jur. 657) i- 256 Burnby v. RoUitt (11 Jur. 827) i. 491 Burnett, Rex v. (4 M. & S. 272) i. 490 «. S. (14 Lea, 4.39) ii. 638 Burnham !>. Morrissey (14 Gray, 226; 74 Am. D. 676) V. S. (43 Tex. 322) , S. V. (9 N. H. 34 ; 31 Am. D. 217) i. 308, 540, 591 ; ii. 905, 914, 918 , S. V. (15 N. H """ ii. 247 ii. 728 i. 592; ii. 175, 177, 178, 180, 181, 198, 208 VOL. I. — 45 Burnham, S. u. (56 Vt 445; 48 Am. R. 801) i. 260;ii. 35 Burns v. Allen (15 R. I. 82) ii. 255 V. Campbell (71 Ala. 271) i. 974 V. F. (1 Par. Cr. 182) i. 1021, 1053, 1059, 1158 , Reg. V. (16 Cox C. C. 355) i. 457 , Respubliea v. (1 Yeates, 370) ii. 973 V. S. (48 Ala. 195; 17 Am. R. 34) . i. 893, 894 , S. V. (35 Kan. 387) i 538 , U. S. w. (5 McLean, 23) ii. 291 Burnsides, Reg. v. (8 Cox C. C. 370 ; Bell C. C. 282) ii. 424 Buron v. Denman (2 Exch. 167) i. 132 Burr's Trial (Coombs' ed.) ii. 1202, 1224, 1228, 1232 Burr, P. V. (41 How. Pr. 293) ii. 369 , U. S. V. (Burr's Trial ; 4 Cranoh, 469) i. 194, 456, 683, 704 Burraston, Rex v. (Gow, 210) i. 572 a Burrell v. S. (18 Tex. 713) i. 633, 718 Burress v. C. (27 Grat. 934) - i. 1052 Burridge, Reg. v. (2 Moody & R. 296) ii. 1200 , Rex V. (3 P. Wms. 439) i. 668, 693,697, 1049; ii. 1068 Burris, S. v. (3 Tex. 118) i. 992 Burroughs, S. v. (2 Halst. 426) i. 569 ; ii. 985 Burrow's Case (1 Lewin, 75) i. 400, 406 Burrow v. S. (7 Eng. 65) i. 586; ii. 420 Burrows o. Pixley (1 Root, 362 ; 1 Am. D. 66) i. 265 , Bex V. (Russ. & Ry. 519) ii. 1128 , S. V. (11 Ire. 477) ii. 478, 758, 762, 767 Burrows's Liquors, S. v. (37 Conn. 425) i. 821, 825, 8.33 Burt V. Place (6 Cow. 431) ii. 121, 125 «. S. (39 Ala. 617) i. 893 V. S. (3 Brev. 413; 2 Tread. 489) i. 536 ; ii. 490, 503, 505 V. S. (7 Tex. Ap. 578) ii. 789 , S. V. (64 N. C. 619) ii. 763 Burton, Reg. v. (13 Cox C. C. 71) i. 685 , Reg. !■. (16 Cox C. C. 62) ii. 432 , Reg. «. (3 Fost. & F. 772) i. 384, 387 , Rex V. (1 Moody, 237) ii. 334 , Bex V. (1 Stra. 481) ii. 666 b V. S. (16 Tex. Ap. 156) i. 1083 , S. V. (1 Houst. Crim. 363) ii. 1131, 1132 S. V. (3 Ind. 93) ii. 392 V. Watkina (2 Hill, S. C. 674) ii. 885 Burwell, S. v (34 Kan. 312) i. 794 , S. V. (63 N. C. 661) i. 857 ; ii. 706 Bush V. C. (78 Ky. 268) i. 780 , C. V. (2 DuT. 264) i. 903 , C. V. (112 Mass. 280) i. 850 V. P. (10 Colo. 5661 i. 875 , P. B, (4 Hill, N. Y. 133) i. 767 ; ii. 20 705 BUT INDEX TO THE CASES CITED. CAL BushB. Railing (Say. 289) ii. 86 V. S. (6 Tex. Ap. 421) ii. 309 a V. U. S. (24 Fed. Rep. 917) i. 824 Bushel V. Barrett (1 Ryan & Moody N. P. 434) i. 974 Buskirk v. Strickland (47 Mioh. 389) ii. 1267 Bussey v. S. (71 Ga. 100; 51 Am. R :i56) ii. 1173 Buster v. Newkirk (20 Johns. 75) ii. 770 Butcher, Reg. v. (Bell C. C. 6; 8 , Cox C. C. 77) i. 310; ii. 442, 473 Butler's Case (cited 13 Co. 53; 3 Inst. 118) i. 141 Butler V. C. (2 Dut. 435) i. 633 V. C. (12 S. & R. 237 ; 14 Am. D. 679) i. 585 ; ii. 529, 539 V. C. (81 Va. 159) ii. 116 , C. V. (1 Allen, 4) ' i. 359 V. McLellan (1 Ware, 219) i. 319, 882 V. Northumberland (50 N. H. 33) i. 658 I). P. (4 Denio, 68) ii. 103 V. P. (125.111. 641; 8 Am. St. 423) ii. 719 , P. V. (8 Cal. 435) i. 872 , P. V. (3 Cow. 347) i. 960 , P. V. ( 16 Johns. 203) ii. 17 , Reg. K. (2 Car. & K. 340) ii. 365, 813 , Rex V. (6 Car. & P. 368) i. 759, 768 c, 768 rf; ii. 62 V. S. (22 Ala. 43) ii. 545, 561 V. S. (34 Ark. 480) i. 810 K. S. (6 Ind. 165) ii. 1277 V. S. (3 McCord, 383) i. 700 V. S. (3 Tex. Ap. 403) ii. 849 , S. V. (Conference, 331) ii. 501, 514 , S. V. (3 McCord, 383) 1. 699, 700 , S. V. (65 N. C. 309) i. 594 , S. V. (21 S. C. 353) i. 507 , S. V. (17 Vt. 145) i. 664 Butman, S. v. (42 N. H. 490) i. 798 , S. V. (61 N. H. 511 ; 60 Am. R. 332) ii. 345 Buttenuth v. St. Louis Bridge (123 111.535; 5 Am. St. 545) i. 150 Bntterfield v. Ashley (6 Cush. 249) i. 884 b , Reg. V. (1 Cox C. C. 39) i. 693 Butterfoss v. S. (13 Stew. Ch. 325) i. 489 Butterick, C. v. (100 Mass. 12) i. 777 ; ii. 373, 523, 562, 570 a Butteris, Rex v. (6 Car. & P. 147) i. 649 ; ii. 824, 836 Butterwick, Reg. v. (2 Moody & R. 196) ii. 562 Butterworth, Rex v. (Russ. & Ry. 520) i. 800 «. Stagg (2 Johns. Cas. 291) ii, 253 Buttery, Rex v. (cited 5 D. & R. 616; 3 B. &C. 700) ii. 460 Button, Reg. v. (8 Car. & P. 660) i. 72 a, 548; ii. 28 706 Button, Reg. v. (11 Q. B. 929; 12 Jur. 1017 ; 18 Law J. N. s. M. C. 19) 1. 787, 812, 814, 816, 1057 ; ii. 198, 239, 240, 612, 855 Butts «. Voorhees (1 Green, N. J. 13; 22 Am. D. 489) ii. 490, 505 Buxton, S. V. (2 Swan, Tenn. 57) 1. 459 Buzzell, S. «. (58 N. H. 257 ; 42 Am. R. 586) i. 663 Buzzo, U. S. 1). (18 Wal. 125) i. 488 Bybee v. S. (94 Ind. 443 ; 48 Am. R. 175) ii. 1273 Byce, Rex v. (Bott P. L. 324) 1. 240 Byers, Ex parte (32 Fed. Rep. 404) i. 112, 176 Pyford, Rex v. (Russ. & Ry. 521) 1. 937 Bykerdike, Rex v. (1 Moody & R. 179) ii. 230 Bynon, Rex v. (2 Show. 304) i. 462 Byrd v. Odem (9 Ala. 755) i. 541 ; ii. 1.32 w. S. (1 How. Missis. 163) ii. 745 -, S. V. (31 La. An. 419) i. 1004 ; ii.745 , S. V. (28 S. C. 18; 13 Am. St. 660) ii. 1030, 1053 a Byrne, Reg. v. (10 Cox C. C. 369) ii. 442 , S. V. (45 Conn. 273) ii. 12 V. Stewart (3 Des. 466) 1. 279 Byrnes v. Byrnes (102 N. Y. 4) ii. 1047, 1048 Cabbage, Rex v. (Russ. & Ry. 292) ii. 758, 846 Cabbell v. S. (46 Ala. 195) i. 633 Cabot V. Yarborough (27 Ga. 476) ii. 268 Cabrera, Ex parte (1 Wash. C. C. 232) i. 128 Cadman, Rex v. (1 Moody, 114 Car. Crim. Law, 237) Cadwell v. S. (17 Conn. 467) Cady, P. ... (6 Hill, N. Y. 490) ii. 740 i. 1088 1. 572 ; ii. 531 Caesar, P. v. (1 Par. Cr. 645) i. 143, 960 Cage, Ex parte (J5 Cal. 248) i. 1034 , P. V. (48 Cal. 323 ; 17 Am. R. 436) i. 1013, 1015, 1031, 1033, 1034 Cagle, S. V. (2 Humph. 414) i. 501 Cain V. Monroe (23 Ga. 82) ji. 138, 384 , Reg. V. (2 Moody, 204) ii. 793 V. S. (20 Tex. 355) i. 955 , S. V. (20 W. Va. 679) i. 305 Cainan, S. v. (94 N. C. 880) i. 1072 Cairn's Case (1 Swinton, 597) ii. 72 Calder v. Bull (3 Dall. 386) i. 279, 281 , S. V. (2 McCord, 462) i. 534; ii. 1144 Caldwell w. C. (7 Dana, 229) i. 955 V. Fulton (31 Pa. 475 ; 72 Am. D. 760) i. 819 a , Respublioa v. (1 Dall. 150) i. 341 ; ii. 1272 V. Sacra (Litt. Sel. Cas. 118; 12 Am. D. 285) i. 219, 631 V. Shepherd (6 T. B. Monr. 389) ii. 182 V. S. (49 Ala. 84) i. 594 CAM INDEX TO THE CASES CITED. CAR CaMwell v. S. (55 Ala. 133) i. 281 — !— J). S. (1 Stew. & P. 327) i. 154 , S. V. (2 Jones, N. C. 468) i. 538 ; ii. 491), 505 , S. V. (2 Speers, 162) ii. 1277 , S. V. (2 Tyler, 212) i. 465, 467, 632 Cale, Rex v. (1 Moody, 11) i. 622 Caledonian, The (4 Wheat. 100) i. 821, 822 Calfield's Case (1 Rol. 189) ii. 647, 651 Calhoun, P. v. (3 Wend. 420) i. 299 ; ii. 399 , S. V. (72 Iowa, 432 ; 2 Am. St. 252) ii. 1178 Calico V. S. (4 Pike, 430) i, 955 Calkins u. S. (18 Ohio St. 366; 98 Am. D. 121) ii. 373 , S. b. (73 Iowa, 128) ii. 605 Call, C. V. (21 Pick. 509; 32 Am. D. 284) i. 1053 , C. V. (21 Pick. 515) i. 327 ; ii. 472, 485 , P. V. (1 Denio, 120 ; 43 Am. D. 655) ii. 785, 786, 787, 824, 825, 855 V. S. (20 Ohio St. 330) ii. 1026 Callaghan, C. v. (2 Va. Cas. 460) i. 471, 623; ii. 85, 86, 223 Callahan, Reg. v. (8 Car. & P. 154) ii. 340 V. S. (21 Ohio St. 306) ii. 63, 741 V. S. (41 Tex. 43) ii.'90I Callan, Rex v. (Russ. & Ry. 157) ii. 99 Callendine, S. w. (8 Iowa, 288) i. 1013 Calley, S. v. (104 N. C. 858; 17 Am. St. 704) i. 1083, 1085 Calliaud v. Vaughan (1 B. & P. 210) ii. 1029 Calliuot, In re (8 Blatch. 89) i. 907 Calloway v. S. (7 Tex. Ap. 585) i. 281 a Calton V. Utah (130 U. S. 83) i. 9.34 Calvert, C. w. (1 Va. Cas. 181) ii. 1024 Calvin's Case (7 Co. 1) ii. 623 Calvin, P. v. (60 Mich. 113) ii. 1179 V. S. (25 Tex. 789) i. 1021 ■; S. V. (R. M. Charl. 151) ii. 594 Cambioso v. Maffet (2 Wash. C. C. 98) i. 294 Camden, S. v. (18 Vroora, 454) i. 464 Cameron, In re (44 Kan. 64; 21 Am. St. 262) ii. 432 V. McFarland (2 Car. Law Repos. 415 ; 6 Am. D. 566) i. 267, 714 1). S. (13 Ark. 712) i. 805 , S. V. (2 Chand. 172) i. 145, 648 , S. V, 3 Heisk. 78) i. 1061 ; ii. 376 , S. V. (40 Vt. 655) ii. 864, 888 Camfleld, Rex v. (1 Moody, 42) ii. 106 Cammack v. Macy (3 A. K. Mar. 296) ii. 505 Camp V. Forrest (13 Ala. 114) ii. 140 , S. V. (12 Yroom, 306) ii. 490, 504 Campbell v. Brown (1 Grant, Pa. 82) i. 1080 V. C. (88 Ky. 402 ; 21 Am. St. 348) ii. 710, 719 V. C. (59 Pa. 266) i. 542 V. C. (84 Pa. 187) ii. 744 Campbell v. C. (96 Pa. 344) i. 464 , C. V. (7 Allen, 541) i. 634, 637 V. Evans (45 N. Y. 356) i. 821, 832 w. Jones (4 Wend. 306) ii. 126 , Pennsylvania v. (Addison, 232) ii. 758, 799 V. P. (16 111. 17; 61 Am. D. 49) i. 865 V. P. (109 III. 565; 50 Am. R. 621) i. 1053 , P. V. (30 Cal. 312) i. 305, 865 , P. V. (40 Cal. 129) i. 670 , P. V. (Edm. Sel. Cas. 307) ii. 673 a , P. V. (4 Par. Cr. 386) ii. 773 V. Phelps (17 Mass. 244) i. 286 V. Reg. (11 Q. B. 799) i. 998 , Reg. w. (11 Cox C. C. 323) ii. 656 6 , Respublica v. (1 Dall. 354) ii. 501 , Rex V. (1 Moody, 179) ii. 816 V. S. (16 Ala. 144) i. 930, 1079 V. S. (23 Ala. 44) i. 976 V. S. (55 Ala. 89) i. 1137 V. S. (79 Ala. 271 ) i. 657 V. S. (U Ga. 353) i. 990 V. S. (10 Tex. Ap. 560) i. 791 V. S. (9 Yerg. 333; 30 Am. D. 417) i. 994, 1004 , S. V. (67 Ind. 302) i. 992 , S. V. (29 Tex. 44; 94 Am. D. 261) ii. 1191 , S. V. (T. U. P. Charl. 166) ii. 999 , S. V. (2 Tyler, 177) i. 462 Caraplin, Reg. v. (1 Den. C. C. 89 ; 1 Cox C. C. 220 ; 1 Car. & K. 746) i. 261, 327,554; ii. 1115, 1124 Canaan v. Greenwoods Turnpike (1 Conn. 1) ii. 1270 Canada i'. C. (22 Grat. 899) i. 789, 805, 1054 ; ii. 1008 , C. V. (107 Mass. 405) i. 1080 , S. V. (68 Iowa, 397) ii. 1136 Candler, S. v. (3 Hawks, 393) i. 974, 976 Canfleld v. Hunter (30 Tex. 712) i. 14 Canniff, Reg. v. (9 Car. & P. 359) ii. 657 Cannon v. Burris (1 Hill, S. C. 372) i. 271 V. Rands (11 Cox C. C. 631) i. 711 , Rex ». (Russ. & Ry. 146) ii. 1160 V. S. (57 Missis. 147) ii.'716 , S. V. (79 Mo. 343) ii. 1020 V. Windsor (1 Houst. 143) i. 970 Canoe Creek v. McEniry (23 111. Ap. 227) ii. 1273 Cansier, S. u. (75 N. C. 442) i. 464 Canter «. P. (38 How. Pr. 91) i.' 1062 V. S. (7 Lea, 349) ii. 477 Canterbury, S. v. (8 Post. N. H. 195) ii. 1267, 1268, 1269 , S. V. (40 N. H. 307) ii. 1267 Canton v. Nist (9 Ohio St. 439) ii. 952 Canwell, Reg. v. (11 CoxC. C. 263) i. 79*4 Capp, C. «. (48 Pa. 53) ii. 1274 Caradice, Rex v. (Russ. & Ry. 205) i. 516, 810 Carberry v. S. (11 Ohio St. 410) ii. 560 Garden, Reg. v. (5 Q. B. D. 1 ; 14 Cox C. C. 359) ii. 920 707 CAR INDEX TO THE CASES CITED. CAS Garden v. S. (3 Head, 267) i. 808 Cardwell v. Spriggs (7 Dana, 36) ii. 139 ,,S. V. (Biisbee, 245) ii. 1267 Carel, C. v. (105 Mass. 582) ii. 1018 Careswell, Keg. o. (5 Jur. 251) ii. 758, 843 Carey v. Brooks (1 Hill, S. C. 365) i. 266 , C. w. (2 Brews. 404) i. 305, 850 , C. V. (2' Pick. 47) ii. 543 , Reg. V. (14 Cox C. C. 214) ii. 699 Cargill, S. v. (2 Brev. 445) ii. 605 Cargo of Sugar, U. S. v. (3 Saw. 46) i. 294 Carico v. C. ("7 Bush. 124) i. 305 Carland, S. v. (3 Dev. Il4) i. 287 ; ii. 1046 , S. w. (90N. C. 668) i. 1033 Carli V. Rhener (27 Minn. 292) i. 464 Carlile, Reg. v. (1 Cox C. C. 229) ii. 927 , Rex V. (3 B. & Aid. 161) i. 1061 ; ii. 949 , Rex V. (3 B. & Aid. 167) ii. 915 , Rex V. (6 Car..& P. 636) i. 244, 531, 1146 Carlisle, Reg. v. (Dears. 337; 25 Eng. Ii. & Eq. 577; 23 Law J. N. s. M. C. 109 ; 18 Jur. 386) ii. 181, 206, 211 , Respublica v. (1 Dall. 35) 1. 456 ; ii. 1231, 1255 , Rex V. (1 Chit. 451) i. 1061 ; ii. 949 V. S. (76 Ala. 76) ii. 414 !>. S. (77 Ala. 71) ii. 471 V. U. S. (16 Wal. 147) i. 904, 916 ; ii. 1202, 1235 Carlton u. C. (5 Met. 532) i. 953 , S. V. (48 Vt. 636) i. 876 Carmiehael, P. u. (5 Mich. 10; 71 Am. D. 769) i. 339, 491 ; ii. 740 Carnochan, Ex parte (T. U. P. Charl. 315) ii. 256 Caro V. Maxwell (20 Fla. 17) ii. 268 Caroline, S. v. (20 Ala. 19) i. 177, 564 Carpenter, Ex parte (64 Cal. 267) ii. 1026 «. C. (17 How. O S. 456) i. 279, 281 , C. V. (108 Mass. 15) ii. 1200 V. Mason (4 Per. & D 439 ; 12 A. & E. 629) i. 428 - — V. Nixon (5 Hill, N. Y. 260) i. 620, 679, 974 V. P. (4 Scam. 197) i. 803 , P. D. ( 102 N. Y. 238) i. 38S 6 , Reg. V. llinvf Rep. 1 C. C. 29) ii. 336 V. Snelling (97 Mass. 462) ii. 540 «. S. (4 How. Missis. 163 ; 34 Am. D, 116) ii. 1039 , S. V. (20 Vt. 9) i. 468, 734 Carr, Inre (28Kan.l) i. 110 V. Jones (3 Smith, 491) ii. 916 , Rex V. (8 Car. & P. 163) i. 314 ; ii. 666 , Rex V. (Russ. & Ry. 198) ii. 341, 845, 349, 870 , Rex V. (RusB. & Ry. 377) i. 758 w. S. ( 19 Tex. Ap. 635 ; 53 Am. R. 395) i. 914, 917 , S. !!. (43 Iowa, 418) ii. 1167 , S. V. (6 N. H. 367) i. 143 ; ii. 692, 694 708 Carr, S. v. (71 N. C. 106) ii. 978 , S. V. (63 Vt. 37) ii. 726, 728 , U. S. V. (1 Woods, 480) i. 356, 872 Carro, S. v. (26 La. An, 377) ii. 1160 Carroll, C. v. (124 Mass. 30) i. 891 o , Rex V. (7 Car. & P. 145) i. 401, 414 V. S. (23 Ala. 28 ; 58 Am. D. 282) i. 306, 842, 857, 858, 865 ; ii. 706, 707 V. S. (45 Ark. 539) i. 721 a , S. V. (38 Conn. 449 ; 9 Am. R. 409) i. 464 , S. V. (2 Ire. 257) i. 938 Carruthers, Reg. v. (1 Cox C. C. 138) ii. 1200 Carson, S. v. (27 Ark. 469) i. 971 Carter u. C. (2 Va. Cas. 354) ii. 1269 , C. V. (108 Mass. 17) i. 516 , P. V. (29 Barb. 208) ii. 601 , Reg. V. (1 Car. & K. 741 ; 1 Den. C. C. 66) ii. 543, 560 , Rex V. (7 Car. & P. 134) ii. 472, 598 V. S. (55 Ala. 181) i. 303, .307 V. S. (68 Ala. 96) ii. 91, 97 V. S. (82 Ala. 13) i. 850 V. S. (43 Ark. 132) i. 464 V. S. (22 Ela. 553) ii. 728 V. S. (36 Ga. 26) ii. 1136 V. S. (12 Tex. 600 ; 62 Am. D. 539) i. 401, 406 V. S. (4 Tex. Ap. 166) ii. 268 V. S. (28 Tex. A'p. 355) i. 730 , S. V. (3 Dutcher, 499) i. 112 , S. !•. (1 Houst. Crim. 402) ii. 110 , S. V. (76 N. C. 20) ii. 704 V. Towne (98 Mass. 567 ; 96 Am. D. 682) i. 531 Cartwriglit's Case (114 Mass. 230) ii. 242 Cartwright v. Green (8 Ves. 405 ; 2 Leach, 962) ii. 758, 799, 838, 868 , Rex V. (Russ. & Ry. 106) i. 759 ; ii. 441 V. S. (8 Lea, 376) i. 410 V. S. (14 Tex. Ap. 486) i. 865 Caruthers v. S. (13 Tex. Ap. 339) ii. 60 Carver i>. C. (12 Bush, 264) ii, 1273 V. Louthain (38 Ind. 630) i. 93 V. S. (69 Ind. 61 ; 35 Am. R. 205) ii. 954 Carwile v. S. (36 Ala. 392) ii. 2 Caryl, P. v. (3 Par. Cr. 326) ii. 37 Casados, S. v. (1 Nott & MoC. 91) i. 578; ii. 785, 786 Casborus, P. v. (13 Johns. 351) i. 1000 Case, Reg. v. (1 Eng. L, & Eq. 544 ; Temp. & M. 318; 1 Den. C. C. 680 ; 4 New Sess. Cas. 347 ; 14 Jur. 489 ; 19 Law J. Nv s. M. C. 174; 4 Cox C. C. 220) i. 261, ii. 36, 548; 1124 — , Rex V. 1 East P. C. 166; 1 Leach, 154, n.) i ,292 — v.S. 26 Ala. 17) ii .904 — D. S. 69 Ind. 46) i .464 CEN INDEX TO THE CASES CITED. CHA Cases of Books, U. S. v. (2 Bond, 271) ,i. 488 Casey v. P. (31 Hun, 158) 1. 384 , Reg. V. (Ir. Rep. 8 C. L. 408) ii. 1149 , S. V. (Busbee, 209) i. 1010, 1014 Cash V. S. (10 Humph. Ill) ii. 758, 880 V. S. (2 Tenn. 198) i. 535; ii. 3 , S. V. (38 Kan. 50) ii. 118 Cashiel, U. S. u. (1 Hughes, 552) i. 1029 Cass V. Dillon (2 Ohio St. b07) i. 14 Cassano, Rex v. (5 Esp. 231) ii. 85 Cassedy v. Jackson (45 Missis. 397) ii. 138 , U. S. V. (2 Sumner, 582) i. 564 Cassels, P. v. (5 Hill, N. Y. 164) ii. 268 V. S. (4 Yerg. 149) i. 437, 698, 700 ; ii. 1140 Cassey, Rex v. (J. Kel. 62) i. 262 ; ii. 97 Casteel, S. v. (53 Mo. 124) ii. 876 Castell V. Bambrldge (2 Stra. 854) i. 314 ; ii. 666, 687 Castell Careinion, Rex k. (S East, 77) i. 975 Castello, S. v. (62 Iowa, 404) ii. 638 Castle, S. V. (44 Wis. 670) i. 311 ; ii. 1281 Castleberry v. S. (62 Ga. 442) i. 302 Castlemain, Rex v. (T. Raym. 379) i. 903, 917, 918 Castleman v. Combs (7 T. B. Monr. 273) ii. 139, 140 Castro V. Eeg. (6 Ap. Cas. 229) i. 931 , Reg. V. (Law Rep. 9 Q. B. 219) ii. 259 , Reg. V. (Law Rep. 9 Q. B. 350 ; 12 Cox C. C. 454; 6 Eng. Rep. 317) ii. 259, 1026 , Reg. V. (5 Q. B. D. 490) i. 793, 931 Catapodi, Rex v. (Russ. & Ry. 65) ii. 538, 544 Cate V. S. (3 Sneed, 120) i. 1148 Cates V. S. (50 Ala. 166) ii. 731 Catherall, Reg. v. (13 Cox C. C. 109) i. 788 Catherine, U. S. v. (2 Paine, 721) i. 564 Catlin, C. «. (1 Mass. 8) i. 244, 1129 V. Gratz (8 Johns. 520) i. 821 V. Henton (9 Wis. 476) i. 714 Caton, C. V. (4 Call, 6) i. 899 , P. V. (25 Mich. 388) ii. 605 , Reg. V. (12 Cox C. C. 624 ; 10 Eng. Rep. 506) i. 636^ 637 ; ii. 657 Causee v. Anders (4 Dev. & Bat. 246) ii. 37 Causey v. S. (79 Ga. 564; 11 Am. St. 447) ii. 851 Cavanagh v. Boston (139 Mass. 426; 52 Am. R. 716) i. 1079 Caveness, S. v. (78 N. C. 484) 11. 1138 Cavis V. Robertson (9 N. H. 524) i. 464 Cawood, S. V. (2 Stew. 360) 1. 14, 35, 432 ; ii. 175 Cawsey v. Driver (13 Ala. 818) Ii. 137 Celier, Rex v. (T. Raym, 369) i. 917 Center, S. v. (35 Vt. 378) 1. 648 ; 11. 656 o Central Bridge, C. v. (12 Cush. 242) ii. 1280 Central Rid. v. Collins (40 Ga. 582) 1. 14 Central Vermont Rid. v. Royalton (58 Vt. 234) ii. 1267 Chace, C. v. (9 Pick. 15 ; 19 Am. D. 348) ii. 758, 773, 779 Chadwick, Reg. v. (2 Moody & R. 545) 1, 584 , Reg. V. (11 Q. B. 205) 1. 1024 Chaffee, U. S. v. (2 Bond, 110) i. 488 Chaffin, S. v. (2 Swan, Tenn. 493) 1. 1058 Chahoon v. C. (20 Grat. 733) i. 895 ; ii. 605 Challercomb's Case (3 How. St. Tr. 368) ii. 1233 Challicombe, Reg. v. (6 Jur. 481) 1. 992 Chalmers, Reg. v. (10 Cox C. C. 450) ii. 120U, 1201 Chamberlain, Ex parte (4 Cow. 49^ ii. 268, 269, 272 V. P. (23 N. Y. 85 ; 80 Am. D. 255) ii. 1019 V. P. (4 Scam. 321) 1. 1006 , Eeg. V. (10 Cox C. C. 486) ii. 604 , Rpg. V. (Law Rep. 1 C. C. 341 ; 12 Cox C. C. 109) 11. 570 h , Rex V. (6 Car. & P.. 93) 1. 1014 , S. V. (6 Ala. 855) i. 260, 567 V. Taylor (92 N. Y. 348; 12 Abb. N. Cas. 473) 11. 138 Chambers v. S. (62 Missis. 108) 11. 851 , S. V. (22 W. Va. 779; 46 Am. R. 550) 11. 758, 795 Champeau, S. u. (52 Vt. 313; 36 Am. R. 754) 1. 1014 Champer v. S. (14 Ohio St. 437) 1. 260 Champneys, Rex v. (2 Moody & R. 26 ; 2 Lewin, 52) 1. 778, 782, 793, 1061 Chancellor, S. v. (1 Strob. 347 ; 47 Am. D. 557) 1. 915 Chandler, C. v. (Thacher Crim. Cas. 187) 1.572; 11. 528 V. Johnson (49 Ga. 85) 1. 619, 711, , 713 , Reg. f. (Dears. 453,; 24 Law J. N. s. M. C. 109; 1 Jur. n. s. 429; 29Eng. L. &Eq. 551) i. 883 , Rex V. (1 Stra. 612 ; 8 Mod. 336) i. 468 V. S. (2 Tex. 305) 1. 35 , S. V. (2 Harring. Del. 553) 1. 498 ; 11. 74, 76, 78, 80, 81 , S. V. (42 Vt. 446) ii. 1024 Chandois's Case (Cro. Jac. 483) 1. 827 Chanet v. Parker ( 1 Mill, 333) 1. 625, 681 Channel!, Rex v. (2 Stra. 793) i. 582 ; 11. 146 Chapeau, S. v. (4 S. C. 378) 1. 488 Chapin, C. v. (5 Pick. 199 ; 16 Am. D. 386) i. 531 , S. V. (17 Ark. 561 ; 65 Am. D. 452) i, 110, 111 Chaplin v. Lee (18 Neb. 440) 11. 376 V. S. (7 Tex. Ap. 87) 1. 294 Chapman, Ex parte (4 A. & E. 773) 1.470; 11.946 V. C. (6 Whart. 427 ; 34 Am. D. 665) 1. 428 , C. V. (13 Met. 68) 1. 14, 540; 11. 905 V. Gillet (2 Conn. 40) 11. 1026 709 CHE INDEX TO THE CASES CITED. CHI Chapman, P. v. (62 Mich. 280 ; 4 Am. St. 857) ii. 1136 , P. D. (4 Par. Cr. 56) ii. 484 V. Plioenix Bank (85 N. Y. 437) i. 819 a , Reg. V. (1 Car. & K. 119) i. 667 ; ii. 376, 378 , Reg. V. (12 Cox C. C. 4 ; 2 Eng. Rep. 160) ii. 652 , Reg. V. (1 Den. C. C. 432; Temp. & M. 90; 13 Jur. 886; 18 Law J. N. s. M. C. 152) i. 206, 734, 769, 763; ii. 1029 V. S. (78 Ala. 463; 56 Am. E. 42) ii. 32 V. S. (6 Blackf. Ul) ii. 968 «. S. (2 Head, 36) U. 441, 458 , S. V. (6 Nev. 320) i. 670 Chappie, Reg. v. (9 Car. & P. 355) i. 696 , Rex V. (Ru8S. & Ry. 77) ii. 986 Charge to the Grand Jury (23 Law Reporter, 697). ii. 1231, 1234 (23 Law Reporter, 705) ii. 1231, 1286 Charge on Law of Treason (1 Story, 614) i. 177, 466 (2 Wal. Jr. 134) i 681, 684 Charles v. S. (6 Eng. 389) ii. 1122, 1136 Charles River Bridge v. Warren Bridge (11 Pet. 420) i. 279 Charleston v. Corleis (2 Bailey, 186) i. 899 V. Feckman (3 Rich. 385) i. 279 V. Reed (27 W. Va. 681 ; 66 Am. R. 836) i. 1150 CharleWood, Rex v. (1 Leach, 409; 2 East P. C. 689) i. 207 ; ii. 801, 834, 864 Charretie, Beg. v. (13 Jur. 450 ; 18 Law J. N. s. M. C. 100) ii. 85 Charter Oak Life Ins. Co. v. Rodel (95 U. S. 232) ii. 1187 Chartrandi Territory v. (1 Dak. 379) i. 1086 Chase v. American Steamboat Co. (lOR. I. 79)' ii. 1271 V. Blodgett (10 N. H. 22) i. 976 , C.!;. (127 Mass. 7) i. 469 , P. V. (16 Barb. 495) i. 432 , S. V. (82 N. C. 575) i. 990, 1034 Chater, Rex v. (13 Shaw's J. P. 766) i. 261 Chatfield v. Wilson (28 Vt, 49) n. 430 Chathams, C. v. (60 Pa. iBl ; 88 Am. D. 639) ii. 863 Cha-to-kah-na-pe-sha,U. S. ». (Hemp. 27) i. 154 Chaundler, Rex v. (2 Ld. Raym. 1368) i. 468 Cheadle v. S. (110 Ind. 301; 59 Am. R. 199) ii. 257 Cheafor, Reg. ».(8 Eng. L. & Eq. 698 ; 2 Den. C. C. 361; 6 Cox C. C. 867; 15 Jur. 1066) i. 578; ii. 768, 77.S, 779 Cheatham v. Shearon (1 Swan, Tcnn. 21.3) i. 531, 1098 V. S. (59 Ala. 40) ii. 14 TIO Chedinfold, Rex v. (Cas. temp. Hardw. 159) ii. 1285 Chedwick, Rex v. (1 Eeble, 686, pi. 60) Cheek v. C. (79 Ky. 859) V. S. (lCoIdw.'l72) V. S. (35 Ind. 492) ^— V. S. (4 Tex. Ap. 444) , S. ... (13 Ire. 114) i. 1106, 1137 ii. 430 ii. 708 i. 1006 ; ii. 745 i. 685. 686; ii. 609 Cheeseman, Reg. v. (Leigh &C. 140; 9 Cox C. C. 100) ii. 886 , Rex V. (7 Car. & P. 455) i. 881, 886 ; ii. 663, 685 Cheltenham, &c. By. In re (Law Rep. 8 Eq. 580) ii. 269 Cheney, C.w. (114 Mass. 281) 1.1084 , C. V. (141 Mass. 102 ; 55 Am. R. 448) i. 303 a Chenoweth, U. S. v. (6 McLean, 139) i. 10786 Cheorg Foon Ark, P. j;.(61 Cal.527) ii. 885 Cherry, Rex v. (1 Leach, 236, n.; 2 East P. C. 666) ii. 768, 794, 795 , S. V. (11 Ire. 475) i. 548, 758 ; ii. 32 Chesley v. Brown (2 Fairf. 143) i. 934 , C. V. (107 Mass. 223) i. 1062 Chess V. S. (1 Blackf. 198) i. 178 Chew V. Calvert (Walk. Missis. 54) i. 14 Chews V. Sparks (Coxe, 56) i. 821 Chicago V. McGinn (51 111. 266; 2 Am. R. 296) i. 174 Chicago, &c. Eld. v. Becker (76 111. 26) i. 372 Chicago, &c. Ry. v. Langlade (56 Wis. 614) i. 464 Chichester's Case (Aleyn, 12) ii. 641, 657, 658, 692 Chichester, C. u. (1 Va. Cas. 312) i. 1021 V. Lethbridge (Willes, 71) i. 265 Chick V. Ramsdale (1 Curt. Ec. 34) i. 88 V. S. (7 Humph. 161) ii. 1001, 1004 Childress v. McGehee (Minor, 181) 11. 490 V. Nashville (3 Sneed, 347) i. 1089 Childs V. Nelson (69 Wis. 126) ii. 1285 w. S. (16 Ark. 204) i. 795, 803 Chiles V. Conley (9 Dana, 385) ii. 139 V. Drake (2 Met. Ky. 146; 74 Am. D. 406) i. 264, 1069 V. Jones (4 Dana, 479) ii. 139 Chilson, C. v. (2 Cash. 16) i. 1066 Chinese Exclusion Case (130 U. S. 581) i. 100 Chinn, S. v. (29 Tex. 497) ii. 1281 Chipchase, Rex v. (2 Leach, 699 ; 2 East P. C. 567) ii. 365, 830, 836, 866 Cliisholm V. Doulton (22 Q. B. D. 736 ; 16 Cox C. C. 676) i. 218, 317 , Rex V. (Russ. & Ry. 297) ii. 539 Chittem, S. v. (2 Dev. 49) i. 667 Chittenden v. Brady (Ga. Decis. 219) ii. 2.'i5 , Reg. V. (15 Cox C. C, 725) ii. 1272 CLA INDEX TO THE CASES CITED. CLA Chitty, S. V. (1 Bailey, 379) i.541 ; ii. 64, 65, 67, 69 Chivarrio v. S. (15 Tex. Ap. 330) i. 1061 Choice ». S. (31 Ga. 424) i. 405, 406 Chorley, Eeg. .-. (12 Q. B. 615) i. 32; ii. 1267 Chowne v. Baylis (31 Beav. 351) i. 267 Chrisp, S. •>. (85 N. C. 528; 39 Am. R. 713) ii. 74 Christian, Reg. v. (Car. & M. 388) ii. 1028 , Reg. u. (Law Rep. 2 C. C. 94 ; 12 Cox C. C. 502) ii. 362 «: S. (37 Tex. 475) i. 336 , S. V. (30 La. An. 367) i. 1064 , S. V. (66 Mo. 138) ii. 680 Christopher, Reg. v. (Bell C. C. 27 ; 8CoxC. C. 91) ii. 882 ^ V. Van Liew (57 B^rb. 17) i. 672 a Chrystal v. C. (9 Bush, 669) " ii. 690 , P. V. (8 Barb. 545) ii. 1028 Chubb, Rex v. (2 Deac. Crim. Law, 1687) ii. 986 Chuelt V. Cremer (1 Cooper temp. Cotten. 205) ii. 270 Chunn, .S. i: (19 Mo. 233) ii. 444 Cliurch, C. D. (1 Pa. St. 105 ; 44 Am. D. 112) i. 531 : ii. 1278 V. Hubbart (2 Cranch, 187) i. 106, 117,136,821 -, P. .,. (2 Wend. 262) -, S. u. (63 N. C. 15) ii. 256 ii. 31 Church's Will, In re (11 Eng. L. & . Eq. 240) i. 916 Cilley, S. v. (cited 1 N. H. 97) ii. 577 Cincinnati v. Rice (15 Ohio, 225) ii. 954 Cincinnati Board of Education v. Minor (23 Ohio St. 211) i. 417 Cincinnati Fertilizer Co. S. v. (24 Ohio St. 611) i. 420 Cincinnati Rid. v. C. (80 Ky. 137) ii. 1273, 1274 Cirwan's Case (1 East P. C. 182) ii. 286 Ciena, U. S. v. ( 1 McLean, 254) 1. 154 City of Mexico, The (25 Fed. Rep. 924; 28 Fed. Rep. 148; 32 Fed. Rep. 105) i- 482 Civille, P. V. (44 Hun, 497) ii. 341 Clair, C. v. (7 Allen, 525) i. 1063 Clap, C. i>. (4 Mass. 163; 3 Am. D. 212) i. 540, 591 ; ii. 907, 909, 918, 929, 987, 939 Clare v. Blakesley (1 Scott N. R. 897) ii- 269 Clarence, Reg. v. (22 Q. B. D. 23 ; 16 Cox C. C. 611) ii- 72 b Claridge v. Hoare (14 Ves. 59) ii. 219 Clarissa, S. v. (11 Ala. 67) i. 756, 768 ; ^ ii. 741 Clark V. Binney (2 Pick. 113) i. 471 ; ii. 915, 930, 932 V. C. (14 Bush, 166) ii. 1272 , C. V. (2 Met. 23) ii- 37 V. Ellis (2 Blackf. 8) ii. 1020 V. Foxcroft (6 Greenl. 296; 20 Am. D. 309) "• 255 Clark V. Lake St. Clair, &c. Ice Co. (24 Mich. 608) i. 1081 V. Lisbon (19 N. H. 286) ii. 1287 V. Molyneux (3 Q. B. D. 237) ii. 914 V. Newsam (5 Railw. Cas. 69 ; 1 Exfih. 131) ii. 563, 564, 565 V. Peekham (10 R. I. 36 ; 14 Am. R. 654) i. 264 V. P. (1 Breese, 266) ii. 243, 244, 268 V. P. (2 Lans. 329) ii. 461 , P. V. (67 Cal. 99) i. 1021 , P. J). (3 Seld. 385) ii. 677, 695, 721, 728 V. Protection Insurance Co. (1 Story, 109) i. 822 , Reg, V. (Dears. 198, 201 ; 3 Car. & K. 367 ; 6 Cox C. C. 210 ; 20 Eng. L. & Eq. 582) i. 963 , Rex V. (1 Brod. & B. 473) i. 115, 1062 ; ii. 745 , Rex V. (Russ. & Ry. 181) ii. 768, 826 V. S. (12Ga. 350) i. 795 V. S. (4 Humph. 254) i. 998 V. S. (8 Humph. 671) ii. 728 V. S. (86 Tenn. &11) i. 744 V. S. (30 Tex. 448) ii. 1122 V. S. (8 Tex. Ap. 350) i. 385 V. S. (19 Tex. Ap. 495) i. 328 V. S. (27 Tex. Ap. 405) i. 141 , S. «. (32 Ark. 231) i. 1061 , S. u. (69 Iowa, 196) i. 329, 998 , S. f. (78 Iowa, 492) i. 1085 , S. «. (42 Vt. 629) ii. 97, 107 , U. S. V. (31 Fed. Rep. 710) i. 44 , U. S. «. (1 Low. 402; 4 Bankr. Reg. 59) i. 672 a V. Webster (1 Car. & P. 104) i. 1080 Clarke's Case (12 Cush. 320) ii. 262 Clarke, Ex parte (64 Cal. 412) i. 1014 V. C. (25 Grat. 908) i. 796 «. Hall (2 Har. & McH. 378) i. 974 V. May (2 Gray, 410 ; 61 Am. D.470) i. 460; ii. 262, 268 , Reg. «. (1 Car. & K. 421) i. 796; ii. 116 , Reg. V. (Dears. 397; 18 Jur. 1069 ; 29 Eng. L. & Eq. 542) ii. 1 122 , Rex V. (Cowp. 610) i. 957 , Rex V. (2 Leach, 1036) ii. 768, 826 , Rex V. (2 Stra. 1216) ii. 973 ).. S. (23 Missis. 261) i. 1014 V. S. (8 Ohio St. 630) ii. 633 V. Strickland (2 Curt. C. C. 439) i- 821 V. U. S. (2 Cranch C. C. 158) i. 406 Clarkson, S. v. (69 Mo. 149) ii. 349 Clary v. C. (4 Pa. 210) u. 198, 201, 209, 236,240 Claxby, Reg. v. (3 Com. Law, 223 ; 1 Jur. N. s. 710 ; 80 Eng. L. & Eq. 368) ii. 1286 Claxton's Case (12 Mod. 566) i. 501, 515 Clay V. P. (86 111. 147) i. 633 a, 892 ' , Rex V. (2 East P. C. 680) i. 464 — =-, Kex V. (Russ. & Ry. 387) ii. 797 711 CLU INDEX TO THE CASES CITED. COK Clay V. Schwab (1 Mich. N. P. 168) ii. 589 V. S. (4 Kan. 49) i. 159 w. S. (40 Tex. 67) i. 648 V. Wyatt (6 J. J. Mar. 583) ii. 140 Clayton, Reg. v. (1 Car. & K. 128) 1. 685, 686, 759,772; ii. 17,20 , S. V. (100 Mo. 516 J 18 Am. St. 565) i. 772; ii. 1010 , S.!). (11 Rich. 581) ii. 880 Cleaves v. Jordan (34 Me. 9) ii. 1266 Cleavland, S. o. (6 Nev. 181) ii. 598 Clegg, Reg. K. (11 Cox C. C. 212) ii. 857 Clem V. S. (31 Ind. 480) ii. 680 V. S. (33 Ind. 418) i. 633 V. S. (42 Ind. 420; 13 Am. K. 369) i. 1061 Clement, In re (33 How. St. Tr. 1335, 1568) ii. 259 K. Chives (4 Man. & R. 127) ii. 930, 93 '2 V. Chivis (9 B. & C. 172) ii. 930, 932 , Reg. V. (26 U. C. Q. B. 297) ii. 1197 , Rex V. (4 B. & Aid. 218) ii. 244, 259, 916 Clements, P. v. (42 IJun, 353) ii. 1043 j;. H. (50 Ala. 117) i. 208 a V. S. (84 Ga. 660 ; 20 Am. St. 385) ii. 1178 , S. V. (32 Me. 279) i. 305, 536, 861, 875 Clemons, S. v. (3 Dev. 472) i. 226, 659 Clenny, S. v. (1 Head, 270) i. 1010 Clerk, Reg. v. (7 Mod. 16) i. 511 Clerke, Rex v. (2 Show. 193) i. 557, 888 Clew, U. S. V. (4 Wash. C. C. 700) ii. 365, 836 Cleworth, Reg. v. (4 B. & S. 927) ii. 957 Click V. S. (3 Tex. 282) i. 553 ; ii. 747, 750 Clifford u. Brandon (2 Camp. 358) ii. 216, 308 , C. u. (8 Cush. 215) ii. 1159 , Reg.>«. (2 Car. & K. 202) i. 310 ; ii. 579, 609 V. S. (10 Ga. 422) i. 809 K. S. (58 Wis. 477) i. 865; ii. 728 , S. V. (14 Nev. 72; 33 Am. E. 626) > ii. 882 Clifton, Rex v. (5 T. E. 498) Ii. 1281 V. S. (73 Ala. 473) ii. 1279 Cline V. S. (43 Ohio St. 332) i. 413 V. S. (43 Tex. 494) ii. 477 CUnton Bridge (10 Wal. 454) i. 175 ; ii. 1269 , Reg. V. (It. Law Eep. 4 C. L. 6) ii. 877 Oliver v. S. (16 Vroom, 46) ii. 35 Closs, Eeg. V. (Dears. & B. 460; 7 Cox C. C. 494) ii. 527, 536 Clougii, P. V. (17 Wend. 351; 31 Am. D. 303) i. 259 ; ii. 410, 467, 468 Clow V. Wright (Brayt. 118) i. 306 Cluck V. S. (40 Ind. 263) ' i. 406 Cluderay, Reg. v. (1 Den. C. C. 514 ; Temp. & M. 219; 14 Jur. 71; 19 Law J. N. 8. M. C. 119) i. 768;ii. 740 712 Cluderoy, Eeg. v. (2 Car. & K. 907) i. 758; ii. 740 Clue, C. V. (3 Eawle, 498) i. 1032, 1035 Clueworth, Eeg. >:. (Holt, 889) ii. 1271, 1272 1280 Cluworth, Reg. v. (6 Mod. 163) ii.'l280, 1286 Coats V. P. (22 N. Y. 245) ii. 838 V. P. (4 Par. Cr. 662) ii. 388 Cobbett, Rexu. (Holt on Libel, 114; Stark, on Libel, 522) i. 457 Cobbey W.Burks (11 Neb. 167) i. 304 Cobia 1). S. (16 Ala. 781) i. 996, 1014 Coble V. S. (31 Ohio St. 100) i. 976 Cobletz V. S. (36 Tex. 353) ii. 855 Cochran, P. v. (61 Cal. 548) i. 850 , P. V. (2 Johns. Cas. 73) i. 948 Cochrane v. S. (6 Md. 400) i. 998, 1021, 1023 Cockburn, Eeg. v. (3 Cox C. C. 543) ii. 36 Cocke V. Kendall (Hemp..236) ii. 297 Cockell V. Taylor (15 Eng. L. & Eq. 101 ; 15 Beav. 103) i. 541 ; ii. 140 Cocker, S. v. (3 Harring. Del. 554) i. 339, 796; ii. 116 Cockle V. Flack (93 U. S. 344) Cockman, S. v. (Winst. ii. 95) ii. 1260 i. 633; ii. 744 i. 320 ii. 309 ii. 746 ii. 812 Cockran, S. w. (1 Bailey, 50) Cockreham v. S. (7 Humph. 11) Gockrum v. S. (24 Tex. 394) Cockwaine, Rex v. (1 Leach, 498) Codd V. Cabe (1 Ex. D. 352 ; 13 Cox C. C. 202) ii. 72 d Codrington, Rex v. (1 Car. & P. 661) ii. 444 Coe, Rex v. (6 Car. & P. 403) i. 751, 756, 769; ii. 741 Gofer, S. v. (68 Mo. 120) i. 1006 Coffee, C. V. (9 Gray, 139) ii. 781 Coffey, C. V. (121 Mass. 66) i. 880, 882; ii. 72 6 Coffin V. Coffin (4 Mass. 1 ; 3 Am. D. 189) ii. 917 V. Wilbour (7 Pick. 149) i. 44 Coffman, P. v. (24 Cal. 230) i. 384 Cogdell, P. V. (1 Hill, N. Y. 94 ; 37 Am. D. 297) i. 207 ; ii. 758, 838, 882 Coggins, Reg. v. (12 Cox C. C. 517 ; 6 Eng. Rep. 342) ii. 1140 Coghlan, Reg. v. (4 Fost. & F. 316) ii. 1200, 1201 Cohen, In re (5 Cal. 494) ii. 268 , Reg. V. (8 Cox C. C. 41) i. 303, 304 , Eeg. V. (11 Cox C. C. 99) i. 359 , Eeg. !>. (2 Den. C. C. 249 ; 5 Eng. L. & Eq. 545) ii. 816 , Eex V. (1 Stark. 611) i. 440; ii. 1028 , Rex V. (1 Stark. 516) i. 992 Cohens v. Virginia (6 Wheat. 264) i. 196 Cohn !). Beal (61 Missis. 398) i. 464 Coke's Case (J. Kel. 12, 23) i. 895 Cokely, Eeg. v. (13 U. C. Q. B, 521) ii. 501 COL INDEX TO THE CASES CITED. CON Coker w. S. (20 Ark. 53) Colbath V. S. (2 Tex. Ap. 391) ii. 704 i. 387, 400, 409 ii. 434 i. 237 i. 891 a - V. Kegler (64 Iowa, 59) - V. P. (84 III. 216) -, P. V. (43 N. Y. 508) -, P. V. (4 Par. Cr. 35) Colbert u. S. (1 Tex. Ap. 314) Colburn v. Swett (1 Met. 232) Colby, S. B. (55N. H. 72) Cole's Case (7 Abb. Pr. n. s. 321) 1. 384, 387 Cole w. Black River Falls (57 Wis. 110) i. 464 V. Cole (1 Har. & J. 572) i. 974 , C. V. (26 Pa. 187) ii. 1267 V. Fisher (11 Mass. 187) ii. 28,^ 1274 i. 1079 i. 930 ii. 873 i. 305, 865; ii. 655 , Reg. u. (2 Cox C. C. 340) ii. 813 , Reg. V. (5 Jur. 200, n.) ii. 758 V. Sprowl (35 Me. 161 ; 56 Am. D. 696) i. 265 V. S. (5 Eng. 318) i. 735, 791, 953 , S. V. (2 McCord, 117) i. 534 ; ii. 1143, 1147, 1150 , S. V. (48 Mo. 70) i. 1010 , S. V. (10 Vroom, 324) ii. 207 , U. S. V. (5 McLean, 513) i. 670 ; ii. 187, 238 Coleman v. Frazier (4 Rich. 146 ; 53 Am. D. 727) i. 460 , P. V. (4 Cal. 46 ; 60 Am. D. 581) i. 172, 174 , Rex V. (2 East P. C. 672) i. 583 ; ii. 446, 812 V. S. (28 6a. 78) V. S. (26 Tex. Ap. 252) ii. 40 i. 731 ; ii. 113 i. 1006 i. 957 i. 387 , S. V. (8 Ala. 14) , S. V. (Dudley, S. C. 32) , S. V. (27 La. An. 69i) , S. V. (5 Port. 32) i. 678 ; ii. 744, 745, 1004 V. Tennessee (97 U. S. 509) i. 1029 Colgate, S. <^. (31 Kan. 511; 47 Am. R. 507) i. 1064 Colhoun, Reg. v. (2 Crawf. & Dix C. C. 57) ii. 858, 860 CoUberg, C. v. (119 Mass. 350 ; 20 Am. R. 328) i. 260; ii. 35 Collector, The, v. Day (11 Wal. 113) i. 180 Collicott, Rex w. (Russ. & Ry. 212 ; 2 Leach, 1048 ; 4 Taunt. 300) i. 769 ; ii. 291, 592, 609 Collier, Rex w. (5 Car. & P. 160) i. 294 ; ^ ii. 531 V. S. (55 Ala. 125) ii. 390, 393, 404 V. S. 69 Ala. 247) ii. 731 V. S. (39 Ga. 31 ; 99 Am. D. 449) ii. 657 CoUingwood, Reg. v. (6 Mod. 288) i. 767 Collins V. Blantern (2 Wils. 341, 350) i. 711, 714 Collins V. C. (3 S. & R. 220) i. 432, 632 ; ii. 175, 192, 198, 201 , C. V. (12 Allen, 181) ii. 812 , P. 17. (53 Cal. 185) i. 666-, ii. 119 , P. w. (7 Johns. 549) i. 464 , Reg. V. (9 Car. & P. 456) i. 540; ii. 82, 936, 942 , Reg. ... (1 Cox C. C. 57) ii. 574 , Reg. V. (Leigh & C. 471 ; 9 Cox C. C.-497) i. 741, 745 , Reg. V. (2 Moody & R. 461) i. 584 V. S. (78 Ala. 433) ii. 1020 V. S. (3 Heisk. 14) ii. 740 V. S. (15 Lea, 68) ii. 800, 813, 814 V. S. (25 Tex. Supp. 202) ii. 88 , S. V. (32 Iowa, 36) i. 305. 874 V. Thomas (1 Post. & F. 416) ii. 490 CoUis V. Emett (1 H. Bi. 313) i. 682 CoUison, Rex v. (4 Car. & P. 565) i. 634 ; ii. 58 Colly V. S. (55 Ala. 85) ii. 419 , S. V. (39 La. An. 841) ii. 419 CoUyer, U. S. v. (Whart. Horn. 483) ii. 667 Colquitt V. S. (34 Tex. 550) ii. 25 Colt V. Eves (12 Conn. 243) i. 981 Coltman v. Hall (31 Me. 196) i. 885 Colton, C. V. (8 Gray, 488) ii. 951 Columbus, U. S. o. (5 Cranch C. C. 304) i. 1-110, 1113, 1114, 1115 Columbus Insurance Co. v. Curte- nius (6 McLean, 209) i. 175 Colvin V. S. (11 Ind. 361) ii. 599 , S. V. (11 Humph. 599; 54 Am. D. 58) i. 1010 Combe's Case (Sir F. Moore, 759; Noy, 101) ii. 578, 580, 590 Comer, Rex v. (1 Leach, 36) i. 793, 796, 1062 V. S. (62 Ala. 320) ii. 1266 Comfort V. C. (5 Whart. 487) i. 467, 469 V. Fulton (39 Barb. 56) i. 569 ; ii. 763 Commings, Rex v. (5 Mod. 179) i. 237, 246, 459 ; ii. 982 Commissioners, S. v. (4 Dev. 345) ii. 1282 , S. o. (Riley, 146; 3 Hill, S. C. 149) i. 245, 531 ; ii. 1269 , S. o. (Riley, 273 ; 3 Hill, S. C. 239) i. 1005, 1006 , S.». (Walk. Missis. 368) ii. 1282 Compton, P. J). (1 Duer, 512) ii. 256, 269 , Rex V. (Cald. 246) ii. 218 , Rex V. (3 Car. & P. 418) i. 794 Comstock, P. V. (49 Mich. 330) ii. 53 , P. V. (8 Wend. 549) i. 1003 V. S. (14 Neb. 205) ii. 1131 Conally, S. «. (3 Or. 69) i. 850, 865, 869 Concannon, C. v. (5 Allen, 502) ii. 372 Conde, Reg. v. (10 Cox C. C. 547) ii. 660, 686 Cone, C. V. (2 Mass. 132) i. 143, 3.31 ; ii. 288, 605 713 30N INDEX TO THE CASES CITED. COO Coney, Reg. v. (8 Q, B. D. 534; 15 Cox C. C. 46) i. 258, b33 ; ii. 35 Confiscation Cases, The (20 Wal. 92) i. 904, 908, 910 Congdon v. Cooper (15 Mass. 10) i. 286 Conger's Case (4 City H. Reu. 65) ii. 474 Conger, S.t). (14 Ind. 396) ii. 956 Congleton, P. v. (44 Cal. 92) ii. 53 Conkle, S. v. (16 W. Va. 736) i. 1020 Conkling v. Springfield (39 III. 98) ii. 1267 Conlee, S. v. (25 Iowa, 237) i. 424 Conlin, S. v. (27 Vt. 318) i. 1049, 1066 Conn V. Manifee (2 A. K. Mar. 396 ; 12 Am. D. 417) ii. 140 V. P. (116 III. 458) i. 413 'Connaughty k. S. (1 Wis. 159; 60 Am. U. 370) i. 718 Connecticut Mut. Life Ins. Co. v. Groom (86 Pa. 92; 27 Am. R. ii. 1187 S. 1. 194 ii. 1097 ii. 740 ii. 790 ,940 V. Union Trust Co. (112 U 250) Connell, C. v. (3 Grat. 587) , Reg. V. (6 Cox C. C. 178) V. S. (2 Tex. Ap. 422) Conner v. C. (13 Bush, 714) , Rex V. (7 Car. & P. 438) i. 217, 881 ; ii. 667, 663, 684 V. S. (25 Ga. 516; 71 Am. D. 184) - ii. 1140 w. S. (4 Yerg. 137; 26 Am. D. 217) ii. 655 , S. V. (110 Ind. 469) ii. 461 , U. S. V. (3 McLean, 573) i. 298, 1003 ; ii. 1039, 1047 Conners v. S. (16 Vroom, 340) ii. 104 Connolly's Case (2 Lewin, 229) i. 359 Connolly v. Boston (117 Mass. 64 ; 19 Am. R. 396) ii. 960 , C. V. (97 Mass. 591) i. 468 , Reg. V. (26 U. C. Q. B. 317) ii. 1121, 1123 , S. V. (3 Rich. 337) i. 5.34; ii. 1143 Connor v. Archer (1 Speers, 89) ii. 265 , P. w. (17 Cal. 354) ii. 888 , P. V. (126 N. Y. 278) ii. 1122 , Reg. V. (2 Car. & K. 518) ii. 639 , Reg. V. (2 U. C. Cham. 139) ii. 514 Connors, C. v. (116 Mass. 35) i. 1065 Conoly V. S. (2 Tex. Ap. 412) ii. 118 Conrad, Territory v. (1 Dak. 363) i. 772, 796 Conrahy, Reg. v. (2 Crawf. & Dix C. C. 86) i. 217;ii. 693 Conrow, C. v. (2 Pa. St. 402) i. 887 Constable's Case (5 Co. 106 a) 1. 146 Constitution, Tlie (4 P. D. 39) i. 130 Contested Election of Brigadier- General (1 Strob. 190) i. 44 Converse v. Searls (10 Vt. 578) ii. 140 Conway v. Clinton (1 Utah, 215) i. 838 V. Reg. (7 Ir. Law, 149; 13 Q. B. 735,-n. ; 1 Cox C. C. 210) i. 1033 V. S. (4 Ind. 94) i. 1052 714 Conway, S. v. (18 Mo. 321) i. 207 ; ii. 758, 838, 882 Cony, C. V. (2 Mass. 523) ii. 401 Conyngham v. C. (3 Yeates, 471) i. 821 Coogan, Rex v. (2 East P. C. 853) ii. 523 , Rex V. (1 Leach, 448 ; 2 East P. C. 948) i. 1062 ; ii. 603 Cook's Case (Cro. Car. 537) i. 868; ii. 707 Cook V. Bath (Law Rep. 6 Eq. 177) i. 265 , C. w. (1 Rob. Va. 729) ii. 1039, 1046 , C. V. (6 S. & R. 677 ; 9 Am. D. 465) i. 982, 990, 996, 1014, 1018, 1033; 1041 V. Darby (4 Munf. 444 ; 6 Am. D. 529) i. 271 V. Middlesex (2 Dutcher, 326) i. 914, 916 V. Middlesex (3 Dutcher, 637) i. 914, 916 , P. V. (41 Hun, 67) ii. 415 , P. V. (45 Hun, 34) i. 960 , P. V. (39 Mich. 236 ; 33 Am. 5. 380) i. 294, 305; ii. 637 , P. V. (2 Par. Cr. 12) i. 962 ; ii. 769, 786 , P. V. (4 Seld. 67 ; 69 Am. D. 451) i. 464 ; ii. 392, 1018 11. Staats (18 Barb. 407) ii. 1028 V. S. (60 Ala. 39 ; 31 Am. R. 31) i. 998 V. S. (77 Ga. 96) ii. 677 , S. V. (Phillips, N. C. 535) i. 65, 131 V. Travis (20 N. Y. 400) ii. 139 B. U. S. (1 Greene, Iowa, 56) i. 934 , U. S. V. (1 Sprague, 213) i. 825 Cooke, Petitioner (15 Pick. 234) 1. 965 V. Cooke (Phillips, N. C. 583) i. 464 V. Hall (5 Co. 51 a) i. 909, 910 V. Maxwell (2 Stark. 183) i. 975 , Reg. V. (8 Car. & P. 582) i. 572 ; ii. 591, 698 , Reg. ... (1 Post. & F. 64) ii. 442 , Reg. V. (Law Rep. 1 C. C. 295; 12 Cox C. C. 10; 2 Eng. Rep. 167) ii. 442 , Rex V. (7 D. & R. 673; 6 B. & C. 638) V. S. (83 Ind. 402) Cooley, C. v. (6 Gray, 350) , C. V. (10 Pick. 37) Coolidge, C. v. (128 Mass. 55) V. Guthrie (1 Flip. C. C. 97) , U. S. V. (2 Gallis. 864) : ii. 188 ii. 461 i. 506 ii. 1201 1.65 . 1035; ii. 269 , U. S. «. (1 Wheat. 415; 1 Gal- lis- 488) i. 199,201, 940 Coombes v. Queen's Proctor (16 Jur. 820 ; 24 Eng. L. & Eq. 598) i. 967 Coombs V. Queen's ProctoT (2 Rob. Eo. 647) i. 967 , S. V. (32 Me. 529) i. 782, 793, 1065 , U. S. V. (12 Pet. 72) i. 173, 176, 177 Coon, P. V. (15 Wend. 277) i. 460, 462; ii. 974 V. S. (13 Sm. & M. 246) ii. 890 COR INDEX TO THE CASES CITED. COW Coon, S. M. (14 Minn 456) ii. 976 Cooper's Case (Cro. Car. 544) i. 849, 877 Cooper, In re (32 Vt. 253) ii. 244, 268 V. Adams (2 Blaukf. 294) i. 460 , C. V. (16 Mass. 187) i. 808, 809 , C. «. (130 Mass. 285) ii. 359 a , P. V. (6 Hill, N. Y. 516) ii. 1281 , Keg. V. (1 Cox C. C. 266) i. 637 ; ii. 948 , Reg. V. (1 Den. C. C. 459; 3 Cox C. C. 559 ; 2 Car. & K. 876 ; Temp. & M. 125; 13 Jur. 502) i. 557, 884 , Reg. V. (Law Rep. 2 C. C. 123 ; 12 Cox C. C. 600) ii. 367 a , Rex V. (5 Car. & P. 535) i. 677 ; ii. 16 , Rex II. (2 Stra. 1246) i. 540 U.S. (8 Bax. 324; 85 Am. R. 704) i. 887 , S. V. (5 Day, 250) ii. 560 , S. V. (1 Green, N. J. 361; 25 Am. D. 490) i. 781, 793, 1058 ; ii. 745 , S. V. (71 Mo. 436) ii. 728 , S. V. (16 Vt. 551) i. 501, 559; ii. 110 , S. V. (2 Zab. 52-; 51 Am. D. 248) V. Telfair (4 Dall. 14) i Cope V. C. (28 Pa. 297) V. Ramsey (2 Heisk. 197) , Rex V. (7 Car. & P. 720) -, Rex V. (1 Stra. 144) . i. 260 , 821, 831 i. 910 1.460 i. 299 ; ii. 978 i. 592, 650 ; ii. 190, 216 Copeland, Reg. v. (Car. & M. 516) ii. 4-30, 445 V. S. (7 Humph. 479) i. 865, 875 ; ii. 703, 716 , S. !'. (65 Mo. 497) i. 1033 , S. w. (86N. C. 691) ii. 784 Copenhaven v. S. (15 Ga. 264) i. 1061, 1064 Copp, S. a. (15 N. H. 212) ii. 244 Coppenburg, S. v. (2 Strob. 273) i. 664, 700, 791 Copperman v. P. (56 N. Y. 591) ii. 1138 Coppersmith, U. S. v. (2 Flip. 546) ii. 299 Copping K. S. (7 Tex. Ap. 61) ii. 309 Corbett, Reg. v. (4 Post. & F. 555) i. 482 , Rex J). (Say. 267) i. 299;li. 972 Core V. James (Law Rep. 7 Q. B. 135) i. 303, 336 Corey v. P. (45 Barb. 262) i. 858 ; ii. 37 Corfield v. Coryell (4 Wash. C. C. . 371) i. 176 Corley y. Lancaster (81 Ky. 171) i. 264 , S. V. (4 Bax. 410) ii. 533 V. Williams (1 Bailey, 588) i. 267, 714 Corneille v. S. (16 Ind. 232) ii. 886 Cornelison v. C. (84 Ky. 583) i. 940 Cornell, P. «. (16 Cal. 187) i. 621 , U. S. V. (2 Mason, 60) i 159, 429; ii. 675, 677, 695, 1022 , VS. S. V. (2 Mason, 91) i. 400, 401 Cornetti, P. v. (92 N. Y. 85) ij. 728 Corning, P. u. (2 Comst. 9; 49 Am. D. 364) i. 1022, 1024 Cornish, C. v. (6 Binn. 249) i. 320 , Reg. V. (Dears. 425; 6 Cox C. C. 432 ; 33 Eng. L. & Eq. 527) ii. 860 i). S. (15Md. 208) ii. 885 V. Young (1 Ashm. 153) i. 464 Cornwal's Case (2 Stra. 881) i. 649; ii. 120 Cornwallis's Case (7 How. St. Tr. 143) ii. 744 Cornwell v. S. (Mart. & Yerg. 147) i. 400, 406, 409 Corry, Rex v. (5 East, 372) i. 246 Cory, Reg. v. (10 Cox C. C. 23) ii. 779 V. Silcox (5 Ind. 370) Coslet, Rex v. (1 Leach, 236) Costello, C. V. (120 Mass. 358) Costen, S. v. (1 Houat. Crim. 340) Costin, S. V. (89 N. C. 511) Costley V. S. (14 Tex. Ap. i56) Cotesbatch, Rex v. (2 D. & R. 265 Cotesworth, Reg. v. (6 Mod. 172) Cothran v. S. (39 Missis. 541) ii. 968 ii. 795 ii. 529 ii. 697 ii. 346 ii. 529 i. 32 i. 548; ii. 72 ii. 1039 a, 1046 Cotta, P. V. (49 Cal. 166) i. 648; ii. 728 Cotten, Rex v. (W. Kel. 125) ii. 972, 973 Cotteral, P. v. (18 Johns. 115) ii. 15, 17 Cotton, Rex v. (W. Kel. 133) ii. 243, 244 V. S. (31 Missis. 504) i. 872; ii. 701 V. S. (4 Tex. 260) i. 873; ii. 726 V. S. (32 Tex. 614) ii. 723 , S. V. (6 Tex. 425) i. 504 Cottrell, Ex parte (59 Cal. 417) ii. 242 a Coulson V. Graham (2 Chit. 57) ii. 269 , Reg. V. (1 'P]ng. L. & Eq. 550; Temp. & M. 332; 1 Den. C. C. 592 ; 14 Jur. 557) ii. 434 Coulter, S. v. (Wright, 421) ii. 252, 269 , U. S. V. (1 Cranch C. C. 203) i. 1113, 1115 Council, S. u. (1 Tenn. 305) i. 569; ii. 985, 996 Counsil, S. V. (Harper, 53) i. 35, 700 County, Rex v. (2 Russ. Crimes, 8d Eng. ed. 118) i. 649 Coupe, C. V. (128 Mass. 63) ii. 1267 Course's Case (cited Foster, 349) 1. 663 Court, Reg. v. (6 Cox C. C. 202) i. 531 Courtail v. Homfray (2 Hag. Ec. 1) i. 38 Courtney, P. i: (31 Hun, 199 ; 94 N. Y. 490) ii. 1019, 1032 , Reg. V. (7 Cox C. C. Ill) ii. 1039 a V. S. (13 Tex. Ap. 502) Covington, S. v. (4 Ala. 603) i. 730 i. 801 ; ii. 187 1.262 ii. 518 , S. V. (2 Bailey, 569) , S. V. (70 N. C. 71) , S. V. (94 N. C. 913 ; 55 Am. H. 650) ii. 593 Cowan, S. v. (7 Ire. 239) ii. 1174, 1179 a , S. V. (29 Mo. 330) i. 1068 Coward v. Baddeley (4 H. & N, 478) ii. 72, 72 c Cowdin, S. v. (28 Kan. 269) ii. 419 715 CRA INDEX TO THE CASES CITED. CEO Cowell, S. w. {4Ire.231) i. 795 Cowen V. P. (14 111. 348) ii. 434, 485 Cowing V. Snow (11 Mass. 416) ii. 790 Cowley V. P. (21 Hun, 416) i. 884 a 1). Pulsifer (187 Mass. 392; 50 Am. R. 318) ii. 916 t). S. (10 Lea, 282) ii. 60 Cowper, Rex v. (5 Mod. 206 ; Skin. 637) i. 759, 762, 772 Cox V. Feeney (4 Fost. & F. 13) ii. 916 u. P. (19 Hun, 430) ii. 727 V. P. (82 111. 191) i. 768 d , Reg. V. [1 Car. & K. 494) , Reg. 0. (1 Fost. &F. 664) i. 578 ; ii. 7t9 i. 729 -,-Reg.v. (14 Q. B. D. 153; 16 Cox C. C. 611) . i. 895 , Rex V. (2 Bur. 785) ii. 958 , Rex V. (4 Car. & P. 538) 1. 948 ; ii. 1147, 1154, 1258 , Rex V. (stated Cas. temp. Hardw. 372) i. 204 , Eexi'. (1 Moody, 337; 6 Car. & P. 297) ii. 1129 , Rex V. (Russ. & Ry. 362) i. 339 V. S. (3 Blackf. 193) i. 174; ii. 1271 V. S. (5 Tex. Ap. 493) ii. 728 , S. V. (3 EHg. 436) ii. 54 , S. V. (65 Mo. 29) i. 204 , S. V. (67 Mo. 46) i. 992 , S. u. (N. C. Term R. 165) i. 795 Coy, S. D. (2 Aikens, 181) i. 795, 806 Coyle V. C. (100 Pa. 573 ; 45 Am. R. 397) 1.388 , S. V. (41 Wis. 267) ii. 529 Coyles i>. Hurtln (10 Joiins. 85) 1. 469, 653; ii. 248 Coyne v. P. (124 111. 17 ; 7 Am. St. 324) Cozens, Rex v. (2 Doug. 426) 1197 a i. 462 ; ii. 972 ii. 1129 ii. 796 s. ii. 438 i. 302 ii. 962 Cozins, Rex v. (6 Car. & P. 351) Cozlett's Case (2 East P. C. 666) " Crab, Reg. t). (18 Law Times n 370 ; 11 Cox C. C. 83) Crabtree v. S. (30 Ohio St. 382) , S. V. (27 Mo. 232) Craoknell, Reg. ^. (10 Cox C. C. 408) ii. 1201 Craddock,RBg.B. (2Den.C.C.31) ii. 1141 V. S. (18 Tex. Ap. 567) ii. 962 Craft V. S. (3 Kan. 460) ii. 728 Craig 11. McCulloch (20 W. Va. 148) ii. 268 , Pennsylvania D. (Addison, 190) i. 634; ii. 1153 V. P. (47 111. 487) ii. 1270 Craige, S. t>. (89 N. C. 475; 46 Am. R. 698) ii. 794 Crain v. S. (45 Ark. 450) ii. 529 Cramp, Rex v. (Russ. & Ry. 327) i. 758, 791 ; ii. 162 Crampton v. S. (37 Ark. 108) i. 291 Cranden, Rex v. (1 Gab. Crim. Law, 744) i. 1311 716 Crane, C. v. (1 Va. Cas. 10) Xi. 701, 704 V. S. (41 Tex. 494) u. 741 , S. V. (4 Wis. 400) 1. 1033 , U. S. V. (4 McLean, 317) i. 667 Crary v. Goodman (22 N. Y. 170) ii. 138 Craton, S. v. (6 Ire. 164) i. 868, 891 ; ii. 699, 713 Cravens v. Grant (2 T. B. Monr. 117) i. 997 Cravins v. Gant (4 T. B. Monr. 126) i. 997 Crawford, In re (13 Jur. 965) , C. «. (8 Philad. 490) V. S. (2 Ind. 112) V. S. (15 Lea, 343 ; 54 Am 423) , S. u. (2 Dev. 425) ii. 259 i. 866 ii. 1262 R. ii. 1279 i. 429; ii. 1004, 1006, 1007 , S. V. (66 Iowa, 318) i. 874 Crawforth v. Holder (3 Y. & Col. Ex. 718) ii. 270 Crawley, Reg. v. (3 Fost. & F. 109) 1. 491 Credle, S. v. (63 N. C. 606) i. 992 Creed u. P. (81 111. 566) ii. 11 , Reg. V. (1 Car. & K. 63) i. 567 ; ii. 376 Creek v. S. (24 Ind. 151) i. 850, 869, 874 Creese, Keg. v. (Law Rep. 2 C. C. 105) . ii. 206 Creevey, Rex v. (1 M. & S. 273) ii. 917 Creighton v. C. (83 Ky. 142 ; 4 Am. St. 143; 84 Ky. 103; 4 Am. St. 193) i. 464, 842, 868 Crenshaw v. S. (Mart. & Yerg. 122 ; 17 Am. D. 788) i. 1070 , S. V. (22 Mo. 457) ii. 986 CreppsB. Burden (Cowp. 640) i. 793 Crespigny, Rex v. (1 Esp. 280) ii. 1040 Crews V. S. (3 Coldw. 350) ii. 1159, 1179 Cribs, Pennsylvania v. (Addison, 277) i. 534; ii. 1148 Crick, Reg. v. (1 Fost. & F. 619) ii. 664 Cripland, Rexi-. (UMod. 387) i. 246, 471 ; ii. 86, 88 Crippen v. P. (8 Mich. 117) i. 1079 Crisham, Reg. v. (Car. & M. 187) i. 648 ; ii. 1135 Crisp, Reg. v. (6 Mod. 175) i. 569; ii. 984 , Rex ». (1 B. & Aid. 282) Crissie, P. v. (4 Denio, 525) i. i. 712 ; ii. 424, 460 ii. 392 ii. 940 Critchett, S. v. (1 Lea, 271) Critchley, Rex v. (4 T. R. 129) Crittenden, Ex parte (62 Cal. 534) ii. 270 Crocheron v. S. (86 Ala. 64 ; 11 Am. St. 18) ' ii. 803 Crocker, Rex v. (2 Leach, 987; 2 New Rep. 87 ; Russ. & Ry. 97) i. 572 ; ii. 598, 602 i. 204 i. 1060, 1061 ii. 959 ii. 1122 ii. 789 1 Mod. i. 237 V. S. (49 Ark. 60) V. S. (47 Ga. 568) Crocket v. S. (83 Ind. 416) Crockett v. S. (49 Ga. 185) V. S. (5 Tex. Ap. 626) Crntton's Case (1 Vent. 63 ; 34) CEO INDEX TO THE CASES CITED. CUM Crofton V. S. (25 Ohio St. 249) i. 1094 a Crofts V. P. (2 Scam. 442) ii. 629, 688 , Hex u. (7 Mod. 397 ; 2 Stra. 1120) i. 861, 363, 866, 957 Crook V. P. (16 111. 534) ii. 269 V. Pitclier (61 Md. 510) i. 266 , Reg. V. (I Fost. & F. 521) ii. 664 Crooke, Rex v. (2 Stra. 901 ) 1. 751 ; ii. 603 Crookham v. 8. (6 W. Va. 510) i. 1033 Croom V. S. (71 Ala. 14) ii. 794 — - V. S. (85 Ga. 718 ; 21 Am. St. 179) ii. 652, 654 Cropp V. Tilney (Holt, 422) i. 691 ; ii. 918 Crosby's Case (3 Wils. 188; 19 How. St. Tr. 1138) ii. 247, 268 Crosby «. Leng ( 12 East, 409) i. 267 , Rex V. (1 Ld. Raym. Mod. 15) , Rex V. (2 Salk. 689) Crosman v. Lynn (121 Mass. 301) Cross V. Bloomer (6 Bax. 74) li, Guthery (2 Root, 90 ; 1 Am. 1. 9; 6 i. 903, 917 i. 918, 975 ii. 959 132 S. ii D. i. 271 ii. 6U ii. 540 10 D.61) V. North Carolina (132 U. 181) V. P. (47 lU. 152; 95 Am. 474) «. Peters (1 Greenl. 376; Am. D. 78) i. 671, 585 ; ii. 204 , Rex V. (3 Camp. 224) i. 631 ; ii. 1274 , Rex V. (2 Car. & P. 483) i. 244, 1139 , Rex w. (1 Ld. Raym. 711) i. 811 V. S. (1 Yerg. 261) ii. 895 , S. V. (12 Iowa, 66 ; 79 Am. D. ' 519) i. 733; ii. 1122, 1124 , S. V. (34 Me. 594) i. 997 , S. u. (27 Mo. 332) i. 415 , S. V. (101 N. C. 770; 9 Am. St. 58) i. 1060 , U. S. V. (4 Cranch C. C. 603) i. 597 , U. S. V. (1 MacAr. 149) i. 615 Crossley, Eeg. v. (2 Per. & D. 319 ; 10 A. & E. 132; 3 Jiir. 675) i. 240 , Rex V. (2 Moody & R. 17 ; 2 Lewin, 164) ii. 423, 437, 482 , Rex V. (7 T. R. 315) ii. 1024, 1028 Crosswell v. P. (13 Mich. 427) ii. 1123 Croswell, P. v. (3 Johns. Cas. 336) i. 691 ; ii. 918 Croucher, P. v. (2 Wheeler Crim. Cas. 42) ii. 1117 Crouther*s Case (Cro. Eliz, 654) i. 235, - 469; ii. 978 Crow's Case (1 Lewin, 88) ii. 323 Crow V. S. (24 Tex. 12) ii. 268, 269 V. S. (41 Tex. 468) ii. 32, 40 , S. I). (1 Ire. 375) i. 648 ; ii. 25, 82, 34 , S. V. (10 West. Law Jour. 501) ii. 1123 Crowderw. S. (8 -Lea, 669) Crowe, In re (3 Cox C. C. 123) Crowell V. Merrick (19 Me. 392) Crowev, P. v. (56 Cal. 36) Crowley v. C. (11 Met. 675) i.877 i. 457 i. 267, 271, 275 ii. 677 796, 953 Crowley, P. v. (23 Hun, 412) ii. 301 , P. V. (102 N. Y. 234) ii. 1132 V. Vaughan (11 Bush, 517) ii. 138 Crowther v. Hopwood (3 Stark. 21) i. 974 Crozier, S. v. (12 Nev. 300) ii. 704 Cruger, P. v. (102 N. Y. 510; 55 Am. R. 830) ii. 812 Cruiksliank, S. v. (6 Blackf. 62) ii. 1040 , U. S. V. (1 Woods, 308) i. 894 Crum V. S. (64 Missis. 1; 60 Am. K. 44) ii. 637, 638 Crumbley v. S. (61 Ga. 582) ii. 32 Crummey, S. v. (17 Minn. 72) i. 1060, 1137 Crump V. C. (76 Va. 922) ii. 1032 V. C. (84 Va. 927 ; 10 Am. St. 895) i. 692;ii. 233 , Rex V. (1 Car. & P. 668) i. 342 ; ii. 768, 841 Crumpton v. Newman (12 Ala. 199; 46 Am. D. 261) i. 237, 467 ; ii. 1010 , Eeg. V. -(Car. & M. 597) i. 809 ; ii. 660, 686 Crunden, Rex v. (2 Camp. 89; 1 Euss. Crimes, 3d Eng. ed. 326) i. 1128, 1131 1132 Cruse, Reg. v. (8 Car. & P. 641 ; 2 Moody, 63) i. 358, 859, 361, 412, 413, , 642, 735, 809 Crutch, S. V. (1 Houst. Crim. 204) i. 1021 Crutchley, Rex v. (7 Car. & P. 814) ii. 6.32 Cuddington «. Wilkins (Hob. 81) i. 898, 909, 917 Cuddy, Reg. v. (1 Car. & K. 210) i. 654 ; ii. 311, 744 Culbreath v. Hunter (30 Tex. 713) i. 14 Cullen V. C. (24 Grat. 624) ii. 311 , C. V. (13 Philad. 442) ii. 570 Cullerton, U. S. v. (8 Bis. 166) i. 916 Cullins, C. V. (1 Mass. 116) i. 141 CuUiton V. U. S. (6 Ct. of CI. 627) ii. 1202 Cullum, Reg. v. (Law Rep. 2 C. C. 28 ; 12 Cox C. C. 469) ii. 362, 363 Gulp V. S. (1 Port. 33; 26 Am. D. 367) i. 578 ; ii. 769, 785, 786 Culver V. Avery (7 Wend. 380 ; 22 Am. D. 586) i. 463 , S. V. (65 Mo. 607 ; 27 Am. E. 295) ii. 1267 Cumberland v. North Yarmouth (4 Greenl. 459) ii. 256 , S. V. (6 E. I. 496) ii. 1267 , S. w. (7 E. I. 75) ii. 1267 Cumberworth, Eex v. (8 B. & Ad. 108) ii. 1267 Cummingsw. Clark (15 Vt. 653) i. 464 V. C. (2 Va. Cas. 128) i. 143, 578 ; ii 785 , C. V. (3 Cush. 212 ; 50 Am. D. 732) i. 992, 1024 V. Missouri (4 Wal. 277) i. 279, 281, 281 a, 282 ' 717 CUR INDEX TO THE CASES CITED. DAM Cummings v. Perham (1 Met. 555) i. 1080 , S. V. (33 Conn. 2(iO) i. HI ; ii. 882 Cummins u. Latham (4 T. B. Monr. 97) ii. 127, 136 V. Spruance (4 Harring. Pel. 315) i. 287, 531, 829 ; ii. 1279 V. S. (12 Tex. Ap. 121) i. 141 , S. V. (78 Ind. 251) i. 515 Cumpton, Reg. «. (5 Q. B. D. 341) i. 465 Cundick, Rex v. {U. & R. N. P. 13) i. 506 Cundy v. Le Cocq (13 Q. B. T>. 207) 1.291 Cunningham v. Bucklin' (8 Cow. 178 ; 18 Am. D. 432) i. 4B0, 462 , C. V. (13 Mass. 245) i. 1029 V. P. (4 Hun, 465) ' ii. 538 , P. V. (1 Denio, 524 ; 43 Am. D. 709) i. 531, 1138, 1139; ii. 1274, 1275 V. Reardon (98 Mass. 538) ii. 1188 , Ileg. V. (Bell C. C. 72) i. 149 , Rex V. (1 Crawf. & Dix C. C. 196) i. 648 V. S. (49 Missis. 685) i. 727, 728, 729 V. S. (56 Missis. 269 ; 31 Am. R. 360) i. 383 b, 391, 392 , S. V. (100 Mo. 382) ii. 1125 , S. V. (2 Speers, 246) ii. 315, 316 Curd V. C. (14 B. Monr. 386) i. 955 Curl, Rex v. (2 Stra. 788) ii. 948 Curley, C. v. (101 Mass. 24) ii. 1104 Curlin v. S. (4 Yerg. 148) i. 535, 685 Curling, Eex u. (Russ. & Ry. 123) ii. 758, 843, 1061 Curran's Case (7 Grat. 619) i. 559 ; ii. 17 Curran, Rex v. (3 Car. & P. 397) i. 736, Currie, S. v. (35 Tex. 17) Currier, S. v. <28 Me. 43) Curril, Rex v. (LofEt, 156) Curry v. C. (2 Bush, 67) , Reg. II. (2 Moody, 218) , S. w. (1 Jones, N. C. 280) ii. 86 n i. 11.36, 1137 i. 1002 i.401 ii. 562 ii. 699, 702 i. 976 i. 1058 Curtis V. Cochran (50 N. H. 242) , C. I'. (11 Pick. 1.34) , C. V. (Thacher Crim. Cas. 202) i. 1052 V. Hubhard (1 Hill, N. Y. 336; 4 Hill, N. Y. 437 ; 40 Am. D. 292) i. 876, 877 V. Hurlburt (2 Conn. 309) i 957 V. Knox (2 Denio, 341) i. 856 ; ii. 1262 V. Leavitt (15 N. Y. 9) 1. 658 , P. V. (50 N. Y. 321 ; 10 Am. R. 483) i. 100, 135 , S. V. (4 Dev. & Bat. 222) ii. 106, 501 , S. V. (5 Humph. 601) 1. 1032 , S. v. (29 Kan. 884) i. 998 , S. u. (70 Mo. 594) ii. 677, 726, 728, 731 , S. V. (71 N. C. 56) ii. 1162 a 718 Curtis, U. S. V. (107 U. S. 671) i. 464 ; ii. 1020 Curvan, Rex v. (1 Moody, 182) ii. 699 Cashing v. Adams (18 Pick. 110) i. 208 Cushlan, Rex v. (Jebb, 118) ii. 598 Cushman v. Ryan (1 Story, 91) ii. 40 , U. S. V. (1 Low. 414) i. 488 Custer, S. v. (65 N. C. 389) i. 516 Cutbush, Reg. v. (Law Rep. 2 Q. B. ' 379; 10 Cox C. C. 489) i. 958 Cuthbert, S. v. (T. U. P. Cliarl. 13) i. 465, 466 ; ii. 1069, 1087 Cutler, C. t>. (9 Allen, 486) i. 1065 , P. II. (28 Hun, 466) i. 1137 Cutsinger v. C. (7 Bush, 892) i. 892 Cutter «. S. (7 Vroom, 125) i. 299 ; ii. 392, 399 a, 404 Cutts V. C. (2 Mass. 284) 1. 821 Dacey v. P. (116 HI. 555) ii. 728 Dacy V. Gay (16 Ga. 203) i. 271 Dade, Rex v. (1 Moody, 807) i. 650 ; ii. 609 Dadson, Reg. v. (2 Den. C. C. 35 ; 4 Cox C. C. 358; 3Car. &K. 148; Temp, & M. 385 ; 14 Jur. 1061 ; 1 Eng. L. & Eq. 566) i. 441, 850 ; ii. 647 Daggett u. S. (4 Conn. 60; 10 Am. D. 100) i. 1150 Daimouth v. Bennett (15 Barb. 541) i. 714 Dainese v. Hale (1 MacAr. 86; 8 Chic. Leg. Kews, 97) i. 122 V. U. S. (15 Ct. of CI. 64) i. 122, 123 Dains v. S. (2 Humph. 439) i. 735 ; ii. 728, 741 Dale, Ex parte (2 Com. Law, 870 ; 28 Eng. L. & Eq. 165) ii. 927 II. Gunter (46 Ala. 118) i. 967 , Reg. V. (6 Cox C. C. 14) i. 749 ; ii. 740 , Rex V. (7 Car. & P. 352) i. 438, 571 ; ii. 159, 461, 462 V. S. (10 Yerg. 551) ii. 723, 728 Daley's Case (Whart. Horn. 466) ii. 727 Daley, C. v. (4 Gray, 209) i. 960 , C. V. (148 Mass. 11) i. 359, 361 Dalloway, Reg. v. (2 Cox C. C. 273) ii. 656 b Dalrymple u. Dalrymple (2 Hag. Con. 54) Introduction Dalton, Ex parte (49 Cal. 463) 1. 953 , P. V. ( 15 Wend. 581 ) i. 567 ; ii. 328, 853, 366, 367 Daly, C. V. (148 Mass. 428) i. 304 , y. P. (32 Hun, 182) ii. 678 , Reg. V. (9 Car. & P. 342) i. 715 Dame ti. Baldwin (8 Mass. 518) i. 268 ; ii. 858, 860 , C. V. (8 Cush. 884) i. 974 Damery, S. v. (48 Me. 827) i. 976 Damewood v. S. (1 How. Missis. 262) i. 578 Dammaree's Case (15 How. St. Tr. 521) ii. 1218 DAS INDEX TO THE CASES CITED. DAV Damon, C. v. (105 Mass. 580) , C. u. (136 Mass. 441) , P. u. (13 Wend. 351) , S. V. (2 Tyler, 387) i. 572 a ii. 936 i. 1014 i. 778, 792, 793, 1061 ii. 104, 118 j. 331, 831 Dan, S. i. (18 Nev. 345) Dana, C. v. (2 Met. 329) Danby, S. o. (I Houst. Crim. 166) i. 384, 390, 391 Dandridge, C. v. (2 Va. Clas. 408) ii. 258 Dane, Re^. v. (1 Fost & F. 323) i. 303 a Danenhoffer v. S. (69 Ind. 295; 35 Am. R. 216) i. 886 Danfortli v. Durell (8 Allen, 242) ii. 1268 , S. V. (3 Conn. 112) i. 86, 759, 040; ii. 743 V. Streeter (28 Vt. 490) ii. 131, 1-34 Danger, Reg. v. (Dears. & B. 307; 7 Cox C. C. 303) ii. 481 Dangerfleld, Rex o. (3 Mod. 68) ii. 948 Daniel, Reg. v. (6 Mod. 182; 1 Salk. 380; SSalk. 191) i. 582, 767 V. S. (3 Heisk. 257) i. 468 1-. S. (lOLea, 261) ii. 40 Daniell, Reg. v. (6 Mod. 99) i. 582, 767 Daniels v. C. (7 Pa. 371) i. 930, 932 V. P. (21 111. 439) ii. 1267 V. S. (4 Tex. Ap. 429) i. 736 , S. V. (32 Mo. 558) ii. 888 Dann, P. v. (63 Mich. 490 ; 51 Am. R. 151) 1. 876 , Rex V. (1 Moody, 424) i. 1063 Dannelly, Rex v. (2 Slarshall, 471 ; Russ. & Ry. 310) i. 262, 287, 664 ; ii. 120 Diint, Reg. v. (Leigh & C. 567) ii. 641 Danville, &e. Rid. v. C. (73 Pa. 29) ii. 1277 Darby v. Brig Eastern (2 Dall. 34) i. 821 , Reg. ... (7 Mod. 100) i. 468, 734 ; ii. 1056 , Rex V. (3 Mod. 139, Comb. 65) i. 470; ii. 946 Darcy, Reg. v.. (1 Crawf. & Dix C C 331 i 767 Dark, Reg. v. (1 Den. C. C. 276) ii 483 , S. V. (8 Blaekf. 526) i. 992, 1004, 1024, 1027 Darling v. Westmoreland (52 N. H. 401 ; 13 Am. R. 56) ii. 1274 V. Williams (35 Ohio St. 58) i. 302, 305 Darnaud, TJ. S. w. (3 Wal. Jr. 143) i. 564 Darnell «. S. ( 6 Tex. Ap. 482) i. 594 Darnford, Rex v. (2 East P. C. 785) ii. J179 a Darrah, S. v. (1 Houst. Crim. 112) i. 810 Darrow v. Family Fund Soc. (116 N. Y. 637) ii. 1187 Darry u. P. (2 Par. Cr. 606; 6 Seld. 120) ii. 721 Darst V. P. (51 111. 286; 2 Am. R. 301) i 833; ii. 1149 Dascom, C. v. (Ill Mass. 404) i. 1010 Dash V. Van Kleeck (7 Johns. 477; 6Am. D. 291) i. 279 Dashing v. S. (78 Ind. 357) u. 286 Daugherty, S. v. (5 Tex. 1) Dave V. S. (22 Ala. 23) Davenger, C. v. (10 Philad. 478) Davenport u. C. (1 Leigh, 588) 1.1024 ii. 741 i. 32 i. 261; ii. 753 V. Lynch (6 Jones, N. C. 645) ii. 217 V. S. (38 Ga. 184) ii. 1143, 1149 , S. V. (47 Iowa, 507) i. 1144 Davey, Rex v. (5 Esp. 217) i. 491, 1138 David, S. v. (4 Jones, N. C. 353) i. 633 Davidson, C. v. (1 Cush. 33) i. 438, 571 ; ii. 169, 437, 461 V. S. (9 Humph. 465) i. 735; ii. 740, 741 V. S. (99 Ind. 366) , S.v. (38 Mo. 374) , S. V. (96 Mo. 168) , S. V. (12 Vt. 300) Davie, Rex v. (2 Doug. 688) Davies, Reg. v. (Dears. 640; Eng. L. & Eq. 607) , Reg. V. (1 Fost. & F. 68 , Reg. V. (2 Moody, 177) i. 1049 ii. 1179 i. 870 i. 953 ii. 972 36 ii. 802 i. 384, 392 ii. 5B7 , Rex V. (1 Rol. 11) i. 619 Davis V. Ballard (1 J. J. Mar. 563) i. 279 V. Season (133 U. S. 333) i. 300, 499 a V. Burgess (54 Mich. 514; 62 Am. R. 828) i. 536 u. C. (13 Bush, 318) i. 294 ,C.!;. (11 Gray, 4) ii. 606 , C. u. (11 Gray, 48) i. 1088 , C. V. (9 Mass. 416) ii. 193 , C. V. (104 Mass. 648) ii. 824 , C. V. (11 Pick. 432) ii. 63, 65 V. Duncan (Law Rep. 9 C. P. 396) ii. 937 • «. Fish (1 Greene, Iowa, 406; 48 Am. D. 387) V. New York (1 Duer, 451) V. Packard (7 Pet. 276) V. P. (88 111. 350) , P. V. (21 Wend. 809) , P. V. (1 Wheele- Crim, 230) , Reg. V. (6 Cox C. C. 369) , Reg. V. (11 Cox C. C. 181) , Reg. V. (15 Cox C. C. 174) ,-Reg. V. (18 U. C. Q. B. 180) , Rex V. (1 Car. & P. 306) , Rex V. (6 Car. & P. 177) , Rex V. (7 Car. & P. 785) -, Rex V. (1 Leach, 48 -, Rex V. (Lofft, 62) -, Rex V. (5 Mod. 74) -, Rex V. (12 Mod. 9) -, Rex V. (Russ. & Ry. 113) i. 663, 654 ; ii. 609 -, Rex V. (Russ. & Ry. 822) -, Rexi). (Russ. &Ry. 499) ii. 968 ii. 256 i. 196 i. 842 ii. 543 Cas. i. 368 ii. 100 ii. 438, 441 ii. 638 ii. 430 i.,339, 736, 791 ii. 1138 i. 868 ; ii. 699 ii. 72 e i. 462;ii. 973 i. 974 i. 993, 1009 V. Sharron (16 B. Monr. 64) 719 ii. 96 i. 559; ii. 95 ii. 135 DEA INDEX TO THE CASES CITED. DEJ Davis <;. S. (68 Ala. 58; 44 Am. R. 128) i. 206 V. S. (45 Ark. 464) i. 780 V. S. (3 Coldw. 77) ii. 103 V. S. (76 Ga. 721) ii. 1010 V. S. (3 Har. & J. 154) i. 503; ii. 1195 V. S. (39 Md. 356) i. 795, 797 V. S. (15 Olilo, 72 ; 45 Am. D. 559) i. 359 V. S. (43 Tex. 189) ii. 1132 V. S. (2 Tex. Ap. 425) i. 1144 V. S. (6 Tex. Ap. 133) i. 887 , S. K. (19Ala. 13) i. 10tJ6 , S. u. (4 Blaukf. 345) i. 992, 1009, 1016, 1024, 1027 , S. V. (1 Hill, S. C. 46) ii. 72 , S. V. (1 Houst. Crim. 13) ii. 701 , S.v. (1 Ire. 125; 35 Am. D. 735) i. 548; ii. 23, 30, 31 , S. V. (2 Ire. 153) i. 735; ii. 989 , S. V. (22 La. An. 77) i. 37 ; ii. 764 , S. 1'. (29 Mo. 391) ii. 66 , S. V. (14 Nev. 407) ii. 740 , S. u. (65 N. C. 298) ii. 3 , S. V. (69 N. C. 383) ii. 1018 , S. V. (80 N. C. 384) i. 998 , S. V. (1 Southard, 311) i. 44, 1029 , S. V. (9 Vroom, 176; 20 Am. R. 367) ii. 847 , U. S. V. (5 Mason, 356) i. 159 , U. S. V. (2 Sumner, 482) i. 110 Davison v. Champlin (7 Conn. 244) ii. 1022 V. Duncan (7 Ellis & B. 229) ii. 914 V. P. (90 111. 221) i. 876; ii. 738 , Reg. V. (2 Fost. & F. 250) i. 1031 , Rex V. (4 B. & Aid. 329) ii. 252 Davitt, Reg. v. (11 Cox C. C. 676) ii. 1213 Daw V. Eley (Law Rep. 7 Eq. 49) i. 895; ii. 259 Dawley v. S. (4 Ind. 128) , i. 975 Dawson, Rex v. (2 East P. 0.978; 1 Stra. 19) i. 572; ii. 573, 574 - — , Rex V. fl3 How. St. Tr. 451) ii. 1058, 1059 , Rex V. (5 Stark. 62) i. 795 i; Shaver (1 Blackf. 204) i. 194 H. S. (16 Ind. 428; 79 Am. D. 439) i. 411 V. S. (52 Ind. 478) ii. 620 a V. S. (33 Tex. 491) i. 305, 869; ii. 704 V. S. (7 Tex. Ap. 59) ii. 304 , S. V. (2 Bay, 360) i. 219, 317 Day V. C. (23 Grat. 915) i. 990 V. Day (4 Md. 262) i. 1081 II. Munson (14 OhioSt. 488) i. 93 , Reg V. (9 Car. & P. 722) i. 261 ; ii. 1124, 1125, 1183 , Reg. V. (1 Cox C. C. 207) ii. 72 , S. V. (100 Mo. 242) ii. 1032 , S. V. (3 Vt. 138) ii. 1270 Daynes, Reg. v. (12 Cox C. C. 514; 6 Eng. Rep. 339) ii. 857 Dayton, S. i>. (3 Zab. 49; 63 Am. D, 270) ii. 1018, 1026, 10.32 Deacon, C. v. (10 S. & U. 126) i. 135 720 Deacon, Rex v. (Ryan & Moody N. P. 27) ii. 605 Deakin u. Praed (4 Taunt. 825) i. 272 Deakins, Rex v. (1 Sid. 142) i. 672; ii. 641 Deal, S. V. (64 N. C. 270) ii. 825, 842 Dealtry, Reg. v. (1 Den. C. C. 287) i. 672 a Dean v. Chapin (22 Mich. 276) i. 822 , C. V. (109 Mass. 349) i. 789, 808 , C. «. (1 Pick. 387) i. 689 , S. V. (49 lowsi, 73; 31 Am. K. 143) ii. 882 Deane v. Clayton (7 Taunt. 489) i. 865 , Reg. V. (5 Cox C. C. 501) i. 998 , Reg. V. (2 Q. B. D. 305; 13 Cox C. C. 386) i. 960 , Reg. V. (10 U. C. Q. B. 464) ii. 1140 Dearborn, S. v. (15 Me. 402) ii. 1269 Dearing, S. v. (66 Mo. 630) i. 401 De Arman v. S. (71 Ala. 361) i. 305 ; ii. 645 Deasy, Reg. v. (15 Cox C. C. 334) ii. 1213 Deaver, U. S. v. (14 Fed. Rep. 595) ii. 390, 404 Deaves, Reg. v. (Ir. Rep. 3 C. L. 306; 11 Cox C. C. 227) ii. 882 De Banks, Reg. v. (13 Q. B. D. 29; 15 Cox C. C. 460) ii. 342 DeBare, U. S. i>. (6Bis. 368) ii. 1140 Debbs V. S. (43 Tex. 660) ii. 876 DeBeauvoir, Rex v. (7 Car. & P. 17) i. 468 ; ii. 1029, 1046 DeBerenger, Rex v. (3 M. & S. 67 ; 2 Russ. Crimes, 3d Eng. ed. 679) ii. 209 DeBerniei'. S. (19Ala. 23) ii. 1054 Deberry, S. v. (5 Ire. 371 ) i. 399 Debolt V. Cincinnati (7 Ohio St. 237) ii. 398, 404 De Bow D. P. (1 Denio, 9) i. 572 ; ii. 643 De Bruhl, S. v. (10 Rich. 23) ii. 999 Debruiel, Reg. v. (11 Cox C. C. 207) i. 141 ; ii. 1140, 1142 Decker v. Baltimore, &c. Rid. (30 Fed. Rep. 723) ii. 1269 Decklotts, S.V. (19 Iowa, 447) ii. 675, 676, 677 Dedieu v. P. (22 N. Y. 178 ; 4 Par. Cr. 693) i. 1055;ii. 12 Dee, Reg. u. (16 Cox C. C. 579) ii. 1120, 1122 D'Eon, Rex v. (1 W. BI. 510; 3 Bur. 1513) ii. 938 Deer v. S. (14 Mo. 348) i. 974 Deering, Reg. v. (11 CoxC. C.298) ii. 840 t!. S. (14Te.\. Ap. 599) ii. 840 De Forest v. S. (21 Ind. 23) i. 858 Defrese v. S. (3 Heisk. 68 ; 8 Am. Er. 1) ii. 863 De Gaultie v. S. (31 Tex. 32) ii. 898 De Graffenreid, S. r. (9 Bax. 287) i. 1062 De Grieff, U. S. v. (16 Blatoh. 20) ii. 238 De Hart, S. v. (6 Bax. 222) ii. 458, 464 , S. V. (2 Halst. 172) i. 992 Dejardin, C. v. (126 Mass. 46; 30 Am. R. 652) ii. 943 Dejarnette v. C. (75 Va. 887) i. 376, 387 DEN INDEX TO THE CASES CITED. DIC! DeLacyj), S. (8Bax. 401) ii. 888 De La Foret, S. v. (2 Nott & McC. 217) i. 126, 129, 196 De la Motte's Case (21 How. St. Tr. 687) ii. 1213 Delamotte, Rex v. (1 East P. C. 63) i. 134 Delaney, Ex parte (43 Cal. 478) ii. 74 V. Regulators (1 Yeates, 403) ii. 256 V. S. (7 Bax. 28) ii. 458 Delany, C. k. (1 Grant, Pa. 224) i. 792, 814 V. Jones (4 Esp, 191) ii. 914 , P. V. (49 Cal. 394) i. 963 , Rex V. (Jebb, 106) i. 1032 — T-k S. (41 Tex.601) ii. 15 Dekval, Rex v. (3 Bur. 1434) i. 502 ; ii. 235 Delaware Division Canal v. 0. (60 Pa. .367 ; 100 Am. D. 570) i. 1079, 1144 Delaware & Hudson Canal v. Law- rence (2 Hun, 163; i. 174 De Lay, S. v. (93 Mo. 98) ii. 415, 419 Deleany, Rex v. (Jebb, 88) i. 868, 1039 ; ii. 699 Delegal ». Highley (5 Scott, 154 ; 3 Bing. N. C. 950) ii. 915 Delegall v. Highley (8 Car. & P. 444) ii. 915 De Leon, P. v. (109 N. Y. 226 ; 47 Ht(n,308) ii. 746, 752 Delk i>: S. (64 Missis. 77 ; 60 Am. R. 46) ii. 758, 794 De Londo's Case (2 East P. C. 1098) i. 570 De Long, S. v. (88 Ind. 312) ii. 936 De Longchamps, Respubliea v. (1 Dall. Ill) i. 121, 126, 127, 128, 129, 940; ii. 51,72 Deloohery v. S. (27 Ind. 521) i. 32 De Los Angeles, P. v. (61 Cal. 188) i. 866 Delyon, S. i». (1 Bay, 353) i. 582; ii. 146, 148 Demarchi, U. S. «. (5 Blatch. 84) i. 120 De Mattos, Rex v. (7 Car. & P. 458) i. 121 Dement v. S. (2 Head, 505 ; 75 Am. D. 747) ii. 692 Deming, Matter of (10 Johns. 232) i. 909, 916 Dempeey ». P. (47 111. 323) i. 670 V. S. (27 Tex. Ap. 269; 11 Am. St. 193) i. 429 Denham v. S. (22 Fla. 664) ii. 726, 728 Denison, Rex «. (2 Keny. 259) i. 246, 458 Deniston, S. v. (6 Blackf. 277) i. 469 Denman ». S. (15 Neb. 138) ii. 6-38 Dennee, U. S. v. (3 Woods, 39) ii. 1197 , U. S. V. (3 Woods, 47) ii. 225 Dennin, P. v. (35 Hun, 327) ii. 956 a Dennis, C. w. (105 Mass. 162) ii. 1187 V. S. (5 Pike, 230) i. 648; ii. 1133, 1134 Dennison, Rex w. (LofEt, 148) i. 256; ii. 918 V. S. (13 Ind. 510) ii. 676, 677 , S. V. (31 La. An. 847) i. 1004 ; ^ ii. 745 VOL. I. — 46 Denniston, C. v. (9 Watts, 142) i. 909, 910 Densley, Bex v. (6 Car. & P. 399) ii. 1138 Denton's Case (cited-Foster, 108) i. 262 , ii. 97, 100 Denton, P. v. (2 Johns. Cas. 275) i. 1034 , S. i>. (1 Eng. 259) i. 992, 1027. Depardo, Rex v. (1 Taunt. 26 ; Buss. &Ry. 134) i. 117, 121;. ii. 630 Depew V. Trustees (5 Ind. 8) i. 174 De Puy, In re (3 Ben. 307) i. 907 Derby, Rex v. (3 B. & Ad. 147) ii. 1269 Derbyshire, Reg. v. (2 Q. B. 746 ; 2 Gale & D. 97 ; 6 Jur. 4»3) i. 531 ; ii. 1269 Derixson v. S. (65 Ind. 385) i. 294 Desehamps, S. v. (42 La. An. 567 ; 21 Am. St. 392) ii. 680 Deshler v. Dodge (16 How. 622) ii. 134 Deskins, C. v. (4 Leigh, 685) ii. 256 Desmarteau, C. v.. (16 Gray, 1) ii. 729 Detroit, &3. Plank Road, P. v. (37 Mich. 195) i. 1144 Devereaux, S. v. (41 Tex. 383) i. 572 a Devine v. P. (20 Hun, 98) ii. 840 , P. u. (59 Cal. 630) ii. 740 Devlin o. Brady (32 Barb. 518) ii. 86 , C. V. (126 Mass. 253) ii. 729 ^, C. ..'. (141 Mass. 423) ii. 415 Devoe «. C. (3 Met. 316) ii. 904 Devon Witches' Case, The (8 How. St. Tr. 1017) i. 593 Devonshire, Rex v. (2 Nev. & M. 212) ii. 1281, 1283 Dewer, S. v. (65 N. C. 572) i. 616, 663 De Witt, P. V. (68 Cal. 584) i. 874 , S. V. (2 Hill. S. C. 282 ; 27 Am. D. 371) i. 592. 1050; ii. 198, 206, 219 , S. u. (32 xMo. 571) ii,791 Dexter v. Nelson (6 Ala. 68) ii. 13(i, 1.37 V. Spear (4 Mason, 115) i. 429 ; ii. 929 Dextra, C. v. (143 Mass. 28) ii. 9-58, 963 Dias V. S. (7 Blackf. 20 ; 39 Am. D. 448) - i. 934 Dibble, S. v. (4 Jones, N. C. 107) i. 1081 Dick, Ex parte (14 Pick. 86) i. 965 , Rex V. (1 Leach, 68; 2 East P. C. 926) i. 143 , S. V. (2 Murph. 388) ii. 1133, 1134 Dickenson v. Watson (T. Jones, 205) ii. 60, 72 c Dickerman, U. S. v. (92 U. S. 520) i. 130 Dickerson, S. v. (98 N. C. 708) i. 881, 887 Dickey v. Maine Tel. (46 Me. 483) ii. 1273, 1280 , U. S. V. (Morris, 412) i. 572 a Dickinson v. Barber (9 Mass. 225 ; 6 Am. D. 68) i. 385 V. Burrell (Law Rep. 1 Eq. 337) ii. 139 , C. V. (3 Pa. Law Jour. Rep. 265) > ii. 1028 V. Potter (4 Day, 340) i. 32 , Rex V. (Russ. & Ry. 420) i. 342 ; ii. 768, 841 721 DOB INDEX TO THE CASES CITED. DON Dickinson v. S. (70 Ind. 247) i. 1006 , S. V. (41 Wis. 299) ii. 731 , U. S. 0. (2 McLean, 325) i. 076 Dicks, Rex v. (1 Russ. Crimes, 3d Eng. ed. 19) i. 362 Dierberger, S. v. (90 Mo. 369) i. 464 Dietrick v. Mateer (10 S. & R. 151) i. 821, 970 Diggs K. S. (49Ala. 311) i. 464 Dignowitty I'. S. (17 T«x. 521; 67 Am. D. 670) ii. 825, 847 Dill, P. V. (1 Scam. 257) i. 1024 V. S. (25 Ala. 15) , i. 842, 849, 866 Dillahunt, S. v. (3 Harring. Del. 651) i. 406 Dillingham k. S. (6 Oliio St. 280) ii. 420 Dillon v.. S. (38 Ohio St. 586) i. 931 Diiworth, Reg. v. (2 Moody & R. 531) ii. 28 Dimmett v. Eskridge (0 Munf. 308)- i. 829 ; ii. 1285 Dimond, C. v. (3 Gush. 235) i. 567 ; ii. 898 Dinet v. P. (73 111. 183) ii. 243 Dingley, Rex v. (cited 1 Show. 53 ; Gouldsb. 186 ; 2 Leach, 840) i. 5^9 ; ii. Ill, 830 Dingman, Reg. u. (22 U. C. Q. B. 283) i. 79 Dinkey t). C. (17 Pa. 126; 55 Am. D. 542) i. 1054 Dinsmore v. New York Police Board (12 Abb. N. Cas. 436) ii. 962 Diprose, Reg. v. (11 Cox C. C. 185) ii. 343 Direct U. S. Cable Co. v. Anglo- American Tel. Co. (2 Ap. Cas. 394) i. 105, 146 Dishler, P. v. (38 Hnn, 175)- ii. 1046 Dishon v. Smith (10 Iowa, 212) ii. 85, 88 Dissoaway, In re (91 N. Y. 236) ii. 242 a Distilled Spirits (2 Ben. 486) i. 835 , U. S. V. (10 Blatch. 428) i. 825 Distillery, C. v. (Hardin, 459) ii. 1267 , U. S. K. (8 Ben. 473) i. 258 , XJ. S.w. (11 Blatch. 255) i. 835 Divine, P. v. (Edm. Sel. Cas. 594) ii. 675 Dixon's Case (2 Lewin, 178) ii. 583 Dixon, Reg. v. (3 Cox C. C. 289) ii. 660 , Reg. V. (36 Eng. L. & Eq. 597 ; Dears. 680) ii. 882 , Rex V. (1 East P. C. 313) 1. 868 , Rex y. (10 Mod. 336) i. 361, 504, 1185 i. 531 ; ii. 1282 . Rex »..(3 M. & S. 11 ; 4 Camp. 12) i. 816, 491, 686 , Rexw. (12 Mod. 198) ■«. S. (2 Tex. 481) , S. V. (75 N. C. 275) , U. S. V. (4 Cranch, C. C. Doan V. 8. (26 Ind. 495) Doane, C. ii. (1 Cush. 5) Dobbins v. Erie (16 Pet. 436) , Rex V. (11 Mod. 317) 941 1. 850 107) , 504, 1135 i. 632, 653 i. 297 ; ii. 852 180 i. 531 • V. S. (14 Ohio St. 498) i. 1033, 1034 bins's Disti" Dobbins's DlBtillery v. U. S. (96 U. S. i. 488 Dobbs, Rex v. (2 East P. C. 513) i, 342, 559, 736 Dobkins v. S. (2 Humph. 424) i. 761 Dobson, S. V. (3 Harring. Del. 563) i. 678; ii. 767, 785,786 Dodd «. Hamilton (N., C. Term 31) i. 260, 263; ii. 811 , Rex V. (9 East, 516) i. 247 , V. S. (33 Ark. 517) i. 1062 , S. V. (3 Murph. 226) ii. 1031 Doddridge, Reg. v. (8 Cox C. C. 835) i. 339, 6S4 Dodge V. Brittain (Meigs, 84) i. 260, 263 ; ii. 811, 822 V. S. (4 Zab. 455) i. 931 ; ii. 1044, 1064 , U. S. V. (2.Gams. 313) ii. 269 Dodson V. McCauley (62 Ga. 130) i. 713 V. Mock (4 Dev. & B. 146 ; 32 Am. D. 677) ii. 773 Dodwell V. Berford (1 Mod. 24) ii. 28 -r—, P. V. (1 Mich. 451) i. 348, 797, 842 ; ii. 745 Doe, S. V. (79 Ind. 9; 41 Am. R. 599) ii. 778 Doering, S. v. (48 Iowa, 650) i. 772 a Dogge V. S. (21 Neb. 272) ii. 248 Doherty, Eeg. v. (16 Cox C. 0. 306) i. 414; ii. 672, 675 , S. V. (2 Tenn. 80) i. 368 Dohring, P. v. (59 N. Y. 374 ; 17 Am. R. 349) ii. 1122 Doig, S. V. (2 Rich. 179) i. 429; ii. 996 Dolan V. P. (64 N. Y. 485) ii. 727 , Reg. V. (Dears. 436; 1 Jur. N. s. 72; 29 Eng. L. & Eq. 638) Ii 1140 U.S. (81 Ala. 11) 1.843, 844 Dolby, S. V. (49 N. H. 483; 6 Am. R. 688) i. 811 Dole V, New England, &c. Ins. Co. (2 Clif. 394) i. 120 Doles V. S. (97 Ind. 555) i. 1032 Dominick v. Bowdoin (44 Ga. 367) ' i. 899, 903 V. S. (40 Ala. 680; 91 Am. D. 496) i. 1053 Donahue, C. v. (148 Mass. 529; 12 Am. St. 691) i. 842, 876 Donaldson, P. v. (70 Cal. 116) ii. 147 , S V. (3 Vroom, 161) ii. 233 Donally, Rex v. (2 East P. C. 713) ii. 1172 Donau,.tJ. S. i>. (11 Blatch. 168) Donlan, U. S. v. (5 Blatch. 284) Don Moran, v. P. (25 Mieh. 356 ; Am. R. 283) Donnally, Rex v. (1 Leach, 193) 722 Donnell v. S. (48 Misfis. 661) Donnellan v. C. (7 Bush, 676) Donnelly v. S. (2 Dutcher, 463) V. S. (2 Dutcher, 601) ii. 695, 728 , S. V. (69 Iowa, 706; 68 Am. R. 234) i. 850 ii. 192 i. 169 12 ii. 1122 i. 663 ; ii. 1172 i. 894 ii. 681 ii. 728 DOW INDEX TO THE CASES CITED. DRl Donohoe v. S. (14 Tex. Ap. 638) ii. 1030 Bonohoo V. S. (36 Ala. 281) ii. 91, 96 DonoUy, Hex v. (2 East P. C. 715) it. 1156 Donovan, Reg. v. (4 Cox C. C. 399) 1.730 , S. V. (1 Houst. Grim. 43) ii. 773 V. Vicksburg (29 Missis. 247 : 64Am. D. 143) 1.832 Doody, Reg. v. (6 Cox C. C. 463) i. 413 ; ii. 1187 Dooley, Territory v. (4 Mont. 29.3) i. 780 Doon, S. V. (R. M. Cliarl. 1) i. 504, 1135 Door, S. V. (33 Me 498) ii. 444 Doran, Rex v. (1 Esp. 127) ii. 12 Dord V. v. (9 Barb. 671) ii. 478 Dorman v. Ames (12 Minn. 451) i. 1078 b , S. 1^. (UMisso. 635) 1.1024 , Territory v. (1 Ariz. 56) i. 998 Dorn V. S. (4 Tex. Ap. 67>) i. 311 ; ii. 307 a Dorrington's Case (1 East P. C. 181) 11. 293 Dorsey, S. v. (118 Ind. 167 ; 10 Am. , St. Ill) ii. 731 Doriis, C. V. (108 Mass. 488) ii. 1200 Dotson V. S. (62 Ala. 141; 34 Am. R. 2) 1. 302, 303, 303 a V. S. (6 Ooldw. 515) ii. 501 Doty ,;. Gorham (5 Pick. 487; 16 Am. D. 417) i. 464 V. S. (6 Blackf. 529) i. 934, 944 , S. V. (3 Vroom, 403) ii. 258, 269 Doud, S. V. (7 Conn. 384) i. 466 ; ii. 1104, 1105 Dougherty, C. o. (107 Mass. 243) ii. 38 , C. i). (7 Smitli's Laws, 695; Whart. Horn. 362) ii. 728 V. P. (4 Scam. 179) ii. 114.3, 1144 Douprlas, In re (3 Q, B. 825; 3 Gale & D. 50y) ii. 403 V. Neil (7 Heisk. 437) " i. 464 , Rex V. (7 Car. & P. 644) i. 632, 685, 689 , Rex V. (1 Moody, 462) 11. 419 Douglass V. C. (2 Rawle, 262) i. 1150 , C. V. (6 Met. 241) ii. 1056 V. Roan (4 Call, 353) i 821 V. S. (4 Wis. 387) i. 1078 a, 1141 V. S. (6 Terg. 525) ii, 1149 , S. V. (1 Greene, Iowa, 580) i. 934, 1024 , S. V. (63 N. C. .500) i. 1003 , U. S. V. (2 Blatch. 207) i. 194 V. Wood (1 Swan, Tenn. 393) i. 541 ; ii. 131 Dourdon, S. v. (2 Dev. 443) ii. 543 Douse, Rex v. (1 Ld. Raym. 672) 1. 507 Dove, C. V. (2 Va. Cas. 26) i. 793 y. S. 37 Ark. 261) ii. 841 w. S. (3 Heisk, 848) i, 384 Dover, S. v. (46 N. H. 452) Ii. 1273, 1280 Dovey, Reg. v. (2 Den. C. C. 86; 2 Eng. L. & Eq. 532) i. 800, 802 Dow, C. V. (10 Met. 882) i. 1080 Dow V. Johnson (100 U. S. 158) i. 45 V. S. (12 Tex. Ap. 343) ii. 801 , S. (-•. (21 Vt. 484) 1, 631, 686 iJowd, S. K. (19 Conn. 388) i. 797; ii. 727 Dowell, S. I). (106 N. C. 722 ; 19 Am. St. 568) i. 346 ; li. 1135 Dowers, S. v. (45 N. H. 543) i. 501 Dowey, Reg. v. (11 Cox C. C. 115) ii. 448, 473 Dowling, P. V. (84 N. Y. 478) i. 1004, 1006 Downer, Reg. v. (14 Cox C, C, 486) i. 317 , S. V. (8 Vt. 424 ; 30 Am. D. 482) i. 465 Downes, Reg. v. (Law Rep. 1 Q. B., D. 25; 13 Cox C. C. Ill) i. 306; ii. 686 Downey v. Beach (78 III. 53) ii. 1260 Downham, S. v. (1 Houst. Crim. 46) ii. 710 Downing v. Brown (3 Colo. 571) ii. 633 V. Herrlck (47 Me. 462) , 1. 460 , Reg. V. (U Cox C. C. 580) ii. 773 V. S. (66 Ga. 160) i. 343 , S. «. (74N. C. 184) i. 842 Downs, S. V. (91 Mo. 19) i. 303 a DoxtateiT, S. v. (47 Wis. 278) i, 154 Dovell, P. «, (48 Cal. 86) ii. 728 Doyle V. Baltimore (12 Gill & J. 484) i. 821, 822 V. Falconer (Law Rep. 1 P. C. 328) 11. 249 V. Lynn, &c. Rid, (118 Mass. 196; 19 Am. R. 431) il. 959, 960 , Rex V. (1 Leach, 67) i. 951 , U. S. V. (6 Saw, 612) ii. 226, 1010 nozier v. S. (26 Ga. 156) 1. 429 , S. 0. (Dudley, Ga. 155) ii. 444 , S. ti. (73 N. C. 117; ii, 104 Drake o. Lowell (13 Met. 292) i. 264 , Reg. V. (Holt, 425) ii. 918, 948 , Reg, V. (11 Mod. 78) ii. 941 V. S. (60 Ala. 62) i. 469 V. S. (68 Ala. 510) 1. 1010 !'. S. (14 Neb. 5.36) i. 1094 k Draper, Rex v. (3 Smith, 390) i. 256, 591 ; ii. 918 V. S. (4 Bax. 246) i, 843 , S. !). (1 Houst. Crim. 291) i. 387, 395; ii. 728 , S. V. (1 Houst. Crim. 531) ii. 704 Drehman v. Stifel (41 Mo. 184; 97 Am. D. 268) i. 45 Drennan v. P. (10 Mich. 169) i. 620 , Territory v. (1 Mont. 41) i. 861 Drew, C. v. (3 Cush. 279) i. 35-5, 1014 , C. V. (4 Mass. 391) i. 6-36, 842, 857, 868. 862, 868, 877; ii. 695, 706 , C. V. (19 Pick. 179) i. 301; ii. 152, 415, 420, 430, 440, 4B0, 461, 471 , U. S. V. (6 Mason, 28) i. 400, 400 Driffield, Rex v. (Say. 146) i. 582; ii. 145 Dring, Reg. v. (Dears. & B. 329) ii. 1140, 114a 723 DUN INDEX TO THE CASES CITED. DUT Driscoll, Reg. o. (Car & M. 214) i. 867 ; ii. 41 , U. S. V. (1 Low. 303) ii. 856, 904 Driver, S. v. (78 N. C. 423) i. 946, 947 Drue, Rex v. (1 Sid. 274) ii. 1031 Druitt, Keg. v. (10 Cox C. C. 592) ii. 230 Drum, C. v. (58 l-'a. 9) i. 850; ii. 676, 681, 714 , C. V. (19 Pick. 479) i. 808, 869- Drummond, S. v. (16 Vroom, 511) ii. 12B7 Drury v. Defontaine (1 Taunt. 131) ii. 964 , Keg. V. (3 Car. & K. 193; 18 L. J. N. s. M. C. 189) i. 998 Drysdale v. S. (83 Ga. 744; 20 Am. St. 840) Dubois V. Marshall (3 Dana, \ ii. 708 ii. 139, 140 i. 998 ii. 118 Dubose V. S. (13 Tex. Ap. 418) Duuherw. S. (18 Oliio, 308) Ducker, S. v. (8 Or. 394; 34 Am. R. 690) ii. 812 Dudley's Case (2 Sid. 71) ii. 531 Dudley, C. u. ( 10 Mass. 403) ii. 490, 505 , Reg. c. (14 Q. B. D. 273; 16 CoxC. C.624) i. 348a, 923 V. Wells, (55 Me. 145) ii. 640 Dudjey and West Bromwich Bank- ing Co. V. Spittle (1 Jolins. & H. 14) i. 267 Dudman, Rex v. (2 Glyn & J. 389 ; 7 D. & R. 324 ; 4 B. & C. 850) ii. 1024 Duebbe v. S. (1 Tex. Ap. 169) ii. 728 Duell, P. V. (3 Jolins. 44'J) i. 466, 697 ; ii. 1084 Duels, Case of (2 How. St. Tr. 1033) ii. 311, 312 Duffield, Res. v. (5 Cox C. C. 404) ii. 230 Duffln's Case (1 East P. C. 437) ii. 1 127 Duffln, Rex !). (Russ. & Ry. 366) i. 735; Ii. 1190 Duffy V. Hobson (40 Cal. 240; 6 Am. R. 617) ii. 540 Dugan, C. o. (12 Met. 233) i. 464 , S. V. (1 Houst. Crim. 563) i. 314, 3.%, 859; ii. 656 6 Dugdale v. Reg. (16 Eng. L. & Eq. 380 ; 1 Ellis & B. 436 ; Dears. C. C. 64; 22 Law J.N. s. M. C. 50; 17 Jur. 646) i. 204, 206, 759, 761 ; ii. 943 Dubammel, S. v. (2 Harping. Del. 6.32) i. 710, 714 Duke n. Harper (2 Mo. Ap. 1) ii. 130 Dukes V. S. ( 14 Fla. 499) ii. 673 a Dumas v. Smith (17 Ala. 305) ii. 132 — V. S. (62 Ga. 68) i. 629, 633 Dummer, Rex v. (Holt, 364) i. 266 Dnmphey, S. v. (4 Minn. 438) i. 798 Dnnaway v. P. (110 III. 333; 51 Am. R. 686) i. 736 Duncan w. C. (6 Dana, 295) i. 260, 535 ; ii. 35, 72 V. C. (4 S. & R. 449) i. 903, 910, 911 f. S. (49 Ark. 543) i. 860 D. S. (7 Humph. 148) i. 307 V. S. (84 Ind. 204) i. 805 724 Duncan v. S. (49 Missis. 331) i. 594 , S. i.-. (6 Ire. 98) 1. 669, 997 , S. V. (6 Ire. 236) i. 668 , S. .;. (1 McCord, 404) i. 631 ; ii. 1267, 1268 V. Thwaites (3 B. & C. 566) ii. 916 Dungey, Reg. ». (4 Post. & P. y9) i. 804, 809; ii. 28, 1136 Dunham, C. v. (Thacher Crim. Cas. 513) i. 1014 V. Drake (Coxe, 316) i. 821, 970 V. S. (6 Iowa, 245) ii. 257 , S. 0. (9 Ala. 76) i. 1052 Dunkle v. Renick (6 Ohio St. 527) ii. 1260 Dunkley, S. v. (3 Ire. 116) i. 121, 279 Dunlap V. Curtis (10 Mass. 210) ii. 404 V. Snyder (17 Barb. 561) i. 1080 , S. V. (24 Me. 77) ii. 418 Dunlop a. Munroe (1 Cranch C. C. 636) i- 271 , Reg. !). (15U. C. Q. B. 118) ii. 606 Dunman v. Strother (1 Tex. 89; 46 Am. D. 97) i. 504 Dunn V. P. (4 Colo. 126) ii. 602 V. P. (109 111. 635) i. 384 «. Reg. (12Q. B. 1031) i. 945 , Reg. V. (12 Jur. 99) i. 945 ; ii. 1054 , Rex V. (1 Leach, 57; 2 East P. C. 962) i. 572; ii. 661, 572 V. S. (16 Ga. 419) i. 713 V. S. (2 Pike, 229; 36 Am. D. 64) i. 1028 , S. V. (18 Mo. 419) ii. 713, 723, 728 Dunnage, Kex v. (2 Bur. 1130) i. 582; ii. 145 Dunnett, Reg. v. (Car. & K. 425) i. 346, 352 Dunning, S. v. (9 Ind. 20) i. 899, 900 Dunnington, S. v. (12 Md. 340) i. 463 Dunraven, Reg. v. ( W. W. & D. 577) ii. 1285 Dunston, Rex v. (Ryan & Moody N. P. 109) ii. 1038 Dupee, Rex v. (2 Sess. Cas. 11) ii. 154 Duperrier v. Dautrive (12 La. An. 664) . ii. 647 Duplin Canal, S. v. (91 N. C. 637) ii. 1282 Dupont V. Pichon (4 Dall. 321 ) i. 126 , S. V. (2 McCord, 324) ii. 316 Dupree v. S. (33 Ala. 380; 78 Am. D. 422) i. 872, 877 Dupy V. Wickwire (1 D. Chip. 237; 6Am. D. 729) i.279 Durell V. Hay ward (9 Gray, 248) ii. 1188 Durham v. P. (4 Scam. 172; 39 Am. D. 407) ■ i. 1052 w. S. (1 Blackf. 33) i. 794 V. S. (9 Ga. 306) i. 1014 , S. V. (72 N. C. 447) i. 788. 804 Diirkee, U. S v. (1 McAl. 196) ii. 847 Durr V. Howard (l Eng. 461 ) i. 82 Durrah v. S. (44 Missis. 789) i. 464 Dnrston, P. v. (119 N. Y. 669) i. 947 , S. V. (62 Iowa, 685) i. 947 Dutton I'. City (9 Philad. 597) , ii 396 EAT INDEX TO THE CASES CITED. KGE Dwengert). Geary (113 Ind. 106) ii. 1190 , Territory v. (2 New Mex. 73) i. 666 Dwyer, P. v. (90 N. Y. 402) ii. 241 Oyce Sombre, In re (1 Mac. & G. 116) ii. 85 Dyolies, S. v. (28 Tex. 535) 1. 903 Dye t'. C. (7 Grat. 662) i. 298, 990, 998, 1033 , Reg. V. (11 Mod. 174) ii. 1262 Dyer v. Curtis (72 Me. 181) ii. 1272 V. Hunnewell (12 Mass. 271) i. 32 , Reg. u. (6 Mod. 9H) ii. 505 , Rex V. (2 East P. C. 767) i. 649 , S. V. (69 Me. 803) i. 648 Dykes, Reg. v. (15 Cox C. C. 771) i. 358 Dyott II. C. (5 Wliart. 67) i. 572 a Dyson, Rex u. (1 Lewin, 64) i. 396 , Rexw. (Russ. &Ky. 523) i. 510, ' 631,652; ii. 1187 , Rex V. (1 Stark. 246) ii. 53 V. S. (26 Missis. 362) 843, 872 E. In re (65 How. Pr. 171) i. 944 Eades, S. v. (68 Mo. 150 ; 30 Am. R. • 780) ii. 529 Eagan, C. o. (103 Mass. 71) i. 359, 362 , C V. (151 Mass. 45) i. 32 Eagle, Reg. i>. (2 Fost. & F. 827) ii. 673 a Eagle Highway v. Ely (54 Mich. 173) ii. 1279 Eagleton, Reg. v. (Dears. 515; 33 Eng. Law & Eq. 540 ; 24 Law J. N. s. M. C. 158; 1 Jur. n. a. 940) i. 763, 767 ; ii. 461, 475, 480, 483. 488 Eanes v. S. (10 Tex. Ap. 421) ii. 704 Barbery, Rex ». (Fort. 37) i. 967 iSarl, S. V. (41 Ind. 464) ii. 269 , U. S. V. (17 Fed. Rep. 75; 9 Saw. 79) ■ i. 154 Early, S. v. (3 Harring Del. 562) i. 468 ; ii. 264 Earnest, S. v. (70 Mo. 620) ii. 727 Eason v. S. (6 Eng. 481) i. 32 East Mark, Reg. w. (11 Q. B. 877) ii. 1267 Eastern Counties Ry. v. Broom (6 Exch. 314; 15 Jur. 297; 20 Law J. s. 8. Exch. 196) i. 420 Eastman, C.v. (1 Cush. 189 ; 48 Am. D. 596) i. 432, 586, 592, 1041 ; .ii. 178, 193, 201, 202, 206, 214 Eastwood V. P. (8 Par. Cr. 26) i. 414 ■-, P. V. (4 Kern. 662) i. 414, 415 Eaton's Case (31 How. St. Tr. 927) ii. 76 Eaton, Reg. v. (8 Car. & P. 417) i. 804, 809; ii. 1195 - — , Rex V. (31 How. St. Tr. 927) i. flf'O , S. V. (3 Harring. Del. 564) i. 736 ; ii. 110 , S. V. (75 Mo. 586) i. 874, 1014 ; ii.728 Ebner, P. v. (23 Cal. 158)^ ii. 749 Eccles, Rex v. (1 Leacli, 274) ii. 230 Ecclesfield, Rex v. (1 B. & Aid. 348; 1 Stark. 393) ii. 1281 Euhols D. S. (12 Tex. Ap. 616) ii. 1278 Eckels V. S. (20 Ohio St. 508) ii. 795 Eckert, C. o. (2 Browne, Pa. 249) i. 236, 631 ; ii. 1269 Edelmath v. McGarren (4 Daly, 467) i. 656, 1078 b Eden, Rex v. (Loffi, 72) i. 256 Edens, S. v. (85 N. C. 522) ii. 1274 Edgcombe v. Rodd (5 East, 294) i. 712, 714 Kdge w. C. (7 Pa. 275) i. 424 , S. -•. (1 Strob 91) ii. 747, 74§ Edgerly, Rex v. (March, 131) i. 631 ; ii. 1276 Edgerton v. S. (67 Ind. 588 ; 33 Am. R. 110) ii. 958, 958 a, 959 Edmeads, Rex v. (3 Car. & P. 390) i. 636 ; ii. 651, 744 Edmonds v. S. (70 Ala. 8; 45 Am. R. 67) ii. 797 Edmondson v. S. (41 Tex. 496) ii. 1018 Edmonton, Rex v. (1 Moody & R. 24) ii. 1281 Edsall V. RusselL (6 Jur. 996) i. 548 ; ii. 28, 56 Edward, Rex v. (1 Moody & R. 257) i. 553; ii. 1173 Edwards, Ex parte (7 Q. B. D. 165) i. 895 13. C. (78 Va. 39 ; 49 Am. K. 377) i- 898, 919 , C. V. (1 Ashm. 46) i 538, 560 ; ii. 1144 , C. V. (9 Dana, 447) i 279 , Reg. ». (8Car. &P. 611) i. 217, 314, 888 ; ii. 660, 686 , Reg. 0. (13 Cox C. C. 384) ii. 878 , Rex y. (5 Car. & P. 518) i. 553; ii. 1173 i. 763 i. 748 , Rex V. (6 Car. & P. 515) , Rexw. (6 Car. & P. 521) , Rpx V. (8 Mod. 320; 11 Mod. 386 ; 1 Stra. 707) ii. 209, 218 , Rex V. (2 Russ. Crimes, 3d Eng. ed. 697) ' i. 437 , Rex V. (4 Taunt. 309 ; Russ. & Ry. 224 ; 3 Camp. 207) i. 1032 , Rex V. (Trem. P. C. 103) ii. 150 V. S. (49 Ala. 334) ii. 1018 V. S. (27 Ark. 493) i. 358 V. S. (7 Eng. 122) i. 910 V. S. (47 Missis. 581) 844 ; ii. 704 V. S. (2 Tex. Ap. 625) ii. 978 , S. V. (32 Mo. 548) ii. 303 , S. V. (70 Mo. 480) ii. 731 , S. V. (71 Mo. 812) ii. 728 Edyvean, Rex v. (3 T. R. 352) ii. 256 Kgan, In re (5 Blatch. 319) i. 65 , Reg. V. (1 Crawf. & Dix C. C. 338) i. 515 Egerton, Rex v. (Russ. & Ry. 375) i. 653; ii. 1172 725 ELL INDEX TO THE CASES CITED. EPH Eggington, In re (2 Ellis & B. 717 ; td Law J. N. S. M. C. 41 i 18 Jur. 224 ; 24 Eng. L & Kq. 14B) i. 32 , Rex V. (2 East P. C. 494, 666) i. 262 Egglnton, Rex v. (2 B. & P. 508; 2 Leach, 913) i. 262 Eichelberger, C. v. (119 Pa. 254) ii. 813 Eiland v. S. (52 Ala. 322) ii. 702 Eisele, S. v. (37 Minn. 266) ii. 1267, 1279 Eitel V. S. (33 Ind. 201) ii. 954 Ela V. Smith (6 Gray, 121; 66 Am. D. 356) i. 61 Elder, S. i. (65 Ind. 282; 32.Am. R. 69) i. 1053; ii. 745 -^— , S. V. (21 La. An. 157) ii. 12 , U. S. «. (4 Crandi C. C. 507) i. 111.3, 1114, 1115 Eldershaw, Rex v. (3 Car. & P. 396) i. 373, 746 Eldred v. Sexton (5 Ohio, 215) i. 464 Eldridge ;;. Cowell (4 Cal. 80) i. 17i EliLk, S. V. (7 Jones, N. C. 68) i. 733 Elijah V. S. (1 Humph. 102) i. 998 Elisha, C. t). (3 Gray, 460) i. 700 Eliza, The (2.Gallis. 4) i. 821 V. S. (39 Ala. 693) i. 893 Elizabeth, The (1 Paine, 10) i. 148 Elizabeth Fire Department, S. i-. (14 Vroom, 172) i. 1150 Elkin V. P. (28 N. Y. 177) i. 814; ii. 216 V. S. (63 Missis. 129) ii. 958 « Ellcins V. S. (2 Humph. 543) ii. 1267 EUar, S. 0. (1 Dev. 267) i. 498; ii. 80, 82 Ellick, S. V. (Winst. ii. 56; 86 Am. IJ. 442) ii. 704 EUicombe, Rex v. (5 Car. & P. 522 ; 1 Moody & R. 260) ii. 12 Ellington, S. v. (98 N. C. 749) i. 287, 672 a Elliot, Reg. V. (1 Leigh & C. 103) i. 1127 , Rex V. (1 Leach, 175) :06) , S. V. (11 N. H. 540) Elliott V. C. (12 Bush, 176) , C. V. (2 Mass. 372) V. Elliott (-38 Md. 357) V. Herz (29 Micii. 202) y. McLelland (17 Ala.: , P. V. (80 Crtl. 296) , Rex V. (2 East P. C. 951) V. S. (26 Ala. 78) V. S. (46 Ga. 159) V. S. (.36 Ohio St. 318) , S. V. (90 Mo. 350) Ellis, P. y. (15 Wend. 371) , Reg. f. (2 Car. & K. 470) , Reg, V. (Car. & M. 564) , Reg. V. (8 Car. & P. 654) , Reg. u. (Holt, 636 ' "" 726 i. 769 ; ii. 291, 592 i. 536 ; ii. 37, 502 ii. 808 i. 264, 266 i. 279 i. 336 ii. 1,32 i. 32 i. 769; ii. 291,592 i. S02 ii, 741 ii. 1201 ii 40 i, 1034 261,814; ii. 36 i. 428 i. 809 . 534, 795, 800 ; ii. 1144 Ellis, Rex V. (5 B. & C. 395; 8 D & R. 173) i. 930, 935 , Rex V. (9 D. & R. 174; 6 B. & C. 145) i. 949 V. S. (42 Ala. 525) i. 894 V. S. (7 Blackf. 534) i. 244, 1139 V. S. (25 Fla. 702) ii. 1131, 1132 — , S. V. (3 Conn. 185; 8 Am. D. 175) i. 141 , S. V. (12 La. An. 390) i. 648, 1024 — , S. V. (74 Mo. 207) ii. 697 — , S. V. (4 Vroom, 102 ; 97 Am. D. 707) ii. 85, 88 EUmore v. Hoffman (2 Ashm. 159) i. 32 Ellzey V. S. (57 Missis. 827) ii. 198 Elmendort v. Taylor (10 Wheat. 152) i. 194 Elipstead, Rex v. (1 Russ. Crimes, 3d Eng. ed. 894) i. 553; ii. 1172 Elringlon, Reg. v. (9 Cox C. C. 86; 1 B. & S. 688) i. 1054, 1058, 1060 Else, Rex v. (Russ. & Ry. 142) i. 6'54, 676; ii. 299 Elsey V. S. (47 Ark. 572) i. 814 Elsworth, Rex v. (2 East P. C. 986) ii. 574 Elworthy i'. Bird (9 Moore, 430; 2 Bing. 268) i. 711 Ely V. Niagara (36 N. Y. 297) i. 828 V. Peck (7 Conn. 239) i. 564 ; ii. 1022 V. Thompson (3 A. K. Mar. TO) i. 463 Emden, Rex v. (9 East, 437) i, 1052 Emerich, S. f. (87 Mo. 110) i. 279 Emerson v. Atwater (7 Mich. 12) i. 93 , U. S. V. (0 McLean, 406) ii. 904 Kmerton, Rex v. (2 Show. 20) ii. 266 Emery, S. v. (76 Mo. 348) ii. 50 , S. V. (78 Mo. 77 ; 47 Am. R. 92) ii. 656 b '-, S. V. (59 Vt. 84) i. 1032 Emily, The (9 Wheat. 381) i. 564 Emmerson v. Annison (1 Mod. 89; 2 Keb. 874) ii. 758, 765, 766 Emmett v, Lyne (1 New Rep. 255) ii. 56, 747 Emmons, P. i'. (61 Cal. 487) ii. 53 Empey, S. v. (79 Iowa, 460) i 693 Enip..on V. Bathurst (Hut. 52) ii. 394 Kniulous, The (1 Gallis. 563) i. 132, 821 England, P. v. (27 Hun, 139 i. 424 , Rex V. (Cas. temp. Hardw 158) i , S. e. (8 Jones, N. C. 399; 80 Am. D. 334) ii. 883 English, Reg. v. (12 Cox C. C. 171, 2 Eng. Rep. 224) ii. Enloe, S. v. (4 Dev. & Bat. 373) ii. Ennis v. S, (3 Greene, Iowa, 67) ii. Enoch, P. V. (13 Wend. 1.59; 27 Am. D. 197) i. 321, 327; ii. 691, , 713 461 220 855 , RexB. (5 Car. & P. _,., Knsley v. Nashville (2 Bax. 144) Enslow, S. V. (10 Iowa, 115) Epes's Case (5 Grat. 676) Ephraim, S.'i;. (2 Dev. & Bah 162) 721 632 i '164 ii. 996 i. 098 i. 1034, 1036 EVA INDEX TO THE CASES CITED. FAL Epperson, S. v. (27 Mo. 255) i. 749 Epps, Reg. V. (4 Eost. & E. 81) ii. 576, 587, 588 Equitable Gas Co. Rex v. (3 Nev. & M. 759) i. 950 Erb, S. V. (74 Mo. 199) i. 384 ; ii. 728 Erie and Nortbeast Kid. C. v. (27 Pa. 339; «7 Am. D. 471) ii. 1273, 1278 Ernest v. S. (20 Fla. 383) ii. 728 Errickson, S. v. (3 Vroom, 421) ii. 1088 Errington's Case (2 Lewin, 217) i. 314; ii. 657, 658, B92 Erskine, C. v. (8 Grat. 624) ii. 13, 17, 986 Ervine v. C. (5 Dana, 216) i. 934 Erwin, P. v. (4 Denio, 129) i. 500, 1091 V. S. (29 Oliio St. 186; 23 Am. U. 733) i. 850; ii. 676 V. S. (10 Tex. Ap. 700) i. 406 Esdaile, Reg. i. (1 Post. & F. 213) ii. 209 Eskridge v. S. (25 Ala. 30) ii. 1004 , S. V. (1 Swan, Tenn. 413) ii. 961 Esmon v. S. (1 Swan, Tenn. 14) i. 992, 1004 Esmond, In re (5 Mackey, 64) i. 44 Esop, Rex V. (7 Car. & P. 456) 1. 294, 948 Essex's Case (1 How. St. Tr. 1388) ii. 1213 Essex, Reg. v. (Dears. & B. 371; 7 Cox C. C. 385) ii. 855 Essex Witches' Case, The (4 How. St. Tr. 817) i. 693 Este, C. V. (140 Mass. 279) ii. 849 Estep V. C. (86 Ky. 39; 9 Am. St. 260) i. 859, 877 V. Lacy (35 Iowa, 419; 14 Am. R. 498) i. 910 Estes V. Carter (10 Iowa, 400) i. 35 ; ii. 1191 u. S. (55 Ga. 80) i. 400, 410 y. S. (2 Humph. 496) i. 945 , S. V. (46 Me. 150) ii. 457 Etchberry v. Levielle (2 Hilton, 40) i. 314 Etheridge v. Cromwell (8 Wend. 629) i. 307 ; ii. 136 Evani, Rex v. (1 Moody, 70) i. 572 a Evans «. Bell (6 Dana, 479) ii. 132 V. C. (3 Met. 453) , i. 960, 955 , C. V. (101 Mass. 25) i. 1059 , C. V. ( 13 S. & R. 426) i. 32 ; ii. 404 V. Eaton (7 Wheat. 356) i. 194 ». P. (90 111. .384) ii. 190 V. P. (49 N. Y. 86) ii. 721, 731 , Reg. V. (Bell C. C. 187 ; 8 Cox C. C. 257) ii. 417, 430 , Reg. V. (Car. & M. 632) i. 207 ; ii. 365, 813, 836, 858 , Reg.'w. (Leigh & C. 252 ; 9 Cox C. C. 238) ii. 414 , Rex V. (5 Car. & P. 553) i. 815 ; ii. S60, 612 , Rex V. (1 Buss. Crimes, 3d ' Eng. ed. 489) i. 562 0. Robinson (1 Car. Law Repos. 209) i. 281 V. S. (80 Ala. 4) ii 1167 w. S. (7 Bax. 12) i, 917,976 Evans v. S. (33 Ga. 4) -^v. S. (1 Humph. 394) i. 850, 86 i. 548 ; ii. 53 740 V. S. (44 Missis. 762) i. 305, 865, 869 ; ii. 680, 704 V. S. (8 Ohio St. 196; 70 Am. D. 98) U. 560 V. S. (24 Ohio St. 458) ii. 12 w. S. (6 Tex. Ap. 513) ii. 728 u. S. (15Tex. Ap. 31) i. 297 , S. w. (1 Houst. Crim. 97) ii. 1201 , S. V. (5 Ire. 603) i. 500, 601, 1083, 1085 , S. V. (39 La. An. 912) i. 730 V. Trenton (4 Zab. 764) ii. 890, 393 , U. S. ... (1 Cranch C. C. 149) i. 336, 468 a , U. S. V. (10 Saw. 132; 19 Fed. Rep. 912) ii. 1197 a V. Walton (Law Rep. 2 C. P. 615) - i. 884 6 Eve, Rex v. (1 Nev. & P. 229; 6 A. & E. 780) ii. 918 Everenden v. Beaumont (7 Mass. 76) i. 307 ; ii. 136 Everett, Rex v. (2 Man. & R. 35 ; 8 B. &C. 114) i. 239; ii. 982 Evers v. P. (6 Thomp. & C. 166; 3 Hun, 716) i. 872 , S. V. (49 Mo. 542) ii. 415, 419 Evill V. Conwell (2 Blackf. 133 ; 18 Am. D. 1.38) ii. 490 Ewing V. Savary (4 Bibb, 424) ii. 137 «. S. (4 Tex. Ap, 417) i. 736 V. Thompson (13 Mo. 132) i. 219, 631 Ewington, Reg. v. (Car. & M. 319) ii. 1028 , Reg. V. (2 Moody, 223) ii. 1020 Exnicios, S. v. (33 La. An. 253) ii. 349 Eyre, C. v. (1 S. & R. 347) i. 548; ii. 25, 34 Eyres, Rex v. (1 Sid. 307) ii. 394 Fadner v. P. (83 Hun, 240) ii. 526 , P. B. (10 Abb. N. Cas. 462) ii. 539 Fagnan v. Knox (66 N. Y. 525) i. 713, 714 Fahey, C. v. (5 Cush. 408) i. 492 Fahnestock v. S. (23 Ind. 231) i. 305, 865; ii. 728 Fain v. C. (78 Ky. 183; 39 Am. R. 218) i. 395 Fairbanks v. Kerr (70 Pa. 86; 10 Am. R. 664) i. 1142, 1146 Faircloughw. Gatewood (4 Call, 158) i. .307, 824 , S. V. (29 Conn. 47 ; 76 Am. D. 590) ii. 834 Fairlee v. P. (11 Bl. 1) i. 8.35 Fairy v. S. (18 Tex. Ap. 314) ii. 836 Faith V. S. (82 Tex. 373) ii. 1018 Falconer v. Campbell (2 McLean, 195) i. 279, 282 Fales !). Mayberry (2 Gallis. 560) i. 564 Falkenhainer, U. S. v. (21 Fed. Rep. 624) i. 617 a 727 FAU INDEX TO THE CASES CITED. FEB Fallowes v. Taylor (7 T. E. 475) i. 711, 714 Fallovi'S, Eex v. (5 Car. & P. 508) i. 553; ii. 1178 False Affidavits (12 Co. 128} Falvey, C. v. (108 Mass. 304) V. Massing (7 Wis. 630) Fann, S. v. (65 N. C. 317) Fanning v. S. (66 Ga. 167) i. 264 ; ii. 1054 1.594 ii. 247 ii. 367 a 1.566 , S. «. (94 N. C. 940 ; 55 Am. E. 653) Fant «. P. (45 111. 259) Farbach v. S. (24 Ind. 77) Faris, C. «. (6 Rand. 691) V. S. (3 Ohio St. 159) Farley, S. v. (8 Blackf. 229) '-, S. V. (4 McCord, 317) 11. 1. 1060, 1068 1.303 i. 243 i. 861 J ii. 502, 520 i. 910 11. 907, 929, 931 Farmers and Merchants Bank v. Chester (6 Humph. 458 ; 44 Am. D. 318) 1. 464 Farnham, U. S. v. (2 Blatch. 528) ii. 662 a Farnsworth v. Minnesota, &c. Eld. (92 U. S. 49) i. 819 a , S. w. ( 10 Yerg. 261 ) 1. 536 ; 11. 618 Farr's Case (J. Kel. 43 ; 2 East P. C. 660) 11. 805 Farr, S. v. (33 Iowa, 558) i. 633 Farrar, S. v. (38 Mo. 457) Ii. 1179 , S. V. (41 N. H. 53) il. 751, 754 Farrel's Case (2 East P. C. 557) ii. 797, 1161 Farrell's Case (Andr. 298) ii. 270 Far'rell, C. v. (5 Allen, 130) i. 466 , C. V. (105 Mass. 189) i. 1053, 1065 V. P. (16 111. 506) 11. 849 , Reg. V. (9 Cox C. C. 446) i. 1127 , Rex V. (1 Leach, 322, n.) 11. 1161 Farren, C. v. (9 Allen, 489) i. 303 a Farrier, S. b. (1 Hawks, 487) 1. 143 ; ii. 312, 314, 315 Farrington, Rex v. (Russ. & Ey. 207) i. 734 Farris v. C. (14 Bush, 362) i. 869; ii. 675 1.850 1. 1032 93 ii. 879 1. 271, 620 ii. 32 1.488 880 Farrow v. S. (48 Ga. 30) , S. «. (8 Bax. 571) , S. V. (Piiillips, N. C. 161 ; . Am. D. 585) Fassett v. Smith (23 N. Y. 252) Fastbinder v. S. (42 Ohio St. 341) Faulds, P. V. (66 HI. 220) Faulk V. Faulk (23 Tex. 653) Faulkner, Eeg. v. (13 Cox C. C. 550 ; Ir. Rep. 11 C. L. 8 ; 19 Eng. Rep. ■ 673) i. 336 ; ii. 16 , S. V. (32 La. An. 725) ii. 888 , U. S. V. (85 Fed. Rep. 730) i. 384 Fanlka ». P. (39 Mich. 200 ; 33 Am. R. 374) i. 302 Faunce v. P. (51 111. 311) u. 1139 728 Fauntleroy, Eex v. (1 Moody, 52 ; 2 Bing. 413; 1 Car. & P. 421) ii. 567 Fawcett v. Pittsburg, &c. Hy. (24 W. Va. 755) i. 213 , Eex V. (2 East P. C. 862) i. 466, 467, 571 ; 11. 149, 158, 531, 544 Fayetteville, S. v. (2 Murph. 371) i. 778, 782, 792, 798, 1061 Fearing v. Irwin (55 N. Y. 486) ii. 1267 Fearnley v. Ormsby (4 C. P. U. 136) ii. 1279 Fears, U. S. ». (3 Woods, 510) i. 465 Featherston, C. v. (9 Philad. ^94) ii. 914 Featherstone, Eeg. v. (Dears. 369; 18 Jur. 588; 26 Eng. L. & Eq. 570 ; 6 Cox C. C. 376 ; 1 Ben. & H. Lead. Cas. 199) ii. 822, 873, 874 Fee, S. V. (19 Wis. 562) ii. 740 Feely, C. v. (1 Va. Cas. 321) ii. 1022 , C. ». (2 Va. Cas. 1) i. 468 Feeney, C. v. (13 Allen, 560) i. 359 Feigelstock, U. S. v. (14 Blatch. 321) 1.488 Fein v. U. S. (1 Wy. 246) 1. 488 Feist, Reg. v. (Dears. & B. 590 ; 8 Cox C. C. 18) 11. 1188, 1190 Feital v. Middlesex Eld. (109 Mass. 398; 12 Am. E. 720) ii. 964 Felix V. S. (18 Ala. 720) ii. 704, 713, 715 Fell V. Knight (8 M. & W. 269 ; 5 Jur. 554) i. 532 , Rex V. (1 Salk. 272; 1 Ld. Eaym. 424 ; 6 Mod. 414) i. 218, 287, 288, 459, 465 ; ii. 1074 Fells, C. V. (9 Leigh, 613) 1. 1032, 1034 Felter V. S. (9 Yerg. 397) i. 583 ; ii. 814 Feltmakers v. Davis (1 B. & P. 98) i. 682 Felton, C. v. (101 Mass. 204) i. 156 ; ii. 882 i. 892 ii. 669 ii. 842, 847 ii. 1191 V. U. S. (96 U. S. 699) Fenly, S. v. (18 Mo. 445) Fenn, S. v. (41 Conn. 590) Fennell v. S. (32 Tex. 378) Fentiman, In re (4 Nev. & M. 126 ; 2A. &E. 127) i. 462;ii. 972 Fenton v. Hampton (11 Moore P. C. 847) • ii. 249 «. P. (4 Hill, N. Y. 126) ii. 460, 484 Fenwick, Rex v. (1 Sid. 153) i. 992 Ferdinand v. S. (39 Ala. 706) i. 893 Ferens v. O'Brien (11 Q. B. D. 21 ; 15 Cox C. C. 332) ii. 765 Fergus v. Hoard (15 III. 357) ii. 1040 Ferguson's Case (1 Lewin, 181) ii. 664 Ferguson v. KinnouU (9 CI. & F. 251) i. 287, 461, 462 V. Miller (1 Cow. 243; 18 Am. D. 619) ii. 777 , Eeg. ». (1 Cox d. C. 241) ii. 560 V. S. (32 Ga. 658) i. 636 V. S. (49 Ind. 38) ii. 713 V. S. (6 Tex. Ap. 504) 1. 736 , S. V. (2 Hill, S. C. 619 ; 27 Am. D. 412) ii. 653, 680, 716 FIR INDEX TO THE CASES CITED. FIT Ferguson, S. v. (35 La. An. 1042) ii. 560 , S. V. (2 McMul. 502) i. 207 ; ii. 758, 838, 882 , S. V. (26 Mo. Ap. 8) i. 842 , S. D. (9 Nev. lOG) i. 872 ; ii. 704 Fero, U. S. v. (18 Fed. Rep. 901) ii. 1201 Ferrall, Reg. v. ( 1 Eng. L. & Eq. 676 ; 4 Cox C. C. 431 ; 15 Jur. 42) i. 32 Ferrar's Case (T. Raym. 84) i. 998 Ferreli u. S. (43 Tex. 503) i. 400 Ferrer's Case, Lord (19 How. St. Tr. 886) i. 376, 380 Ferrier, Ex parte (103 III. 367; 42 Am. R. 10) i. 515 Ferrillu. C. (IDuv. 153) i. 140, 141 Ferrin v. Symonds (11 N. H. 363) i. 208 Ferris, P. w. (5& Cal. 588) i. 406, 413 Ferriss, S. v. (3 Lea, 700) i. 468 a Fetrow v. Merriwetlier (53 III 276) ii. 137 Fetter, In re (3 Zab. 311 ; 57 Am D. 382) Few, P. V. (2 Johns. 290) i. 135 ii. 269, 269, 272 i..l061 ii. 986 Fiddler v. S. (7 Humph. 508) Fidler, Rex v. (4 Car. & P, 449) Field, S. V. (14 Me. 244; 31 Am. T). 62) i. 805 Fielder v. Darrin (60 N. Y. 437) ii. 336, 1262 Fielding, Rex u. (2 Bur. 654; 2 Keny. 386) , Rex V. (2 Bur. 719) Fields, C. v. (4 Leigh, 648) 247, 266 i. 299, 462 ; ii. 973 ii. 1122, 1133, 1136 ii. 501, 503 ii. 728, 745 ii. 758, 841 , P. V. (1 Lans. 222) V. S. (62 Ala. 348) u. S. (6 Coldw. 524) , S. V. (Mart. & Yerg. 137) i. 992, 1024, 1027 Fife, S. V. (1 Bailey, 1) i. 778, 782, 793, 1061 ii. 1012 25 Am. Fifield, S. V. (18 N. H. 34) Filkins V. P. (69 N. Y. 101 R. 143) i. 875 ; ii. 72 b, 741 Finch's Case (6 Co. 63) i. 615, 967 Finch, P. i>. (5 Johns. 237) ii. 661 Findlay v. Bear (8 S. & R. 571) ii. 773 Fine, P. v. (53 Cal. 263) i. 780; ii. 740 Finley, Ex parte (66 Cal. 262) ii. 529 V. Ankeny (Breese, 191) ii. 256 , P. V. (38 Mich. 482) i. 371, 387 u. S. (61 Ala. 201) Finn, C. o. (108 Mass. 466) i. 1021 i. 411; ii. 1140 ii. 885 ii. 724, 728 , P. V. (87 N. Y. 533) V. S. (5 Ind. 400) Finnerty, Rex v. (1 Crawf. & Dix C. C. 167, n.) ii. 647 Finney, Reg. v. (12 Cox C. C. 625; 10 Eng. Rep. 507) ii. 660, 738 Fire Department v. Kip (10 Wend. 1 266) i- 822 . — , P. V. (31 Mich. 458) i. 833 First Congregational Church v. Mus- catine (2 Iowa, 69) ii. 243 Firth, Reg. v. (Law Rep. 1 C. C. 172) ii. 798 Fischblatt, C. v. (4 Met. 354) i. 795, 803, 998 Fischer v. Hayes (19 Blatch. 13) ii. 270 V. Hayes (19 Blatch. 184) ii. 266 Fish V. Dodge (4 Denio, 311, 600 ; 47 Am. D. 264) i. 1090 , P. V. (K5 N. Y. 136) ii. 728 , P. V. (4 Par. Cr. 206) ii. 146, 165 Fisher v. Cockerill (6 T. B. Monr.' 129) i. 279 «. C. (1 Bush, 211 ; 89 Am. D. 620) i. 1061 , C. V. (6 Met. 433) ii. 1267 L'. Crescent Ins. Co. (33 Fed. Rep. 544) i. 974 V. Fisher (4 Hen. & Munf. 484) ii. 256, 270, V. Horicon Iron, &c. Co. (10 Wis. 351) i. 93 «. Howard (10 Cox C. C. 144) ii. 964 V. McGirr (1 Gray, 1 ; 61 Am. D. 381) i 833 I'. P. (23 III. 283) i. 384 , P. V. (14 Wend. 9 ; 28 Am. D. 501) i. 892, 1014 ; ii. 189, 231, 237 , Reg. u. (8 Car. & P. 182) ii. 708, 713 , Rex V. (2 Camp. 563) i. 468; ii. 916 V. S. (43 Ala. 17) ii. 91, 118 V. S. (46 Ala. 717) i. 796 V. S. (64 Ind. 435) i. 387, 406 V. S. (77 Ind. 42) . ii. 731 , S. V. (52 Mo. 174) i. 493, 1072, 1144 , S. w. (TON. C. 78) ii. 804 , U. S. V. (2 Cranch, 358) i. 185 , U. S. V. (6 McLean, 2.3) ii. 856, 904 Fisk, Territory v. (Olympia Trans- cript, April 11, 1874) i. 305 Fiske, Ex parte (72 Cal. 125) i. 1151 Fitch, P. w. (1 Wend. 198; 19 Am. D. 477) i. 672 ; ii. 529, .542, 585, 602 , Reg. V. (Dears. & B. 187) ii. 873, 874 , Reg. V. (Leigh & C. 169; 9 Cox C. C. 160) ii. 564 V. Smallbrook (T. Raym. 32) i. 975 Fitchburg Rid. C. v. (8 Gush. 240) ii. 1267 Fitchie, Reg. v. (Dears. & B. 175; 7 • Cox C. C. 267 ; 40 Eng. L. & Eq. 598) ii. 564 Fitler v. Prohasoo (2 Browne, Pa. 137) ii. 244, 245 Fitzgerald, Rex v. (1 Leach, 20; 2 East P. C. 953) ii. 572 v^S. (16 Lea, 99) ii. 678, 699 , S. II. (49 Iowa, 260 ; 31 Am. R. 148) i. 769 , S, V. (20 Mo.,Ap. 408) ii. 925 Fitzpatrick's Case (3 How. St. Tr. 419) ii. 1132 Fitzpatrick v. C. (81 Ky. 357) i. 376, 384 , C. V. (121 Pa. 109; 6 Am. St. 757) • i. 1014, 1033 729 FLI INDEX TO THE CASES CITED. FOR Fitzpatrick v. Kelly (Law Eep. 8 Q. a. 337) i.491 V. S. (37 Ark. 238) il. 711 Fitzsimmons, S. v. (63 Iowa, 656) i. 869 , S. V. (30 Mo. 236) ii. 541, 608 Fizell K. S. (25 Wis. 364) ii. 1118 Flack, P. !.. (125 N. Y. 324) i. 287, 345 ; ii. 171 Flagg, C. V. (135 Mass. 545) i. 767 V. Millbury (4 Cusli. 243) ii. 960, 1280 , S. V. (27 Ind. 24) ii. 1024 Flaherty, C. v. (140 Mass. 454) i. 359, 361 Flanagan v. P. (62 N. Y. 407 ; 11 Am. R. 731) i. 383 4, 384, 387 , P. V. (60 Cal. 2; 44 Am. R. 62) i. 875 V. Philadelphia (42 Pa. 219) i. 174 !). S. (19 Ala. 546) i. 1017 V. S. (46 Ala. 703) ii. 673 a, 697 Flanakin, U. S. v. (Hemp. 30) i. 625 Flanders, P. o. (18 Johns. 164) i. 143 ; ii. 571, 598 , S. V. (38 N. H. 324) ii. 580, 581, 590 Flanigan, C. v. (8 Philad. 430) ii. 731 V. P. (86 N. Y. 654 ; 40 Am. R. 556) i. 410 Flanigin, S. v. (5 Ala. 477) i. 808 Ftannigan, S. v. (6 Md. 167) i. 795, 1004 Flattery, Reg. v. (2 Q. B. I). 410 ; 13 Cox C. C. 388) ii. 1120, 1122 Flavel, C. V. (Whart. Horn. 363) ii. 728 Flavell's Case (8 Watts & S. 197) i. 914, 915 Flavell, Reg. v. (14 Q. B. X>. 364 ; 15 Cox C. C. 660) ii. 246 Flecknow, Rex v. (1 Bur. 461) ii. 1283 Fleet V. Hegeman (14 Weud. 42) ii. 773, 775 , Rex !). (1 B. & Aid. 379) ii. 915, 916 Fleming, S. v. (7 Humph. 152; 46 Am. D, 73) i. 899, 1017 , S. V. (2 Strob. 464) i. 795 Flemister v. S. (48 Ga. 170) 1042 Fletcher v. Ellis (Hemp. 300) ii. 131 V. P. (52 111. 395) i. 882 , Reg. V. (Bell C. C. 63 ; 8 Cox C. C. 131) ii. 1115, 1121, 1123 , Reg. V. (2 Car. & K. 215) ii. 16 , Reg. V. (Law Rep. 1 C. C. 39) ii. 1121, 1123 , Reg. V. (Law Rep. 1 C. C. 320 ; 12 Cox C. C. 77) ii. 1028 , Reg. V. (Leigh & C. 180) ii. 342 , Rex V. (4 Car. & P. 545) ii. 833, 868 , Rex V. (Trem. P. C. 323) ii. 514 V. S. (6 Humph. 249) i. 1082 , S. V. (13 Vt. 124) ii. 1286 Fley, S. V. (2 Brev. 338; 4 Am. T). 583) i. 648, 1014 Flinn v. Leander (Bee, 260) ii. 876 , S. V. (3 Blackf. 72) i. 463 Flint, In re. (16 Q. B. T) 488) i. 44 V. Craig (59 Barb. 819) ii. 596 730 Flint, Rex v. (CaS. temp. Hardw. 370) ii. 218 , Rex V. (Rues. & Ry. 460) i. 571 ; ii. 148 Flint, &c. Ry. v. Gordon (41 Mich. 420) ii. 1266, 1267, 1270 —^ V. Willey (47 Mich. 88) ii. 1267 Flood !'. S. (19 Tex. Ap. 584) ii. 952 Flournoy, In re (1 Kelly, 606) i. 911 V. S. (16 Tex. 30) i. 1028 Flower, Rex v. (5 B. & C. 736 ; 8 D. & R. 512) ii. 374 , Rex V. (8 T. R. 314 ; 27 How. St. Tr. 986) ii. 247, 268 Flowers, S. v. (1 Car. Law Eepos. 97) i. 536, 538 ; ii. 517, 518 , Territory v. (2 Mont. 531) i. 35 Floyd V. Barker (12 Co. 23) i. 460, 462; ii. 220 V. Goodwin (8 Yerg. 484; 29 Am. D. 130) ii. 133 V. S. (30 Ala. 611) ii. 1042 V. S. (7 Eng. 43; 64 Am. D. 250) i. 663, 686, 686 ; ii. 748 V. 8. (86 Ga. 91; 91 Am. D. 760) i. 843 V. S. (3 Heiak. 342) ii. 717 V. 8. (7 Tex. 215) ii. 254, 268 , S. V. (6 Jones, N. C. 392) ii. 701 , S. V. (5 Strob. 58; 53 Am. D. 689) i. 572;ii. 574 Flynn, C. v. (3 Cush. 525) ii. 17, 20 V. S. (42 Tex. 301) ii. 809 , S. V. (28 Iowa, 26) ii. 214 V. Stoughton (6 Barb. 115) i. 129 Foering, C. v. (4 Pa. Law Jour. Rep. 29) ii. 209 ii. 666 ii. 79 i. 1105 i. 633 a ii. 758, 766, 766 — , S. u. (15 Nev. 64; 37 Am. R. 468) i. 916, 976 , S. V. (45 N. H. 466) i. 1108 Folkes, Reg. v. (2 Moody &.R. 460) i. 809 Fogg V. S. (9 Yerg. 392) Foley, Ex parte (62 Cal. 608) , C. V. (99 Mass. 497) -^, P. V. (69 Mich. 553) , Reg. V. (17 Cox C. C. 142) Rex V. (1 Moody, 364) Follett V. P. (17 Barb. 193) !>. P. (2 Kern. 268) Folsom, P. V. (5 Cal. 373) Foltz V. S. (33 Ind. 215) Fondren v. S. (16 Tex. Ap. 48) 1.648; ii. 1135 ii. 1269 ii. 1282 1.194 ii. 961, 954 ii. 41 a Fontaine Moreau, Reg. v. (11 Q. B. , 1028 ; 12 Jur. 626 ; 17 Law J. n. b. Q. B. 187) i. 977 ; ii. 1046 ifonville V. S. (17 Tex. Ap. 368) ii. 572 Fooks, S. V. (65 Iowa, 196) ii. 420, 424 , S. V. (65 Iowa, 452) ii. 444 Foote V. P. (17 Hun, 218) ii. 421 V. S. (69 Md. 264) i. 946, 947 Fooxe '■. S. (7 Misso. 602J i. 934 Forbes, P. v. (22 Cal. 135) i. 953 , P. w. (4Par. Cr. 611) i. 515 FOU INDEX TO THE CASES CITED. FRA Forbes, Reg. v. (10 Cox C. C. 362) ii. 51 , Eex V. (7 Car. & P. 224) i. 303, 572; ii. 579, 598, 601 , Rex V. (1 Crawf. & Dix C. C. 157) i. 542;ii. 308 , U. S. V. (Crabbe, 558) i. 400, 406, 564 Ford, C. V. (5 Gray, 475) ii. 41 V. Cratty (52 III. 313) i. 715 , Rex V. (J. Kel. 61) 1. 536, 857, 858 , Rex V. (Riiss. & By. 329) ii 652 , Rex V. (2 Stra. 1130) i. 235 i.-. S. (112 Ind. 373) ii. 17 Forde v. Skinner (4 Car. & P. 239) i. 548; ii. 28, 72 Foreman, S. v. (8 Yerg. 256) i. 154 Foren, P. v. (25 Cal. 361) ii. 728 Fornian, In re (54 Barb. 274) i. 387, 392 Forrest v. S. (13 Lea, 103) i. 1061 Forrester u. S. (63 Ga. 349) i. 889, 892 Forsyth, Eex v. (Russ. & Ry. 274) i. 572 a Forsythe v. S. (6 Oliio, 19) 1. 343; ii. 119 - — , S. V. (89 Mo. 667) i. 875 , U. S. V. (6 McLean, 684) ii. 376 Fort V. S. (82 Ala. 50) ii. 841 a , S. V. (4 Dev. & Bat. 192) i. 636 ; ii. 499, 505 Fortenberry v. S. (66 Missis. 403) 1. 850 V. S. (66 Missis. 286) i. 464 Fortune, C. v. (105 Mass. 592) i. 648 Forty-nine Casks of Brandy, Rex v, (3 Hag. Adm. 257) ^. 104 Forwood V. S. (49 Md. 6.31) 1. 294 Foster v. C. (8 Watts & S. 77) i. 264 ; ii. 257, 264 , C. V. (107 Mass. 221) ii. 346, 370 , C. V. (114 Mass. 311; 19 Am. R. 353) ii. 583 a , C. V. (3 Met. Ky. 1) i. 990 V. Glazener (27 Ala. 391) i. 122 V. P. (1 Colo. 293) i. 789, 805 V. P. (50 N. y. 598) ii. 1004, 1006 V. Pettibone (3 Seld'. 433; 57 Am. D. 530) ii. 857 , Reg. V. (2 Q. B. D. 301 ; 13 Cox • C. C. 393) ii. 468 , Rex V. (7 Car. & P. 495) ii. 294 , Rex V. (Russ. & Ry. 459) ii. 1027 V. S. (39 Ala. 229) V. S. (88 Ala. 182) i;. S. (45 Ark. 361) V. S. (9 Bax. 353) V. S. (106 Ind. 272) V. S. (8 Tex. Ap. 248) , S. V. (11 Iowa, 291) , S. 0. (33 Iowa, 526) , S. V. (37 Iowa, 404) , S. u. (61 Mo. 649) , S. V. (31 Tex. 578) «. Tucker (3 Greenl. 458 Am. D. 243) -, U. S. V. (2 Bis. 453) i. 1053 1. 1006, 1013 1. 629, 657 i. 140, 141 ii. 1140 ii. 719 ii. 342 i. 1068 ii. 346 ii. 728 1. 601 14 1. 267, 271 1.488 Foulkes V. C. (2 Rob. Va. 836) i. 572 ; ii. 636 Fourteen Packages, U. S. ^• (Gilpin, 235) i. 287, 296, 296, 824 Font's V. S. (8 Oliio St. 98) ii. 728 Fowke, Rex ■/. (20 How.- St. Tr. 1186) ii. 215 Fowle, Rex v. (4 Car. & P. 692) i. 571 ; ii.l58 Fowler v. Bebee (9 Mass. 231 ; 6 Am. D. 62) i. 464 , C. V. (4 Call, 35) i. 914 , C. V. (10 Mass. 290) i. 464 V. Padget (7 T. K. 505) i. 303 a , Rex i,-. (4 B. & Aid. 273) i. 1002 , Rex V. (1 East P. C. 461) ii. 218 V. Smith (2 Cal. 39) i. 14 w. S. (5 Day, 81) i. 244, 1129 v. S. (9 Tex. Ap. 149) ii. 885 , S. V. (62 Iowa, 103) i. 368 Fox, C. -. (7 Gray, 685) 1. 305; ii. 637, 638 , C. !). (7 Pa. 336) i. 46; ii. 1022 V. Ohio (6 How. U. S. 410) i. 141, 178, 179, 981, 988 , Rex V. (12 Mod. 251) i. 508 - — , S. V. (94 N. C. 928) ■ i. 648 , S.v. (15 Vt. 22) i. 1149 , Territory w. (3 Mont. 440) ii. 118 , U. S. K. (1 Low. 199) i. 488 , U. S. V. (96 U S. 670) i. 208, 208 a Foxby, Reg. v. (6 Mod. 11) i. 540, 943, 1102, 110.3, 1104 Foxley's Case (5 Co. 109) i. 267, 615, 916, 976 Foxworthy, Reg. v. (Holt, 521; 7 Mod. 153) i. 914, 915 Foy V. Hynde (Cro. Jac. 697) i. 823 , Rexy. (Vern. &S. 640) i. 683 Foye, U. S. .;. (1 Curt. C. C. 364) i. 262, 440; ii. 904 Fralick, P. v. (Hill & D. 63) ii. 97 Frampton, Reg. . (45 Ark. 347 ; 55 Am. R. 555) - Free w. S. (1 McMul. 494) Freel, P. v. (48 Cat. 436) V. S. (21 Ark. 212) Freeland v. P. ( 16 111. 380) , P. V. (6 Cal. 96) Freels, S. v. (3 Humph. 228) Freeman's Case Freeman, In re (2 Curt. C. C. ii. 795 ii. 1191 ii. 946 ii. 958 i. 975 ii. 676, 677 i. 358 i. 1053, 1057, 1061 ii. 697 i. 548 ; ii. 53 i. 376 ,491) i. 194 — '— V. National Ben. Soc. (42 Hun, 252) ii. 1187 1-. P. (4 Denio, 9; 47 Am. D. 216) i. 380, 384, 385, 396 , Rex V. (5 Car. & P. 534) ii. .346, 865, 868 V. S. (6 Port. 372) i. 829 , S. V. (66 N. C. 647) i. 992, 1024, 1026 , S. 0. (27 Vt. 520) i. 961 , U. S. V. (4 Mason, 505) i. 314,, 562 ; ii. 641, 657, 686 Freeport, S. v. (43 Me. 198) ii. 1272 Freer, P. w. (1 Caines, 485) ii. 259, 269 Freeth, Rex v. (Russ. & Ry. 127) ii. 430, 434, 448, 464 Freind's Case (13 How. St. Tr. 1) i. 772; ii. 1213 French, C. v. (Thacher Grim. Cas. 163) i.411 V. Marstin (4 Fost. N. H. 440; 57 Am. 1). 294) ii. 38 , P. V. (102 N. Y. 583) i. 971 a , Reg. V. (14 Cox C. C. 328) ii. 738 , Reg. V. (Law Rep. 1 C. C. 217) ii. 665 73-2 French v. Rollins (21 Me. 372) i. 830 Freston, In re (11 Q. B. I). 545) ii. 241 Frets V. Frets (1 Cow. 835) ii. 256 Fretwell, Keg. v. (Leigh & C. 161 ; 9 Cox C. C. 152) i. 259, 652 , Reg. V. (Leigh & C. 443; 9 Cox C. C. 471) ' i. 729 ; ii. 53 Fretz V. Bull (12 How. U. S. 466) i. 173 Frey v. C. (83 Ky. 190) i. 648, 657 Friar, Rex v. (1 Chit. 702) ' i. 287 ; ii. 972, 982 V. S. (3 How. Missis. 422) i. !I5:J Fribly v. S. (42 Ohio St. 205) i. 713 Friedeborn v. C. (113 Pa 242; 57 Am. R. 464) . i. 793 Friedlander v. S. (7 Tex. Ap. 204) ii. 309 Friend, Rex v. (1 Russ. Crimes, 3d Eng. ed. 46 ; Russ. & Ry. 20) i. 217, 557, 888 ; ii. 29 Frierson v. Hewett (2 Hill, S. C. 499) ii. 986 Friery v. P. (2 Abb. Ap. 215) ii. 691 V. P. (64 Barb. 819; 2 Keyes, 424) i. 401 Fries, Case of (Carpenter's Rep.) ii. 1202 , U. S. u. (3 Dall. 515) i. 1003 Frink v. Thompson (4 Lans. 489) ii. 540 Fritchler, S. v. (54 Mo. 424) ii. 840 Frith, Rex v. (17 Leach, 10) i. 572 a Fritz f. S. (40 Ind. 18) i. 1054 Frizzle v. Veach (1 Dana, 211) ii. 139 Frolich v. S. (11 Ind. 213) ii. 742 Frost's Case (22 How. St. Tr. 471) i. 457 ; ii. 1233 (1 Townsend St. Tr. 1; 9 Car. & P. 159) ii. 1213 Frost r. Paine (3 Fairf. Ill)' ii. 127 , Reg. V. (9 Car. & P. 129) ii. 1226, -, Reg. !'. (2 Moody, 140) - V. Rowse (2 Greenl. 130) 1231 1001 1. 956, 1053 i.'266 ii. 37- , S. V. (1 Brev. 385) V. Thomas (24 Wend. 418) Froud, Rex v. (7 Price, 609 ; 1 Brod & B. 300 ; Russ. & Ry. 389) ii. 631, 660 Froude, Rex v. (3 Moore, 645). ii. 531, 560 Fry, Reg. v. (Dears. & B. 449; 7 Cox 0. C. 394) ii. 427 Frye, C. v. (1 Va. Cas. 19) i. 700, 934 — V. S. (7 Tex. Ap. 94) " Fugate, C. v. (2 Leigh, 724) V. S. (2 Humph. 897} Fulford V. S. (50 Ga. 591) Fulgham v. S. (46 Ala. 143) Fulkerson, S. v. (Phillips, N. C. Fulle, P. V. (12 Abb. N. C. 196) Fuller, C. v. (132 Mass. 568) i. 934 i. 918, 944, 971 i. 648 ii. 740 i. 891 !33) , 325, 651 i. .304 ii. 198 GAL INDEX TO THE CASES CITED. GAB Fuller, C. v. (8 Met. 313) 1. 178, 989 , P. V. (2 far. Cr. 16) i. 401 ; ii. 657, 671, 692 , Rex V. (2 East P. C. 837) i. 586 ; li. 415 , Rex V. (Buss. & By. 308) i. 204 ; ii. 286 , Rex V. (Buss. & By. 408) i. 438, 553; ii. 1172 V. S. (1 Blackf. 63) i. 938 , S. w. (1 Bay, 245) ii. 608 , S. «. (1 McCord, 178) i. 899, 903, 915 Fulmer v. C. (97 Pa. 503) ii. 888 Fulton V. Brunk (18 Wend. 509) ii. 256 , Beg. V. (Jebb, 48) i. 204 ; ii. 286 V. S. (8 Eng. 168) ii. 327, 328, 801 Furguson, S. v. (76 N. 0. 197) i. 468 a; ii. 978 Furlong, S. v. (19.Me. 225) ii. 789 - — , S. V. (26 Me. 69) ii. 1020 Furly V. Newham (2 Doug. 419) i. 63 Furneaux, liex v. (Kuss. & By. 335) ii. 374 Furnell v. St. Paul (20 Minn. 117) ii. 1267, 1274 Furnival, Bex v. (Buss. & By. 445) i. 803; ii. 116 Furr V. Moss (7 Jones, N. C, 525) i. 460 Furser, Bex v. (vSay. 90) 1. 1009 Fursey, Bex i;. (6 Car. & P. 81) i 343, 632,759; ii. 1147,1153 Fussell, Beg. v. (3 Cox C. C. 291) i. 457 Gaar B. Louisville Banking Co. (11 Bush, 180 ; 21 Am. B. 209) Gabew. S. (I Eng. 540) Gabel u. Houston (29 Tex. 335) ii. 1260 i. 625 ii. 951, 962 795, 804, Gable, C. v. (7 S. &B. 423) 805, 938 ; ii. 731, 745 Gade, Rex v. (2 Leacli, 732 ; 2 East ■P. C. 874) i. 572 ; ii.529, 544 Ga. S. (6 Humph. 164) ' ii. 1262 V. S. (9 Ind. 380) i. 804 Gillet I'. Hill (6 Wend. 532) ii. 187 V. Mason (7 Johns. 16) ii. 777 , Rex V. (8 Bur. 1707) i. 538 Gilliam v. Reddick (4 Ire. 368) i. 464 GiUick, S. V. (7 Iowa, 287) ii. 675 Gillings, Reg. v. (1 Fost. & F. 86) ii. 812 Gillow, Rex o. (1 Moody, 85; 1 ' Lewin, 67) i. 340, 868 Gilluly V. Madison (63 Wis. 518 ; 53 Am. R. 299) ' ii. 1281 Gilman v. Philadelphia (3 Wal. 713) i. 173, 174 , S. V. (69 Me. 163; 31 Am. R. 267) i.536, 736 Gilmanton, S. v. (14 N. H. 467) ii. 1267 Gilraore v. Holt (4 Pick. 258) i. 464 , P. V. (4 Cal. 376; 60 Am. D. 620) i. 1004 , S. V. (95 Mo. 654) i. 8B6 Gimson v. Woodfull (2 Car. &P. 41) i. 2B8, 269 Girkin, S. v. (1 Ire. 121) ii. 1004, 1006, 1007 Gisson, Reg. v. (2 Car. & K. 781) i. 804, 809, 1053 Gist, Ex parte (26 Ala. 156) ii. 1022 Gittin's Case (1 Plow. 98) i. 667 Givens v. Bradley (3 Bibb, 192; 6 Am. D. 646) ii. 40 , S. 0. (5 Ala. 747) i. 542, 748; ii. 535, 643 Gizler v. Witzel (82 111. 322) i. 873 Glackan v. C. (3 Met, Ky. 282) ii. 419 Gladden v. S. (12 Fla. 662) i. 305; ii. 680 Glasgow, S. V. (Conference, 38; 2 Am. D. 629) i. 460 , S. V. (Dudley, S. C. 40) i. 1065 Glass V. C. (6 Bush, 436) ii. 1174 , Reg. V. (1 Den. C. C. 216; 2 Car. & K. 395] i. 207 ; ii. 801, 802, 813, 860 V. S. (.30 Ala. 629) Glassie, Reg. v. (7 Cox C. C. 1) ii. 1266 ii. 872, 873, 874 i. lOBl i. 140 i. 976 Gleason, S. v. (56 Iowa, 203) Glen V. Hodges (9 Johns. 67) Glenn v. Clore (42 Ind. 60) Glidden, S. v. (55 Conn. 46; 3 Am St. 23) ii. 233 Glover, C. l: (111 Mass. 395) i. 677 , Reg. V. (Leigh & C. 466> ii. 342 V. S. (109 Ind. 391 ) ii. 86 a , S. V. (27 S. C. 602) i. 750 w. Woolsey (Dudley, Ga. 85) i. 997 Glyde, Reg. v. (Law Rep. 1 C. C. 139) ii. 882 Gnosil, Rex v. (1 Car. & P. 304) i. 342 ; ii. 1171 Goadby, Reg. v. (2 Car. & K, 782, n.) i. 804 Goble, S. V. (60 Iowa, 447) ii. 430 Goddard's Case (2 Co. 4 6) ii. 567 Goddard, C. w. (13 Mass. 4.56) i. 1028, 1029 , Reg. V. (2 Fost. & F. 361) ii. 1030 o . S. w. (69Me. 181) ii. 72e Godfrey's Case (11 Co. 42) i. 955 Godfrey v. P. (63 N. Y. 207 ; 6 Hun, 369) " ii. 72 e, 1000, 1007 , Reg. u. (8 Car. & P. 563) i. .342 ; ii. 758, 840, 844 V. S. (31 Ala. 323; 70 Am, D 494) i. 368, 371 735 GOO INDEX TO THE CASES CITED. GOR Godfrey, S. v. (17 Or. 300; 11 Am. St. 830) ii. 32 Godsey, S. v. (13 Ire. 348) i. 536 ; ii. 503 Goetz V. S. (41 Ind. 162) i. 302, .304 Goff V. Byby (Gro. Eliz. 540) i. 668 V. Prime (26 Ind. 196) i. 678 ; ii. 744 , S. V. (20 Ark. 289) i. 349, 993 ; ii. 968 , S, V. (Wright, 78) ii. 252, 269 Goforth V. S. (8 Humph. 37) i. 298 ; ii. 998 Gogerly, Rex v. (Russ. & Ry. 343) i. 648 Coin, S. V. (9 Humph. 175) Goins V. S. (46 Ohio St. 457) Golahar v. Gates (20 Mo. 236) Gold V. Bissell (1 Wend. 210) Goldberg, P. r. (39 Mich. 545) Golilen, P. V. (62 Gal. 542) , P. !>. (3 Par. Or. 330) V. S. (25 Ga. 527) ' i. 668 ii. 1267 ii. 26 ii. 1142 a ii. 1007 i. 962 1.400,416,874; ii. 716 V. S. (49 Ind. 424) i. 711 V. S. (1 S. C. 292) ii. 38 t>. S. (18Tex. Ap. 637) i. 633 Goldlng, C. V. (14 Gray, 49) i. 1014 Goldman, P. «. (1 Idaho, N. 8. 714) i. 1137 , U. S. V. (3 Woods, 187) ii. 238 Goldsmith, Reg. v. (Law Rep. 2 C. C. 74; 12 Cox C. C. 479) ii. 1137 Goldstein v. P. (82 N. Y. 231) i. 362, 363 , P. V. (32 Gal. 432) i. 994, 1049 , Rex V. (7 Moore, 1 ; 3 Brod. & B. 201 ; 10 Price, 88; Russ. & Ry. 473) ii. 571 Golightly V. Reynolds (Lofft, 88) i. 267 Golliher v. C. (2 Duv. 163 ; 87 Am. D. 493) i. 328, 400, 414 ; ii. 656 6 Gomez v. S. (15 Tex. Ap. 327) ii. 728 Gompertz, Reg. u. (9 Q. B. 824; 16 Law J. N. s. Q. B. 121) i. 592, 801 ; ii. 187, 193, 198, 200, 211 Gonzales, P. v. (71 Oal. 569) i. 844 V. S. (31 Tex. 495) i. 844 V. S. ( 19 Tex. Ap. 394) ii. 727 Gooch, Reg. !.. (8 Car. & P. 293) ii. 758, 763, 783 , S. V. (94 N. C. 987) ii. 714, 717 Good, Reg. V. (1 Car. & K. 186) i. 294, 298 ; ii. 744 Goodall, Reg. w. (2Cox C. C. 41) i. 741 Goodbody, Reg. o. (8 Car. & P. 665) i. 207 ; ii. 345, 801, 859 Goodchild, Reg. i>. (2 Car. & K. 293) i. 741 Goode, Reg. w. (7 A. & E. 536) i. 396 , Reg. V. (Car. & M. 582) ii. 365, 836 , Rex V. (2 Car. & P. 422, n.) ii. 813 V. S. (70 Ga. 752) i. 1061 , S. V. (1 Hawks, 463) i. 226, 670, 079, 680 Gooden, Reg. v. fll Cox C. C. 672) ii. 564, 666 V. S. (65 Ala. 178) ii. 660 Goodenough, C. «. (Thacher Crim. Gas. 132) i. 1016, 1049 , Reg. V. (Dears. 210 ; 25 Eng. L. & E(^. 572) ii. 862, 812, 818, 836 736 Goodenough v. Spencer (46 How. Pr. 347) i. 672 a Goodenow, S. v. (65 Me. 30) i. 294 Goodfellow, Reg. v. (1 Den. C. 0. 81 ; 1 Car. & K. 724) i. 656 Goodhall, Reg. v. (1 Den. C. C. 187) i. 741 , Rex V. (Russ. & Ry. 461) i. 586 ; ii. 419 Goodhue, C. v. (2 Met. 193) i. 502, 795 Goodin, Ex parte (67 Mo. 637) ii. 268 Gooding, U. S. v. (12 Wheat. 460) i. 564 Goodman v. Eastman (4 N. H. 465) ii. 574 , Reg. V. (22 U: C. C. P. 338) i. 748, 766 i. 868 ii. 1273 ii. 1190 V. S. (4 Tex. Ap. 349) Goodnow, C. <. (117 Mass. 114) Goodrich, C. v. (13 Allen, 546) w. P. (3 Par. Cr. 622 ; 19 N. Y. 574) i. 491 Goodrum v. S. (60 Ga. 509) ii. 72 Goods V. S. (3 Greene, Iowa, 566) i. 892 Goodspeed v. Fuller (46 Me. 141 ; 71 Am. D. 672) ii. 127 Goodtitle v. Otway (7 T. R. 399) i. 93 Goodwin, C. v. (122 Mass. 19) i. 429 , P. V. (18 Johns. 187 ; 9 Am, D. 203) i. 981, 990, 1018, 1032, 1033 , S. V. (37 La. An. 713) ii. 1201 Goolsby V. Bush (53 Ga. 353) i. 713 Goose's Case (Sir F. Moore, 461) i. 678 ; ii. 744 Goowin, S. V. (69 Tex. 56) i. 464 Gorbutt, Reg. v. (Dears. & B. 166) ii. 327, 328 Gordon's Case (21 How. St. Tr. 485) ii. 1213 Gordon's Case, Lord George (22 How. St. Tr. 213) ii. 938 Gordon v. Baxter (74 N. C. 470) i 265 V. Hostetter (37 N. Y, 99) i 264 , Reg. t. (Dears. 586) i. 572u , Reg. V. (23 Q. B. 1). 354; 16 Cox C. C. 622) i. 571 , Rex V. (2 Doug. 590) i. 437, 772 ; ii. 1226 , Rex V. (1 East P. C. 71) i. .347 , Rexv. (lEastP. C. 316) i. 868; ii. 51, 654, 699 , Rex V. (1 Leach, 615 ; 1 East P. C. 312, 852) i. 464, 663, 803 , Rex V. (1 Russ. Grimes, 3d Eng. ed. 246) i. 484 V. S. (52 Ala. 308; 23 Am. R. 675) i. 808, 807 V. S. (71 Ala. 816) i. 1062 V. S. (3 Iowa, 410) i. 795 V. S. 4 Misso. 875) ii. 314 V. S. (2 Tex. Ap. 154) i. 468 a , U. S. w. (5 Blatoh. 18) i, 117 Gore's Case (9 Co. 81) i. 206, 827, 328 ; ii. 641, 668, 698, 694 Gorham v. Luckett (6 B. Monr. 638) ii. 243, 266, 271 , S. V. (87 Me. 461) ii. 1282 GRA INDEX TO THE CASES CITED. GEE Gorham, S. v. (55 N. H. 152) ii. 23, 33, 1156, 1174 Gorman, C. v. (16 Gray, 601 ) i. 1080 V. Lowell (117 Mass. 65) ii. 960 , S. V. (2 Nott & McC. 90 ; 10 Am. 1). 576) i. 583;ii. 813 Goshen v. Crary (58 Ind. 268) ii. 986 Goslaw, P. V. (73 Cal. 323) ii. 728 Goss, Keg. V. (Bell C. C. 208 ; 8 Cox C. C. 262) ii. 449, 455 , S. V. (69 Me. 22) i. 464 V. Whitney (27 Vt. 272) ii. 968 Gosselink v. Campbell (4 Iowa, 296) i. 832 Gotley, Rex v. (Russ. & Ry. 84; 1 Russ. Crimes, 3d Eng. ed. 138) i. 712 Gough, Rex v. (2 Doug. 791) i. 1002 Gould, C. V. (12 Gray, 171) i. 1000 , Reg. o. (9 Car. & P. 364) i. 1054 ; ii. 745 , Reg. V. (1 Salk. 381) i. 557, 888 , S. V. (40 Iowa, 372) i. 336 ; ii. 1279 Gouliling IV S. (82 Ala. 48) ii. 309 Gourley v. Hankins (2 Iowa, 75) i. 464 Govern v. Littlefield (15 Allen, 127) ii. 540 Goyers, Rex v. (Say. 206) i. 571 ; ii. 151 Gowen, C. v. (7 Mass. 378) i. 245, 531 ; ii. 1267 V. Nowell (1 Greenl. 292) ii. 127 , Rex V. (2 East P. C. 1027 ; 1 Leach, 246, n.) i. 559; ii. 13 Grable v. S. (2 Greene, Iowa, 559) i. 1016 Grace, Ex parte (9 Tex. Ap. 381) ii. 1267 Gracie v. Palmer (8 Wheat. 699) i. 997 Grady, S. v. (34 Conn. 118) i. Ill Graeter u. S. (105 Ind. 271) i. 1090 Graff, S. V. (66 Iowa, 482) i. 795 , U. S. V. (14 Blatch. 381) ii. 225, 238 Grafton Bank v. Flanders (4 N. H. 239) i. 267, 271, 572; ii. 598 Graham v. Adams (2 Johns. Cas 408) V. Monsergh (22 Vt. 543) , P. V. (Sheldon, 151) , Reg. iJ. (13 Cox C. C. 57) , Reg. „. (16 Cox C. C. 420) V. S. (40 Ala. 659) V. S. (1 Pike, 79) , S. V. (51 Iowa, 72) , S. V. (73 Iowa, 553) , S. K. (8 .Tones, N. C. 397) , S. w. (1 Pike, 428) , S. V. (3 Sneed, 134) Grainger v. S. (5 Yerg. 459 ; 26 Am. D. 278) i. 305, 842 Grand Trunk Ry. S. o. (58 Me. 176; i. 970 i. 110 ii. 526 ii. 349 ii. 1143, 1256,1258 a ii. 10 i. 32 ii. 740 i. 1065 ii. 517 i. 1024 ii. 74, 79 4 Am. R. 258) , S. . S. (4Bax. 331) ii. 726 , S. V. (8 Jones, N. C. 170) ii. 1131 , S. !J. (37 Mo. 463) ii. 758 , S. V. (1 Murph. 147) i. 938 . , S. «. (19Nev. 212) ii. 727 , S. V. (14 Rich. 174) i. 679 ; ii. 885 , S. V. (8 Vroom, 368) i. 930 , U. S. I'. (2 Cranch C. C. 675) i. 1106 Grayson v. C. (6 Grat. 712) i. 1003 Great FaUs Co. v. Worster (15 N. H. 412) ~ i. 828 Great North of England Ry. Reg. v. (9 Q. B. 315 ; 10 Jur. 755 ; 16 Law J. N. s. M. C. 16) i. 420, 422, 424 Great Works Milling and Man. Co. S. o. (20 JMe. 41 ; 37 Am. D. 38) i. 420 Greathead, Reg. v. (14 Cox C. C. 108) ii. 430 Greathouse's Case (2 Abb. U. S. 382) i. 900, 904, 907, 908 Greathouse, C. <^. (7 J. J. Mar. 590) ' i. 564 , U. S. a. (2 Abb. U. S. 364) ii. 1202, 1236 Green v. Bartram (4 Car. & P. 308) i. 859 V. Chapman (5 Scott, 340 ; 4 Bing. N. C. 92) . ii. 914 V. C. (83 Pa. 75) ii. 728 , C. u. (1 Ashm. 289) i. 406, 429, 857, 872 ; ii. 706, 711, 718, 728 , C. V. (17 Mass. 515) i. 110, 972, 976, 1003 737 GRB INDEX TO THE CASES CITED. GKI Green, C. v. (2 Pick. 380) i. 373, 746 V. Goddard (2 Salk. 641) i. 869 ; ii. 28 V. Green (1 Cooper temp. Cot- ten. 206, n.) "-270 V. Griffin (95 N. C. 50) i. 300 V. Hill (3 Del. Ch. 92) ii. 242 a ,P. r. (54Cal. 592) ii. 1030 , P. u. (13 Wend. 55) 1. 1033, 1034, 1041 , Reg. V. (8 Cox C. C. 441) ii. 1011 Reg. V. (Dears. 323; 6 Cox C. C. 296 ; 18 Jur. 158 ; 24 Eng. L. & Eq. 555) ii. 768, 769, 830 , Rex V. (7 Car. & P. 156) i. 206, 217, 314 ; ii. 667, 690 , Rex V. (1 Keny. 879) i. 1079 V. S. (41 Ala. 419) ii. 1046 V. S. (58 Ala. 190; 29 Am. R. 739) i. 923 V. S. (59 Ala. 68) ' i. 294 V. S. (66 Ala. 40 ; 41 Am. R. 744) V. S. (68 Ala. 539) V. S. (45 Ark. 281) V. S. (17 Fla. 669) V. S. (28 Missis. 687) V. S. (55 Missis. 454) v.S. (13 Mo. 382) V. S. (10 Neb. 102) V. S. (8 Tex. Ap. 71) 1.112 ii. 91 ii. 680 i. 1006 865; ii. 680 ii. 745 i. 632, 653 ; ii. 677, 695 i. 1034 ■ i. 789 ; ii. 745 ii. 728 i. 1010 ii. 1267 ii. 714 ii. 728 ii. 794 , S. V. (1 Houst. Crim. 217) , S. u. (16 Iowa, 239) , S. 0. (41 Iowa, 693) , S. V. (37 Mo. 466) , S.v. (66 Mo. 631) , S. V. (81 N. C. 560) , S. V. (Whart. & Stil. Med. Jur. 459) ii. 1126 V. Talbot (36 Iowa, 499) i. 299 Greenacre, Rex v. (8 Car. & P. 35) i. 692, 693, 698 Greene, C. v. (HI Mass. 392) ii. 791 V. Godfrey (44 Me. 25) ii. 968 V. Greene (2 Gray, 361 ; 4 Am. Law Reg. 42 ; 61 Am. D. 454) i. 1008 , Rex V. (1 Crawf. & Dix C. C. 198) i. 648 GreenhufE's Case (2 Swinton, 236) i. 36, 1135 GreenifF, Rex v. (1 Leach, 363) ii. 1106 Greenland, Reg. v. (Law Rep. 1 C. C. 65) ii. 1026 Greenlee, S. f. (1 Dev. 523) i. 572; ii. 542, 585 Greenough, In re (31 Vt. 279) ii. 457, 464 Greenvelt, Rex v. (12 Mod. 119) i. 899, 916 Greenwall, P. v. (115 N. Y. 520) ii. 727 Greenwood, Reg. v. (2 Car. & K. 339) . i. 809 ■ , Reg. V. (7 Cox C. C. 404) ii. 694 738 Greenwood, Reg. v. (2 Den. C. C. 453 : 9 Eng. L. & Eq. 535) 1. 685, 686 ; ii 299 V. S. (64 Ind. 250) I 1060, 1061 Greep, Rex v. (Holt, 636; Comb. 459) ii. 1032 Greer v. Emerson (1 Tenn. 12) i. 686 , S. V. (22 W. Va. 800) i. 877 Greeson i). S. (5 How. Missis. 33) i. 678 Gregg's Case 14 How. St. Tr. 1371) ii. 1213 Gregg V. S. (65 Ala. 116) i. 1061 , S. V. (2 Hill, S. C. 387) ii. 1267 Gregory, Ex parte (56 Missis. 164) i. 916 V. Brunswick (1 Car. & K. 24) ii. 308 V. C. (2 Dana, 417) ii. 1273 V. Hill (8 T. R. 299) i. 859 ». Onslow (Lolft, 36) 'ii. 255 ■ V. Reg. (15 Jur. 79 ; 19 Law J. N. 8. Q. B. 366) i. 953 ■ , Reg. V. (2 Eost. & F. 163) ii. 662 a , Reg. V. (Law Rep. 1 C. C. 77 ; 10 Cox C. C. 459) i. 670, 767 , Reg. V. (1 Per. & D. 110 ; 8 A. & E. 907) i. 256 ; ii. 918 , Rex V. (2 Nev. & M. 478 ; 5 B. & Ad. 565) i. 237, 1150 «. S. (26 Ohio St. 510; 20 Am. R. 774) 1.303,310; Ii. 683 a , S. V. (2 Murph. 69) ii. 1026 Grell V. Levy (16 C. B. n. s. 73) ii. 121 Greonvelt's Case (1 Ld. Raym. 218) i. 558, 899, 911 Gresohia v. P. (53 111. 295) i. 850 ; ii. 707 Gresser, S. v. (19 Mo. 247) ii. 840 Greta v. S. (10 Tex. Ap. 36) i. 891 Grey, Reg. v. (4 Fost. & F. 73) i. 500, 604, 1146 , Rex V. (9 How. St. Tr. 127 ; 1 East P. C. 460 ; 1 Gab. Crim. Law, 247) Ii. 235 , Rex V. ( J. Kel. 64) i. 881 ; ii. 641, 656, 657, 668, 680, 683 , Rex V. (2 Keny. 307) i. 713, 948, 1079 Gribble, Rex v. (1 Leach, 240; 2 East P. C. 706) ii. 897 Grider, S. v. (18 Ark. 297) i. 993 Griepe, Rex v. (1 Ld. Raym. 267 ; 12 Mod. 139) ii. 1082 Griffen, P. v. (Edm. Sel. Cas. 126) 1. 876, 384 Griffin ii. Chubb (7 Tex. 603 ; 58 Am. D. 85) i. 429 , C. «. (3 B. Monr. 208) i. 664 , C. !). (7 J. J. Mar. 688) i. 564 , C. V. (21 Pick. 523) i. 799 ; ii. 288 V. Dominguez (2 Duer, 656) i. 181, 196 , P. V. (2 Bai-b. 427) i. 335, 997 ; ii. 1200 y. Potter (14 Wend. 209) i. 880 , Reg. !., (11 Cox C. C. 402) ii. 663 V. S. (.39 Ala. 641) 1. 519 GRU INDEX TO THE CASES CITED. HAD Griffin v. S. (2fi Ga. 493) V. S. (84 Ohio St. 299) V. S. (4 Tex. Ap. 390) Griffith's Case (1 Plow. 97), Griffith V. Cox (1 Tenn.'210) V. Dieken (4 Dana, 561) . , Rex V. (1 Car. & P. 298) V. Wells (3 Denio, 226) Griffiths V. Reed (1 Hag. Ec. 195) — , Reg. V. (8 Car. & P. 248) i. 764 i. 744 ii. 324, 325, 330, 342 i. 648 ii. 575 ii. 140 i. 769; ii. 53 i. 237 i. 38 i. 429, 736 573 i. 308 ii. 15 i. 780 i. 384 ii. 1267 ii. 1267 i. 670 i. 1014 ii. 91 ,Ileg. V. (Dears. & B. 548; 7 Cox C. C. 501) ' i Grimes v. Coyle (6 B. Monr. 301) V. S. (63 Ala. 166) , S. V. (29 Mo. Ap. 470) Grimwade, Reg. v. (1 Den. C. C. 30 ; 1 Car. & K. 592) ii. 1200 Grinder v. Nelson (9 Gill, 299) i. 279 0. S. (2 Tex. 338) i. 36 Grindley, Rex v. (1 Russ. Crimes, 3d Eng. ed. 8) i. 414 Grinter v. Kansas Fac. Ry. (28 Kan. 642) i. 164 Gripe, Rex v. (1 Cbmyns, 43, n.) ii. 1032 Grisham, S. v. {I Hayw. 12) i. 796 Grissom v. S. (62 Missis. 167) Griswold, P. v. (67 N. Y. 69) Groendyke, S. v. (9 Vroom, 114) Groff, S. u. (1 Murph. 270) Grogan w. S. (44 Ala. 9) Groning, S.v. (33 Kan. 18) Groombridge, Rex v. (7 Car. & ?. 582) i. 368, 873; ii. 1117 Grooms, S. v. (6 Strob. 158) i. 671 ; ii. 148 Gross, S. V. (62 Wis. 41) ii. 415 Grosset v. Ogilvie (5 Bro. P. C. 527) i. 911 , Rex V. (2 Stark. 611) ii. 1271, 1273 , Rex ... (1 Wils. 18 J 2 Stra. 1193) i. 246, 468 Grosvenor v. St. Augustine (12 East 244) i. 113 Grottkau, S. v. (73 Wis. 689 ; 9 Am. St. 816) i. 992 , U. S. V. (30 Fed. Rep. 672) ii. 10536 Grout, Rex v. (6 Car. & P. 629) i. 314 ; ii. 667, 690 Grove, Rex v. (1 Moody, 447 ; 7 Car. & P. 636) i. 867 ; ii. 375 Grover, C. v. (16 Gray, 602) i. 279 Groves v. S. (6 Blackf. 489) ii. 1262 V. S. (76 Ga. 808) i. 789 Grubb V. Bullock (44 Ga. 379) i. 899, 903 Gruber v. S. (3 W. Va. 699) i. 1013, 1015, 1016 Grumbine v. S. (60 Md. 366) ■ 1. 294 Grumon «. Raymond (1 Conn. 40; 6 Am. D. 200) i- 460 Gruncell, Reg. w.'(9 Car. & P. 366) ii. 758, 843, 1140 Grundy, TJ. S. w. (3 Cranch, 838) i. 791, •" 819 a, 822 Grunson v. S. (89 Ind. 533 ; 46 Am. R. 178) ii. 813 Grush, U. S. V. (5 Mason, 290) i. 146; 147, 176 Guance, P. v. (57 Cal. 164) ii; 728 Gude V. S. (76 Ala. 100) ii. 1279 Guedel v. P. (43 111. 226) i. 1053 Guelder, Reg. v. (Bell C. C. 284; 8 Cox C. a 372) ii. 376 Guenther v. Whiteacre (24 Mich. 504) ii. 976 Guernsey, Reg. u. (1 Fost. & F. 394) ii. 841 Guest, S. V. (6 Ala. 778) ii. 748 Guetig V. S. (66 Ind. 94 ; 32 Am. R. 99) i. 387 Guffee V. S. (8 Tex. Ap. 187) ii. 719, 728 Guild,- S. V. (5 Halst. 163 ; 18 Am. D. 404) i. 368, 370 Guilder v. Dayton (22 Minn. 366) ii. 1282 Guillem, U. S. v. (11 How.U. S.47) i. 824 Guiteau, U. S. v. (1 Mackey, 498; 47 Am. R. 247) i. 112, 115 Guldin V. C. (6 S. & R. 664) i. 572 a Gulf, &c. Ry. V. Levy (69 Tex. 642 ; 46 Am. R. 269) ii. 960 Gulick, P. «. (Hill & D. 229) ii. 37, 41 Gumbert's Appeal (110 Pa. 496) ii. 1190 Gunby v. Welcher (20.Ga. 336) i. 464 Gunn V. Procurator-Fiscal (2 Broun, , 654) i.,464 0. Tackett (67 Ga. 725) i. 464 Gunter u. Geary (1 Cal. 462) i. 1080 ; ii. 1271 V. S. (83 Ala. 96) i. 934 Gurney, Reg. v. (10 Cox C. C. 550) ii. 88 , Reg. V. (11 Cox C. C. 414) ii. 209 , S. V. (33 Me. 527.) i. 833 , S. V. (37 Me. 156; 58 Am. D. 782) i. 833, 995 Gut V. S. (9 Wal. 85) i. 280 , S. V. (13 Minn. 341) i. 280, 394, 410; ii. 631, 710 Gutoh, Rex v. (Moody & M. 433) i. 219, 221 ii. 539 i. 283 i. 572 ; ii. 638 Guttridges, Reg. v. (9 Car. &P. 471) i. 809 Guy V. S. (1 Kan. 448) ii. 72 e Guykowskie v. P. (1 Scam. 476) i. 997 Gwatkin v. C. (9 Leigh, 678; 33 Am. D. 264) i. 409 Haberle, S. v. (72 Iowa, 138) i. ;088 Hackett v. C. (15 Pa. 96) i. 772, 806, 810 , C. 17. (2 Allen, 136) ii. 638, 639 Hackney v. S. (8 Ind. 494) . i. 35, 1077 Hadcock, S. v. (2 Hayw. 162) i. 1024 Hadden v. P. (25 N. Y. 373) ii. 752 Haddix v. Wilson (8 Bush; 623) i. 900,904 Hadfleld's Case (27 How. St. Tr. 1281) i. 376, 380, 385, 392, 394, 396 739 Gutchins v. P. (21 111. 642) Gutierrez, Ex parte (46 Cal. 429) Gutridge, S. v. (1 Bay, 285) HAL INDEX TO THE CASES CITED. HAL Hadfieia, Reg. v. (Law Rep. 1 C. C. 253 ; II Cox C. C. 574) i. 531 Hadley, C. v. (II Met. 66) i. 355, 658 V. Perks (Law Rep. I Q. B. 444) ii. II39 V. S. (58 Ga. 309) i. 869 Hagan, C. v. (9 Philad. 574) ii. 392 , Reg. u. (8 Car. & P. 167) ii. 653, 656, 1001 V. S. (10 Oliio St. 459) i. 678; ii. 728 Hagar v. S. (71 Ga. 164) ii. 593 Hagenlocls, G. v. (140 Mass. 125) i. 400 Hagerman, C. v. (2 Va. Gas. 244) i. 967 Haggerty, C. v. (4 Brews. 326) i. 914, 915 , P. V. (46 Gal. 354) ii. 10 Haggett u. C. (3 Met. 457) i. 965 Hahn, S. v. (38 La. An. 169) ii. 633 Haigh, Reg. v. (7 Gox C. G. 403) ii. 864 Haight V. Hayt ( 19 N. Y. 464) ii. 464 0. Lucia (36 Wis. 355) ii. 244, 269 Haile v. S. (II Humph. 154) i. 400, 401, 409, 412, 414 V. S. (1 Swan, Tenn. 248) ii. 697 Hailey, Rex v. (Ryan & Moody N. P. 94 ; I Car. & P. 258) , ii. 1028 , S. V. (2 Strob. 73) i. 465, 467, 469 ; ii. 1011 Hailstook, S. v. (2 Blackf. 257) i. 735 ; ii. 54 ii. 780 ii. 268 i. 314,- Hain's Case (3 Inst. 110) Haines v. Haines (35 Micii. 138) Reg. u. (2 Car. & K. 368) 630 ; ii. 637, 638, 659 S. V. (30 Me. 65) i. 504, 531, 829, 1135, 1136, 1137 , S. V. (23 S. C. 170) ii. 415, 419 , U. S. !/. (6 Mason, 272) i. 504 Hairston v. S. (54 Missis. 689; 28 Am. R. 392) i. 204, 634, 842 ; ii. 72 b Halberstadt, U. S. v. (Gilpin, 262) i. 317, 990, 993, 1003 Halbert v. S. (3 Tex. Ap. 656) ii. 728 Hale, C. V. (2 Va. Gas. 241) i. 967 V. Lawrence (3 Zab. 590; 57 Am. D. 420) i. 830 , Reg. V. (2 Gar. & K. 326) i. 516 ■ w. S. (1 Coldw. 167 ; 78 Am. D. 488)- ii. 560 Hales's Case (17 How. St. Tr. 161) ii. 529, 612 Hales V. Petit (1 Plow. 253) i. 385, 611, 968; ii. 1187 Haley ». Clark (26 Ala. 439) i. 899, 900 , C. V. (4 Allen, 318) ii. 490 V. McPherson (3 Humph. 104) ii. 1019 V. S. (49 Ark. 147) i. 79.'') Halford, Reg. v. (11 Cox C. C. 88) ii. 851 , Rex V. (7 Mod. 198) i. 460; ii. 972 Halifax, S. v. (4 Dev. 346) ii. 1282 Hall's Case (I Mod. 76) i. 504, 828, 1145 Hall V. Ashby (9 Ohio, 96 ; 34 Am. D. 424) i. 541 ; ii. 187, 138 !'. C. (78 Va. 678) i. 411 , C. V. (4 Allen, 305) i. 976 740 Hall V. Cranford (5 Jones, N. C. 3) ii. 987 V. Eaton (25 Vt. 468) ii. 206 V. Howd ( 10 Conn. 514 ; 27 Am. D. 696) i. 44 V. P. (39 Mich. 717) ii. 898 V. P. (47 Mich. 636) i. 796 , P. V. (48 Mich. 482; 42Am.R. 477) ii. 727 , P. V. (6 Par. Cr. 642) ii, 1179 , Reg. V. (13 Cox C. C. 49) ii. 370 , Reg. V. (Temp. & M. 47 ; 1 Den. C. C. 381 ; 2 Car. & K. 947 ; 3 New Sess. Cas. 407 ; 13 Jur. 87) ii. 758, 841, 855 , Rex V. (3 Bur. 1636) i. 616 , Rex V. (3 Car. & P. 409) i. 297 ; ii. 840, 850, 861 , Rex V. (1 Moody, 474) ii. 337, 339, 340, 369 , Rex V. (Russ. & Ry. 463; 3 Stark. 67) i. 567 ; ii. 370, 376, 377 , Rex V. (1 T. R. 320) i. 810 , Rex V. (2 W. Bl. 1110) ii. 252, 255 V. S. (6 Bax. 522) ii. 813 V. S. (4 Harring. Del. 132) i. 504, 532, 1114, 1118; ii. 961 ii. 968 i. 789 ii. 1028 i. 1033, 1038 92) ii. 763, 766 , S. V. (76 Iowa, 85; 14 Am. St. 204) i. 583 ; ii. f" V. S. (8 Kelly, 18) V. S. (7 Lea, 685) , S. V. (7 Blackf. 25) , S. V. (4 Halst. 256) , S. V. (5 Harring. Del. ■, S. V. (49 Me. 412) , S. u. (9 Nev. 58) , S. V. (8 Vroom, 168) , U. S. V. (2 Wash. C. C. i ii, 1028 ii. 704 i. 1136 i. 279* 281 1.916 ii. 140 V. Vaughan (5 Co. 49) V. Westcott (15 R. I. 373) V. Young (3 Pick. 80; 16 Am. D. 180) i. 181 Hallenbeck, P. «. (2 Abb. N. Cas. 66) ii. 943 Hallett, G. v. (103 Mass. 452) L 304 , Reg. V. (9 Car. & P. 748) i. 261, 654; ii. I1I9, 1122, 1125 , Reg. V. (2 Den. C. C. 237 ; 4 Kng. L. & Eq. 670; 16 Jur.. 433; 20 Law J. N. s. M. G. 197) ii. 1026 Halliwood's Case (stated 5 Co. 126 b) i. 719 Hallock V. Franklin (2 Met. 558) i. 997 !>. Jaudin (34 Gal. 167) ii. 540 Halloran v. S. (80 Ind. 586) i. 1010, 1014 Halloway's Case (Gro. Car. 131) i. 536, 843, 862, 876 Halloway, C. v. (44 Pa. 210 ; 84 Am. D. 481) i. 905, 906, 907 Halpin, Rex t'. (4 Man. & R. 8; 9 B. &C. 65) i. 591; ii. 918 Halstead v. Nelson (36 Hun, 149) ii. 943 Halsted v. S. (12 Vroom, 552; 32 Am. R. 247) i. 304, 345 , S, 0. (10 Vroom, 402) i. 468a IIAN INDEX TO THE CASES CITED. HAE Haly, Rex v. (1 Crawf. & Dix C. C' 199) ii. 1018 Ham V. S. (4 Tex. Ap. 645) ii. 673 Hamblin, S. v. (4 S. C. 1) ii. 885 Hamilton v. Austin (62 N. H. 575) ii. 959 , C. V. (129 Mass. 479) i. 1014 V. Granger (5 H. & N. 40) i. 400 w. P. (113 III. 34 ; 55 Am. K. 396) i. 63.3 a V. Reg. (2 Cox C. C. 11) ii. 434 V. Reg. (9 Q, 8. 271; 16 Law J. N. s. M. C. 9) ii. 438 , Reg. <,. (1 Car. & K. 212) ii. 1200 , Reg. V. (8 Car. & P. 49) ii. 898, 902 V. S. (36 Ind. 280; 10 Am. R. 22) i. 743, 772, 795, 1054 V. S. (106 Ind. 361) ii. 1267 V. S. (35 Missis. 214) ii. 847 V. S. (11 Olilo, 4.35) i. 141 V. S. (34 Ohio St. 82) i. 464 V. S. (11 Tex. Ap. 116) i. 731 ; ii. 118 , S. V. (1 Houst. Crim. 101) ii. 728 , S. V. (62 Ind. 409) , S. V. (7 Misso. 300) , S. V. (13 Nev. 386) V. U.S. (7 Ct. CI. 444) , U. S. V. (1 Mason, 152) , U. S. u. (1 Mason, 443) V. Williams (*26 Ala. 527) V. Williams (1 Tyler, 15) Hammill, P. v. (2 Par. Cr. 223) i. 401, 409,414; iL671 Hammon, Rex v. (Russ. & Ry. 221 ; 2 Leach, 1083 ; 4 Taunt. 304) ii. 365, 758, 824, 830, 836 Hammond, Rex v. (2 East P. C. 1119; 1 Leach, 444) ii. 1200 , Rex V. (10 Mod. 382) ii. 1268 V. S. (3 Coldw. 129) i. 65; ii. 1255 , S. V. (80 Ind. 80; 41 Am. R. 791) ii. 1201, 1201 a , S. V. (35 Wis. 315) ii. 78 Hamond v. Howell (2 Mod. 218) i. 462 Hamp, Reg. v. (6 Cox C. C. 167) i. 339, 468 Hamper's Case (3 Leon. 230) Hampatead's Case (1 Salk. 220) Hampton, P. v. (4 Utah, 258) U.S. (10 Lea, 639) , S. t.. (63 N. C. 13) Hamuel v. S. (5 Misso. 260) Hanauer u.'Doane (12 Wal. 347) i. 992 ii. 1019 i. 653 i. 904, 907 i. 117 i. 564 i. 462 i. 1010 i. 734 ii. 1028 i. 827 i. 1085 ii. 996 ii. 32 ii. 347 ii. 1202 Hancock, Reg. u. (14 Cox C. C. 119) 1140 Hancock Free Bridge, C. «. (2 Gray, 58) ii. 1281 Hand, S. o. (1 Bng. 169 ; 42 Am. D. 689) i. 992, 1027 , S. V. (3 Harring. Del. 564) ii. 786 , U. S. V. (6 McLean, 274) ii. 238 , U. S. V. (2 Wash. C. C. 435) i. 127, 334, 548 ; ii. 23, 51 Handley, Reg. v. (Car. & M. 547) ii. 768, V. S. (16 Tex. Ap. 444) i. 1029 Handy, S. v. (4 Harring. Del. 566) i. 261, 368, 373, 746 ; ii. 1117 Haney, Rex v. (1 Bur. 316) V. Sharp (1 Dana, 442) , S. V. (67 N. C. 467) Hankins v. P. (106 111. 628) Hanks, Rex v. (3 Car. & P. 419) Hanley, S. o. (47 Vt. 290) Hanlon, C. v. (3 Brews. 461) , C. V. (8 Philad. 401) Hann, Rex v. (3 Bur. 1716) , S. u. (11 Vroom, 228) Hanna v. P. (86 111. 243) V. P. (19 Mich. 316) i. 1.256 ii. 1022 i. 904 i. 1029 ii. 1020 i. 536 ii. 694 ii. 728 ii. 972, 973 i. 721 b i. 629 789, 794, 805, 809 V. Renfro (32 Missis 125) ii. 137 Hannaball v. Spalding (1 Root, 80) i. 990, 993 1009 Hannahan v. S. (7 Tex. Ap. 664) 'i. 281 Hannen, Ex parte (6 Jur. 669) i. 974 V. Edes (15 Mass. 347) ii. 37, 38 Hannon, Reg. v. (6 Mod. 311) i. 582; ii. 145 V. S. (6 Tex. Ap. 649) i. 892 Hannum, Respublica v. (l Yeates, 71) i. 573; ii. 396, 399 Hanscom's Case (2 Hale P. C. 296) i. 1038 Hanselman, P. o. (76 Cal. 460) i. 262 Hanson, Reg. v. (2 Car. & K. 912 ; 4 Cox C. C. 138) i. 491 ; ii. 28, 72 a , Reg. V. (2 Moody, 246; 1 Car. - & M. 334) ii. 598 , Rex V. (31 How. St. Tr. 1) i. 950 , Rex u. (1 Root, 59) ii. 120 , Rex V. (Say. 229) ii. 151, 152, 363 V. South Scituate (116 Mass. 336) i. 428 V. S. (43 Ind. 550) i. 317, 892 V. S. (43 Ohio St. 376) i. 729 Hanvey v. S. (68 Ga. 612) i. 400 Hanway v. Boultbee (4 Car. & P. 360 ; 1 Moody & R. 15) i. 1080 , U. S. V. (2 Wal. Jr. 139) i. 456, 681, 684 ; ii. 1202, 1226, 1231 Harberger v. S. (4 Tex. Ap. 26 ; 30 Am. R. 167) ii. 765 Hardebeck v. S. (10 Ind. 459) ii. 1143, 1146 Hardeman v. S. (12 Tex. Ap. 207) ii. 794 Harden, S. v. (11 S. C. 360) ii. 1272 Hardesty v. Goodenough (7 Mod. 138) ii. 514 Hardie, S. v. (47 Iowa, 647 ; 29 Am. R. 496) i. 314 ; ii. 738 Hardiman, C. v. (9 Allen, 487) i. 1065 Harding's Case (1 Greenl. 22) i. 536; ii. 492, 499, 501 Harding v. Butts (18 111. 602) i. 821 V. King (6 Car. & P. 427) i. 266 , P. V. (53 Mich. 481) i. 981 , Rex V. (Russ. & Ry. 125) i. 649 ; ii. 831 , U. S. w. (1 Wal. Jr. 127) i. 1003 Hardisson, P. v. (61 Cal. 378) i. 1003 Hardister, S. v. (38 Ark. 605; 42 Am. R. 6) i. 314 741 HAR INDEX TO THE CASES CITED. EAR Hardtke v. S. (67 Wis. 552) ii. 1132 Hardwick, In re (12 Q. B. D. 148) ii. 255 Hardwicke, Rex v. (1 Sid. 282) ii. 65 Hardy's Case (24 How. St. Tr. 199) ii. 1213 Hardy, Ex parte (68 Ala. 303) ii. 242 w. C. (ITGrat. 592) i. 789, 791 , C. V. (1 Aahm. 410) ii. 79, 80 , Reg. V. (Law Rep. 1 C. C. 278 ; 11 Cox C. C. 656) i. 531 , Rex V. (1 East P. 0.60) i. 772 , S. V. (Dudley, S. C. 236) i. 633 Hardy man, U. S. v. (18 Pet. 176) ii. 904 K. Whitaker (2 East, 573) i. 957 Hargett, S. v. (65 N. C. 669) ii. 699 Hargrave, S. o. (65 N. C. 466) ii. 1131, 1132 Harker v. S. (8 Blackf. 540) i. 1016, 1037 Harkins, C. v. (128 Mass. 79) i. 571 •^ — V. S. (6 Tex. Ap. 452) ii. 748 Harkness, S. v. (1 Brev. 276) i. 700 Harlan ». P. (1 Doug. Mich. 207) i. 178, 989 Harland, Reg. v. (8 Dowl. P. C. 323) ii. 255 Harley, C. v. (7 Met. 462) ii. 472, 473, 485 , Reg. V. (1 Car. & K. 89) ii. 904 , Rex V. (4 Par. & P. 369) ii. 740 Harlow v. C. (11 Bush, 610) i. 657 , S. V. (21 Mo. 446) i. 401 Harman, Rex v. (2 East P. C. 736) Ii. 1175 w. S. (Hind. 311) ii. 966 , 8. V. (78 N. C. 515) i. 859 Harmony v. Mitchell (1 Blateh. 549; 13 How. U. S. 115) i. 194, 355, 821 Harmwood, Rex v. (1 East P. C. 411) i. 787, 788 Harney, C. v. (10 Met. 422) i. 794 «. S. (8 Lea, 113) i. 658 Harnisse, Rex v. (Holt, 324) ii. 514 Harper, P. v. (Edm. Sel. Cas. 180) i. 850 , S. V. (69 Mo. 425) ii. 680 , S. V. (94 N. C. 936) ii. 1201 , U. S. «. (33 Fed. Rep. 471) ii. 372 Harper's Ferry Bridge, S. v. (16 W. Va. 864) ii. 242 a Harrall v. S. (4 Tex. Ap. 427) ii. 851 Barrel v. S. (39 Missis. 702 ; 80 Am. D. 95) i. 693; ii. 744 Harrell «. Bunting (3 Hawks, 86) ii. 140 V. S. (13 Tex. Ap. 374) i. 730 Harries, Bex v. (13 East, 270) i. 247, 462 , U. S. K. (2Bond, 311) i. 488 Harriet, The (1 Ware, 343) i. 821 Harriman v. S. (2 Greene, Iowa, 270) i. 1014 , U. S. V. (1 Hughes C. C. 625) i. 429 Harring v. Barwick (24 Ga. 69) Ii. 138, 384 Harrington, C. v. (3 Pick. 26) i. 500, 767, 1090, V. Jennings (LoHt, 188) ii. 273 V. P. (6 Barb. 607) ' i. 536, 8fil ; ii. 502, 1267 , Reg V. (6 Cox C. C. 231 ) i. 636 ; ii. 667 742 Harrington, Reg. v. (10 Cox C. C. 370) i. 877 V. S. (83 Ala. 9) ii. 731 Harris, C. v. (7 Grat. 600) i, 955, 957 , C. V. (8 Gray, 470) i. 1014 - — , C. w. (1 Leg. Gaz. Rep. 455) ii. 88 , C. V. (101 Mass. 29) i. 1138 V. Morse (49 Me. 432 ; 77 Am. D. 269) ii. 968 V. P. (9 Barb. 664) i. 572; ii. 529, 598 V. P. (6 Thomp. & C. 206; 4 Hun, 1) ii. 1026 , P. «. (29 Cal. 678) i. 411 , P. V. (61 Cal. 136) i. 960 , Reg. V. (Car. & M. 661, n.) i. 632, 772 ; ii. 994 , Reg. V. (Dears. 344; 25 Eng. L. & Eq. 579 ; 23 Law J. n. s. M. C. 110; 18 Jur. 408) ii. 340, 362 , Reg. V. (1 Den. C. C. 461; 3 Cox C. C. 565) i. 572 a , Reg. V. (8 Jur. 516) i. 247, 256 , Reg. V. (Law Rep. 1 C. C. 282) i. 1128 , Reg. V. (11 Mod. 113) i. 536, 537 , Rex v. (5 Car. & P. 159) i. 758 , Rex V. (7 Car. & P. 416) i. 649, 653; ii. 609 , Rex V. (7 Car. & P. 428) i. 287; ii. 601 , Rex V. (Carth. 496; 1 Ld. Raym. 440) ii. 514 , Rex V. (2 East P. C. 1023; Foster, 113) i. 559 ; ii. 13 , Rex V. (7 How. St. Tr. 925) i. 477 , Rex V. (1 Leach, 135) ii. 292 , Rex V. (2 Leach, 549; 4 T. R. 202) i. 240, 492 , Rex V. (1 Moody, 393 ; 6 Car. &P. 129) i. 572; ii. 631, 560 i'. S. (34 Ark. 469) i. 414 V. S. (36 Ark. 127) ii. 716 V. S. (58 Ga. 332) ii. 315, 316 V. S. (81 Ga. 758; 12 Am. St. 365) ii. 813 1). S. (47 Missis. 318) ii. 704 V. S. (8 Tex. Ap. 90) i. 429 0. S. (16 Tex. Ap. 629) i. 642 V. S. (17 Tex. Ap. 177) ii. 851 V. S. (18 Tex. Ap. 287) i. 388 , S. V. (64 Iowa, 287) i. 1065 , S. V. (5 Ire. 287) ii. 694, 606, 608 , S. V. (1 Jones, N. C. 190) i. 806, , S. V. (76 Mo. 361) , S. v. (12 Nev. 414) , S. V. (63 N. C. 1) , S. V. (47 Wis. 298) , U. S. i>. (1 Abb. U. S. 110) 849 ii. 728 U.728 i. 882 i. 164 i. 909, 910 ii. 238 i. 910 , U. S. V. (106 U. S. 629) V. White (Palmer, 412) Harrifsburg Bank v. C. (26 Pa. 461) i. 830 Harrison v. Baltimore (1 Gill, 264) i. 492 HAR INDEX TO THE CASES CITED. HAT Harrison v. Cliiles (3 Litt. 194) Am. i. 264 ; ii. 254 R. ii. 697 ii. 9B3 i. 1024 842, 850 V. C. (79 Va. 374; 634) , C. V. (11 Gray, 308) , C. V. (2 Va. Gas. 202) u. Harrison (43 Vt. 417) i. V. Hodgson (10 B. & C. 445 ; 5 Man. & R. 392) ii. 37 V. P. (50 N. Y. 618 ; 10 Am. R. 517) ii. 795 , P. 0. (8 Barb. 560) i. 572, 748 ; ii. 535, 538, 544, 545 , Reg. V. (12 Cox C. C. 19; 2 Eng. Rep. 174) ii. 873 , Rex w. (lEastP. C. 382) i. 459, 462, 715 ; ii. 394, 978 , Rex V. (1 Leacli, 47 ; 2 East P. C. 559) Ii. 873 V. S. (24 Ala. 67 ; 60 Am. D. 450) " i. 857, 862, 872, 875 V. S. (36 Ala. 248) i. 1066 V. S. (37 Ala. 154) i. 428 ; ii. 310 V. S. (55 Ala. 239) i 974 V. S. (35 Ark. 453) ii. 252 V. S. (20 Tex. Ap. 387 ; 54 Am. R. 529) ii. 91 , S. u. (5 Jones, N. C. 115) ii. 681 , S V. (30 La. An. 1329) ii. 1007 , S. V. (34 Minn. 526) i. 44 «. Sterrett (4 Har. & McH. 540) 1.265 Harrod, Reg; v. (2 Car. & K. 294) i. 916 Harrow, Ex parte (47 Cal. 129) i. 468a; -, Rex V. (2 Bast P. C. 715) ii. 982 1. 553 ; a. 1172 i. 93 ii. 1267 1. 972, 976 i. 265 i. 409 i. 1016 C. i. 123 ii. 785, Harrow v. Myers (29 Ind. 469) V. S. (1 Greene, Iowa, 439) Harston, S. v. (63 N. C. 294) Hart V. Basset (T. Jones, 156) , C. V. (2 Brews. 546) , C. V. (149 Mass. 7) V. Gunpach (Law Rep. 4 P. 439) , Rex V. (6 Car. & P. 106) 799, 823, 828 , Rex V. (30 How. St. Tr. 1131 ; 12 Q. B. 1041, n.) i. 945 , Rex V. (1 Moody, 486; 7 Car. & P. 652) ii. 580 , Rex u. (1 W. Bl. 386) ii. 914 V. S. (14 Neb. 572) i. 384 V. S. (15 Tex. Ap. 202) ii. 638 , S. ... (29 Iowa, 268) i. 387, 411 , S. V. (4 Ire. 246) i. 343 , S. V. (6 Jones, N. C. 389) i. 298 , S. V. (33 Kan. 218) i. 1027 , S. V. (34 Me. 36) i. 531 V. Tallraadge (2 Day, 381 ; 2 Am. D. 105) i. 286 K. U. S. (15 Ct. CI. 414) i. 971a , U. S. V. (Pet. C. C. 390) i. 180, 540; ii. 960 Hartall, Rex v. (7 Car. & P. 475) i. 699 Hartfiel, S. v. (24 Wis. 60) i. 303 a, 304 Hartigan, S. v. (32 Vt. 607 ; 78 Am. D. 609) i. 766 Hartley v. Harriman (1 B. & Aid. 620) i. 1080 V, Hindmarsh (Law Rep. 1 C. P. 553) i. 266 , Rex V. (Russ. & Ry. 139) ii. 341, 349, 370 Hartmann v. C. (5 Pa. 60) i. 571 ; ii. 145, 198, 201, 206, 240 Hartnett, Cm. (3 Gray, 460) ii. 900, 903 , Rex V. (Jebb, 302) i. 951 Hartwell, U. S. v. (3 Clif. 221) i. 685, 705 Harty v. S. (3 Blackf. 386) i. 667 Harvard College u. iSteams (15 Gray, 1) i. 265 Harvey v. C. (23 Grat. 941) ii. 771 , Reg. V. (9 Car. & P. 353) ii. 822, 836 , Reg. V. (8 Cox C. C. 99) ii. 1030 , Rex V. (3 D. & R. 464 ; 2 B. & C. 257) i. 457 ; ii. 922, 932 ,Rex V. (1 Leach, 467; 2 East P. C. 669) ii. 758; 816 V. S. (53 Ark. 425 ; 22 Am. St. 229) ii. 1122 V. S. (65 Ga. 568) ii. 963 , S. V. (3 N. H. 65) ii. 516 Harviok v. S. (49 Ark. 514) i. 744 Harwell v. S. (19 Tex. Ap. 423) i. 934 Harwood's Case (1 Mod. 79) ii. 244 Harwood v. P. (26 N. Y. 190; 84 Am. D. 175) i. 1083 Has, C. V. (122 Mass. 40) ii. 951, 969 Haseall, S. v. (6 N. H. 352) ii. 1046 Haskell, S. i;. (33 Me. 127) i. 143 ; ii. 863 , U. S. a. (4 Wash. C. C. 402) i. 1039, 1041 Haskins ». S. (47 Ark. 243) ii. 1106 Hassall, Reg. v. (Leigh & C. 58 ; 8' Cox C. C. 491) ii. 857 , Rex V. (2 Car. & P. 434) i. 363 Hassenfrats v. Kelly (13 Johns. 466) ii. 1.36 Hassinger's Case (2 Ashra. 287) ii. 349 Hastie, Reg. o. (Leigh & C. 269) ii. 340, 342 Hastings, S. v. (86 N. C. 596) i. 1014 Haswell, Rex v. (1 Doug. 387) i. 256 , Rex V. (Russ. & Ry. 458) i. 466, 697 ; ii. 1070, 1081, 1090 Hatuh V. Burroughs (1 Woods, 439) i. 65 V. S. (10 Tex. Ap. 51.5) ii. 1106 Hatchett v. C. (75 Va. 925) i. 668 Hately v. S. (15 Ga. 346) i. 648, 663 Hatfield, C. v. (107 Mass. 227) ii. 1024 Hathaway v. East Tennessee, &o. Rid. (29 Fed. Rep. 489) i. 194 V. National Lite Ins. Co. (48 Vt. 335) ii. 1187 Hatheock, S. u. (7 Ire. 52) i. 1078 743 HAY INDEX TO THE CASES CITED. HEA Hatsfield, C. w. (1 Pa. Law Jour. Kep. 177) i- 916 Hattabough, S. v. (66 Ind. 223) i. 812, 1057 Hattaway, S. v. (2 Nott & McC. 118 ; 10 Am. D. 580) ii 1081 Hatton, C. v. (3 Grat. 623) i. 998 Hauok, C. V. (103 Pa. 53H) ii. 1273 Haun, P. V. (44 Cal. 96) ii. 675, 727 Hau,se, S. v. (71 N. C. 518) i. 304 ; ii. 998 Haven v. Foster (9 Piclc. 112; 19 Am. U. 353) i. 294 Hawe V. S. (11 Neb. 537; 38 Am. R. 375) i. 376 Hawkes, C. v. (123 Mass. 525) i. 464 , Reg. V. (2 Moody, 60) ii. 562 Hawkeswood, Rex .;. (2 T. R. 606 ; 2 East P. C. 955 ; 1 Leach, 257) ii. 540 Hawkins's Case (cited 2 East P. C. 485) i. 649; ii. 120 Hawkins, C. k. (3 Gray, 463) i. 401, 414 , Reg. V. (1 Den. C. C. 584; Temp. & M. 328 ; 14 Jur. 513 ; 1 Eng. L. & Eq. 547) ii. 365, 886, 855 , Rex V. (3 Car. & P. 392) i. 634, 642 , Rex V. (2 East P. C. 485) i. 262 , Rex V. (2 East P. C. 501) ii. 106 V. Sanders (45 Midi. 491) ii. 1273 V. Smith (5lB Ga. 671) i. 895 V. S. (13 Ga. 322; 58 Am. D. 517) i. 535, 658 ; ii. 3 V. S. (25 Ga. 207 ; 71 Am. D. 166) ii- 704 w. S. (1 Port. 475; 27 Am. D. 641) i. 916, 1049 V. S. (3 Stew. & P. 63) i. 934 , S. V. (77 N. C. 494) i. 468 a , S. V. (8 Port. 461 ; 33 Am. D. 294) i. 287, 342 ; ii. 758, 806, 840, 843 Hawthorne, U. S. v. (1 Dil. 422) i. 200 Hawtin, Rex v. (7 Car. & P. 281) i. 683 ; ii. 323, 353, 823, 828 Hawver u. Seldenridge (2 W. Va. 274) i. 464 Hay V. Tower Division (24 Q. B. D. 561) i. 898, 918 Hayden v. S. (4 Blackf . 546) i. 257 , S. V. (15 N. H. 365) ii. 543 , S. 0. (32 Wis. 663) i. 32 Hayes v. Fischer (102 U. S. 121) ii. 268 , Rex V. (2 Ld. Raym. 1518) i. 998 , S. V. (67 Iowa, 27) i. 317 Hayling v. Okey (8 Exch. 531) i. 875 Haym v. U. S. (7 Ct. CI. 443) i. 904, 914 Hayman, Rex v. (Moody & M. 401) ii. 1281 Haynes's Case (12 Co. 113) ii. 758, 780 Haynes, P. «. (11 Wend. 557; 14 Wend. 546; 28 Am. D. 5-30) i 586 ; ii. 159, 418, 424, 433, 437, 450, 461, 465 , Reg. V. (1 Post. & F. 666) i. 387 , Rex V. (4 M. & S. 214) i. 491 ; ii. 145 y. S. (17Ga. 465) i. 857, 868, 869 V. S. (3 Humph. 480; 39 Am. D. 187) i. 909 744 Haynes v. S. (15 Ohio St. 456) ii. 674 , S. 0. (6 Coldw. 550) ii. 540 Haynev v. Coyne (10 Heisk. 839) ii. 131 Hays V. Bryant (1 H. Bl. 253) i. 888 , C. V. (14 Gray, 62; 74 Am. D. 662; ii. 355 , C. V. (1 Va. Cas. 122) ii. 758, 880 V. P. (1 Hill, N. Y. 851) 1. 261 ; ii. 1118, 1136 ii. 1267 i. 865, 658 i. 998 ii. 41 a ii. 678 ii. 365, 758, 831 ii. 699, 711,718 — , Rex V. (1 Russ. Crimes, 3d Eng. ed. 729; Russ. & Ry. 78) ' V. S. (8 Ind. 425) V. S. (13 Mo. 246) , S. V. (2 Lea, 166) , S. V. (67 Mo. 692) Hayward, C. v. (10 Mass. 34) , Reg. V. (\ Car. & K. 618) , Rex V. (6 Car. & P. 157) i. 302 ; , S. I). (1 Nott & McC. 646) i. 389, 341 ii. 1020, 1031 Haywood, Rex v. (2 East P. C. 1076 ; Russ. & Ry. 16) ii. 986 V. S. (41 Ark. 479) ii. 773 , S. V. (3 Jones, N. C. 399) ii. 1281 , S. V. (PhiUips, N. C. 376) i. 384 Hayworth v. S. (14 Ind. 690) 1. 694 Hazel V. Clark (3 Harring. Del. 22) ii. 41 , Rex V. (1 Leach, 368; 1 East P. C. 236) i. 881 ; ii. 680, 683, 709, 732 Hazell, Reg. .,. (11 Cox C. C. 597) ii. 807, 819 Hazelton, Reg. v. (Law Rep. 2 C. C. 134) ii. 421 Hazelwood, C. v. (84 Ky. 681) ii. 773 Hazen v. C. (23 Pa. 355) ' ' i. 977 ; ii. 192, 229 , S. II. (39 Iowa, 648) Head, Reg. v. (1 Post. & F. 350) i. 947 ii. 773, 779 V. S. (44 Missis. 731) i. 865; ii. 680 Headge, Rex v. (2 Leach, 1033; Russ. & Ry. 160) i. 262, 567 ; ii. 328, 865, 830 Heage, Reg. o. (1 Gale & D. 648 ; 2 Q. B. 128; 6 Jur. 367) ii. 1281 Healey, In re (53 Vt. 694 ; 38 Am. R. 713) ii. 252 Healy, S. v. (48 Mo. 631) ii. 367 a Hean, Rex v. (1 Leach, 627) 1.696: ii. 996 Ii. 1026 795, 1064 ; ii. 66, 1164 Heard v. Heard (8 Ga. 380) i. 296 I'. Pierce (8 Cush. 338; 54 Am. D. 767) i. 171 V. S. (81 Ala. 55) ii. 12 Hearing, U. S. ti. (26 Fed. Rep. 744) ii. 1020 Hearsey, C. w. (1 Mass. 137) i. 582 ; ii. 145 Heath, Keg. v. (2 Moody, 3.3) ii. 865, 785, 813, 824, 836 Heane, Reg. i>. (4 B. & S. 947) Heaps, Rex v. (2 Salk. 593) i. HEN INDEX TO THE CASES CITED. HEE Heath, Rex v. (Russ. & Ry, 184) i. 204, 206, 287 , S. V. (8 Mo. Ap. 99) ii. 340 , S. V. (41 Tex. 426) i. 594 Heatherley, S. v. (4 Misso. 478) i. 1024 Hector v. S. (2 Miseo. 166; 22 Am. D. 454) i. 1032 Eedgepeth o. Robertson (18 Tex. 868) ii. 1283 Hedges v. Price (2 W. Va. 192 ; 94 Am. D. 507) i. 14, 264, 904, 916 , Rex V. (1 Leach, 201; 2 East P. C. 590) ii. 758, 763 Hedley, Ex parte (31 Cal, 108) ii. 325, 361, 364, 372 Heed, P. v. (1 Idaho, n. s. 531) ii. 533 Hefelton v. Lister (Cooke, 88) i. 767 Heffren v. C. (4 Met. Ky. 5) ii. 316 Heflin, S. v. (8 Humph. 84) i. 535 ; ii. 2 Hefner, S. v. (84 N. C. 751) ii. 429 Hegarty v. Shine (14 Cox C. C. 124; lb. 145) ii. 72 b Heilces v. C. (26 Pa. 513) i. 1053 Heilbonn, In re (1 Par. Cr. 429) i. 135 Heilman v. C. (84 Ky. 457; 4 Am. St. 207) i. 373 Hein, S. v. (50 Mo. 362) ii. 978 Heine v. S. (91 Pa. 145) ii. 192 Helgen, S. .;. (1 Speers, 310) ii. 968 Helle, S. V. (2 Hill, S. C. 290) ii. M)19 Heller v. S. (23 Ohio St. 582) i. 794; ii. 53 Helm V. Slader (1 A. K. Mar. 320) ii. 490 Helmes, S. y. (5 Ire. 364) i. 569 ; ii. 985 Helsham, Rpx i>. (4 Car. & P. 394) i. 121 ; ii. 630 Helvenston, S. v. (R. M. Charl. 48) ii. 255 Hembree v. S. (52 Ga. 242) ii. 1030 Heming, Rex v. (2 East P. C. 1116 ; 1 Leach, 445 n.) ii. 1200 Hemings, Rex v. (2 Show. 93) i. 795 ; ii. 56, 1154 Hemmakeri). S. (12 Misso. 453; 51 Am. D. 172) i. 141 Hemmings, Reg. v. (4 Fost. & F. 50) ii. 849, 1160,1162 a , Rex V. IS-Salk. 187) i. 237, 246, 459 ; ii'. 982 Hench, Rex v. (Russ. & Ry. 163) i. 583 ; ii. 809, 813 Henderson v. C. (8 Grat. 708; 56 Am. D. 160) i. 538 ; ii. 490, 504, 1149 w. P. (117 111. 265) ii, 1037 , P. V. (1 Par. Cr. 560) ii. 12, 14, 17 , Reg. V. (Car. & M. 328) i. 1053 ; ii. 415, 420, 437 , Reg. V. (2 Moody, 192) w. S. (77 Ala. 77) V. S. (12 Tex. 525) V. S. (14 Tex. 603) , S. c/. (2 Dev. & Bat. 543) , S. u. (90 Ind. 406) , S. 1.. (35 La. An. 45) • , S. V. (15 Mo. 486) i. 1053; ii. 471 1.843 i. 730 ii. 643 i. 938; ii. 744, 745 ii. 1040 i. 680 ii 1011 Henderson, S. v. (66 N. C. 627) ii. 804 , S. V. (1 Rich. 179) ii. 929, 930 Henderson's Distilled Spirits (14 Wal. 44) i. 822 Hendon, Rex v. (4 B. & Ad. 628) i. 419, 531 ; ii. 1281 Hendrick v. C. (6 Leigh, 707) i. 178, 989 ; ii. 529, 539 Hendricks o. Andrews (7 Wend. 152) i. 298; ii. 136, 140 , Rex V. (2 Stra. 1234) ii. 1262 V. S. (26 Tex. Ap. 176 ; 8 Am. St. 463) ii. 533 Hendrickson v. C. (86 Ky. 281 ; 7 Am. St. 596) i. 562 V. Hendrickson (3 Harrison, 366) ii. 256 Hendrix v. S. (50 Ala. 148) ii. 72 6 Hendry X v'. Fitzpatrick (19 Fed. Rep. 810) ii. 271 Hendy, Reg. v. ('4 Cox C. C. 243) ii. 1200 Henke v. McCord (65 Iowa, 378) i. 832 Hennah, Reg. ,;. (13 Cox C. C. 647) i. 769 Hennersdorf v. S. (25 Tex. Ap. 697 ; 8 Am. St. 448) ii. 959 Hennessey, P. v. (15 Wend. 147) ii. 320, 353, 366, 367, 369, 379 , S. i;. (23 Ohio St. 339 ; 13 Am. , R. 253) ii. 888 Henning v. S. (106 Ind. 386) ii. 708 , S. V. (33 Ind. 189) i. 710, 713 Henry, C. v. (118 Mass. 460) ii. 598 , C. V. (22 Pa. 253) ii. 416, 420 V. Ellis (49 Iowa, 205) ii. 269 , Reg. V. (9 Car. & P. 309 ; 2 Moody, 118) i. 635 ; ii. 1173 V. Richardson (7 Watts, 557) i. 832 V. S. (39 Ala. 679) ii. 902 V. S. (7 Coldw. 331) i. 141 V. S. (18 Ohio, 32) i. 758 ; ii. 991 , S. V. (9 Ire. 463) i. 262 ; ii. 118 Henry Ewbank, The (1 Sumner, 400) ii. 876 Hensey's Case (19 How. St. Tr. 1341) ii. 1213 Hensey; Rex v. (1 Bur. 642) ii. 1233 Henshaw ;;. Foster (9 Pick. 312) ii. 627 Hensler, Reg. v. (11 Cox C. C. 570) ii. 467, 488 Hensley, C. v. (2 Va. Cas. 149) i. 143 , S. V. (94 N. C. 1021) ii. 714 Henslie v. S. (3 Heisk. 202) i. 400, 411 Henslow «. Fawoett (1 Har. & W. 125) ii. 86 Hensly «. S. (52 Aia. 10) i. 891a Henson, Reg. v. (Dears. 24; 18Eng. L. & Eq 107) i. 490 Herber v. S. (7 Tex. 69) ii. 861 Herbert, P. v. (61 Cal. 544) i. 860 , Rex V. (2 Keny. 466) ii. 209, 218 Herdina, S. v. (25 Minn. 161 ) i. 884 a ; ii. 53 Hermann, Reg. v. (4 Q. B. D. 284 ; 14 Cox C. C. 279) ii. 289, 291 Hern II. Nichols (Holt, 462) i. 317 Hernandez v. S. (20 Tex. Ap. 161) ii. 803 745 HIC INDEX TO THE CASES CITED. Hlli Herrell, S. ^. (97 Mo. 105 ; 10 Am. St. 289) ii. V16 Herrick, P. v. (13 Wend. 87) ii. 424, 437, 461, 462, 471, 483 , S. .;. (3Nevr259) i. 1049 Herrin v. S. (33 Tex. 638) ii. 728 Herring v. S. (3 Tex. Ap. 108) ii. 748 Herrington, S. v. (21 Ark. 195) ii. 40 Herriott ». S. (1 McMul. 126) ii. 313 Herron «. C. (79 Ky. 38) i. 934 V. Hughes (25 Cal. 555) i. 265 Hertford, Rex v. (Holt, 320) ii. 1285 Hervey v. Moseley (7 Gray, 479 j 66 Am. D. 515) ii. 235 Hescott's Case (1 Salk. 330) ii. 392, 394, 395 Hess V. S. (5 Oliio, 6 ; 22 Am. D. 767) ii. 643, 609 V. S. (16 Vroora, 445) i. 492 Hessenkamp, S. v. (17 Iowa, 25) ii. 1274 Hetlierington, Reg. v. (5 Jur. 529) ii. 77 Hevey, Rex v. (Rubs. &Ry. 407, n. ; 2 Bast P. C. 850 ; 1 Leach, 229) i. 584 ; ii. 161, 583 Heviee, Respublica v. (2 Teates, 114) ii. 235 Heward v. Shipley (4 East, 180) i. 974 Hewet's Case (5 How. St. Tr. 883) ii. 1213 Hewett, S. v. (31 Me. 396) ii. 236 Hewgill, Reg. v. (Dears. 315; 24 Eng. L. & Eq. 556) ii. 418 Hewitson v. Hunt (fe Rich. 106) ii. 255 Hewitt, Reg. v. (5 Cox C. C. 162) ii. 2.30 Hewlett, Reg. v. (1 Post. & F: 91) i. 786, 850, 865 Hext, Reg. v. (4 Jur. 339) i. 247 Hey V. C. (32 Grat. 946 ; 34 Am. E. 799) i. 206; ii. 1140 , Reg. V. (Temp. & M. 209 ; 1 Den. C. C. 602 ; 2 Car. & K. 983 ; 14 Jur. 154) ii. 859, 862 Hevmann v. Reg. (Law Rep. 8 Q. B. 1Q2; 12 Cox C. C. 383) ii. 190, 198 Heys V. Heseltine (2 Camp. 604) i. 682 Heyward, S. v. (2 Nott & McC. 312 ; 10 Am. D. 604) i. 632, 653 Heywood, Reg. v. (2 Car. & K. 352) ii. 606, 607 , Territory v. (2 Wash. 180) i. 1061 Hibbard v. HurUiurt (10 Vt. 173) ii. 137 y. P. (4 Mich. 126) i. 32 Hibbert, Reg. i>. (13 Cox C. C. 82; 13 Eng. Eep. 433) ii. 230, 231 Hibbe, Ex parte (26 Fed. Rep. 421) ii. 529 Hibdora, S. v. (23 Fed. Rep. 795) i. 65 Hickey, Ex parte (4 Sm. & M. 751) i. 899, 913; ii. 267 , C. i>. (1 Pa. Law Jour. Rep. 436) ii. 419 , P. V. (11 Hun, 631) ii. 68 V. S. (23 Ind. 21) i. 791, 792, 795, 1067 Hicklin, Reg. <■. (Law Rep. 3 Q. B. 360) 1. 309 746 ii. 766 ii. 61 ii. 1119 ii. 394 i. 759, 767 ii. 490, 801 ii. 794 Hicklin, S. V. (5 Pike, 190) i. 1024 Hickling, S. v. (12 Vroom, 208; 32 Am. R. 198) ii. 192, 217 Hickman v. Littlepage (2 Dana, 344) i. 821, 831 , RexK. (1 Leach, 278; 2 East P. C. 728) i. 553 ; ii. 1172 , Rex V. (1 Moody, 84) i. 767 ; ii. 1195 , S. V. (3 Halst. 299) ii. 785 Hickox V. Elliott (22 Fed. Eep. 13) ii. 130 Hicks V. S. (60 Ga. 464) ii. .309 V. S. (51 Ind. 407) i. 305 , S. V. (27 Mo. 588) ii. Tig Higginbotham v. S. (23 Tex. 574) ii. 31 Higgins V. Andrewes (2 Eol. 55) V. Butcher (Yelv. 89) i. 267 ; V. P. (1 Hun, 307) , P. V. (59 Cal. 357) , Rex V. (4 Car. & P. 247) , Rex V. (2 East, 6) , V. S. (7 Ind. 549) , S. V. (88 Mo. 354) Higginson, Reg. v. (1 Car. & K. 129) i. 384 Higler v. P. (44 Mich. 299 ; 38 Am. R. 267) i. 571 Hilands v. C. (Ill Pa. 1 ; 56 Am. E. 236) i. 1013 Hilbers, Eex v. (2 Chit. 163) i. 592, 801 ; ii. 187, 190 Hild V. S. (67 Ala. 39) ii. 97 Hildebrand v. P. (56 N. Y. 394; 3 Thomp. & C. 82 ; 15 Am. R. 435) ii. 812 Hilderbrand u. P. (1 Hun, 19) ii. 812 Hildreth v. Heath (1 Bradw. 82) i. 898, 918 , S. V. (9 Ire. 429 ; 51 Am. D. 364) ii. 695, 713, 715, 717 . S. V. (9 Ire. 440; 51 Am. D. 369) i.217, 720; ii. 744 V. Thompson (16 Mass. 191) i. 819a Hiler, U. S. v. (Morris, 330) Hill's Case (1 East P. C. 439) Hill, Ex parte (3 Car. & P. 225)' V. C. (2 Grat. 594) , C. V. (11 Mass. 136) i. 310, 631, 661 , C. V. (14 Mass. 207) i. 395 II. Crandall (62 111. 70) ii. 263, 266 , Reg. V. (1 Car. & K. 168) i. 572 o , Reg. V. (8 Car. & P. 274) ii, 698 , Reg, V. (2 Cox C. C. 246) ii. 564 , Reg. V. (2 Moody, 30) i. 339, 341, 572 ; ii. 598 . Reg. V. (3 New Sess. Gas. 648 ; 1 Den. C. C. 453; Temp. & M. 150 ; 13 Jur. 545 ; 18 Law J. n. s. M. C. 199) i. 369 ; ii. 1139 V. Sellick (21 Barb. 207) i. 460 V. S. (43 Ala. 336) 1. 996 ■ f. S. (62 Ala. 168) 1.836 t>. S. (28 Ga. 604) i. 648 V. S. (63 Ga. 125) i. 772 a V. S. (63 Ga. 578; 36 Am. R. 120) i. 345 ; ii. 72 w. S. (4 Sheed, 443) ii. 1281, 1282 V. S. (41 Tex. 167) ii. 901 V. S. (6 Tex. Ap. 2) U. 722 i. 602 ii. 1128 1.594 ii. 728 HIT INDEX TO THE CASES CITED. HOG Hill V. S. {57 Wis. 377) ii. 864 V. S. (1 Yerg. 76; 24 Am. D. 441) i. 684; ii. 156 , S. V. (4 Dev. & Bat. 491 ; 34 Am. D. 396) i. 870, 871 ; ii. 695, 697, 702, 704 , S. u. (1 Houst. Crim. 420) ii. 785 , S. V. (10 Ind. 219) ii. 1267 , S. V. (72 Me. 238) ii. 437 , S. V. (69 Mo. 451) ii. 728, 731 , S. V. (72 N. C. 345) i. 648 , S. u. (79 N. 0. 656) i. 594 , S. o. (91 N. C. 561) i. 617 , S. V. (19 S. C. 435) i. 140, 141 , S. u. (2 Speers, 150) i. 464 , S. V. (30 Wis. 416) i. 1004, 1006 Hillam, Reg. v. (2 Cox C. C. 174; 2 Eng. Rep. 227) i. 572 a Hillhouse v. Dunning (6 Conn. 391) ii 929 930 Milliard v. S. (14 Lea, 648) ' ii. 1024 V. S. (37 Tex. 358) i. 336 V. S. (17 Tex. Ap, 210) ii. 53 Hilliker v. Hathorne (5 Bosw. 710) ii. 256 Hlltabiddle v. S. (35 Ohio St. 52 ; 35 Am. R. 592) ii. 1117 Hilton's Case (2 Lewin, 214) i. 314 ; ii. 669 Hilton II. Houghton (35 Me. 143) ii. 968 Reg. V. (Bell C. C. 20; 8 Cox C. C. 87) , S. V. (35 Kan. 338) , S. V. (26 Mo. 199) Hinchw. S. (25 Ga. 699) 664 ii. 529 ii. 1091 842,873; ii. 722 ii. 1031 «. S. (2 Misso. 158) Hinuhnian v. Clark (Coxe, 340) i. 821, 970 Hinckley v. Breen (55 Conn. 119) i. 464 V. Emerson (4 Cow. 351 ; 15 Am. D. 383) V. Penobscot (42 Me. 89) Hine u. Belden (27 Conn Hines v. MuUins (25 Ga. 69i V. S. (26 Ga. 614) V. S. (8 Humph. 697) V. S. (24 Ohio St. 134) 1080 ii. 964 384) i. 819 a I i. 883 i. 963 i. 998, 1037 i. 1013, 1015, 1026, 1034 Hinesburgh ». Sumner (9 Vt. 23) i. 267, 712, 714 Hingle V. S. (24 Ind. 35) ii. 966 Hinkle v. C. (4 Dana, 518) i. 778, 782, 793, 1061 ii. 1267 i. 750 ii. 504 Hinks V. Hinks (46 Me. 423) Hinson, S. v. (82 N. C. 697) , S. u. (83 N; C. 640) Hinton v. S. (24 Tex. 454) i. 843 ; ii. 722 Hipp V. S. (5 Blackf. 149 ; 33 Am. D.463) i. 219, 317 Hirshfield v. S. (11 Tex. Ap. 207) i. 1050 Hirst, Inre(9Philad. 216) Hiss V. Bartlett (3 Gray, 468 Am. D. 768) V. S. (24 Md. 556) Hitchman, C. v. (46 Pa. 357) Kite V. S. (9 Yerg. 198) " ii. 257 63 i. 461 ii. 977 1.910 ii.'758, 797, 799, 822 Hite V. S. (9 Yerg. 357) i. 1049, 1050, 1052 Hitz, Ex parte (111 U. S. 766) i. 129 Hoacek v. Reobler (5 Neb. 355) ii. 954 Hoag, P. V. (2 Par. Cr. 36) ii. 529 Hoagland v. Culvert (Spencer, 387) 1. 464 Hoare, Reg. «. (1 Fost. & F. 647) ii. ,341 Hoatson, Reg. v. (2 Car. & K. 777) i. 294 298; ii. 629, 543, 544 Hobbs!). S. (75 Ala. 1) ii. 560 V. S. (9 Misso. 855) ii. 561 , S. V. (40 N. H. 229) ii. 1030 ■, S. V. (2 Tyler, 380) ii. 28 V. Young (3 Mod. 318, 316; Holt, 66) i. 892 Hobert's Case (Cro. Car. 209) ii. 1104 Hobhouse's Case (3 B. & Aid. 420) ii. 247 Hobhouse, Rex v. (2 Chit. 207) ii. 247 Hobson V. Perry (1 Hill, S. C. 277) i. 822 , Rex V. (Russ. & Ry. 56; 2 Leach, 975) ii. 376 V. S. (44 Ala. 380) ii. 996, 1004 Hoch w. P. (3 Mich. 552) ii. 1040 Uockett, S. V. (70 Iowa, 442) i. 934 ; ii. 677, 680 Hodgdon v. Wight (36 Me. 326) i. 821 Hodges V. S. (8 Ala. 55) 1. 1067 V. S. (5 Coldw. 7) i. 1028 V. S. (15 Ga. 117) i. 871 ; ii. 53 V. S. (5 Humph. 112) i. 734 ; ii. 949 Hodfjkins, Beg. v. (Law Rep. 1 C. C. 212) ii. 1014 V. Rockport (116 Mass. 573) ii. 1280 , S. u. ,(42 N. H. 474) i. 1028 Hodgson V. Millward (3 Grant, Pa. 406) i. 822 , Reg. V. (Dears. & B. 3 ; 7 Cox C. C. 122; 36 Bug. L. & Eq. 626) ii. 529, 596, 598, 599, 601 , Rex V. (3 Car. & P. 422) ii. 376 , Rex V. (Gurney's Rep.) ii. 187 , Rex V. (1 Leach, 6) i. 634 ; ii. 691, 744 Hodson, U. S. o. (10 Wal. 395) i. 488 Hoffman, C. v. (121 Mass. 369J i. 1062 V. Coster (2 Whart. 453) i. 917 , P. I). (3 Mich. 248) i. 32 V. S. (20 Md. 425) i. 981 Hogan, C. v. (97 Mass. 122) i. 1065 , Reg. V. (1 Crawf. & Dix C. C. 366) ' ii. 758, 797 , Reg. V. (5 Eng. L. & Eq. 553; 2 Den. C. C. 277; 5 Cox C. C. 255 ; 15 Jur. 805 ; 20 Law J. n. s. M. C. 219) i. 557, 883, 884 ; ii. 29, 72 a V. Sharpe (7 Car. & P. 755) i. 1080 V. S. (61 Ga. 43) ii. 740 0. S. (36 Wis. 226) ii. 728 Hogg, Reg. V. (25 U. C. Q. B. 66) i. 471 V. Ruffner (1 Black, 115) ii. 1260 , S. V. (5 Ind. 515) ii. 1282 V. Zanesville Canal & Manuf. Co. (5 Ohio, 410) ii. 1278 Hoggatt V. Bigley (6 Humph. 236) i. 299 747 HOL INDEX TO THE CASES CITED. HOP Hoggins, Rex v. (Rasa. & Ry. 145) ii. 370, 377 Hogue V. Hayes (53 Iowa, 377) ii. 256 , S. t. (6 Jones, N. C. 381) ii. 716 Hoiles V. U. S. (3 MacAr. 370 ; 36 Am. R. 106) i. 1061 Hoin, P. V. (62 Cal. 120 ; 45 Am. R. 651) i. 383 b i. 246 ii. 557 4 ii. 922 ii. 792 Hoit, S. V. (3 Fost. N. H. 355) HokeK. P. (122 111.511) Holbrook, Reg. w. (3 Q. B. D. 60 : Q. B. U. 42) i. 892 Holcombe v. S. (69 Ala. 218) Holcome, Ex parte (2 Dil. 392) ii. 572, 594 V. Cornish (8 Conn. 375) i. 778, 793 ; ii. 79, 80 Holcroft, Reg. v. (2 Car. & K. 341) i. 803, 809 Holden, Reg. v. (12 Cox C. C. 166) ii. 1032 , Rex V. (Russ. & Ry. 154; 2 Leach, 1019 ; 2 Taunt. 334) i. 287, 437 ; ii. 698 Holder, 0. v. (9 Gray, 7) i. 141 , S. V. (81 N. C. 527) ii. 773 Holland, C. i>. (1 Duv. 182) i. 65, 131 , P. V. (59 Cal. 364) ' i. 811 , Reg. V. (2 Moody & R. 851) i. 257 ; ii. 638 i. 505 ii. 699 ii. 1106 ii. 1267 910, 911 i. 974 , Rex V. (1 T. R. 692) v.S. (12Fla. 117) V. S. (60 Missis. 939) HoUeman v. C. (2 Va. Cas. 135) HoUen, The (1 Mason, 431) i, Holler V. Ffirth (Penning. 531) Holley V. S. (75 Ala. 14) i. 305; ii. 645 Holliday v. P. (5 Oilman, 214) i. 910, 916 HoUingberry, Rex w. (6 D. & R. 345 ; 4 B. & C. 329) ii. 215, 220 HoUingsworth v. Duane (Wal. C. C. 77) ii. 244, 254, 259, 263, 269 V. S. (5 Sneed, 518) ii. 304 HoUis «. Davis (56 N. H. 74) i. 271 , Reg. V. (12 Q. B. D. 25; 16 Cox C. C. 345) • ii. 812 , S. w. (1 Houst. Crim. 24) i. 865 HoUon, S. V. (12 Lea, 482) ii. 932 HoUoway's Case ( W. Jones, 198) i. 536, 843, 862, 875 HoUoway t>. C. (11 Bush, 344) i. 305, 974 , C. K. (5 Binn. 616) i. 516 V. Lowe (7 Port. 488) i. 541 ; ii. 131, 132 , Reg. V. (1 Den. C. C. 370; 2 Car. & K. 942; Temp. & M. 40 ; 3 New Sess. Cas. 410 ; 13 Jur. 86) ii. 768, 841 , Rex V. (6 Car. & P. 524) i. 207, 305 ; ii. 839, 840 HoUowaye's Case (Palmer, 545) i. 536, 843, 862, 875 Holly V. S. (10 Humph. 141) ii. 699, 704 , S. 0. (2 Bay, 262) ii. 629, 602 Holly way, S. v. (41 Iowa, 200; 20 Am. R, 586) i. 346 ; ii. 1162 Hollywood V. P. (2 Abb. Ap. 376) ii, 741 748 i. 221; ii. 918 ii. 309 i. 1050, 1060 i. 843 Holman v. S. (105 Ind. 513) ii. 252 , S. V. (3 McCord, 306) ii. 995 Holme's Case (2 Lewin, 256) ii. 341 Holme, S. v. (64 Mo. 153) ii. 708, 728 Holmes's Case (Cro. Car. 376; W. Jones, 351) i. 734, 759, 772, 810; ii. 13, 16,20 Holmes, Ex parte (12 Vt. 631) i. 135 , C. V. (17 Mass. 336) i. 500; ii. 905, 943 u. Jennison (14 Pet. 540) i. 135 V. Mather (Law Rep. 10 Ex. 261 ; 16 Am. R. 384) ii. 72 c , Reg. V. (Dears. 207 ; 3 Car. & K. 360 ; 20 Eng L. & Eq. 597; 22 Law J. N. 8. M. C. 122 ; 17 Jur. 562) i. 244, 601, 1128 i;. S. (23 Ala. 17) i. 866 V. S. (88 Ala. 26 ; 16 Am. St. 17) ii. 719 , U. S. V. (1 Clif. 98) i. 376 , U. S. V. (1 Wal. Jr. 1 ; "Whart. Hom. 237) i. 348, 845 ; ii. 260 , U. S. V. (5 Wheat. 412) i. 117, 176 Holroyd, Reg. v. (2 Moody & R. 339) i. 343, 428 Holt, Rex V. (7 Car. & P. 518) i. 341, 736; ii. 991 , Bex V. (5 T. R. 436) V. S. (1 Bax. 192) V. S. (38 Ga. 187) V. S. (9 Tex. Ap. 571) Home Insurance Co. v. Northwest- ern Packet Co. (32 Iowa, 223; 7 Am. R. 183) i. 195 Homer v. Battyn (BuUer's N. P. 62) ii. 26 V. Cadman (16 Cox C. C. 51) ii. 1275 V. Pish (1 Pick. 435 ; 11 Am. D. 218) i. 1008 Homes, S. v. (17 Mo. 379; 57 Am. D. 269) i. 297 ; ii. 758, 851 Honeycutt, S. v. (74 N. C. 391) i. 1034 Honig, S. V. (78 Mo. 249) ii. 1140 Honshell, P. v. (10 Cal. 83) i. 876; ii. 656 Hood, Rex v. (1 Moody, 281) ii. 699 V. S. (44 Ala. 81) ii. 1016, 1030, 1047 V. S. (56 Ind. 263 ; 26 Am. R. 21 ) i. 36 , S. V. (61 Me. 363) i. 963 Hoofman, S. v. (9 Md. 28) i. 105, 150 Hooker, Rex v. (7 Mod. 193) i. 110 , S. ^. (17 Vt. 658) i. 861 ; ii. 37, 39 Hoole V. Attorney-General (22 Ala. 190) i. 1079 Hoong V. Reg. (7 Cox C. C. 489) i. 112 Hooper v. Edwards (25 Ala. 628) ii. 968 V. S. (8 Humph. 93) ii. 543, 606, 607, 608 , S. V. (82 N, C. 663) ii. 740 Hoost, Rex V. (2 East P. C. 950) i. 769 Hoover v. S. (59 Ala. 57) i. 294 , S. V. (4 Dev. & Bat. 366 ; 34 Am. D. 383) i. 814 Hope, C. u. (22 Pick. 1) i. 798, 796, 1062; ii. 116 , Bex I'. (1 Moody, 396) i. 939 HOW INDEX TO THE CASES CITED. HUB Hope, Rex v. (1 Moody, 414) ii. 564, 575 Hopkins v. Calloway (3 Sneed, 11) ii. 505 r. C. (3 Met. 460) ii. 605, 606, 904 , C. V. (133 Mass. 381; 43 Am R. 527) V. Crombie (4 N. H. 520) i. 1109 i. 829 ; ii. 1285 i. 208 ii. 140 ii. 1138 1. 955 i. 658 i. 1117 ii. 888 ii. 291 V. Hopkins (10 Johns. 369) V. Paxton (4 Dana, 36) V. P. (12 Wend. 76) , S. V. (7 Blackf. 494) , S. V. (4 Jones, N. C. 305) , S. u. (5 R. I. 53) , S. V. (56 Vt. 250) , U. S. V. (26 Fed. Rep. 443) Hopkinson v. P. (18 III. 264) i. 305 ; ii. 742 Hopkirk, S. v. (84 Mo. 278) ii. 727 Hopley, Reg. v. (2 Post. & F. 202) i. 886 Hopps V. P. (31 III. 385; 83 Am, D. 231) i. 376, 384 Hopson, P. V. (1 Denio, 574) i. 464 Hopt 0. P. (104 U. S 831) i. 409 V. Utah ( 1 10 U. S. 574) i. 279, 281 a Horan v. S. (7 Tex. Ap. 183) i. 336, 465 Hore, Reg. v. (3 Fost. & F. 315) ii. 876 Horn V. Locklmrt (17 Wal. 570) i. 14 ^, P. V. (70 Cal. 17) i. 1013, 1014 Hornby, Rex v. (1 Car. & K. 305) i. 649 , ii. 822 Home, Rex v. (Cowp. 672) ii. 941 , S. -'. (9 Kan. 119) 1. 869 , S. u. (92 N. C. 805 ; 53 Am.R. 442) ' ii. 26 Horner, Rex v. (1 Leach, 270) 1. 582 ; ii. 810 ii. 605 ii. 1267 ii. 1267, 1268 , Rex V. (1 Rol. 406) i. 244 Horrigan, C. v. (2 Allen, 159) ii. 17 Horsey, Reg. v. (3 Fost. & F. 287) ii. 657 Horton, P. v. (5 Hun, 516) ii. 1271, 1272 , P. u. (4 Mich. 67) i. 857, 859 ; ii. 708 , P. V. (64 N. Y. 610) i. 227 Hoskins V. S. (27 Ind. 470) i. 930 V. Tarrenoe (5 Blackf. 417 ; 35 Am. D. 129) ii. 758, 763 Hough, Rex v. (Bayley Bills, 6th ed. 586) ii. 603 Houglitaling v. Kelderhouse (1 Par. Cr. 241) i. 917 Houghton, C. V. (8 Mass. 107) ii. 288, 605 V. Havens (6 Conn. 305) i. 32 House V. S. (9 Tex. Ap. 53) i. 731 , S. V. (65 N. C. 315; 6 Am. R. 744) ii. 771 Houseman, Reg. v. (8 Car. & P. 180) ii. 564 Housh f. P. (75 111. 487) i. 468a Houston u. Moore (5 Wheat. 1) i. 989 , Reg. V. (2 Crawf. & Dix C. C. 310) i. 1022, 1024, 1027 Howard, C. v. (1 Grat. 555) ii. 1267 V. Gossett (May Pari. Law, 151) i. 461 V. Mendon (117 Mass. 585) ii. 1280 , S. V. (48 Mo. 520) Hornsea, Reg. v. (Dears. 291) Hornsey, Reg. v. (10 Mod. 150) i, 891 ii. 1267 ii. 72, 72 e i. 1062 ii. 1024 i. 305 i. 1072 i. 369 Howard, Rex v. (7 Mod. 307) i. 237, 459 ; ii. 973 V. S. (34 Ark. 433) V. S. (47 Ark. 431) V. S. (67 Ind. 401) V. S. (8 Tex. Ap. 447) , S. V. (63 Ind. 502) , S. V. (14 Kan. 173) , S. V. (72 Me. 459) , S. V. (88 N. C. 650) , U. S. v. (3 Wash. C. C. 340) i. 117 ; ii. 1061 Howarth, Reg. v. (11 Cox C. C. 588) ii. 437 , Reg. V. (33 U. -C. Q. B. 537) ii. 960 , Rex V. ( 1 Moody, 207) i. 868 Howatt, Rex «. (2 East P. C. 604; 1 Leach, 83, n.) ii. 785, 904 Howe, C. V. (13 Gray, 26) i. 1085, 1117 .= , C. V. (132 Mass. 250) ii. 4.37 V. Searing (6 Bosw. 684) ii. 256 , S, V. (25 Ohio St. 588; 18 Am. R. 321) i. 464 V. Thompson (2 Fairf. 152) ii. 575 Howel V. James (2 Stra. 1272) i. 909 Howell V. C. (26 Grat. 995) V. McCoy (3 Rawle, 256) , P. V. (4 Johns. 296) , Reg. V. (9 Car. & P. 437) i. 340, 632, 634, 636, 642, 791 ; ii. 691, 744, 994 , Reg. V. (4 Fost. & F. 160) ii. 235 , Rex V. (7 Car. & P. 325) ii. 834, 858, 860 , Rex V. (Russ. & Ry. 253) V. S. (79 Ala. 283) V. S. (5 Ga. 48) V. S. (37 Tex. 591) , S. V. (9 Ire. 485) , S.v. (R. M. Charl. 120) Howerton, S. h. (58 Mo. 581) , S. B. (59 Mo. 91) ii. 1156, 117d Howie, Reg. v. (11 Cox C. C. 320) ii. 561 Howitt V. Rickaby (9 M. & W. 52) ii. 255 Howland, U. S. v. (4 Wheat. 108) i. 194 Howlatt, Rex v. (7 Car. & P. 274) i. 735 ; ii. 741 V. S. (5 Yerg. 144) i. 632, 6.58 Hoxey, C. v. (16 Mass. 385) i. 542 Hoxie, U. S. w. (1 Paine, 265) i. 456 ; ii. 1202, 1226 Hoye V. Bush (2 Scott, N. R. 86; 1 Man. & G. 775) ii, 699 Hovt V. S. (50 Ga. 313) ii. 349 —, S. V. (13 Minn. 132) ii. 723, 727, 728 V. Thompson (1 Seld. 320) i. 541 ; ii. 139 Hozier t>. S. (6 Tex. Ap. 542) 1. 1061 ; ii. 888 Hubbard, P. v. (24 Wend. 369 ; 35 Am. D. 628) i. 857, 876 Hube, Rex v. (Peake, 132; 5 T. R. 642) i. 542 Huber v. Reily (53 Pa. 112) i. 947 !■. S. (57 Ind. 841; 26 Am. R. 57) ii. 813 , S. «. (8 Kan. 447) i. 795, 797 749 ii. 727 i. 1141 11.560 1.942 ii. 37, 40 i. 857 ii. 533 i. 870, 871 i. 135 ii. 1174 HUG INDEX TO THE CASES CITED. HUN Hubson, Rex v. (1 East P. C. 258) i. 634 ; ii. 691, 744 Hitckenstine's Appeal (70 Pa. 102; 10 Am. R. 669) i. 1142, 1143 Huckley's Case (2 Leach, 789, n.) ij. 897 Huddleston y S. (11 Tex. Ap. 22) ii. 785 Hudgins v. S. (2 Kelly, 173) 1. 858 Hudson, C. V. (14 Gray, 11) i. 1054, 1065 V. Geary (4 R. I. 485) ii. 961, 968 V. Guestier (6 Cranch, 281) i. 120 , Reg. V. (Bell C. C. 263; 8 Cox C. C. 305) i. 257 ; ii. 198 V. S. (6 Tex. Ap. 565 ; 32 Am. R. 593) ii. 704 V. S. (9 Tex. Ap. 151 ; 35 Am. R. 732) i. 1061 ; ii. 888 V. S. (10 Tex. Ap. 215) ii. 802 V S. (4 Zab. 718) i. 175; ii. 1269 , S. V. (32 La. An. 1052) i. 961 , S. V. (59 Mo. 135) ii. 657, 726, 728 , S. 0. (1 Vroom, 137) ii. 1281 , S. V. (3 Zab. 206) ii. 1269 , U. S. V. (7 Cranch, 32) i. 199 ; ii. 243, 244, 938, 942 Huffman, Pennsylvania v. (Addison, 140) i. 1052 , S. V. (2 Rich. 617) ii. 1267 HufEsmith v. P. (8 Colo. 175; 54 Am. K. 550) ii. 952 Hugget's Case (J. Kel. 59) ii. 702 Huggins, Rex v. (2 Stra. 882 ; 2 Ld. Raym. 1574) i. 317, 328 ; /ii. 666, 687 V. S. (41 Ala. 893) ii. 1138, 1139 , S. V. (47 Ind. 586) ii. 1267 Hughes, C. . (101 Mass. 30) ii. 969 I. S. S., S. V. (1 Tyler, 178) i. 1016 Idol V. Jones (2 Dev. 162) ii. 777 lUidge, Reg. v. (2 Car. & K. 871 ; Temp. & M. 127 ; 13 Jur. 543 ; 18 Law J. N. 8. M. C. 179; 1 Den. C. C. 404) ii. 660, 591 lilies V. Knight (3 Tex. 312) i. 569 Illinois River Packet Co. v. Peoria Bridge (38 111. 467) i. 174 Ilott V. Wilkes (3 B. & Aid. 304) i. 855 Imbert, U. S. c-. (4 Wash. C. C. 702) i. 117 Imlay o. Sands (1 Caines, 566) Incledon, RexB. (13 East, 164) i. 306 i. 829 ; ii. 1285 C. i. 194 572; Independence, The (2 Curt. C. 350) Inder, Reg. v. (1 Den. C. C. 325) ii. 564, 612 Indianapolis v. Blythe (2 Ind. 75) i. 433 V. Fairchild (1 Ind. 316 ; Smith, Ind. 122) i. 32 V. McClure (2 Ind. 147) ii. 1282 Ingalls «. S. (48 Wis. 647) i. 411, 965 IngersoU v. Skinner (1 Denio, 540) i. 957 Ingle V. S. (8 Blackf. 574) i. 895 Inglee v. Bosworth (5 Pick. 498 ; 16 Am. D. 419) ii. 791 Ingold, S. V. (4 Jones, N. C. 216 ; 67 Am. D. 283) i. 871 Ingram u. The C. D. and M. R. R. Co. (38 Iowa, 669) i. 265 V. S. (39 Ala. 247 ; 84 Am. D. 782) i. 948 V. S. (67 Ala. 67) i. 869 V. S. (7 Misso. 293) i. 619 Inness, S. v. (53 Me. 536) i. 1060, 1065 u. WyIie(lCar. &K. 257) ii. 27 Insane Criminals, Opinion on (8 Scott N. R. 595 ; 1 Car. & K. 130, n.) i. 303 a, 384, 392, 393 Insurgents of Pa. U. S. v. (2 Dall. 335) ii. 1202 Intoxicating Liquors, C. w (107 Mass. 396) i. 835 , C. V. (115 Mass. 142) i. 825, 833 , S. !). (63Me. 121) i. 824 , S. V. (44 Vt. 208) i. 821 Irby V. S. (32 Ga. 496) i. 368 Ireton, Rex v. (Comb. 396) ii. 1281 751 JAG INDEX TO THE CASES CITED. JAM Irondequoit, In re (68 N. Y. 376) ii. 1267, 1269 Irvinw. S. {19Fla. 872) ii. 728 Irving V. S. (9 Tex. Ap. 66) 1. 731 Irwin, Succession of (12 La. An. 676) i. 877 Isaac, Rex v. (2 East P. G. 1031) i. 329 ; ii. 15, 21 Isaacs, G. v. (5 Tiand. 634) i. 601 V. S. (48 Missis. 234) ii. 192 V. S. (25 Tex. 174) i. 860 v. S. (30 Tex. 450) ii. 846 Isliam V. S. (38 Ala. 213) i. .303, 305, 327; ii. 731 , S. V. (3 Hawks, 185) i. 938 Isherwood, Rex u. (2 lieny. 202) ii. 86, 88 Isla de Cuba, U. S. v. {'2 Clif. 295; 2 Sprague, 26) i. 564 Isley, Rex«. (5 A. &E. 441) i. 885 Ivens, Rex r. (7 Car. & P. 213) i. 532 Ives, S. V. (13 Ire. 338) i. 700 ; ii. 1140 Iveyt). S. (12 Ala. 276) ii. 314, 315 Ivyes, Rex v. (2 Sliow. 468) i. 505 J. B., S. V. (1 Tyler, 269) ii. 1044 Jacko V. S. (22 Ala. 73) i. 504, 1149 Jacks V. Bell (3 Car. & P. 316) i. 266 Jackson's Case (18 How. St. Tr. 1069) i. 115 Jackson v. Babcock (16 N. Y. 246) i. 821 , C. V. (2 B. Monr. 402) i. 564 , C. V. (2 Va. Cas. 601) i. 1010 V. Justices (1 Va. Cas. 314) ii. 256 V. Kiel (13 Colo. 378) i. 265 , P. I'. (3 Deliio, 101 ; 45 Am. D. 449) i. 504, 1135 , P. V. (3 Hill, N. Y. 92) i. 805 , P. V. (7 Mich. 432) i. 245; ii. 1268 ' , P. V. (3 Par. Cr. 690) ii. 808 , Reg. w. (1 Car. &K. 384) i. 567 ; ii. 376 , Reg. V. (7 Cox C. C. 357) i. 636 ; Reg. V. (2 Moody, 32) ii. 365, 824, 836, 859 , Reg. 0. (1891, 1 Q. B. 671) i. 891 , Rex V. (3 Gamp. 370) i. 585; ii. 147, 421 , Rex V. (1 Cravrf. & Dix C. C. 149) i. 437, 772; ii. 1233 , Rex V. (Draper, 50) ii. 514 , Rex V. (1 Lev. 124) i. 685, 686, 992 , Rex V. (Lofft, 147) i. 462 ; ii. 972 , Rex V. ( 1 Moody, 119) ii. 820, 822 , Rex 0. (1 Russ. Crimes,' 3d Eng. ed. 892; 1 East P. C. Ad- denda XXL ; 1 Leach, 193, n. ; 2 lb. 618) i. 438; ii. 1170 , Rex u. (Russ. & Ry. 487) i. 261, 554; ii. 1122 i. 299 ; ii. 972 ii. 614 ii. 1022 i. 844 i, 860 , Rex V. (1 T. R. e , Rex !i. (Trem. P. C.' 324) V. Rose (2 Va. Gas. 34 !i. S. (81 Ala. 83) 1). S. (6 Bax. 462) 752 Jackson «. S. (45 Ga. 198) ii. 704 V. S. (61 Ga. 402) ii. 741 V. S. (72 Ga. 28) ii. 673 V. S. (76 Ga. 473) i. 306 ; ii. 647 u. S. (1 Ind. 184; Smith, Ind. 124) ii. 1018 0. S. (14 Ind. 327) i. 1061 V. S. (11 Ohio St. 104) ii. 763, 764, ■V. S. (43 Tex. 421) S. (20 Tex. Ap. 190) 765 ii. 86 o, 88 i. 633 i. 621 V. S. (20 Vroom, 252) , S. V. (2 Harring. Del. 542) i. 892 ^^, S. V. (12 Ire. 329) i. 595; ii. 996 , S. V. (73 Me. 91 ; 40 Am. R. 342) i. 471; ii.86 , S. u. (65 N. G. 305) ii. 795 , S. y. (82 N. C. 665) ii. 240 , S. V. (36 Ohio St. 281) ii. 1020 , S. V. (7 S. C. 283) ii. 188 , S. V. (1 Speers, 13) i. 534; ii. 1144, 1148 , U. S. V. (4 Craneh C. C. 483) i. 697 V. Weisiger (2 B. Monr. 214) i. 672 ; ii. 535, 601 Jacob's Case (1 East P. C. 181) ii. 293 Jacob V. Lawrence (14 Cox C. C. 321) ii. 914 V. S. (3 Humph. 493) i. 17 V. U. S. (1 Brock. 520) i. 32 Jacobi, U. S. t). (1 Flip. 108) ii. 242 a, 260, 267 Jacobowsky v. P. (6 Hun, 524) i. 1083 •Jacobs V. C. (2 Leigh, 709) i. 299, 462 ; ii. 396 , C. u. (9 Allen, 274) i. 743, 752 , P. V. (35 Mich. ?6) ii. 429 , Reg. v:(V2 Cox G. C. 151 ; 2 Eng. Rep. 204) ii. 812 , Rex V. (Russ. & Ry. 331) ii. 1194 , S. V. (94 N. C. 960) ii. 490, 497, 504 , S. v.m Ohio, 143) i. 464 Jacobson, Reg. v. (14 Cox C. C. 622) ii. 1188 ' Jacobus, C. V. (1 Leg. Gaz. Rep. 491) ii. 954, 958 Jacoby, U, S. v. (12 Blatch. 491) i. 488, 615 Jailer, C. v. (7 Watts, 366) i. 354 Jailer of Fayette, U. S. v. (2 Abb. U. S. 265) ii. 647 Jakes V. S. (42 Ind. 473) i. 304 Jamarillo, P. v. (57 Gal. Ill) ii. 728 James v. Campbell (5 Car. & P. 372) i. 288; ii. 60, 72 a , C. „. (1 Pick. 376) i. 588 ; ii. 83S, 834, 868 jJ3. V. <12 S. & R. 220) i. 542,^43, "" ^ -"^ ' 946, 1 Itn, 1104 V. Hay ward (Cro. Car. 184 ; "W. Jones, 221) i. 828, 1080 , P. V. (2 Gaines, 57) i. 916 V. Pine Bluff (49 Ark. 199) ii. 1281 , Reg. V. (8 Car, & P. 292) i. 303, 310 JEN INDEX TO THE CASES CITED. JOH James, Reg. v. (1 Eng. L. & Eq. 552 ; 2 Den. C. C. 1 ; Temp. & M. 300 ; 14 .lur. 940) i. 441, 459 , Rex V. (2 Russ. Crimes, 3d Eng. ed. 14) ii. 882 V. S. (53 Ala. 380) ii. 1158 , S. V. (37 Conn. 355) i. 931 , S. V. (63 Mo. 570) i. 802 V. Ward (2 Met. Ky. 271) i. 953 Jamison v. S. (87 Ark. 445; 40 Am. R. 103) ii. 466 Janesville v. Milwaukee, &c. Rid. (7 Wis. 484) ii. 1274 Janitor of Supreme Court (35 Wis. 410) ii. 248 Jansen v. Atchison (16 Kan. 358) i. 93 , S. V. (22 Kan. 498) i. 258 Janson v. Brown (1 Camp. 41) i. 1080 , Reg. V. (4 Cox C. C. 82) ii. 864 V. Stuart (1 T. R. 748) i. 1102 Janvrin v. Fogg (49 N. H. 340) ii. 510 Jarman, Reg. v. (14 Cox C. C. Ill) ii. 488 Jarrett w.Groathmey (5Blackf. 237) i.208 Jarrott, S. d. (1 Ire. 7B) ii. 675, 690 Jarvis, Reg. v. (3 Fost. & F. 108) i. 491 , Rex V. (1 Moody, 7) ' ii. 106 , Rex V. (2 Moody & R. 40) i. 328, 341, 698, 735, 758 V. Santa Clara Valley Rid. (52 ~ ■ -"■ i 265 i. 809 ii. 81.? i. 642 ii. 954, 965 ii. 908 Cal. 438) , S. V. (21 Iowa, 44) , S. V. (63 N. C. 556) Jasper, S. v. (4 Dev. 323) Jeandell, C. v. (2 Grant, Pa. 506) , S. V. (5 Harring. Del. 475) Jecker v. Montgomery (18 How. TJ. S. 110) 1. 821 Je£E V. S. (.37 Missis. 321) i. 735, 736 ; ii. 741 V. S. (39 Missis. 503) i. 735 Jefferson v. Adams (4 Harring. Del. 321) i. 266 , C. V. (6 B. Monr. 313) i. 1024 , P. V. (52 Cal. 452) ii. 103 , S. V. (3 Harring. Del. 571) i. 729, 735; ii. 741 , S. V. (39 La. An. 331) ii. 560 , S. w.' (66 N. C. 309) i. 1033, 1034, 1041 Jeffors, S. 1/. (64 Mo. 376) i. 1031 Jeffries, C. v. (7 Allen, 548 ; 83 Am. D. 712) ii. 438 , Reg. V. (3 Cox C. C. 85) i. 650 V. S. (40 Ala. 381) i. 1023 V. S. (9 Tex. Ap. 598) i. 413 Jeffry, Rex w. (1 Leach, 443, n.) i. 975 Jellyman, Reg. v. (8 Car. & P. 604) ii. 1193 Jenkins v. Bradford (59 Ala. 400) ii. 131, 132 V. Cheyenne (1 Wy. 287) i. 32 , P. V. (16 Cal. 431) ii. HO , Reg; V. (9 Car. & P. 38) ii. 836, 858, * 860 V. S. (82 Ala. 25) ii- 703 VOL. I. — 48 Jenkins v. S. (50 Ga. 258) i. 679 V. S. (53 Ga. 33 ; 21 Am. R. 255) ii. 16 , S. V. (36 Mo. 372) ii. 1159, 1179 , S. V. (14 Rich. 215; 94Am.D. 132) 1. 648 ; ii. 691 , S. V. (20 S. C. 351) i. 1021 , S. V. (2 Tyler, 377) ii. 758, 881, 882 Jenks, C. v. (1 Gray, 490) i. 1017 , Rex V. (2 Leach, 774 ; 2 East P. C. 514) i. 752 ; ii. 114 V. Turpin (13 Q. B. D. 505 ; 15 Cox C. C. 486) - i. 1137 Jenner v. JolifEe (9 Johns. 381) i. 237, 459 Jennings v. C. (17 Pick. 80) i. 500, 1086 , C. V. (3 Grat. 624) ii. 303 V. GreAt Northern Ry. (Law Rep. 1 Q. B. 7) i. 301 , Reg. V. (1 New Sess. Cas. 488) ii. 218 , Rex V. (4 Car. & P. 249; 1 Lewin, 93) ii. 1129 w. S. (16 Ind. 335) i. 35 V. S. (7 Tex. Ap. 350) ii. 722 , S. V. (18 Mo. 435) ii. 728 , S. V. (4 Ohio St. 418) i. 463 Jennison, Reg. v. (1 Leigh & C. 157) ii. 422, 424 , U. S. w. (1 McCrary, 226) ii. 238 Jenour, Rex v. (7 Mod. 400)( ii. 925 Jenson, Rex !>. (1 Moody, 4.34) ii. 340 Jepson, Rex w. (2 East P. C. 1115) ii. 1200 Jeruagan, S. v. (N. C. Term R. 44) i. 260, 938; ii. 811 Jemigan, S. v. (3 Murph. 12) i. 938 Jerome, P. v. (1 Mich. 142) ii. 931 Jesse V. S. (20 Ga. 156) i. 220 ; ii. 1047 , S. V. (3 Dev. & Bat. 98) i. 791, 803, 1053, 1066 Jessie, S. v. (30 La. An. 1170) ii. 72 e Jessop, Reg. v. (16Cox C. C. 204) ii. 1187 , Reg. V. (Dears. & B. 442; 7 Cox C. C. 399) ii. 435 Jett V. C. (18 Grat. 933) 1. 155, 178 Jewell V. Gilbert (64 N. H. 13; 10 Am. St. 357) i. 464 Jeyes v. Foreman (6 Sim. 384) ii. 270 Jhons V. P. (25 Mich. 499) ii. 12 Jillson, P. V. (3 Par. Cr. 234) ii. 37 Jim, S. V. (1 Dev. 142) i. 554 V. Territory (1 Wash. 76) i. 65 Joaquin, S. v. (69 Me. 218) ii. 1199 Jobling, Rex v. (Russ. & Ry. 525) ii. 106 John, Rex v. (7 Car. & P. 324) ii. 783, 786 V. S. (2 Ala. 290) i. 952 V. S. (23 Wis. 504) ii. 533, 540 , S. V. (8 Ire. 330 ; 49 Am. D. 396) i. 400, 401,414; Ji. 708 , S. V. (5 Jones, N. C. 163; 69 Am. D. 777) ii. 1167 John Hancock Mut. Life Ins. Co. v. Moore (34 Mich. 41) ii. 1187 Johns V. S. (19 Ind. 421 ; 81 Am. D. 408) i. Ill , U. S. V. (1 Wash. C. C. 368; 4 Dall. 412) i. 514, 570 Johnson, Ex parte (15 Neb. 512) i. 464 753 JOH INDEX TO THE CASES CITED. JOL Johnson v. Clem (82 Ky. 84) li. 504 t). 0. (5 Bush, 430) ii. 373 w. C. {2Grat. 581) i. 976 V. C. (24 Grat. 565) ii. 804 , C. V. (i Pa. Law Jour. Rep. 398) ' i- 1P90 V. Croydon (16 Q. B. D. 708) ii. 962 V. Davis (7 Tex. 173) ii. 206 V. Duncan (3 Mart. La. 530 ; 6 Am. D. 675) i. 45 V. Irasburgh (47 Vt. 28; 19 Am. R. Ill) ii- 960 V. McGinly (76 Me. 432) V. Ogilby (3 P. Wms. 277) V. P. (4 Denio, 364) i. 143 404 i. 711 ii. 786, 786 ii. 1048 i. 961, 963 ii. 410, 441 ii. 713, 721 ii. 1138 V. P. (94 111. 605) !>. P. (65N. Y. 612) , P. v. (12 Johns. 292) , P. y. (1 Par. Cr. 291) , P. y. (1 Par. Cr. 564) V. Pinney (1 Paige, 646 ; 19 Am. D. 469) ii. 270 , Reg. .;. (Car. & M. 218) i. 262 , Keg. V. (2 Den. C. C. 310 ; 14 Eng. L. & Eq. 670) i. 583 ; il. 817, 823 , Reg. V. (Leigh & C. 632; 10 Cox C. C. 114) i. 260 ; ii. 36 , Reg. V. (U Mod. 62) i. 240, 339, 343; ii. 401,978 , Reg. V. (14 U. C. Q. B. 569) ii. 1200, 1201 , Rex V. (Comb. 377) i. 601 , Rex V. (2 East P, C. 488) ii. 91, 97, 99 , Rex V. (7 East, 65 ; 3 Smith, 94) i. 110 , Rex w. (3 Mod. 241) i. 908, 910 , Rex V. (3 M. & S. 539, 566) i. 622 ; ii. 769 , Rex V. (2 Show. 1) i. 468; ii. 219, 1054, 1066 '- V. San Francisco Superior Court (63 Cat. 678) ii. 242 a «. S. (17 Ala. 618) i. 797 ; ii. 745 V. S. (35 Ala. 363) ii. 23 U.S. (37 Ala. 457) ii. 996 V. S. (69 Ala. 263) i. 844 V. S. (82 Ala. 29) i. 1020 V. S. (29 Ark. 81 ; 21 Am. R. 154) i. 998 V. S. (36 Ark. 242) il. 434 V. S. (9 Bax. 279) ii. 346 V. S. (2 Dutcher, 313) i. 804, 805; ii. 217 V. S. (5 Dutcher, 463) i. 787, 814 «. S. (14 Ga. 55) i. 728, 791 V. S. (26 Ga. 611 i. 750 V. S. (30 Ga. 426 1 ii. 1010 r. S. (48Ga. 116) ii. 17 V. S. (68 Ga. 491) ii. 885 V. S. (63 Ga. 366) i. 731, 736 K. S. (76 Ga. 790) ii. 1018 1). S. (2 Humph. 283; 36 Am. D. 322) i. 882 V. S. (59 Missis. 643) i. 1029 764 Johnson v. S. (17 Tex. 516) ii. 71 V. S. (27 Tex. 758) i. 869 lu. S. (30 Tex. 748) ii. 712, 728 V. S. (36 Tex. .376) ii. 876 V. S. (41 Tex. 65) ii. 429 V. S. (41 Tex. 608) ii. 851 K. S. (3 Tex. Ap. 690) ii. 191 V. S. (4 Tex. Ap. 598) i. 736 V. S. (5 Tex. Ap. 423) i. 934 V. S. (7 Tex. Ap. 210) ii. 53 , V. S. ( 14 Tex. Ap. ,306) i. 464 V. S. (18 Tex.,Ap.'7) i. 941 V. S. (19 Tex. Ap. 453 ; 53 Am. R. 385) i. 1059 V. S. (19 Tex. Ap. 645) ii. 31 , S. V. (12 Ala. 840 ; 46 Am. D. 283) i. 536, 778, 793, 861, 875, 876, 1061 , S. 0. (2 Bay, 385 ; 1 Brev. 155) i. 299, 460, 462 ; ii. 244, 263, 972 , S. V. (7 Blackf. 49) ii. 1024 , S. t). (8 Blackf. 633) i. 992 , S. V. (40 Conn. 136) i. 383, 387, 407 , S. V. 41 Conn. 584) i. 401, 409 , S. V. (102 Ind. 247) ii. 731 , S. V. (8 Iowa,' 526 ; 74 Am. D. 321) ii. 728 , S. V. (19 Iowa, 2,30) ii. 20 , S. V. (26 Iowa, 407 ; 96 Am. D. 158) ii. 629 , S. V. (49Iowa, 141) ii. 861 , S. 6-. (1 Ire. 354; 35 Am. D. 742) ii. 695, 715, 716, 718 , S. V. (3 Jones, N. C. 266) ii. 697 , S. i>. (76Mo. 121) i. 844 , S. V. (76 N. C. 174) i. 877 , S. „. (94 N. C. 924) ii. 1104 a , S. V. (2 Or. 115) i. 141 , S. V. (7 Or. 210) i. 336, 629 , S. V. (Phillips, N. C. 140) ii. 1266 , S. V. (Phillips, N. C. 186; 93 Am. D. 687) ii. 91 , S. ^. (1 Vroom, 185) i. 805, 808 , S. V. (Walk. Missis. 392) i. 997 V. Strayton (6 Barring. Del. 362) i. 265 V. Tompkins (Bald. 671) ii. 23, 70 , U. S. «. (26 Fed. Rep. 682) i. 633; ii. 1010 V. Von Kettler (66 111. 63) , ii. 244 V. Von Kettler (84 111. 315) ii. 244, 246 V. Wideman (Dudley, S. C. 70) ii. 262 Johnston's Case (5 Grat. 660) ii. 665 Johnston !>. C. (1 Bibb, 698) ii. 268 V. C. (22 Pa. 102) ii. 964 I'. Crawford (Phillips, N. C. 842) 1. 266 V. P. (81 111. 469) ii. 968 , Reg. I). (5 Cox C. C. 183) ii. 564 , Reg. V. (2 Moody, 264) ii. 422 V. S. (7 Misso. 183) i. 619 Joice V. S, (53 Ga. 50) ii. 1136 Jollie, Rex v. (1 Nev. & M. 483 ; 4 B. &Ad. 867) i. 247, 256 JolliflFe, Rex v. (1 East, 154, n.) i. 246, 471 JON- INDEX TO THE CASES CITED. JON Jolliffe, Rex v. {4 T. R. 285) i. 468; ii. 916 Jolly V. Terre Haute Draw-Bridge (6 McLean, 237) i. 176 Jones V. Alcorn Registrars (56 Missis. 766) i. 918 V. Andover (10 Allen, 18) ii. 956, 959 V. Chiles (2 Dana, 25) ii. 140 V. Clay (1 B. & P. 191) i. 265, 266 V. C. (1 Bush, 34 ; 89 Am. D. 605) i. 468 a V. C. (1 Call, 555) i. 955 «. C. (31 Grat. 836) ii. 190 V. C. (15 Gray, 193) i. 1080 V. C. (75 Pa. 403) 1. 409; ii. 728 V. C. (1 Rob. Va. 748) ii. 748 , C. V. (10 Bush, 725) ii. 317 , C. V. (2 Grat. 555) i. 501 , C. V. (1 Leigh, 598) ii. 723, 727 V. Harris (1 Strob. 160) i. 908, 917 • V. Hungerford (4 Gill & J. 402) ii. 17 ii. 647 i. 667 ii. 072 i. 795 i. 401 ii. 1028, 1039 a i. 744 i. 1034, 1035 ii. 885 ii. 1201 V. Jones (13 Ire. 448) V. P. (20 Hun, 545) V. P. (2 Scam. 477) , P. V. (53 Cal. 58) , P. V. (63 Cal. 168) , P. ... (1 Mich. N. P. 141) , P. V. (46 Mich. 441) , P. V. (48 Mich. 554) , P. V. (49 Mich. 591) , P. V. (62 Mich. 304) , Reg. V. (4 B. & Ad. 345 ; 1 Nev. &M. 78) i. 572 a , Reg. V. (2 Car. & K. 236; 1 Den. C. C. 188) ii. 758, 843, 846 , Reg. V. (Car. & M. 611) ii. 811, 886 , Reg. V. (7 Car. & P. 834) ii. 376 , Reg. V. (8 Car. & P. 288) ii. 375 , Reg. v. (9 Car. & P. 258 i. 735 ; ii. 655, 741 , Reg. V. (9 Car. & P. 401) i. 462 , Reg. V. (9 Car. & P. 761 ; 1 Russ. Crimes, 3d Eng. ed. 82) i. 653 ; ii. 299 , Reg. V. (5 Cox C. C. 226) ii. 1200 , Reg. V. 11 Cox C. C. 358) i. 303 a , Reg. V. (11 Cox C. C. 544) ii. 662 a , Reg. V. (12 Cox C. C. 628 ; 10 Bng. Rep. 610) ii- 656 b , Reg. K. (15 Cox C. C. 476) ii. 461 , Reg. V. (Dears. & B. 655 ; 7 Cox C. C. 498) ii- 783 , Reg. V. (1 Den. C. C. 218; 2 Car. & K. 398) ii. 1200 , Reg. V. (1 Eng. L. & Eq. 533 ; 1 Den. C. C. 551 ; 4 Cox C. C. 198; Temp. &M. 270) ii- 467 , Reg. V. (4 Fost. & F. 25) i. 482 , Reg. V. (4 Law Times, N. s. 154) ii. 1122, 1124, 1125 , Reg. V. (2 Ld. Raym. 1013 ; 1 -Salk. 879) i- 571, 582 ; ii. 145 , Reg. V. (2 Moody, 293) ii. 789 , Rex i;. (2 B. & Ad. 611) i. 3i3 , Rex V. (3 Camp. 230) i. 531 ; ii. 1274 Jones, Rex v. (4 Car. & P. 217) i. 778, 793 ; ii. 889 , Rex y. (6 Car. & P. 391) i. 964 , Rex V. (7 Car. & P. 151) ii. 836, 858, 860 , Rex 0. (7 Car. & P. 833) ii. 376 , liex V. (2 East P. C. 714; 1 Leach, 139) i. 553 ; ii. 1172 , Rex V. (1 Leach, 53; 2 East P. C. 941) ii. 560 , Rex V. (1 Leach, 174; 2 East P. C. 822) ii. 151 , Rex V. (1 Leach, 204 ; 2 East P. C. 883 ; 1 Doug. 300) ii. 694 , Rex V. (1 Leach, 366 ; 2 East P- C. 991) i. 572 ; ii. 523, 644, 598 , Rex V. (7 Mod. 410 ; 2 Stra. . 1146) , Rex I). (8 Mod. 201) , Rex!>. (1 Stra. 474) , Rex V. (1 Wils. 7) V. Rice (18 Pick. 440 D. 612) V. S. (13 Ala. 153) i. 237, 246 i. 992 ii. 514 i. 462 ; ii. 973 29 Am. i- 267, 711 i. 385, 396, 9.30; ii. 758, 789 i. 465 ; ii. 1010 i. 850 , 990, 1022, 1024 i. 414; ii. 680 i- 1033 i. 648 i. 772 ii. 1139 ii. 149 35 V. S. (60 Ala. 99) u. S- (76 Ala. 8) «. S. (15 Ark. 261) y. S. (29 Ga. 694) V. S. (55 Ga. 625) —I- V. S. (64 Ga. 697) -r— V. S. (3 Heisk. 446) V. S. (14 Ind. 346) V. S. (50 Ind- 473) 0. S. (59 Ind. 229) V. S. (66 Missis. 380; 14 Am. St. 570) i. 778, 1061 y. S. (14 Mo. 409) ii. 699 V. S. (11 N. H.269) i.793, 796, 1062; ii. 116 V. S. (13 Tex. 168; 62 Am. D. 550) i. 678, 1006 V. S. (3 Tex. Ap. 150) ii. 728 V. S. (8 Tex. Ap. 648) ii. 414 V. S. (20 Tex. Ap. 665) i. 877 V. S. (26 Tex. Ap. 1 ; 8 Am. St. 454) i. 866 , S. V. (1 Bay, 207) i. 572 ; ii. 538 , S. w. (2 Dev. & Bat. 544) ii. 867 , S. «. (7 Ga. 422) i. 992, 1009, 1024 , S. y. (1 Houst. Crim. 21) ii. 726, 728 , S. y. (9 Ire. 38) i. 498 ; ii. 79, 80, 82 , S. V. (16 Kan. 608) i. 1014 , S. V. (39 La. An. 935) i. 373 , S. V. (2 Lea, 716) i. 486 , S. y. (1 McMul. 236; 36 Am. I). 257) ii. 557 , S. V. (20 Mo. 68) ii. 713 , S, V. (53 Mo. 486) ' ii. 303 , S. V. (64 Mo. 391) ii. 728 , S. V. (79 Mo. 441) i. 329 , S. V. (1 Murph. 257) i. 1024 , S. V. (7 Nev. 408) i. 670 , S. V. (60 N. H. 369 ; 9 Am. R. 242) i. 376, 377, 383 755 TCT) INDEX TO THE CASES CITED. EEE Jones, S. V. (65 N. C. 895) ii. 794, 795 , S. V. (70 N. C. 75) 11. 449 , S. y. (82 N. C. 685) i. 971a S. V. (83 N. C. 605; 35Am.r.. 586) i. 689; ii. 1135 . ; S. «. (95 N. C. 588 ; 59 Am. R. 282) i- 881 , S. V. (14 S. C. 344) ' ii. 490 , S. V. (Walk. Missis. 83) i. 134 V. Tevis (4 Litt. 25 ; 14 Am. D. 98) i. 884 6 , U. S. V. (14 Blatch. 90) ii. 1023 , U. S. V. (31 Fed. Bep. 725) i. 1021 , U. S. V. (3 Wash. C. C. 209) 'i. 355, 553, 6H2, 634 ; ii. 1061, 1178 V. Van Zandt (6 How. U. S. 215) i. 135 Jopson, Rex v. (3 Bur. 1702) i. 538 Jordan v. C. (25 Grat. 943) ii. 758, 1162 n — - V. Moore (10 Ind. 386) ii. 968 ■-, P. V. (66 Cal. 10 ; 56 Am. R. 73) ii- 420 , Reg. w. (9 Car. & P. 118) i. 373 ; ii. 1117, 1132 , Rex V. (7 Car. & P. 432) i. 649. 676; ii. 92, 120 «. S. (79 Ala. 9) i. 633 a V. S. (82 Ala. 1) i. 633 V. S. (10 Tex. 479) ii. 728 V. S. (14 Tex. 436) ii. 268 V. S. (11 Tex. Ap. 435) i. 305 , S. V. (75 N. C. 27) i. 772 Jordin V. Crump (8 M. & W. 782) i. 855 Jose Ferreira dos Santos, Case of (2 Brook. 493) 1. 135 Josefa Segunda, The (5 Wheat. 338) i. 119, 352, 564 Joseph, The (8 Craneli, 451) i. 294, 352 Joseph, The (1 Gallis. 545) i. 821 Josephine v. S. (39 Missis. 613) i. 1031, 1033 Josslyn V. C. (6 Met. 236) i. 778, 793, 796, 953, 1062 Jourdine, U. S. v. (4 Craneh C. 0. 338) i. 1088, 1109 Journeymen Tailors, Rex u. (8 Mod. 10) ii. 175 Joy V. S. (14 Ind. 139) i. 998, 1015; 1027 ; ii. 968 Joyner, Rex v. (J. Kel. 29) i. 569, 625, 804 ; ii. 984 Juaraqui v. S. (28 Tex. 625) ii. 1043 Juarez, P. v. (28 Cal. 380) ii. 843 Judd, C. V. (2 Mass. 329; 3 Am. D. ■ 54) i. 143, 331, 432, 592 ; ii. 175. 180, 192, 210 , Rex !'. (1 Leach, 484; 2 T. R. 255; 2 East P. C. 1018) ii. 17 Judge V. Cox (1 Stark. 285) i. 1080 V. S. (58 Ala. 406 ; 29 Am. R. 757) ii. 699 Judges, P. V. (8 Cow. 127) i. 1034 , P. V. (13 Johns. 86) i. 266 Judges of Dutchess Oyer and Ter- miner, P. 0. (2 Barb. 282) i. 1003 756 Judges, Report of the (SBinn. 595) ii, 102, 103, 174, 320, 492, 493, 549, 554, 572, 712, 856, 866, 1002, 1049 Judges of Washington, P. v. (2 Caines, 97) ii. 256 Judson, P. V. (11 Daly, 1) ii, 1143, 1152 Jump, S. V. (90 Mo. 171) i. 736 Justice V. C. (2 Va. Cas. 171) i. 531 ; ii. 1273 , S. V. (2 Dev, 199) i. 582, 584 ; ii, 156, 204 Justices V. P. (90 N. Y. 12 • 43 Am. R, 135) ii. 812 ii. 882 i. 506' 1.961 i. 895 i. 424 i. 424, 931 ; ii. 1270 , U. S. V. (9 Saw. 614 ; 19 Fed. Kaatz, P. V. (3 Par. Cr. 129) Kanavan's Case (1 Greenl. 226) Kane v. C. (109 Pa, 541) V. Haywood (66 N. C. 1) V. P. (3 Wend. 363) — V. P. 8 Wend. 203) Rep. 42) Kanouse, S. ». (Spencer, 115) Kartz, S. v. (13 R. I. 528) Kaster, S. v. (35 Iowa, 221) Kattlemann, S. v. (35 Mo. 106) 1.291 Kavanaugh v. S. (41 Ala. 399) i. 1088 i. 341 . 1004 ; ii. 575 ii. 349, 1106 Kay, Reg. v. (7 Cox C. C. 289 ; Dears. & B. 231) ii. 812 , Reg. V. (Law Rep. 1 C. C. 257) ii. 560 V. S. (40 Tex. 29) ii. 851 Kazinski, U. S. v. (2 Sprague, 7) i. 482 Kealey, Reg. v. (1 Eng. L. & Eq. 585 ; 2 Den. C. C. 68) ii, 472 Kean, Rex ;;. (2 East P. C. 1073) i. 595 ; ii. 996 ii, 728 11. 268, 269, 270 , S. o. (1 Hawks, 53) i. 938, 941, 942, 943, 975 V. Taylor (15 How. U. S. 494) i. 279 Keat's Case (Holt, 481 ; Skin. 666) ii. 641, 656, 657, 680, 704, 709 Kearley, S. v. (26 Kan, 77) Kearney, Ex parte (7 Wheat. 88) Keat, Rex v. (5 Mod. 288) Keate, Rex v. (Comb, 406) Keay's Case (1 Swinton, 643) }; 11. 653 ii. 704 i. 548; u. 28, 60 ii, 0:37 1, 1065 Kee V. S. (28 Ark, 155) Keefe, C. v. (7 Gray, 332) i, V. P, (40 N, Y. 348 ; 7 Abb. Pr. K. 8. 76) ii, 727 V. S, (19 Ark, 190) ii. 32 , U. S. V. (3 Mason, 475) i. 564 Keefer, P. v. (18 Cal. 636) ii. 740 Keeland, S. v. (90 Mo. 337) i. 792 Keeler, P. v. (99 N, Y, 463; 62 Am, R. 49) ii, 247 V. S, (15 Tex, Ap, HI) ii. 602 Keeling v. S. (107 Ind, 663) i, 795 Keely u. S. (14 Ind. 36) li, 801, 841, 847 KEL INDEX TO THE CASES CITED. KEN Keen, S. v. (34 Me. 500) i. 791, 1067 , U. S. i). (1 McLean, 429) i. 981-, 994, 1001, 1003, 1006 , U. S. V. (5 Mason, 453) i. 340 Keenaii u. C. (44 Pa. 55 ; 84 Am. D. 414) . 1. 409, 410 ; ii. 728 «. S. (8 Wis. 132) li. 731 , S. 17. (8 Rich. 456) ii. 1024, 1032 Keene, S. v. (26 Me. 33) ii. 1018, 1019, 1028 , U. S. V. (5 McLean, 509) ii. 904 Keener v. S. (18 Ga. 194 ; 63 Am. D. 269) i. 305, 849, 872 Keeper of Prison, C. v. (1 Ashm 140) , C. V. (2 Ashm. 227) i. 538; ii. 501 i. 321 ; ii. 641, 691, 727, 728 i. 1081, 1117 ii. 564 Keeran, S. v. (5 R. I. 497) Kegg V. S. (10 Ohio, 75) Keighley, Keg. v. (Dears. & B. 145) ii. 453 Keir v. Leeman (6 Q. B. 308) i. 711, 714 Keitli, C. V. (8 Met. 531) i. 974, 975, 1021 V. Goodwin (6 Jones, N. C. 398) i. 938 , Reg. t: (Dears. 486; 29 Eng. L. & Eq. 558; 6 Cox C. C. 5-33 ; 24 Law J. N. 8. M. C. 110 ; 1 Jur. N. 8. 454 ; 3 Com. Law, 692) ii. 561 V. S. (49 Ark. 439) i. 464 V. S. (5 Coldw. 36) i. 893 , S. V. (63 N. C. 140) i. 900, 904 V. Tuttle (28 Me. 326) i. 32 ; ii. 968 Keithler v. S. (10 Sm. & M. 192) i. 642, 669,-676 Keley v. S. (12 Tex. Ap. 245) u. 53 Keli, Rex v. (1 Crawf. & Dix C. C. 161) i. 998, 1032, 1037 Keller, Rex v. (2 Show. 289) i. 887 V. S. (61 Ind. Ill) ii. 420 V. S. (11 Md. 525; 69 Am. D. 226) i. 237 , U. S. V. (19 Fed. Rep. 633) ii. 662 a Kelley v. Dresser (11 Allen, 31) 1. 460 V. S. (53 Ind. 311) ii. 637 V. Story (6 Heisk. 202) i. 464 Kelliher, C. v. (12 Allen, 480) , i. 1080 Kellogg V. S. (26 Ohio St 15) ii. 800, 813 V. Union Company (12 Conn. 7) i. 174 Kelly, In re (59 N. Y. 695) . ii. 270 K. C.(l Grant, Pa. 484) i. 207, 409, 634; ii. 727, 728, 730, 1120, 11.36 V. C. (11 S. & R. 345) i. 343, 829 ; ii. 1273 , 0. V. (9 Philad. 586) i. 906 V. P. (6 Hun, 509) ii. 809 , V. P. (116 111. 583 ; 56 Am. R. 184) i- 966 P. V. (5 Abb. N. Cas. 383 ; 76 N. Y. 475) ii. 1269 , P. V. (88 CaL 145) , P. V. (33 Hun, 389) , P. V. (113 N. Y. 647) , Reg. V. (2 Car. & K. 379) , Reg. V. (2 Car. & K. 814) 155,178; il. 1023 1.213 ii. 704 1.649; ii. 1140 ii. 708 Kelly, Reg. o. (2 Cox C. C. 171) i. 630 , Rex V. (1 Crawf. & Dix C. C. 186) - i. 342, 735 , Rex V. (1 Crawf. & Dix C. C. 203) ii. 37, 1094 , Rex V. (Russ. & Ry. 421) i. 653 V. S. (7 Bax. 323) i. 1061 ; ii. 888 V. S. (3 Sm. & M. 618) i. 409, 412, 414 , S. V. (76 Me. 331; 49 Am 620) V. U. S. (27 Fed. Rep. 616) , U. S. V. (2 Sprague, 77) , U. S. V. (11 Wheat. 417) V. Winiberly (61 Missis. 548) Kelsey «. S. (62 Ga. 558) Kelsoe, S. v. (76 Mo. 505) Kemmler, In re (136 U. S. 436) , P. V. (119 N. Y. 580) i. Kemp V. C. (80 Va. 443) V. S. (11 Humph. 320) i. 263 V. S. (11 Tex. Ap. 174) , S. V. (17 Wis. 669) Kemper w. C. (86 Ky. 219; 7 St. 593) Kempf, S. V. (26 Mo. 429) R. i. 112 i. 1033 i. 564 i. 564 i. 464 i. 812 i. 1062 i. 946, 947 400, 947 i. 633 ; ii.797, 822 ii. 719 i. 1024 Am. i. 1029 ii. 1147 Kendall, P. v. (25 Wend. 399; 37 Am. D, 240) i. 369 ; ii. 437 V. Powers (4 Met. 553) i. 463 , Reg. ^. (12 Cox C. C. 598; 8 Eng. Rep. 609) ii. 864 w. S. (66 Ala. 492) i. 998 V. S. (8 Tex. Ap. 569) ii. 719 — - S. V. (73 Iowa, 255 ; 5 Am. St. 679) i. 731 V. U. S. (12 Pet. 524) i. 203 Keudrick v. S. (65 Missis. 436) i. 302, 874 , U. S. V. (2 Mason, 69) ii. 1023 Kenistou, C. o. (6 Pick. 420) i. 966 Kennard, C. v. (8 Pick. 133) i. 636, 857 ; ii. 520, 1012 Kennedy's Case (135 Mass. 48) i. 914, 915 Kennedy, In re (120 Pa. 497; 6 Am. St. 724) ii. 255 V. C. (14 Bush, 340) i. 869 , C. V. (119 Mass. 211) i. 891 o V. McArthur (5 Ala. 161) i. 264 V. P. (122 III. 649) i. 811 , Rex V (2 Leach, 788 ; 2 East P. C. 706) ii. 897 a. S. (34 Ohio St. 310) u. 416, 430 , S. «. (7 Blackf. 233) i. 805 , S. V. (20 Iowa, 569) i. 306, 843 , S. v. (16 Mo. Ap. 287) ii. 91 , S. V. (91 N. C 672) i. 850 , U. S. 8. (4 Wash. C. C. 91) i. 564 -^— V. Williams (87 N. C. 6) ii. 1267 Kenny v. P. (31 N. Y. 330) i. 400, 410 , Reg. V. (2 Q. B. D. 307 ; 13 Cox C. C. 397) ii. 1140, 1142 Kenrick, Reg. v. (5 Q. B. 49 ; Dav. & M. 208 ; 7 .Tur. 848) ii. 186, 188, 190, 193, 195, 198, 206, 211, 451, 483 757 KIM INDEX TO THE CASES CITED. KIN Kensey, C. v. (3 Pa. Law Jour. Rep. 233) "• 490 Kent, C. V. (6 Met. 221) ii. 288, 291, 294 , P. V. (6 Cal. 89) i. 821 , P. V. (1 Uoug. Midi. 42) ii. 785 , S. V. (22 Minn. 41 ; 21 Am. E. 764) "• 370 Kentucky v. Dennison (24 How. U. S. 6B) i. 617 a V. Ohio (24 How. U. S. 66) i. 180 Keogh, S. V. (13 La. An. 243) i. 1053 Kepler v. Klingensmilli (50 Ind. 434) i. 895 Keppele v. Williams (1 Dall. 29) ii. 253 Ker V. Mountain (1 Esp. 27) i. 301 Kercheval v. Triplet! (1 A. K. Mar. 493) ii- 137 Kerr, Reg. .;. (8 Car. & P. 176) ii. 882 V. Seaver (11 Allen, 161) i. 1080 Kerrains, P. «. (1 Thomp. & C. 333) ii. 740 Kerrigan, P. v. (73 Cal. 222) i. 384, 387 , Reg. f. (Leigh &C. 383) ii. 443 Kerrison, Rex v. (1 M. & S. 435) ii. 1281 Kerry v. S. (17 Tex. Ap. 178;- 60 Am. R. 122) i. 666 Kessal. Rex v. (1 Car. & P. 437) i. 870 Ketland v. The Cassius (2 Dall. 365) i. 32 Kew, Reg. v. (12 Cox C. C. .355; 4 Eng. Rep. 605) ii. 662 a Key, Reg. v. (2 Den. C. C. 347 ; 3 Car. & K. 371; 5 Cox C. C. 369; 8 Eng. L. & Eq. 584) i. 964 0. Vattier (1 Ohio, 132) i. 35, 331, 541 ; ii. 131, 132 Keyes, S. v. (8 Vt. 57; 30 Am. 1). 450) i. 468, 974 Keyn, Reg. v. (2 Ex. D. 63) i. 104 Keyser r. Coe (9 Blatch. 32; 37 Conn. 597) ' i. 148 V. Rodgers (50 Pa. 275) i. 272 , S. V. (56 Vt. 622) ii. 767 Keystone Bridge v. Summers (13 W. Va. 476) i. 265 Kibs V. P. (81 111. 699) ii. .328, 372 Kidder, G. v. (107 Mass. 188) i. 1143, 1144 Kielley v. Carson (4 Moore P. C. 63) ii. 249 Kilbourn v. S. (9 Conn. 560) i. 961 V Thompson (103 U. S. 168) ii. 247 Kilgore, S. v. (70 Mo. 546) ii. 728 Killiam, Reg. v. { Law Rep. 1 C. C. 261) ii. 477 Killian, C. v. (109 Mass. 346; 12 'Am. R. 714) i.531 Killman v. S. (2 Tex. Ap. 222; 28 Am. R. 432) i. 1085 Kilpatriek v. C. (31 Pa. 198) ii. 7U1, 712, 728 V. P. (5 Denio, 277) i. 538, 696 Kilty, S. K. (28 Minn. 421) ii. 1273 Kimball v. Boston (1 Allen, 417) ii. 334 , C. V. (7 Gray, 328) i. 1016 , S. V. (50 Me. 409) ii. 629, 557, 5H8 Kimberley, Rex v. (2 Stra. 848) i. 185 Kimble v. S. (12 Tex. Ap. 420) ii. 1173 Kimbrough ". S. (10 Humpli. 97) i, 424 Kimpton u. Eve (2 Ves. & B. 349) ii. 270 758 Kimpton ;;. London NorthweBtem Ry. (25 Eng. L. & Eq. 667) i. 32 ; ii. 252 Kincaid v. Meadows (3 Head, 188) ii. 137 Kinder, Rex v. (2 East P. C. 855) i. 572 ; ii. 686 Kindred, If. S. v. (4 Hughes C. C. 493) , ii. 1010 King, In re (8 Q. B. 129) ii. 264 V. C. (2 Va. Cas. 78) ii. 699, 701 , C. V. (9 Cush. 284) ii. 823 , C. u, (13 Met. 116) i. 631 ; ii. 1277 , C. i). (1 Whart. 448) i. 143 V. Kline (6 Pa. 318) i. 1080 ; ii. 773 V. P. (5 Hun, 297) i. 1013, 1015 . P. (83 N. Y. 687) i. 1085, 1087 96) , P. V. (27 Cal. 507 ; 87 Am. D. i. 409 i. 961 ii. 1028 ii. 1200 , P. V. (64 Cal. 338) V. Reg. (14 Q. B. 31) , Reg. V. (14 Cox C. C. 434) , Reg. V. (Dav. & M. 741 ; 7 Q. B. 782 ; 13 Law J. n. s. M. C. 118 ; 8 Jur. 662, s. c. in error ; 14 Law J. N. s. M. C. 172 ; 9 Jur. 833) ii. 200, 206, 210 , Reg. V. (7 Mod. 150) i. 672 ; ii. 629 , Reg. V. (1 Salk. 182) i. 955, 967 , Rex V. (Russ. & Ry 332) i. 642, 649 D. Sanders (2 Brev. Ill) i. 1081 V. S. (89 Ala. 43; 18 Am. St. 89) i. 466; ii. 1010 V. S. (21 Ga. 220) i. 648, 736 V. S. (5 How. Missis. 730) i. 795 V. S. (4 Tex. Ap. 64; 30 Am. R. 160) i. 736 ; ii. 36, 72 6 V. S. (27 Tex. Ap. 667 ; 11 Am. St. 203) ii. 533, 545 , S. V. (3 Ire. 411) ii. 1281 , S. V. (22 La. An. 454) i. 866 , S. V. (37 La. An. 662) ii. 116 , S. -. (74N. C. 177) ii. 518 , S. V. (86 N. C. 603) i. 300 , S. V. (98 N. C. 648) ii. 765, 784 King's Langley, Rex v. (1 Stra. 631) i. 368, 615 Kingen v. S. (45 Ind. 518) i. 850, 866 Kingman, P. v. (24 N. Y. 559) , ii. 1266, 1268 Kingsbury, C. v. (5 Mass. 106) i. 769, 812, 814; ii. 239 V. Ellis (4 Cush. 678) i. 714 Kingston's Case, Duchess of (1 Leach, 146) i. 937 Kinuston, Rex v. (8 East, 41) i, 424, 469 Kinlocli's Case (Foster, 16) i. 996, 998 Kinlock, Rex v. (1 Wils. 167) i. 998 Kinne v. Kinne (9 Conn. 102 ; 21 Am. D. 732) 1. 385 Kinnebrew v. S. (80 Ga. 232) i. 685 Kinnersley, Rex v. (1 Stra. 193) i. 7'10, 772 ; ii. 1112 , Rex V. (1 W. Bl. 294) i. 540 ; ii. 932 Kinney, C. v.. (2 Va. Cas. 139) i. 1067 ; ii. 1154 !). P. (108 111. 519) i. 844 KNE INDEX TO THE CASES CITED. KRO Kinney v. S. (38 Ala. 224) ii. 304 Kinninmount's Case (1 Hume Crim. Law, 2d ed. 517) il, 84 Kinsman v. S. (77 Ind. 132) ii. 985 Kinsolving v. Pierce (18 B. Monr. 782) ii. 137 Kiphart v. S. (42 Ind. 273) ii. 1149 Kirby, C. «. (2 Cush. 577) i. 303, 334 ; ii. 39, 50, 51 V. S. (7 Yerg. 259) ii. 745 , S. y. (1 Murph. 254) i. 498; ii. 80 , V. S. V. (7 Wal. 482) i. 33B Kirk, C. V. (9 Leigh, 627) i. 953, 1006 V. Lynd (106 U. S. 315) i. 833 V. Milwaukee Dust Col. Manuf. Co. (26 Fed. Rep. 501) ii. 268 , S. V. (10 Or. 505) i. 648 V. Striokwood (4 B. & Ad. 421) i. 713, 714 Kirkham, Reg. v. (8 Car. & P. 115) ii. 716 Kirkpatriuk, S. v. (32 Ark. 117) ii. 1023 Kirksey v. Fike (29 Ala. 206) ii. 792 Kirkwood, Rex v. (1 Moody, 304) i. 143, 650 ; ii. 609 Kirlandw. S. (43 Ind. 146; 13 Am. R. 386) ii. 28 Kirschner v. S. (9 Wis. 140) i. 976 Kiser v. Woods (60 Ind. 538) i. 141 Kistler v. S. (64 Ind. 371) ii. 1201 a Kit V. S. (11 Humph. 167) i. 653; ii. 1177 Kitchen, Rex v. (Russ. & Ry. 95) i. 758 Kitchener, Reg. v. (Law Rep. 2 C. C. 88 ; 12 Cox C. C. 522) ii. 1269 Kitchens, S. v. (2 Hill, S. C.612; 27 Am. D. 410) i. 951 Kite V. C. (11 Met. 581) i. 796, 953, 960 Kitson, Reg. v. (Dears. 187 ; 20 Eng. L. & Eq. 590) ii. 12 Kittery, S. v. (5 Greenl. 254) ii. 1267, 1281 Kittle, S. V. (2 Tyler, 471) i. 992, 1004 Kitton V. Fag (10 Mod. 288) i. 464 Kleim, P. v. (2 Edm. Sel. Cas. 18) i. 375, 384 Kliffield V. S. (4 How. Missis. 304) i. 355 Klingler v. Biokel (117 Pa. 326) i. 1150 Klintock, U. S. V. (5 Wheat. 144) i. 118, 566 ; ii; 1060, 1061 Klock V. Hudson (3 Johns. 375) ii. 137 V. P. (2 Par. Cr. 676) i. 1016 Klug V. S. (77 Ga. 734) ii. 968 Klum K. S. (1 Blackf. 377) i. 535 Knapp, C. V. (9 Pick. 496 ; 20 Am. D. 491) i. 653, 670,671,976 , C. V. (10 Pick. 477 ; 20 Am. D. 534) i. 667, 669 , S. V. (6 Conn. 415; 16 Am. D. 68) i. 531 ; ii. 1284 V. Thomas (39 Ohio St. 377 ; 48 Am. R. 462) i. 905, 906 Kneeland, 0. v. (20 Pick. 206; Thacher Crim. Cas. 346) i. 308, 428, 498; ii. 76, 80, 81, 82, 924 V. Milwaukee (15 Wis. 454) 1. 93 Knewland, Rex v. (2 Leach, 721 ) i. 558 ; ii. 1172, 1173 Knight's, Sir John, Case (3 Mod. 117; Comb. 38) i. 540 Knight, C. V. (12 Mass. 274; 7 Am. D. 72) ii. 1019, 1031, 1032 , Reg. V. (12 Cox C. C. 102; 2 Erg. Rep. 186) ii. 882 , Reg. V. (Leigh & C. 378; 9 Cox C. C. 437) ii. 888 , Rex V. (1 Car. & P. 116, n.) i. 358, 359, 361, 362 , Rex V. (2 East P. C. 510) i. 437, 559 ; ii. 110, 111, 851 , Rex V. (1 Salk. 375; 1 Ld. Baym. 527) i. 572, 748 V. Sawin (6 Greenl. 361) i. 641 ; ii. 127 V. S. (64 Missis. 802) i. 291 , S. 0. (2 Hayw. 109; Taylor, 65) i. 121, 152 , S. V. (84 N. C. 789) , ii. 1020 Knights, Reg. v. (2 Fost. & F. 46) ii. 686 Knock, Reg. v. (14 Cox C. C. 1) i. 842 Knote V. U. S. (10 Ct. CI. 397) i. 898, 904, 910 V. V. S. (95 U. S. 149) i. 898, 910 Knott, In re (71 Cal. 584) ii. 256 , S. w. (6 R. I. 293) i. 1117 Knotts, S. V. (2 Speers, 692 ; 42 Am. D, 395) i. 829 ; ii. 1273 Knouse, S. v. (29 Iowa, 118) i. 810, 998 Knowles v. S. (3 J>ay, 103) i. 504, 1125 , U. S. V. (4 Saw. 517) ii. 738 Knox, 0. V. (6 Mass. 76) i. 180 ; ii. 959, 960 , Rex V. (7 How. St. Tr. 763) ii. 215 , S. V. (Phillips, N. C. 812) ii. 1048 Knoxville v. Bird (12 Lea, 121; 47 Am. R. 326) i. 1151 Knutson a S. (14 Tex. Ap. 570) ii. 840 Koch, S. V. (4 Barring. Del. 570) ii. 789 Koenig v. Nott (2 Hilton, 323) i. 271 Koernerw. Oberly (66 Ind. 284; 26 Am. R. 34) " i. 266 Kohlheimer v. S. (39 Missis. 548 ; 77 Am. D. 689) i. 1021 Kohn, Reg. u. (4 Fost. & F. 68) i. 570 Kolb, P. V. (3 Abb. Ap. 529) i. 956 Koop V. P. (47 111. 327) ii. 962 KoslofE, C. V. (5 S. & B. 546) 1. 127, 129, 181, 196, 201 Kotovsky, S. u. (74 Mo. 247) i. 384 ; ii. 697, 710 Kramer v. Lott (50 Pa. 495 ; 88 Am. D. 556) ii. 505 Krause v. C. (93 Pa. 418 : 39 Am. R. 762) ii. 790 Kreamer v. S. (106 Ind. 192) i. 291, 302 Kreidler u. S. (24 Ohio St. 22) i. 468 Kreps, S. v. (8 Ala. 951) i. 1016, 1052 Kress v. S. (65 Ind. 106) i. 460 Kriel v. C. (5 Bush, 362) i. 401 ; ii. 680 Kring v. Missouri (107 U. S. 221) i. 279, , S. V. (11 Mo. Ap. 92) Kroeger, S. v. (47 Mo. 552) Kron V. Smith (96 N. C. 386) 759 280 i. 998 ii. 580 ii. 269 LAN INDEX TO THE OASES CITED. LAN Krueger v. Le Blanc (62 Mich. 70) ii. 1267 Krummer, P. v. (4 Par. Cr. 217) ii. 541, 546 Kuhlmann, S. v. (6 Mo. Ap. 587) ii. 1146 Kunclfle v. Kunckle (1 Dall. 364) ii, 256 V. S. (32 Ind. 220) i. 737, 749, 750, 762, 764, 867, 861 Kusnick, S. v. (45 Ohio St. 535) i. 567 Kyle V. Kosciusko (94 Ind. 115) ii. 1267, 1269 V. S. (10 Ala. 236) i. 697 ; ii. 1106 Lacefield v. S. (34 Ark. 276 ; 36 Am. K. 8) i. 736 La Coste, U. S. v. (2 Mason, 129) i. 664 Lad, Rex ». (1 Leach, 96) i. 116 Ladd, C. V. (15 Mass. 626) i. 572 ; ii. 629, 565, 602 Lafontaine, U. S. v. (4 Cranch C. C. 173) 1. 126 Lahy, C. v. (8 Gray, 459) i. 1065 Laird v. S. (61 Md. 309) ii. 640 La Jeune Eugenie (2 Mason, 409) i. 564, 821 Lake, P. v. (2 Par. Cr. 216) i. 396 . , S. V. (8 NeV. 276) ii. 1269 Lake View v. Rose Hill Cemetery (70 111. 191 ; 22 Am. E. 71) i. 1144 Lakeman, C. v. (4 Cush. 597) i. 536; ii.39, 500 Lakin v. Ames (10 Cush. 198) ii. 1188 Lallande v. Steamboat C. D. (1 Newb. Adm. 601) i. 1081 Lallement, Reg. ^. (9 Cox C. C. 204) i. 730 ; ii. 53, 740 Lamb's Case (9 Co. 59 6; Sir F. Moore, 813) ii. 918, 927 Case (2 East P. C. 664) ii. 882 Lamb v. P. (96 111. 73) i 633 a , P. w. (54 Barb. 342) i. 303, 865 , P. V. (17 Cal. 323) ii. 702 , S. V. (65 N. C. 419) ii. 560 Lambert, C. v. (12 Allen, 177) i. 1086 , C. V. (9 Leigh, 603) ii. 312 V. P. (7 Cow. 166 ; 9 Cow. 678) i. 592 ; ii. 122, 180, 198, 201, 209, 211 V. P. (76 N Y. 220) i. 464 , Reg. V. (2 Cox C. C. 309) ii. 374 , Rex V. (2 Camp. 398) i. 457 ; ii. 942 , S. w. (9Nev. 321) i. 1014 ; ii. 888 Lambier, P. v. (6 Denio, 9; 47 Am. D. 27.3) ii. 1267 Lamden v. S. (5 Humph. 83) ii. 1019, 1027 Lamkin v. P. (94 111. 801) i. 619 Lamon, S. ». (3 Hawks, 175) i. 997 Lamphere, In re (61 Mich. 105) i. 36, 963 Lamphier v. Worcester, &c. Rid. (33 N. H. 496) i. 266 Lanahan v. G. (84 Pa. 80) ii. 728 Lancashire, Rex v. (2 B. & Ad. 813) ii. 1281 Lancashire Justices, Rex v. (1 D. /& R. 486) u. 972 760 Lancaster's Case (1 Leon. 208) 5. 287 ; ii. 1262 Lancaster, Reg. v. (16 Cox C. 0. 737) i. 471 V. S. (53 Ala. 398; 26 Am. R. 626) ii. 304, 309 V. S. (2 Lea, 576) i. 413 ; ii. 740 , U. S. u. (2 McLean, 431) i. 196, 199, 622; ii.904 , U. S. V. (4 Wash. C. C. 64) i. 911 Lancaster Turnpike v. Rogers (2 Pa. St. 114; 44 Am. D. 179) i. 821, 828; ii. 1277 Lancton v. S. (14 Ga. 426) i. 998 LandafE, S. v. (2 Fost. N. H. 588) ii. 1267, 1281 Lander v. S. (12 Tex. 462) i. 843 Landgraf, S. v. (95 Mo. 97 ; 6 Am. St. 26) ii. 638, 728 Landin v. S. (10 Tex. Ap. 63) ii. 840 Landis, C. v. (8 Philad. 453) i. 600 Landreth, S. v. (2 Car. Law Repos. 446) i. 569 ; ii. 985, 996 Landringham v. S. (49 Ind. 186) ii. 192, 236 Lands, Reg. v. (Dears. 567; 33 Eng. L. & Eq. 536) i. 672 a Landsberg, U. S. v. (21 Blatch. 169 ; 23 Fed. Kep. 585) ii. 1032, 1053 6 Lane v. Ellzey (4 Hen. & Munf. 604) ii. 270 w. P. (5 Gilman, 305) i. 998, 1008; ii. 758, 838,' 882 V. Shears (1 Wend. 433) ii. 137, 139 V. S. (16 Tex. Ap. 172) ii. 996 V. S. (20 Vroom, 673) ii. .395 , S. V. (68 Iowa, 384) ii. 1137 , S. K. (4 Ire. 113) ii. 715 l^. Townsend (Ware, 286) i. 194 Lanergan v. P. (60 Barb. 266) i. 406 ; ii. 677 Laney, S. v. (87 N. C. 635) ii. 490, 604 Langabier v. Fairbury, &c. Rid. (64 111. 243 ; 16 Am. R. 550) ii. 968 Langdale v. P. (100 111. 263) ii. 533 Langdon, Ex parte (26 Vt. 680) ii. 256 -: — V. Potter (3 Mass. 215) ii. 490 Langdon Cheves, The (4 Wheat. 103) i. 821 Lange, Ex parte (18 Wal. 163) i. 990 V. Benedict (48 How. Pr. 465) i. 460, 462 V. Benedict (78 N. Y. 12; 29 Am. R. 80) i. 468 a Langford, Reg. v. (Car. & M. 602) i. 298 V. S. (8 Tex. 115) ii. 758, 789, 826 V. S. (9 Tex. Ap. 283) ii. 1014, 1024 Langley, Reg. v. (3 Salk. 190 ; 2 Ld. Raym. 1029 ; 6 Mod. 124) i. 470, 540 ; ii. 263, 812, 946 Rex ti. (2 Ld. Raym. 790) i. 706 Langsdale v. Bonton (12 Ind. 467) ii. 1274 Langston, S. v. (88 N. C. 692) ii. 952 Langton, P. v. (67 Cal. 427) i. 401 Lanham v. S. (7 Tex. Ap. 126) ii. 728 Lanier, S. v. (71 N. C. 288) ii. 3 Lankford v. Barrett (29 Ala. 700) 1. 271 LAW INDEX TO THE CASES CITED. LEE Lanmon v. Clark (4 McLean, 18) i 194 Lansing v. P. (67 111. 241) i. 4B8 V. Smith (4 Wend. 9, 21 Am. D. 89) 1. 265 Lantry, U. S. v. (30 Fed. Rep. 232) ii. 118 Lapeyre v. U. S. (17 Wal. 191) i. 904, 907 Lapier, Rex v. (1 Leach, 320 ; 2 East P. C. 557) i. 553, 582 ; ii. 795, 1167 Lara, Rex v. (2 Leach, 647 ; 2 East P. C. 819 ; 6 T. R. 565) i 571, 585 ; 11.147,204,472 Laresohe, S. u. (26 La. An. 26) i 468a,- ii 978 Larkin, S v. (49 N. H. 39) i 663 Larned v. C. (12 Met. 240) i. 810 Larner, Reg. v. (14 Cox C. C. 497) i. 214 ; ii. 458 Larney v. Cleveland (34 Ohio St. 599) i. 953 Larrieu, Rex u. (7 A. & E. 277) i. 256 Larson v. Furlong (63 Wis. 323) ii. 1272; 1285 , P. 0. (68 Cal. 18) i. 1021 Larurabo, S. u. (Harper, 183) i. 679, 1003 Larwood, Rex v. (3 Salk. 134; 1 Ld. Raym. 29) , i. 458 Lashus, S. V. (79 Me. 504) i. 963 I^asington's Case ( Cro. Eliz. 750) i. 680 Lassley, S. v. (7 Port. 526) i. 953 Latham, S. v. (13 Ire. 33) ,i, 595; ii. 773, 985 Lathrop v. Amherst Bank (9 Met. 489) i. 541; ii. 122, 126, 127, 128, 131, 132 , U. S. v (17 Johns. 4) i. 181 ; ii 1022 Lathrope v. S. (51 Ind. 192) i. 892 Latimer, Ex parte (47 Cal. 131 ) ii. 263 , Reg. V, (17 Q. B. D. 359; 16 Cox C. C. 70) 1. 7-36 Latorre, U S. v. (8 Blatch. 134) i 572a Laugher, Reg. !'. (2 Car. & K. 225) i. 359 Laughlin, S. v. (8 Jones, N. C. 455) ii. 17 Lauglin, S. v. (8 Jones, N. C. 354) ii 16 Laura, Tlie (114 U. S. 411) 1.910 Laurens, The (1 Ahb. Adm. 508) ii. 262 Lavalley, S. v (9 Mi880.834) ii. 1028,1032 La Vaul ». S. (40 Ala. 44) i 141 Lavender, Rex v. (2 East P. C. 566) ii. 836 Laver v McGlachlin (28 Wis. 364) i. 464 Lavey, Rex v. (1 East P. C. 166; 1 Leach, 153) ii- 292 Lavinia, S. v. (25 Ga. 311) i 990 Law, Ex parte (35 Ga. 285) i. 65, 904 V. C. (75 Va. 885; 40 Am. R. 750) i 368 , Reg. V. (2 Fost & F, 836) i. 392 Lawless, C. w (101 Mass. 32) ii. 564 , C. V. (103 Mass. 425) ii. 812 V S. (4 Lea, 17*) i. 1014 Lawrence v. Buck (62 Me. 275) ii. 881 , Rex V. (4 Car. & P. 231) ii. 99 V. Spence (29 Hun, 169) i. 271 V. S. (1 Humph. 228; 34 Am. n 644) ii. 758, 879, 880 V. S. (11 Tex Ap. 306) ii. 840 , S. V. (57 Me. 574) i. 376, 384 Lawrence, S. v. (45 Mo. 492) Ii. 404 Lawry, S. v. (4 Nev. 161) ii, 72 6 Laws V. Eltringham (8 Q. B. D. 283; 15 Cox C. C. 22) ii. 986 0. S. (26 Tex. Ap. 643) i. 875 Lawson, P. v. (17 Johns. 277) ii. 1267 , Reg. K. (1 Q. B. 486 ; 1 Gale & D. 16; 5 Jur. 387) i 247,256 , S. V. (98 N. C. 769) ii, 1030 Lawton, P. y. ( 56 Barb. 126) i. 727 ; ii. 1 19 a V. S. (30 Ala. 14) ii. 23, 31 V. Steele (119 N. Y. 226) i. 516 Lawyer v. Smith (1 Denio, 207) i. 990, 993 Layer's Case (16 How. St. Tr. 93) ii. 1213 Layman, S. b. (8 Blackf. 330) ii. 416, 484 , S. V. (5 Harring. Del. 510) i. 1135, 1136, 11.37 Layne v. S. (4 Lea, 199) ^ ii. 305 Layton v. Harris (3 Harring. Del. 406) ii. 908 i. 1065 S. V. (26 Iowa, 193) Lazarus, S. v. (1 Mill, 33) i. 586, 857, 859, 861, 875 Lea, Rex v. (2 Moody, 9) , S. V. (3 Ala. 602) Leach, In re (51 Vt. 630) -, C.v.n Mass. 59) i. 993 ii. 1040, 1046 ii. 244 i. 569; ii. 985 V. P. (122 111. 420) i. 464, 464 a V. Smith (25 Ark. 246) i. 14 , S. V. (60 Me. 58; 11 Am. R. 172) i. 32;ii. 982 , S. V. (50 Mo 535) i 1090 Leafe, Rex v. (Andr. 226) i. 470; ii. 946 Leak's Case (12 Co. 15) ii. 526 Leak, S. w. (5 Ind. 369) i. 906 , S.ij. (Phillips, N. C. 450) ii. 664 Leake, Rex v. (2 Nev. & M. 583 ; 5 B. & Ad. 469) ii. 1267, 1281 Leal V. S. (12 Tex. Ap. 279) ii. 1140 Learnard, S. u. (41 Vt. 585) i. 367, 368 Leary, Reg. y. (3 Crawf. &Dix C. C. 212) i. 1032, 1033 Leath, C. v. (1 Va. Cas. 151) i. 983 Leathers, S. v. (31 Ark. 44) ii. 504 , U. S. y. (6 Saw. 17) i. 300 Leavensworth v. Tomlinson (1 Root, 436) i. 32 Leavitt, S. v. (32 Me. 183) i 792, 812 Le Blanc, S.K. (1 Tread. 354) ii. 1131, 1132 Le Blanch, S. v. (2 Vroom, 82) i. 141 Ledbitter, Rex v. (1 Moody, 76) ii. 414, 468 Leddington, Reg. v. (9 Car. & P. 79) i 510, 6.52, 756 ; ii. 1187 Ledford, S. v. (3 Misso. 102) ii. 54 , S. V. (67 N. C. 60) ii. 842' Ledger, Reg. v. (2 Fost. & F. 857) ii. 662 a Ledgingham, Rex v. (1 Vent. 97) i. 1038 Lediard, Rex v. (Say. 242) i. 460; ii. 973 Ledlingham, Rex v. (Trem. P. C. 224) i 538 Lee, Ex parte (7 Jur. 541) i. 247 , C. V. (149 Mass. 179) ii. 426 V Gansel (Cowp. 1) i. 975 V. Gansell (Lofft, 274) i. 975 761 LEN INDEX TO THE CASES CITED. LEW Lee V. Murphy (22 Grat. 789; 12 Am. R. 5B3) 1 915 V. Newkirk (18 111. 550) i. 821 , F. v. {1 Wheeler Crim. Cas. 364) ii- 28 , Reg. V. (8 Cox C. C. 2.33) ii. 464 , Reg. V. (4 Fost. & F. 63) i. 687 ; ii, 657 , Reg. V. (Leigh & 0. 309) ii 425 , Reg. u. (Leigh & C. 418) ii. 443, 453 , Rex V. (6 Car. & P. 536) i. 642, 695 , Rex V. (stated Cas. temp. Hardw. 371) i. 204 , Rex V. (6 Esp. 123) i. 468 ; ii. 916 , Rex w. (1 Leach, 51) ii. 1181 V. Risdom (7 Taunt. 188) ii. 766 V. S. (26 Ark. ^60 ; 7 Am. R. 611) i. 1013, 1015, 1016, 1032, 10.33 B. S. (1 Coldw. 62) ii. 656J V. S. (64 Ga. 203 ; 37 Am. R. 67) i. 141 , S. w. (32 Kan. 360) ii. 560 , S. V. (29 Minn. 445) i. 1029 , S. V. (10 R. I. 494) i. 990 , U. S. V. (2 Cranuh C. C. 104) ii. 1202 Leech, Reg. v. (6 Mod. 145) i. 531 ; ii. 1276 , Rex u. (3 Stark. 70) ii. 345 V. Waugh (24 111. 228) i. 934, 948 Leeds, C. v. (9 Pliilad. 569) ii. 220 Leedy, S. v. (95 Mo. 76) ii. 901 Leeman v. S. (35 Ark. 438 ; 37 Am. R. 44) i 299 Leeper, S. «. (70 Iowa, 748) ii. 691 Lefroy, Reg. v. (Law Rep. 8 Q. B. 134) ii. 263 Legg, Rex v. (J. Kel. 27) ii. 677, 695, 712 Leggett, Reg. v. (8 Car. & P. 191) i. 303 V. Simmons (7 Sm. & M. 348) i. 631 Leginham, Rex v. (1 Mod. 71) i. 237, 538 Lehre, S. v. (2 Brev. 446 ; 2 Tread. 809 ; 4 Am. D. 596) i, 591 ; ii. 918 Leigh, Reg. v. (4 Fost. & F. 915) i. 387 , Rex !.. (2 East P. C. 694; 1 Leach, 411, n.) i. 207 ; ii. 801, 837 , S. V. (3 Dev. & Bat. 127) i. 459, 721 ; ii. 972, 974 Leighton v. P. (88 N. Y. 117) ii. 677 , S. V. (3 Fost. N. H. 167) i. 1137 , S. V. (35 Me. 195) ii, 306 Leitensdorfer v. Webb (20 How. U. S. 176) Leith, P. ,;. (52 Cal. 251) Le Louis, The (2 Dods. 210) Lemasters v. S. (95 Ind. 367) Lemon w. S. (19 Ark. 171) Leng, Reg. v. (1 Fost. & F, 77) Lennard, Rex v. (2 W, BI. 807 ; Leach, 90 ; 1 East P. C. 170) i. 14 i, 633 a i. 124 ii. 572 ii. 994 i.'963 1 i, 204 ; ii. 288 Lennon, P. v. (71 Mich. 298 ; 15 Am. St. 259) i. 305 Lenoir Justices, S. v. (4 Hawks, 194) i. 237 ; ii. 972, 974 Lenox v. Grant (8 Misso. 254) i. 462 Lenthal, Rex v. (3 Mod. 143) i. 218 Lentz V. Stroh (6 S. & R. 34) ii, 773 762 Leonard u. Bosworth (4 Conn. 421) ii. 139, ,140 , P. V. (11 Johns. 504) i. 536 ; ii. 601 , Reg. V. (1 Den. C. C. 304; 3 Cox C. C. 284 ; 2 Car. & K. 514) ii. 442 V. S. (66 Ala. 461) i 844 V. S. (77 Ga. 764) i. 648 V. S. (7 Tex. Ap. 417) ii. 359 a V. S. (20 Tex. Ap. 442) ii, 1156 V. S. (27 Tex. Ap. 186) i, 891 , S, V (6 Coldw, 307) Ii, 373, 376 V. Wilkins (9 Johns. 233) i. 1080 Leonardo v. Territory (1 New Max. 291) ii. 1138 Leppard, Reg, v. (4 Fost. & F, 51) ii. 869 Lesingham, Rex v. (T. Raym. 205) i. 235, 538 Leslie v. Lewiston (62 Me. 468) ii. 964 , S. V. (30 Minn. 533) ii 1267 Lesser v. P. (73 N. Y. 78) ii, 430 Lessing, S. v, (16 Minn. 75) i, 1006; ii. 723 Lester, C. u. (129 Mass. 101) ii. 901, 902 , C. V. (2 Va. Cas. 198) i. 617; ii. 1004, 1008 V. S. (33 Ga. 329) • i, 1033 Le Tigre, Case of (3 Wash. C. C. 667) i. 206, 287, 823 Leunig, S. v. (42 Ind. 541) i, 1013, 1026, 1035, 1041 Levells v. S, (32 Ark. 585) i. 844 Levett's Case( stated Cro. Car. 538) i, 303 a Levett, Rex v. (Cro. Car. 538) i. 303 Levi V. Levi (6 Car. & P. 239) ii. 198, 216 V. S. (14 Neb. 1) ii. 1141 Levigne, S. v. (17 Nev. 435) ii. 699 Levine, Reg. v. (10 Cox C. C. 374) ii. 198 Levison v. Krohne (30 Tex. 714) i. 14 , P. V. (16 Cal. 98; 76 Am. D. 505) ii, 1138 Levy V. Edwards (1 Car. & P. 40) ii. 248 , Rex V. (4 Car. & P. 241) ii. 867 V. S, (79 Ala. 259) ii, 812 V. S, (6 Ind, 281) i. 1068 V. S. (28 Tex. Ap. 203; 19 Am. St. 826) ii. 702, 704 , S. V. (28 Minn. 104; 23 Am. R. 678) ii. 882 Lewer v. C. (16 S. & R. 93) i. 588 ; ii. 809, 811, 813 Lewis V. Arnold (4 Car. & P: 854) ii. 308 V. Bell (17 How. U. S. 616) ii. 134, 140 - -^ ■ — i. 894 ■ V. C. (3 teush, ,539) ■ V. C. (2 S. & R. 651) i, 143, 942 ; ii. 148, 609, 610 i, 279 i. 218 857, 363, 1084 , C. V. (6 Binn. 266) , C. V. (4 Leigh, 664) , C. V. (1 Met. rei) V. Garrett (5 How. Missis. 434) ii. 269 V. Levy (Ellis, H. & E. 537) ii. 916 !• New York Central Rid. (49 Barb. 330) ii. 892 , Pennsylvania v. (Addison, 279) ii. 657, 658, 671, 690 , P. „. (3 Abb. Ap. 586) ii. 714 UN INDEX TO THE CASES CITED. LIV Lewis, P. .;. (36 Cal. 531) i 400 , P. «. (64 Cal. 401) i, 961 , Reg. V. (1 Car. & K. 419) i. 260, 809 , Rag. V. (9 Car. & V. 523) i. 758, 762; ii. 991 , Reg. u. (11 Cox C. C. 404) ii. 206 , Eeg. V. (Dears, & B. 182; 7 Cox C. C. 277) i. 112. 121 , Rex V. (2 Car. & P. 628) ii. 91 , Rex V. (6 Car. & P. 161) i. 328, 735; ii. 740 , Rex V. (2 East P. C. 957 ; Fos- ■ ter, 116) i. 572; ii. 529 , Rex V. (1 Moody, 372) i. 939 , Rex V. (Say. 205) i. 582 ; ii. 145 0. S. (30 Ala. 54; 68 Am. T>. 11:3) ii. 1120, 1122 V. S. (35 Ala. 380) i. 733 V. S. (51 Ala. 1) i. 842 V. S. (16 Conn. 32) i. 559; ii. 101 V. S. (72 Ga. 164 ; 53 Am. R. 835) ii. 686 V. S. (3 Head, 127) ii. 728 V. S; (41 Missis. 686) i. 894 i>. S. (1 Tex. Ap. 323) ii. 745 V. S. (15 Tex. Ap. 647) ii. 677, 728 , S. u. (2 Hawks, 98; 11 Am. D. 741) i. 1063; ii. 1182. , S. V. (10 Kan. 157) ii. 1028, 1039 a , S. V. (22 La. An. 33) i. 464 , S. V. (74 Mo. 222) ii. 728 Lexington Av., In re (92 N. Y. 629) ii. 1267 Leyraan v. Latimer (3 Ex. D. 15, 352; 13 Cox C. C. 632; 14 lb. 51) i. 898 Lihbey, C. 1/. (11 Met. 64; 45 Am. D. 185) i. 567 ; ii. 341, 870 Libby v. Niuola (21 Oliio St. 414) i, 909, 910 914 916 y^U. S. (1 Woodb. & M. 221) i! 564 Libellis Famosis, Case de (5 Co. 125 a) i, 719; ii. 907, 909, 918, 939, 948 Liddle v. Hodges (2 Bosw. 537) ii. 914 , U. S. V. (2 Wash. C. C. 205) i. 127, 334; ii. 37, 51 Lieb, P. V. (85 111. 484) i. 464 Ligan v. S. (3 Heisk. 159) i. 947 Lightner, P. v. (49 Cal. 226) i. 1034 Likes w. Dike (17 Ohio, 454) ii. 38 Lilienthal v. U. S. (97 U. S. 237) i. 32 Lillard v. McGee (3 J. J. Mar. 549) ii. 140 V. S. (17 Tex. Ap. 114) 1. 946, 947 Lilley, P. v. (43 Mich. 621) i. 208 a, 548 ; ii 32 Lilly, P. V. (38 Mich. 270) i 305 V S. (20 Tex. Ap. 1) i.- 876 Lince, Reg. v. (12 Cox C. C. 451 ; 6 Eng. Rep. 314) ii. 461 Lincoln, C. «. (11 Allen, 233) ii. 426, 444 V. Shaw (17 Mass. 410) i.294; ii. 399, 404 Linde, S. v. (54 Iowa, 139) i. 594 LindenrauUer v. P. (33 Barb. 548) ii. 951 Lindenthall, S. v. (5 Rich. 237; 57 Am. D. 743) i. 583 ; ii. 809, 813 Lindsay v. C. (2 Va Cas. .345) i. 1014 V. Cundy (2 Q. B. D. 96 ; 13 Cox C. C. 583) ii. 414 , U. S. ... (1 Cranch C. C. 245) i. 1113, 1115 Lindsey, C. v. (10 Mass. 153) ii. 118 V. Lindsey (45 Ind. 552) i 819 a Lindzey v. S. (66 Missis. 642 ; 7 Am. St. 674) i 279 Lines, Reg. c. (1 Car. & K. 393) ii. 1132, 1133 Linford v. Fitzroy (13 Q. B. 240 ; 3 New Sess. Cas. 438) i. 299, 460 Lingo V. S. (29 Ga. 470) i. 306, 850 Lining u. Bentham (2 Bay, 1) i. 299, 460, 462 ; ii. 244, 263, 972 Link V. S. (3 Heisk. 252) i 1029 a Linkhaw, S. v. (69 N. C. 214; 12 Am. R. 646) ii. 310 Linn v. C. (96 Pa. 285) ii. 1027 Linney v. S. (6 Tex. 1 ; 55 Am. D. 756) ii. 995 ,S.!;. (52 Mo. 40) ii. 702 Linthicum, S. ". (68 Mo. 66) i. 623 ; ii. 1200 Linton, C. «. (2 Va. Cas. 476) i. 572 ; ii. 529, 538 Lipe V. Mitchell (2 Yerg. 400) ii. 139 Lippman v. South Bend (84 Ind. 276) i. 11.38 Lisle's Case (.7. Kel. 89) i 795 Lisle V. S. (6 Misso. 426) i. 997 Lissner v. S. (84 Ga. 669 ; 20 Am. 37 ii. 504 ii. 60 ii. 376 1.865 i. 1004 i. 306 i. 974 ii. 812 St. 389) Lister, C. n. (15 Philad. 405) , Reg. V. (Dears. & B. 118 Eng. L. & Eq. 600) V. S. (3 Tex. Ap. 17) Liston, S. V. (9 Humph. 603) 1. 246, 471 Litchfield, Rex v. (2 Stra. 1023) i. 507 Lithgow V. C. (2 Va. Cas. 297) Little V. Barreme (2 Cranch, 170) V. Gibson (.39 N. H. 505) , Reg. V. (10 Cox C. C. 559) , S. V. (1 N. H. 267) i. 438, 671, 1010 Little Charles, U. S. w. (1 Brock. 347) i. 821, 826 Little Miami Rid. v. Greene (31 Ohio St. 338) ii. 1267 Little Rock, &c. Rid. v. Brooks (39 Ark. 403; 43 Am. R. 277) i, 265 Littlechild, Reg. v. (Law Kep. 6 Q. B. 293) i. 955 Littlefield, S. ... (70 Me. 452; 35 Am. R. 335) i. 1059 Littlejohn o. S. (59 Missis. 273) ii. 842 Littler o. Thomson (2 Beav. 129) ii 259 Littleton v. Dudley (5 Co. 47) i. 908 Litton, C. V. (6 Grat. 691) il 1024 Livermore v. White (74 Me. 462 ; 43 Am. R. 600) ii. 878 Liverpool, Mayor of (8 Ellis & B. 637) i. 1079 763 LON INDEX TO THE CASES CITED. LOU Livingston v. C. (14 Grat. 592) i. 1004 ; ii. 639 V. Fitzgerald (2 Barb. 396) ii. 256 V. Indianapolis Ins. Co. (6 Blackf. 133) ii. 1262 «. New York (8 Wend. 86) i. 981 V. Van Ingen (9 Johns. 507) i. 173 Llewellyn, Reg. v. (IB Q. B. D 681) i. 1079 Lloyd V. Oliver (18 Q. B. 471) ii. 562 , Reg. V. (19 Q. B. D. 213; 16 Cox C. C. 235) i. 572 a ; ii. 1020 , Rex V. (7 Car. & P. 318) ii. 113B , Rex V. (4 Esp. 200) i. 244 , S. V. (85 N. C. 573) ii. 519 Lock, Reg. V. (Law Rep. 2 C. C. 10 ; 12 Cox C. C. 244) ii. 36, 1122, 1124, 1195 Locke V. Dane (9 Mass. 360) V. New Orleans (4 Wal. 172) Locker, Rex v. (5 Esp. 107) Lockett, Rex v. (7 Car. & P. 300) i, 279 i. 279, 281 ii. 187 i. 516, 630, 653 , Rex V, (1 Leach, 94 ; 2 East P. C. 940) ii. 560 V. S. (63 Ala. 5) ii. 15 Loekhartw. S. (lOTex 275) i. 1137 V. Troy (48 Ala. 579) i. 464 Lockley, Reg. v. (4 Fost. & F. 155) ii. 652, 653 Lockwood, C. V. (109 Mass. 323 ; 12 Am. R. 699) i. 899. 903 !>. S. (1 Ind. 161) ii. 268 Lockyer v. Offley (1 T. R. 252) i. 821, 822 ' ■ ~ — ~ — i 658 i. 384 ; ii 728 i 932 ii. 960 ii. 740 i 844 i. 1004 ii. 1144 ii. 394 Loebw. S. (75 Ga. 258) LoefEner v. S. (10 Ohio St. 598) Logan's Case (5 Grat. 692) Logan V. Mathews (6 Pa. 417) V. S. (2 Lea, 222) V. S. (17 Tex. Ap. 50) Logg V. P. (8 Bradw. 99) y. P. (92 111. ^98) Loggen, Rex v. (1 Stra. 73) Logue V. C. (38 Pa. 265 ; 80 Am. D, 48) i. 305 Lohman o. P. (1 Comst. 379 ; 49 Am. D. 340) i. 791, 810, 812, 1057 ; ii. 740, 745 ■ , P. V. (2 Barb. 216) i 810 Lombard, P. v. (17 Cal. 816) i. 850 Lonas v. S. (3 Heisk. 287) i. 894 London u. Headen (76 N. C, 72) i 458 , Reg. V. (12 Cox C. C. 50) ii. 1034 Lone, Rex v. (2 Stra. 920) i. 246 Long V. Home (1 Car. & P. 610) i 301 , P. V. (39 Cal. 694) ii. 723, 727, 728 ■ , P. V. (50 Mich. 249) ii. 790 , Rex«, (4 Car. & P. 398) i. 217, 314, 558 ; ii. 664 V. Rogers (17 Ala. 540) i. 648 ; ii. 26, 56 V. S. (11 Fla. 295) ii. 842 ' V. S. (12 Ga. 293) i. 207, 721 ; ii. 1156, 1170, 1172, 1173, 1174 764 Long V. S. (38 Ga. 491) «. S. (46 Ind. 682) V. S. (1 Swan, Tenn. 287) V. S. (34 Tex. 566) V. S. (36 Tex. 6) , S. V. (76 N. C. 254) , S. L'. (81 N C. 563) , S. V. (93 N. C. 542) , S. V. (94 N. C. 896) ii. 745 ii. 740 U 700 a .-. ii. 485 ii. 740 i. 960, 961 i. 464 ii. 1281 ii. 1119, 1136 ii. 1266, 1267, 1269 Longbottom, Reg. v. (3 Cox C. C. 439 ; 7 Law Reporter, n. s. 379) i. 257 Longden, Rex v. (Russ. & By. 228) i. 536, 859 ; ii. 699 Longley, S. v. (79 Me. 52) i. 965 Longstreeth, Rex v. (1 Moody, 137) i. 883 ; ii. 822, 826 Lonsdale, Reg. v. (2 Cox C. C. 222) ii. 560 Loomis V. Cline (4 Barb. 453) i. 714 V. Edgerton (19 Wend. 419) i. 569 ; ii. 985 V. P. (67 N. Y. 322 ; 23 Am. R. 128) ii. 813 , P. V. (4 Denio, 380) i. 224 ; ii. 785, 787 , S. V. (27 Minn. 521) ii. 786 Looney w. S. (10 Tex. Ap. 520; 38 Am. R. 646) ' i. 388 Loop V. Gould (17 Hun, 585) ii. 253 Looper, S. w (14 Ricii. 92) ii. 745 Loper V. S. (3 How. Missis. 429) i. 997 , S. V. (Ga. Becis. Part II. 33) i. 135 Lopez, Reg. v. (Dears. & B. 625) i. 117 , S. V. (15 Nev. 407) • ii. 728 Lord V. S. (16 N. H. 326; 41 Am.D. 729) i. 1135 Lord Wellington, The (2 Gallis. 103) i. 821 Lore V. S. (4 Ala. 173) i. 1031 Loring, C. !». (8 Pick. 370) ii. 1190 Lorman v. Clarke (2 McLean, 668) i. 194| 196 Lorton v. S. (7 Misso. 55; 37 Am. D. 179) i. 778, 793, 1061 ; ii. 888 Lorway v. Lousada (1 Low. 77) i. 129 Lessen v. S. (62 Ind. 437) ii. 520 a Lott V. Barrel (2 Mill, 167) ii. 253 V. S. (9 Tex. Ap. 206) i. 594 Loud, C. V. (3 Met. 328; 37 Am. D. 139) i. 1010, 1021, 1023 Loudon, S. V. (3 Head, 263) ii. 1267, 1277, 1281 Loughran, Reg. v. (1 Crawf. & Dix C. C. 79) i. 468, 715 Loughridge, P. w. (1 Neb. 11 ; 93 Am. D. 325) i. 141 V. S. (6 Misso. 594) i. 670 Louisville v. Roupe (6 B. Monr. 691) i. 622 Louisville, &c. Canal v. Murphy (9 Bush, 522) i. 372 Louisville and Nashville Rid. v. Davidson (1 Sneed, 637 ; 62 Am. D. 424) i. 169 Louisville, &c. Rid. u. Blair (1 Tenn. Ch. 851) i. 317 LUK INDEX TO THE CASES CITED. MAB Louisville, &c. Eld. v. C. (13 Bush, 388; 26 Am. E. 205) i. 419 V. C. (80 Ky. 143 ; 44 Am. E. 468) ii. 1278 , C, V. (80 Ky. 291; 44 Am. B. 475) ii. 959, 960 V. S. (3 Head, 523 ; 75 Am. D. 778) i. 420 ; ii. 1278 Louisville, &o. Ey., S.v. (86 Ind. 114) ii. 1278 Lovel, Eex i). (2 Moody & R. 39) i. 441, 758 Lovelace's Case (Comb. 260) ii. 514 Lovell, Reg. v. (8 Q. B. D. 185) ii. 807 Lovett, C. V. (4 Pa. Law Jour. Rep. 5) i. 540, 1122 , Reg. ... (9 Car. & P. 462) i. 457, 540, 734; ii. 922 V. S. (19 Tex. 174) ii. 886 , S. V. (3 Vt. 110) i. 467 ; ii. 1011 Low, C. V. (3 Pick. 408) i. 245 ; ii. 1267 , C. V. (Thacher Crim. Cas. 477) ii. 805 V. Hutchinson (.37 Me. 196) ii. 135 V. Knowlton (26 Me. 128 ; 45 Am. D. 100) i. 265, 828 V. P. <2 Par. Cr. 37) ii. 785, 786 , Reg. J>. (lOCoxC. C. 168) ii. 824 Lowe V. C. (3 Met. Ky. 237) i. 971 a , Reg. V. (3 Car. & K. 123 ; 4 Cox C. C. 449 ; 7 Law Reporter, n. a. 375 ; 1 Ben. & H. Lead. Cas. 49) i. 217, 317 ; ii. 659 V. S. (57 Ga. 171) i. 1061 V. S. (9 Ohio St. 337) ii. 252 Lowenstein v. P. (54 Barb. 299) i. 685, 1094 Lowenthal v. S. (32 Ala. 589) ii. .328. 367 Lowery v. S. (72 Ga. 649) i. 6.33 V. S. (30 Tex. 402) ii. 190 Lowrie v. Plitt (11 Philad. 303) ii, 1190 , Reg. V. (Law Rep. 1 C. C. 61 ; 10 Cox C. C. 388) ii. 785 Lowry v. Rainwater (70 Mo. 152; 35 Am. R. 420) i. 833 , S. «. (1 Swan, Tenn. 34) i. 1010 , U. S. V. (2 Wash. C. C. 169) i. 467 Lows V. Telford (1 Ap. Cas. 414 ; 13 Cox C. C. 226) ii. 501 Loyd V. S. (42 Ga. 221) i. 695, 699, 700 V. S. (45 Ga. 57) i. 384, 387, 391, 667, 668 V. S. (19 Tex. Ap. 137) ii. 1104, 1106 K. S. (19 Tex. Ap. 321) i. 428 Luby V. C. (12 Bush, 1) i. 869 Lucas, C. V. (2 Allen, 170) 1. 653, 654 0. Pico (55 Cal. 126) ii. 66 a , S. V. (55 Iowa, 321) i. 634 Luck, Eeg. V. (3 Fost. & F. 488) i 634 Luckey v. 8. (14 Tex. 400) ii. 1104 Luckis, C. V. (99 Mass. 431 ; 96 Am. D. 769) ii. 795 Luckness, C. v. (14 Philad. 363) i. 1-30 Lucy, Eeg. v. (Car. & M. 5ll) i. 298 Ludwig, S. u. (70 Mo. 412) i. 652; ii. 1187 Luellin, Rex v. (12 Mod. 445) i. 532 Luke V. S. (49 Ala. 30 ; 20 Am. E. 269) ii 15 Lukins, U. S. v. (3 Wash. C. C. 335) i. 465 Lumaden, U. H. v. (I Bond, 5) i. 482 Lundy v. S. (60 Ga. 143) ii. 797 Lunn, S. v. (49 Mo. 90) i. 536 Lunsford v. Dietrich (86 Ala. 250 ; 11 Am. St. 37) ii. 852 , S. V. (81 N. C. 528) ii. 748 Lurch, S. 0. (12 Or. 95) ii. 417, 430 , S. V. (12 Or. 99) ii. 598 Lusk V. S. (64 Missis. 845) ii. 14 , S. V. (68 Ind. 264) ii. 304 Luter V. Hunter (30 Tex. 688; 98 Am. D. 494) i. 14 Luther v. Borden (7 How. TJ. S. 1) i. 45, 48, 61, 153, 162, 166, 168 V. Fowler (1 Grant, Pa. 176) i. 821 , S. . (14N. H. 364) i. 1052 V. Williford (2 Swan, Tenn. 642) ii. 137 McCreary v. S. (29 Pa. 323) 1. 1033 McCredie v. Senior (4 Paige, 378) il. 256 McCroskey v. S. (2 Coldw. 178) ii. 741 MAC INDEX TO THE CASES CITED. MCQ McCroskey, S. v. (3 McCord, 308) ii. 1020, 1026 McCue, C. V. (16 Gray, 226) i. 464 McCulloch, C. V. (15 Mass. 227) i. 541, 588 ; ii. 65, 66 V. Maryland (4 Wheat. 316) i. 185 McCuUey v. S. (62 Ind, 428) ii. 72 McCune, S. «. (5 B. I. 60; 70 Am. D. 176) ii. 1167, 1179 a MeCutcbeon v. P. (69 111. 601) i. 892 MdDaniel's Case (Foster, 121) i. 677 (19 How. St. Tr. 745) ii. 793, 1174 MoDaniel v. Coleman (14 Ark. 545) i. 1003 , Kex V. (1 Leach, 44) i. 564; ii. 219 V. S. (27 Ga. 197) i. 713 V. S. (8 Sm. & M. 401 ; 47 Am. D. 93) i. 305, 342, 536, 857, 862 ; ii. 706, 758, 801, 843, 851, 1174 V. S. (33 Tex. 419) ii. 842 V. S, (5 Tex. Ap. 475) i. 368, 881 a , S. «. (1 Houst. Crim. 506) i. 891 a , S. V. (41 Tex. 229) i. 668 , S. V. (Wiiist i. 249) i. 732; ii. 112 Mc Daniels, P. u. (1 Par. Cr. 198) i. 553; ii. 1172 MeDermod, Rex v. (Jebb, 118) ii. 1200 MeDermott, P. u. (8 Cal. 288) ii. 1041 0. S. (89 Ind. 187) i. 8B5 McDonald's Case (1 Broun, 238) . i. 303 McDonald, Ex parte (2 Whart. 440) i. 910 , C. V. (5 Cush. 365) i. 743 , C. V. (110 Mass. 405) ii. 1122 «. P. (47 111. 533) ii. 12 , P. V. (9 Mich. 150) i. 795; ii. 1133, 1136 ii. 789 ii. 341 , P. V. (43 N. Y. 61) , Reg. V. (Leigh & C. 85) , Reg. V. (15 Q. B. D. 323; 15 Cox C. C. 757) ii. 863 , Reg. V. (12 U. C. Q. B. 543) ii. 561 —^, Rex V. (3 Bur. 1645) i. 504, 1121 V. S. (8 Misso. 283) i. 578 ; ii. 785, 786 , S. V. (3 Dev. 468) i. 299 , S. V. (4 Barring. Del. 555) i. 298, 299 , S. V. (4 Jones, N. C. 19) i. 857 , S. V. (67 Mo. 13) i. 872 , S. V. (7 Mo. Ap. 510) i. 301 , U. S. V. (8 Bis. 439) ii. 1010, 1012 McDonell, P. v. (47 Cal. 134) i. 384 McDonnell, P. a. (80 Cal. 285; 13 Am. St. 159) i. 258, 983, 988 ; ii. 285, 287 a , P. V. (92 N, Y. 657) i. 780 , Reg. V. (5 Cox C. C. 153) ii. 1200 , S. «. (82 Vt. 491) ii. 676 MoDonough, C. t: (18 Allen, 581) i. 279 McDowell, S. 0. (1 Hawks, 449) i. 536 ; ii. 517 McDuffle, S. V. (84 N. H. 523 ; 69 Am. D. 516) ' ii. 773, 985 McDuflfy, C. V. (126 Mass, 467) ii. 466 Mace V. Putnam (71 Me. 238) ii. 959 , S. u. (5 Md. 337) i. 32 Mace, S. u. (65 N. C. 344) ii. 490, 499 , S. V. (86.N. C. 668) ii. 1018 McElhaney v. S. (12Tex. Ap.231) i. 1083 McElroy v. Carmichael (6 Tex. 454) i. 504 i>. S. (25 Tex. 507) ii. 309 V. S. (14 Tex. Ap. 235) ii. 672 McEntee v. S. (24 Wis. 43) ii. 1159, 1160 McEntyre, S. v. (3 Ire. 171) i. 237, 246, 458, 459, 464 ; ii. 392 McFadden v. C. (23 Pa. 12; 62 Am. D. 308) i. 1014 McFall V. C. (2 Met. Ky. 394) i. 150 , Pennsylvania v. (Addison, 255) i. 400, 401 ; ii. 671 V. P. (18 Hun, 382) i. 998 Macfarland's Case (8 Abb. Pr. n. s. i. 384 i. 141 Am. E. i. 1010 ii. 1011 ii. 529 ii. 802, 879, 882 Wason (4 Ohio St. ii.,959 i. 797 ; ii. 745 ii. 1267 , ii. 253 ii. 139 57) McFarland v. S. (4 Kan. 68) V. S. (68 Wis. 400 ; 60 867) McGahey, C. v. (11 Gray, 194) McGardiner, S. u. (1 Ire. 27) McGarren, P. v. (17 Wend. 460) McGatrick 566) McGee v. S. (8 Misso. 495) , S. V. (40 Iowa, 595) McGehee v. S. (4 Tex. Ap. 94) McGill V. McCall (9 Ind. 306) , Pennsylvania v. (Addison, 21) i. 767 , U. S. V. (4 Dall 426) i. 115 McGirasey, S. v. (80 N. C. 377 ; 30 Am. R. 90) i. 1031 McGinn v. Tobey (62 Mich. 252 ; 4 Am. St. 848) ii. 583o, 589 McGinnes, Reg. v. (11 Cox C. C. 391) i. .363 McGinnis v. C. (102 Pa. 66) ii. 678 V. S. (31 Ga. 236) ii. 745 V. S. 9 Humph. 43; 49Am.D. ■ 697) - i. 1028 , S. V. (76 Mo. 326) ii. 728 McGinty, P. v. (24 Hun, 62) ii. 1167 , S. V. (41 Missis. 435; 93 Am. D. 264) i. 14 McGlue, U. S. V. (1 Curt. C. C. 1) i. 376, 384, 406 ; ii. 680 McGonigal, S. v. (5 Harring. Del. 510) i. 406 McGoon V. Ankeny (11 HI. 558) ii. 878 McGowan, C. v. (2 Parsons, 341) i. 814 , P. V. (17 Wend. 386) i. 1055 McGragor v. S (Smith, Ind. 179; 1 Ind. 232) ii. 1020 McGrath w. Merwin (112 Mass. 467 ; 17 Am. R. 119) ii. 959 , Reg. V. (Law Rep. 1 C. C. 205 ; 11 Cox C. C. 347) ii. 807 McGreer, S. v. (13 S. C. 464) i. 305 ; ii. 41 a McGregor v. Boyle (34 Iowa, 268) i. 1081 i>. Comstock (16 Barb. 427) i. 821 , Reg V. (1 Car. & K. 429) ii. 1061 , S. V. (41 N. H. 407) i. 648 McGrew v. Cato (Minor, 8) i. 267, 271 767 MCK INDEX TO THE CASES CITED. MCN McGrorty, S. v. (2 Minn. 224) i. 992 MuGrowtlier, Rex v. (1 East P. C. 71) i.347 McGuff V. S. [88 Ala. 147 j 16 Am. St. 25) i. 554 McGufflet). 8.(17 Ga. 497) i. 872 McGuire, C. v. (84 Ky. 57) i. 974, 976 V. S. (7 Humph. 54) i. 298 McGurn v. Brackett (33 Me. 331 ) i. 429 McHale, C. v. (97 Pa. 397 ; 89 Am. R. 808) i. 471 Machynlleth, Rex v. (4 B. & Aid. 4«9) ii. 1286 Mcllhone, Rex v. (1 Crawf. & Dix C. 0. 156) - 1. 634, 736 Mcllvoy V. Cockran (2 A. K. Mar. 271) ii. 37 Macino v. P. (12 Hun, 127) ii. 809 Mclnstry v. Tarner (9 Johns. 135) i. 464 >MoIntire, S. i. (66 Iowa, 339) i. 633 a , S V. (1 Jones, N. C. 1 ; 59 Am. D. 566) i. 905 Mcintosh, Rex v. (2 East P. C. 942) i. 572; ii. 539, 544, 560 MeThturf v. S. (20 Tex. Ap. 336) i. 279 Mclntyre v. P. (38 111. 514) i. 400, 401 Mclunkins v. S. (10 Ind. 140) i. 35, 1134 McKale, Reg. v. (Law Rep. 1 C. C. 125 ; 11 Cox C. C. 32) ii. 812 Mackaley's Case (Cro. Jao. 279) ii. 662 Maukalley's Case (9 Co. 65) ii. 647, 652 Maekarty, Rex v. (2 Ld. Raym. 1179) i. 599; ii. 198,205 McKay v. Campbell (2 Saw 118) i. 164 Mackay «. P. (1 Par. Cr. 459) i. 772 , P. V. (18 Johns. 212) i. 998, 1001 , Rex V. (Russ. & Ry. 71) i. 143 McKearney, Rex v. (Jebb, 99; 1 Ben. & H. Lead. Cas. 540) u. 99 McKeay, Rex v. (1 Moody, 180) i. 143 McKee v. McKee (8 B. Monr. 433) i. 832 !>. S. (Ill Ind. 378) il. 209 , S. V. (1 Bailey, 651 ; 21 Am. D. 499) 1. 992, 998, 1014, 1032, 1033, 1038, 1039, 1041 , TJ. S. !>. (4 Dil. 128) i. 909 MeKenna u. Fisk (1 How. U. S. 241) i. 203 MoKenney, C. v. (9 Gray, 114) ii. 885 McKenzie v. Allen (3 Strob. 646) ii. 40 V. S. (26 Ark. 334) i. 1015 ; ii. 677 V. S. (6 Eng. 594) i. 586; ii. 415, 419, 420 , S. V. (42 Me. 392) ii. 592 MoKeown v. Johnson (1 McCord, 678; 10 Am. D. 698) i. 359 Mackerell, Rex v. (4 Car. & P. 448) ii. 986 Mackey, Rex v. (1 East P. C. 399) ii. 1181 McKibbin v. S. (40 Ark. 480) i. 300 ; ii. 1279 McKim V. Somers (1 Pa. 297) i. 464 Mackin v. P. (116 111. 812; 56 Am. R. 167) 11. 1019, 1024 Mackinley, P. v. (9 Cal. 250) ii. 787 McKinney, P. v. (10 Midi. 54) ii. 349 , P. r, (3 Par. Cr. 510) i. 320, 437 768 McKinney v. S. (8 Tex. Ap. 626) i. 429 ; ii. 697 V. S. (25 "Wis. 378) ii. 53 , S. V. (31 Kan. 670) i. 1014 Mackintosh, Rex v. (2 Leach, 883) i. 572; ii. 539, 544, 560 McKisson, C. v. (8 S. & R. 420', 11 Am. D. 630) i. 432 ; ii. 201 Macklin's Case (3 Couper, 267) i. 394 McKone v. Wood (5 Car. & P. 1) i. 1080 McLane, 8. v. (43 Tex. 404) i. 895 V. U. S. (6 Pet. 404) i. 821, 822, 911 McLaren's Case (33 How. St. Tr. 1) 1.457 McLauchlin v. Charlotte and South Carolina Rid. (5 Rich. 583) i. 265 McLaughlin, Ex parte (41 Cal. 211 ; 10 Am. R. 272) i. 1032, 1033, 1034 ii. 60, 72 ii. 904 ii. 56 i. 736 ; ii. 699, 741 ii. 916 i. 65 , C. I). (5 Allen, 507) , C. V. (11 Cush. 598) , C. V. (12 Cush. 612) , C. V. (12 Cush. 615) V. Cowley (127 Mass. 316) V. Green (50 Missis. 453) V. S. (46 Ind. 338) i. 1072, 1079, 1117, • 1144 Maclay v. Work (5 Binn. 154) i. 821 McLean v. 8. (16 Ala. 672) i. 386 McLemore, 8. v. (2 Hill, S. C. 680) i. 1031 McLeod, P. V. (1 Hill, N. Y. 377 ; 25 Wend. 483; 37 Am. D. 328) i. 45, 132, 134, 135, 842 ; ii. 716 , Reg. V. (12 Cox C. C. 534; 8 Eng. Rep. 589) ii. 664 V. S. (3b Ala. 396) i. 965 McLeran, S. v. (1 Aikens, 311) i. 572, 806; ii. 678 Maclin, C. v. (3 Leigh, 809) ii. 985 Macloon, C. v. (101 Mass. 1) i. 114, 116, 116 McMackin, S. v. (70 Iowa, 281 ) ii. 602 MoMahon, Reg. v. (26 U. C. Q. B. 196) ii. 1213 McMakin, Rex v. (Russ. & Ry. ' 333, n.) i. 642, 649; ii. 841 Macmichael, Reg. v. (8 Car. & P. 766) i. 1079 McMicken v. Perin (18 How. U. 8. 607) ii. 134 McMillan v. S. (35 6a. 54) ii. 677 McMillen v. 8. (60 Ind. 216) ii. 1201 o McMinn, 8. v. (34 Ark. 160) i. 1052, 1053 , S. V. (81 N. C. 585) MoMonagle, C. v. (1 Mass. 617) McMuUeri v. Guest (6 Tex. 275) u. y«ti ii. 118 i. 541; ii. 131 i. 14 V. Hodge (5 Tex. 84) McMurray v. Baltimore (54 Md. 103) ii. 1267 McMurry v. S. (6 Ala. 324) , ii 1031 McNab, S. V. (20 N. H. 160) ii. 694 MoNaghten's Case (10 CI. & P. 200) i. 303, 803 a, 884, 392, 393 McNair v. 8. (58 Ala. 453) ii. 1120, 1121 V. Toler (21 Minn. 175) ii. 253 MAG INDEX TO THE CASES CITED. MAN McNally, 8. v. (82 Iowa, 580) 1. 810 McNamara's Case (Arkley, 521) ii. 1123 McNamee v. P. (31 Mich. 473) ii. 1188 , Rex w. (1 Moody, 368) ii. 824, 836, 859 McNauglit, S. V. (36 Kan. 624) i. 1006 McNeal v. Woods (3 Blackf. 485) i. 559, 577 ; ii. 13 McNealy, P. u. (17 Cal. 332) i. 1062 McNeil V. Bright (4 Mass. 282) i. 819 a McNeill, S. V. (92 N. C. 812) ii. 704 McNiel V. Holbrook (12 Pet. 84) i. 194 McO'Blenis, S. u. (12 Misso. 272) i. 910 Macomb, U. S. i<. (5 McLean, 286) i. 1003 Macomber, C. <<. (3 Mass. 254) i. 622, 705, 810; ii. 986, 1000 Macon v. Cook (2 Nott & McC. 379) i. 460 Maconnehey v. S. (6 Ohio St. 77) j 406 McParland, C. v. ( 148 Mass. 127) ii. 219 McPhane, Reg. v. (Car. & M. 212) i. 642 McPherson v. Chebanse (114 III. 46 ; 55Ain. R. 857) ii. 952 V. Cox (96 U. S. 404) ii. 132 , Reg. V. (Dears. & B. 197; 7 CoxC. C. 281) 1.757 V. S. (29 Ark. 225) i. 844 V. S. (22 Ga. 478) i. 305, 849 V. S. (20 Tex. Ap. 1941 ii. 840 V. S. (9 Yerg. 279) i. 797 , S. V. (9 Iowa, 53) i. 155, 178 ; ii. 285 , S. u. (70 N. C. 239 ; 16 Am. R. 769) ii. 99 McPike, C. ... (3 Cush. 181 ; 50 Am. D. 727) McQuaig, S. v. (22 Mo. 319) McQueen v. S. (1 Lea, 285) i. 339, 792 ; ii. 6.39 i. 934 ii. 728 McQuillenu. S.'(8Sm. & M 587) i. 997 McQuirk v. S. (84 Ala. 435; 5 Am. St. 381) ' ii. 1120, 1121 McQuoid V. P. (3 Oilman, 76) i. 931, 1049 McRue, Reg. v. (8 Car. & P. 641) ii. 1132 McTameney, P. v. (30 Hun, 505; 13 Abb. N. Cas. 55 ; 66 How. Pr. 70) ii. 885 McWhirt's Case (3 Grat. 594; 46 Am. D. 196) i. 934 ; ii. 708, 711 Madan, Rex v. (1 Leach, 223) 1. 915 Madden v. Woods (7 Ir. Eq. 637) ii. 270 Maddocks, Rex v. (2 Russ. Crimes, 3d Eng. ed. 499) i. 584 ; ii. 582 -, Rex V. (1 Sid. 4.30) Maden v. Emmons (83 Ind .331) 905 i. 1013, 1038 1.141 ii. 1267 ii. 1281 Madge, Reg. «. (9 Car. & P. 29) Madison, S. v. (33 .Me. 267) , S. V- (59 Me. 5?8) n , U. S. V. (10 Saw. 220; 21 Fed. Rep. 628) ii. 1023, 1053 5 Madox, Rex v. (Russ. & Ry. 92) ii. 834, 860 Magee, S. v. (11 Ind. 154) ii. 425 «. White (23 Tex. 180) i. 93 Magellan Pirates, The (18 Jur. 13; 25 Eng. L. & Eq. 695) ii. 1061 Magrath, Reg. v. (26 U. C. Q. B. 385) ii. 1213 VOL. I. — 49 Mahala v. S. (10 Yerg. 532 ; 31 Am. D. 691) i. 1033, 1034 Mahan v. Berry (5 Misso. 21) ii. 1020, 1026 , S. «. (68 Iowa, 304) i. 850 Mahaney, P. v. (41 Hun, 26) i. 291 Maher o. P. (24 111. 241) i. 305 V. P. (10 Mich. 212; 81 Am. D. 781) i, 730; ii. 676, 708, 712, 741 V. S. (3 Minn. 444) ii. 1018 , S. V. (35 Me. 225) i. 782, 793, 1065 Mahly, S. v. (68 Mo. 315) ii. 728 Mahon, Rex v. (4 A. & E. 675) i. 266, 948 ; ii. 55 , S. V. (3 Barring. Del. 668) ii. 37 Mahoney v. Crowley (36 Me. 486) i. 32 V. P. (5 Thomp. & C. 329; 3 Hun, 202) ii. 1167, 1168 , S. u. (23 Minn. 181) i. 892 Mahony, Reg. v. (6 Cox C. C. 487) ii. 576, 592 Main, S. v. (31 Conn. 572) i. 1086, 1088 , S. B. (16 Wis. 398) i. 152 Maine Cent. Rid., S. v. (60 Me. 490) i. 631 , S. V. (77 Me. 244) i. 531 Mainor, S. v. (6 Ire. 340) i. 800 Mains v. S. (42 Ind. 327; 13 Am. R. 304) i. 1109 Maires, S. u. (4 Vroom, 142) ii. 392, 396, 404 Mairet v. Marriner (34 Wis. 682) ii. 1028 Mairs v. Sparks (2 Southard, 513) ii. 501 , S. V. (Coxe, 335) i. 648 , S. V. (Coxe, 453) ii. 1004 Maisonnaire v. Keating (2 Gallis. 325) i. 132, 821 Majone, P. v. (12 Abb. N. Cas. 187) ii. 728 , P. V. (91 N. Y. 211) ii. 728 Major V. Gibson (1 Pat. & H. 48) ii. 132 V. S (4 Sneed, 597) i. 1004 Majors, P. u. (65 Cal. 138 ; 52 Am. R. 295) i. 1061 Malcolm, S. v. (8 Iowa, 413) ii. 23 Malek, Adhel, The (2 How. U. S. 210) i. 306, 824, 826 ; ii. 1060 Maley v. Shattuok (3 Cranch, 458) i. 306 V. S. (Srind. 192) ii. 430 Malin, Respublica v. (1 Dall. 33) i. 206, 440, 456;. ii. 1255 Mailing, S. v. (11 Iowa, 239) i. 1004 Mallory, P. v. (4 Thomp. & C. 567) i. 1078 a V. Willis (4 Comst. 76) ii. 857 Malone, C. u. (114 Mass. 295) i. 877; ii. 72 c V. S. (49 Ga. 210) ii. 704 V. S. (77 Ga. 767) ii. 741 V. S. (14 Ind. 219) i. 35 Maloney, P. k. (1 Par. Cr. 593) ii. 773 , S. V. (R. M. Charl. 84) ii. 900 — ^, S. V. ( 12 R. I. 251) i. 336, 465 Maloy, S. v. (44 Iowa, 104) i. 633, 636, 869 Manchego, P. v. (80 Cal. 306) ii. 1136 Manchester, C. v. (152 Mass. 230) i. 104 V. Massachusetts (139 U. S. 240) i. 104, 148, 176 769 MAR INDEX TO THE CASES CITED. MAR Manchester, &o. Rid., S. v. (52 N. H. 628) i. 32, 631 Maner v. S. (8 Tex. Ap. 361) ii. 748 , S. V. (2 Hill, S. C. 453) i. 759 Manghara v. Cox (29 Ala. 81) i. 307 Manhattan Iron Works v. French (12Abb. N. Cas. 446) ii. 959 Manhattan Manuf &c. Co. v. Van Keuren (8 C. E. Green, 255) i. 828, 1080 Manier «. S. (6 Bax. 696) i. 634 Mankin v. S. (2 Swan, Tenn. 206) ii. 1267 Manley, C. v. (12 Pick. 173) i. 766; ii. 214 ; V. P. (3 Seld. 296) i. 110, 148, 178, 989 , Reg. V. (1 Cox C. C. 104) i. 368, 651 ManlufE, S. v. (1 Houst. Crim.208) ii. 115 Mann, C. .,. ( 116 Mass. 58) i. 842, 850 ; ii. 41 V. Owen (9B. & C. 595; 4 Man. & R. 449) i. 469 ; ii. 982 , Rex V. (4 M. & Sf 337) i. 992 V. S. (37 Ark. 405) ii. 499 , S. V. (21 Wis. 692) i. 624 V. Trabue (1 Misso. 709) i. 271 Manners, Rex v. (7 Car. & P. 801) i 653 ■ ii 299 Manney's Case (12 Co. 101 ) 'ii. 1064 Mannhardt v. Soderstrom (1 Binn. 138) . i 181, 196 Manning, Reg. «. (2 Car. & K. 887) i. 361, 366, 635, 670, 678 ■; , Reg. V. (Dears. 21 ; 17 Jur. 28 ; 14 Eng. L. & Eq. 548 ; 22 Law J. N. s. M. C. 21) ii. 824. 836 , Reg. V. (12 Q. B. D. 241) ii. 188 ■ , Rex V. (2 Comyns, 616) i. 955 , S. V. (14 Tex. 402) i. 1024 Mansell's Case (2 Dy. 128 6) i. 636 ; ii. 691, 744 Manson, C. v. (2 Ashm. 31) i. 432, 801 ; ii. 187 Manuel, S. v. (72 N. C. 201 ; 21 Am. R. 455) ii. 992 Manville v. Felter (19 Kan. 253) i. 266 Marble, S. v. (4 Ire. 318) ii. 1267 Marbury v. Brooks (7 Wheftt. 556) i. 717 March v. P. (7 Barb. 391 ) ii. 178, 201 , P. V. (6 Cal. 543) i. 385, 1021, 1022 -, Reg. V. (ICar. &K. 496) 261 ii. 29, 33 ii. 13, 17 i. 976 i. 734, , Rex V. (1 Moody, 182) , S V. (1 Jones, N. C. 626) Marcus, Reg. v. (2 Car. & K. 31 748 ; ii. 72 a, 629,' 543, 599 V. S. (26 Ind. 101) ii. 824 Marentille v. Oliver (1 Penning. 379) ii. 72 Margerum, Rex v. (Trem. P. C. 168) ii. 1056, 1197 Margetts, Rex v. (2 Leach, 930) ii. 106 Marianna Flora,' The (11 Wheat. 1) i. 120, 306, 824 ; ii. 1061 Marigold, U. S. v. (9 How. U. S. 560) i. 179, 998; ii. 282, 289 Mariner w. Dyer (2 Greenl. 165) ii. 243 Marini v. Graham (67 Cal. 130) i. 265 770 Marion, P. v. (29 Mich. 31) ii. 523 -. — w. S. (16 Neb. 349) i. 279 V. S. (20 Neb. 233; 57 Am. R. 826) i. 279 Markham, P. v. (64 Cal. 157; 49 Am. R. 700) ii. 86 a Marks, Ex parte (64 Cal. 29 ; 49 Am. , R. 684) i. 915 V. Borum (1 Bax. 87 ; 25 Am. R. 764) i. 850, 875 V. Donaldson (24 La. An. 242) ii. 1269 , P. V. (4 Par. Cr. 153) ii. 115 Markuss, Reg. v. (4 Fost. & F. 356) ii. 664 Marlborough, Ex parte (INew Sess. ■ Cas. 195 ; 6 Q. B. 955 ; 13 Law J. N. B. M. C. 106; 8 Jur. 664) i.470, 540; ii. 946 Marner, Reg. v. (Car. & M. 628) i. 572 a Marnoch v. S. (7 Tex. Ap. 269) i. 865 Marriott, Reg. v. (8 Car. & P. 425) i. 314; ii. 641, 657, 660,.669, 686 Marrow, C. v. (3 Brews. 402) ii. 968 , Rex V. (Cas. temp. Hardw. 174) i. 536; ii. 500, 514 Mars, The (1 Gallis. 192) i. 822 Marsden, Reg. v. (Law Rep. 1 C. C. 131 ; 11 Cox C. C. 90) i. 465 , Reg. V. (1891, 2 Q. B. 149) ii. 1129 Marselis, U. S. v. (2 Blateh. 108) ii. 904 Marsh's Case (1 Leon. 325) i. 668 Marsh i>. Burroughs (1 Woods, 463) 1. 65 t). -Loader (14 C. B. n. s. 585) i. 368 , P. V. (2 Cow. 493) ii, 255 , Reg. V. (1 Den. C. C. 505; Temp. & M. 192; 3 New Sess. Cas. 699 ; 13 Jur. 1010) ii. 168 , Rex V. (1 Leach, 345) i. 583 ; ii. 819 , Rex V. (3 Mod. 66) V. Shute (1 Denio, 230) , S. V. (36 N, H, 196) , S. V. (64 N. C. 378) I', Titus (6 Thomp. & C. Hun, 550) Marshall's Case (1 I-ewin, 76) Marshall v. C. (5 Grat. 663) V. Murgatroyd (Law Rep. 6 Q. B. 31) i. 117 , Reg. V. (11 Cox C. C. 490) ii. 341 , Reg. V. (4 Ellis & B. 476 ; 24 Law J. N. s. Q. B. 242 ; 30 Eng. L. & Eq. 204) , Reg. V. (2 Jur. 254) , Rex V. (13 East, 322) , Rex V. (Russ. & Ry. 75) ii. 531 674 i 957 i, 572 a ii. 520 29 ; 3 ii 857 i 414 i 998 V. S. (49 Ala. 21) V. S. (59 Ga. 154) w. S. (6 Neb. ISO; 29 Am V. S. (33 Tex. 664) , S. D. (14 Ala. 411) Marsteller, S. v. (84 N. C. 726) Marston v. Jenness (11 N. H. 156) i, 1014, 1028 i. 266 ii. 913, 916 i. 247, 256 i. 572 ; ii. 583, 603 i. 802 i. 413 R. 983, 986 ii. 745 i. 728 ii. 41 a MAK INDEX TO THE CASES CITED. MAT Martha v. S. (26 Ala. 72) i. 1052 Martha Anne, The (Olcott, 18) i. 145, 148 Martin's Case (Slielf. Lun. 465) i. 380, 384, 394 Martin, Ex parte (2 Hill, Ch. 71) i. 885 w. Amos (13 Ire. 201) ii. 131 V. Bold (7 Taunt. 182) ii, 252 V. Brooklyn (1 Hill, N. Y. 545) i. 237 V. C. (1 Mass. 347) i. 359, 361, 365, 821, 824 , C. V. (17 Mass. 359) i. 340, 729 V. Martin (25 Ala. 201) i, 271 V. Miller (4 Misso. 47 ; 28 Am. D. 342) ii. 1031, 1044 «. Mott (12 Wheat. 19) i. 61 V. Pace (6 Blackf. 99) ii. 137, 139 V. P. (13 111. 841) i. 1024 ; ii. 1267 0. P. (23 III.- 395) ii. 1267 , Reg. V. (9 Car. & P. 218 ; 2 Moody, 123) i. 260, 261, 759, 765 ; ii. 36 , Reg. !). (5 Cox C. C. 356) ii. 258, 264 , Reg. V. (11 Cox C. C. 136) i. 314 , Reg. V, (1 Fost.'& F. 501) ii. 444 , Reg. V. (Hodge's Report) ii. 916 , Reg. 1). (Law Rep. 1 C. C. 214) i. 964 , Reg. u. (6 Q. B. D. 34 ; 14 Cox C, C. 375) ii. 529 , Rex V. (8 Car. & P. 211) ii. 641, 693 , Rex V. (7 Car. & P. 549 ; 1 Moody, 483) ii. 564, 565 , Rex V. (1 Leach, 171; 2 East P. 0. 618) ii. 758, 797, 804 , Rex V. (Russ. & Ey. 196) i. 287, 466 , Rex V. ( Russ. & Ry. 324) i. 758 V. Snowden (18 Grat. 100) i. 821 «. S. (28 Ala. 71) i. 468 V. S. (6 Bax. 234) ii. 805 a «. S. (1 Tex. Ap. 525) ii. 97 V. S. (1 Tex. Ap. 586) ii. 152 V. S. (18 Tex. Ap. 224) i. 155; ii. 285 , S. u. (3 Hawks, 381) i. 992 , S. u. (9 Humph. 55) ii, 564 i.997; ii, 715 ii. 758, 797, 823 ) i. 892 ii. 882 i, 1062 , S. V. (2 Ire. 101) , S. V. (12 Ire. 157) , S, V. (31 La. An. 84 , S. V. (28 Mo. 530) , S. tr. (76 Mo. 337) , S. V. (82 N. C. 672) ii. 888 , S. V. (85 N. C. 508; 39 Am. R. 711) ii. 26, 31 , S. V. (80 Wis. 216 ; 11 Am. R. 567) i, 844, 850, 869, 1004, 1005 , U. S. V. (4 Clif. 156) i 199; ii. 190 , U. S. V. (9 Saw. 90; 17 Fed. Rep. 150) ii. 1010 Martindale, S. w. (1 Bailey, 163) i. 180 Martinez v. S. (41 Tex. 126) ii. 902 vl S. (16 Tex. Ap. 122) ii. 882 Marton, Rex v. (Andr. 276) ii. 1280 Marts V. S. (26 Ohio St. 162) i. 303, 305 Marvin's Case (3 Dy. 288) i. 684; ii. 580, 690, 591 Marvin v. S. (19 Ind. 181) i. 35; ii. 306 Mary N. Hogan, The, U. S. v. (18 Fed. Rep. 529) i. 482 Marzynski, C. v. (149 Mass. 68) ii. 963 Mash, C. V. (7 Met. 472) i. 211, 303 a, 908, 923 Mason, C.w. (12 Allen, 185) i. 317 , C. V. ( 105 Mass. 163 ; 7 Am. R. 507) ii. 841a V. Keeling (1 Ld. Raym. 606 ; 12 Mod. 332) i. 1080 V. P. (2 Colo. 378) i. 1014 i;. P. (26 N. Y. 200) ii. 108 , Reg. B. (29 U. C. Q. B. 431) ii. 1028 , Rex u.{D.& R. N. P. 22) ii. 342 , Rex i;. (1 East P. C. 239) , Rex V. (Russ. & Ry. 419) ii. 699, 715, 716 i. 553 ; ii. 1167 B. S. (82 Ark. 238) ' ii. 804, 840 , S. V. (108 Ind. 48) ii. 325, 327 V. Tattle (75 Va. 105) i. 819 a, 838 Masperw. Brown (1 C. P. D. 97) i. 266 Massage, S. i^. (65 N. C. 480) ii. 701 Massey, S. <;. (86 N. C. 668 ; 41 Am. R. 478) i. 731 Master v. Miller (4 T. K. 320) ii. 125, 127, 574 Master Stevedores' Association o. Walsh (2 Daly, 1) ii. 231 Masters, In re (1 Har. & W. 348) ii. 132 , Reg. V. (1 Den. C. C. 332; 2 Car. & K. 930 ; Temp. & M. 1 ; 18 Law J. N. 3. M. C. 2 ; 3 New Sess. Cas. 326 ; 12 Jur. 942) ii. 353, 365, 368 Mastin, Rex v. 6 Car. & P. 396) i. 314, 634, 636 ; ii. 667, 690, 744 Mather, P. v. (4 Wend. 229 ; 21 Am. D. 122) i, 432, 630, 642, 674, 792, 814j 992 ; ii. 175, 190, 239, 240 Matheson's Case (1 Swinton, 693) i. 217, 227 Mathews, Reg. u. (1 Eng. L. & Eq. 549) ii. 1142 0. S. (19 Neb. 330) ii. 1122 V. S. (33 Tex. 102) ii. 488 u. S. (9Tex. Ap. 138) ii. 813 , S. V. (2 Dev. & Bat. 424) i. 504, 532, 1109, 1110, 1118 Mathias, Reg. w. (2 Post. & F. 570) i. 828, 1080 Mathison v. Hanks (2 Hill, S. C. 626) i. 266 Matthews v. Burdett (3 Salk. 318) i. 507 , Reg. V. (12 Cox C. C. 489; 6 Eng. Rep. 329) ii. 876, 882 , Reg. V. (1 Den. C. C. 596 ; Temp. & M. 387) i. 362; ii. 1142 i>. S. (4 Ohio St. 539) ii. 1169 , S. V. (20 Mo. 56) ii. 840, 995 , S. V. (78 N. C. 528) i. 874 , S. V. (80 N. C. 417) ii. 719 , S. V. (91 N. C. 635) ii. 467 , S. V. (37 N. H. 450) ii. 243, 247 , S. V. (42 Vt. 542) i. 636 V. Terry (10 Conn. 466) i. 887 , U. S. V. (2 Sumner, 470) i, 564 Matthiessen, &e. Sugar Bef. Co. v. Jersey City (11 C. B. Green, 247) ii. 1278 771 MEA INDEX TO THE CASES CITED. MES 'Mattingly v. S. (8 Tex. Ap. 345) ii. 1019 Mattock, U. S. V. (2 Saw. 148) ii. 986 Mattocks V. Owen (5 Vt. 42) i. 267, 714 Maulsby, Exparte (13Md. 625) ii. 268 Maurice, U. S. v. (2 Brock. 96) i. 199, 975 Mawbey, Rex v. (6 T. R. 619;' 2 Russ. Crimes, 3d Eng. ed. 677) i. 948, 1001, 1002; ii. 219,220,230 Mawgridge's Case (17 How. St. Tr. 57; J. Kel. 119) ii. 311, 702, 704 Max, Ex parte (44 Cal. 579) i. 772 , C. V. (8 Philad. 422) ii. 728 Maxcy, S. w. (1 McMul. 501) i. 515 Maxwell, Ex parte (11 Nev. 428) i. 1013, 1014, 1033, 1034 w.Boyne (36 Ind. 420) i. 1079 V. Palmerton (21 Wend. 407) i. 1080 , P. I). (24 Cal. 14) i. 699 V. Rives (11 Nev. 213) ii. 242 a , S. «. (33 Conn. 259) i. 1108 , S. i;. (47 Iowa, 454) ii. 673 , S. w. (28La. An. 361) ii. 1019 , Territory v. (2 New Mex. 250) ii. 321, 349 May, Reg. v. (8 Cox C. C. 421 ; Leigh & C. 13) ii. 348, 353 V. Slaughter (3 A. K. Mar. 505) ii. 140 • V. S. (6 Tex. Ap. 191) V. S. (15 Tex. Ap. 430) V. S. (17 Tex. Ap. 213) , S.v. (20 Iowa, 305) Mayberry, S. v. (48 Me. 218) i. 874 ii. 484 ii. 436 ii. 781 i. 619, 814 ; ii. 175 Mayers, Reg. v. (12 Cox C. C. 311 ; 4 Eng. Rep 559) ii. 1122, 1136 Mayes v. P. (106 III. 306; 46 Am. R. 698) ' ii. 675, 679 Mayle, Reg. v. (11 Cox C. C. 150) ii. 341 Maynard's Case (1 Vent. 182) ii. 1044 Maynard, Rex o. (Cro. Car 231) i. 525 Mayo V. Wilson (1 N. H. 53) ii. 968 Mazagora, Rex i'. (Russ. & Ry. 291) ii. 598 Mazeau, Reg. w. (9 Car. & P. 676) i. 310, 630, 651 ; ii. 609 Mazyck, S. v. (3 Rich. 291) ii. 791 Mc, M'. [For names beginning thus see Mac] Meacham n. New York St. Mut. Ben. Assoc. (120 N. Y. 237) Mead v. Boston (3 Cush. 404) , C. V. (10 Allen, 398) V. Norris (21 Wis. 310) , Rex V. (4 Car. & P. 535) ii. 1187 i. 622 i. 368 ii. 256 ii. 358, 785, 786 V. Young (4 T. R. 28) i. 572; ii. 587 Meadville v. Erie Canal (18 Pa. 66) ii. 1269, 1270 Meagher v. Driscoll (99 Mass 281) ii. 1188 Meakin, Reg. v. {U Pox C. C. 270) ii. 444 , Rex 11. (7 Car. & P. 297) i. 401, 414 Meal, Reg. v. (3 Cox C. C. 70) ii. 119 a Meaney, Reg. u. (Ir. Rep. 1 C. L. 500) ii. 1213 Meany, Beg. v. (10 Cox C. C. 506) ii. 1213 Mears v. C. (2 Grant, Pa. 885) ii. 1134 772 Mears, Reg. v. (1 Eng. L. & Eq. 681 ; Temp. & M. 414; 2 Den. C. C. 79 ; 15 Jat 66) ii. 235 Medis V. S. (27 Tex. Ap. 194 ; 11 Xm. St. 192) i. 955; ii. 1191 Medley, Bex v. (6 Car. & P. 292) i. 243, 316, 420 Medlor, Rex v. (2 Show. 36) i. 504, 1135, 1187 Meek, Reg. v. (9 Car. & P. 513) ii. 1028 Meeker 1). Van Rensselaer (16 Wend. 397) i. 490, 821, 828 Meeks v. Dewberry (57 Ga. 263) ii. 131 Meeres, Rex v. (1 Show. 50) ii. 866 Meese v. S. (15 Neb. 558) ii. 1257 Meigh, Reg. v. (7 Cox C. C. 401) ii. 564 Meilheim, Bex v. (Car. Crim. Law, 3d ed. 281) . ii. 820 Mellish, Rex v. (Russ. & Ry. 80) ii. 323, 349, 353 ii. 1270 i. 633 i. 934 Mellor, Rex v. (1 B. & Ad. 32) Melton w. S. (43 Ark. 367) V. S. (45 Ala. 56) Melvin v. Weiant (36 Ohio St. 184; 38 Am. R. 572) ii. 1191 Memmler v. S. (75 Ga. 576) i. 891 Memphis v. Woodward (12 Heisk. 499 ; 27 Am. R. 750) i. 464 Menage, Reg. v. (3 Post. & F. 310) ii. 1200 Mence, Reg. v. (Car. & M. 234) ii. 785 Mendell v. Tyrell (9 M. & W. 217) ii. 256 Menham, Reg. v. (1 Fost. & F. 369) i. 117 Mercer v. S. (17 Ga. 146) i. 401 , S. V. (32 Iowa, 405) i. 892 Mercersmith v. S. (8 Tex. Ap. 211) i. 634 Meredith v. C. (18 B. Monr. 49) i. 305, 865 , Reg. u. (8 Car. & P. 589) i. 260, 769 762 , Rex V. (Russ. & Ry. 46) i. 657, 888; ii. 29 V. S. (60 Ala. 441) i. 772 a ; ii. 740 Merrill, C. v. (14 Gray, 415; 77 Am. D.,336) ii. 1136 , C. V. (Thacher Crira. Cas. 1) 1. 1032 V. Hampden (26 Me. 234) ii. 1280 , P. V. (2 Par. Cr. 590) i. 152 ; ii. 753 , S. V. (3 Blackf. .346) ii. 520 a , S. V. (2 Dev. 269) i. 861, 873, 1003 ; ii. 704 , S. V. (44 N. H. 624) ii. 888 Merriman v. S. (6 Blackf. 449) ii. 1262 Merrit, S. ^. (35 Conn. 314) ii. 1272, 1273 Merritt, S. v. (Phillips, N. C. 134) i. 648 , S. V. (5 Srieed, 67) ii. 392 Merry v. Green (7 M. & W. 623) ii. 758, 861, 868 Merryraan, Ex parte (24 Law Rep. 78) • i. 63 Meserve v. C. (137 Mass. 109) ii. 529 Messenger's Case (6 How. St. Tr. 879, n. ; J. Kel. 70) ii. 1218 Messinger, C. v. (1 Binn. 273; 2 Am. D. 441) i. 678 MIL INDEX TO THE CASES CITED. MIL Metcalf, Rex v. (1 Moody, 433) . ii. 365, 817, 836 Methard v. S. (19 Ohio St. 363) i. 1049 Metropolitan Agylum Diet v. Hill (6 Ap. Cas. 193) i. 489 Metropolitan Rid., C. i^. (107 Mass. 236) i. 531 Metsch, S. V. (37 Kan. 222) ii. 461 Metzger, In re (1 Barb. 248; 1 Par. Cr. 108) i 135 Meuly v. S. (26 Tex. Ap. 274 ; 8 Am. St. 477) i. 870, 874 Mewherter, S. v. (46 Iowa, 88) 1. 384, 393 Mexido v. Jones (27 Mo. Ap. 534) ii. 1267 Meyer, P. v. (73 Cal. 548) i. 961 V. S. (12 Vroom, 6 ; 13 Vroom, 145) i. 1120; ii. 958 a , S. V. (1 Speers, 305) ii. 968 Meyers, Ex parte (44 Mo. 279) i. 35, 953 Miard, Reg. v. (1 Cox C. C. 22) ii. 1200 Miazza v. S. (36 Missis. 613) i. 1014 Michael v. Nutting (1 Ind. 481) i. 541; ii. 137 , Reg. V. (9 Car. & P. 356; 2 Moody, 120) i. 651 ; ii. 740 V. S. (40 Ala, 361) i. 14, 900, 904 Mickey v. C. (9 Bush, 593) ii. 744 Middlebrook v. S. (43 Conn. 257 ; 21 Am. R. 650) ii. 242 Middleditch, Reg. v. (1 Den. C. C. 92) ii. 1195 Middleham, S. a. (62 Iowa, 150) i. 842, 859 Middlesex, Rex v. (3 B. & Ad. 201) ii. 1269 Middleship, Reg. u. (5 Cox C. C.275) ii. 686 Middleton v. Holmes (3 Port 424) i. 267 , Reg. V. (Law Rep. 2 C. C. 38, 12 Cox C. C. 260; 4 Eng. Rep. 536) ii. 855 , Rex V. (4 D. & R. 824 ; 3 B. & C. 164) ii 954 V. S. (Dudley, S. C. 275) ii. 157 Midland Ins. Co. u. Smith (6 Q. B. D. 561) Midville, Reg. v. (4 Q. B. 240 ; 3 Gale & D. 522) i' Mifflin V. C. (5 Watts & S. 461 ; 40 Am. D. 527) i. 592 ; ii. 176, 183, 235 - ' - i. 1028 i 1055 ii. 430 ii. 242 i. 823 ii. 132 303, 305 i. 548, 887 ; ii. 72 b , Rex V. (1 Doug. 284) 1. 256 ; ii. 918 V. S. (58 Ala. 390) i. '"'° " " V S. (1 Tex. Ap. 510) S. V. (2 Nott & McC. 1) Milgate, P. V. (5 Cal. 127) Milissich v. Lloyds (13 Cox 575) Millain, S. v. (3 Nev. 409) .267 1281 Mikels V S. (3 Heisk. 321) Mikesell, S. v. (70 Iowa, 176) Mikle, S. V. (94 N. C 843) Milburn, In re (59 Wis 24) Mildmay's Case (6 Co. 40) Miles V. Collins (1 Met. Ky. 308) , P. V (55 Cal. 207) , Reg. V. (6 Jur, 243) 768; ii. 184 ii. 851 ii, 880 ii 697 C ii. 915 ii. 728 Millard, S.i). (18 Vt. 574; 46 Am. D. 170) i. 244, 1127, 1129 Millen v. S. (60 Ga. 620) i. 648 Miller's Case (3 Couper, 16) i. 383 a Miller v. Allen (11 Ind. 389) i. 953 V. Burch (32 Tex. 208 ; 5 Am. R. 242) i. 828 V. Callaway (32 Ark. 666) i. 464 V. C. (78 Ky. 15 ; 39 Am. R. 194) ii, 810 , C. V. (2 Ashm, 61) i. 465, 466, 625, 697, 938, 1014; ii. 1069, 1070, 1074 , C, V. (5 Dana, 320) i. 1029 V. Forman (8 Vroom, 55) i. 1080, 1081 V. Lockwood (17 Pa. 248) i. 218, 288, 317 V. Munson (34 Wis. 579; 17 Am. R. 461) ii. 1028 V. New York (18 Blatch. 212) ii. 1269 V. New York (5 Thomp. & C. 219 ; 3 Hun, 35) i. 892 V. P, (5 Barb. 203) i. 500, 1133 V. P. (10 Bradw 400) ii. 270 V. P. (2 Scam. 233) ii. 299 , P. V. (14 Johns. 371) i. 582 ; ii, 145, 204, 816 V. Porter (71 Ind. 521 ]i ii. 1267 , Reg. V. (6 Cox C. C. 353) ii. 1139. , Reg. <;. (14 Cox C. C. 356) ii. 72 e , Reg. V. 2 Moody, 249) ii. 339, 340, 369 , Rex V. (1 Leach, 74; 2 W. Bl. 797) i. 915 , Rex V. (2 Stra. 1103) i, 515 V. Roessler (4 E. D. Smith, 234) ii. 968 V. S. (54 Ala. 155) ii. 728 V. S. (77 Ala. 41) ii 118 V. S. (15 Fla. 577) ii. 1030 V. S. (5 How. Missis. 250) i. 785 «. S. (8 Ind. 325) i. 1033 V. S, (37 Ind. 432) ii. 681 V. S. (79 Ind. 198) ii, 191 V. S. (16 Neb. 179) ii. 376 V. S, (3 Ohio St. 475) i. 831 w. S, (25 Wis. 384) i. 358 , S. V. (42 La. An. 1186; 21 Am. St. 418) ii. 1133 , S. V. (67 Mo. 604) ii. 728 , S. V. (100 Mo. 606) i. 648 , S. V (94 N. C 904) i, 947 , S, V. (12 Vt. 437) ii. 1012 , U. S. V. (3 Hughes C. C. 563) ii. 225 Milligan, Ex parte (4 Wal. 2) i. 52, 63, 64 Milliman, C. B. (13S &R. 403) i. 531 , ii. 1274 Millis, Reg, v. (10 CI. & F. 534) i. 1024 Millner v. S. (15 Lea, 179) ii. 785 Mills w. C. (13 Pa. 6.31) i. 953 V. Hall (9 Wend. 315, 24 Am. D 160) i 821, 1078 o V. Martin (19 Johns. 7) i. 44 , P. V. (98 N.,Y. 176) i. 406 , Reg. V (Dears, & B. 205; 7 Cox C. C. 263; 40 Eng. L. & Eq 562) ii. 462 773 MIT INDEX TO THE CASES CITED. MOL Mills, Rex V. (1 Leach, 259; 1 East P. C. 397) ii- 1181 ■, Rex V. (2 Show. 181) i. 240; ii. 978 V. S. (20 Ala. 86) ii. 1266 K. S. (52 Ind. 187) ii. 1120 K. S. 13 Tex. Ap. 487) i. 648 , S. V. (2 Dev. 420) i. 636, 538; ii. 517, * 518 , S. <;. (17 Me. 211) i. 571; ii. 418, 434, 451 , S. V. (104 N. C. 905; 17 Am. St. 706) ii. 504 , U. S. V. (7 Pet. 138) i. 685; ii. 1180 Mihie I). Huber (3 McLean, 212) i. 279 Milner v. Maclean (2 Car, & P. 17) 1. 536, 538; ii. 506 , Beg. V. (2 Car. & K. 310) i. 672 a Milnor v. New Jersey Bid. (6 Am. Law Beg. 6) i. 174 Milsaps, S. i>. (82 N. C. 549) ii. 25 Milton, Rex v. (Moody & M. 107) ii. 37, 41 v. S. (6 Neb. 136) ii. 728 Milwaukee and St. Paul By., U. S. ». (5 Bis. 410) i. 174 Mims, S. V. (26 Minn. 183) ' ii. 340, 349 Miner, U. S. v. (11 B^tch. 511) i. 1066 Mines, Case of (1 Plow. 310) ii. 279 Minge v, Gilmour (1 Car. Law Bepos. 34) i. 281 Mingia v. P. (64 111. 274) ii. 745 Mingo, U. S. V. (2 Curt. C. C. 1) i. 869 ; ii. 701 Minify, Rex v. (1 Stra. 642) i. 948 Mink, C. u. (123 Mass. 422; 25 Am. B. 109) ii. 1187 Minke v. Hopeman (87 111. 450; 29 Am. B. 63) i. 1079 Minnock, Beg. o. (1 Crawf. & Dix C. C. 45) ii. 639 Minor v. Happersett (53 Mo. 58) i. 336 ». S. (58 Ga. 551) ii. 1140 Minton v. C. (79 Ky. 461) i. 865 , S. .,, (Pliillips, N. C. 196) i. 679; ii. 1137 Miskell, U. S. v. (15 Fed. Bep. 369) ii. 1053 b Miskimmons, S. v. (2 Ind. 440) ii. 1273 Misner, Pennsylvania v. (Addison, 44) ii. 628, 529, 572 Missingham, Bex v. (1 Moody, 257) ii. 1140 Mississippi, &c. Bid. v. Ward (2 Black, 485) ii. 1272 Missouri, The (4 Ben. 410) 1. 488 Mitchel V. Lipe (8 Yerg. 179) ii. 137 Mitchell, Ex parte (70 Cal. 1) i. 947 V. Churchman (4 Humph. 218) ii. 137, 140 V. C. (33 Grat. 846) 1. 653 , C. V. (3 Bush, 25 ; 96 Am. D. 192) ii. 392, 395 , C. V. (3 Bush, 30) ii. 978, 1106 , C. V. (1 Va. Cas. 116) ii, 653 !). Mims (8 Tex, 6) i. 271 774 Mitchell, Reg. i. (1 Den. C. C, 282, n.) ii. 676, 587 , Reg. V. (2 Fost. & F. 44) ii. 560, 563 , Rex V. (4 Car. & P. 251) i. 672 a V. Ringgold (3 Har. & J. 159; 5 Am. D. 433) ii. 675 V. S. (7 Eng. 50 ; 54 Am. D. 253) i. 319; ii. 37, 748 V. S. (22 Ga. 211; 68 Am. D. 493) i. 842, 849 ». S. (41 Ga. 527) ii. 704 V. S. (42 Ohio St. 383) i. 35 V. S. (5 Yerg. 340; 8 Yerg. 514) i. 1005; ii. 728 , S. u. (58 Iowa, 667) ii, 1267 , S. 0. (5 Ire. 350) i. 224, 729; u. 15, 17 V. Tibbetts (17 Pick. 298) i. 159 , U. S. V. (2 Dall. 348) i. 456; ii. 1202, 1226 Mitchum v. S. (45 Ala. 29) ii. 811 «. S. (11 Ga. 615) ii, 677, 695 Mitton'sCase (1 EastP. C. 411) i. 736 Mitton, Rex v. (3 Car. & P. 31) ii. 37, 41 Mix, S. V. (15 Mo. 163) i. 997 Mixed Money, Case of (2 How. St. Tr. 113) ii. 277, 279 Mixer v. Manistee (26 Mich. 422) i. 32 Mixon V. S. (66 Ala. 129; 28 Am. B. 696) i 1032 Mize V. S. (36 Ark. 653) i. 865 V. S. (49 Ga. 375) i. 1014 Mizner, S. v. (46 Iowa, 248; 24 Am. R. 769) i. 886 , S. V. (50 Iowa, 145; 32 Am. B. 128) i, 886 Moah, Reg. w. (Dears. 626; 36 Eng. L. & Eq, 692) ii. 327, 376 , Beg. V. (Dears. & B. 650; 7 Cox C. C. 603) ii. 629, 634 Moan, P. V. (65 Cal. 532) ii. 638 Mobile V. The Cuba (28 Ala. 185) i. 172, 173 V. Eslava (9 Port. 577; 33 Am. D. 325) i. 174 Mobile, &c. Bid. v. S. (51 Missis. 137) i. 1144 Mobley, S. v. (1 McMul. 44) ii. 1267 Mockabee v. C. (78 Ky. 380) ii. 662 Moffat's Case (2 East P. C. 954) ii. 538 Moffatt, Bex v. (1 Leach, 431) ii. 638 Moffett V. Brewer (1 Greene, Iowa, 348) i. 490, 828 , S. V. (1 Greene, Iowa, 247) i. 828 Mogg, Bex V. (4 Car. & P. 364) i. 594, 735 Mogler B. S. (47 Ark. 109) i, 219 Mohn, C. V. (52 Pa. 243; 91 Am. D. 153) i. 540, 1101 Mohney v. Cook (26 Pa. 342, 67 Am. D. 419) ii, 968 Mohun's Case (Holt, 479; 12 How. St. Tr, 949) i, 632, ii. 744 Moland, Reg. v. (2 Moody, 276) i. 685, 686; ii. 485 Mole, Reg. v. (1 Car. & K. 417) ii. 758, 882 MOO INDEX TO THE CASES CITED. MOH Molette V. S. (49 Ala. 18) ii. 1006 Molier, S. v. (I Dev. 263) ii. 1019 Molihau v. S. (30 Ind. 266) i. 892 Molier, U. S.u. (16 Blatch. 65) 1.990 Monaghan, Heg. v. (11 Cox C. C. 608) i. 531 Monday v. S. (32 Ga. 672 ; 79 Am. D. 314) ii. 740, 741 Mongeon v. P. (55 N. Y. 613) ii. 731 Monkhouse, Beg. v. (4 Cox C. C. 55) i. 408 Monnier, S. v. (8 Minn. 212) ii. 574 Monroe v. S. (5 Ga. 85) i. 305, 536, 842, 849, 85.3, 857, 865, 872, 998; ii. 718 Monroe Oyer and Terminer, P. v. (20 Wend. 108) i. 1014 Montalvo v. S. (31 Tex. 63) ii. 741 Montgomery, Ex parte (79 Ala. 275) i. 941 , P. o. (13 Abb. Pr. n. s. 207) i. 376, 384 , Respublica v. (1 Yeates, 419) i. 459 ; ii. 974 V. S. (7 Ohio St. 107) V. S. (10 Ohio, 220) V. S. (11 Ohio, 424) V. S. (12 Tex. Ap. 323) , S. b. (Chevea, 120) , S. .-. (56 Iowa, 195) ' , S. u. (65 Iowa, 483) , S. V. (91 Mo. 52) V. Sutton (67 Iowa, 497) MontroBS v. S (61 Missis. 429) Moody V. C. (4 Met. Ky. 1) V. P'. (20 111. 315) , P. V. (5 Par. Cr. 568) , Reg. V. (Leigh & 0. 173) ii. 529, 564 , Rex V. (5 Car. & P. 23) ii. 1039 «. S. (6 Coldw. 299) V. Ward (13 Mass. 299) Moon, S. i-: (41 Wis. 684) Mooney v. S. (8 Ala. 828) V. S. (33 Ala. 419) -, S. V. (65 Mo. 494) i. 679 ii. 1019, 1020 ii. 737 i. 287 i. 363, 366 ii. 434 i. 842 i. 736 i. 465 i. 1028 ii. 316 ii. 752 i. 569 i. 637 ii. 1274 i. 1013 ii. 797, 806 i. 413,735,843 ii. 1032 , S. V. (74 N. C. 98 , 21 Am. R. 487) i- 910 , S. V. (Phillips, N. C. 434) ii. 25 , S. V. (27 W. Va. 546) i 941 Moor, S. 0. (Walk. Missis. 134; 12 Am. D. 541) i. 981,1018, 1031 Moore, Ex parte (30 Ind. 197) ii. 677, 713 -^, In re (72 Cal. 359) ii. 255 , In re (63 N. C. 397) ii. 243, 265 V Clerk of Jessamine (Litt. Sel. Cas. 104) ii. 255, 268 i>. C. (8 Pa. 260) ii. 767, 768 , C. K. (11 Cush. 600) i.l090 , C. V (99 Pa. 570) ii. 419 V. Graves (3 N. H. 408) i. 464 V. Hussey (Hob. 93) 1. 536, 849, 857, 858 1-. Illinois (14 How. U S. 13) i. 178, 179, 988 ; ii. 285, 287 V. Moore (47 N. Y 467 ; 7 Am. R. 466) }} S4n V P. (47 Mich. 639) " "8 , P. V. (8 Cal. 90) ii 695 Moore, P. v. (37 Hun, 84) ii. 430 , P. V. (62 Mich. 496) i. 915 V. Quirk (105 Mass. 49 ; 7 Am. R. 499) ii. 540 , Reg. ■;. (3 Car. & K. 319) i. 412 , Reg. „. (13 Cox C. C. 544) i. 303 a , Reg. V. (1 Leigh & C. 1 ; 8 Cox C. C.416) ii. 883 , Rex u. (3 B. & Ad. 184) i. 531, 735, 1146 , Rex V. (1 Leach, 314; 2 East, P. C. 679) i. 648 ; ii. 819 , Rex V. (1 Leach, 335) i. 553 ; ii. 1167 , Rex w. (2 Leach, 575 ; 2 East - P. C. 582) , ii. 856 V. Sanborne (2 Mich. 519 ; 59 Am. D. 209) i. 174 ; ii. 1271 V. S. (18 Ala. 532) i. 735, 736 ; ii. 741 V. S. (7.1 Ala. 307) V. S. (4 Chand. 168) V. S. (3 Heisk. 493) V. S. (65 Ind. 382) V. S. (59 Missis. 25) V. S. (17 Ohio St. 521) ^ — V. S. (31 Tex. 572) V. S. (4 Tex. Ap. 127) V. S. (26 Tex. Ap. 322) S. V. (31 Conn. 479 i. 1057 ii. 1004 i. 998 i. 302 i. 1053 i. 373 ii. 723 i. 1085 i. 729 83 Am. D.' 159) " i. 853, 855, 856 ; ii. 1273 , S. V. (39 Conn. 244) ii. 1010 , S. V. (6 Fost. N. H. 448; 59 Am. D. 354) i. Ill , S. «. (15Iowa, 412) ii. 480 , S. V. (25 Iowa, 128 ; 95 Am. D. 776) 'ii- 657 , S. ■;. (11 Ire. 70) ii. 758, 765 , S. 0. (66 Mo 372) i. 1061 , S. V. (12 N. H. 42) i. 208, 339, 793, 796,1062; ii. 107,116 , S. V. (69 N. C. 267) ii. 712 , S. V. (82 N. C. 659) ii. 740 , S. V (Smith, Ind. 316; 1 Ind. 548) ii. 408 , S. V. (1 Swan, Tenn. 136) i. 38, 501 , U. S. V. (2 Low. 232) ii. 1047, 1048 V. Turbeville (2 Bibb, 602 ; 5 Am. I). 642) ii. 433 Moorehead, C. u. (118 Pa. 344; 4 Am. St. 599) ii 1267 Moorhouse, Rex v. (Cald. 554 ; 4 Doug. 388) i 240 Mopsey, Keg.v (11 Cox C. C. 143) ii. 562 Moran, P. v. (123 N. Y. 254 ; 20 Am. St. 732) V. Rennard (3 Brews. 601) Morby, Reg. v. (8 Q. B. D. 571 ; 15 Cox C. 0. 35) Mordecai, S. v. (68 N. C. 207) More, P. V. (71 Cal. 546) , U. S. V. (3 Cranch, 159) Morea, S. v. (2 Ala. 276) Morehead v. S. (9 Humph. 635) Morel V. S. (74 Ga. 17) Morely's Case (J. Kel. 63) 775 i 744 i.286 ii 643 ii. 91 i. 992 i. 1024 ii. 638 ii. 758, 799, 880 u 670 a ii. 704 MOR INDEX TO THE CASES CITED. MOR Mofey !). C. (108 Mass. 433) i. 1053, 1061 Morflt, Rex v. (Russ. & liy. 307) ii. 758, 843, 846 Morgan w. Bliss (2 Mass. Ill) i. 430, 432 ; ii. 175 , C. V. (14 B. Monr. 392) i. 909 , C. B. (11 Bush, 601) i. 736;ii. 72a , C. V. (107 Mass. 199) i. 317 V. Durfee (69 Mo. 469; 33 Am. R. 508) i- 858 V. King (18 Barb. 277) 1. 174 V. Pettit (3 Scam. 529) 1. 143 , Reg. V. (Dears. 395; 29 Eng. L. & Eq. 543) ii. 808 , Rex V. (11 East, 457) i. 960 . V. Rhodes (1 Stew. 70) i. 267, 271 V. S. (33 Ala. 413) ii. 741 V. S. (42 Ark. 131 ; 48 Am. R. 55) ii. 428 V. S. (13 Ind. 215) i. 1014 V. S. (13 Sm. & M. 242) i. 342 ; ii. 741 V. S. (3 Sneed, 475) i.,998, 1033 V. S. (34 Tex. 677) i. 1053 V. S. (42 Tex. 224) ii. 1018 — - V. S. (16 Tex. Ap. 593) ii. 638 , S. V. (40 Conn. 44) i. 1088 , S. u. (3 Heisk. 262) ii. 1200 , S. u. (3 Ire. 186 ; 38 Am. D. 714) i 536, 548, 857 ; ii. 34, 706 , S. V. (35 La. An. 293) ii. 560 , S. V. (39 La. An. 214) ii. 116 , S. V. (59 N. H. 322) li. 490 ■ , S. «. (95 N. C. 641) i. 1049 , S. V. (98 N. C. 641) ii 17 , S. V. ( Winst. i. 246) u. 499 Moriarty, S. v. (50 Conn. 415) i. 1065 Morine, P. v. (61 Cal. 367) 1. 850 Morison> Case (1 Broun, 394) ii. 28, 32 Morissey v. P. (11 Mich. 327) i. 141 Morley's Case (1 Hale P. C. 456; 6 How. St. Tr. 769) ii 704 Morley v. Pi;agnell (Cro. Car. 510) i. 1142 , Rex'w. (4 A. & E. 849) , ii 269 Morman v. S. (24 Missis. 54) i. 736, 998 Mormon Church v. U. S. (136 U. S. 1) i. 499 a Morningstar v. S. (55 Ala. 148) ii. 851 u. S. (59 Ala. 30) ii. 851 Morphin, S. v. (37 Mo. 373) ii. 888 Morrell v. P. (32 111. 499) ii 1020 Morrill, C. f. (8 Cush. 571) ii. 469 , S. w. (16 Ark. 384) ii. 243 Morris's Case (4 How. St. Tr. 951) ii. 529 Morris, C. v. (1 Va. Cas. 176 ; 5 Am. D. 515) ii. 918 . y. McMorris (44 Missis. 441 ; 7 Am. R. 695) ii. 540 V. Nugent (7 Car. & P. 572) i. 1080 , Reg. V. (9 Car. & P. 89) i 342 , Reg. V. (9 Car. & P. 349) i. 224 ; ii. 767 , Reg. V. (2 Crawf. & Dix C. 0. 91) i. 883 , Reg V. (Law Rep. 1 C. C. 90; 10 Cox C. C. 480) i. 1059 776 Morris, Rex v. (1 B. & Ad. 441 ) i. 531 ; ii. 1267, 1278 , Rex V. (2 Leach, 1096) i. 363, 673, 965 Rex V. { Russ. & Ry. 270) V. Shew (29 Kan. 661) V. S. (31 Ind. 189) 0. S. (47 Ind. 503) V. S. (8 Sm. & M. 762) V. S. (38 Tex. 603) , S. V. (47 Conn. 179) , S. V (3 Hawks, 388) , S. u. (3 Misso. 127) i. i. 359 ii. 968 ii. 959 ii. 966 i. 1006 i. 1088 i. 559 , U. S. V. (1 Curt. C. C. 23) 686, 537 ; ii. 490 1. 990, 1039, 1041 , U, S. V. (10 Wheat. 246) i. 910 V. Whitehead (65 N. C. 637) ii. 242 a Morris Canal & Banking Co. v, S. (4 Zab. 62) ii. 1282 , S. V. (2 Zab. 537) . ii. 1269, 1270 Morris and Essex Rid., S. v. (3 Zab. 860) i. 420 Morris Run Coal Co. v. Barclay Coal Co. (68 Pa. 173; 8 Am. R. 159) ii. 198, 231 Morrisette v. S. (77 Ala. 71) i. 998; ii. 851 Morrison, C. w. (16 Gray, 224). 1.769 V, Howe (120 Mass. 565) ii 1281 V. McDonald (21 Me. 550) 1. 462; ii. 243 ii 259 ii. 270 V. Moat (4 Edw. Ch. 26) V. Morrison (4 Hare, 690) , Pennsylvania!;. (Addison, S74) i. 534: ii. 1147 , P. V. (1 Par. Cr. 625) i. lOOSTii. 1122 , P. V. (13 Wend. 399) i. 672 a , Reg. V. (Bell C. C. 158 ; 8 Cox C. C. 194) ii 785 V. S. (17 Tex. Ap. 34; 50 Am R. 120) , S. V. (3 Dev. &'Bat. 115) , S. V. (41 Mo. 238) , U. S. K. (1 Sumner, 448) Morrissey, C. v. (86 Pa. 416) Morrow, C. v. (9 Philad. 583) , U. S. I'. (4 Wash. C. C. i. 631,682,685,686, 769; Morse v. Calley (5 N. H. 222) , C. w. (2 Mass. 128) , C. V. (2 Mass. 138) ,C.v. (14 Mass. 217) , P. V. (09 N. Y. 662) V. S. (6 Conn. 9) , S. ». (52 Iowa, 509) Mortimer, C. v. (2 Va. Cas. 325) , P. V. (46 Cal. 114) Morton i: Bradley (27 Ala. 640) i. 267, 271 V. Lee (28 Kan. 286) i. 464 V. Moore (16 Gray, 673) ii. 1278 V. Princeton (18 HI. 383) i. 934, 948 , Reg. V. (Law Rep. 2 C. C. 22 ; 12 Cox C. C. 466) ii, 567 , Rex V. (2 East P. C. 966 ; 1 Leach, 258, n.) ii. 529, 540 ii. 801 i. 1034 i. 464 i. 564 i. 468 a ; ii. 349 i. 960 783) ii. 291, 299 i. 464 ii. 548, 605 i. 204, 206 ii. 758, 826 ii 802 i. 207 468 a 1062 280 MUL INDEX TO THE CASES CITED. MDR Morton v. Shoppee (3 Car. & P. 373) ii. -28, 31 V. S. (1 Lea, 498) ii. 888 V. S. (3 Tex. Ap. 510) ii. 913 Jiloseley, Reg v. (Leigh & C. 92 : 9 Cox C. C. 16) ii. 472 V. S. (83 Tex. 671) i. 1033 V. S. (42 Tex. 78) ii. 789 Mosely v. S. (28 Ga. 190) ii. 996 Moses V. Dubois (Dudley S. C. 209) ii. 748 V. S. (58 Ind. 185) i. 244, 491 , U. S. V. (4 Wasi). C. C. 726) ii. 598 Mosher v. Vincent (39 Iowa, 607) ii. 1273 Mosler, C. v. (4 Pa. 264) i. 376, 880, 384, 388-; ii. 703 Mosley, Rex v. (3 A. & E. 488) i. 458 , S. V. (31 Kan. 355) i. 666, 667 Moss V. Bettis (4 Heisls. 661 ; 18 Am. E. 1) ii. 857, 858 V. Scott (2 Dana, 271 ) V. S. (42 Ala. 546) Most, P. V. (128 N. Y. 108) , Reg. V. (7 Q. B. D. 244) Mostyn v. Fabrigas (Cowp. 161) Mott, C. V. (21 Pick. 492) , P. V. (34 Mich. 80) ii. 139 i. 934 u. 1257 i. 768 a i. 140 i. 960, 1049 ii. 605 , Rex V. (2 Car. & P. 521) ii. 206 , S. V. (4 Jones, N. C. 449) ii. 268 , S. V. {IQ Minn. 472; 10 Am. R. 152) ii. 540 Moulden v. S. (5 Lea, 577) ii. 430 Moulton, C. V. (108 Mass. 307) ii. 1200 , U. S. w. (5 Mason, 537) ii. 785 Moultrieville, S. v. (Rice, 158) i. 793 ; ii. 986 MounCer, Rex v. (2 Leach, 567; 2 East P. C. 639) i. 937 Mount V. C. (2 Duv. 93) i. 919, 1027 , V. S. (14 Ohio, 295) i. 994, 1016, 1041 V. S. (7 Sm. & M. 277) i. 689 Mountford, Rex v. (7 Car. & P. 242 ; 1 Moody, 441) i. 758 Mower, S. v. (68 Iowa, 61) i. 947 Mowery v. Salisbury (82 N. C. 175) i. 832 Mowrey v. Walsh (8 Cow. 238) i. 583 ; ii. 809, 815 Mowry, C. v. (11 Allen, 20) ii. 1179 a , S. V. (37 Kan. 369) i. 383 b, 384 Moye V. S. (65 Ga. 754) i. 566; li. 898 Moynihan v. S. (70 Ind. 126 ; 36 Am. R. 178) ii. 727 Mucklow, Rex u. (1 Moody, 160; Car. Crim. Law, 3d ed. 280) ii. 801, 802 Mudie, Rex v. (1 Moody & R. 128) ii. 1039 Mueller v. S. (76 Ind. 310; 40 Am. R. 245) ii. 954, 959 Muir V. S. (8 Blackf. 154) i. 464; ii. 1020 Mulcahy v. Reg. (Law Rep. 3 H. L. 306) ii 1231 Mullaly V. P. (86 N. Y. 365) ii. 773 MuUany, Reg. v. (Leigh & C. 593) ii. 1030, Mullee, In re (7 Blatch. 23) i. 913 ; ii. 269 Mullen V. S. (45 Ala. 43; 6 Am. R. 691) i. 749 Mullen, S. v. (30 Iowa, 203) ii. 789 , S. V. (35 Iowa, 199) i. 150, 1085 , S. u. (14 La. An. 570) i. 37, 401, 680, 850, 865 Mullens v. S. (82 Ala. 42 ; 60 Am. R. 731) i. 300, 538 MuUigan v. S. (25 Tex. Ap. 199; 8 Am. St. 435) ii. 17 Mullikin, S. v. (8 Blackf. 260) i. 504, 1113, 1115 MuUinix v. P. (76 111. 211) i. 892 Mullins V. Collins (Law Rep. 9 Q. B. 292) i. 317 V. S. (37 Tex. 337) ii. 847 Mulreaty, Rex v. (1 Rubs. Crimes, 3d Eng. ed. 698) i. 503; ii. 1192 Mulreed v. S. (107 Ind. 62) i. 291 Mulroy, Reg. t. (3 Crawf. & Dix C. C. 318) i. 557, 883, 884 ; ii. 29, 56 Mulvey v. S. (43 Ala. 316 ; 94 Am. D. 684) i. 363 Munch, S. V. (22 Minn. 67) ii. 376 Munco, S. V. (12 La. An. 625) i. 791 Munday, Reg. v. (2 Fost. & F. 170) i. 663 , S. V. (78 N. C. 460) ii. 458 Mundel, U. S. v. (6 Call, 245) i. 934 Munford v. S. (39 Missis. 558) i. 1054, 1055, 1056 Mungeam v. Wheatley (1 Eng. L. & Eq. 516 ; 15 Jur. 110) i. 299 ; ii. 256, 269 Munsey, C. v. (112 Mass. 287) i.'359 Munson ;;. P. (5 Par. Cr. 16) i. 1079 Munton, Rex v. (1 Esp. 62) i. 110 Murat, P. V. (45 Cal. 281) i. 772 ; ii. 740 Murback, P. v. (64 Cal. 369) ii. 704 Murdoch, S. v. (71 Me. 454) i. 656 Murdock, Reg. v. (2 Den. C. C. 298 ; 8 Eng. L. & Eq. 577) ii. 376 , S. V. (86 Ind. 124) i. 464 Mure V. Kaye (4 Taunt. 34) i. 135 Murfreesboro', S. v. (11 Humph. 217) i. 419, 531 ; ii. 1281 Murphy v. Bottomer (40 Mo. 67) i. 714 1). C. (23 Grat. 960) i. 1054 , C. V. (12 Allen, 449) ii. 404, 1200, 1201 , C. V. (2 Gray, 510) i. 361, 363, 366 C. V. (3 Pa. Law Jour. Rep. 290) i. 974 — V. P. (9 Colo. 435) ii. 687 — w. P. (37 111.447) i. 857 — v.P. (104 111. 528) ii. 812 — «. P. (5 Thomp. & C. 302 , 3 Hun, 114) ii . 1162 a — , P. V. (45 Cal. 137) i.951 —, P. V. (47 Cal. 103) ii. 797 —, Reg V. (8 Car. & P. 297) ii. 190 — . Reg „. (4 Cox C. C 101) ii. 335 — , Reg V. (6 Cox C. C 340 ii. 901 — , Reg V. (13 Cox C. ( J. 298) ii.420 — , Reg V. (1 Crawf. & Dix C. C. 20) li. 991 — Reg «.(LawRep.2P. C 535) i. 1001 777 MYE INDEX TO THE CASES CITED. NEE Murphy, Rex v. (6 Car. & P. 103) i. 632, 636, 642; ii. 692, 744 V. S. (37 Ala. 142) ii. 715 „. s. (7 Coldw. 616) i. 998 V. S. (3 Head, 249) ii.,1262 V. S. (31 Ind. 511) ii. 677, 680, 697, V. a. (6 Tex. Ap. 420) i. 892 , S. V. (6 Ala. 765; 41 Am. D. 79) i. 259, 261, 692, 792 ; ii. 235, 239, 1122 , S. V. (8 Blackf. 498) i. 578, 679, 799; ii. 758, 771 , U. S. V. (MacAr. & M. 375; 48 Am. R. 754) • ii. 808 V. Wilson (46 Ind. 637) ii. 263 Murray's Case (1 Wils. 299 ; 8 How. St. Tr. 30) ii. 247 Murray v. Ballou (1 Johns. Ch. 566) ii. 140 V. Charming Betsey (2 Cranch, 64) i. 306 V. C. (13 Met. 514) i. 965 V. C. (24 Pa. 270) ii. 960 t>. C. (79 Pa. 311) i. 305, 872 , C. V. (2 Ashm. 41) ii. 728 , C. V. (14 Gray, 397) i. 516 , C. «. ( 135 Mass. 530) ii. 86 a V. Lylburn (2 Johns. Ch. 441) ii. 140 , P. V. (14 Cal. 169) i. 764 , Reg. V. (1 Post. & F. 80) ii. 1035 , Rex V. (5 Car. & P. 145 ; 1 Moody, 276) i. 567 , Rex V. (1 Jur. 37) i. 247, 256 , Rex V. (1 Leach, 344; 2 East P. C. 683) ii. 365, 813, 8-30, 856 , Rex V. (1 Moody, 276) ii. 365, 368 V. S. (18 Ala. 727) i. 141 ; ii. 758, , 880 , S. V. (55 Iowa, 530) i. 1061 , S. V. (15 Me. 100) i. 465, 466, 697, 792, 814 ; ii 1089 , S. V. (11 Or. 413) i. 383 6, 384 Murrell v. S. (44 Ala. 367) i. 894 Murtagh, Reg, c.. (1 Crawf.& Dix C. C. 355) i. 578 ; ii. 769 Murton, Reg. v. (3 Fost. & F. 492) ii. 657 Muscot, Reg. w. (10 Mod. 192) ii. 1046 Muse w. Vidal (6 Munf. 27) i. 460 Musgravew. Medex (19 Ves. 652) i. 110; ii. 1029 Muskingum v. Board of Public: Works '(39 Ohio St. 628) ii. 1267, 1269 Mutters, Reg. v. (Leigh & C. 491, 10 Cox C. C. 6) ii. 1273 , Reg. V. (Leigh & C. 511) ii. 874 Mycall, C. v. (2 Mass. 136) i. 572 ; ii. 531, 585 Myer v. Whitaker (55 How. Pr. 376) ii. 766 Myerfield, S. v. (Phillips, N. C. 108) ii. 41 a Myers v. 0. (110 Pa. 217) ii. 1282 , C. B. (1 Va. Cas. 188) i. 1014, 1028 V. Myers (2 McCord Eq. 214 ; 16 Am. D. 648) i. 883 V. P. (26 111. 173) i. 141 , Rex 17. (1 T. R. 265) ii. 256 ' V. Springfield (112 Mass. 489) ii. 1280 778 Myers v. S. (1 Conn. 602) i. 801, 303 ; U.970 V. S. (46 Ohio St. 473 ; 15 Am. St. 688) ii. 259 V. S. (83 Tex. 525) ii. 704 , S. V. (19 Iowa, 517) il. 72 a , U. S. V. (1 Cranch C. C. 310) ii. 34 Myhand, S. v. (12 ta. An. 604) i. 940 Mytton, Rex v. (Cald. 53a; 1 Bott ■p. L. 439, n. ; 4 Doug. 333) i. 240 Nabors v. S. (6 Ala. 200) i. 499, 1006 ; ii. 968 Nagle V. Brown (37 Ohio St. 7) ii. 966 a , U. S. V. (17 Blatch. 258) i. 1021 Naglee, P. d. (1 Cal. 232 ; 52 Am. D. 312) i. 176 Nailor's Case (cited Foster, 278) i. 867 Nailer, U. S. v. (4 Cranch C. C.872) i. 1088 Naish V. East India Co. (2 Comyns, 462) • i. 355 Nail V. S. (34 Ala. 262) i. 892 ; ii. 1104 Nalley v. S. (28 Tex. Ap. 387) i. 303 Nance v. S. (17 Tex. Ap. 385) i. 1062 Nancy v. S. (6 Ala. 483) i. 736 ; ii. 741 Napoleon v. S. (3 Tex. Ap. 522) ii. 346 Napper, S. v. (6 Nev. 113) .i. 738, 749; ii. 53 Narrows Island Club, S. v. (100 N. C. 477) ii. 1272 Nash V. Primm (1 Misso. 178) i. 271 , Reg. w. (2 Den. C. C. 493 ; 12 Eng. L. & Eq. 578) i. 748 ; ii. 699 V. S. (20 Tex. Ap. 384) ii. 95 , S. w. (7 Iowa, 347) i. 653 , S. V. (86 N. C. 650; 41 Am. R. 472) i. 736 , S. V. (88 N. C. 618) i. 303 a Nason, C. v. (9 Gray, 125) ii. 430 V. Dillingham (16 Mass. 170) i. 464 Nathan v. S. (8 Misso. 631) i. 620; ii. 1134 Nations, S. v. (31 Tex. 561) ii. 741 Nayler's Case (5 How. St. Tr. 802) ii. 76 Naylor, C. v (34 Pa. 86) ii. 961 , Reg. u. (11 Cox C. C. 13) ii. 1030 , Reg. V. (Law Rep. 1 C. C. 4) ii. 471 Neal V. C. (17 S. & R. 67) i. 146 , C. u. (10 Mass. 152; 6 Am. D. 105) i. 358, 359, 361 V. Farmer (9 Ga. 565) i. 271, 564 V. S. (54 Ga. 281) i. 880, 882; ii. 726 , S. !). J37 Me. 468) i. 786 Neale v. The Overseers (5 Watts, 538) i. 464 , Reg. V. (1 Car. & K. 691 ; 1 Den. 0. C. 36) i. 791,812; ii. 1118 , Reg. V. (9 Car. & P. 431 ) i. 469, 534 ; ii. 974, 1258 , U. S. V. (14 Fed. Rep. 767) ii. 1053ft Ned V. S. (7 Port. 187) i. 1031, 1033, 1034, 1041 Needham, Ex parte (Pet. C. C. 487) i. 482 NEW INDEX TO THE CASES CITED. NIC Needham v. S. (1 Tex. 139) i. 343 Neel V. S. (4 Eng. 259;. 50 Am. D. 209) ii. 269 Neeiey, S. o. (20 Iowa, 108) i. 843, 844 Neely v. S. (8 Tex. Ap. 64) ii. 851, 882 NefE, S. V. (58 Ind. 516) ii, 37, 72, 72 d Negus, Reg. v. (Law Rep. 2 C. C. 34 ; 12 Cox C. C. 492) ii. 341, 346 Neil, Rex v. (2 Car. & P. 485) i. 491, 1138 Neills, C. V. (2 Brews. 553) i. 642 Nelson, P. w. (56 Cal. 77) ii. 1159 V. S. (39 Ala. 667) i. 893 V. S. (82 Ala. 44) ii. 539 0. S. (6 Bax. 418) ii. 731 V. S. (10 Humph. 518) i. 811 V. S. (47 Missis. 621) ii. 1030 — - V. S. (25 Tex. Ap. 599) ii. 959 , S. V. {1 Ala. 610) i. 1040 , S. V. (26 Ind. 366) i. 1033 , S. u. (29 Me. 329) i. 359, 363, 793, 1061 , S. I). (8 N. H. 163) ii. 888 , U. S. V. (1 Abb. U. S. 135) ii. 605 v. Wl)etmore(l Rich. 318) ii.823,880 Nemo V. C. (2 Grat. 558) . i. 932, 934 Nerac's Estate (35 Cal. 392 ; 95 Am. D. Ill) i 970,971a Nesbit, C. v. (34 Pa. 398) ii. 954, 958, 960 Nether Hallam, Reg^ v. (3 Com. Law, 94 ; 29 Eng. L. & Eq. 200) ' ii. 1281 Netherthong, Rex v. (2 B. & Aid. 179) ii. 1270 Nettles, Ex parte (58 Ala. 268) ii. 680 Nettleton, Rex v. {I Moody, 259) ii. 334, 346 Neuendorff «. Duryea (69 N. Y. 557 ; 25 Am. R. 235) ii. 951 Neverson, U. S. v. (1 Mackey, 152) i. 1014 Jileville, Rex v. (Peake, 91) i. 244, 531, 1139 , S. V. (6 Jones, N. C. 423) ii. 708 Nevills !;.'S. (7 Coldw. 78) i. 772 Nevins, P. v. 11 Hill, N. Y. 154) ii. 255, 268 Nevling v. C. (98 Pa. 322) ii. 728 New Bedford Bridge, C. v. (2 Gray, 339) i. 174, 175, 420; ii. 1269 , U. S. V. (1 Woodb. & M. 401) i. 174, 190, 195, 199, 201, 265 New Orleans v. Cordeviolle (13 La. An. 268) i. 279 V. Costello (14 La. An. 37) i. 1089 V. Steamship Co. (20 Wal. 387) ii. 242 a V. U. S. (10 Pet. 662) i. 159 New York, The (3 Wheat. 59) i. 352, 824 , P. V. (29 Barb. 622) ii. 268 New York Juvenile Guardian Soo. V. Roosevelt (7 Daly, 188) ii. 913 New York, &c. Rid., C. v. (112 Mass. 409) ii. 1274 V. New Haven (46 Conn. 257) ii. 1267 , P. V. (89 N. Y. 266) ii. 1278 Newall w. Jenkins (26 Pa. 159) ii. 220 Newark Plank Road v. Elmer (1 Stock, 754) ii. 1271 Newbegin, S r. (25 Me. 500) ii. 118 Newbery, In re (4 A. & E. 100) ii. 255 Newbery «. Goodwin (1 Phillim. 282) 1. 38 Newbury, In re (5 Nev. & M. 419) ii. 255 Newburyport Bridge, C. o. (9 Pick. 142) ii. 1269 Newby, S. v. (64 N. C. 23) ii. 996 V. Territory (1 Or. 163) ii. 1147 Newdigate, Rex v. (Comb. 10) i. 540 ; ii. 312 Newell, C. v. (7 Mass. 245), i. 35, 437, 559, 617, 625, 805, 808, 810 ; ii. 110, 1004, 1008 V. Cowan (30 Missis. 492) i. 271 , S, V. (1 Misso, 248) ii. 444 Newfane, S. v. (12 Vt, 422) ii. 1267 Newkirk v. Cone (18 111. 449) 11. 131, 135 V. Dalton (17 III. 413) i. 268 , 8. V. (49 Mo. 84) ii. 998 Newland, S. v. (27 Kan. 764) i. 535 Newlands, Reg. v. (4 Jur. 322) i. 536 ; ii. 605 Newman, Ex parte (9 Cal. 502) ii. 951 , Keg. V. (1 Ellis & B. 268; Dears, 85 ; 22 Law J. n. s. Q, B. 156; 17 Jur. 617; 18 Eng. L. & Eq. 113) ii. 920 V. ShyrlfE (3 Leon. 170) ii, 566 ,6. ^.(9 Nev. 48; 16 Am. R. 3) i. 140, 141; ii. 799,839 Newport v. Taylor (16 B. Monr. 699) i, 172 Newsom w. S. (2 Kelly, 60) i. 1014, 1017 Newton, In re (13 Q. B. 716 ; 13 Jur. 606; 18 Law J. n. s. M. C. 201) i. 1033, 1041 i>. C. (8 Met. 535) ' i, 960 , C. B. (1 Grant, Pa. 453) ii. 268 , C. V. (8'Pick. 234) ii 968 V. Harland (1 Man. & C. 644) ii. 490 V. Locklin (77 111. 103) ii. 244, 246 , Reg. V. (1 Car. & K. 469) i. 464 ; ii. 1020 , Reg. V. (3 Car. & K. 85 ; 3 Cox C. C. 489) i. 1033 , Reg. V. (2 Moody & R. 503) i. 1014 , Rex V. (Car. Crim. Law, 285) ii. 1173 —, Rex w. (2 Lev. Ill) i. 625, 799 V. Ricketts (11 Beav. 67) ii. 270 , S. V. (44 Iowa, 45) i. 302 , S. V. (28 La. An. 65) ii. 349 , S. V. (26 Ohio St. 265) ii. 349 , S. V. (42 Vt. 537) ii. 888 V. Trigg (1 Show. 268) i. 532 Nichol, Rex u. (Russ. & Ry. 130; 1 Ben. & H. Lead. Cas. 513) i. 261, 548 ; ii.28, 86 Nicholas, S. v. (2 Strob. 278) 1 287, 992 NichoUs, Reg. v. (9 Car. & P. 267) i. 735, 809 i, 804 ii. 660 ii, 499 , Reg. V. (2 Cox C. C. 182) , Reg. V. (13 Cox C, C. 75) , Rex V. (2 Keny. 512) i, 636 Nichols V. C. (11 Bush, 575) i. 401 ; u. 677, 697 V. C. (78 Ky. 180) i. 1061 , C. V. (10 Met. 259 ; 43 Am, D, 432) i. 631, 686 779 NOR INDEX TO THE CASES CITED. NUT Nichols ». P. ( 1 7 N. Y. 114) ii. 860 , P. V. (3 Par. Cr. 579) ii. 800 V. Pixly (1 Root, 129) i. 265 V. S. (89 Iiid. 298) 1. 343 ; ii. 1279 V. S. (8 Ohio St. 435) i. 413 V. S. (35 Wis. 308) i. 618 , S. V. (26 Ark.- 74 ; 7 Am. R. 600) i..899, 900, 903, 907 , S. V. (38 Ark. 550) i. 1010 , S. V. (8 Conn. 496) i. 736, 794 ; ii. 56, 741 — ^, S. a. (1 Houst. Crim. 114) ii. 415, 468 , S. V. (12 Ricli.672) ii. 995 V. Valentine (36 Me. 322) i. 11 Nicholson v. Hardwick (5 Car. & P. 495) i. 306 — , Rex V. (1 East P. C. 846) i. 429 , Rex V. (2 Leach, 610 ; 2 East P. C. 669) i 583 ; ii. 810 V. S. (9 Bax. 258) i. 772 , S. !;.'(2Murph. 135) ii. 1282 Nickels v. Kane (82 Va. 309) ii 181 Nickerson, C. ^. (5 Allen, 518) ii. 751, 753, 764 , U. S. u. (17 How. U.S. 204) i. 1063 , U. S. V. (1 Sprague, 232) ii. 1026, 1027 Nickless, Reg. u. (8 Car. & P. 757) i. 516, 630 NicoUs, Rex v. (2 Stra. 1227) i. 801 ; ii. 188 Niland v. S. (19 Tex. Ap. 166) ii. 704 Nine Packages of Linen, U. S. v. (1 Paine, 129) i. 306, 824 Nisbett, Reg. v. (6 Cox C. C. 820) ii. 605 Nix, C. w.,(llLeigli, 636) i. 564, 998 Nixon, Rex v. (7 Car. & P. 442) ii. 763, 783 - — , S. V. (32 Kan. 205) i. 384 , S. V. (18 Vt. 70; 46 Am. D. 135) i. 343, 734, 1086 , S. u. (Wright, 763) ii. 272 Noakes v. P. (25 N. Y. 380) ii. 560 , Reg. V (4 Post. & F. 920) ii. 664 Noble V. S. (59 Ala. 73) ii. 372 V. S. (22 Ohio St. 541) ii. 1131 Noe V. P. (39 111. 96) < ii. 7 Noel, S. V. (T. U. P. Charl. 43) ii. 256 Nolan, C. «. (5 Cush. 288) ii. 898 V. S. (55 Ga. 521 ; 21 Am. R. 281) i 998, 1014, 1033, 1035 Noland v. S. (19 Ohio, 131 ) i. 670, 789 Noles V. S. (26 Ala. 31 ; 62 Am. D. 711) i. 842, 849, 857 Nolton, U. S. V. (5 Blatch. 427) i. 488 Noon, Reg. i>. (6 Cox C. C. 137) ii. 675, 681 Norden's Case (Foster, 129; 1 Russ. Crimes, 3d Eng. ed. 880) i. 438 Norfolk's Case (1 How. St. Tr. 957) ii. 1213 Norfolk, &c. Rid., S. u. (33 W. Va. 440) Norman, Reg. o. (Car. & M. 501) V. S (26 Tex. Ap. 221) Norris, Ex parte (8 S. C. 408)' , Rex V. (2 Keny. 300) 780 ii. 952 i. 567 ; ii. 376 ii. 704 i. 464 ii. 230 Norris v. S. (87 Ala. 85) ii. 1125 V. S. (25 Ohio St. 217; 18 Am. R. 291) ii. 414 , S. V. (9 N. H. 96) ii. 1018, 1038, 1039 , S. V. (59 N. H. 536) ii. 305 North, Reg. v. (8 Cox C. C. 433) ii. 812 North Chicago City Ry. v. Lake View (105 111. 207; 44 Am. R. 788) i. 1072 North River Steamboat Co. v. Liv- ingston (3 Cow. 713) i. 178 Northampton's Case (12 Co. 182) i. 940 Northampton, Rex u. (2 M. & S. 262) ii. 1281 Northampton Insurgents ( Wharton's State Trials, 458) ii. 1202 Northcot V. S. (43 Ala. 330) ii. 996 Northern Cent. Ry. v. C. (90 Pa. 300) i. 419, 420; ii 1267,1270,1278 Northrop v. Brush (Kirby, 108) ii. 54 Northrup b. Foot (14 Wend. 248) ii. 968 Northumberland, S. v. (44 N. H. 628) ii. 1267, 1268 Norton, C. v. (11 Allen, 266) ii. 428, 432 a V. Ladd (5 N. H. 203; 20 Am. D. 573) i. 578; ii. 758, 772, 773 V. P. (8 Cow. 137) i. 653, 664 , P. V. (7 Barb. 477) i. 237, 239, 459, 460,462; ii. 973 V. Sanders (1 Dana, 14) ii. 139 V. S. (106 Ind. 163) i 789 V. S. (4 Misso. 461) i.207; ii. 863, 864 V. S. (14 Tex. 387) i. 1028; ii. 43 , S. V. (2 Ire. 40) i. 491 , S. V. (46 Vt. 258) i. 516 , S. V. (3 Zab. 33) i. 432 ; ii. 174, 192, 198, 209, 237, 578 Norvell, S. v. (2 Yerg. 24 ; 24 Am. D. 458) i. 982, 994, 1000, 1024, 1041 Nott, C. V. (135 Mass. 269) ii 901, 902 , Reg. V. (4 Q. B. 768 ; Dav. & M. 1) i. 237 , U. S. t>. (1 McLean, 499) ii. 904 Nottingham v. Baltimore, &c. Rid. (3 MacAr. 517) i. 265 Noyes u. S. (12 Vroom, 418) i. Ill , S. u. (10 Fost. N. H.279) i.829, 1079 , S. V. (47 Me. 189) ii. 1267 , S. V. (25 Vt. 415) i. 432, 814 ; ii. 193, 239, 1011 Nueslein, S. v. (25 Mo. Ill) ii. 728 Nueva Anna, The (6 Wheat. 193) i. 119 Nugent, Ex parte (4 Pa. Law Jour. Rep. 220) ii. 247 , Reg. V. (11 Cox C. C. 64) i. 466 V. S. (18 Ala. 621) i. 753 ; ii. 1116 V. S. (4 Stew. & P. 72; 24 Am. D. 746) i. 1032 , Territory v. (1 Mart. La. 103) i. 946 Nun, Reg, o. (10 Mod. 186) i. 470, 734; ii. 266, 946 Nuthill V. S. (11 Humph. 247) ii. 744, 746 Nutt V. S. (63 Ala. 180) i. 1006 , S. v. (23 Vt. 698) i. 1054 Nutting, S. V. (16 Vt. 261) I. 811 OGD INDEX TO THE CASES CITED. OME Nutzel V. S. (60 Ga. 264) ii. 904 Nye V. P. (35 Mich. 16) ii. 675, 676, 726 , U. S. I). (2 Curt. C. C. 225) i. 564 Nymph, The (1 Ware, 257) i. 821 Oakland v. Carpentier (21 Cal. 642) i. 296 Oakland Rid. v. Oakland, &c. Rid. (45 Cal. .365; 13 Am. B. 181) i. 819 a. 822 ii. 503 ii. 1273 ii. 1020 Oakley, Bex v. (4 B. & Ad. 807) Oaks, C. V. (113 Mass. 8) V. Rodgers (48 Cal. 197) Oates, Reg. v. (Dears. 459 ; 29 Eng. L. & Eq. 552 ; 6 Cox C. C. 540 ; 24 Law J. N. s. M. C. 123 ; 1 Jur. N. s. 429; 3 Com. Law, 661) ii. 429 Oath before the Justices (12 Co. 130) i. 171 O'Blennis v. S. (12 Misso. 311) i. 226, 689 O'Brian t>. C. (6 Bush, 563) i. 1018 v.C. (9 Bush, 333; 15 Am. B. 715) i. 1013, 1015, 1018, 1026, 1039, 1041 , Reg. V. (1 Den. C. C. 9; 3 Car. & K. 115) > i. 693 , Bex V. (2 Stra. 1144 ; 7 Mod. 378) - 1. 287, 468, 572, 793 ; ii. 165, 529, 1029 V. S. (12 Ind. 369) i. 1028 O'Brien's Case (1 Townsend St. Tr. 469) ii. 1213 O'Brien, C. v. (12 Cush. 84) i. 814 , C. V. (119 Mass. 342; 20 Am. B. 325) . ii. 680 II. .Henry (6 Ala. 787) ii. 513 V. P. (48 Barb. 274) i. 409 L'. P. (28 Mich. 213) i. 1088 , Beg. n. (4 Cox C. C. 398) ii. 92. 93 V. S. (6 Tex. Ap. 665) ii. 86 a V. S. (7 Tex. Ap. 181) ii. 88 , S. V. (2 Root, 516) ii. 17 , S. V. (3 Vroom, 169) i. 314; ii. 662ffl Ochs V. P. (25 III. Ap. 379) ii. 191 O'Connell w. Lewiston (65 Me. 34 ; 20 Am. R. 673) ii. 964 , P. V. (62 How. Pr. 4.36) i. 376, 383 b V. Reg. (11 CI & F. 155; 9 Jur. 25 ; 2 Townsend St. Tr. 392) i. 432, 945; ii. 175, 176,224 O'Connor, S. v. (31 Mo. 389) i. 305, 843 Odel, S. V. (3 Brev. 552) i. 572 ; ii. 543, 598 Odell V. Garnett (4 Blackf. 549) ii. 79, 80 , P. V. -(1 Dak. 197) i. 413, 795 , S. V. (4 Blackf. 156) i. 1028 , S. V. (8 Blackf. 396) i. 460 ; ii. 973 O'Dogherty, Beg. v. (5 Cox C. C. 348) ii. 259,262 O'Doherty, Reg.'W. (Hodge's Report) ii. 916 O'Donnell. Reg. v. (7 Cox C. C. 337) ii. 841 o Odum, S. V. (11 Tex. 12) i 35 OfEord, Bex v. (5 Car. & P. 168) i. 384 OfEutt, S. V. (4 Blackf. 355) ii. 1024 Ogden V. Des Arts (4 Duer, 275) ii. 132 Ogden V. Gibbons (4 Johns. Ch. 150) i 173 , Bex V. (6 Car. & P. 631) i. 336 V. S. (12 Wis. 532; 78 Am. D. 754) i. 671 Oglesby v. S. (39 Tex. 53) ii. 748 Ogletree v. Dozier (59 Ga. 800) i. 900 V. S. (28 Ala. 693) i. 735, 736; ii. 741 O'Hanlan v. Myers (10 Rich. 128) i. 399 O'Hara, S. «. (92 Mo. 59) ii. 728 O'Herrin v. S. (14 Ind. 420) i. 411, 934 Ohio and Mississippi Bid., S. u. (23 Ind. 362) i. 420 Ohio and Pennsylvania Rid., C. v. (1 Grant, Pa. 329) i. 420, 906 O'Kane, S. v. (23 Kan. 244) i. 780, 789 ; ii. 745 O'Kean, S. o. (35 La. An. 901) ii. 376 Okey, Rex v. (8 Mod. 45) i. 460, 462 ; ii. 973 Olathe V. Thomas (26 Kan. 233) i. 778, 1061 Olcott, P. V. (2 Johns. Cas. 301 ; 2 Day, 507, n. ; 1 Am. D. 168) i. 801,990, 1033, 1034, 1041 ; ii. 188, 201 Old Malton, Rex v. (4 B. & Aid. 469) ii. 1286 Oldfield's Case (12 Co. 71) i. 470, 942 ; ii. 50 Oldham, In re (89 N. C. 23 ; 46 Am. R. 673) ii. 257 OldnoU'sCase (2Dy. 155 a) i. 457 Olds V. C. (3 A. IC. Mar. 465) i. 488 , C. V. (5 Litt. 137) i. 982, 990, 1018, 1031, 1041 O'Leary v. P. (4 Par. Cr. 187) ii. 740, 743 V. S. (44 Ind. 91) i. 892 Oleson V. S. (11 Neb. 276; 38 Am. R. 366) ii. 1122 V. S. (20 Wis. 58) ii. 1105 , S. V. (26 Minn. 507) i. 1029 dinger v. Shepherd (12 Grat. 462) ii. 505 Oliphant, Pennsylvania v. (Addison, 345) ii. 1267 Olive V. C. (5 Bush, 376) ii. 110 Oliver v. Loftin (4 Ala. 240) ii. 1267, 1277 , Rex V. (2 Russ. Crimes, 3d Eng. ed. 43 j 2 Leach, 1072; 4 Taunt. 274) ii. 812, 817 V. S. (17 Ala. 587) i. 305, 321, 347, 842,849,857,869; ii. 731 V. S. (17 Ark. 508) ii. 1012 , S. V. (2 Houst. 585) ii. 699 , S. V. (39 La. An. 470) i. 998 , S. V. (70 N. C. 60) i. 891 Olmstead, P. v. (30 Mich. 431) ii. 722 Olmsted v. Dennis (77 N. Y. 378) i. 464 V. Hotailing (1 Hill, N. Y. 317) ii. 818 Olwell, P. V. (28 Cal. 456) i. 1047 Omaha, S. v. (14 Neb. 265; 45 Am. B. 108) ii. 1274 O'Malley, C. v. (97 Mass. 584) ii. 803 , C. V. (131 Mass. 423) i. 305 Omealy v. Newell (8 East, 364) i. 468, 7.34 , ii. 1029 781 O'SH INDEX TO THE CASES CITED. PAG O'Meara v. S. (17 Ohio St. 515) i. 373, 1014 Omit V. C. (21 Pa. 426) ii. 961 One Case, U. S. v. (6 Ben. 493) i. 488 One Copper Still, U. S. v. (8 Bis. 270) i.824 One Hundred Barrels Spirits, U. S. V. (1 Dil. 49) i. 487 One Thousand Nine Hundred and Sixty Bags of Coffee, U. S. v. (8 Cranch, 398) i. 821, 822 O'Neal, S. v. (1 Houst. Crim. 58) i. 648 Oneby, Rex v. (2 Stra. 766; 2 Ld. Raym. 1485J ii. 673 a, 675, 712 O'Neil V. P. (15 Mich. 275) i. 772 , P. V. (47 Cal. 109) ii 268 Oneil V. S. (48 Ga. 66) i. 1052 O'Neill V. S. (16 Ala. 65) i. 535 ; ii. 3 O'Niel, S. V. (1 Houst. Crim. 468) ii. 728 Onslow, Reg. V. (Law Rep. 9 Q. B. 219; 12 Cox C. C. 358; 5 Eng. Rep. 443) ii. 259 Ontario, P. v. (4 Denio, 260) i. 32 Ooton V. S. (5 Ala. 463) i. 930 Opinion of Judges (4 K. I. 583) i. 918 Opinion of Justices (3 Cush. 586) i. 44 Opinion of Justices (11 Cush. 604) ii. 745 Opinion of Justices (13 Gray, 618) i. 953 Orbell, Reg. v. (6 Mod. 42) i. 592 ; ii. 198, 204 Orchard, Reg. v. (20 Eng. L. & Eq. 598 ; 3 Cox C. C. 248) i. 244, 1128 Ordway, C. v. (12 Cush. 270) ii. 59 Oregon Bulletin Printing, &c. Co., In re (3 Saw. 614 ; 14 Bankr. Reg. 405) i. 572 a O'Reilly v. P. (86 N. Y. 154; 40 Am. R. 525) ii. 1018 , P. II. (61 How. Pr. 3) ii. 1018 Orleans Dist. Judge, S. v. (38 La. An. 43 ; 58 Am. R. 168) i. 424 ; ii. 256 Orleans Judge, S. v. (39 La. An. 132) ii. 951 Orman, Reg. v (14 Cox C. C. 381) ii. 198 Orne v. Roberts (51 N. H. 110) i. 302 Orr V. Bank of U. S. (1 Ohio, 36 ; 13 Am. D. 588) i. 422 V. Tanner (12 R. I. 94) ii. 131, 132 Orrell, S. v. (1 Dev. 139; 17 Am.D. 563) ii, 640 Ortega, U. S. d. (4 Wash. C. C. 531) i. 127, 384; ii. 37,51, 72 , U. S. !). (11 Wheat. 467) i. 181 Ortner v. P. (6 Thomp. & C. 548) ii. 1024 Orton V. S. (4, Greene, Iowa, 140) i. 888 Orwig, S. V. (24 Iowa, 102) ii. 857 a Osborn, Rex v. (3 Bur. 1697) i. 582, 585 ; ii. 145, 146 , Rex V. (1 Comyn8,240) i. 459; ii. 982 V. Union Ferry (63 Barb. 629 i. 265 V. V. S. (91 U. S. 474) i. 898, 909, 910, 914 Osborne v. S. (23 Tex. Ap, 431 ) ii, 728 O'Sliea V. O'Shea (15 P. D. 59; 17 Cox C. C. 107) ii. 241 782 Oshkosh V. Schwartz (55 Wis. 483) i. 624 Osmer, P. v. (4 Par. Cr. 242) ii. 291 Ossulston, Rex v. (2 Stra. IIO'?) i. 1067 ; ii. 264 Oswald V. Everard (1 Ld. Raym. 637) i. 908 , Respublica v. (1 Dall. 319) ii. 259 Oulaghan, Reg. v. ( Jebb, 270) i. 1016, 1037 Outerbridge, U. S. v. (5 Saw. 620) i. 200 Outeveras, P. v. (48 Cal. 19) i. 670 Outlaw V. S. (36 Tex. 481) i. 400; ii. 1186 Overall v. S. (15 Lea, 672) i. 385 Overholtzer i'. McMichael (10 Pa. 139) , i. 218 Overman v. May (35 Iowa, 89) ii. 1274 V. S. (88 Ind. 6) i. 1072 Overstreet v. S. (46 Ala. 30) ii. 16 Overton, Ex parte (2 Rose, 257) ii. 1029 , Reg. c;. (2 Moody, 263; Car.& M. 655) ii. 1081, 1088 Oviatt V. S. (19 Ohio St. 573) i. 694 Owen, Rex v. (4 Car. & P. 236) i. 368 , Rex V. (L Moody, 96) i. 664 , Rex V. (1 Rol. 185) i. 127 , S. V. (78 Mo. 367) i. 998 , S. V. (72 N. C. 606) ii. 1018 , S. V. (Phillips, N. C. 425) i. 872 , U. S. V. (32 Fed. Rep. 634) ii. 238 Owens V. S. (62 Ala. 400) i. 1081 w. S. (8 Tex. Ap. 404) ii. 309a V. S. (7 Tex. Ap. 470) ii. 876 V. S. (19 Tex. Ap. 242) i. 428 , S. II. (28 La. An. 5) i. 998 Oxford, Reg. v. (9 Car. & P. 525) i. 384, 387, 396, 758 Oxfordshire, Rex v. (1 B. & Ad. 289) ii. 1281 , Rex V. (16 East, 223) ii. 1281 Oxiey V. Flower (2 Selw. N. P. tit. Imprisonment, I.) ii. 56 V. Watts (1 T. R. 12) i. 208 Oyer and Terminer, P. v. (101 N. Y. 246) ii. 241, 255 Package of Lace, U. S. v. (Gilpin, 338) ■ i. 821, 824 Packard, Reg. v. (Car. & M. 236) i. 327, 331 ; il. 658, 692, 693 Paddle, Rex v. (Russ. & Ry: 484) Ii. 1200 Paducah, &c. Rid. o. C. (80 Ky. 147) ii. 1278 Page II. Camp (KIrby, 7) V. C. (9 Leigh, 683) II. Hardin (8 B. Monr. 648) ,P. V. (1 Idaho N. s. 189) , Reg. V. (8 Car. & P. 122) i. 267 i. 998 i. 971 ii. 287 o i. 672 ; ii. 607 i. 961 ii. 1122, 1124 — , Reg. V. (1 Russ. Crimes, 8d ■Eng. ed. 82) ii. 299 — , Rex V. (1 Brod. & B. 808 ; Russ. & Ry. 892 ; 3 Moore, 666 ; 7 Price, 616) , i. 572 a , Reg. V. (9 Car. & P. 756) , Reg. V. (2 Cox C. C. 183) ?AR INDEX TO THE CASES CITED. PAR 1.844 657, 658 i. 488 i. 388 6 i. 82 i. 803; ii. 17 ii. 605 D. 1.304 1. 154 11. 740 1.594 1. 65 i. 175 1.821 1.795 Pagew. S, (69 Ala. 229) v.S. (11 Lea, 202) i , U. S. V. (2 Haw. 358) Pagels, S. V. (92 Mo. 300) Paget, Reg. v. (3;Fost. & F. 29) Paice, Reg. v. (1 Car. & K. 73) Paigew.P. (3 Abb. Ap. 439) Pain V. Boughtwood (24 Q. B. 353; 16 Cox C. C. 747) , Rex.w. (Comb. 358; Holt,294) 1. 540 ; 11. 941 Paine's Case (Yelv. Ill) 11. 1020 Paine, Rex «. (7 Car. & P. 135) ii. 96 , Rex V. (5 Mod. 163) U. 926, 927, 948 Painter v. Ives (4 Neb. 122) , S. V. (67 Mo. 84) , S. V. (70 N. C. 70) Palmer, C. v. (2 Bush, 570) V. Cuyalioga (3 McLean, 226) V. Horton (1 Johns. Cas. 27) V. P. (6 Hill, N. Y. 427) V. P. (10 Wend. 166; 25 Am. D. 551) li. 758, 790, 791 , P. V. (53 Cal. 615) 11. 529 , P. t. (61 111. 255) i. 896 , Rex V. (Russ. & Ry. 72; 2 Leach, 978 ; 1 New Rep. 96) 1 649 ; 11. 608, 609 V. S. (7 Coldw. 82) V. S. (46 Ind. 388) , S. V. (30 Mo. 386) V. Tijou (2 Add. Ec. 196) , U. S. V. (3 Wheat. 610) 119,120,553; 11. 1060, 1061 Palmore v S. (29 Ark. 248) 11. 728 Palmyra, The (12 Wheat. 1) i. 824, 825, 831, 968 Pankey v. Mitchell (Breese, 301) 11. 676 : V. P. (1 Scam. 80) 11. 404, 1020, 1031 Panton v. P. (114 111. 505) 1. 306; ii. 646 Pape, P. V. (66 Cal. 366) 11. 32, 63 Papplneau, Rex v. (1 Stra. 686) 1. 829, 1079 Paradice, Rex v. (2 East P. C. 565) 11. 365, 836 Parchman v. S. (2 Tex. Ap. 228; 28 Am. R. 435) i. 1053 Pardee, S. v. (37 Ohio St. 63) 11. 1188 Pardenton, Reg. «. (6 Cox C. C. 247) 11. 662 a Pardons, Case of (12 Co. 29) 1. 829, 903 Parfait, Rex v. (1 Leach, 19; 1 East P. C. 416) i. 762; 11. 1181 Pargeter, Reg. v. (8 Cox C. C. 191) 11. 662 a Pargoud v. U. S. (13 Wal. 156) 1. 904, 907 Parish, P. v. (4 Denio, 158) ii. 485 , Reg. V. (8 Car. & P. 94) i. 303, 572; ii. 579, 601 , S. V. (8 Ricli. 322) i. 1061 , S. i;. (48 Wis. 395) 1. 1000 Park, P. V. (41 N. Y. 21) i. 619, 974 I ii. 104 11. 998 li. 1182 i. 38 1. 117, Parker's Case (1 CoUlnson Lun. 477 ; Shelf. Lun. 460) i. 384 (2Dy. 186) i. 676;ii. 634 Parker, C. v. (2 Cush. 212) li. 1024, 1031, 1038 , C. V. (9 Met. 263; 43 Am. D. 396) i. 260 ; 11. 641, 691 V. Culler Mill Dam (20 Me. 358; 37 Am. D. 66) i. 174 V. Green (9 Cox C. C. 169) i. 82 V. Hunlington (2 Gray, 124) ii. 220 1). Mise (27 Ala. 480 ; 62 Am. D. 776) ii. 773 , P. V. (38 N. Y. 86; 97 Am. D. 774) i. 491 , Reg. V. (8 Q. B. 292 ; 2 Gale & D. 709) ii. 198 , Rex V. (7 Car. & P. 826; 2 Moody, 1) 11. 420, 421 , Rex V. (1 Leach, 41) i. 204 V. S. (55 Missis. 414) 1. 302, 874 V. S. (31 Tex. 182). 1. 877 V. S. (20 Tex. Ap. 451) 1. 368 , S. V. (34 Ark. 188; 36 Am. R. 6) li. 766 , S. u. (66 Iowa, 586) 1. 780, 1020 , S. V. (13 Lea, 226) 1. 812 , S. V. (81 N. C. 648) i, 594 V. U. S. (2 Wash. C. C. 361) i. 822 Parkerson, S. v. (1 Strob. 169) 1. 358, 362 Parkes, Rex v. (2 Leach, 614) 1. 688 ; 11. 816, 822 , Rex V. (2 Leach, 775 ; 2 East P. C 963) 1. 672 ; 11. 523, 583, 587, 588 Parkinson v. Potter (16 Q. B. D. 152) 1. 126 Parks, Ex parte (3 Mont. 426) 1. 464 V. Hendricks (11 Wend. 442) ii. 189, 140 , Rex V. (2 East P. C. 671) i, 583 ; 11. 816, 822 V. Turner (12 How. U. S. 39) i. 194 Parmelee v. P. (8 Hun, 623) 1. 303; ii. 579 , S. V. (9 Conn. 269) i. 791 Parnell, Reg. v. (14 Cox C. C. 474) ii. 259 , Reg. y. (14CoxC. C. 508) 11.216 , Rex V. (2 Bur. 806) 11, 1024 Parr, C. «. (5 Watts & S. 345) 1.787 , Reg. V. (2 Moody & R, 846) 1. 698 , Rex V. (1 Leach, 434; 2 East P. C. 1006) 11. 152 Parrish v. C. (81 Va. 1) i. 858 y. S. (14Neb. 60) i. 844 Parrott v. Lawrence (2 Pil. 832) ii. 1269 , S. V. (71 N. C. 311 ; 17 Am, 6) 11. Wilson (61 Ga. 266) Parry, Rex v. (7 Car. & P. 886) Parsons ». Bedford (3 Pet. 433) , C. K. (138 Mass. 189) , Rex V. (1 Show. 283) , Rex V. (1 W. Bl, 892) V. S. (21 Ala. 800) R. 1. 1081 1. 910, 911 i, 1058 1.194 11. 529 1.899 ii. 190 ii, 639 V. S. (81 Ala. 577 ; 60 Am. R. 193) 1.387 783 PAY INDEX TO THE CASES CITED. PEC Parsons, S. u. (54 Iowa, 405) ii. 349 , U. S. 0. (2 Blatcli. 104) ii. 904 Part of Lot w. B. (1 Iowa, 507) i. 32 Partlow, S. V. (90 Mo. 608 ; 59 Am. R. 31) i. 850; ii. 702 Partridge v. Hood (120 Mass. 403 ; 21 Am. R. 324) i. 711, 713 V. Naylor (Cro. Eliz. 480) i. 957 , Reg. V. (6 Cox C. C. 182) ii. 430 Pascoe, Reg. «. (4 New Sess. Cas. 66; 2 Car. & K. 927) il. 1138 Passaic Turnpike, S. v. (3 Dutcher, 217) ii. 1273 Passey, Rex v. (7 Car. & P. 282) i. 516, 630, 653 Passmore, C. v. (1 S. & R. 217) ii. 1274 , Respublica v. (3 Yeates, 441) ii. 259 Patcli, Rex v. (1 Leacli, 238 ; 2 East P. C. 678) i. 583 ; ii. 819 Patchett, Rex v. (5 East, 339) i. 515 Patchin v. Brooklyn (13 Wend. 664) ii. 256 Pate, S. V. (Busbee, 244) i. 32 V. Wright (30 Ind. 476 ; 95 Am. D. 705) ii. 959 Pateman, Rex v. (Russ. & Ry. 455) ii. 561 Pater, Ex parte (9 Cox C. C. 544) ii. 268 Paterson's Case (1 Broun, 629) ii. 83 Patience, Rex v. (7 Car. & P. 775) i.' 868 ; ii. 699 Patillo, S. V. (4 Hawks, 848) i. 671 ; ii. 148, 157, 543 Patrick v. Smoke (3 Strob. 147) ii. 1040 Patridge v. Emson (Noy, 62) i. 957 Patten v. Guniey (17 Mass. 182; 9 Am. D. 141) i. 592 ; ii. 198 V. P, (18 Mich. 314 ; 100 Am. D. 173) i. 849, 877 Patterson v. McVay (7 Watts, 482) i. 8-32 V. Miller (2 Met. Ky. 493) i. 464 K. Nixon (79 Ind. 251) li. 139 V. P. (46 Barb. 625) i 303, 305, 391, 874 V. S. (85 Ga. 131 ; 21 Am. St. 152) ■ ii. 741 V. S. (66 Ind. 185) i. 413 ; ii. 699 «. S. (70Ind. 341) j. 1006 - — , S. v. (14 La. An. 46) i. 492 , S. V. (68 Me. 473) ii. 1201 , S. V. (88 Mo. 88; 57 Am. R. 374) i. 998 , S. ... (45 Vt. 308; 12 Am. R. 200) 858 ii. 262 U. S. V. (26 Fed, Rep. 509) Patton V. Freeman (Coxe, 113) i. 267, 271 V. Harris (15 B. Monr. 607) ii. 268 , Reg. V. (13 L. Canada, 311) i. 828, 1080 , S. V. (4 Ire. 16) ii 1270 , S, V. (12 La. An. 288) i. 396 Paul, Rex i;. (6 Car. & P. 323) i. 267 , S. V. (69 Me. 216) ii. 468 , S V. (6 R. I. 185) ' i. 1081, 1117 Paulk, S. V. (18 8. C. 514) i. 400, 406 Payne!). C. (1 Met. Ky. 870) i. 865 784 Payne v. Partridge (1 Show. 255) i. 531 ; ii. 1269 V. P. (6 Johns. 103) 1. 224 ; ii. 767, 768 , P. !;. (8 Cal. 341) i. 849, 857 ; ii. 656 , Reg. !'. (Law Rep. 1 C. C. 27 ; 10 Cox C. C. 231) ii. 1106 , Rex t>. (4 Car. & P. 558) i. 736 , S. y. (4 Misso. 376) i. 1028 , S. V. ( 1 Swan, Tenn. 383) ' i. 698 , U. S. u. (22 Fed. Rep. 426) ii'. 238 Payson, In re (23 Kan. 757) ii. 484 V. Hall (30 Me. 319) i. 464 V. Maeomber (3 Allen, 69) ii. 752 , S. 0. (37 Me. 361) i. 1006 Payton, S. v. (90 Mo. 220) i. 328, 648 Peabody, P. v. (25 Wend. 472) i. 572, 748 ; ii. 543 Peacham's Case (3 How. St. Tr. 368) ii. 1233 Peacock, P. u. (6 Cow. 72) ii. 439, 687, 593, 612 , Rex V. (Russ. & Ry. 278) i. 572 ; ii. 583 , S. V. (40 Ohio St. 333) i. 859 Peak, S. y. (85 Mo. 190) i. 866 Pear, Rex v. (1 Leach, 212 ; 2 East P. C. 685) i. 207, 583 ; ii. 813 Pearce v. Atwood (13 Mass. 324) ii. 968 , C. V. (6 Grat. 669) i. 967 y. Hawkins (2 Swan, Tenn. 87 ; 58 Am. D. 84) i. 464 , Reg. V. (3 B. & S. 531 ; 9 Cox C. C. 258,) ii. 1028 , Reg. V. (9 Car.' & P. 667) ii. 740 , Rex y. (2 East P. C. 603) i. 683 ; ii. 813 , Rex y. (1 Leach, 527 ; 2 East P. C, 1072) i. 695 ; ii. 996 , S. 0. (2 Blackf. 318) i. 796 , U. S. V. (2 McLean, 14) i. 287, 303 Pearl, P. y. (76 Mich. 207 ; 15 Am. St. 304) ii. 37, 41 a Pearson's Case (2 Lewin, 144) 1. 400, 405, 414 (2 Lewin, 216) ii. 708 Pearson, P. v. (3 Scam. 270) ii. 256 , Rex V. (4 Car. & P. 572) ii. 904 , Rex V. (5 C^r. & P. 121 ; 1 Moody, 318) i 578; ii. 769 , S. y. (2 N. H. 550) i. 536 ; ii. 501 Pease, C. v. (16 Mass. 91) i. 267, 275, 711 ; ii. 401 y. McAloon (1 Kerr, 111) i. 268, 269 , P. ,'. (3 Johns. Cas. 333) i. 914, 917 , Rex y. (4 B. & Ad. 80) ii. 1270, 1278 y. Smith (5 Lans. 519) i. 271 V. S. (13 Tex. Ap. 18) i. 850 Peat, Rex v. (1 Leach, 228 ; 2 East P. C. 557) i. 563 ; ii. 758, 796, 1163 Peate v. Dickens (3 Dowl. P C. 171) ii, 954 Pechell y. Watson (8 M. & W. 691) ii. 181 Peck's Case (2 Russ. Crimes, 3d Eng. ed. 180) ii. 366 PER INDEX TO THE OASES CITED. PEV Peck's Case (2 Stark. Ev. 842) ii. 328 Peck V. Keg. (I Per. & D. 508) ii. 206 , Keg. V. (9 A. & E. 68G) ii. 206 B. S. (9 Tex. Ap. 70) ii. 811 Peokard, S. v. (5 Harring. Del. 500) i. 336; ii. 1010 Peckham v. Lebanon (39 Conn. 231) ii. 12Bti, 1269 (!. Tomlinson (6 Barb. 253) i. 564 Peddell v. Rutter (8 Car. & P. 337) i. 266 Pedley, Rex v. (1 Leach, 242 ; Cald. 218; 2 East P. C. 10ii6) i. 329, 559 ; ii. 13, 16 ii. 1040 ii. 693 ii. 1136 , Rex V. (I Leach, 325) Peetew. S. (2Lea, 513) Pefferling v. S. (40 Tex. 486) Pegrain «. Styron (1 Bailey, 595) ii. 1027 Peirson, Reg. v. (2 Ld. Raym. 1197) i. 1085 Peisch V. Ware (4 Oranch, 347) i. 351, 821 Pelham, Reg. v. (8 Q. B. 959; 15 Law J. N. s. M. C. 105; 10 Jur. 659) ' i. 557, 883, 884 ; ii. 29 Pell w. Prevost (2 Caines, 164) i. 821 Peltier's Case (28 How. St. Tr. 529) i. 484; ii..938 Pember, Rex y. (Cas. temp. Hardw. 112) ii. 1090 Pemberton, C. v. (118 Mass. 36) ii. 727 •: , S. u. (2 Dev. 281) " i. 504 Pembliton, Keg. w. (Law Rep. 2 C. C. 119 i 12 Cox C. C. 607) i. 336, 429 Pence v. S. (110 Ind. 95) ii. 758, 847 Pendock v. Mackeiider (2 Wils. 18) i. 975 V. Mackinder (Willes, 655) i. 974,975 Pendry v. S. (18 Fla. 191) ii. 414 Penley, S. v. (27 Conn. 587) ii. 415, 428 Peiin, In re (5Bert. 89) i. 572 a V. Messinger (1 Yeates, 2) ii. 268 , U. S. u. (13 Bankr. Reg. 464) i. 572 a Pennaman v. S. (58 Ga. 336) ii. 1024 Pennell, S. v. (56 Iowa, 29) i. 789 Pennington, S. v. (3 Head, 299 ; 75 Am. D. 771) i. 1123 Pennock, C. v. (3 S. & R. 199) i. 970 Penny v. Hanson (18 Q. B. t). 478) i. 291 , S. V. (1 Car. Law Repos. 517) i. 204 Penny wit v. Foote (27 Ohio St. 600; 22 Am. R. 340) i. 14 , Penruddock's Case (5 Co. 100; Jenk. Cent. 260) i. 821 Pepper v. Haight (20 Barb. 429) ii. 137 , S. V. (68 N. C. 259; 12 Am. R. 637) ii. 74, 79 Perazzo, P. o. (64 Cal. 106) ii. 1030 Percavil, C. ». (4 Leigh, 686) ii. 988 Perdue v. C. (96 Pa. 311) ii. 1043 , C. V. (2 Vs.. Cas. 227) i. 535, 795, 800 , P. i. (49 Cal. 425) ii. 699 u. S. (2 Humph. 494) i. 341, 343 ; ii. 598, 608, 609 Perez, D. S. v. (9 Wheat. 579) i. 1018, 1033, 1041 Perham v. Coney (117 Mass 102) ii. 864 Peri V. P. (65 111. 17) i. 1070; ii. 745 VOL. I. — 50 Perkes, Rex v. (1 Car. & P. 300) ii. 96 Perkins, Ex parte (29 Fed. Rep. 900) ii- 244 V. P. (27 Mich. 386) ii. 605 : , Reg. V. (2 Uen. C. C. 459; 5 Cox C. C. 554) ii. 1140 , Reg. V. (12 Eng. L. & Eq. 587) i. 653, 663 , Rex V. (4 Car. & P. 537) i. 260, 632; ii. 36 , Rex V. (Holt, 403) i. 998 V. S. (65 Ind. 317) ii. 1158, 1173 V. S. (67 Ind. 270; 33 Am. R. 89) , S. «. (6 Blackf. 20) , S. u. (82 N. C. 681) , S. -V. (4 Zab. 409) V. Stevens (24 Pick. 277) Perley, C. v. (2 Cusli. 559) Perot, U. S. V. (98 U. S. 428) Perrine v. Farr (2 Zab. 356) ii. 420 ii. 312, 314 i. 795 i. 464 i. 914, 917 i. 782 i. 14 i. 245; ii. 1267 ii. 1012 a i. 279 Perrow v. S. (67 Missis. 365) Perry v. C. (3 Grat. 632) , C. I). (139 Mass. 198) i. 1078 a, 1138 V. Phipps (10 Ire. 259; 51 Am. D. 387) i- 1080; ii. 773 , Reg. v. (15 Cox C.C. 169) ii. 933 a , Reg. V. (1 Den. C. C. 69 ; 1 Car. & K. 725) i. 224 ; ii. 768 V. S. (43 Ala. 21) ii. 675, 677 , S. V. (6 Jones, N. C. 9 ; 69 Am. D. 768) ii. 3 V. Tupper (70 N. C. 538) ii. 505 a Perste V. Persse (7 CI. & F. 279) ii. 127 Pertsdorf, S. v. (33 La. An. 1411) i. 464 Pervear v. C. (5 #al. 475) i. 946 Peterborough Bank v. Childs (130 Mass. 519 ; 39 Am. R. 474) i. 819 a Peters, C. v. (12 Met. 387) i. 145, 147, 176, 195, 201, 1028 V. Peters (16 Stew. 140) ii. 1188 , Reg. V. (1 Car. & K. 245) i. 207 ; ii. 758, 796, 878, 879, 880, 882 V. S. (39 Ala. 681) i. 893 , S. V. (56 Iowa, 263) i. 789 , S. V. (37 La. An. 730) ii. 1201 , S. V. (57 Vt. 86) i. 464, ii. 1020 Peterson v. S. (12 Tex. Ap. 650) i. 780 V. S. (14 Tex. Ap. 162) i. 731 Petre v. Cambridge (3 Lev. 332) i. 916 Pettamberdass v. Thackoorseydass (7 Moore P. C. 239) i. 519 Pettes, C. V. .(114 Mass. 307) i. Ill Pettie, S. V. (80 N. C. 367 ; 30 Am. R. 88) i. 946, 947 Pettigrew v. S. (12 Tex. Ap. 225) i. 376 Pettingill v. Rideout (6 N. H. 454 ; 25 Am. D. 473) i. 271. 272 Pettis V. Johnson (66 Ind. 139) i. 265, 1141 Pettit, Rex v. (Jebb, 151) i. 582 ; it 160 Petty V. San Joaquin Court (45 Cal. 245) ii. 55 «. S. (6 Bax. 610) ii. 726 Peverelly v. P. (3 Par. Cr. 59) ii. 19 785 PHI INDEX TO THE CASES CITED. PIL Pew's Case (Cro. Car. 183) Pfonier v. V. (4 Par. Cr. 558) Pliarr I,'. S. (7 Tex. Ap. 472) i. Phelips V. Barrett (4 Price, 23) Plielps V. Baldwin (17 Conn. 209) ii ii. 652 i. 850 305,865; ii. 727 ii. 270 503 ■'v. P. (65 111. 334) ., P. V. (49 How. Pr. 462) ., Reg. V. (Car. & M. 180) •, Reg. V. (2 Moody, 240) ., Rex V. (2 Keny. 570) ii. 840, 863 ,ii. 586 i. 648, 868 i. 809 * i. 460, 462; ii. 973 i. 401 64 264 V. S. (75 Ga. 571) V. Stearns (4 Gray, 105; Am. D. 61) , U. S. V. (4 Day, 469) i. 464 Plietlieon, Reg. v. (9 Car. & P. 552) ii. 796, 841 Phifer, S. !). (65N. C. 321) ii. 415 Phil, S. V. (1 Stew. 31) i. 998 Philadelphia's Appeal (78 Pa. 33) i. 1141 Pliiladelpliia County Prison, C. v. (4 Brews. 320) 1. 915 Philadelphia, &c. Kid. v. Lehman (56 Md. 209 ; 40 Am. R. 415) ii. 959 V. Quigley (21 How. U. S. 202) ii. 914 Philbrick, S. v. (20 Vroom, 374) i. 464 Phile V. Anna (1 Dall. 197) i. 306,821,824 Philip's Case (1 Sid. 170) i. 908 Philipps, Rex v. (2 East P. C. 662) 1.679; ii. 758, 841 , Rex V. (6 East, 464) ii. 312 Philips V. C. (2 Duv. 328; B7 Am. D. 499) i. 306, 844 ; ii. 681 V. Harriss (3 J. J. Mar. 122) ii. 256 , P. 0. (1 Wheeler Crim. Cas. 155) i. 887 , Reg. V. (8 Car. & P. 736) i. 373, 746 ; ii. 1117 Philley, S. v. (67 Ind. 304) Phillips V. C. (3 Met. 588) , C. V. (16 Mass. 423) , C.u.(n Pick. 28) ii. 72 i. 960, 965 i. 668 279, 280, 960, 865 ■, C. V. (3 Pittsb. 426) • V. Eyre (Law Rep. 6 Q. B. ■ V. Innes (4 CI. & F. 234) • V. Jansen (2 Esp. 624) 1) 468 132 ii. 958 ii. 927 V. Kelly (29 Ala. 628) i. 264; ii. 743 V. Payne (92 U. S. 130) i, 203 V. P. (55 111. 429) 1. 150, 986 1'. P. (88 111. 160) i. 1020 , Reg. V. (3 Cox C. 0. 225) i. 637 '- , Reg. «. (11 CoxC. C. 142) i. 1039 , Reg. V. (2 Moody, 252) i, 287 , Rex r. (3 Camp. 73) i. 741, 758 , Rexw.-(Ca8. temp. Hardw. 241) i. 247, 266, 769 ; ii. 1056 ,Rex.i'. (IJur. 427) i. 1049 , Rex V. (2 Smith, 650) i. 734 ; ii. 62, 312 ■V. S. (6Bax. 151) i. 227 ■V. S. (7 nax. 161) i. 244, 1144 -u. S. (85Tenn. 551) i. 1061 ■V. S. (19TeN 158) i. 237 786 Phillips V. S. (29 Tex. 226) ii. 1190 , S. V. (33 Kan. 100) i. 992 , S. -•. (24 Mo. 476) ii. 728 , S. V. (66 N. C. 646) i. 992, 1024, 1026 V. Welch (11 Nev. 187) ii. 241 Phillpot, Reg. i: (Dears. 179; 20 Eng. L. & Eq. 591) i. 227, 567, 883, 884; ii. 29 Phillpotts, Reg. v. (2 Den. C. C. 302) ii. 1030, 1031, 1032, 1035 Philpot, S. V. (Dudley, Ga. 46) ii. 253 , Reg. V. (6 Cox C. C. 140) i. 884 Philpotts, Reg. v. (1 Car. & K. 112) i. 345; ii. 148,471 , Reg. V. (8 Eng. L. &Eq. 580) ii. 1031 Phipoe, Rex«. (2 Leach, 673; 2 East P. C. 599) i. 582 ; ii. 767, 785, 787 Phippen, S. v. (62 Iowa, 54) ii. 1020 Phipps, S. V. (4 Ind. 615) ii. 1273 , S. V. (10 Ire. 17) i. 536, 538; ii. 518 Phitton's Case (6 Co. 79) i. 908 Pickens v. Delozier (2 Humph. 400) ii. 137, 140 V. S. (61 Missis. 52) ii. 716 Pickering, C. v. (8 Grat. 628; 56 Am. D. 168) ii. 1024, 1031 Picket, Rex v. (2 East P. C. 601) ii. 106 Pickett, S. v. (11 Nev. 255; 21 Am. R. 754) ii. 72 Pickford, Rex v. (4 Car. & P. 227) ii. 1200 Pierce v. Carskadon (16 Wal. 234) i. 279 , C. V. (138 Mass. 165; 52 Am. R. 264) 1. 314 , Rex V. (2 Show. 327) i. 244, 1138, 1143 t>. S. (53 Ga. 365) i. 400 I'. S. (67 Ind. 354) i. 1033 , S. V. (7 lAIa. 728) i. 429, 595 ; ii. 996 , S. V. (8 Iowa, 231) ii. 523, 544, 598 , S. V. (65 Iowa, 85) i. 1072 V. Swan Point Cemetery (10 R. L 227) ii. 1188 V. Win (1 Vent. 321) i. 823 Pierson v. Post (3 Caines, 176 ; 2 Am. D. 204) i. 678; ii. 776 , Reg. V. (1 Salk. 382) i. 500, 501, 1086 , Hex V. (Andr. 310) V. S. (12 Ala. 149) , S. t>. (8 Vroom, 216) Pigg V. S. (43 Tex. 108) Pigman v. S (14 Ohio, 566 D. 668) Pigot, Rex V. (Holt, 768) Pike V. C. (2 Duv. 89) V. Hanson (9 N. H. 491) i. 548, 553; ii. 26, 747, 748 , Reg. V. (2 Moody, 27) i. 672 V. S. (35 Ala. 419) , S. K. (33 Me. 361) , S. V. (15 N. H. 83) , S. V. (49 N. H. 399 533) i. 383, 407 ; ii. 723, 727 Pilcher v. Hart (1 Humph. 524) i 1081 ; ii. 1272 ii. 264 . ii. 717 ii. 1267 ii. 821 45 Am. i. 409, 411 i. 555 i. 504 70; 3 Jur. ; ii. 510, 541, 544 i. 1148 ii. 989 ii. 1022, 1023 6 Am. R. PLE INDEX TO THK CASES CITED. PON Pile, S. V. (5 Ala. 72) ii. 10I8 Pilling, Keg. v. (1 Fost, & F. 324) ii. 560 Pillow V. Bushnell (5 Barb. 156) ii. 35 Pine, P. u. (2 Barb. 566) i. 384, 385, 400, 406 Pinkard v. S. (30 Ga. 757) i. 649, 733 Pinkerton, Rex u. (2 East, 357) i. 948, 950 Pinkney's Case (2 East P. C. 818) ii. 145, 146 Pinney, Rex v. (5 Car. & P. 254) ii. 974, 976 Pinson v. S. (28 Tex. 579) i. 772 Piper, C. V. (9 Leigli, 657) , ii. 1282 V. Pearson (2 Gray, 120; 61 Am. D. 438) i. 460 Pipes V. S. (26 Tex. Ap. 318) ii. 1024, 1053 a Pippetw. Hearn (1 D. & E. 266; 5 B. & AW. 634) ii. 1028 Pippin V. S. (36 Tex. 696) ii. 978 Piqua V. Zimmerlin (35 Ohio St. 507) ii. 952 Pirates, U. S. v. (5 Wheat. 184) i. 117, 120, 132, 985 ; ii. 1060, 1061 Pirtle V. S. (9 Humph. 663) i. 400, 401, 409,412,414; ii. 728 PiscataquaBank v. Turnley (1 Miles, 312) i. 271 Pistorius v. C. (84 Pa. 158) ii. 728 Pitcher v. P. (16 Mich. 142) ii. 104, 757 Pitman, In re (1 Curt. C. C. 186) ii. 269 V. Clarke (1 McMul. 316) V. Davis (Hemp. 29) , Rex V. (2 Car. & P. 423) ii. 25.5 ii. 501 i. 411 ; ii. 797 , S. 0. (1 Brev. 32; 2 Am. D. 645) i. 178, 989; ii. 611 , U. S. V. (1 Sprague, 196) i. 141, 176 Pitt, Rex u. (1 W. Bl. 380; 3 Bur. 1335) i. 468, 471 Pitts V. La Fontaine (5 Ap. Cas. 564) i. 122 , Reg. 0. (Car. & M. 284) i. 562, ii. 641, 667 V. S. (5 Tex. Ap. 122) ii. 758 , S. V. (57 Mo. 85) i. 1054, 1055 ; ii. 1182 , S. V. (12 S. C. 180) ii. 789 Pittsburgh, &c. Rid. 1.. C. (104 Pa. 583) ii. 1267, 1270 , U. S. V. (26 Fed. Rep. 113) ii. 1269 Pittsburgh, &c. Ry. u. C. (101 Pa. 192) ii. 1282 Pizano v. S. (20 Tex. Ap. 139) i. 1013, 1014 Plake V. S. (121 Ind. 433 ; 16 Am. St. 408) i. 387 Plant, Rex v. (7 Car. & P. 575) i. 663, 803, 1053 Planter v. Sherwood (6 Johns. Ch. 118) 1.970 Plath V. Praunsdorfe (40 Wis. 107) ii. 1030 Plating Co. w. Farquharson (17 Ch. D. 49) i. 768 o Piatt, C. 11. (11 Philad. 421) i 409 , P. w. (67 Cal. 21) ii. 1026 Platteville v. Bell (43 Wis. 488) i. 32 Playford v. C. (4 Pa. 144) i. 910 Pleasant v. S. (15 Ark. 624) ii. 1119 Pleasant v. S. (8 Eng. 360). ii. 1119, 1122, 1125 Pline, P. u. (61 Mich. 247) i. 1034 Ploughboy, The (1 Gallis. 41) i. 821, 822 Plowman V. Thornton (52 Ala. 559) i. 65 Plumbe V. Plumbe (3 Y. & Col. Ex. 622) ii. 270 Plumbly V. C. (2 Met. 413) i. 960, 961, 965, 1061 Plumerr. Smith (5 N. H. 553; 22 Am. D. 478) i. 267, 711, 714 Plummer w. C. (1 Bush, 76) i. 633 , Reg. V. (1 Car. & K. 600) i. 331 ; ii. 662, 686 , Reg. y. (30 U. C. Q B. 41) ii. 1274 , Rex V. (J. Kel. 109 ; 12 Mod. 627) i. 328, 632, 634, 636; ii. 691, 694 y. S. (6 Misso. 231) i. 795 V. S. (4 Tex. Ap. 310 ; 30 Am. R. 165) i. 305 V. Webb (Ware, 75) i. 271 Plunkett, S. c. (3 Harrison, 5) i. 793, 1029, 1067 Plymouth v. Painter (17 Conn. 585; 44 Am. D. 574) i. 464 Plympton, Rex v. (2 Ld. Raym. 1377) i. 246, 471 ; ii. 85, 86, 88 Poage V. Chinn (4 Dana, 50) ii. 139 V. S. (3 Ohio St. 229) i. 974, 1034 ; ' ii. 529, 568 , U. S. o. (6 McLean, 89) i. 633 Pocock, Reg. V. (17 Q. B. 34; 24 Eng. L. & Eq. 190) ii. 668 , Rex V. (2 Stra. 1157 ; 7 Mod. 310) • i. 470; ii. 946 Poe V. Davis (29 Ala. 676) ■ ii. 134 Pogue y. McKee (3 A. K. Mar. 127) ii. 501 Point V. S. (37 Ala. 148) ii. 901, 902 Police Jurv v. Shreveport (5 La. An. 661) " ii. 1269 Polkinhorn v. Wright (8 Q. B. 197) i. 859 Pollard V. Bell (8 T. R. 434) i. 124 , C. V. (12 Met. 225) ii. 1032 «. Hagan (3 How. U. S. 212) i. 145 V. P. (69 111. 148) ii. 1038 , Reg. V. (1 Russ. Crimes, 3d Eng ed. 22) i. 362 , Ilex V. (8 Mod. 264) i. 699 V. S. (2 Iowa, 567) ii. 1122 Pollman, Rex v. (2 Camp. 229) ii. 85, 222 Pollock V. Hatch (2 Disney, 181) ii. 349 Pollok, S. V. (4 Ire. 303) i. 531, 687 ; ii. 1277 - — , S. V. (4 Ire. 305; 42 Am. D. 140) i. 536, 538 ; ii. 501, 505 Polly, Reg. ». (1 Car. & K. 77) ii. 101 Polwart, Reg. v. (1 Gale & D. 211 ; 1 Q. B. 818) i, 968 Pomeroy v. C (2 Va. Cas. 342) i. 578 ; ii. 785, 786 V. S. (94 Ind. 96 ; 48 Am. R. 146) ii. 1120, 1122 Pr.nd V. P. (8 Mich. 150) i. 805, 853, 8.'j8, 865, 877 ; ii. 653, 636 , U. S. V. (2 Curt. C. C. 265) ii. 904 Pontius V. P. (21 Hun, 328) ii. 740 787 TOT INDEX TO THE CASES CITED. PRE Pool, P. V. (27 Cal. 572) V. Perdu (44 Ga. 454) , Reg. V. (9 Car. & P. 728) «'. Saclieveral (1 P. Wras. ii. 652 i. 464 i. 809 675) i. 768 a i. lOSS i. 464 908, 909 ; 3 785, 786 ii. 137 ii. 314 ii. 1267 1. , S. <;. (4 Lea, 363) , S. V. (41 Mo. 32) V. Trumbal (3 Mod. 56) Pooley, Rex v. (Kuss. & Ry. 12 Bos. & P. 311) ii. Poor V. Horton (15 Barb. 485) Pope, C. u. (3 Uana, 418) , P. V. (53 Cal. 437) , Rex V. (6 Car. & P. 346) i. 207 ; ii. 882 , S. V. (9 S. C. 273) ii. 17 K. Tearle (Law Rep. 9 C. P. 499) i. 491 Popinaux u. 8. (12 Tex. Ap. 140)' ii. 471 Porpoise, The (2 Curt. C. C. 307) i. 564, 824 Porter, C. v. (1 Gray, 476) ii. 302, 308 V. Jones (6 Coldw. 313) i. 711, 715 , P. V. (6 Cal. 26) i. 458 , P. V. (2 Par. Cr. 14) ii. 78, 84 , Reg. V. (12 Cox C. C. 444; 5 Eng. Rep. 497) ii. 652 , Reg. V. (Leigh & C. 394 ; 9 Cox C. C. 449) ii. 660 V. Seller (23 Pa. 424 ; 62 Am. D. 341) i. 266 V. S. (Mart. & Yerg. 226) ii.758, 838, 880i 882 , S. V. (38 Ark. 637) i. 1086 , S. V. (3 Brev. 175) i. 462 , S. y.'(4Harring. Del. 556) i. 299 , S. V. (7 Ind. 204) i. 464 , S. V. (90 N. C. 719) ii. 17 , S. V. (2 Tread. 694) i. 299, 460, 462; ii. 972 Portland v. Richardson (54 Me. 46 ; 89 Am. D. 720) i. 265 , S. V. (74 Me. 268 ; 43 Am. R. 586) i. 419 , The, V. Lewis (2 S. & R. 197) ii. 347 Portsmouth Livery Co. v. Watson (10 Mass. 91) ii. 543 Posey, C.v. (4 Call, 109; 2 Am. T>. 560) i. 988 ; ii. 17, 18 Post, Rex V. (Russ. & Ry. 101) i. 572 ; ii. 574 Potrero, &o. Rid., P. v. (67 Cal. 166) ii. 1267, 1269 Potter, P. V. (68 Cal. 127) i. 464 , P. u. (Edni. Sel. Cas. 2.36) i.914, 915 , P. V. (1 Par. Cr. 47) i. 914, 915 V. S. (42 Ark. 29) i. 1033 V. S. (9 Tex. Ap. 55) , i. 1063 , S. V. (30 Iowa, 587) i. 656, 1078 b, 1090 , S. V. (13 Kan. 414) i. 305, 850 , S. V. (42 Vt. 495) i. 359, 363 , Territory v. (1 Ariz. 421) ii. 1122 Pottmeyer, S. o. (33 Ind. 402; 6 Am. R. 224) ii. 765 Potts, Rex V. (Russ. & Ry. 853) i. 648 788 Potts, S. II. (100 N. C. 457) i. 384, 387 Poulk V. Slocum (3 Blackf. 421) i. 463 Poulson, C. V. (4 Pa. Law Jour. Rep. 20) ii. 437 Poulterer's Case (9 Co. 55 i) ii. 192 Poulton, Rex v. (6 Car. & P. 329) ii. 632 Found V. S. (43 Ga. 88) i. 865 Pounders v. S. (37 Ark. 399) i. 291 Powe V. S. (19 Vroom, 34) i. 74X Powell, Ex parte (73 Ala. 517 ; 49 Am. R. 71) i. 907 V. C. (11 Grat. 822) ii. 529, 572, 591 , C. V. (8 Leigh, 719) i. 569; ii. 985 , C. V. (2 Met. Ky., 10) ii. 1052 V. P. (5 Hun, 169) ii. 229 , P. V. (63 N. Y. 88) i. 299 ; ii. 191 , Reg. V. (15 Cox C. C. 568) ii. 415 ^ Respublica w. (1 Dall. 47) i. 571 ; ii. 147 , Rex V. (2 B. & Ad. 75) i. 623 v.S. (19 Ala. 577) i . 1031, 1034, 1035 «. S. (34 Ark. 693) ii. 836 v.S. (13 Tex. Ap. 244) ii. 638 v.S. (17 Tex. Ap. 345) i. 1013 ,S.v (70 N. C. 67) ii. 74, 79 •; S. V. (103 N. C. 424; 14 Am. St. 821) ii. 804, 842 Powels, K ex V. (4 Car. & P. 671) i..758; ii. 740 Power, C. V. (7 Met. 596; il Am. D. 465) i. 303, 532, 875 ,U. S . V. (11 How. U. S 570) i. 14 Powers, P . y. (2 Seld. 50) i. 962 — v.S. (87 Ind. 97) ii. 560 v.S. (87 Ind. 144) i. 780 , S.v (36 Conn. 77) i. 1085 ,S.v (76N. C. 281) i. 299 Powlter's Case (11 Co. 31) ii. 102 Pownell, Rex v. (W. Kel. 58) ii. 314, 927 930, 933 Poyas V. Wilkins (12 Rich. 420) ii. 138 Poynton, Reg. v. (Leigh & C. 247; 9 Cox C. C. 249) ii. 855 Poyser, Reg. v. (4 Eng. L. & Eq. 565 ; 2 Den. C. C. 283) ii. 834, 860, 871 Praed, Rex v. (4 Bur. 2257) i. 992 Pratley, Rex v. (5 Car. & P. 533) ii. 833, 858, 860 Pratt, C. V. (126 Mass. 462) i. 891 a V. Gardner (2 Cush. 63 ; 48 Am. D. 652) i. 460 V. Hutchinson (15 East, 511) i. 519 V. Price (11 Wend. 127) ii. 1024 , Rex V. (1 Moody, 260) i. 583 ; ii. 816, 822 , S. B. (1 Houst. Crim. 249) i. 383 6, 384, 391 ; ii. 708 Pray, P. i>. (1 Mich. N. P. 69) ii. 434 Presby, C. v. (14 Gray, 65) i. 303 a Prescott V. Norris (32 N. H. 101) i. 658 , S. w. (7N. H. 287) i. 1003 , U. S. v. (2 Abb. U. S. 169) i. 572 a . U. S. V. (2 Dil. 405) i. 572 a Presley w. S. (59 Ala. 98) ii. 728 TPRI INDEX TO THE CASES CITED. QUA Presnell, S v. (12 Ire. 103) i. 343 Presser «. llliiiiiis (116 U. S. 252) i. 44 V. H. (77 Xnd. 274) i. 865 Pressy, Reg. r. (10 Cox C. C. 635) ii. 1123 Preston v. Hunt (7 Wend. 53) ii. 13ti ' V. P. (45 Mich. 48B) i. 1029 , Reg. ». (2 Den. C. C. 353 ; 8 Eng. L. & Eq. 589'} i. 207 , ii. 758, 838, 882 , Reg. V. (2 Lewin, 193) ii. 1270 V. S. (25 Missis. 383) ii. 697, 710 , S. V. (34 Wis. 675) i. 428 , U. S. «. (3 Pet. 57) i. 564 .Prewitt, C. v. (82 Ky. 240) i. 795 u. S. (51 Ala. 33) 11,72 6 Price V. Carney (75 Ala. 546) ii. 132 , C. V. (10 Gray, 472; 71 Am. D. 603) c. P. (109 111, 109) , Reg. V. (8 Car. & P. 282) - — , Reg. V. (9 Car. & P. 729) ii. 605 1.287 ii. 652 i. 341 ; ii. 16 1. 634 ii. 1188 , Reg. V. (8 Cox C. C. 96) , Reg. V. (15 Cox C. C. 389) , Reg. V. (3 Per. & D. 421 ; 11 A. &E. 727; 4 Jur. 291) i. 294, 343 , Rex V. (5 Car. & P. 510) i. 340, 341 ; ii. 994 , Rex V. (8 Can & P. 19) i. 359, 362 V. S. (67 Ga. 723) i, 515 V. S. (36 Missis. 531 ; 72 Am. D. 195) i. 1034 V. S. (19 Ohio, 423) . i. 1053 V. S. (18 Tex. Ap. 474) ii. 708 V. Thornton (10 Misso. 135) i. 307 r. Van Doren (2 Southard, 578) 1. 713 Priddle, Rex v. (1 Leach, 442) i. 974 Pridgen o. S. (31 Tex. 420) ii. 704 , S. w. (8 Ire. 84) i. 536; ii. 513 Priebnow, S. v. (16 Neb. 131 )> i. 1020, 1027 Pries, Reg. v. (6 Cox C. C. 165) ii. 564 Priester v, Augley (5 Rich. 44) i. 857 Priestley, S v. (74 Mo. 24) ii. 1136 Prigg, Rex v. (Aleyn, 78) i. 246, 458 Prim V. S. (36 Ala. 244) ii. 1273, 1279 Primus, Tlie (29 Eng. L. & Eq. 589) i. 826 V. S. (2 Tex. Ap. 369) ii. 728 Prince, Reg. v. (Law Rep. 1 C. C. 150; 11 Cox C. C. 193) ii. 416, 442 , Reg. V. (Law Rep.2C. C. 154; 13 Cox C. C. 138) i. 302, 303 a , Rex V. (2 Car. & P. 517) ii. 353 , S. V. (63 N. C. 529) i. 992 PrindeviUe u. P. (42 111. 217) i. 798, 808 Prine«. C. (18Pa. 103) i. 097 V. S. (41 Tex. 300) i. 1058 Pringle, Keg. v. (9 Car. & P. 408 ; 2 Moody, 127) i. 791; ii. 564 Prior V. Kiso (81 Mo. 241) i 218 V. S. (41 Ga. 155) ii. 53 Piitchard, Rex v. (7 Car. & P. 303) i. 3.J6 , S. V. (7 Vroom, 101) i. 971 Pritchettw. S. (22 Ala.. 39; 58 Am. D. 250) i- 872 ; li. 703 PHtchett V. S. (2 Sneed, 285 ; 62 Am. D. 468) 1. 1021; ii. 758,879 Privett, Reg. v. (1 Den. C. C. 193 ; 2 Car. & K. 114) ii. 758, 843, 846, 855 , S. V. (4 Jones, N. C. 100) i. 317 Prize Cases, The (2 Black, 635) i. 59 Proberts, Rex v. (2 East P. C. 1030) i. 329; ii. 12, 15,21 Proby, Rex v (1 Keny. 250) i. 468 Prosser, Rex v. (2 East P. C. 502) ii. 106 V. Rowe (2 Car. & P. 421 ) i. 269 ; ii. 817 C. ii. 1026 ii. 343 Proud, Reg. v. (Law Rep. 1 C 71 ; 10 Cox C. C. 455) , Reg. V. (Leigh & C. 17) Prout, U. S. a. (1 Cranch C.C. 203) i. 1113, 1114, 1115 Prowes, Rex v. (1 Moody, 349) i. 141 Pruden v. Northrup (1 Root, 93) i. 990, 993, 1009 Pruitt i,-. Miller (3 Ind. 16) i. 974 V. S. (20 Tex. Ap. 129) i. 729 Pryor, In re (18 Kan. 72; 26 Am. R. 747) ii. 255 , S. V. (30 Ind. 350) ii. 437 , U. S. 0. (3 Wash. C. C. 234) ii. 1202, 1234 Public Works, In re (13 Hun, 483) it. 1267 Pugh i: Golden Valley Ry. (15 Ch. D. 330) i. 93 V. S. (2 Tex. Ap. 539) i. 736 , S. V. (7 Jones, N. C. 61) i. 368 P'ulham, Reg. ik (9 Car. & P. 280) i. 699 PuUe, S. V. (12 Minn. 164) i. 35; ii. 192 Pulse V. S. (6 Humph. 108) ^ - i. 761 Punshon, Rex v. (3 Camp. 96) ' i. 572 a Purchase's Case (15 How. St. Tr. 651) ii. 1213 Purchase, C. v. (2 Pick. 521 ; 13 Am. D. 452) ■ 1. 981, 1033, 1041 Purley, P. ex rel. (2 Cal. 564) ii. 89 Purse, S. V. (4 McCord, 472) i. 490, 1106 Pursell V. Home (3 Ney. & P. 564) ii. 72 Pusey, U. S. a. (6 Bankr. Reg. 284) i. 572 a Puterbaugh v. Smith (131 111. 199 ; 19 Am. St. 30) ii. 268, 269 Putman v. S. (49 Ark. 449) ii. 1010 , S. V. (18 S. C. 175 ; 44 Am. R. 569) i. 648 Putnam, C. v. (29 Pa. 296) 11. 215 V. Payne (13 Johns. 312) i. 1080 V. Putnam (8 Pick. 433) i. 110 V. Sullivan (4 Mass. 45 ; 3 Am. D. 206) 1. 584; ii. 581 , S. V. (35 Iowa, 561) i. 465 Pvbass, 'S. I). (4 Humph. 442) j. 667 Pyland v. S. (4 Sneed, 357) ii. 769, 879 Pywell, Rex v. (1 Stark. 402) ii. 190, 211, 444 Quail, Reg. o. (4 Fost. & F. 1076) i. 767 , Rex V. (1 Crawf. & Dix C. C. 191) i. 800 Quann, C. v. (2 Va. Cas. 89) i. 1066 789 KAN INDEX TO THE CASES CITED. RAY Quantity- of Maiiuf. Tobacco (10 Ben. 447) i. 819 a Quarles v. S. (1 Sneed, 407| ii. 701 Quarrier, Ex parte (2 W. Va. 569) i. 279; ii. 1235, 12o4, 1255 Queen, The, U. S. v. (4 Ben. 237) i. 821, 826 . , U. S. V. (11 Blatch. 4l6) i. 835 Quick, S. V. (25 S. C. 110) i. 501 Quigley v. C. (84 Pa. 18) ii. 728 Quiinby v. Blackey (63 N. H. 77) i. 271 Quin, C. V. (5 Gray, 478) i. 975 , P. V. (50 Barb. 128) i. 736; ii. 1115 . , S. V. (3 Brev. 515) ii. 37, 41 Quincy, U. S. v. (6 Pet. 445) i. 482 Quinlan K. P. (6 Par. Cr. 9) ii. 1179 Quinn v. P. (71 N. Y. 561 ; 27 Am. K. 87) ii. 118 Quitzow V. S. (1 Tex. Ap. 47; 28 Am. Ii. 396) ii. 888 . V. S. (1 Tex. Ap. 65) ii. 801 Uaake, Reg. v. (2 Moody, 66 ; 8 Car. & P. 626) ii. 560 Rachels u. S. (51 Ga. 374) ii. 1143, 1144, 1147 Radcliffe, Reg. v. (12 Cox C. C. 474 ; 6 Eng. Rep. 324) ii. 800, 802 ' , Reg. V. (2 Moody, 68) i. 572 a Rae, P. V. (66 Cal. 423; 56 Am. R. 102) ii. 813 Rafferty v. P. (12 Cox C. C. 617) ii. 652 V. P. (66 111. 118) ■ i. 409 V. P. (69 111. Ill; 18 Am. R. 601) ii. 699 V. P. (72 111. 37) i. 868 Ragg, Reg. v. (Bell C. C. 214; 8 Cox C. C. 262) ii. 443 Ragley, Rex v. (12 Mod. 409) ii. 1281 Ragsdale, U. S. v. (Hemp. 497) i. 154 Rahl, S v. (33 Tex. 76) i. 501 Raiford v. S. (59 Ala. lOR) ii. 744 Railroad Bridge Co., U. S. u. (6 McLean, 517) i. 174 Railroad Cars, U. S. ^. (1 Abb. U. S. 196) i. 428 Rainer, Rex v. (1 Sid. 214) i. 945 Raines, S. v. (3 McCord, 533) i. 803 Rainey v. Capps (22 Ala. 288) ii. 968 , P. V. (89 111. 34) ii. 395 V. S. (8 Tex. Ap. 62; 34 Am. R. 736) i. 464 Rake v. Pope (7 Ala. 161) i. 1050 Ramelsburg, S. v. (30 Mo. 26) ii. 904 Ramsay, Reg, .,. (15 Cox C. C. 231) ii. 76, 78 a , S. V. (78 N. C. 448) ii. 304, 310 a , U. S. It. (Hemp. 481) 11.744 Ramsey, S. v. (5 Jones, N. C 195) i. 868 Rand v. C. (9 Grat. 738) i. 283, 960, 961 , C. .;. (7 Met. 475 ; 41 Am. T). 465) i. 141, 578 ; ii. 767, 785, 786, 787 , S. V. (51 N. H. 361 ; 12 Am. R. 127) i. 658 790 ii. 1117 ' i. 746 i. 974 Rand, U. S. o. (17 Fed. Rep. 142) i. 482 Randal v. S. (4 Sm. & M. 349) ii. 880, 882 Randall .11. C. (24 Grat. 644) i. 618 , C. V. (4 Gray, 36) i. 882, 886 ; ii. 38, 60 , Rex V. (1 East P. C. 423) ii. 48 , Rex V. (Russ. & Ry. 195) ii. 539, 562 , S. 0. (2 Aikeiis, 89) ii. 1022 , S. y. (1 Strob. 110; 47 Am. D. 548) i. 245; ii. 1268 , U. S. V. (Deady, 524) ii. 781 Randle v. S. (49 Ala. 14) ii. 851 Randolph, P. v. (2 Par. Cr. 174) i. 373 ; , P. V. (2 Par. Cr. 213) , S. V. (24 Conn. 363) Ranger's Case (2 East P. C. 1074) i. 595; ii. 992 Rankin r. Beaird (Breese, 123) i. 910 , Rex V. (Russ. & Ry. 43) ii. 691, 701 , S. K. (4 Coldw. 146) i. 990, 1029, 1060 , S. ... (3 S. C. 438 ; 16 Am.- R. 737) i. 1078 a Ranney v. P. (22 N. Y. 413) ii. 424 Ransford, Reg. u. (13 Cox C. C. 9) i. 768, 768 6 Ransom v. S. (22 Conn. 153) i. 207 ; ii. 758, 838, 880, 882 Ranson, Rex v. (Russ.-& Ry. 232; 2 Leach, 1090) ii. 787 Ransone v. Christian (56 Ga. 351) i. 266 Rapid, The (8 Crancli, 155) i. 821 , The (1 Gallis. 295) , i. 821 Rapp V. C. (14 B. Monr. 614) i. 736, 849, 865; ii. 704 Rasberry a. S. (1 Tex. Ap. 664) ii. 72 6, 307 a Raschke, P. v. (73 Cal. 378) ii. 813 Rasnick d. C. (2 Va. Cas. 856) i. 572 a, 769; ii. 291, 299 Ratcliffe'sCase(2Lewin, 57) i. 578; ii. 769 Ratlihone, Reg. v. (2 Moody, 242 ; Car. & M. 220) i. 262, 440 ; ii. 904 Rathbun, P. l: (21 Wend. 509) i. 97,7; ii. 661, 1088, 1089 Rather v. S. (1 Port. 132) i. 3b6 Kauck V. S. (110 Ind. 384) ii. 40 Ravara, U. S. v. (2 Dall. 297) i. 129, 181, 196, 199, 201 Raven, Rex v. (J. Kel. 24) ii. 758, 799, 8B6 Ravensoroft, Rex v. (Russ. & Ry. 161) ii, 560, 562 Rawleigh's Case (2 Rol. 60) i. 908 Ravvles v. S. (15 Tex. 581) i 658,659 , S. V. (65 N. C. 334) ii. 25, 32 Kawlings v. S. (2 Md. 201) i. 932 Rawlins, Rex v. (2 East P. C. 617) ii. 794, 797 Rawson, P. v. (61 Barb. 619) i, 679 Ray, C. V. (3 Gray, 441) ii. 527, 545, 546, 557, B(I9 , C. t. (1 Va. Cas. 262) i, ii.Oj V. Lynps (10 .AIn. 63) i. 244, 531, 1143 V. S. (66 Ala. 281J ii. 95 BKD INDEX TO THE CASES CITED. REI Bay V. S. (15 Ga. 223) ii. 703, 704 y. S. (1 Greene, Iowa, 316: 48 Am. D. 379) i. 997 , S. u. (10 Ire. 39) i. 686, 638; ii. 518, 619 , S. 1.. (37 Mo. 366) ii. 63 , S. V. ( Kice, 1 ; 33 Am. D. 90) i. 1021 V. Thompson (43 Ala. 4:54 ; 94 Am. D. 696) i. 14 Raymond, C. v. (97 Mass. 567) i. 491 V. Leavitt (46 Mich. 447; 41 Am. R. 170) i. 620, 522, 529 , S. u. (20 Iowa, 582) ii. 1043 , S. V. (11 Nev. 98) i. 336; ii. 726, 728 Raynes, P. v. (3 Cal. 366) i. 1135, 1137 Raynham v. Rounsevill (9 Pick. 44) i. 1010 Raypholtz, S. v. (32 Kan. 450) ii. 1273 Rea, Inre (14 CoxC. C. 1.39) i, 895 , Reg. V. (17 Ir. Com. Law, 584) i. 470 ; ii. 946 Read v. Coker (24 Eng. L. & Eq. 213) ii. 34 «. C. (22 Grat. 924) ii. 675, 677, 741 0. Dawson (1 Sid. 49) i. 1002 , Reg. V. (1 Den. C. C. 377; 2 Car. & K. 957 ; Temp. & M. 62 ; 8 New Sess. Cas. 405; 13 Jur. 68) i. 261 ; ii. 36 , Reg. V. (11 Mod. 142) ii. 943 — , Reg. V (3 Q. B. D. 131 ; 14 Cox C. C. 17) ii. 361 , Rex «. (1 Lev. 9) i. 1002 -: — V. S. (1 lud. 611; Smith, Ind. 369) ii. 986 Reading's Case (1 Leach, 240, n.) ii. 897 Reading v. C. (1 Jones, Pa. 196; 61 Am. U. 534) i. 631 ; ii. 1274 Reagan v. S. (28 Tex. Ap. 227 ; 19 Am. St. 833) i. 406, 731 ; ii. 1136 Real «. P. (42 N. Y. 270) i. 400 Ream v. C. (3 S. & R. 207) ii. 670 Reane, Rex v. (2 East P. C. 734 ; 2 Leach, 616 ; 1 Russ. Crimes. 3d Eng. ed. 890) i. 438, 553 ; ii. 1174 Rearden, Reg. v. (4 Fost. & F. 76) ii. 1118 Beardon, Reg. !v(Law Rep. 1 C. C. 31 ; 10 Cox C. C. 241) ii. 1140 Eeason, Reg. v. (22 Eng. L. & Eq. 602) ii. 904 Reavey, P. v. (38 Hun, 418; 39 Hun, 364) ii. 416 Reclamation Dist. No. 3 v. Goldman (65 Cal. 635) i. 213 Rectified Spirits, U. S. ... (8 Blatch. 480) i. 821, 822 Rector, P. v. (19 Wend. 669) ii. 721 u. S. (1 Eng. 187) i. 32, 1028 , S. u. (34 Tex. 565) i. 594 Reculist, Rex v. (2 Leach, 703 ; 2 East P. C. 956) ii. 540 Red River Turnpike w. S. (1 Sneed, 474) ii. 1270 Redemeier, S. v. (8 Mo. Ap. 1) i. 384 Redfield ». S. (24 Tex. 133) ii. 749 Redman, Reg. v. (Law Rep. ICC. 12 ;. 10 Cox C, C. 169) ii 1200 Redman, Rex v. (1 LeacTi, 477) i. 810 u. Sanders (2 Dana, 68) ii. 140 , S. V. ( 17 Iowa, 329) i. 998, 1014 Redmond v. S. (36 Ark. 68 ; 38 Am. R. 24) i. 291 Redstrake, S. ». (10 Vrooni, 366) ii. 898 Reed v. Cist (7 S. & R. 183) i. 32 ; ii. 404 , C. V. (34 Pa. 276; 76 Am. D. 661) i. 1144 V. Harper (25 Iowa, 87 ; 95 Am. D. 774) i. 400 V. P. .(1 Par. Or. 481) i. 492 , Reg. V. (Gar. & M. 306) i. 297 ; ii. 768, 860, 878, 882 , Reg. y. (8 Car. & P. 623; 2 Lewin, 186) ii. 563 , Reg. V. (12 Cox C. C. 1 ; 2 Eng. Rep. 167) i. 600, 1128, 1131 — — , Reg. V. (24 Eng. L. & Eq. 862 ; Dears. 257 ; 18 Jur. 66) ii. 828, 829, 8-30, 831 832 , Rex I). (7 Car. & P. 848) ii. 428) 442 V. Rice (2 J. J. Mar. 44 ; 19 Am. D. 122) i. 306 V. S. (8 Ind. 200) ii. 731 V. S. (28 Ind. 396) ii. 633 V. S. (62 Missis. 405) ii. 708 V. S. (8 Tex. Ap. 40 ; 34 Am. ■ R. 732) ii.882 w. S. (9 Tex.Ap. 317) ii. 708, 736 V. S. (11 Tex. Ap. 609; 40 Am. R. 795) ii. 708 K. S. (16Tex. Ap 586) ii. 342 , S. ... (26 Conn. 202) i. 1010 , S. V. (85 Mo. 194) i. 721 b Rees, C. v. (2 Brews. 664) ii. 605 , Rex V. (6 Car. & P. 606) ii. 340 Reese v. S. (8 Ind. 416) i. 1033 , U. S. V. (4 Saw. 629) i. 201 V. Wyman (9 Ga. 430) ii. 429, 454 Reeves, Rex v. (9 Car. & P. 25) ii. 632 , Rex V. (Peake Ad. Cas. 84) ii. 922 Regan, Reg. v. (4 Cox C. C. 335) ii. 14, 15 «. S. (46 Wis. 2.56) ii. 63 , S. V. (63 Me. 127) i. 961 Reggel, Ex parte (114 U. S. ^42) i. 617 a Regicides, Trials of the (6 Howi St. Tr. 947) ii. 1213, 1233 Reich V. S. (63 Ga. 616) i. 302, 304 Reicliert v. Geers (98 Ind. 73; 49 Am. B. 736) i. 1143 V. McClure (23 111. 616) i. 93 Beid V. Hart (45 Ark. 41) i. 281 a , Beg. V. (1 Eng. L. & Eq. 596 ; 15 Jur. 181; 2 Den. C.C. 88) i. 794, 796, 803, 809, 998, 1041 V. Ship Vere (Bee, 66) V. S. (71 Ga. 866) y. S. (8 Tex. Ap. 430) , S. V. (20 Iowa, 413) , S. II. (39 Minn. 277) . , U. S. V. (12 How. U. S. 361) Heidel, S. v. (26 Iowa, 430) Reiley, S. v. (75 Mo. 621) 791 ii. 116 i. 117 ii. 40 i. 694 ii. 91 ii. 1125 i. 194, 200 ii. 437 i. 892 EHO INDEX TO THE CASES CITED. RIC Eeilly v. Racine (51 Wis. 526) ii. 1267 , Rex V. (Jebb, 51) ii. 869, 860 , Rex V. h Lead), 454) i. 903, 917 , S. V. (4 Mo. Ap. 392) ii. 879 Kelly, S. V. (2 Brev. 444) i. 992 Reindeer, The, U. S. v. (2 Clif. 57) i. 822 lierabert v. S. (53 Ala. .467 ; 26 Am. R. 639) ii. 523 Remington v. Congdon (2 Piclj. 310 ; 13 Am. T>. 431) ii. 914 Reniger v. Fogossa (1 Plow. 1) i. 401 Kennie's Case (1 Lewin, 76) i. 400, 406 Reno, Kx parte (66 Mo. 266; 27 Am. R. 387) i. 907, 914 Renshaw, Reg. v (20 Eng. L. & Eq. 593 ; 2 Cox C. C. 285 ; 11 Jur. 615) i. 380, 384, 385, 557, 734, 762, 883; li. 29, 660, 686, 741 Eenwick v. Morris (3 Hill, N. Y. 621; 7 Hill, N. Y. 575) 1. 531, 828 ; ii. 1278 Reonnals, S. u. (14 La. An. 278) i. 141 Reopelle, Reg. v. (20 U. C. Q B. 260) ii. 560 Reuss, Territory v. (5 Mont. 605) i. 735 Revel, Rex v. (1 Stra. 420) i. 470; ii. 244, 263, 266, 266 V. S. (26 Ga. 276) ii. 687 Revels, S. v. (Busbee, 200) i. 1052 Kew, Rex «. (J. Kel. 26) i. 257 ; ii. 638 Rexrotli v. Coon (15 R. I. 35; 2 Am. St. 863) ii. 771 Reyburn, D. S. v. (6 Pet. 362) i. 482 Reyesv. S. (lOTex. Ap. 1) ii. 694 Rey nell, Rex i: (6 East, 315 ; 2 Smith, 406) i. 793, 992; ii. 1286 Reynolds, Ex parte (6 Dil. 394) V. C. (38 Grat. 834) , C. V. (14 Gray, 87; 74 Am. 6^5) V. P. (1 Colo. 179) r. P. (41 How. Pr. 179) , P. V. (2 Mich. 422) i. 207 , Reg. V. (2 Cox C. C. 170) , Rex V. (Russ. & Ry. 465) i. 154 i. 632 D. i. 468 i. 159 ii. 1122 ; ii. 801, 1138 ii. 812 i. 429; ii. 991 w. Sehultz (4 Rob. N. Y. 282) 1.821 V. S. (1 Kelly, 222) i, 796 ; ii. 745 ». S. (3 Kelly, 53) 1. 1014, lOlB , S. V. (4 Hayw. 109) i. «92, 1024 , S. V. (42 Kan. 320 ; 16 Am. St. 483) i. 314 V. Stevenson (4 Ind. 619) ii. 964 V. Taylor (43 Ala. 420) i. 14 V. U. S. (98 U. S. 145) i. 809, 344, 499 a i. 344 ii. 701 , U. S. V. (1 Utah, 226) Rheams, S. v. (34 Minn. 18) Rheinstrom v. Cone (26 Wis. 163 ; 7 Am. R. 48) ii. 540 Rhoads v. C. (15 Pa. 272) i. 592 ; li. 198, 201 Rhodes, In re (66 N. C. 518) ii. 242 a V, Brandt (21 Hun, 1) ii. 1188 792 Rhodes «. McDonald (24 Missis. 418) i. 464 , Rex V. (1 Stra, 703) i. 266 , Rex V. (i T. R. 220) i. 515 V. S. (1 Coldw. 351) i 736 , S. <;. (1 Houst. Crim. 476) ii. 676, 728 , U. S. V. (1 Abb. V. S. 28) i. 894 Rhoner, P. v. (4 Par. Cr. 166) ii. 527 Rice t). C. (3 Bush, 14) i. 772 ; ii. 968 y. C. (12 Met. 246) i. 930 V. McCllntock (Dudley, S. C. 354) ii. 255 , Reg. V. (Law Rep. 1 C. C. 21) i. 1087, 1107 , Rex V. (3 East, 581) i. 259 ; ii. 312 V. Simmons (2 Harring. Del. 417; 31 Am.D. 766) ii. 908 V. S. (3 Heislf. 215) ii. 1188 V. S. (7 Ind. 332) i. 934 V. S. (8 Misso. 561) i. 314 ; ii. 664 V. S. (10 Tex. 646) i. 1137 , S'. V. ( 76 N. C. 194) i. 884 6 , S. V. (97 N C. 421) i. 940 Rich V. Basteffield (4 C. B. 783) i. 1095 V. Hogeboom (4 Denio, 453) ii. 72 V. S. (8 Ohio, 111) 1. 578 ; ii. 785 Richards v. C. (13 Grat. 803) ii. 864 , P. V. (67 Cal. 412; 56 Am. R. 716) ii. 191 , P. V. (44 Hun, 278) ii. 1190 , P. V. (1 Mich. 216 ; 51 Am. D. 76) i. 482, 814 ; ii. 178, 181, 198, 201, 211 239 , Reg, V. (1 Car. & K. 532) ii. 768, 841 , Reg. w. (11 Cox C. C. 43) ii. 1200, 1201 , Reg. V. (2 Q B. D. 311 ; 13 Cox C. C. 611) i. 695 , Rex V. (7 D. & R. 665) i. 427 ; ii. 1046 , Rex V. (Russ & Ry. 28) ii. 763, 783 — -, Rex V. (Russ. &Ry. 198) ii. 639, 660 , Rex V. (8 T. R. 634) i. 245; ii. 1267 , S. V. (39 Conn. 591) i. 376 , S. 1). (16Mo. Ap. 331) ii. 504 Richardson v. Kimball (28 Me. 403) ii.968 , Reg V. (I'Fost. & F. 488) ii. 824 , Reg. V. (2 Fost. & F. 348) ii. 680 , Reg. V. (2 Q. B. D. 311) -ii. 744 , Rex V. (6 Car. & P. 335) i. 542 ; ii. 1138 V. Rowland (40 Conn. 665) ii. 131 -^ — V. S. (6 Tex. Ap. 470) i. 836 ; ii. 304, 810 'J. S. (7 Tex. Ap. 486) i. 305, 865 ». S. (9 Tex. Ap. 612) ii. 704, 736 , S. V. (38 N. H. 208 ; 76 Am. D. 173) ii. 1012 , U. S. V. (5 Cranch C. C. 348) ii. 34 Kieharte v. S. (6 Tex. Ap. 359) ii. 728 Kichels w S. (1 Kneed, 606) ii. 72 liicliie V. S. (58 Ind. 355) ii. 72 b Richmond v. Dayton (10 Johns. 393) ii. 244, 263 , P. u. (29 Cal. 414) i. 867 BIT INDEX TO THE CASES CITED. KOB Richmond, Reg. v. {I Car. & K. 240) i. 1021 , Reg. V. (12 Cos C. C. 495; 6 Eng. Rep. 332) ii. 857 . S. V. (1 R. I. 40) ii. 1267 Kicker, S. v. (29 Me. 84) i. 670, 696 Kickers v. aimoox (1 Utah, 33) i. 833 Rickert, P. v. (8 Cow. 226) ii. 605 Ricketts, Rex v. (3 Camp. 68) i. 303 Rickey, S. v. (4 Halst. 293) i. 592; ii. 198, 214 Ricord, Ex parte (11 Nev. 287) ii. 364 Riddle v. S. (49 Ala, 389) . ii. 40 , U. S. V. (5 Cranch, 311) i. 206 Ridgelay, Rex v. ( 1 Leach, 189) ii. 294 Ridgeley, Rex v. (1 East P. C. 171) ii. 291, 294 Bidgeway v. S. (41 Tex. 231) ii. 847 , U. S. V. (31 Fed. Rep. 144) i. 384 Ridgway, C. o. (2 Ashm. 247) i. 287, 592; ii. 190, 198, 201 M. Hungerford Market (3 A. & E. 171) i. 441 , Reg. V. (3 Post. & F. 838) ii. 443 Ridley, Rex v. (1 Russ. Crimes; 3d Eng. ed. 752 ; 2 Camp. 650) i. 548, 557, 883,888; ii. 29, 72 a V. Sherbrok (3 Coldw. 569) i. 920 Ridout V. S. (6 Tex. Ap. 249) ii. 72 Rigg, S. w. (10 Nev. 284) ii. 680 Riggs V. S. (30 Missis. 635) ii. 714 ^, S. 0. (] Houst. Grim. 120) ii. 1121 , S. V. (22 Vt. 321) i. 1138 Riley's Case (2 Pick. 172) i. 283, 960 Riley, Reg. v. (14 Eng. L. & Eq. 544 ; Dears. 149; 17 Jur. 189; 22 Law J. N. s. M. C. 48) i. 207 ; ii. 801, 839 ~ "■ 1.257, 287; ii. 1104 V. S. (16 Conn. 47) V. S. (9 Humph. 646) V. S. (43 Missis. 397) , S. V. (28 Iowa, 547)' , S. V. ( 100 Mo. 493) , U. S. V. (5 Blatch. 204) i. 113, 115 ; ii. 723, 727 i.685 i. 965 i. 400, 406 i. 1029 a Rinaldi, Reg. v. (Leigh & C. 330; 9 Cox C. C. 391) Rindskopf, U. S. v. (6 Bis. 259) Rineman v. S. (24 Ind. 80) Ring V. Gray (6 B. Monr. 368) V. S. (42 Tex. 282) -, S. V. (29 Minn. 78) ii. 572 i. 815; ii. 225 i. 303 ii. 138 i. 633 ii. 349 i. 351 ii. 885 i. 432 ; ii. 236 i. 865 i. 1052 Ripley v. Gelston (9 Johns. 201 ; 6 Am. D. 271) , S. V. (2 Brev. 300) , S. V. (31 Me 386) Rippy u. S. (2 Head, 217) Rislier, S. w. (1 Rich. 219) Rispal, Rex v. (1 W. Bl. .368 ; 3 Bur. 1320) i. 591 ; ii. 192, 216, 217 Ritcher V. S. (38 Tex. 643) ii. 876 Ritchey v. S. (7 Blaekf. 168) 1. 559 ; ii. 13 Ritson, Reg. v. (Law Rep. 1 C. C. 200) ''• °°^' """ Ritter v. Democratic Press (68 Mo. 458) i. 974 V. S. (Ill Ind. 324) ii. 332 Ritzmanw. P. (llOIll. 362) i. 633 a Rivers v. S. (10 Tex. Ap. 177) i. 917 , S. V. (64 Iowa, 729) ii. 1010 Rives V. Weaver (36 Missis. 374) ii. 136 Roach 0. P. (77 111. 25) i. 305y 875 V. S. (8 Tex. Ap. 478) ii. 679, 694 Roane, S. v. (2 Dev. 58) i. 305, 849 ; ii. 647, 657, 658, 681, 692 Bobbins v. P. (95 III. 175) i. 1137 V. S. (20 Ala. 36) i. 891, 948 V. S. (8 Ohio St. 131) ii. 728 , S. 0. (66 Me. 324) i. 429 Roberts's Case (2 East P. C. 487) ii. 95 (3 Inst. 189) i. 468, 695, 895 Roberts, Ex parte (9 Nev. 44; 16 Am. R. 1) i. 953 V. Egerton (Law Rep. 9 Q. B. 494) i. 491 V. Hunt (15 Q. B. 17) ii. 1267, 1281 V. O'Connor (33 Me. 496) i. 658 V. P. (19 Mich. 401) i. 387, 406, 408, 729 735 V. Preston (9 C. B. n. s. 208) ' i. 531, 889 , Reg. u. (3 Cox C. C. 74) ii. 824 , Reg. w. (7 Cox C. C. 422) ii. 571 , Reg. V. (14 Cox C. C. 101) i. 464 , Reg. V. (33 Eng. L. & Eq. 553; Dears. 539 ; 25 Law J. n. s. M. C. 17 ; 1 Jur. N. s. 1094) i. 435 ; ii. 294 , Respablica v. (1 Dall. 39) i. 206, \ 772 , Respublica v. (2 Dall. 124 ; 1 ' Yeates, 6) i. 795 , Rex V. (1 Camp. 399) ii. 65 , Rex V. (Car. Crim. Law, 293) i. 559; ii. 93 , Rex V. (4 Mod. 101) ii. 394 V. Rose (3 H. & C. 162) i. 1081 -v.S.il Coldw. 359) i. 892 ; ii. 12 V. S. (14 Ga. 8; 58 Am. D. 528) i. 1064 ; ii. 1182 V. S. (65 Ga. 430) i. 850 V. S. (2 Head, 501) i. 570 ; ii. 484 V. S. (3 Kelly, 310) i. 384, 385, 387, 394 V. S. (14 Mo. 138 ; 55 Am. D. 97) i. 868, 915; ii. 699, 706 , S. K. (1 Hawks, 349; 9 Am. D. . 643) ii. 701 , S. y. (1 Hayw. 176) i. 940 , S. V. (11 Humph. 539) ii. 1024 , S. V. (34 Me. .320) i. 586 ; ii. 201 , S. V. (55 N. H. 483) i. 891 a , S. V. (98 N. C. 756) i. 985 V. Walley (14 Fed. Rep. 167) ii. 248 Robertson's Case (1 Broun, 295) ii. 215 (1 Swinton, 93) ii. 1128, 1130, 1132 Robertson, Ex parte (27 Tex. Ap. 628; 11 Am. St. 207) ii. 241 V. Bingley (1 McCord Ch. 333) ii. 262 793 ROB INDEX io THE CASES CITED. ROL Robertson, Pennsylvania v. (Addi- son, 24B) 1.805; ii. 630 , P. V. (67 Cal. 646) ii. 702 , Heg. V. (Lelgli & C. 483; 10 Cox C. C. 9) ii. 1200 V. S. (2 Lea, 239 ; 31 Am. R. 602) i. 314 ; ii. 60 Robeson v. French (12 Met. 24 ; 45 Am. D. 236) ii. 968 Robinett v. Ruby (13 Md. 95) ii. 914 Robins, Reg. v. (Dears. 418 ; 18 Jur. 1058 ; 29 Eng. L. & Eq. 544) ii. 824, 836 . , Rex V. (1 Leach, 290, n.) i. 582 ; ii. 804, 1167 Robinson, Ex parte (19 Wal. 505) ii. 243, 255, 260 V. Campbell (3 Wheat. 212) i. 194 ». C. (6 Dana, 287) i. 1117 V. C. (101 Mass. 27) ii. 1200 , C. V. (1 Gray, 555), ii. 982 , C. V. (126 Mass. 259; 30 Am. R. 674) i. 1061 , C. V. (Thacher Crim. Cas. 488) ii. 751 V. Culp (1 Tread 231 ) i. 271 V. Hawkins (4 T. B. Monr. 134) ii. 37 V. Munson (1 Johns. 277) i. 821 , P. .,. (1 Par. Cr. 649) i. 401 , P. V. (2 Par. Cr. 235) i. 401, 405, 409, 414 ; ii. 671 , Reg. V. (8 Cox C. C. 115; Bell C. C. 34) ii. 479 , Heg. V. (9 L. Canada, 278) ii. 441 , Reg. V. (Leigh & C. 604 ; 10 Cox C. C. 107) ii. 291 -:—, Rex V. (2 Bur. 799 ; 2 Keny. 513) i. 240 , Rex V. (2 East P. C. 565) ii. 365, 824, 831, 886 , Rex V. (2 East P. C. 1110; 2 Leach, 749) ii. 1200 , Rex V. (1 Leach, 37; 2 East P. C. 1010) ii. 187, 216 , Rex V. (1 Moody, 413) i. 958 , Rex V. (2 Stark. 485) ii. 899 v. S. (52 Ala. 587) 1.1021 w. S. (54 Ala. 86) ii. 72 6 V. S. (38 Ark. 641 ) i. 658 w. S. (1 Coldw. 120; 78 Am. D. 487) ii. 799, 8.34 V. S. (18 Fla. 898) ii. 1032 D. S. (66 Ind. 331) ii. 575 «; S. (113Ind. 610) i. 376, 411 V. S. (58 Md. 151 ; 36 Am. R. 399) ii. 110 V. S. (31 Tex. 1?0) ii. 53 V. S. (11 Tex. Ap. 309) ii. 1179 , S. V. (3 Dev. & Bat. 130 ; 32 Am. D. 661) i. 569; ii. 985, 996 , S. K. (1 Harrison, 507) i. 672 ; ii. 576, 692 , S. V. (28 Iowa, 614) ii. 1268 , S. „. (73 Mo. 306) , ii. 728 , S r. (20 W. Va. 713 ; 43 Am. R. 799) i. 406, 410 794 Robinus v. S. (63 Ind. 235) i. 302 Robison v. Beall (26 Ga. 17) ii. 132 Robson V. The Huntress (2 Wal. Jr. 59) i. 129 , Reg. u. (Leigh & C. 93) ii. 812 , Rex V. (Russ. & Ry. 413) i. 583 ; ii. 810, 813 Roby, C. V. (12 Pick. 496) i. 787, 788,804, 806, 807, 808, 809, 812, 916, 1003, 1059 V. West (4 N. K. 285 ; 17 Am. I). 423) i. 658 Rockett, S. V. (87 Mo. 666) i. 963 Rockwell, P. V. (39 Midi. 503) ii. 639 Roderick, Rex v. (7 Car. & P. 795) i. 759 Rodes, C. u. (6 B. Monr. 171) i. 313, 460; ii. 392, 972 Rodgers, Ex parte (Amb. 307) i. 287 , U. S. u. (1 Mackey, 419) ii. 813 Rodriguiz v. S. (20 Tex. Ap. 542) ii. 1121, 1123 Rodway, Reg. v. (9 Car. &P. 784) ii. 785, 787, 817 Roe, Reg. v. (11 Cox C. C. 554) ii. 773 , S. V. (12 Vt. 93) i. 1016, 1017 Roebuck, Reg. n. (Dears. & B. 24; 36 Eng. L. & Eq. 631 ; 7 Cox C. C. 126) ii. 4.53, 488 Rofters, Ex parte (10 Tex. Ap. 655 ; 38 Am. R. 654) i. 1052 V. Alexander (2 Greene, Iowa, 443) i. 32 , C. f. (7 Met. 500; 41 Am. D. 468) i. 303, 303 a, 375, 384, 386, 387, 392, 974 , C. ti. (1 S. & R. 124) i. 536 , C. V. (5 S. & R. 463) i. 743 V. Kennebec and Portland Rid. (35 Me. 319) i. 174 V. Paterson (4 Paige, 450) ii. 270 V. P. (3 Par. Cr. 632) i. 414 , P. V. (18 H. Y. 9; 72 Am. D. 484) i. 415 , Reg. V. (8 Car. & P. 629) ii. 629, 679, 587, 588 , Reg. ■;. (5 Cox C. C. 293) ii. 904 , Reg. V. (2 Moody, 85; 2 Lewin, 119) i. 630. 648 , Reg. V. (7 Mod. 28) ii. 244, S , Rex V. (2 Keny. 373) V. S. (62 Ala. 170) V. S. (11 Tex. Ap. 608) , S. V. (6 Bax. 663) 266, 946 i. 237 i. 305 1.110 i. 667 , S. V. (18 Kan. 78; 26 Am. R. 754) i. 842 , S. V. (93 N. C. 523) i. 865 , U. S. V. (Hemp. 450) i. 154 , U. S. V. (4 How. U. S. 567) i. 164 Rohen v. Sawin (5 Gush. 281) i. 700 Rolifrischt, S. v. (12 La. An. 382) ' i. 621 Holland v. C. (82 Pa. 306 ; 22 Am. R. 768) i. 262 : n. C. (85 Pa. 66 ; 27 Am. R. 626) ii. 97 RolHns, S. V. (8 N. H. 650) i 35, 663; ii. 26, 36, 748, 760, 751 iiOU INDEX TO THE CASES CITED. EUS Rollins, S. V. (12 Rich. 297) i. 1066 Rome V. Omburg (22 Ga. 67) ii. 1013 Romeyn v. Caplis (17 Midi. 449) ii. 268 Roney v S. (76 Ga. 731) 1. 648 Rood V. Winslow (2 Doug. Mich. 68) i. 915 Roode V. S. (5 Neb. 174; 25 Am. R. 475) ■ ii. 533, 538 Root V. King (7 Cow. 613) ii. 922, 937 Eoper, Rex v. { 1 Crawf. & Dix C. C. 185) i. 1014 , S. u. (3 Dev. 473; 24 Am. D. 268) i. 207 ; ii. 838, 882 , S. V. (1 Dev. & Bat. 208) i. 500, 1127 Rose v. Groves (6 Scott N. R. 645) i. 265 0. Hlmely (4 Cranch, 241) i. 120 V. Miles (4 M. & S. 101) i. 265 , Reg. u. (15 Cox 0. C. 540) i. 303 a V. S. (19 Tex. Ap. 470) i. 428 , S. V. (30 Kan. 501) i. 865 , S. V. (32 Mo. 560) i. 500, 1125 Eoseiibaum v. S. (33 Ala. 354) i. 948 Rosenberg, Reg. v. (1 Car. & K. 233 ; 1 Cox C. C. 21) ii. 768, 874 Rosenstein, Rex v. (2 Car. & P. 414) i. 204 Rosewell's Case (10 How. St. Tr. 147) i. 93 Rosewell, Rex v. (2 Salk. 459) i. 828 Rosiriski, Rex v. (1 Moody, 19) i. 261, 548 ; ii. 36 Ross's Case (3 City Hall Rec. 191) i. 594 (2 Pick. 165) i. 279, 283, 960 Ross u. Blair (Meigs, 525) ii. 137 V. C. (2 B. Monr. 417) i. 206, 600, 631,686,759,761, 1091,1093 V. P. (5 Hill, N. Y. 294) i. 583 ; ii. 809, 816, 818 V. S. (55 Ga. 192 ; 21 Am. R. 278) ii. 1023 «. S. (59 Ga. 248) ii. 704 V. S. (16 Tex. Ap. 554) ii. 118 , S. ». (2 Dutclier, 224) ii. 37, 38, 726, 307 a , S. V. (4 Jones, N. C. 316 ; 69 Am. D. 751) ii. 505 , S. 0. (14 La. An, 364) i. 1014, 1024 , S. V. (4 Lea, 442) i. 1061 , S. V. (29 Mo. 32) i. 648, 1004, 1006 V. Thompson (78 Ind. 90) ii. 1267 , U. S. V. (1 Gallis. 624) i. 117, 327, 633, 636 ; ii. 744 Rosser v. McCoUy (9 Ind. 687) ii. 968 Eossiter v. Chester (1 Doug. Mich. 154) i- 173 Rossvally, U. S. u. (3 Ben. 157) i. 892 ; ■^ ii. 281a Rothschild v. Darien (69 Ga. 503) ii. 952 V. S. (13 Lea, 294) ii- 437 Rochwell, Reg. v. (12 Cox C. C. 145 ; 2Eng. Rep.201) ''• ^•'f Eoudenbush, U. S. «. (1 Bald. 514) i. 411 Bough, Eex v. (2 East P. C. 607) u. 768, Rountree v. S. (10 Tex. Ap. 110) Eourke, C. v. (10 Cush. 397) Eouse V. S (4 Ga. 136) Rousseau v. Troy (49 How. Pr. 492) ii. 1190 Route, V. S. V. (33 Fed. Rep. 246) i. 304 Routt V. Feemster (7 J. J. Mar. 131) i. 910 Rovena, The (Ware, 309) i. 821 Rowan v. S. (30 Wis. 129; 11 Am. R. 669) ii. 727 Rowe V. S. (2 Bay, 565) i. 910, 911 , S. V. (8 Rich. 17) i. 621; ii. 609, 610 Kowed, Reg. v. (6 Jur. 396) i. 767 ; ii. 1195 Rowlands, Reg. v. (2 Den. C. C. 364 ; 5 Cox C. C. 436 ; 9 Eng. L. & Eq. 287; 17 Q. B. 671) ii. 183,230 Rowley, Rex v. (Russ. & Ry. 110) ii. 606 , S. u. (12Conn. 101) i. 264, 592; ii. 175, 181, 410, 423, 452 Roxburgh, Reg. v. (12 Cox C. C. 8; 2 Eng. Rep. 166) i. 713, 859 Roy, C. V. (140 Mass. 432) i. 540 Royal, P. i;. (53 Cal. 62) ii. 1121 , P. «. (1 Scam. 557) i. 1024 Royall, U. S. ti. (3 Cranch C. C. 620) i. 540, 943, 1101, 1103, 1104 Royce, Rex v. (4 Bur. 2073) i. 648 Rucker u. Bosworth (7 J. J. Mar. 045) i. 910 Rudge, Reg. v. (13 Cox C. C. 17) i. 807 Eudland, Reg. v. (4 Fost. & F. 495) ii. 1122 Rue r. Perry (63 Barb. 40) ii. 790 Rufer l: S. (26 Ohio St. 464) ii. 722 Rufe 0. Pliillips (50 Ga. 130) i. 1080, 1081 Rugen, The (1 Wheat. 62) i. 821 Rugg, Reg. V. (12 Cox C. C. 16) i. 884 Ruggles, P. u. (8 Johns. 290 ; 5 Am. D. 385) i. 497, 498 ; ii. 74, 77, 78, 81 , U. S. V. (5 Mason, li)2) ii. 37 Ruhl V. Euhl (24 W. Va. 279) ii. 242 a, 268 i. 327 i. 1032 779 i. 206 ii. 7«1 i. 178 , S. V. (8 Iowa, 447) Rulo u. S. (19 Ind. 298) Ruloflf V. P. (46 N. Y. 213 ; 11 Abb. Pr. N. s. 245 ; 6 Lans. 261) i. 637, 842 ; ii. 728 Eum, S. V. (61 N. H. 373) i. 821, 826, 833 Rumble, Eeg. v. (4 Fost. & F. 175) i. 482 Rump V. C. (30 Pa. 475) i. 178; ii. 1023 Rumsey v. P. (19 N. Y. 41) ii. 741 Rundle, Reg. v. (Dears. 482 ; 24 Law J. N. s. M. C. 129 ; 1 Jur. n. s. 430; 29 Eng. L. & Eq. 555) i. 891 Rungu. Shoneberger (2 Watts, 23; 26 Am. D. 96) i. 245, 531, 829 ; ii. 1269 Runnells u. Fletcher (16 Mass. 625) i. 673; ii. 393, 404 Runnels, C. ». (10 Mass. 618; 6 Am. D. 148) i. 534 ; ii. 1147 Runyan v. S. (57 Ind. 80 ; 26 Am. R. 52) i. 850 Rupp, C. V. (9 Watts, 114) i. 464 Rusby, Rex v. (1 Bott P. L. 335) ii. 218 , Rex V. (Pamph. A. D. 1800) i. 528 , Rex V. (Peake Add. Cas. 189) i. 519, 628 Rush, C. V. (14 Pa. 186) i. 581 ; ii. 1269 795 S. L INDEX TO THE CASES CITED. SAN Rusliby, Rex v. (2 Chit. Crim. Law, 63b) i- 628 Rusliins, S. V. (69 N. C. 29; 12 Am. R. U41) li. 1138 Rushworth, Rex v. (Russ. & Ry. ^ 817 ; 2 Russ. Crimes, 3d Eng. ed. 517; 1 Stark. .%6) ii. 538 Russell V. C. (7 S. & R. 489) i. 960 u. Doyle (84 Ky. .386) ii. 139 , Reg. V. (3 Ellis & B. 942 ; 23 Law J. N. s. M. C. 173; 18 Jur. 1022 ; 26 Eng. L. & Eq. 230) i. 32, 993, 1024 ; ii. 1272 , Rex i: (6 B. & C. 566) i, 341, 531 ; it. 1272 , Rex V. (6 East, 427 ; 2 Smith, 424) i. 531 ; ii. 1274 , Rex V. (1 Moody, 356) i. 269, 510, 511, 631, 652 , Rex V. (1 Moody & R. 122) ii. 1 129 -^ — V. Shenton (3 Q. B. 449) i. 1095 V. S. (3 Coldw. 119) ii. 1267 , S. i^. (1 Houst. Crim. 122) i. 11:38 , S. i: (45-N. H. 83) i. 534 , U. S. V. (22 Fed. Rep. 390) ii. 281 a Russen, Rex v. (1 East P. C. 4.38) ii. 1132 Rust V. Larue (4 Litt. 411 ; 14 Am. D. 172) i. 541 ; ii. 122, 131, 132 , Rex V. (1 Moody, 183) i. 559 ; ii. 93 Huston V. S. (10 Tex. Ap. 644) ii. 1138 Ruth, S. I). (21 Kan. 683) ii. 1125 Rutherford v. Holmes (66 N. Y. 368; 5 Hun, 317) ii. 244, 246 V. S. (15 Tex. Ap. 236) ii. 697 , S. D. (1 Hawks, 457; 9 Am. D. 658) . i. 305, 849 Ruthven, S, v. (.58 Iowa, 121) i. 711 Ryalls V. Leader (Law Rep. 1 Ex. 296) ii. 915 V. Reg. (13 Jur. 259; 18 Law J. N. s. M. C. 69) ii. 1064 Ryan, C. v. (134 Mass. 223) ii. 638 ■ , Reg. V. (2 Cox C. C. 115) ii. 1115, 1121, 1123 , Reg. V. (2 Moody & R. 213) i. 342, 735 «. S. (45 Ga. 128) ii. 419 , S. V. (13 Minn. 370) i. 280 Ryder, S. v. (36 La. An. 294) i. 960 Rye V. S. (8 Tex. Ap. 153) ii. 6.30 V. S. (8 Tex. Ap. 163) ii. 728 , S. w. (36 N. H. 368) 1. 245; ii. 1268 Rye Justices, Rex v. (Say. 26) i. 462 ; ii. 972 Ryland, P. v. (28 Hun, 668) i. 362 , Reg. V. (Law Rep. 1 C. C. 99 ; 10 Cox C. 0. 669) i. 884 Rymer, Reg. v. (2 Q. B. D. 136 ; 13 Cox C.C. 378) i. 532 Rynders, P. v. (12 Wend. 425) ii. 543 S , Reg. V. (6 Cox C. C. 279) i. 888; ii. 660, 686 S. L., S. V. (2 Tyler, 249) i. 700 796 Sackrider v. McDonald (10 Joiins. 253) i. 208 Sacoodacot, U. S. w. (1 Abb. U. S. 377) i. 154 Saddler v. S. (12 Tex. Ap. 194) i. 731 St. Asaph, Dean of, Rex v. (3 T. R. 428) ' ii. 918 St. Charles v. Meyer (68 Mo 86) ii, 7 St. Clair v. Piatt ( Wright, 532) ii. 252, 269 , S. V. (17 Iowa, 149) i. 634; ii. 1138, 1139 St. Croix V. Sands (2 Johns. Cas. 267) i. 821 St. Geme, S. v. (31 La. An. 302) i. 3(j6 St. George, Reg. v. (9 Car. &P. 483) i. 548, 758, 762, 809 ; ii. 32, 991 St. Giles, Rex v. (6 M. & S. 260) ii. 1281 St. Jago de Cuba, The (9 Wheat. 409) i. 564 8t. Lawrence, The (8 Cranch, 434) i. 821 St. Leger v. Pope (Comb. 827) ii. 614 St. Louis, P. c. (6 Oilman, 351) i. 174; ii. 1271, 1273 St. Louis Board of Health, S. v. (16 Mo. Ap. 8) i. 1148 St. Weonard, Rex u. (5 Car. & P. 579) ii. 1269, 1280 Saintift, Reg. v. (Holt, 129; 6 Mod. 255) i. 245 ; ii. 1266, 1269 Sais, S. V. (47 Tex. 307) i. 150 Sale V. Marsh (Cro. Eliz. 178) ii. 531 Salem v. Maynes (123 Mass. 872) i. 1151 Sales, S. V. (30 La. An. 916) i. 621 ; ii. 744 , S. V. (2 Nev. 268) ii. 389 Salisbury, Rex v. (5 Car. & P. 155) ii. 340, 353, 361, 904 Sallie V. S. (39 Ala. 691) ii. 891 Sally, The (8 Cranch, 382) i. 821 Salmon, Reg. v. (6 Q. B. D. 79; 14 Cox C. C. 494) i. 314, 636 ; ii. 738 , Rex V. (Russ. & Ry. 20) i. 429; ii. 980, 994, 997 Salmons v. Tait (31 6a. 676) ii. 1032 Salomoni, Tlie (29 Fed, Rep. 534) i. 122 Salorse, P. v. (62 Cal. 139) ii. 328, 342 Saloway, Rex w. (8 Mod. 100) i. 910 Saltillo V. S. (16 Tex. Ap. 249) ii. 840 Salvador, P. u. (71 Cal. 15) ii. 783 Salvi, Reg. v. (10 Cox C. C. 481, n.) i. 1059 Sam, S. V. (Winst. i. 300) i. 746; ii. 1117 Samanni v. C. (16 Grat. 543) ii. 1149 Sampson v. C. (5 Watts & S. 385) i. 667 ; ii. 18 , C. V. (97 Mass. 407) ii. 959 e. Smith (15 Mass. 365) ii. 37 Samuel, S. v. (3 Jones, N. C. 74 ; 64 Am. D. 696) ii. 708 Samwavs, Reg. v. (Dears. 371 ; 26 Eng. L. & Eq. 676) ii. 824, 836 Sanchez v. P. (4 Par. Cr. 535) i. 388 , P. V. (24 Cal. 17) ii. 717, 727 Sander, U. S. v. (6 McLean, 598) ii. 379 Sanders v. Johnson (29 Ga. 526) ii. 964 u. Metcalf (1 Tenn. Ch. 419) ii, 264 V. S. (18 Ark. 198) i. 685 ; ii. 1274 SAV INDEX TO THE CASES CITED. SCH Sanders v. S. (60 Ga 126) ii. 1147 0. S. (94Ind. 147) i. 387 '•. S. (2 Iowa, 230) i. 1065 , U. S. V. (Hemp. 483) i. 154 Sanderson, Reg. v. (I Fost. &F. 37) i. 531 , Rex V. {H U. C. O. S. 103) ii. 1267 Sandford y. Sandford (40 Hun,540) ii. 242 a S'andiman v. Breach (7 B. & C. 96 ; 9 D. & Ii. 796); ii. 954 Sandoval, Reg. v. (16 CoxC. C. 206) i. 482 Sandoz, S. o. (37 La. An. 376) - i. 428 Sands, P. i/. (1 Johns. 78 j 3 Am. D. 296) i. 531, 1098 Sanford, C. v. (12 Gray, 174) i. 531 , C. V. (5 Litt. 289) i. 1024 V. S. (12 Tex. Ap. 196) i. 731 , S. V. (1 Nott & McC. 512) i. 700 San Francisco v. Clarlc (1 Cal. 386) ii. 1272 Sankey, C. v. (22 Pa. 390 ; 60 Am. D. 91) i. 584; ii. 590 Santissima Trinidad, The (7 Wheat. 283) , i. 119, ISO, 132 Sarah «. S. (18 Ark. 114) i. 948 V. S. (28 Missis. 267; 61 Am. 15. 544) ii. 693 Saratoga, The (15 Fed. Kep. 382) i. 834 Sargent v. Mathewson (38 N. H. 54) i. 884 h , Reg. V. (10 Cox C. C. 161) ii. 574 I'.'S. (11 Ohio, 472) i. 998 Sarmon, Rtex v. (1 Bur. 516) i. 5-31 ; ii. 1275 Sartor, S. v. (2 Strob. 60) ii. 1267 Sartori v. Hamilton (1 Green, N. J. 107) i. 181 Sasser v. S. (13 Ohio, 453) i. 345; ii. 294, 543, 605 Satchwell, Reg. v. (Law Rep. 2 C. C. 21 ; 12 Cox C. C. 449) ii. 16, 986 Satterlee v. Matthewson (2 Pet. 380) i. 279 Saltier, Reg. v. (Dears. & B. 525; 7 CoxC. C. 431) i. 112 Saugatuck Bridge Co. o. Westport (39 Conn. 337) ii. 1269 Saukvilie v. S. (69 Wis. 178) ii. 1282 Saunders v. Groves (2 J. J. Mar. 406) ii. K9 V. P. (38 Mich. 218) i. 262, 468 , P. V. (25 Mich. 1 19) ii. '220 , P. V. (29 Mich. 269) i. 1090 , P. V. (4 Par. Cr. 196) i. 1055 , Reg.-v. (8 Car. &P. 265) i. 261,809; ii. 1122 , Reg. o. (2 Plow. 473) i. 328, 640, 651 , Reg. o. (10 Q, B. 484) i. 247, 256 , Reg. V. (1 Q. B. D. 15; 13' Cox C. C. 116) i. 500, 504, 1146 , Rex V. (7 Car. & P. 277) i. 217, 364, 883 ; ii. 660, 686 V. Robinson (5 Met. 343) ii. 490 V. Townsend (26 Hun, 308) ii. 1268 Sauvinet,S. v. (24 La. An. 119; 13 Am. R. 115) i. 913;ii. 269 Savage, Rex v. (5 Car. & P. 143) ii. 833 , Rex V. (Style, 12) ii. 52!) V. S. (18 Fla. 909) i. 642 ; ii. 728 , S. V. (78 N. C. 520) ii- 704 Savage, U. S. v. (5 Mason, 460) i. 564 Savannah v. S. (4 Ga. 26) i. 174 , S. V. (T. U. P. Charl. 235 ; 4 Am. D. 708) i. 504, 1135 Savannah Pirates (Warburton's Trial) ii. 1058 Savin, petitioner (131 U. S. 267) ii. 243, 252 Saward, Reg. .;. (5 Cox C. C. 295) ii. 867 Sawyer, In re (2 Gale & D. 141) i. 974 V. Davis (136 Mass. 239; 49 Am. R. 27) i. 1138, 1144 , Hex V. (2 Car. & K. 101 ; Russ. & Ry. 294 ; Car. Crira. Law, 103) i. 121 V. S. (35 Ind. 80) ii. 708 Saxon V. Conger (6 Or. 388) i. 713 Sayles v. Tibbitts (5 R. I. 79) ii. 121 Saylor, S. , . (b Lea, 586) ii. 740 Scaggjs, S. V. (6 Blackf. 37) ii. 1143 Scaife, Keg. y. (2 Den. C. C. 281; 17 Q. B. 238) i. 1001 Sealbert, Rex v. (2 Leach, 620) i. 1032 Scales V. S. (47 Ark. 476) i. 309 V. S. (7 Tex. Ap. 361) i. 636 Scarborough v. Scarborough (1 Ex. 1). 344) i. 1079 V. S. (46 Ga. 26) i. 1084 Scarfe v. Morgan (4 M. & W. 270 ; 1 Horn & H. 292) ii. 954 Scarlet's Case (12 Co. 98) i. 468 Scarver v. S. (53 Missis. 407) ii. 885, 888 Scates, P. «. (3 Scam. 351) i. 997 , S. V. (5 Jones, N. C. 420) ii. 639 SchaefEer, P. o. (41 Hun, 23) i. 304' Scliaffer, C. v. (4 Dall. Ap, xxvi.) ii. 1022 Schaller v. S. (14 Mo. 502) i. 400 Scheele, S. o. (57 Conn. 307; 14 Am. St. 106) ii. 37, 41 a Scheie, S. v. (52 Iowa, 608) i. 780 ; ii. 740 Schell V. S. (2 Tex. Ap. 30) i. 917 Sclienck, P. v. (2 Johns. 479) i. 141 Schieneman, S. y. (64 Mo. 386) ii. 307 a Scliiever, Rex u. (2 Bur. 765) i. 63 Scliilb, S. II. (47 Iowa, 611) ii. 1267, 1285 Schingen, S. v. (20 Wis. 74) i. 411 Schlencker v. S. (9 Neb. 300) ii. 728 Schlesinger, Reg. v. (10 Q. B. 670; 12 Jur. 283 ; 17 Law J. n. s. M. C. 29) ii. 1040 Schlit V. S. (31 Ind. 246) ii. 951 Schlottman, S. v. (52 Mo. 164) i. 231 Schmidt, P. v. (64 Cal. 260) i. 1000 , Reg. V. (Law Rep. 1 C. C. 15) ii, 1140 !i. S. (78 Ind. 41) i. 291 V. S. (14 Mo. 137) i. 355, 631, 686 Schmitt, S. V. (20 Vroom, 579) ■ ii. 925 Schneider v. Sansom (62 Tex. 201 ; 50Am. R. 521) ii. 958 a Schnier v. P. (23 111. 17) i. 305 Schnierle, S. v. (5 Rich. 299) i. 499 ; ii 968 Schoettgen v. Wilson (48 Mo. 253) ii. 1104 Schoharie v. Pindar (3 Lans. 8) i. 464 Schoitz's Case (5 City H. Rec. 112) ii. 201 797 SCO INDEX TO THE CASES CITED. SEL Scliomp B. Sdienc'k (11 Vroom, 195; 29 Am. K. 219) ii- 130 School, Reg.!'. (26U.C.Q. B.212) ii.l213 Schooner Exchange v. McFadtlon (7 Cranch, 116) i. 106, 126, 130 Schooner Kitty, U. S. v. (Bee, 252) i. 564 Schuek V. Hagar (24 Minn. 339) ii. 72 Schultz, S. V. (57 Ind. 19) ii. 1030 Schuster i: S. (48 Ala. 199) i. 294 Schuyler, P. o. (6 Cow. 572) il. «73 Schuylkill v. Copley (67 Pa. 386 ; 5 Am. R. 441) i. 972, 974 V. Keifsnyder (46 Pa. 446) i. 910 Schwartz, P. v. (32 Cal. 160) ii. 12 , S. V. (64 Wis. 432) ii. 561 Scitzy. S. (23 Ala.42), i. 736 Scobey v. Ross (13 Ind 117) ii. 132 Scofield V. Collins (3 Cow. 89) ii. 137 , Rex V. (Cald. 397 ; 2 East P. C. 1028) i. 206, 329, 835, 434, 659, 759, 772,810; ii. 16 Scoggins, P. V. (37 Cal. 676) i. 305, 848 : «. S. (18 Tex. Ap. 298) ii. 88 Scot V. Turner (1 Root, 163) i. 960 Scott's Case (5 Newgate Calendar, 284) Scott, Ex parte (4 Man. & R. 361 B. & C. 446) , Ex parte (19 Ohio St. 581) V. Chambers (62 Mich. 532) i. 477 i. 135 i. 899 i. 940 ; ii. 270 83 Am. i. 387 ii. 1004 i. 1024 ii. 1040 ii. 415, 429 i. 735; ii. 742 V. C. (4 Met. Ky. 227 D. 461) V. C. (6 S. & R. 224) , C. V. (10 Grat. 749) V. Cook (1 Duv 314) V. P. (62 Barb. 62) , P. V. (6 Mich. 287) , Reg. V. (Dears. & B. 47; 36 Eng. L. &Eq. 644) i. 572 a , Reg. V. (2 Gale & D. 729 ; 3 Q. B. 543) i. 531 ; ii. 1278 , Rex V. (3 Bur. 1262 ; 1 W. Bl. 350) i. 534; ii. 1144 V. Shepherd (2 W. Bl. 892) ii. 72 c V. S. (37 Ala. 117) ii. 676 V. S. (49 Ark. 156) i. 729 V. S. (56 Missis. 287) i. 305 V. S. (60 Missis. 268) i. 780 S. (12 Tex. Ap. 31) i. 400 ■. «. (1 Hawks, 24) i. 935, 938 (4 Ire. 409; 42 Am. D. i. 305; ii. 699, 701, 704 — , S. — , S. 148) , S. r. (12 La. An 274) , S. u. (41 Minn. 365) , S. V. (27 Mo. Ap. 541) , S. V. (64 N. C. 586) , S. V. (72 N. C. 461) , S. V. (24 Vt. 127) V. U. S. (8 Ct. CI. 457) V. U. S. (Morris, 142) ii. 639 i. 3836 ii. 1267 ii. 796 i. 772 i. 621, 806 i. 914 i. 534, 1057, 1058; ii. 1146 , U. S. V. (4 Bis. 29) i. 199 Scotton, Reg. v. (8 Jur. 400) ii. 1028 Scovel, S. V. (1 Mill, 274) i. 700; ii. 1139 798 Scrafford, In re (21 Kan. 735) i. 1031 Scribnef u. Beach (4 Denio, 448 ; 47 Am. D. 265) ii. 38, 89, 41 Scripture, S. v. (42 N. H. 485) ii. 97 Scroggins,,U. S. v. (Hemp. 478) ii. 1004 Scudder, Rex v. (1 Moody, 216 ; 3 Car. & P. 605) i. 741 V. Thomas (35 Ga. 364) i. 14 Scully D.C. (35 Pa. 511) ii. 958 , Rex V. (1 Car. & P. 319) i. 305, 843 Seaborn !•. S. (20 Ala. 15) i. 952 , S. u. (4 Uev. 305) i. 938, 997 ; ii. 18 Seacord v. P. (121 111. 623; 22 111. Ap. 279) i. 291, 341 Seaford Justices, Rex v. (1 W. Bl. 432) i. 460, 462 ; ii. 972 Seagler, S. v. (1 Rich. 30 ; 42 Am. I). 404) ii. 758, 797 Seals V. S. (3 Bax. 459) ii. 701, 704 Searing, Rex v. (Russ. & Ry. 350) i. 578 ; ii. 773 Searle, C. ... (2 Binn. 332 ; 4 Am. D. 446) ii. 605 V. Williams (Hob. 288) i. 899, 937 Searls v. Viets (2 Thomp. & C. 224) ii. 748 Sears v. Eastburn (10 How. U. S. 187) , Rex V. (1 Leach, 415) i. 194 ii. 758, 838, 879, 882 ii. 26, 31, 32 ii. 1010 , S. V. (86 Mo. 169) , U. S. 0. (1 Gallis. 215) Seay, S. v. (3 Stew. 123; 20 Am. D. 66) i. 141, 984 ^eberg, Reg. v. (Law Rep. 1 C, C. 264; 11 Co? C.C. 520) i. 112 Seborn v. S. (51 Ga. 164) ii. 741 Second National Bank v. Curren (36 Iowa, 555) i. 892 Sedgwick v. Stanton (4 Kern. 289) ii. 135 Sedley, Hex i.. (17 How. St. Tr. 155, n.) i. 1132 Seed, C. v. (5 Pa. Law J. Rep. 78) i. 882 886; ii. 72 6 Seelig V. S. (43 Ark. 96) ii. 963 Segar, Rex v. (Comb. 401) i. 559; ii. 101 Seifried v. Hays (81 Ky. 377; 50 Am. R. 167) Seller f. P. (77N. Y. 411) Seixas v. Woods (2 Caines, 48; 2 Am. D. 215) Selby V. Bardons (3 B. & Ad. 2) , S. V. (88 N. C. 317) ii. 1281 Self, Rex «. (1 Leach, 137 ; 1 East P. C. 226) i. 887 ; ii. 660, 686 , S. D. (1 Bay, 242) ii. 758, 841, 855 Selfridge's Case (Whart. Horn. 417) i.305; ii. 70.3,716 Sellers v. Dugan (18 Ohio, 489) il. 954, 968 V. S. (49 Ala. 357) ii. 1137 V. S. (1 Oilman, 183) i. 998 , S. V. (7 Rich. 868) ii. 392, 978, 981 Sellis, Rex v. (7 Car. & P. 850) ii. 682, 683 Selshy, Reg. v. (5 Cox C. C. 495, n.) i. 812 Selten, Heg. ; . (11 Cox C. C. 674) ii. 681 Selvidge v. S. (80 Tex. 60) i, 653 i. 1143 i. 11 i. 93 8HA INDEX TO THE CASES CITED. SHE Selway, Keg, v. (8 Cox C. C. 235) ii. 898 beraayne's Case (5 Co. 91a; Yelv. 29 ; 1 Smith Lead. Cas. 39) i. 536, 849 , ^ 857,858,877 Semple, Bex v. (1 Leach, 420 : 2 East P-C. 691) i. 583;ii. 813 Seneca Road v. Auburn and Roch- ester Rid. (5 Hill, N. Y. 170) i. 224 Senior, Reg. v. (Leigh & C. 401; 9 Cox C. C. 469) ii. 1020 , Re.x V. (1 Moody, 346) ii. 6.33, 664 Sergeant, P. v. (8 Cow. 1,39) i. 504, 541, 1135, 1136 Serjeant, Rex v. (Rvan & Moody N. P. 352) ■ ii. 235 Serlested's Case (Latdh, 202) 1. 468, 587 ; ii. 3a2 Seme, Reg. v. (16 Cox C. C. 311) ii. 679, 687, 694 Serva, Reg. v. (2 Car. & K. 53; 1 Den. C. C. 104) i. 117, 564 Server v. S. (2 Blackf. 35) ii. 1020 Sessions v- Reynolds (7 Sm. & M. 130) i. 541 ; ii. 136. 138 Setter, S. v. (57 Conn 461 ; 14 Am. St. 121) i. 814 Seveloff, U. S. w. (2 Saw. 311 ) i. 154 Severance v. Carr (43 N. H. 65) ii. 851 Severin i;. P. (37 111. 414) i. 1055 Seward, Rex v. (3 Nev. & M. 567 ; 1 A. & E 706) ii. 218 Sewell V. S. (61 Ga. 496) ii. 505 a Seymore v. S. (12 Tex. Ap. 391) ii. 804 Seymour, Ex parte (14 Pick. 40) i. 960 . Rex V. (7 Mod. 382) i. 459; ii. 392, 399 V. S. (15 Ind. 288) ii. 1174 , S. «. (1 Houst. Crim. 508) i. 736 Shackborongli v. Biggins (Cro Eliz. 632) i. 899 Shackleford, U. S.v. (3 Cranch C'. C. 178) ii. 316 Shadbolt, Rex v. (Car. & P. 604) i. 340 Shaffer v. S. (27 Ind. 131) i. 1033 V. S. (82 Ind. 221) ii. 414 , S. V. (59 Iowa, 290) i. 780 Shaftow, Reg. v. (U Mod. 195) ii. 9-16 Shaftsbury's Case (1 Mod. 144: 6 How. St. Tr. 1270) ii. 247 Shall, P. V. (9 Cow. 778) i. 572; ii. 545, 546 Shanks, C. v. (10 B. Monr. 304) i. 930 V. S. (25 Tex. Supp. 326) ii. 679 Shannahan v. C. (8 Bush, 463; 8 Am. R. 465) i. 401 Shannon v. C. (14 Pa. 226) 1. 501, 732, 768 ; ii. 184 u. P. (5 Mich. 71) i.884 V. S. (18 Wis. 604) ii. 268 Shapoonraash v. U. S. (1 Wash. N. 8. 188) i- 154 Sharman, Reg. ». (Dears. 285; 24 Eng. L. & Eq. 553; 23 Law J. N,-s. M. C. 51 ; 18 Jur. 157 ; 6 Cox C. C. 312) ii. 529, 005 Sharp V. Grey (9 Ring. 457) i. 301 , P. V. (53 Mich. 523) iX. 529 V. S. (51 Ark. 147 ; 14 Am. St. 27) ii. 638 V. S. (19- Ohio, 379) i. 736, 877 ; ii. 741 , S. V. (71 Mo. 218) u. 728 V. Thompson (100 lU. 447; 39 Am. R. 61) , U. S. ,:. (Pet. C. C. 131) V. Wilhite (2 Humph. 434) i. 464 i. 805 ii. 1018, 1019 ii. 902 Sharpe's Case (2Lewin, 233) Sharpe, Reg. v. (3 Cox C. C. 288) i. 6.39; ii. 1153 , Reg. V. (Dears. & B. 160 ; 7 Cox C. C. 214; 40 Eng. L. & Eq. 681) ii. 1188 , Rex !'. (1 Moody, 125; Car. Crim. Law, 3d ed. 147) ii. 904 V. S. (17 Tex. Ap. 486) ii. 694 Sharpless, C. u. (2 S & R. 91 ; 7 Am. D. 632) i. 500, 502, 1129 ; ii. 943 , Rext-. (1 Leach, 92; 2 East P. C. 675) ii. 758. 816 Sharpness, Kex v. (1 T. R. 228) i. 948 Shattuck, C. ... (4 Cush. 141) i. 237, 536, 538 ; ii. 490, 5U5 V. S. (61 Missis. 50: 24 Am. R. 624) ii, 268 U.Woods (1 Pick. 171) i. 294, 573 ; ii. 393, 399, 404 Shaver, C. «. (3 Watts & S. 338) ii, 86, 87 Shaw's Case (1 East P. C. .351) i, 648 Shaw V. Chairitie (3 Car. & K. 21) i. 859 , C 0. (4 Allen, 308 ; 81 Am. D. 706) ii, 798 , C. V. (134 Mass. 221) i. 750 V. Macon (21 Ga. 280) ii. 978 , P. V. (57 Mich, 403 ; 58 Am. R. 372) ii. 813 , P. V. (1 Par. Cr. 327) i. 735, 736 ; ii. 741 , Reg. V. (10 Cox C. C. 66) ii, 1020 , Reg. V. (Law Rep. 1 C. C. 145 ; 11 Cox C. C. 109) i, 375 , Rex V. (6 Car. & P. 372) ii. 699, 701 , Rex V. (Russ. & Ry. 626) i. 342, 465; ii. 1106 V. S. (18 Ala. 547) i. 648, 758, 793 ; ii. 32 Shaw-mux, U. S. v. (2 Saw. 364) i. 164 Shawnee v. Beckwith (10 Kan. 603) ii. 1274 Shay V. P. (22 N. Y. 317) 1. 620, 679 V. P. (4 Par. Cr. 363) i. 974 Shea, C. v. (14 Gray, 386) i. 1060, 1061 ; ii. 967 , Reg. V. (7 Cox C. C. 147) ii. 882 SheaEE v. P. (87 111. 189; 29 Am. R. 49) Slied, C. . (1 Mass. 227) i. 299 Shedd, C. V. (7 Cush. 514) Sheehan, C. i>. (106 Mass. 192) 799 ii. 1268 ii. 399, 404 ii. 178 i. 1065 SHE INDEX TO THE CASES CITED. SHR Sheffield, C. v. (11 Cush. 178) i. 507 Sheffield Canal, Hex v. (4 New Sess. Cas. 26; 14 Jur. 170; 19 Law J. N. s. M. C. 44) il. 1270 Slic-ffield Gas Co., Beg. v. (22 Eng. L. & Eq. 200) i. 531 ; ii. 1274 Slieffill V. Van Deusen (13 Gray, 304 ; 74 Am. D. 632) ii. 927 Shelby v. S. (10 Humph. 165) ii. 1267 Shelbyville, S. v. (4 Sneed, 176) i. 1082 Sheldon v. Sherman >(42 N. Y. 484 ; 1 Am. R. 569) ii. 876 Shell V. S. (6 Humph. 283) i. 569 Shellard, Reg. v. (9 Car. & P. 277) ii. 224 Shelledy, S. v. (8 Iowa, 477) i. 637 ; ii. 694, 722 Shelley, S. v. (11 Lea, 594) ii. 1023 Shellhouse v. S. (110 Ind. 509) ii. 1267 Shellmire, U. S. «. (Bald. 370) i. 320 ; ii. 543, 1048 Shelly, S. i-. (98 N. C. 673) i. 1010 Shelton v. S. (30 Tex. 431) ii. 7 V. S. (34 Tex. 662) ii. 728 , S. V. (64 Iowa, 333) i. 865 , S. V. (65 N. C. 294) i. 904, 908 , S. V. (79 N. C. 605) ii. 72 Shenkle, S. v. (36 Kan. 43) 1. 668 Shepard, 0. v. (1 Allen, 575) ii. 372 , S. V. (7 Conn. 54) i. 554, 788, 809, 1057; ii. 1122 , S. V. (10 Iowa, 126) i. 796; ii. 32 , S. V. (82 N. C. 614) ii. 499, 505 , U. S. u. (1 Abb. U. S. 431) i. 200 Sliepardson, P. v. (48 Cal. 189) i. 670 ; ii. 1137, 1141 Shephard v. Barnett (52 Tex. 638) i. 266 Shepherd v. Mtlntire (5 Dana, 574) ; 831 V. P. (19 N. y. 537) ii. 12, 14, 17 f. P. (25 N. Y. 406) i. 279, 1001, 1047, 1049 , Reg. V. (11 Cox C. C. 325) ii. 230 , Reg. V. (Dears. 606; 36 Eng. L. & Eq. 599) ii. 785, 904 , Reg. u. (Leigh & C. 147) ii. 641, 643 , Rex V. (2 East P. C. 944) i. 572 , Rex w. (2 East P.O. 967) ii. 583 , Rex 1). (1 Leach, 539; 2 East P. C. 1073) i. 595 ; ii. 996 , U. S. i>. (1 Hughes 0. C. 520) i. 201, 617 a Sheppard, Beg. v. (9 Car. & P. 121 ) ' ii. 816, 822 , Reg. V. (11 Cox C. C. 802) 1. 738 , Rex V. (1 Leach, 226) , S. V. (1 Mill, 145) Sherburne, S. w (58 N. H. 535) Sheriff, C. v. (3 Brews. 343) i. 572 ii. 268 i. 998 i. 465 ; ii. 1011 ii. 1104 i. 287 ii. 256 , C. V. (1 Grant, Pa. 187) , C. w. (1 Leg. Gaz. Rep. 340) Sherman v. Cohen (2 Strob. 568) . P. 1'. (10 Wend. 298; 25 Am. D. 56R) ii. 840, 858 ' «. Roberts (1 Grant, Pa. 261) ii. 968 800 Shermer, S. v. (55 Mo, 83) ii. 841 Sherrill, S. v. (81 N. C. 660) ii. 520 a , S. V. (82 N. C. 694) i. 1052 , S. V. (95 N. C. 663) ii. 429 Sherwin v. P. ( 100 N. Y,. 351 ) ii. 241 Sherwood v. Burr (4 Day, 244 ; 4 Am. D. 211) ii. 138 V. Mcintosh (Ware, 109) i. 821 , Reg. V. (1 Car. & K. 566) ii. 703, 704 , Reg. V. (Dears. & B. 261 ; 7 Cox C. C. 270 ; 40 Eng. L. & Eq. 684) , ii. 442 Shickle, Reg. a. (Law Rep. 1 C. C. 158) ii. 773 Shields, Rex i;. (28 How. St. Tr. 619) i. 10.33 , S. V. (45 Conn. 256) ii. 1122 , S. w. (49 Md. 301) 1992 .i: Yonge (15 Ga. 349; 60 Am. D 698) . i. 264; ii. 690 Shifflel V. C. (14 Grat. 652) ii. 1200 Sliinkle,.S. v. (40 Iowa, 131) i. 439 Shinn v. S. (64 Ind. 13 ; 31 Am. R. 110) ii. 1167 V. S. (68 Ind. 423) ii. 740 , U. S. V. (8 Saw. 403; 14 Fed. Rep. 447) ii. 1032 Ship Cotton Planter (1 Paine, 23) i. 296 Shipley v. Craister (2 Vent. 131) i. 903 , Rex V. (4 Doug. 73) ii. 918 Shipman, S. v. (81 N. C. 513) ii. 25 Shippey, S. v. (10 Minn. 223; 88 Am. D. l\t) i. 305, 376, 383 b, 842, 844, 872 Shirer, S. K. (20 S. C. 392) . i. 981 Shirley, S. v. (64 N. C. 610) i. 877 Shoaf, S. V. (68 N. C. 375) ii. 808 Sliock, S. V. (68 Mo. 652) ii. 727 Shoemaker v. Nesbit (2 Rawle,201) i. 460 V. S. (12 Ohio, 43) ii. 695, 728 , S. y. (7 Misso. 177) i. 803; ii. 295 , U. S. V. (2 McLean, 114) i. 1016, 1031, 1037, 1041 Sholes, C. u. (13 Allen, 554) i. 908 Slioop !'. C. (3 Pa. St. 126) i. 899, 910 Shooter, S. v. (8 Rich. 72) ii. 198, 211, 212 Short c. S. (7 Yerg. 510) ii. 679 V. Syrames (150 Mass. 298; 15 Am. St. 204) i. 464 Shorter v. P. (2 Comst. 193 ; 51 Am. D. 286) i. 842, 850, 865, 875; ii. 641, 701, 703 , P. V. (4 Barb. 460) i. 306, 8B5 Shortridge v. Macon (1 Abb. U. S. 58) ii. 1202 Shotwell, In re (10 Johns. 804) ii. 514 , P. V. (27 Cal. 394) i. 1033 Shoultz, S. V. (26 Mo. 128) ii. 695, 728 Shouse V. C. (5 Pa. 83) i. 800 ; ii. 1154 Shover v. S. (6 Eng. 259) i. 343, 497 ; ii. 951, 970 Shreve, S. v. (1 Southard, 297) ii. 1018 Shriedley v. S. (23 Ohio St. 130) ii. 1187, 1141 Shrivcr v. S. (9 Gill & 3. 1) ii. 266 .SIM INDEX TO THE CASES CITED. SLA Shrivers v. S. (7 Tex. Ap, 450) ii. 722, 728 Shryber, Respublica v. (1 Dall. 68) ii. 601 Sliubert 1), S (16 Tex. Ap. 645) ii. 1279 Slmbrick v. S. (2 S. C. 21) i 594 Shuchardt, S. v. (18 Neb. 454) i. 1033, 1034 Shufflin V. P. (62 N. Y. 229; 20 Am. B- 483) ii. 708, 724 Shugborough v. Biggins (6 Co. 60a) i. 899 Shukard, Rex v. (Kuss. & Ry. 200) ii. 607 Shuler, P. v. (28 Cal. 490) ii. 1179 , S. V. (19 S. C. 140) ii. 784 Shults, U. S. V. (6 McLean, 121) i. 384 Shultz «. S. (13 Tex. 401) i. 385 V. S. (5 Tex. Ap. 390) i. 208 a Shupe, S. V. (16 Iowa, 36; 85 Am. D. 485) ii. 1032 Slmrtliff, S. v. (18 Me. 368) i. 572, 584 ; ii. 589 Shuttleworth v. S. (35 Ala. 415) i. 940 Sias, S. V. (17 N. H. 558) i. 1053, 1066 Sidebothara, Reg. v. (Bell C. C. 171 ; 8 Cox C. C. 206) i. 1150 Sidley, Rex v. (1 Sid. 168) i. 1132 Sigler V. S. (9 Tex. Ap. 427) ii. 851 Sigman, C. v, (2 Pa. Law Jour. Rep. 86) i. 882 Sikes V. S. (30 Ark. 496) i. 291 Silgar V. P. (107 111. 563) ii. 704 Silliman v. Hudsop River Bridge (1 Black, 582) i. 174 Silsbee, C. o. (9 Mass. 417) i. 246, 471 Silver v. S. (17 Ohio, 865) ii. 1019 Silversides v. Reg. (2 Gale & D. 617) i. 9.30 Silverton, Rex v. (1 Wils. 298) i. 992 Sirnco V. S. (9- Tex. Ap. 338) i. 1021, 1053 Simmerman v. S. (14 Neb. 568) ii. 728 Simmonds, Reg. v. (8 Cox C. C. 190) ii. 1020, 1028 Simmons v. C> (5 Binn. 617) i. 138, 141 V. Kelly (33 Pa. 190) ii. 398 , Reg. V. (Belie. C. 168) ii. 1020, 1028 , Rex V. (1 Wils. 329) i. 335, 762, 1002 0. S. (4 Ga. 465) i. 671 V. S. (73 Ga. .609 ; 54 Am. R. 885) ii. 901, 902 , S. 0. (3 Ala. 497) i. 429; ii. 1004, 1006 . S. !). (1 Brev. 6) ii. 744 , S. V. (6 Jones, N. C. 21) i. 648 , S. V. (39 Kan. 262) ii. 268 , S. V. (1 Pike, 265) ii. 255, 269 Simms v. S. (2 Tex. Ap. 110) ii. 118 , S. V. (71 Mo. 538) i. 394, 1006 Simonds, S. u. (3 Misso. 414) Simons, P. v. (60 Cal. 72) r , Rex V. (2 East P. C. 712) , Rex V. (2 East P. C. 731) , Rex V. (Say. 34) , S. V. (Dudley, Ga. 27) , S. «. (4Strob.266) Simpson's Case (1 Lewin, 172) Simpson, C. ■;. (9 Met. 138) i. 567, 622 ; ii. 327 VOL. I. — 51 i. 1029 ii. 702 i. 582 ; ii. 1163 i. 553 ; ii. 1171 i. 998, 1002 ii. 851 ii. 198, 206 664 Simpson, Reg. v. (Car. & M. 669) i. 642. 649 ; ii. 994 , Reg. V. (2 Cox C. C. 235) ii. 812 , Reg. V. (29 Eng. L. ft. Eq. 530 ; Dears. 421 ; 18 Jur. 103O) ii. 794, 795, 899 V. S. (59 Ala. 1 ; 31 Am. R. 1) i. 736, 855 V. S. (4 Humph. 456) i. 141 V. S. (5 Yerg. 356) i 535 ; ii. 2, 3 V. S. (10 Yerg, 525) i. 264, 791, 1067 ; ii, 1270 , S. u. (1 Bailey, 378) , S. w. (1 Dev. 504) i, 899, 910 i. 538; ii. 180, 505, 517, 619 i 569 ; ii. 985 i. 586 ; ii. 433 , S. V. (2 Hawks, 460) , S. V. (3 Hawks, 620) , S. u. (28 Minn. 66 ; 41 Am. R. 269) i. 1010 , S. V. (73 N. C. 269) i. 594 Sims V. Cross (10 Yerg. 460) ii. 139 V. Sims (75 N. Y. 466) i. 960, 971 o, 976 , S. 17. (Dudley, Ga. 213) i. 1003 - ' - '— i. 548, 758; ii. 28, 32 , 527) ii. 100 St. Tr. , S. V. (3 Strob. 137) i, 457 ii. 740 i, 892 ii. 72 ft ii. 490 i. 387 Simson's Case (1 Hale P. C. Sinclair's Case (23 How. 778) (2 Lewin, 49) . i. 762 Sinclair, C. i>. (138 Mass. 493) , Reg. V. (13 Cox C. C. 28) V. Stanley (69 Tex. 718) Sindram v. P. (88 N. Y. 196) Singleton v. S. (1 Tex. Ap. 501) ii. 727, 728 Sipple V. S. (17 Vroom, 197) i. 750 Sisk V. S. (9 Tex. Ap. 246) ii, 851 Sisson, S. V. (3 Brev. 58) ii. 641, 680 Six Lots of Ground, U. S. w. (1 Woods, 234) i. 904, 910, 914, 915 Sixteen Barrels Dist. Spirits, U. S. y. (10 Ben. 484) 1.821 Sixty-four Barrels Spirits, U. S. v. (3 Clif. 308) i. 819 a, 822 Sizemore v. S. (3 Head, 26) i. 156, 178 ; ii. 285 , S. „. (7 Jones N. C. 206) ii. 703, 713 Skains o. S. (21 Ala. 218) i. 948 Skeehan, P. v. (49 Barb. 217) ii. 729 Skeet, Reg. v. (4 Post. & F. 931) i. 637 Skerrit, Rex v. (2 Car. & P. 427) i. 632, . 654; ii. 299 Skidmore v. S. (2 Tex. Ap. 20) ii. 72 b Skiff V. P. (2 Par. Cr. 139) ii. 433 Skinner v. Kitch (Law Rep. 2 Q. B. 393; 10 Cox C. C. 493) ii. 1200 V. Perot (1 Ashm. 57) i. 967, 975 Skipworth, Reg. v. (Law Rep. 9 Q. B. 219 ; 5 Eng. Rep. 456) ii. 259 Skuse V. Davis (2 Per. & D. 650 ; 10 A. & E. 635 ; 7 Dowl. P. C. 774) i. 266 Slack, C. t. (19 Pick. 304) ii. 1190 , S. V. (6 Ala. 676) i. 996, 1003 , S. V. (1 Bailey, 330) i. 224 Slade B. Arnold (14 B. Monr. 287) ii. 968 801 SMI INDEX TO THE CASES CITED. SMI Slaney, Bex v. (5 Car, & P. 213) Slater v. Merritt (75 N. Y. 268) Slatterly «. H. (58 N. Y. 354) ii. 925 i 895 i. 729 ; ii, 740 ii. 943 ii. 1122 Slatterv, Ex parte (3 Pike, 484) , C. V. (147 Mass, 423) 0. S. (41 Tex. 619) ii. 1006, 1007 Slaugliter v. C. (11 Leigh, Va. 681 ; .37 Am. D. 638) ii. 715, 716 V. P. (2 Doug, Mich. 334, n.) i. 32 l: S. (6 Humpli. 410) i. 992, 1004 Slavers, The (2 Wal. 350, 375, 383) i. 564 Sleglit V. Kane (2 Johns. Cas. 236) i, 821 Slingbv, Keg. v. (4 Fost. & F. 61 ) ii. 812 Slingerland, S. d. (19 Nev; 135) ii. 758, 847 Slingsby's Case (5 How. St. Tr. 871) ii. 1213 Sloan, C. V. (4 Cush. 52) i. 957 V. S. (8 Blackf. 361) i. 424 V. S. (8 Ind. 312) 1, 889 V. S. (9 Ind. 565) i. 634 ; ii. 1143 , S. V. (47 Mo. 604) i. 305, 795, 797, 865; ii. 731 Sloanaker, S. u. (1 Houst. Crim. 62) i. 336, 736 ; ii. 72 c Slooum, S. V. (8 Blackf 315) i, 785 Sloggett, Reg. i'. (Dears. 656; 36 Eng. L. & Eq, 620) i, 572 a Slomer v. P. (25 III. 70; 76 Am. D. 786) ii. 219, 748 Sloper, P. i>. (1 Idaho, 183) ii. 605 Sloss, S. V. (25 Mo. 291 ; 69 Am. D. 467) - i. 900 Slowly, Keg. !«. (12 Cox C. C. 269 ; 4 Eng, Rep. 545) ii. 816 Slnby, S. v. (2 Har. & McH. 480) i. 201 Small V. C. (91 Pa. 304) ii, 713 , Rex V. (8 Car. & P. 46) ii. 822 V. S. (63 Ga. 386) i. 998 V. S. (18 Tex. Ap, 336) ii, 851 , S. V. (29 Minn. 216) ii. 731 , S. V. (31 Tex. 184) i, 572 a Smaltz w. C. (3 Bush, .32) i. 305 Smart w. C. (27 Grat. 950) ii, 1286 — , S. u. (4 Rich. 356 ; 55 Am. D, 683) ii. 767, 785, 786 Smedly v S (.30 Tex. 214) ii 1159 Smiley, U. S. v. (6 Saw. 640) ii, 904 Smily, S. v. (37 Ohio St. 30; 41 Am, R. 487) ii. 930 Smith's Case (1 Broun, 240) i. 734, 751 ; ii. 1239 (2 How. St. Tr. 1049) i. 593 (Syme, 185) i, 459 Smith, Ex parte (5 Cow. 273) ii. 1022 , Ex parte (117 111. 63) ii. 270 , Ex parte (28 Ind. 47) i. 895; ii.'243 , In re (4 Moore, 319 ; 2 Brod. & B. 522) • V. Adrian (1 Mich. 495) V. Bagwell (19 Fla. 117; 45 Am. R. 12) V. Barnham (1 Ex. D. 419) V. Bowen (11 Mod. 254) 802 ii. 270 i. 686 990 .428 Smith V. Brown (3 Tex. 860; 49 Am, D. 748) ii. 253 V. C. (6 B. Monr. 21) i. 500, 504, 1113, 1114, 1119 V. C. (14 Bush, 31; 29 Am. R. 402) ii, 763 V. C, (1 Duv. 224) i. 387, 401, 410, 414 V. C. (4 Grat. 532) ii. 351 V. C. (7 Grat. 693) i 778, 782, 793, 1061 V. C. (10 Leigh, 696) ii. 1140 V. C. (54 Pa. 209; 93 Am. D. 686) i. 768, 768 c, 768 d, 772 V. C. (59 Pa. 320) ii. 1104 V. C. (100 Pa. 324) i 314 V. C. (104 Pa. 339) i. 1014 II. C. (14 S. & R. 69) i. 960, 961, 963 , C. V. (11 Allen, 243) ii. 1018, 1025, 1026, 1028, 1056, 1197 , C. V. (6 Cush. 80) i. 243, 531, 1138 , C. ». (Ill Mass. 407) ii. 349 , C. V. (Ill Mass. 429) ii. 898 , C.i). (129 Mass. 104) ii. 341, 370 , C. V. (1 Pa. Law Jour. Rep. 400) ii. 813 , C. V. (7 Pick. 137) ii. 594 , C. V. (2 Va. Cas. 327) i, 998 V. Deaver (6 Jones, N. C. 563) 11. 1041 V. Faulkner (48 Hun, 186) ii. 137 - — V. Gates (21 Pick. 55) i. 208 V. Junction Ry. (29 Ind.' 646) ii. 253 V. Kinne (19 Vt.'564) i. 287 V. Langham (Skin. 60) i. 237, 459 ; ii. 973 V. Lynch (29 Ohio St. 261) i. 464 a w. Mall (2 Rol, 263) - ii. 392 I). Maryland (18 How. U. S. 71) i. 145, 830 V. Matham (4 D. & R. 738) ii. 270 V. Myers (41 Md. 425) ii. 1014 V. Paxton (4 Dana, 891) ii. 132, 140 «. P. (1 Colo. 121) i. 630 w. P. (25 111. 17; 76 Am. D. 780) i. 36; ii. 2.35 v.P. (99111.445) v.P. (115111. 17) V. P. (47 N. Y. 3( V. P. (63 474) , P. V. (24 Barb. 16) , P. K. ( " ■" ii. 1010 ,ii. 108 ii. 421, 434 N. Y. Ill; 13Am. B. ii. 808, 813 ii. 605 777, 792, 1062 ii. 797 ii. 867, 862 i. 569;ii. 985 57 Barb. 46) , P. V. (16 Cal. 408) , P. w. (23 Cal. 280) , P. V. (5 Cow. 258) , P. V. (121 N. Y. 578) i. 960, 961, 963 , Beg. V. (1 Car. & K. 423) ii. 341, 365, 813 836 , Reg. V. (8 Car. & P. 168) i! 888 , Reg. V. (8 Car. & P. 160) i. 869 ; ii. 716, 716 , Reg. u. (6 CoxC. C. 31) i. 572o . Reg. V. (Dears. 494 ; 33 Eng L. & Eq. 531 ; 24 Law J. n. s. M. C. 136; 1 Jur. N. s. 675) ii. 1139, 1140 SMI INDEX TO THE CASES CITED. SMT Smith, Reg. v. (Dears. 559 ; 25 Law J. N. 8. M. C. 29; 1 Jur. N. s. 1116; 33 Eng; L. & Eq. 5B7) i. 736: ii. 741 ii. 785 , Keg. V. (Dears. 561) , Reg. V. (Dears. & B. 553; 8 Cox C. C. 27) i. 359 , Reg. v. ( Dears. & B. 566 ; 8 Cox C. C. 32) ii, 527, 536 , Reg V. (2 Den. C. C. 449; 9 Eng. L. & Eq. 532) ii. 758, 787, 823 , Reg. V. (3 Fost. & F. 504) ii. 579 , Reg. V. (4 Fost. & F. 1066) ii. 704 , Reg. V. (Law Rep. 1 C.C.266) ii. 1141 , Reg. V. (Leigh & C. 168) ii. 529 , Reg. V. (Leigh & C. 607) ii. 641, 643 Reg. V. (2 Moody, 295) ii. 562 , Reg. V. (Temp. & M. 214 ; 1 Den. C. C. 510 ; 2 Car/ & K. 882 ; 14 Jur. 92; 19 Law J. n. s. M. C. 80) ii. 1200 , Reg. V. (34 U. C. Q. B. 552) i. 794, 1054 , Rex V. (2 Car. & P. 449) i. 217, 314, 657, 888 ; ii. 660 " 107; 1 i. 207 i. 237 ii. 1274 i. 669 Ii. 83.3, 869 & P. , Rex V. (5 Car Moody, 814) : , Rex V. (2 Doug. 441) , Rexu. (4Esp. Ill) , Rex V. (1 Leach, 288) , Rex V. (1 Moody, 473) , Rex V. (1 Russ. Crimes, 3d Eng. ed. 546) — , Rex V. (Russ. & Ry. 267) 873 ii, 344, 365, 376 i. 516 , Rex V. (Russ. & Ry. 3f , , Rex !>. (Russ. &Ry. 417) ii, 92 , Rex V. (Russ. & Ry. 516) ii. 346, 353 , Rex V. (2 Show. 165) i. 1002 ; ii. 1046 , Rex V. (1 Stra. 704) i. 531, 1138 , Rex V. (7 T. R. 80) i. 247, 256, 462 V. Rollins (11 R. I. 464) ii. 958 o V. Schultz (1 Seam. 490) -i. 758, 840 V. Shelbourn (Cro. Eliz. 685) i 909 V. Smith (92 N. C. 304) ii. 271 V. S. (37 Ala. 472) i. 633 V. S, (50 Ala. 159) ii. 956 a - — •■ -" ii. 726, 728 ii. 697 ii. 638 i. 667 ii. 697 ii. 741 i. 500, 1090 V. S. (68 Ala. 424) i: S. (83 Ala. 26) V. S. (50 Ark. 545) V. S. (46 Ga. 298) V. S. (49 Ga. 482) V. S. (62 Ga. 88) v.S. (6 Gill, 425) V. S. (1 Humph. 396) V. S. (5 Humph. 163) V. S. (7 Humph. 48) V. S. (2 Lea, 614) V. S. (6 Lea, 637) V. S. (8 Lea, 402) V. S. (33 Me. 48 ; 607) V. S. (39 Missis. 521) V. S. (55 Missis. 513) i. 399 i, 658 ii. 26, 747, 748 i. 736 i. 910 ii. 40 64 Am. D. i. 619 ii. 25 ii. 437, 461 Smith V. S. (8 Ohio, 294) i. 997 V. a. (12 Ohio St, 466 ; 80 Am. D. 355) i. 35, 37, 260, 746 ; ii. 72 V. S. (18 Ohio St. 420) ii. 570 V. S. (22 Ohio St. 539) i. 1079 V. S. (1 Stew. 506) i. 540, 734 ; ii. 312, 316 t). S. (32 Tex. 393) Ii. 32 V. S. (32 Tex. 594) ii. 930, 932 u. S. (35 Tex. 500) i. 795 V. S. (42 Tex. 444) ii. 851 V. S. (7 Tex. Ap. 414) ii. 728 V. S. (15 Tex. Ap. 338) i. 305 w. S. (23 Tex. Ap. 357) ii. 16 V. S. (26 Tex. Ap. 577) i. 672 a V. S. (12 Vroom, 698) i. 981 V. S. (63 Wis. 453) ii. 752 w. S. (1 Yerg. 228) ii. 255 , S. «. (1 Bailey, 283 ; 19 Am. D. 679) i. 135, 915 , S. V. (2 Bay, 62) i. 948, 950 , S. V. (8 Blaekf. 489) i. 618 , S. ... (Brayt. 143) i. 679 , S. V. (49 Conn. 376) i. 410 , S. V. (5 Day, 176 ; 6 Am. D. 132) i. 953, 1006 , S. V. (3 Dev. & Bat. 117) i. 536, 842, 857, 859, 862 , S. w. (3 Hawks, 378; D. 594) , S. V. (2 Humph. 457) 14 Am. i.491 i. 548, 758 ; ii. 32 ii. 505 ii. 349 ii. 1030 35 -^^,S. 0. (2 Ire. 127) , S.v. (13 Kan. 274) , S. V. (40 Kan. 631) , S. V. (30 La. An. 846) , S. ;;. (32 Me. 369 ; 54 Am. D. 578) i. 334, 619 ; ii. 692, 694, 728 , S. V. (29 Minn. 193) i. 1086 , S. V. (30 Mo. 114) ii. 904 , S. V. 37 Mo. 58) ii. 1140 , S. c: (53 Mo. 139) 1'. 1004, 1005 , S. V. (71 Mo. 46) i. 1014 , S. V. (80 Mo. 516) i. 724 , S. V. (10 Nev. 106) i. 870 , S. V. (93 N. C. 516) i. 343 , S. V. (100 N. C. 466) ii. 499 , S. V. (100 N. C. 550) ii. 1267 , S. u. (1 Nott & McC. 18) i. 956, 967 , S. V. (10 R. I. 258) i. 303 a, 304, 889 , S. V. (15 R. L 24) i. 1090 , S. V. (8 Rich. 460) i. 961 , S. V. (10 Rich. 341) ii. 736 , S. V. (2 Strob. 77 ; 47 Am. D. 589) ii. 676, 679, 680, 682 , S. b. (24 Tex. 285) i. 465 , S. V. (32 Tex. 167) i. 38, 501 , S. V. (2 Tyler, 272) i. 207 ; ii. 801 , S. V. (43 Vt. 324) i. 1054, 1058 , S. V. (54 Vt. 403) ii. 1273, 1281 , S. V. (62 Wis. 134) ii. 1281 , S. v. (8 Yerg. 150) i. 672 ; ii. 529, 538, 644 , U. S. V. (3 Blatch. 255) i. 564 , U. S. V. (2 Bond, 323) i. 488 803 SNY INDEX TO THE CASES CITED. SPA Smith, TJ. S. v. (4 Day, 121) i. 135, 564 , U. S. f. (1 Dil. 212) i. 895 , U. S. .;. (1 Mason, 147) i. 117, 564 , U. S. V. (2 Mason, 143) i. 836, 564 , U. S. !>. (1 Southard, 33) ii. 1022 , U. S. V. (3 Wash. C. C. 78) i. 564 , U. S. V. (3 Wash. C. C. 625) i. 564 , U. S. V. (5 Wheat. 153) i. 201 ; ii. 1061 a— V. Weaver (Taylor, 58 ; 2 Hay w. 108) i. 271, 272 V. Wilcox (19 Barb. 581) ii. 968 V. Wilcox (25 Barb. 341) ii. 954 V. Wilcox (47 Vt. SSV) i. 428 Smitherman v. S. (27 Ala. 23) i. 794 , S. 0. (1 Ire. 14) i. 658 Smoot V. Wetumpka (24 Ala. 112) i. 419 Smurrw. S. (105 Ind. 125) i. 877 Smyth, C. v. (14 Gray, 33) ii. 1267 , Rex 0. (5 Car. & P. 201; 1 Moody & R. 155) i. 536, 538; ii. 500, 505 Smythe's Case (Palmer, 318) Am i. 573 ; ii. 392 D. ii. 990 ii. 803 ii. 1104 a ii. 856 ii. 529, 546 i. 567 I V. P. (19 111. 80 ; 68 582) Snapp V. C. (82 Ky. 173) Sneed, S. v. (94 N. C. 806) Snell V. S. (50 Ga. 219) V. S. (2 Humph. 347) , S. V. (9 R. I. 112) Snelling, C. v. (4 Binn. 379) i. 553 ; ii. 1168, 1174 ' , C. V. (15 Pick. 321) ii. 936 , C. V. (15 Pick. 3.37) i. 429 ; ii. 918, 920, 922 , Reg. V. (Dears. 219 ; 22 Eng. L. & Eq. 597 ; 23 Law J. N. s. M. C. 8 ; 17 Jur. 1012) ii. 560, 562 Snider v. S. (81 Ga. 753; 12 Am. St. 350) i. 658 Snigge V. Shirton (Cro. Jac. 199) ii. 512 Snoddy v. Howard (51 Ind. 411 ; 19 Am. R. 738) ii. 285 Snow, Rex v. (1 East P. C. 244; 1 Leach, 151) ii. 699, 701, 704 , S. V. (18 Me. 346) i. 534 ; ii. 1150 Snowden v. McKinney (7 B. Monr. 258) - ii. 139 V. S. (17 Fla. 386) i. 468 a Snowley, Rex v. (4 Car. & P. 390) ii. 323, 853, 361 Snure, S. v. (29 Minn. 132) i. 501 Snyder, Ex parte (64 Mo. 58) i. 464 a , Ex parte (29 Mo. Ap. 256) i. 992 , In re (17 Kan. 542) ii. 414 V. P. (26 Mich. 106 ; 12 Am. R. 302) ii. 13 , P. V. (2 Par. Or. 23) ii. 116 V. Snyder (60 How. Pr. 368) ii. 1190 , S. V. (14'Ind. 429) ii. 305 , S. V. (66 Ind. 203) ii. 432 , S. V. (25 Iowa, 208) ii, 1267 , S. V. (50 N. H. 150) ii. 888 V. D. S. (112 U. S. 216) i. 818 804 Snyder, U. S. v. (14 Fed. Eep. 554 ; 8 McCrary, 377) i. 629, 657 Scares, Rex o. (Russ. & Ry. 26; 2 East P. C. 974) i. 653, 676 ; ii. 609 Sohn V. Cambern (106 Ind. 302) i. 265 Soldier's Case (1 Wils. 331) i. 615 Soleguard, Rex v. (Andr. 231) i. 146, 226, 294, 468, 688 Soley, Reg. v. (11 Mod. 115) i. 246, 471 ; ii. 1147, 1151 , Reg. V. (2 Salk. 594) i. .534, 634 ; ii. 1147, 1150 Solomons, Reg. v. (17 Cox C. C. 93) ii. 813 , Rex V. (1 Moody, 292) i. 622, 699 , S. u. (6 Yerg. 360 ; 27 Am. D. 469) i. 1024 Soltau V. Gerdau (119 N. Y. 380; 16 Am. St. 843) ii. 813 Somerset's Case (stated and com- mented on) i. 858 Somervile's Case (1 Anderson, 109) i 358,681 Somerville, C. u. (1 Va. Cas. 164) i. 358, 1049 V. Marks (58 111. 371) i. 492 , S. 0. (21 Me. 14 ; 38 Am. D. 248) ii. 758, 789, 826 Sommers, S. v. (12 Mo. Ap. 374) ii. 797 Sonachall, U. S. v. (4 Bis. 425) ii. 1026 Sonnerkalb, S. v. (2 Nott & McC. 280) i. 263, 791, 1067 Sopher, S. v. (70 Iowa, 494) i. 409 Soragan, S. v. (40 Vt. 460) i. 469 Sorrell's Case (1 Va. Cas. 253) i. 1014 Sorrell, S. v. (98 N. C. 738) i. 1006 Sotherlen, S. v. (Harper, 414) i. 467 ; ii. 791 Soudant v. Wadhams (46 Conn. 218) i. 464, 468 a Soult V. L'Africaine (Bee, 204) i. 104 South, S. u. (4 Dutcher, 28; 76 Am. D. 250) ii. 841 Souther v. C. (7 Grat. 673) ii, 727 V. S. (18 Tex. Ap. 352) i. 875 Southern, Rex v. (Russ. & Ry. 444) i. 616, 634, 642 Southerton, Rex v. (6 East, 126) i. 712 Southwood, Reg. u. (1 Post. & F. 856) ii. 1018 Southworth v. S. (42 Ark. 270) i. 1061 V. S. (5 Conn. 325) i. 735 ; ii. 743 Spain V. S. (59 Missis. 19) i. 934 Spainhour, S. v. (2 Dev. & Bat. 547) i. 631 ; >ii. 1267 Spalding v. Preston (21 Vt. 9; 50 Am. D. 68) ii. 781 , Rex V. (1 Leach, 218 ; 2 East P. C. 1026) i. 559, 677 ; ii. 12, 13 Spangler v. C. (3 Binn. 533) ii. 785 , S. V. (40 Iowa, 365) ii. 677 Spann v. S. (47 Ga. 549) i. 384, 387, 396 Spanner, Reg. v. (12 Cox C. C. 156; 2 Eng. Rep, 208) ii. 119 a Sparkes, Rex o. (2 Show. 447) i. 237, 578 SQU INDEX TO THE CASES CITED. STA SparkB V. C. (3 Bush, 111 ; 96 Am. «• 196) ii. 656 b V. S. (59 Ala. 82) i. 1085 V. White (7 Humph. 86) li. 1269 Sparrow, Rex v. (2 T. K. 198) i. 266 Spaulding v. Cook (48 Vt. 145) li, 372, 376 ,S.v. (24 Kan. 1) ii. 340 , S. V. (34 Minn. 361) i. 305 ; ii. 645 Spear, S. o. (6 Misso. 644) i. 990, 992. 994, 1024, , S. V. (13 R. I. 324) li. 929, 930 Spears, Reg. v. (2 Leach, 825; 2 East P. C. 668) ii 855 Speclit V. C. (8 Pa. 312; 49 Am. D. 518) 1. 344 ; ii. 951, 969 Special Sessions, P. v. (18 Hun, 330) ii, 1124 Speer, C. v. (2 Va. Cas. 65) i. 571 ; ii. 148, 543 Speirin, S. v. (1 Brev. 119) i. 536 ; ii. 490, 501 Speke, Rex v. (3 Salk. 358) i. 121, 702 Spenoeu. S. (8Blackf. 281) ii. 605 Spencer v. Eustis (21 Me. 519; 38 Am. D. 277) 1. 821 , Reg. V. (10 Cox C. C. 525) ii. 664 , Reg. V. (Dears. & B. 131 ; 7 Cox C. C. 189) . ii. 98fi , Rex V. (8 Car. & P. 420) ii. 148, 417 , Rex V. (2 East P. C. 712) i. 582 ; ii. 11B3 , Rex V. (Russ. & Ry. 299) ii. 346, 353 !J. S. (15 Ga. 562) 1.998 , S. ». (1 Zab. 196) i. 384, 385 Spicer v. P. (11 Bradw. 294) ii. 60 Spiegel, U. S. u. ( 11« U. S. 270) i. 487 Spier, In re (1 Dev. 491) i. 1014, 1031 Spies V. P. (122 III. 1; 3 Am. St. 820) i. 327, 629, 640, 670 ; ii. 657 Spiller, Rex v. (5 Car. & P. 333) i. 314 ; ii. 664 — ^, Rex V. (2 Show, 207) i. 264, 470 ; ii. 931, 936, 946 Spilling, Reg. v. (2 Moody & R. 107) i. 314; ii. 664 Spirits, U. S. v. (4 Ben. 471) , i. 488 Spivey v. S. (26 Ala. 90) ii. 790 Sponsler, P. v. (1 Dak. 289) i. 1137 Spragg, Rex v. (2 Bur. 993) ii. 192, 219 Spraggins, C. v. (18 B. Monr. 512) i. 909 Sprague, P. v. (2 Par. Cr. 43) i. 384 Spratt, a V. (14 Philad. .365) i. 1138 Spurgin, S. v. (1 McCord, 252) i. 679, 793, 998 Squaires, S. v. (2 Nev. 226) 1. 648 Squares v. Campbell (41 How. Pr. 193) i. 8.32 Squire, C. v. (1 Met. 258) i. 810, 812, 1057; ii. 17 , P. o. (20 Abb. N. Cas. 368) ii. 223 Rex V. (1 Russ. Crimes, 3d Eng. ed. 19) i. 217, 557 ; ii. 660 — ^, Rex V. (1 Russ. Crimes, 3d Eng. ed. 490) i. 364, 883; ii. 660, 686 Squire, Rex v. (Russ. & Ey. 349 ; 2 Stark. 349) li. 334, 349 V. S. (46 Ind. 459) i. 302, 303 a Squires, S. u. (11 N. H. 87) 1. 778, 793, 796, '1062; ii. 116 V. Whisken (3 Camp. 140) 1. 504 St. [For names beginning thus see Saint.] Staats, U. S. v. (8 How. U. -S. 41) 1. 617 a, 658 ; ii. 1056 Stabler v. C. (95 Pa. 318 ; 40 Am. R. 653) i. 768 c Stackpole v. Symonds (3 Fost. N. H. 229) ii. 968 Stafford's Case (cited 12 Co. 37) ii. 1127 Stafford, C. v. (12 Cush. 619) i. 115 V. Hesketh (1 Wend. 71) ii. 256 Stage Horse Cases (15 Abb. Pr. n. s. 51) i. 336, 594 Stahl, C. M. (7 Allen, 304) i. 11.35 , U. S. V. (McCahon, 206) i. 154 Staight V. S. (39 Ohio St. 496) i. 464 ; ii. 1020 Stainer, Reg. v. (Law Rep. 1 C. C. 230) ii. 335, 339 Stakem, P. v. (40 Cal. 599) i. 699 Stalcup, S. V. (1 Ire. 30 ; 35 Am. D. 732) i. 534, 634; ii. 1150 , S. V. (2 Ire. 50) i. 459 ; ii. 37 Stamper v. C. (7 Bush, 612) i. 658, 689 Stancel v. S. (50 Ga. 162) i. 713 Standifer, S. v. (5 Port. 523) i. 778, 782, 1052, 1054, 1061 Standley, Rex v. (Russ. & Ry. 306) i. 630, 649 ; ii. 813 Stanfield v. S. (43 Tex. 167) i. 882, 885 ; ii. 72 b Stanley's Case (J. Kel. 86) i. 305, 636, 642 ; ii. 654 Stanley v. C. (86 Ky. 440 ; 9 Am. St. 805) i. 874, 877 V. Jones (7 Bing. 369) ii. 126 , P. V. (47 Cal. 113; 17 Am. R. 401) i. 965 V. S. (.58 Ga. 430) ii. 901- V. S. (24 Ohio St. 166 ; 15 Am. R. 604) i. 140, 141 , S. V. (48 Iowa, 221) i. 675 , S. V. (64 Me. 157) ii. 429, 453, 458 , U. S. V. (6 McLean, 409) ii. 1047 Stanly, S. v. (4 Jones, N. C. 290) ii. 56 Stannard, Reg. v. (Leigh & C. 349) i. 1095 Stansbury v. Marks (2 Dall. 213) ii. 253, 969 Stanton v. Haskin (1 MacAr. 558 ; 29 Am. R. 612) ii. 131 , Reg. V. (1 Car. & K. 415) i. 261, 729 , Rex V. (2 Show. 30) i. 264, 531 ; ii. 1271, 1273 , S. u. (37 Conn. 421) i. 333 , S. i>. (1 Ire. 424) i. 1005 ; ii. '608 Staples, Rex v. (Andr. 228) i. 470; ii. 936 Stapleton, Rex v. (1 Crawf. & DIx C. C. 163) ^ i. 362, 363 , Rex V. (Jebb, 93) i. 358, 861 805 STE INDEX TO THE CiSES CITED. STB Stappo. S. (3 Tex. Ap. 138) i. 736; ii. 740 StaTck V. S. (63 Ind. 285; 30 Am. E. 2U) ii. 876 Starin i'. P. (45 N. Y. 333) i. 667 Stark V. McGowen (1 Nott & McC. 387) ii- 1269 , Si.v.(\ Strob. 479) i. 376, 385, 400 Starkey v. S. (6 Ohio St. 266) ii. 785, 786 Starkie v. C. (7 Leigii, 752) i. 683; ii. 813 Starks v. S. (7 Bax. 64) ii. 72 e Starling, Rex v. (1 Sid. 174) ii. 225 Starr, S. v. (38 Mo. 270) i. 844 ; ii. 702, 728 State Bank e. Moore (2 Southard, 470) i. 714 Staten v. S. (30 Missis. 619) i. 849, 877 Statham v. S. (41 Ga. 507) i. 713 Staton, P. 0. (73 N. C. 546 ; 21 Am. R. 479) 1. 464 Statum V. S. (9 Tex. Ap. 273) ii. 882 Stead, Rex v. (8 T. R. 142) i. 1079 Steagald v. S. (22 Tex. Ap. 464) ii. 728 Steamboat New World v. King (16 How. U. S. 469) i. 173 Steamboat Orleans v. Phoebus (11 Pet. 175) i. 173 Stear, Reg: v. (1 Den. C. C. 349; Temp. & M. 11 ; 13 Jur. 41) ii. 865 Stearns, C. v. (2 Met. 343) ii. 370 , S. V. (11 Fost. N. H. 106) i. 32 V. U. S. (2 Paine, 300) ii. 1022 Stebbins, C. v. (8 Gray, 492) ii. 849 , S. V. (29 Conn. 463; 79 Am. D. 223) i. 1052 Stedman's Case (cited Foster, 292) ii. 703 Stedman, C. v. (12 Met. 444) i. 1006 , S. V. (7 Port. 496) i. 795 Steele. Roach (1 Bay, 63) i. 993 Steele v. Brannan (Law Eep. 7 C. P. 261) i. 309 V. Dunham (26 Wis. 393) i. 460 , Respublica v. (2 Dall. 92) i. 967 V. Southwick (9 Johns. 214) ii. 907, 929, 930, 931, 932 , S. V. (3 Heisk. 185) ii. 946 , S. V. (106 N. C. 766; 19 Am. St. 673) i. 532 : , S. V. (1 Yerg. 394) ii. 1018 Steels, Reg. v. (11 Cox C. C. 5) ii. 442 Steer, Reg. v. (6 Mod. 183) ii. 775 Stegar v. S. (39 Ga. 683; 99 Am. D. 472) ii. 1177 Stein, P. ». (1 Par. Cr. 202) ii. 1137 V. S. (37 Ala. 123) i. 431 ; ii. 665 , S. V. (1 Rich. 189) i. 264, 266 Steiner's Case (6 Opin. Att. Gen. 413) i. 1029 Steinert, In re (29 Hun, 301) ii. 271 Steinman v. Mc Williams (6 Pa. 170) i. 320 ; ii. 1031 Steinmeyer v. P. (95 III. 383) i. 303, 306, 874 Stephen v. S. (11 Ga. 226) i. 789, 809 ; ii. 1118, 1124, 1188 806 Stephens, In re (1 Kelly, 584) V. Graham (7 S. & R. 505; 10 1. 218; ii. 255 Am. D. 485) I'. Hill (10 M. & W. 28) V. James (4 Sim. 499) V. Myers (4 Car. & P. 349) ii. 575 ii. 270 1. 823 i. 548; ii. 31 , Keg. V. (Law Eep. 1 Q. B. 702) i. 1075 V. S. (14 Ohio, 386) i. 802, 957 V. S. (42 Ohio St. 160) 1. 629, 633, 638 a w. S. (1 Swan, Tenn. 167) ii. 1024, 1038 , S. V. (11 S. C. 819) i. 1039 , S. V. (13 S. C. 286) ii. 745, 998 , S. V. (32 Tex. 155) ii. 789 V. Watson (1 Salk. 45) i. 504, 505, 1113 Stephens, &o. Co. v. Central Eld. (5 Vroom, 280) ii. 1267 Stephenson, C. w. (UCush. 481; 59 Am. D. 154) ii. 593 V. Hanson (67 How. Pr. 305) ii. 1024 , Eeg. V. (13 Q. B. D. 381; 15 CoxC. C. 679) i. 303; ii. 1188 , S. V. (2 Bailev, 334) ii. 784 , S. V. (4 McCord, 166) U. 1026 , S.I'. (20 Tex. 151) ii. 72 d Stereoscopic Slides, U. S. v. (1 Sprague, 467) i.,821 Sterling, Rex v. (1 Leach, 99 ; 2 East P. C. 950) , S. V. (34 Iowa, 443) Stern v. S. (53 Ga. 229 ; 21 Am. Sterrenberg, S. v. (69 Iowa, 544) Sterrett, S. v. (68 Iowa, 76) Stetson V. Faxon (19 Pick. 147; Am. D, 123) , P. V. (4 Barb. 151) i. 267 ; 420, 462, 468 1 Whart. Crim. ii. 603 ii. 190 E. i.304 i. 1066 i. 305 81 i. 265 ii. 169, Stetter, U. S. v. (1 Whart. Crim. Law, §766, n.) i. 906 Stevens's Case (Cro. Car. 566) i. 668 Stevens, Ex parte (14 Pick. 94) i. 966 V. Bagwell (16 Ves. 189) ii. 131 V. C. (4 Met. 360) ii. 1105 V. C. (6 Met. 241) i. 786, 799 , C. w. (10 Mass. 181) i. 681 ; ii. 609 v. Fassett (27 Me. 266) i. 1029 V. Griffith (111 U. S. 48) • i. 14 K. P. (1 Hill, N. Y. 261) i. 963 V. P. (67 111. 687) i. 892, 10786, 1090 , P. V. (38 Hun, 62) ii. 770 , P. V. (13 Wend. 341) i. 1067 , Rex V (5B & C. 246) i, 427; ii.l046 ^ V. S. (31 Ind. 485; 99 Am. D. 634) i. 383, 387 V. S. (19 Neb. 647) i. 795 , S. V. (.30 Iowa, 391) ii. 236 , U. S. V. (4 Wash. C. C. 547) i. 117 Stevenson, C. v. (127 Mass. 446) ii. 415 V. Power (9 Price, 884) ii. 255 STO INDEX TO THE CASES CITED. STR Stevenson, Reg. v. (8 Fost. & F 106) i. 491 , Rex !). (2 Leach, 546) i. 1032 , U. S. V. (3 Ben. 119) i. 822 Steventon, Eex i'. (2 East, 362) ij. 219 Stewart's Case (5 Irvine, 310) i. 1059 Stewart v. Blaine (1 MacAr. 453) ii. 247 V. C. (10 Watts, 306) i. 1150 , C. V. (1 S. & K. 342) 1. 504, 1106 V. Davis (31 Ark. 518 ; 25 Am. E. 676) ii.958a V. Hawley (21 Wend. 552) i. 463 V. Johnson (3 Harrison, 87) ii. 190 , P. V. (1 Idaho, N. s 646) i. 908 , Rex V. ( Russ. & Ry. 288) i. 204, 206 , Rex i;. (Russ. & Ry. 363) i. 653, 676 ; ii. 609 V. S. (78 Ala. 436) ii. 703 V. S. (6 Ohio, 241) i 795, 805 K. S. (1 Ohio St. 66) i. 843, 850, 865 ; ii. 715 V. S. (15 Ohio St. 155) i. 998 V. S. (22 Ohio St. 477) ii. 1026, 1197 , S. V. (31 Me. 515) i. 886 , S. u. (29 Mo. 419) , 1. 736 , S. «. (9 Nev, 120) ii. 704 , S. V. (91 iJ. C. 566) ii. 1267 , S. V. (59 Vt. 273; 59 Am. R. 710) ii 233 , U. S. V. (2 Dall. 343) ii. 1202 V. Waterloo Turn Verein (71 Iowa, 226 ; 60 Am. R. 786) i. 417 V. Wilson (1 A. K. Mar. 255) li. 501 Sthreshley v. Fisher (Hardin, 257) i. 460 Slice, Ex parte (70 Cal. 51) ii. 253 Stiukley, S. v. (41 Iowa, 232) i. 387 Stiles V. Nokes (7 East, 493) ii. 916 V. S. (57 Ga. 183) i. 305 Still, C. V. (83 Ky. 275) ii. 1014 Stimpson, S. v. (45 Me. 608) i. 141 Stinson v. P. (43 111. 397) i. 138, 140, 141 ; ii. 810 Stippw. S. (11 Ind.62) i. 678 Stock, Rex V. (2 Leach, 1015; Russ. & Ry. 185 ; 2 Taunt. 339) ii. 106 , Rex V. (1 Moody, 87) ii. 365, 813, 836, 859 Stockdale's Case (22 How. St. Tr. 237) ii. 922 Stockdale v. Hansard (8 Dowl. P. C. . 474) r ii- 253 Stockley, C. u. (10 Leigh, 678) ii. 1024 Stoddard, C. v. (9 Allen, 280) i. 550; ii. 29 V. Mix (14 Conn. 12) ii. 135 V. Tarbell (20 Vt. 321) i. 459 Stoeekli, S. v. (71 Mo. 559) ii. 726 Stoffer V. S. (15 Ohio St. 47 ; 86 Am. D. 470) i. 850, 869, 870, 871 Stokeley t>. C. ( 1 Va. Cas. 330) ii. ^52, 268 Stokely, S. w. (16Minn. 282) ii. 723 Stoker u. P. (114 III. .320) ii. 342 Stokes V. Kirkpatrick (1 Met. Ky. 138) i. 464 , P. V. (66 N. Y. 342) i. 948 Stokes, Rex v. (5 Car. & P. 148) i. 465, 466, 697,707; ii. 1090 , Rex V. (6 Car. & P. 151) i. 998 V. S. (18 Ga. 17) ii. 697, 731 , Territory v. (2 New Mex. 161) li. 118 Stolady, Reg. v. (1 Post. &r.518) ii. 1034 StoUer, S. v. (38 Iowa, 321) li 356 Stoltz V. P. (4 Scam. 168) i. 1006 Stone, C. V. (4 Met 43) ii. 148, 417, 448 V Graves (145 Mass. 353) li. 958 u. Graves (8 Misso. 148; 40 Am. D. 131) i. 459, 462 V. V. (2 Scam. 326) i. 1039 , P. V. (16 Cal. 3691 i 672 a ; ii. 790 , P. L,, (5 Wend. 39) i 1003 , P. ./. (9 Wend. 182) i. 571, 585, 592 ; ii. 204, 410, 481, 484 , Reg. V. (Dears. 251; 23 Law J. N s. M. C. 14; 17 Jur. 1106; 22 Eng. L. & Eq. 593) ii. 1020, 1055 , Reg. V. (1 Den. C. C. 181 ; 2 ' Car. & K. 364) ii. 563 , Reg. u. (1 Fost. & F. 311) ii. 471 , Rex V. (4 Car. & P. 379) i. 711 , Rex V. (6 T. R. 527) i. 772 ; ii. 1231, 1233 V. S. (Spencer, 401) li. 605 , S. V. (68 Mo. 101) ' ii. 863 , S. V. (1 Vroom, 299) ii. 783 , Territory v- (2 Dak. 155) i. 1094 a Stonecifer, P. w. (6 Cal. 405) i; 871 Stoneman v. C. (25 Grat. 887) i 305, 865, 877 ; ii. 704 Stoops V C. (7 S. & R. 491 ; 10 Am. D, 482) 1. 664, 667, 792, 793, 796, 1062 ; ii. 116 Stopford, Reg. v. (11 Cox C. C. 643) ' i. 328, 413, 736 Storey v. p. (79 111. 45 ; 22 Am. R. 158) ii. 916, 936 Storr, Rex v. (3 Bur. 1698) i. 536, 538 . ii. 985 Storwood, Reg. v. (9 Jur. 448) ii. 218 Story's Case (3 Dy- 298 6) ii. 1213 Story V. Hammond (4 Ohio, 376) i. 266 , Rex V (Russ. & Ry. 81) i. 572 ; ii. 430, 439, 583 V. S. (99 Ind. 413) i. 865 Stotesbury v. Smith (2 Bur. 924) ii. 394 Stotts, S. t>. (5 Blackf. 460) i. 573 ; ii. 390, 396, 401 Stoughton, Rex v. (2 Saund. 157) i. 531 ; ii. 1281 V. S. (5 Wis. 291) i. 174, 1144 V. Taylor (2 Paine, 655) i. 119 Stout, C.v. (7 B. Monr. 247) i. 307 Stovall V. Johnson (17 Ala. 14) , i. 883 Stoww. P. (25111. 81) i, 572 a Stowell, U. S. V. (2 Curt. C. C. 153) i. 1014 Strafford v. Jackson (14 N. H. 16) i. 899 Strang, Ex parte (21 Ohio St. 610) i. 464 V. P. (24 Mich. 1) ii. 1122 Strange v. Brennan (10 Jur. 649) ii. 132 Strangford, C. v. (112 Mass. 289) i. 572 a Strat, S. u. (1 Murph. 124) ii. 1038 807 STU INDEX TO THE CASES CITED. SUP Stratford, Eex v. (11 Mod. 56) ii 1280 Stratford-upon-Avon, Kex v. (14 East, 348) ii- 1281 Stratton, C. v. (114 Mass. 308 i 19 Am. R. 350) i. 491 ; ii. 28 V. Hague (4 Call, 564) i. 351, 824 V. P. (20 Hun, 288) ii. 1024 , Rex V. (1 Camp. 549) ii. 214 V. S. (45 Ind. 468) i. 685, 705 , S. V. (27 Iowa, 420 ; 1 Am. R. •282) ii. 578 Straw, S. o. (33 Me. 554) 1. 534, 632; ii. 1146 , S. V. (42 N. H 393) ii. 182, 192 Strawliern v. S. (37 Missis. 422) i. 634 Streek, Rex v. (2 Car. & P. 413) i. 1032 Street v. S. (7 Tex. Ap. 6) 1, 694 Streety v. Wood (15 Barb. 105) ii. 914 Stretford, Reg. v. (2 Ld. Raym. 1169) ii. 1280 Strioliland v. Thorpe (Yelv. 126) i. 916, 1061 Stricklin v. C. (83 Ky. 566) i. 670 Stringer, Reg. v. (1 Car. & K. 188; 2 Moody, 261) i. 653, 635, 736, 769 ; ii. 1172, 1181 Strohm v. U. S. (Taney, 413) i. 664 Stroll, S. 0. (1 Rich 244) 1. 571, 686 ; ii. 148, 157 Strong V. Campbell (11 Barb. 1?5) i. 237 c. S. (1 Blackf. 193) 1. 279, 281, 281 a V. S. (86 Ind. 208 , 44 Am. R. 292) ii. 467 w. S. (105Ind. 1) ii. 504 , S. V. (25 Me. 297) i. 245 ; ii, 1267 Stroud's Case (3 How. St. Tr. 235) i. 457 Stroud, S. V. (95 N. C. 626) i. 679, 680 , ii. 1139 Stroude, Rex v. (2 Show. 149) i. 537 ; ii. 504, 1149 Stroup V. C. (1 Rob. Va 764) i. 962 Struble, S. v. (71 Iowa, 11) ii. 53 Strupney, C. v. (105 Mass. 588 ; 7 Am, R. 6.56) ii. 91 Stryker v. New York (19 Johns. 179) i. 148 V. Vanderbilt (3 Butcher, 68) ii. 968 Stuart V. Clark (2 Swan, Tenn. 9; 68 Am. D. 49) ii. 1271 V. C. (28 Grat. 960) i. 1014 , C. ». (2 Va. Cas. 320) ii. 245, 252 -. — V. P. (3 Scam. 395) ii. 243, 257, 268 , Rex V. (1 Russ. Crimes, 3d Eng. ed. 48) i. 204 Stacker, S. v. (.33 Iowa, 395) i. 892 Studdard v. Linville (3 Hawks, 474) ii. 1031, 1038 Studstill V. S. (7 Ga. 2) ii. 657 Stukely, Rex w. (12 Mod. 493) i. 299 ; ii. 973 Stump V. Findlay (2 Rawle, 168; 19 Am. D 632) i. 830 V. McNairy (5 Humph. 363 ; 42 Am. D. 437) ii. 1267 808 Sturdirant, S. v. (18 Me. 66) i. 245 ; ii. 1267 Sturges V. Bridgman (11 Cli. D, 852) i. 1138 «. Maitland (Anthon, 158) i. 287, 307, 313, 824 Sturoc, In re (48 N. H. 428 ; 97 Am. D. 626) ii. 259 Sturtevant, P. v. (5 Seld. 263; 59 Am. D. 536) ii. 268 Stutson, S. V. (Kirby, 52) ii. 299 Sudbury, Rex v. (12 Mod. 262) i. 534; i ii. 1144 Sudlow V. Pinckney (1 Dem. 158) ii. 242 a Suffolk Witches' Case, The (6 How. St. Tr. 647) i 593 Sugar Refining Co. «. Jersey City (11 C. E. Green, 247) i. 1144 Sugg V. Pool (2 Stew. & P. 196) i. 306 Suhur, S. V. (33 Me. 539) ii. 968 Suits against Foreigners (1 Opin. Att. Gen. 45) i. 132 SuUens, Rex v. (1 Moody, 129) ii. 368,812 Sullivan, C. v. (104 Mass. 552) ii. 789, 888 -^— V. Jones (2 Gray, 570) i. 460 V. Maine Cent. Rid. (82 Me. 196) ii. 964 , Pennsylvania D. (Addison, 143) ii. 1130, 1131 K. P. (1 Par. Cr. 347) ii. 721 , P. u. (3 Seld. 396) i. .306, 844, 869 , Reg. «. (Car. &M. 209) i. 341, 735, 867, 868, 859, 862, 875 , Reg. V. (11 Cox C. C 44) ii. 942 , Reg. V. (15 U. C. Q. B. 198) i. 1028 , Rex V. (7 Car. & P. 641) i 314 ; ii. 657, 658, 691, 692 V. S. (52 Ind. 309) ii. 1267 V. S. (5 Stew. & P. 175) i. 659 ; ii. 13 , S. V. (14 Rich. 281) i 280 SuUivant «. S. (3 Eng. 400) i. 729; ii. 1122 Sully, P. K. (IBuf. 17) ii. 458 Summerlin v. S, (3 Tex. Ap. 444) ii. 302 Summers, Ex parte (5 Ire. 149) ii. 262, 265, 268 V. Clark (29 La. An. 93) i. 819 a, 822 , Reg. V. (Law Rep. 1 C. C. 182) i. 960 , Rex I). (2 East P- C. 785) ii. 1179 a , Rex V. (3 Salk. 194) i. 335, 588; ii. 805, 811 K. S. (51 Ind. 201) ii. 1267 V. S. (6 Tex. Ap. 365; 32 Am. R. 673) ii. 728 Sumner v. P. (29 N. Y. 337) ii. 1260, 1262 , S. V. (2 Ind. 377) ii. 985 , S. V. (2 Speers, 599 ; 42 Am. D. 387) i. 584 ; ii. 1185 , S. ». (5 Strob. 53) i. 535 ; ii. 2, 3, 4 , S. V. (10 Vt. 587; 38 Am. D. 219) ii. 145, 437 Sumpter v. S. (11 Fla. 247) i. 749; ii. 740 Sunbolf V. Alford (3 M. & W. 248 ; 2 Jur. 110) ii. 37 Superintendent, C. v. (9 Philad. 581) ii. 867 SWI INDEX TO THE CASES CITED. TAS Surberu. S. (99Ind. 71) i. 413 Surrey, Rex v. (1 Chit. 650) ii. 982 Sutcliffe V. S. (18 Ohio, 469 ; 51 Am. D. 459) i. 998, 1047 , S. V. (4 Strob. 372) i. 938 ; ii. 999 Suter, Reg. v. (10 Cox C. C. 577) ii. 454 Sutfln, S. V. (22 W. Va. 771) i. 1034 Sutherland, C. v. (109 Mass. 342) i. 1050 Sutton V. Fox (55 Wis. 531 ; 42 Am. R. 744) i. 976 , Reg. V. (8 Car. & P. 291 ; 2 Moody, 29) i. 207 ; ii. 758, 797, 886 , Rex V. (5 B. & Ad. 52 ; 2 Nev. . & M. 57) i. 992 , Rex V. (Cas. temp. Hardw. 370 ; 2 Stra. 1074; 1 East P. C. 172) i. 204, 206, 729; ii. 286 V. S. (9 Ohio, 133) i. 178 V. S. (41 Tex. 513) ii. 1018 V. S. (16 Tex. Ap. 490) i. 141 , S. 0. (4 Gill, 494) i. 805, 998, 1006 Sutton's Hospital Case (10 Co- 23) i. 422 Suydam v. Beals (4 McLean, 12) i. 194 V. Receivers of New Brunswick Bank (2 Green Ch. 114) i. 279 Swaggerty v. S. (9 Yerg. 338) 1. 700 Swails, S. V. (8 Ind. 524; 65 Am. D. 772) i. 737, 750 Swallow, Rex v. (1 Russ. Crimes, 3d Eng. ed. 792) i. 262 Swan, P. V. (1 Par. Cr. 9) ii. 879, 882 V. S'. (4 Humph. 136) i. 400,409, 412; ii. 728 V. Tappan (5 Cush. 104) i. 308 Swancoat v. S. (4 Tex. Ap. 105) i. 1049 Swann, S. v. (65 N'. C. 330) 1. 772 ; ii. 55 Swanson, Reg. v. (7 Mod. 101) i. 555 Swartwout v. Johnson (5 Cow. 74) ii. 139 Swartzbaugh v. P. (85 111. 457) i. 594 Swayze, S. v. (11 Or. 357) il. 879 Sweatman, In re (1 Cow. 144) i. 931 Sweeden v. S. (19 Ark. 205) i. 803, 805 Sweeney v. S. (35 Ark. 585) ii. 726, 728 Sweenie, Reg. v. (8 Cox C. C. 223) ii. 1122 Sweetapple v. Jessie (5 B. & Ad. 27) ii. 13 Sweetraan, P. v. (3 Par. Cr. 358) i. 178 ; ii. 1023 Swenarton, Ex parte (40 Hun, 41) ii. 241 Swenson, P. v. (49 Cal. 388) ii. 743 Swepson, S. v. (79 N. C. 632) i. 1009 Swepston v. Barton (39 Ark. 549) i. 464 Swetland, P. 0. (77 Mich. 53) Ii. 605 Swett V. Poor (11 Mass. 549) i. 307 ; ii. 121, 136, 140 Swift, S. V. (14 La. An. 827) i. 865 Swift Run Gap Turnpike, C. v. (2 Va. Cas. 362) i. 420; ii. 1270 Swigart V. S. (99 Ind. Ill) i. 302 Swindall, Reg. v. (2 Car. & K. 230) i. 257, 314, 632 ; ii. 667, 690 Swlndel v. 3. (32 Tex. 102) i. 1016, 1018 Swindle v. S. (2 Yerg. 581 ; 24 Am. D. 515) ii. P27 Swinney v. S. (8 Sm. & M. 576) i. 794, 1006; ii. 885 Sword V. S. (5 Humph. 102) i. 932 Sydenham v. Keilaway (Cro. Jac. 7 pi. 9) ii. 174, 219 Sydlye's Case (1 Keb. 620) i. 1132 Sydney v. S. (3 Humph. 478) il. 1118, 1134 SydserfEt). Reg. (11 Q. B 245, 12 Jur. 418) 1. 432, 592; u. 193, 198, 200 Syer's Case (4 Co. 43 b) i. 668 Sylvester v. Girard (4 Rawle, 185) i. 578 ; ii. 785, 786 V, S. (71 Ala. 17) i. 974 V. S. (72 Ala. 201) i. 1006 ; ii. 680 V. S. (42 Tex. 496) i. 1087 Symonds, Rex v. (Cas. temp. Hardw. 240) i. 266 , S. V. (57 Me. 148) i. 821 Syracuse, &c. Plank Road v. P. (66 Barb. 25) i. 940 Tabb V. Baird (3 Call, 475) ii. 137 Taber, C. v. (123 Mass. 253) i. 464 V. Jenny (1 Sprague, 315) ii. 778 Taberner, S. v. (14 R. L 272; 51 Am. R. 38'2) ii 328, 379 Tabler v. S. (34 Ohio St. 127) i. 859 Tachanatah, S. v. (64 N. C. 614) i. 154 ; Tackett, S. v. (1 Hawks, 210) Taffu. S. (39 Conn. 82) ii, 673 a i. 843 930, 931 Taft, Rex v. (1 Leach, 172 ; 2 East P. C. 959) i. 572; ii. 683,603 Taggart v. C. (21 Pa. 527) ii. 1285 , P. i>. (43Cal. 81) ii. 103 , Rex V. (1 Car. & P. 201) i. 471 Taggert, C. v. (3 Brews. 340) ii. 886 Tait, S. V. (22 Iowa, 140) i. 1024 Talbot, C. V. (2 Allen, 161) ii. 564 , Rex V. (11 Mod. 415) i. 501, 515 , S. V. (97 N. C. 494) ii. 505 Tallard, Rex v. (2 Barn. 328) i. 1132 Tancock, Reg. v. (13 Cox C. C. 217) i. 1067 Tancred v. Leyland (16 Q. B. 669) i. 538 Tandy, Rex v. (2 Leach, 833 ; 1 East P. C. 182) i. 953, 965 Tannan, P. v. (4 Par. Cr. 514) ii. 721 Tanner v. C. (14 Grat. 635) ii. 880, 882 , C. V. (5 Bush, 316) ii. 1156 , U. S. V. (6 McLean, 128) ii. 904 Tannet, Rex v. (Russ. & Ry. 351) i. 758 Taplin, Rex ii. (2 East P. C. 712) i. 582 ; ii. 807, 1169 Tappan, S. v. (15N. H. 91) i. 1067 ; ii. 1202 V. Wilson (7 Ohio, 190) ii. 931 Tarbox, C. v. (1 Cush. 66) i. 309 «. S. (38 Ohio St. 581) ii. 480 Tardiffr. S. (23 Tex. 169) i. 324, 892 Tarpley v. P. (42 111. 340) ii. 72 6 Tarr, S. v. (28 Iowa, 397) ii. 1121, 1123 Tarrant, Rex v. (4 Bur. 2106) ii. 218 Tartar v. Finch (9 Cal. 276) ii. 1267 Tarver v. S. (43 Ala.' 354) ii. 23, 32 Tasborough, Rex e. (Trem. P. C. 169) ii. 1197 809 TAY INDEX TO THE CASES CITED. TEN Tassels, S. v. (Dudley, Ga. 229) Tate, Reg. v. (12 Cox C. C. 7, Eng. Rep. 164) V. S. (5 Blackf. 73) i. 154 V. S (6 Blackf. 110) i. 653 ; V. S. (46 Ga. 148) Tatlock, Reg. v. (2 Q B. D. 157) Tatman, S. u. (59 Iowa, 471) Taunton, C. v. (16 Gray, 228) ii, 1030, 1032 i 237, 346 ; ii. 1279 ii.ll90 ii. 703 i. 667 i 1032 ii. 1267, 1272, 1280 w. Costar (7 T R. 431) ii. 490 B. Taylor (116 Mass, 254) i. 492 Taverner, Rex v. (1 Rol. 360; 3 Bulst. 171) i. 259 Tawney's Case (2 LA. Raym. 1009) ii. 514 Taws, Ex parte (2 Wash. C. 0. 353) ii. 978 Taylor v. Alexander (6 Ohio, 144) i. 430 V. Best (14 C. B. 487 ; 23 Law J N. s. C. P 89; 18 Jur, 402, 25 Eng L. & Eq. 383) i. 128, 196 V. 0. (15 B. Monr. 11) i. 303, 488 V. C. (3 Bush, 508) ' ii. 1156 a. C. (29 Grat. 780) i. 266 v.C. (109 Pa. 262) i. 376, 388 , C. V. (5 Binn. 277) i. 537, 569 ; ii. 504, 1148 , C.v. (132 Mass. 261) i. 741 - V. Doremus (1 Harrison, 473) i 459, 462 ;;. Henniker (12 A. & E. 488) i. 538 V. Humphries (17 C. B. n. s. 539) ii. 964, 970 V. Moffatt (2 Blackf. 305) i. 463 V. Newman (4 B. & S. 89; 9 Cox C. C. 314) ii. 998 V. V. (6 Par. Cr. 847) i. 1078 a, 1 141 w.Pliillipa (3 East, 155) ii. 968 , Reg. V. (9 Car. & P. 672) i. 314 ; ii. 667, 639 , Reg. V. (12 Cox C. C. 627 ; 10 Eng. Rep. 509) ii. 874 , Reg. V. (15 Cox C. C. 265) ii. 198 , Reg. V. (1 Fost. &F. 511) ii, 20, 1200 , Reg. u. (4 Fost. & F. 511) ii. 546 , Reg. V. (Law Rep. 1 C. C. 194 ; llCoxC. C261) i. 794 , Reg. V. (Law Rep. 2 C. C. 147 ; 13 Cox C. C. 68 ; 12 Eng. Rep. 636) i. 63.3,678; ii. 811,744 , Reg. V. (2 Ld. Raym. 879) i. 540 ; ii. 946 , Rex V. (3 B. & P. 596 ; 2 Leach, 974 ; Russ. & Ry. 68) i. 567 ; ii. 370, 376 , Rex V. (5 Bur. 2793) ii. 701 , Rex V. (5 D. & R. 422 ; 3 B. & C. 502) i. 1053 , Rex V. (2 East P. C. 853) ii. 523 , Rex V. (Holt, 534) i. 762 ; ii. 1055 , Rex V. (1 Leach, 49; 2 East P. C. 1020) ii. 17 , Rex V. (1 Leach, 214; 2 East P. C. 960) i. 748 810 Taylor, Rex v. (1 Leach, 360) i. 648 , Rex V. (2 Lewin, 215) li. 736 , Rex V. (7 Mod. 128) , ii. 495, 501 , Rex V. (2 Stra. 1167) i. 531 0. S. (22 Ala. 15) ii. 2 V. S. (48 Ala. 180) ii. 704 V S. (62 Ala. 164) i. 972, 974 V. S. (4 Ga. 14) i. 429 ; ii. 922 V S. (50 Ga. 79) i. 731,733; ii. 1136 V S (6 Humph. 286) ii. 986 V. S. (Ill Ind, 279) w . S. (35 Tex. 97) V. S. (42 Tex. 887) V. S. (3 Tex. Ap. 387) w. S. (5 Tex. Ap. 529) V. S. (7 Tex. Ap. 659) V. S. (9 Tex. Ap. 100) S. (12 Tex. Ap. 489) ii. 1181 i. 1016, 1018 ii. 901, 902 ii. 728 i. 892 ii 790 i. 648 ii. 758, 840 i. 1144 i. 1060 'read. - S. (35 Wis. 298) , S. V. (2 Bailey, 49) , S. V. (3 Brev. 243; 1 107) i 143, 734; ii. 312, 314, 315 , S. V. (3 Dutcher, 117 ; 72 Am. D. 347) ii 775 , S. ti. (1 Hawks, 462) i, 992 , S. V. (29 Ind. 517) 1. 491 , S. V. (25 Iowa, 273) ii. 881, 1140 , S. . (98 N. Y. 6) ii. 1267 , P. V. (21 Wend. 235) i. 819 a ; ii. 1269 V. Phillips (Bald. 246) i. 194 , Reg. V. (11 Cox C. C. 362) i. 656 , Reg. B. (2 Crawf. & Dix C. C. 491) ii. 873 , Reg. w. (1 Den. C. C. 549 ; Temp. & M. 294 ; 14 Jur. 488 ; 1 Eng. L. & Eq. 542) ii. 758, 874 , Reg. V. (Leigh & C. 225) ii. 812 , Reg. V. (Leigh & C. 233; 9 Cox C. C. 222) ii. 812 , Reg. V. (16 Q. B. 832; 5 Cox C. C. 166) ii. 191 , Rex V. (1 Leach, 443; 2 East P. C. 705) ii- 897 , Rex V. (1 Moody, 78) i. 567 ; ii 899 811 THR INDEX TO THE CASES CITED. TIV Thompson, Rex v. (1 Moody, 80) «. Reynolds (73111. 11) 1. bOb ; ii. 699 , 35, 541 ■ V. Rose (16 Conn. 71 ; 41 Am. D. 121) . ii. 472 V. Sliackell (Moody & M-. 187) ii. 914 V. S. (21 Ala. 48) I'. S. (25 Ala. 41) V. S. (70 Ala. 26) V. S. (24 Ga. 297) V. S. (55 Ga. 47) U.S. (18 Ind. 386; ■ V. S. (45 Ind. 495) • V. S. (6 Neb. 102) i. 464: ii. 1267 i. 636, 636 i. 796 i. 865 ii. 704 81 Am. D. i. 262 i. 317, 892 1. 1028 ii. 539 i). S. (9 Ohio St. 354) V. S. (9 Tex, Ap. 649) i. 998 V. S. (26 Tex. Ap. 94) i. 294 , S. V. (3 Hawks, 613) i. 1014 , S. V. (9 Iowa, 188 ; 74 Am. D. 850, 853 ii. 523 i. 875 i. 971 a ii. 1008 i. 843 i. 387 i. 1006 i. 998 342) , S. V. (19 Iowa, 299) , S. V. (71 Iowa, 503) , S. V. (28 La. An. 444) , S. V. (30 Mo. 470) , S. V. (83 Mo. 257) , S. II. (12 Nev. 140) , S. V. (95 N. C. 596) , S. V. (R. M. Charl. 80) , S. u. (2 Strob. 12; 47 Am. D. 588) i. 2.37. 531, 1067 ; ii. 1270, 1271 , S. V. (2 Tenn. 96) ii. 617 , S. V. (41 Tex. 523) i. 1024 — — V. Steamboat Morton (2 Ohio St. 26) i. 176 , U. S. V. (29 Fed. Kep. 86; 12 Saw. 161) Ii. 2.38 Thorley , Rex t>. ( 1 Moody, 343) ii. 323, 353 Thorn, Reg. v. (2 Moody, 210; Car. & M. 206) ii. 149, 660, 563, 612 Thornburg v. Harris (3 Coldw. 157) i. 14 , S. w. (6 Ire. 79 ; 44 Am. D. 67) i. 572 ; ii Thome v. Tnrck (10 Daly, 327) ii. V. Turck (94 N. Y. 90 ; 46 Am. R. 126) ii. 799 Thornton v. S. (20 Tex. Ap. 519) i. 917 , S. V. (Buebee, 252) i. 1113, 1116 , S. V. (13 Ire. 256) i. 1014 , S. V. (37 Mo. 360) i. 1068 Thorp, Rex i!. (5 Mod. 221) ii. 286 Thorpe, Rex v. (1 Leach, 396, n.) . V. Rutland and Burlington Eld. (27 Vt. 140 ; 62 Am. D. 625) i. 493 Thorshaven, Case of (Edw. Adm. 102) i. 132 Threadgill v. Carolina Central By. (73 N. C. 178) i. 464 Three Hundred, &o. Pipes, U. S. v. (6 Saw. 421) i. 488 Three Tons of Coal, U. S. v. (6 Bis. 379) i. 488, 819 a, 821, 836 Thristle, Reg. r. (1 Den. C. C. 502 ; 2 Car. & K. 842; 3 New Sess. Cas. 702; 13 Jur. 1036) i. 207; ii. 833, 867 812 ' 578 414 ,915 Throckmorton's Case (1 Harg. St. Tr. 63 ; 1 How. St. Tr. 869) i. 702 Throgmorton's Case (1 Dy. 98 6) i. 681, 684 Thrower's Case (1 Vent. 208 ; 3 Salk. 392) ii. 1269 Thunder Bay Co. v. Speechly (31 Mich. 336 ; 18 Am. R. 184) ii. 1271 Thurber «. Sharp (13 Barb. 627) i. 1147 Thurborn, Reg. v. (1 Den. C. C. 387 ;, 2 Car. & K. 831 ; Temp. & M. 67) i. 287, 303 ; ii. 768, 838, 876, 879, 880, 881 882 Thurmond v. S. (26 Tex. Ap. 366) ii! 606 Thurston v. Percival (1 Pick. 415) i. 541 ; ii. 131 , S. V. (2 McMul. 382) i. 683, 778, 793, 1061 ; ii. 862, 888 Tibbetts, C. v. (2 Mass. 536) i. 432, 591, 592 ; ii. 176, 193, 217 , P. V. (19 N. Y. 523) i. 174 Tibbs, C. V. (1 Dana, 526) ii. 312, 314 Tice, S. V. (90 Mo. 112) i. 368 Tickle V. S. (6 Tex. Ap. 623) ii. 697 Tidwell V. S. (70 Ala. 33) i. 401 ; ii. 639 Till, S. V. (1 Houst. Crim. 233) ii. 728 Tillery, S. d. (1 Nott & McC. 9) i. 578 ; ii. 785, 786 Tilletson, S. v. (7 Jones, N. C. 114 ; 76 Am. D. 456) i. 1031 Tilhnghast, Ex parte (4 Pet. 108) ii. 268, 270 Tillock V. Webb (66 Me. 100) ii. 958 a, 959 Tilly, S. u. (3 Ire. 424) ii. 716, 716 Tilman v. Searcy (7 Humph. 347) ii. 189 , S. V. (30 La. An. 1249 ; 31 Am. R. 2.36) ii. 1133 Tilton, C. u. (8 Met. 232) i. 604, 696, 1136, 1137 Timberly v. Childe (1 Sid. 68) i. 591, 592 ; ii. 217 Timberlye's Case (2 Sid. 90) ii. 555 Timmins, Rex v. (7 Car. & P. 499) i. 314; ii. 667, 690 Timmons, S. v. (2 Harring. Del. 628) i. 909, 910, 911 , S. V. (58 Ind. 98) ii. 415 Timothy, Reg. v. (1 Fost. & F. 39) ii. 198 V. Wright (8 Gray, 522) i. 915 Tindall, Rex v. (1 Nev. & P. 719; 6 A. &E. 143) i. 227, 531; ii. 1271 Tinklepaugh, U. S. ... (3 Blatch. 425) i. 465 Tinkler's Case (13 East, 416, n.) i. 1001 Tinsley v. Kirby (8 S. C. 113) ii. 404 Tippins V. S. ( 14 Ga. 422) i. 1061 Tipton, S. «. (1 Blaekf. 166) ii. 248, 255, 268 Tisdale, Reg. b. (20 U. C. Q. B. 272) i. 633; ii. 406 Tite, Reg. v. (1 Leigh & C. 29) ii. 341 Titus, C. V. (116 Mass. 42; 17 Am. R. 138) ii. 882 Tivey, Reg. v. (1 Car. & K. 704 ; 1 Den. C. C. 63) i. 343, 429, 595 ; ii. 986, 997 TOW INDEX TO THE CASES CITED. TRl Tobey v. Chipman (13 Allen, 123) ii. 540 Tobin, C. v. (2 Brews. 670) ii. 790 , C. V. (108 Mass. 42B) i. 208, 464, 731 ; ii. 1010, 1011, 1028 Todd V. Plight (9 C. B. n. g. 377) i. 1095 V. S. (31 Ind. 514) ii. 471 Tohayles's Case (stated Cro. Car. 610) i. 1142 Tolan, S. v. (4 Vroom, 195) i. 464 Tolever, S. u. (5 Ire. 452) i. 636, 537 ; ii. 499, 505 Tolfree, Rex v. (1 Moody, 243) i. 362 ; ToUett, Heg. t!.(Oar. & M. 112) ii. 874 ii. 872, 873, 874 ii. 268 16 Tolman v. Jones (114 111. 147) Tolson, Reg. v. (23 Q. B. D. 168 Cox C. C. 629) i. 291, 291 b, 303 a, 395 Tom V. S. (8 Humph. 86) i. 303; ii. 652, 728 , S. V. (2 Dev. 569) i. 432, 801 ; ii. 188 Tomb V. Sherwood (13 Johns. 289) ii. 137 Tombes v. Ethrington (1 Lev. 120) i. 916 Tomlin, S. v. (5 Dutcher, 13) ii. 457 Tomlinson, P. v. (66 Cal. 344) ii. 373 , Reg. V. (Law Rep. 1. C. C. 49; 10 Cox C. C. 332) ii. 1026 Tompkios, P. v. (9 Jolins. 70) i. 466 ; ii. 1106 , P. V. (1 Par. Cr. 224) ii. 417, 429, 461, 474 ii. 373 Greenj i. 883 , ii. 653 i. 370 ii. 346 , S. V. (32 La. An. 620) V. Tompkins (3 C. E. 303) Tomson, Rex v. (J. Kel. 66) Toney, S. v. (15 S. C. 409) Tongue, Reg, u. (Bell C. C. 289) Toole, Reg. v. (Ir. Rep. 2 C. L. 36 ; 11 Cox C. C. 75) ii. 876 , S. V. (29 Conn. 342 ; 76 Am. D. 602) ' ii. 12 Tooley, Reg. o. (11 Mod. 242) i. 868, 877 ; ii. 699 Toomes u. Etherington (1 Saund. Wms. ed. 361) i. 910, 967 Tooney v. S. (5 Tex. Ap. 163) ii. 727, 728 'Topham, Rex !>. (4 T. R. 126) i. 540; ii. 940 Torey v. S. (13 Mo. 455) i. 782 Torpey; Reg. v. (12 Cox C. C. 45 ; 2 Eng. Rep. 180) i. 362, 363 Torrence v. C. (9 Pa. 184) ii. 501 Torres, P. v. (38 Cal. 14l) ii. 741 Torrey v. Field (10 Vt. 353) i. 206 Toshack, Reg. v. (Temp. & M. 207 ; 1 Den. C. C. 492) i. 572 ; ii. 634 Tower, C. v. (8 Met. 527) i. 957 V. Tower (18 Pick. 262) i. 1080 Towers, Reg. n. (12 Cox C. C. 530; 8 Eng. Rep. 585) ii. 657, 738 Towle, Rex v. (Russ. & Ry. 314 ; 3 Price, 145) i- 648 , S. V. (42 N. H. 540) ii. 268 Town, S. V. (Wright, 76) i. 429, 797, 998 ,384, 392 ii. 766 i. 428 i. 1033, 1034 ii. 72 d Townley, Reg. v. (3 Fost. &F. I , Reg. V. (Law Rep. 1 C. C. 315 ; 12 Cox C. C. 59) Townsell, S. v. (3 Heisk. 6) Towusend, C. v. (5 Allen, 216) V. Jeffries (24 Ala. 329) V. Kendall (4 Minn. 412 ; 77 Am. D. 534) i. 885 V. P. (3 Scam. 326) i. 953 , P. V. (3 Hill, N. Y. 479) i. 368, 490 , Reg. V. (Car. & M. 178) ii. 340, 353 , Reg. V. (10 Cox C. C. 356) ii. 920, 1030 , Reg. V. (1 Den. C. C. 167; 2 Car. & K. 168) ii. 337, 349, 369 , Reg. V. (4 Fost. & F. 1089) ii. 1030 , S. i;. (2 Harring. Del. 543) i. 795, 948,1057; ii. 1154 Tracy, In re (46 N. Y. Super. 48 i. 126 , C. V. (5 Met. 536) i. 135 V. Perry (8 N. H. 504) i. 957 , Reg. V. (6 Mod. 30) i. 459, 573, 625, 681, 682, 683, 685 ; ii. 393 "' " '"•" ■ "'"; ii. 215, 394, 973 162; 67 i. 658 10 i. 460 i. 236, 631; ii. 1271 Trafton v. S. (5 Tex. Ap. 480) i. 714 V. U. S. (3 Story, 646) ii. 341 Train, Reg. v. (9 Cox C. C. 180) ii. 1273 Trainer, Reg. v. (4 Fost. &F. 105) ii. 662 a Trammell v. Trammell (20 Tex. 406) i. 885 ii. 1018, 1030, 1043 Travis, P. o. (4 Par. Cr. 213) ii. 1026 Treadwell, P. v. (69 Cal. 226) i. 895 y. S. (16Tex. Ap. 643) ii. 119 Treat v. Jones (28 Conn. 334) ii. 1153 Trebilcock, Reg. v. (Dears. & B. 453; 7 CoxC. C. 408) ii. 841 Treble, Rex v. (2 Leach, 1040; 2 Taunt. 328 ; Russ. & Ry. 164) !.• 672 ; ii. 576, 577 Tredway, P. v. (3 Barb. 470) il. 1024 Treeve's Case (2 East P. C. 821) i. 484, 491, 558 Tremaine, Rex «. (7 D. & R. 684) i. 1002 Treman, P. v. (30 Barb. 198) i. 464 Tremearne, Rex v. (5 B. & C. 254) i. 1002 Trenton, S. v. (7 Vroom, 283) i. 1142, 1143 Trerice v. Barteau (54 Wis. 99) ii. 1267 Trexler, S. i;. (2 Car. L. Repos. 90; 6 Am. D. 558) ii. 889 Trezza, P. v. (126 N. Y. 740) Trice w. S. (2 Head, 591) V. S. (17 Tex. Ap. 43) Trickey, C. v. (13 Allen, 659) , Reg. V. (6 Mod. 178) i. V. Talmage (4 Kern, Am. D. 132) V. Williams (4 Conn. 107 Am. D. 102) Trafford, Rex v. (I B. & Ad, 874) Trask, S. v. (42 Vt. 152) 813 ii. 696 il. 54i ii. 1279 i. 1060 ; ii. 966, 969 TUM INDEX TO THE CASES CITED. TWO Trilloe, Reg. v. (Car. & M. 650; 2 Moody, 260) ii. 632 Trim v. C. (18 Grat. 983 ; 98 Am. D. 765) i- 653 , P. V. (39 Cal. 75) i. 670 Trimble v. C. (2 Va. Cas. 143) i. 428 ; ii. 991, 1000 V. S, (18 Tex. Ap. 632) ii. 1140 Trimmer, C. w. (1 Mass. 476) i. 359, 361 , C. V. (84 Pa. 65) i. 1053 Trinity Cliurcl), P. v. (22 N. Y. 44) il. 1267 Triplett v. C. (84 Ky. 193) i. 1062 Tripp, S. V. (34 Minn. 25) i. 842 Trippe, Ex parte (66 Ind. 531) i. 895 Tritti'po V. S. (10 Ind. 343 ; 13 Ind. 360 i. 1029 Trivas, S. v. (32 La. An. 1086 ; 36 Am. R. 293) i 414 Troclcmorton, S. v. (53 Ind. 354) ii. 740 Trogden v. Henn (85 HI. 237) ii. 72 6 Trollop's Case (8 Co. 68 a) i. 909, 913 Troup V. Wood (4 Jolms. Ch. 228) i. 970 Troy's Case (1 Mod. 5) 11. 392 Troy, Reg. u. (1 Crawf. & Dix C. C. 556) i. 883 ; ii, 29 Troy, &c. Rid., S. v. (57 Vt. 144) ii. 1278 Truax v. Thorn (2 Barb. 156) i. 541 ; ii. 139 True V. Plumley (36 Me. 466) ii. 968 Trueman v. Casks of Gunpowder (Thacher Crim. Cas. 14) 1. 351, 830, 1098 Truitt V. S. (8 Tex. Ap. 148) Truman, In re (44 Mo. 181) Trumble v. S. (25 Tex. Ap. 631) Trumbull, S. v. (1 Southard, 139) ii. 256, 269 Trusty, Rex v. (1 East P. C. 418) Tryon, 0. v. (99 Mass. 442) Tubbs, C. V. (1 Cush. 2) i. 1065 Tubervell v. Savadge (2 Keb. 545) Tuberville ». Savage (1 Mod. 3) Tuck, C. V. (20 Pick. 356) i. 778, 785, 793, 796, 965, 1014, 1016, 1017, 1062 ; ii. 116,904 Tucker, C. v. (2 Pick. 44) ii. 1267, 1268 !J. Phillips (2 Met. Ky. 416) ii. 490 , Rex r. (1 Ld. Raym. 1) 11. 1213, 1235 V. S. (3 Heisk. 484) ii. 885 V. S. (28 Tex. Ap. 541) i. 1132 Tuckerman, C. v. (10 Gray, 173) ii. 849, 371 373 Tuckwell, Reg. v. (Car. & M. 215) i! 676 Tuke, Reg. v. (17 U. C. Q. B. 296) ii.560 Tullay w. Reed (1 Car. &P. 6) 1.859 Tuller V. S. (8 Tex. Ap. 501) ii. 12 , S. V. (34 Conn. 280) ii. 882 Tullis V. S. (41 Tex. 598) i. 633 Tully, In re (22 Blatch.213i 20 Fed. Rep. 812) ii. 529, 586 V. C. (4 Met. 857) i. 9.30 ; ii. 118 , Reg. V. (9 Car. & P. 227) ii. 441, 472 , U, S. V. (1 Gallis. 247) ii. 1061 Tutney, S. „. (81 Ind. 559) ii. 340 814 1. 653 ii. 611 ii. 728 i. 736 i. 363 ii. 65 ii. 34 ii. .S4 Tunnard, Rex v. (2 East P. C. 687 ; 1 Leach, 214, n.) i. 583; ii. 813 Tunstall, S. v. (51 Tex. 81) i. 895 Turberville v. Stampe (1 Ld. Raym. 264) i. 316, 686 Turner, Ex parte (45 Mo. 331) i. 953 - V. C. (2 Met. Kv. 619) ii. 268 — V. Meymott (1 Bing. 158) ii. 490 -, P. V. (1 Cal. 152) ii. 243, 252 , P. 1). (1 Cal. 188) ii. 270 -, Reg. V. (11 Cox C. C. 551) ii. 341 — , Reg. V. (4 Fost. & F. 339) ii. 657 , Rex V. (6 Car. & P. 4.07) ii. 901 , Rex V. (13 East, 228) ii. 182, 183 , Rex V. (5 Mod. .329) i. 240 , Rex V. (1 Moody, 47) i. 810 , Rex V. (1 Moody, 347) i. 669 , Rex V. (1 Stra. 139) i. 948 v. S. (40 Ala. 21) i, 279, 998; ii. 1139 V. S. (1 Ohio St. 422) ii. 1156, 1165, 1178, 1179 V. S. (7 Tex. Ap.596) . ii. 789 , K. V. (5 Harring. Del. 501) i. 564 , S. V. (2 McMul. 399) i. 953 , S. V. (66 N. C. 618) ii. 774 , S. V. (Wright, 20) 1. 400 ; ii. 724 V. Turner (80 Va. 379) ii. 1260 , U. S. V. (7 Pet. 132) ii. 594 Turnipseed v. S. (6 Ala. 664) i. 947 Turpin v. Eagle Creek, &c. Road (48 Ind. 45) ■ ii. 1018 , Reg. V. (2 Car. & K. 820) ii. 591 V. S. (4 Blackf. 72) i. 534 ; ii. 1144' Turvil, Rex ». (2 Mod. 53) 1. 909, 910 Turvy, Reg. v. (Holt, 364) i. 206, 432, 767 ; ii. 193 Tutohin, Rex v. (5Harg. St. Tr. 527; Holt, 424) i. 457 Tutt, S. V. (2 Bailey, 44; 21 Am. D. 508) i. 178; ii. 1022 , S. V. (63 Mo. 595) ii. 118 Tuttle V. C. (2 Gray, 505) i. 961 V. Hills (6 Wend. 218; 21 Am. D. 306) i. 541 ; ii. 139 V. P. (36 N. Y. 431) ii. 1014, 1018 V. S. (4 Conn. 68) i. 1150 Twee Gebroeders, Tlie (3 Rob. Adm. 336) i. 103, 104, 108 Tweedy v. S. (5 Iowa, 433) i. 844, 850 , S. 0. (11 Iowa, 350) i. 1004, 1006 Twenty-eight Packages, U. S. v. (Gilpin, 306) i. 206, 762 Twenty-second St., In re (102 Pa. 108) ii. 1267 Twiggs, S. V. (90 N. C. 685) i. 1033, 1034 Twist, Reg. V. (12 Cox 0. C. 509 ; 6 Eng. Rep. 335) ii. 817 Twitchell v. C. (9 Pa. 211) i. 592 ; ii. 180, 198, 201, 206, 539 , C. V. (4 Cusli. 74) i. 1148 Twitty, S. V. (4 Hawks, 193) i. 899, 914, 916 Two Hundred Barrels of Whiskey, U. S. V. (95 U. S. 671) i. 488 UPD INDEX TO THE CASES CITED. VAN Two Hundred and Fourteen Boxes of Arms, U. S. v. (20 Fed. Rep. 50) i. 482 Two Sicilies v. Wilcox (1 Sim. n. s. 332) i. 420 Twogood, S. V. (7 Iowa, 252) i, 35 Twoee, Reg. v. (14 Cox C. C. 327) i. 303 Tyers, Rex v. (Ruas. & Ry. 402) ii. 334, 374, 376, 878 Tyler v. AUori (38 Me. 530) i. 460 V. Connolly (05 Cal. 28) ii. 242 a V. P. (Breese, 227) ii. 758, 882 V. P. (8 Mich. 320) i. 108, 114, 116, 120, 152 , P. u. (35 Cal. 553) i. 805 , P. u. (7 Mich. 161) i. 108, 114, 117, 145, 149 V. Presley (72 Cal. 290) ii. 255 , Reg. V. (8 Car. & P. 616) i. 310, 348, 429, 636, 648, 651 ; ii. 744 V. S. (2 Humph. 37 , 36 Am D. 298) ii. 441, 560 Tylney, Reg. v. (1 Den. C. C. 319; 18 Law J. N. s. M. C. 36) i. 748 ; ii. 543, 598, 699 Tyra «. C. (2 Met. Ky, 1) i. 400 ; ii. 740 Tyree, Reg. v. (Law Rep. 1 C. C. 177) li. 335 Tyson v. Prior (1 Gallis. X33) ii. 876 , Reg. V. (Law Rep. ICC 107) ii. 1037 , Rex V. (see Dyson. [In the Am. ed. of Russ. & Ry. the name is by misprint, Tyson.] Udal V. Udal (Aleyn, 81) ii. 766 Uezzell, Reg o (2 Den. C. C. 274 ; 4 Eng. L. & Eq 568) i. 516 Uhl V. C (6 Grat 706) i. 359, 362, 685, 762, 764, 974, 976 tJhrig, C. V. (138 Mass. 492) i. 304 Umphrey v. S (63 Ind 223) ii. 840 Underwood w. Green (3 Rob. N. Y. 86) 1 492 V. Hewson ( 1 Stra. 596) ii. 60, 72 c , P. V. (16 Wend. 546) i 672 a V. a. (25 Ala. 70) ii. 63 V. S. (25 Tex. Supp. 389) ii. 699 , S. V. (2 Ala. 744) i. 998 , S.v. (6 Ire 96) i. 997 , S. V. (49 Me 181 , 77 Am. D. 254) i. 141 ,'S. V. (57 Mo. 40) ii 657, 702 , S. V. (64 N. C. 699) i. 909, 910 Ungericht v. S. (119 Ind. 879; 12 Am St 419) ii. 968, 959 United Kingdom Elec. Tel., Reg. v. (9 Cox C. C. 137) ii. 1272, 1273 U. S. Bank v. Russell (3 Yeates, 391) ii. 675 United States Express v. Jenkins (64 Wis. 542) i- 264 Upohurch, S. v (9 Ire. 454) i. 810 Updegraph v C. (11 S. & R. 394) i. 308, 497, 498 i ii. 76, 77, 80, 82 I Updike, S. v. (4 Harring. Del. 681) i. 1033 Upfold V. Leit (5 Esp 100) i. 572 ; ii. 629, 544,574 Uprichard, C. u. (3 Gray, 434; 63 Am. D. 762) i. 141 Upshaw V. Oliver (Dudley, Ga. 241) i. 462 Upson, S. V. (64 Iowa, 248) i. 947 Upstone V. P. (109 111. 169) i. 400 Upton, C. V. (6 Gray, 473) i. 1141 , Reg, V. (5 Cox C. C. 298) i. 429, 631 , Rex 0. (2 Stra. 816) i. 761 , ii. 196 ^- — u. S. (5 Iowa, 465) ii. 1139 Usborne, Reg. v. (8Jur. 200) ii. 758, 843 Useful Manuf. Soc, S. v. (13 Vroom, 504) ii. 1273, 1274 Usher i>. C. (2 Da v. 394) i. 772 Usill V. Hales (3 C. P. D. 319) 1. 93 ; ii. 916 Utleyu. Merrick (11 Met. 302) i. 974 , S. V. (82 N. C. 656) ii. 886 Vadnais, S. v (21 Minn. 382) i. 789, 812 Vaiden v. C. (12 Grat. 717) i. 869 Valarino v. Thompson (3 Seld. 576) i. 181 Valentine, S. v. (7 Ire. 226) i. 975 , S. V. (6 Yerg. 533) l 806, 808, 998 Valesco y. S. (9 Tex. Ap. 76) i, 281 a Vallandigham's Case (Pamph.) i. 65 Vallandighara, Ex parte (1 Wal, 243) 1 44, 63 Vamplew, Reg. w. (3 Fost. & F. 620) i. 368 Van Alstyne, P. o. (3 Keyes, N. Y. 36) u. 1268 Van Blarcum, P. o. (2 Johns. ;05) ii 13, 17 Van Butchell, Rex v. (3 Car. & P. 629) i. 217, 314 ; ii. 664 Vance v Lowther (1 Ex. D. 176) li. 575 V. S. (62 Missis. 137) . ii. 1026 , S. V. (17 Iowa, 138) i. 867 Van Deleer, P. v. (53 Cal. 147) i 769 Vanderbilt, P. v. (28 N. Y. ^6) ii. 1272 , S. u. (3 Dutcher, 328) ii. 415, 416 , S. u. (116 Ind. 11; 9 Am. St. 820) i, 886 Vanderburgh, S. u (17 Vroom, 280) Ii. 1267 Vandercom, Rex v. (2 East P. C. 519) 1. 793, 796, 1053, 1062 Vandercomb, Rex v. (2 Leach, 708) i. 793, 796, 1053, 1062 Vanderheyden v Young (11 Johns. 150) i. 61 Vandermark v- P. (47 HI. 122) i. 736 Vanderstein, Reg. v (16 Ir Com. Law, 674 ; 10 Cox C. C. 177) i. 663 Vanderwerker u. P. (5 Wend. 630) i. 1033 V. S. (8 Eng. 700) i. 504, 1135 Vandimark, S. v. (35 Ark 396) ii. 416, 418 Vandiveer».Stickney(75Ala. 225) ii 137 Van Duzer v. Howe (21 N. Y. 581) i 271 ; li 680,581 Van Dyck v. Van Deuren (1 Johns. 346) i. 541j ii. 1-36; 187,140. Van Hart, S. ■;. (2 Harrison, 327) i. 572 ; ii. 639 815 VAU INDEX TO THE CASES CITED. VOR Van Home v. S. (5 Pike, 349) i. 572 ; ii. 639 Van Horton, S. v. (26 Iowa, 402) i. 1026 Van Houten, In re (2 Green, Ch. 221) i. 885 V. S. (17 Vroom, 16 ; 50 Am. R. 397) i- 1126 Vankirk, S. v. (27 Ind. 121) i. 990 Van Meter v. P. (60 111. 168) i- 623 Van Muyen, Rex v. (Russ. & Ry. 118) i. 822 ; ii. 841 Vann, Reg. v. (2 Den. C. C. 325 ; 5 Cox C. C. 379; 8 Eng. L. & Eq 596) 1 217, 239 j ii. 1188 ; , S. t). (82N. G. 631) 1.385 , S. a. (84 N. C. 722) i 396 Vannoy, S. v (66 N. C. 632) ii. 31, 32 Van Pelt's Case (1 City H. Rec. 137) ii- 474 Vanpoolt). C (13 Pa. 391) ii 501,614 Vanranst, U. S. v. (3 Wash, C. C. 146) i. 570 Van Shaack, C. v. (16 Mass. 105) ii. 17 Van Sickle, C. v. (Brightly, 69) i. 1141, 1142, 1143 Van Steenbergh v. Kortz (10 Johns. 167) ii. 1019, 1028 Van Steenburgh, P. . S. (3 Sm & M. 553) i. 758 ; , S. V. (1 Bay, 282) , S. V. (29 Iowa, 286) Vaughn w C. (10 Grat. 768) i. 582, 821 ; ii. 148 i 1033 ii. 786, 804, 851 V. S. (3 Coldw 102) i. 3.36 V. S (4 Misso. 530) i, 658, 689, 957 Vaux's Case (4 Co. 44 ; 3 Inst. 214) i. 610, 646, 651, 1021 ; ii. 744 Vaux, Rex v. (11 Mod. 287) ii. 1090 Vavasseur v Krupp (9 Ch. D 351) i. 126 Veatch v S (60 Ind, 291) i. 1003 Venable o Curd (2 Head, 582) i 464 Verdier v. Simons (2 McCord Ch. 385) ii. 136 Verelst, Rex v. (3 Camp 432) i 464 Vermont Cent. Rid., S. v. (27 Vt. 103 ; 30 Vt. 108) i. 420, 421 Vermont and Mass. Rid., C. i;. (108 Mass. 7) i. 531 Verona Central Cheese Co. v. Mur- taugh (60 N. Y. 314) i. 316 Vertner v. Martin (10 Sm & M. 103) ii 264 Vess V. S. (93 Ind. 211) ii. 501 Viall, C. V. (2 Allen, 612) ii. 1190 Vice, P. V. (21 Cal 344) ii. 1169, 1162 a Vickery, S. <. (19 Tex 326) ii. 414, 415, 477 , U. S r (1 Har & J. 427) i 941 Vidal V Girard's Executors (2 How. U. S. 127) ii. 74 Vigol, U. S. V. (2 Dall 346) i 466; ii 1202 Vilas V Burton (27 Vt 56) ii. 268 Vijlato, U. S. V. (2 Dall. .370) ii 1202, 1235 Villeneuve, Rex v. (2 East P.C. 830) ii 446 Vincent, Ex parte (43 Ala. 402) i. 1033 , Reg. V. (9 Car & P, 91) i. 458, 534 ; II 224, 1161, 1258 , Reg. V. (2 Den C. C. 464 ; 9 Eng. L. & Eq. 548) ii. 789 , S. V. (36 La. An. 770) i. 1014 Vinegar, P. u (2 Par. Cr. 24) ii. 741 Vines, S. v. (1 Houst. Crim. 424) i. 874 , S. u. (34 La. An. 1079) i. 1061 , S. V. (93 N, C, 493 , 63 Am. R. 466) i 314 , ii. 656 6 Vinsant, S. v. (49 Iowa, 241) i. 789 Vint's Case (27 How. St. Tr. 627) 1. 484 5 ii. 938 Vint, Rex v. (1 Russ. Crimes, 3d Eng. ed. 246) i. 484 Violett V. Violett (2 Dana, 323) i. 831 ; ii, 139, 140 Virt, S. V. (3 Ind. 447) ii. 1281 Vivian, Reg. v. (1 Car. & K.' 719) ii, 560 Voglesong v. S. (9 Ind. 112) ii. 951, 955 Vogt, In re (44 How. Pr, 171) i. 1.35 Voight, S, V. (90 N. C, 741) 1. 300 Voke, Rex v. (Russ, & Ry, 531) ii 63, 991 Volmer, S, v. (6 Kan. 379) i. 963 Volz, U. S, «. (14 Blatch, 15) ii 1028 Vorback, S. v. ,(66 Mo. 168) i. 571; ii. 419 WAL INDEX TO THE CASES CITED. WAL Vovpells V. C. (83 Ky. 193) i, 633 Vrooman v. Lawyer (13 Johns. 339) i. 1080 V. Shepherd (14 Barb. 441) ii. 137 Vyse, liex v. (1 Moody, 218) i. 224 , ii. 768, 785, 787 i. 237, 459 ii. 967 i. 336 5 ii. 238 ii. 238 W 's Case (Lofft, 44) Wacker, S. v (71 Wis. 672) Waddell v. S. (37 Tex. 854) , U. S. V. (16 Fed. Rep. 221; McCrary, 156) , U. S. V. (112 U. S. 76) Waddingtori, Rex v. (1 B. & C. 26) ii, 78 , Hex V. (1 East, 143) i. 619, 626, 527 , Rex u. (1 East, 167) i 527 Wade, C. v. (17 Pick. 396) i. 1U52 , Reg. V. (1 Car. & K. 739) ii. 1140 , Reg V. (11 Cox C. C. 549) ii 861 , Rex V. (1 B. & Ad 861) i. 240 , Rex V. (1 Moody, 86) i. 1014, 1037 Wagener v. Bill (19 Barb. 321) i. 362 Waggoner u. Richmond (Wright, 173) ii. 1027 Wagner v. P. (4 Abb. Ap. 809) i. 384 V. S. (68 Ind. 42) ii. 268 , S. V (78 Mo. 644 , 47 Am. R. 131) i. 329 ; ii. 727 Wagoner v. S. (5 Lea, 352; 40 Am. R .36) ii. 1117 Wagstaff, Reg. v. (Russ. & Ry. 398) ii. 1200 WagstafEe, Reg. v. (10 Cox C. C. 530) i. 305 ; ii. 686 Waholz. S. V. (28 Minn 114) ii. 1267 Waite, Rex v. (1 Leach, 28 ; 2 East P C. 670) ii. 758, 8.30 , Rex V. (1 Wils. 22) ii. 931, 936 Waitz, U. S. a (3 Saw. 473) ii. 390, 392 Wakefield, Rex v. (2 Lewin, 279 , 2 Townsend St. Tr. 112) ■ ii. 2.35 , Rex V (1 Stra. 69) ii 254 V. S (41 Tex. 566) ii. 901, 902 , S. V. (8 Mo. Ap. 11) i. 470 , ii. 946 Wakeling Rex v (Russ. & Ry. 604) ii. 428 Wakeman v Chambers (69 Iowa, 169; 58 Am. R. 218) i. 657, 658 », Robinson (1 Bing. 213) ii. 60 Wakley v Cook (11 Jur. 377) i 266 V. Cooke (16Law J.iN. s. Exch. 226) i. 266 Walbourne, Rex v. (W. Kel. 68) i, 1014 Walbridge, P. v. (6 Cow. 612, 3 Wend. 120) ii 136 Walden, C. v. (3 Cush. 558) i. 429 , ii 996, 997 , Reg. V. (1 Cox C. C. 282) -^— , Rex V (12 Mod. 414) Waldo V. Wallace (12 Ind 569) Waldvogel, P. v. (49 Mich. 337) Wales V. Belcher (3 Pick. 508) V. Stetson (2 Mass. 143 ; 3 Am D. 39) ii.l273 Walkden, Reg. u. (1 Cox C C. 282) VOL. I. — 52 ii. 72 a ii. 946 i. 1068 ii i. 280 28 Walker, Ex parte (25 Ala. 81) U. 256 v. Brewster (Law Rep. 5 Eq. 26) i. 1113, 1146 V. C. (8 Bush, 86) i. 895 V. C. (8 Leigli, 743) ii. 824, 836, 856 r. Cuthbert (10 Ala. 213) ii. 133 V. P. (88 N. Y. 81; 26 Hun, 67) i. 375 , P. V. (38 Mich. 156) i. 411 ; ii. 840 , Reg. V (Dears. 358; 25 Eng. L. & Eq. 689) ii. 991 , Reg. V. (Dears. & B. 600, 8 Cox C. C. 1) ii. 341 , Reg. V. (Law Rep. 10 Q. B. 356 , 13 Cox C. C. 94) i. 336, 469 , Reg. V. (2 Moody & R. 446) i. 1057, 1058 , Rex V. (1 Car. & P. 320) i. 314 ; ii. 667, 690 , Rex V. (1 Leach, 97) ii. 1106 , Rex V. (1 Moody, lo5) ii. 758, 768 V. S. (61 Ala. 30) i. 1014 V. S. (85 Ala. 7 ; 7 Am. St. 17) i. 413 V. S. (8 Ind. 290) i. 736 «. S. (2 Swan, Tenn. 287) i. 294 S. (6. Tex. Ap. 676) ii 728 w. S. (7 Tex. Ap. 627) i. 413, 736 V. S. (14 Tex. Ap. 609) ii. 728 , S. V. (26 Ind. 346) i. 1014, 1033, 1034 , S V. (37 La. An. 560) ii 676 V. Winn (8 Mass. 248) i 471 •, ii. 930, 9.32 Wall, Ex parte (107 U, S. 265) — ^, Rex V. (2 East P. C. 953) V. S (75 Ga. 474) V. S (23 Ind. 150) V. S. (51 Ind 453) V. S. (18 Tex. 682; 302) , S. V. (9 Yerg 347) V. Wayland (2 Met. Ky 165) Wallace v. C (2 Va. Cas. 130) 895; ii. 255 i. 572 , ii 538 ii 901 i. 35 i. 305 70 Am. D. 1. 872 i ii. 723 ii. 1024 ii. 138 i. 462 , ii. 974 ii. 201 , C. V. (16 Gray, 221) , C. V. (114 Pa. 406 , 60 Am. R. 353) ii. 437 , Reg. V (Car. & M. 200) i. 141 V. S. (5 Ind. 555) i. 1117 V. S. (11 Lea, 642) ii. 416 V. S. (7 T6x. Ap. 670) ii. 728 v.S (10 Tex Ap. 265) ii. 632 V. Young (5 TB. Monr 155) ii. 17 Wallamet Iron Bridge v Hatch (9 Saw. 643, 19 Fed Rep. 347) ii. 1269 Wallengen, Rex v. (1 Sid. 106) Waller v. Perkins (52 Ga. 233) , Reg. V (10 Cox C C. 360) V. S (40 Ala. 325) V. S. (38 Ark. 656) , S. u (3 Murph. 229) Wallis V. Mease (3 Biiin. 546) , Reg o. (3 Cox C 67) 817 ii. 1054 i. 464 ii. 813 i. 998 i. 658 i. 399 i. 578 ; ii. 777 ii. 797 WAR INDEX TO THE CASES CITED. WAR ■Wallis, Eeg. o. (1 Salk. 334 ; Holt, 484) i. 6S9, 648, ii. 691, 744 V. Talmadge (10 Paige, 443) ii 270 Walls, Ex parte (64 Ind. 461 ) i. 895 , Reg. V. (2 Car, & K. 214) i. 567, 582 ; ii. 898 , S. u. (7 Blackf. 572) i. 343 Walsh >/. P. (65 III. 58 ; 16 Am. R. 569) li. 88 , P. V. (43 Cal. 447) i. 869 , Rex V. (1 Moody, 14) ii. 758, 794, 795 , Rex V. (4 Taunt. 258 ; 2 Leach, 1054 ; Russ. & Ry. 215) ii. 365, 812, 823, 830 , U. S. V. (5 Dil. 58) ii 225 Walsingham's Case (2 Plow. 547) i. 918 Walter v. P. (50 Barb. 144) ii. 1122 , Rex V. (3 Esp. 21) i 219, 221 Walters v. C. (44 Pa. 135) ii. 731 1-. Glats (29 Iowa, 437) ii 876 . Reg. K. (Car. & M. 164) i. 305; ii 663, 686, 691 , Rex V. (5 Car & P. 138) i. 572 a w. S. (52Ga. 574) i. 516 «. S. (5 Iowa, 507) i. 961 V. S (17 Tex.Ap. 226; -50 Am. - R. 128) ii 812 V. S. (18 Tex. Ap. 8) ii. 1106 , S. V. (16 La. An. 400) i, 998 , S. V. (97 N. C. 489) 1. 941 Walton, Reg. « (Leigh & C. 288 , 9 Cox C. C 268) ■ ii 1181, 1200 V. S. (3 Sneed, 687) V S. (6Yerg. 377) , S. V. (62 Me. 106) V Tryon (1 Dickens, 244) Waltz, S V (52 Iowa, 227) i. 311 ; Waltzer.u. S. (3 Wis. 785) Wamire, S. v. (16 Ind. 357) i Wandsworth, Rex v. (1 B. & Aid 63 ; 2 Chit. 282) i. 992 War, P V. (20 Cal. 117) i. 619, 620, ii. 55 Warburfon, Reg. v. (Law Rep. 1 C. C. 274) ii. 178, 181, 207 Ward V. Bell (7 Jones, N. C. 79) i. 32 r C. (14 Bush, 233) i. 633 , C. w. (1 Mass. 473) i. 592, ii 198 , C. V. (2 Mass. 397) ii. 529, 602 ('. P. (3 Hill, N. Y. 395 , 6 Hill, N. T. 144) i. 620, 679, 680; ii. 758,' 765, 789 . P. V. (15 Wend. 231) i, 793, 1066 , Reg. V. (10 Cox C. C 573) i. 1038 , Reg. I). (Law Rep. 1 C. C 356, 12 Cox C. C. 123) ii. 53 , Rex «. (4 A & E. 384) i. 341 ; ii. 1271, 1272 , Rex w. (1 Lev. 8) i. 511 ; ii. 1187 , Rex V. (2 Ld. Raym. 1461 ; 2 Stra. 747 , 2 East P C. 861) i. 572, 734 ; ii. 528, 529, 698, 602 V. Roper (7 Humph. Ill) i. 886 i>. S. (22 Ala. 16) i. 800 V. S. (48 Ala. 161, 17 Am. E. 31) ii. 773 V. S. (1 Humph 2.53) i. 1016 818 i 1021 ii 560 ii 549 i. 93 ii. 851 i. 955 i. 1035 Ward V. S. (48 Ind, 289) i. 302 V. S. (2 Misso. 120 ; 22 Am. D. 449) 213) , S. V. (48 Ark. 36 ; 3 Am. St. ii. 273 S. V. (7 Bax. 76) .S.v. (43 Conn. 489) S. u. (2 Hawks, 443) S. V. (9 Ileisk. 100) S. V. (73 Iowa, 532) , S.o. (19Nev 297) i. 1061 i. 1021 ii 533 ii. 99 i. 997 i. 926 ii, 1122 ii. 758, 841 i. 154 ii 1283 , U. S. t). (MeCahon, 199) Warde, Rex v. (Cro. Car 266) Warden, Reg. v. (3 Fost. & F 82) ii. 676 Warden, C. w. (11 Met. 406) ji. 1026 V. S. (60 Missis. 638) ii. 758, 847 V S. (24 Ohio St. 143) i 648 Warden of the Fleet, Rex v. (12 Mod. 337) i. 975 Wardle, Reg. v. (Car. & M. 144) i 1041 , Reg D. (Car. & M. 647) i. 1039 , Rex V. (Ruse. & Ry. 9) ii. 1179 a Wardroper, Reg. ?>. (Bell C. C. 249 ; 8CoxC. C.284) ii. 1141, 1142 Wardwell, C. v. (136 Mass. 164) ii. 937 Ware, S v. (10 Ala. 814) ii 758, 843 , S. V. (62 Mo 597) ii. 801 Wareham v. S. (25 Ohio St. 601) i. .328 Waring v. Clarke (5 How. U. S. 441) i. 173, 174, 176 V. V. 8. (7 Ct CI. 501) i. 904, 914 Warmoth v. C. (81 Ky 133) li 328, 342 Warne, Rex v (1 Stra. 644) i 206 ; ii 218 Warner v. Fowler (8 Md. 25) ii 1014, 1027 , P. V. (53 Mich 78) i. 780 , Rex V. (1 Moody, 380 ; 6 Car & P. 525) V. S. (13 Lea, 52) , S. V. (34 Conn. 276) , S. V (14 Ind. 572) , U. S. V. (4 McLean, 463) i. 039 ii. 268 i. 536 i 1062 i. 314 ; ii. 067 Warren v. C. (37 Pa. 45) , C. t>. (6 Mass. 72) i. 571, 582, 585, 592 ; ii. 145, 146, 204, 410 , C. V. (6 Mass. 74) i. 432, 571 ; ii 198 V. Doolittle (5 Cow 678) i. 956 V P. (3 Par. Cr 544) i. 500 , P. ». (1 Par Cr. 338) i. 1052 , Reg, V. (10 Cox 0. C 359) ii 824 , Rex V. (Cowp. 371) i. 642 , Rex I'. (Russ. &Ry, 47,n.) 1567, 888; ii, 29 V. S, (4 Coldw. 130) ii, 675, 677 y, S. ( 1 Greene, Iowa, 106) ii. 758, 773 I'. S. (33 Tex. 617) ii, 26 V. S. (9 Tex, Ap, 619 ; 35 Am, R, 746) i. 391 y, S. (17Tex. Ap. 207) ii. 801 Warrick, Ex parte (73 Ala. 57) ii. 731 Warriner v. S, (3 Tex, Ap, 104 ; 30 Am, R. 124) i. 1010 Warrock v. S, (9 Fla, 404) ii. 72 e WAT INDEX TO THE CASES CITED. WAY Wartman v. Philadelphia (33 Pa. 202) i. 420 Warwick v. S. (25 Ohio St. 21) ii. 1020, 102e ii. 605 ii. 140 i. 336 736 Wash V. C. (16 Grat. 530) V. McBrayer (1 Dana, 565) Washburn v. S. (25 Oliio St. 601) Washington v. S. (53 Ala. 29) V. S. (60 Ala. 10 ; 31 Am. R. 28) ii. 728 V. S. (68 Ala. 85), ii. 17 V. S. (72 Ala. 272) ii. 327 V. S. (36 Ga. 222) i. 648 V. S. (68 Ga. 570) i. 648 w. S. (1 Tex. Ap. 647) ii. 728 V. S. (25 Tex. Ap. 887) ii. 727 ,S.v. (1 Bay, 120; 1 Am. D. 601) i. 572; ii. 602 , , S. V. (33 La. An. 1473) i. 1014, 1016 , S. V. (89 N. C. 535; 45 Am. R. 700) i. 1009 , S. V. (90 N. C. 664) i. 1033 , S. y. (26 S. C. 604) ii. 784 Wason V. Walter (Law Rep. 4 Q. B. 73) ii. 915, 917 Wasson v. Canfleld (6 Blackf. 406) ii. 37 Waterbury, P. v. (44 Hun, 493) i. 264 Waterford and Whitehall Turnpike V. P. (9 Barb. 161) i. 237, 419, 531 ; ii. 1270 Waterhouse, S. v. (Mart. & Yerg. 278) i. 1034, 1041 Waterman, C. v. (122 Mass. 43) ii. 218 a 1-. P. (67 111. 91) ii. 534 Waters, Reg. ,i. (12 Cox C. C. 390; 5 Eng. Rep. 469) i. 1014 , Reg. V. (1 Den. C. C. 356; Temp. & M. 57 ; 13 Jur. 130 ; 18 Law J. N. 8. M. C. 53) i. 557, 883 ; ii. 660, 686 , Rex V. (6 Car. &'P. 328) i. 217 ; ii. 693 , S. V. (3 Brev. 507 ; 2 Tread. 669) i. 572 ; ii. 574 ,.S. V. (6 Jones, N. C. 276) ii. 990 Watertown v. Mayo (109 Mass. 315 ; 12 Am. R. 694) i. 492, 1072, 1144 Watkins, Reg. v. (Car. & M. 264; 2 Moody, 217) i. 809 ; ii. 56 r. S. (60 Ga. 601) i. 1014 i>. S. (68 Ind. 427 ; 34 Am. R. 273) i. 1010 V. S. (14 Md. 412) ii. 885 , S. V. (4 Humph. 256) i. 536, 538 ; ii. 518 , U. S. V. (3 Cranch C. C. 441) i. 488 Watkinson, Reg. v. (12 Cox C. C. 271 ; 4 Eng. Rep. 547) i. 572 a Watrous V. Allen (57 Mich. 362 ; 58 Am. R. 363) ii. 578 V. Kearney (79 N. Y. 496) ii. 268 Watson's Case (32 How. St. Tr. 1) ii. 1213 Watson V. Carr (1 Lewin, 6) • i. 501 V. Hall (46 Conn. 204) i. 836, 468 a; ii. 978 ?'. Mercer (8 Pet. 88) 1 279, 281 Watson V. P. (64 Barb. 130) ii. 612 V. P. (87 N. Y. 561 ; 41 Am. R. 397) ii. 429 , Reg. V. (Dears. & B. 348; 7 Cox C. C. 364) ii. 483 , Reg. V. (20 Eng. L. & Eq. 599 ; 2 Cox C. C. 376) i. 501, 1127 , Reg. «. (2 Ld. Eaym. 817) i. 913 , Reg. V. (2 Ld. Kaym. 856 ; 3 Ld. Raym. 18) ii. 1275 , Rex V. (2 East P. C. 562) ii. 836 , Rex V. (2 Leach, 640 ; 2 East P. C. 680) i. 583 ; ii. 819 , Rex V. (2 T. R. 199) i. 237, 582 ; ii. 935 , Rex V. (1 Wils. 41) ii. 209, 218 V. S. (70 Ala. 13 ; 45 Am. R. 70) ii. 342 ii. 704 ii. 434 i. 140, 141 i. 795 i. 1010 ii. 12 ii. 731' ii. 813 91 Am. i. 14 1032, 1035 ii. 105 i. 910 ii. 704 ii. 968 V. S. (82 Ala. 10) V. S. (16 Lea, 604) V. S. (.36 Missis. 593) V. S. (5 Misso. 497) V. S. (5 Tex. Ap. 271) , S. ^. (63 Me. 128) , S. u. (95 Mo, 411) , S. V. (41 N. H. 5.33) V. Stone (40 Ala. 451 D. 484) , U. S.u. (3 Ben. 1) , U.S. i;. (17Fed.Rep. 145) ii. 238 V. Williams (36 Missis. 331) ii. 243 Wattingham v. S. (5 Sneed, 64) i. 930 Watt's Case (23 How. St. Tr. 1167) ii. 1213 Watt V. S. (61 Ga. 66) Watts's Case (Cro. Jac. 335) Watts V. Brains (Cro. Eliz 778) V. C. (5 Bush, 309) , Reg. V. (Dears. 326 ; 6 Cox C. C. 304) ii. 768 , Reg. V. (1 Eng. L. & Eq. 558 ; 2 Den. C. C. 14 ; Temp. & M. .342 ; 14 Jur. 870) ii. 365, 368, 758, 793, 828, 830 832 , Reg. V. (1 Salk. 357) i. 531 ; ii. 1275 , Rex V. (2 Esp. 675) i. 531, 829 ; ii. 1279 , Rex V. (Moody & M. 281 ; 2 Car. & P. 486) i. 244, 341, 531, 1139, 1151 , Rex V. (Russ. & Ry. 436 ; 3 Brod. & B. 197) ii. 583, 588 V. S. (5 W. Va. 532) i. 637 , S. ... (48 Ark. 56; 3 Am. St. 216) i 569 Watuppa Reservoir o. Mackenzie (132 Mass. 71) i. 1079 Waupun V. Moore (34 Wis. 450; 17 Am. R. 446) i. 1142, 1150 Wavell, Rex v. (1 Moody, 224) i. 686 ; ii. 147, 483 Way V. Foster (1 Allen, 408) ii. 968 , P. V. (10 Cal. 336) ii 561 Waybright v. S. (56 Ind. 122) i, 877 Wayman v. C. (14 Bii.«h, 466) i. 3,36, 468 819 WEE INDEX TO THE CASES CITED. WEL Wayman v. Southard (10 Wheat. 1) i. 194 Wayne v. Benoit (20 Mich. 176) 1. 464 Weathered v. Bray (7 Ind. 706) il. 127ii Weathers v. S. (2 Blackf. 278) ii. 1031 Weatherspoon, S. v. (88 N. C. 19) i. 1028 Weaver v. Bush (8 T. E. 78) i. 536, 858 «. C. (29 Pa. 445) ii. 1105 V. Devendorf (3 Denio, 117) i. 460 V. Fegely (29 Pa. 27 ; 70 Am. D. 151) i. 172 V. Hamilton (2 Jones, N. C. 343) ii. 256, 262 V. S. (77 Ala. 26) ii. 882 V. S. (79 Ala. 279) i. 538 V. S. (83 Ind. 289) i. 1020 V. S. (24 Tex. 387) ii. 740 V. S. (19 Tex. Ap. 547 ; 63 Am. R. 389) i. 875 , S. V. (Busbee, 9) i. 560 , S. w. (ISIre. 203) 'i. 990 U.Ward (Hob. 134) i. 287, 288 ,■ ii. 60, 72 c, 645 Webb V. Armstrong (5 Humph. 379) ii. 121 V. Bindon (21 Wend. 98) ii. 138, 140 V. Camp (26 Ga. 354) ii. 138, 384 , C. V. (6 Rand. 726) i. 235, 245, 531 , P. V. (38 Cal. 467) i. 992, 1013, 1014, 1015, 1026, 1032 , Reg. V. (5 Cox C. C. 164) ii. 812 , Reg. B. (11 Cox C. C. 13.3) i. 972 , Reg. t. (1 Den. C. C. 338; 2 Car. & K. 933; Temp. & M. 23; 13 Jur. 42 ; 18 Law J. n. s. M. C. 39) i. 243, 244, 500, 501, 1127 , Rex V. (3 Brod. & B. 228 ; Russ. & Ry. 406 ; cited 6 Moore, 447) i. 572, 584 ; ii. 588 , Rex V. (14 East, 406) i. 519 , Rex V. (1 Ld. Raym. 737) i. 531 ; ii. 1275 , Rex V. (1 Moody, 431) ii. 793 —r-r, Rex V. (1 Moody & R. 405; 2 Lewin, 196) ' "' ' " , Rex V. (1 W. BI. 19) ' V. S. (5 Tex. Ap. 596) V. S. (8 Tex. Ap. 310) , S. V. (25 Iowa, 235) , S. V. (26 Iowa, 262) Webber v. Merrill (,34 N. H. 202) V. S. (10 Misso. 4) Weber, P. v. (66-Cal. 39) . , P. V. (86 111. 283) , P. V. (89 111. 347) Webster v. C. (5 Gush. 386) , C. u. (5 Gush. 295; 52 Am. D. 711) ii. 713 V. F. (14 111 365) i. 32 , P. V. (3 Par. Cr. 503) ii. 244 , Reg. V. (Leigh & C. 77) ii. 792, 793 , Reg. V. (9 L. Canada, 196) i. 1054 , Rex V. (3 T. R. 388) i. 266 V. Sanborn (47 Me. 471) i. 294 Wedge, S. v. (24 Minn. 150) i. 468 a Weed, P. V. (29 Hun, 628) i. 291 820 314 ; ii. 664 i. 335, 460 ; ii. 748 i. 391 ii. 341 i. 1107 ii. 429 !02) ii. 968 i. 998 i. 648 1.464 i. 464 i. 951 Weekes v. King (15 Cox C. C. 733) i. 1138 Wegener, Rex v. (2 Stark. 246) ii. 927 Weidle, Respublica v. (2 Dall. 88) i. 400 Vyeightman v. Washington (1 Black, 39) i. 265 Weiher, C. v. (3 Met. 446) ii. 1267 Weil V. Ricord (9 C. E. Green, 169) i. 1080 Weimer, Ex parte (8 Bis. 321) i. 916 Weinzorpflin v. S. (7 Blackf. 186) i. 618, 1003, 1006, 1014, 1017 Weister v. Hade (52 Pa. 474) i. 279 Welch, G. V. (97 Mass. 593) i. 359, 1065 , Reg. V. (2 Car. & K. 296) ii. 337, 349 , Reg. V. (1 Den. C. C. 199) ii. 376, 377 , Reg. V. (2 Den. G. C. 78 ; 4 Cox C. C. 430 ; 1 Eng. L. & Eq. 588 ; Temp. & M. 409 ; 15 Jur. 136) ii. 288, , Reg. V. (1 Q. B. J). 23 ; 13 Cox 605 C. G. 121) . 336, 594 ■V. S. (50 Ga. 128; 15 Am. R. 690) ' ii. 731 , S. V. (79 Me, 99) i. 961 , S. V. (73 Mo. 284; 39 Am. R. 616) i. 294 , S. V. (37 Wis. 196) i. 465 ; ii. 1010 V. Stowell (2 Doug. Mich. 332) i. 490, 828 Weld, C. V. (Thacher Crim. Gas. 157) . i. 298 V. Walker (130 Mass. 422 ; 39 Am. R. 465) ii. 1188 Wellar t>. P. (30 Mich. 16) ii. 675 Wellard, Reg. v. (14 Q. B. D. 63; 15 Cox C. G. 559) i. 1128 Wellery Territory v. (2 New Mex. 470) ii. 1024 Wellings, Rex v. (1 Car. & P. 454) i. 257 Wellington, C. v. (7 Allen, 299) ii. 1190 Wellman v. Hickson (1 Ind. 581) i. 541 ; ii. 137 , S. V. (34 Minn. 221) ii. 767, 847 Wells, Ex parte (18 How. U. S. 307) i. 902, 914 r. Abrahams (Law Rep. 7 Q. B. 654) i. 269 K. G. (21 Grat. 500) i.895; ii. 268, 270 V. Head (4 Car. & P. 568) i. 1080 " V. Martin (2 Bay, 20) i. 967, 970, 975 , Reg. V. (I'Fost. & F.'l09) ii. 813 , S. V. (Goxe, 424 j 1 Am. D. 211) ■ i. 842, 865 , S. V. (2 Hill, S. G. 687) il. 1022 , S. V. (112 Ind. 237) ii. 349 , S. u. (61 Iowa, 629; 47 Am. R. 822) i. 329 ; ii. 727 , S. V. (70 Mo. 635) i. 311 ; ii. 1267, 1279 Welman, Reg. ». (Dears. 188 ; 20 Eng. L. & Eq. 588; 22 Law J. N. s. M. C. 118; 17 Jur. 421) ii. 431 Welsh, C. V (7 Gray, .324) i. 260; ii. 7 , C. V. (2 Va. Gas. 67) i. 961 !,'. P. (17 111. 339) ii. 813 , Reg. V. (11 Cox C. C. 336) ii. 681 WES INDEX TO THE CASES CITED. WHI Welsh, Hex v. (1 East P. C. 87, 164 ; 1 Leach, 364) i. 769 ; ii. 291 S. (3 Tex. Ap. 114) Weltje, Kex v. (2 Camp. 142) i. 974 i. 470 ; ii. 946 ii. 540 10 i. 1054 Weltner v. Riggs (3 W. Va. 445) Wemyss v. Hopkins (Law Rep. Q. B. 378) Wendell v. Johnson (8 N. H. 220 29 Am. D. 648) i. 208 Wentworth, C. v. (118 Mass. 441) i. 291 , S. V. (65 Me. 234) i. 892 Werneke v. S. (50 Ind. 22) i. 302 Wertheinier v. Howard (30 Mo. 420 ; 77 Am. D. 623) i. 463 Wertzel, S. u. (62 Wis. 184) ii. 1267 Wesley, Reg. v. (1 Fost. & F. 528) ii. 706 I) S. (11 Humph. 502) i. 997 West's Case (111 Mass. 443) i. 915 West V. C. (3 J. J. Mar. 641) i. 504, 1135 , Reg. V. (2 Car. & K. 496; 1 Den. C. C. 258) ii. 563, 564, 5(i5 , Reg. V. (2 Car. & K. 784) i. 328 ; ii. 633, 638, 641, 691 , Reg. V. (Dears. 402 ; 24 Law J. N. s. M. C. 4; 18 Jur. 1031 ; 29 Eng. L. & Eq. 525) ii. 879, 882 , «eg. V. (Dears. & B. 109) ii. 786, 787 , Reg. V. (Dears. & B. 675; 8 Cox C. C. 12) ii. 427 , Reg. u. (11 Mod. 59) ii. 263 , Rex V. (2 Deac. Crim. Law, 1687) ii. 986 V. S. (2 Tex. Ap. 460) i. 844 •». S. (2 Zab. 212) ii. 543 , S. V. (1 Houst. Crim. 371) i. 387 , S. V. (6 Jones, N. C. 505) ii. 680, 681 , S. V. (71 N. C. 263) i. 992, 1024, 1026 West Bend v. Mann (59 Wis. 69) ii. 1267, 1273 West Riding of Yorkshire, Rex v. (4 B. & Aid. 623) ii. 1281 , Rex V. (2 East, 342) i. 531 ; ii. 1273 , Rex V. (7 T. R. 467) i. 829; ii. 1285, 1286 Westbeer, Rex v. (2 Stra. 1133 ; 1 Leach, 12 ; 2 East P. C. 596) i. 569, 625,804; ii. 758, 770, 984 Westchester, P. w. ( 1 Par. Cr. 659) i. 172, 176, 178, 989, 1018 ; ii. 721 Westchester Judges, P. v. (2 Jolms. Cas. 118) - ii. 256 Western and Atlantic Rid. v. Fulton (4 Sneed, 589) i. 307 Western Insurgents (Wharton's State Trials, 102) ii. 1202 Westfall, S. 0. (49 Iowa, 328) i. 877 Westfield, S. v. (1 Bailey, 132) i. Ii85 Westlake, P. v. (62 Cal. 303) ii. 716 Westmark, Reg. v. (2 Moody & R. 805) ii. 1267 Weston's Case (3 Inst. 50, 135) i. Uo Weston i). C. ( 1 1 1 Pa. 251) i. 294, 633 a V. Lumley (33 Ind. 486) ii. 1020 Weston V. Sprague (54 Vt. 895) i. 464 V. S. (63 Ala. 155) i. 1021 , S. u. (9 Conn 527 ; 25 Am. D. 46) i. 207, 700 ; ii. 758, 882 Wetherall, S. v. (5 Harring. Del. 487) i. 1138 Wetherbee v. Johnson (14 Mass. 412) ii. 1022 Wetmorer. Tracy (14 Wend. 250; 28 Am. D. 525) i. 828 Wetzler v. S. (18 Ind. 35) ii. 966 B. S. (18 Ind. 416) ii. 954 Weyman v. P. (6 Thomp. & C. 696 ; 4 Hun, 511) ii. 812, 813 Whaley, P. v. (6 Cow. 061) i. 573 ; ii. 393, 395, 396 , S. t. (2 Harring. Del. 538) ii. 750, 756 Wharton v. P. (8 Bradw. 232) i. 842 , Rex !). (12 Mod. 510) i. 316, 531,823 V. S. (5 Coldw. 1 ; 94 Am. D. 214) i. 893 Wheatley v. Fowler (2 Lee, 876) i. 38 r «. Harris (4 Sneed, 4b8 ; 70 Am. D. 258) ii. 773 , Rex V. (1 W, Bl. 273) i. 582 ; ii. 146, 147 , S. V. (4 Lea, 2-30) i. 1090 V. Thorn (23 Missis. 62) i. 264, 266 Wheatly, Kex v. (2 Bur. 1125; 1 Ben. &H. Lead. Cas. 1) i. 582 ; ii. 145, 147, 204, 985 Wheaton v. Peters (8 Pet. 591) i. 194, 195 Wheeldon, Reg. v. (8 Car. & P. 747) ii. 99, 100 Wheeler, C. !.. (2 Mass. 172) i. 1014 ' V. Lynde (1 Allen, 402) ii. 527 V. Pounds (24 Ala. 472) ii. 181 , Reg. (.. (6 Mod. 187) i. 827 , Rex V. (7 Car. & P. 170) i. 699 , Rexy. (1 W. Bl. 311) ii. 269 !i. S. (34 Ohio St. 394 ; 32 Am. R. 372) i. 385 , S. V. (15 Rich. 362) i. 679 , S.v. (3 Vt. 344; 23 Am. D. 212) i. 569, 621, 806, 810 , S. V. (15 Vroom, 88) i. 1072 Wheeling, &o. Bridge, Pennsylvania V. (13 How. U. S. 518; 18 How. U. S. 421) i. 174,821; ii. 1273 Wheelock v. Archer (26 Vt. 380) i. 208 Whelden v. Chappel (8 R. L 2.30) ii. 958a Whiley, Rex v. (Russ. & Ry. 90) i. 572 ; ii. 583 Whipple, P V. (9 Cow. 707) i. 972, 975 , S. V. (57 Vt. 637) i. 1014 Whisenhurst, S. v. (2 Hawks, 458) ii. 1018, 1019 Whistler, Reg. v. (7 Mod. 129) i. 555 , Reg M. (11 Mod. 25; 2 Ld. Haym. 842) i. 648 Whitaker v. Cone (2 Johns. Cas. 68) ii. 137 V. English (1 Bay, 15) i. 681 V. Wisbey (9 Eng. L. & Eq. 457) i. 615 821 WHr INDEX TO THE CASES CITED. WIC Whitchuroli, Ex parte (6 Q. B. D. 545) i- 1079 Wliitcomb's Case (120 Mass. 118; 21 Am. E, 502) , ii. 248 Whitcomb, C. i;. ( 107 Mass. 486) ii. 467 V. Gilman (35 Vt. 297) ii 959 , S. V. (52 Iowa, 85) i. 311 Wliite, Ex parte (14 Pick. 90) i. 965 , In re (17 Fed. Rep. 723) i. 46 r. C. (4 Binn. 418) ii. 539 V. C. (1 S. & R. 139) ii. 745 V. C. (;9Va. 611) i. 965 , C. I'. (11 Cush. 483) ii. 839, 864 , O.K. (110 Mass, 407) ii. 32 , C. V. (123 Mass. 430) ii. 1140, 1142 a , C. V. (133 Ph. 1H2) ii. 1156 , C. «. (8 Pick. 453) ii. 1020 !). Fort (3 Hawks, 251) i. 267, 271, 970 V. Franklin Bank (22 Pick. 181) i.658 t>. Hass (32 Ala. 430 ; 70 Am. D. 548) ii. 576 V. MuBride (4 Bibb, 61) i. 44 V. Maxcy (64 Mo. 552) i. 844 V. P. (81 III. 333) i. 692 , P. V. (34 Cal. 183) i. 156, 178, 304 ; ii. 287 a, 605 , P. V. (22 Wend. 167) i. 797, 805 , Reg. V. (2 Car. & K. 404 ; 1 Den. C. C. 208) i. 584 ; ii. 151, 582 , Reg. ^. (8 Car. & P. 742) ii. 341, 345, 349, 353, 376 , Reg. V. (9 Car. & P. 282) i. 791 ; ii. 560, 563 , Reg. V. (9 Car. & P. 344) ii. 758, 843 , Reg. V. (20 Eng. L. & Eq. 585 ; Dears. 203; 3 Car. & .K. 363; 22 Law J. N. s M. C. 123 : 17 Jur. 536) i. 791 ; ii. 758, 798 , Reg. V. (1 Fost. & F. 665) ii. 1138 -^, Reg. r. (2 Fost. & F. 554) ii. 529 , Reg. V. (Law Rep. 1 C. C. 311 ; 12 Cox C. C. 83) i. 884 , Rex V. (1 Bur. 333) i. 531, 1138, U43 , Rex V. (I Camp. 359, n.) ii. i:>36 , Rex V. (4 Car. & P. 46) ii. 365, 368 , Rex!). (Moody & M. 271) ii. 1024, 1028 , Rex i>. (Russ. & Ry. 99) V. Ross (40 Ga. 339) V. Spettigue (13 M. & W. 603) V. S. (44 Ala. 409) V. S. (49 Ala. .344) V. S. (51 Ga. 285) V. S. (56 Ga 385) V. S. (42 Missis. 635) y. S. (13 Oliio St. 569) i. 635 i. 894 i. 268, 269 i. 3.36 i. 1021 ii. il9 ii. 395, 404 i. 910 i. 795 V. S. (1 Sm. & M. 149) ii. 1024, 1031 !). S. (11 Tex. 769) ii. 864 V. S. (13 Tex. 133) ii. 1104 V. S. (22 Tex. 608) i. 764 V. S. (7 Tex. Ap 374) i. 1029 n V. S. (9 Tex. Ap. .S!)0) i. 1058 c. S. (13 Tex. Ap 259) i. 730 822 Wliite V. S. (20 Wis. 233) ii. 863 , S. V. (7 Ire. 180) i. 819, 591 ; ii. 918. 920, 930 , S. « (80 La, An. 364) ii. 699 , S i.'. (T U. P. Charl. 123) ii. 243, 268 , S V (2 Tyler, 352) ii. 320 , S. V. (66 Wis. 343) ii. 367 a , Tex. V. (7 Wal. 700) i. 161 , U S. w. (5 Cranch C. C. 73) ii. 18 , U. S. I). (25 Fed. Rep. 716) ii. 594 , U. S. 11. (27 Fed. Rep. 200) il. 281 b White's Creek Turnpike v. S. (16 Lea, 24) ii. 1267 Whiteford v. C. (6 Rand. 721 ; 18 Am. D. 771) ii. 723, 728 Whitehead ... Reg. (7 Q. B. 582 ; 9 Jur. 594) i. 930 , Reg V. (2 Moody, 181 ; 9 Car. & P. 429) i. 615, 822 V. S. (4 Humph. 278) i. 667 Whitehouse, Reg. v. (6 Cox C. C. 38) ii. 198 Whiteley, Reg. v. (3 H. & N. 143) ii. 961 , Rex V. (1 Lewin, 173) ii. 717 Wliiteman, Reg. v. (Dears. 353; 23 Law J. N. s. M. C. 120 ; 18 Jur. 434 ; 25 Eng. L & Eq. 690) ii. 986 Whltener, S. v. (92 N. C. 798) ii. 986 , S. V. (93 N. C. 590) i. 140, 428 Whitesides v. Martin (7 Yerg. 384) i. 541; ii. 137, 139 1'. S. (11 Lea, 474) i. 772 Whitfield V. Longest (6 Ire. 268) i. 831 , Reg. V. (3 Car. & K. 121) i. 396 V. Southeastern Rid. (Ellis, B. & E. 115) - i. 420 Whithorne, Rex v. (3 Car. & P. 394) i. 632 ; ii. 652, 744 Whitler, C. v. (2 Brews. 388) ii. 607, 708 Wliitley's Case (1 Lewin, 123) i 758 Whitley v. S. (66 Ga. 656) ii. 1144 Whitman v. Spencer (2 R. I. 124) ii. 206 Whitmarsh, C, v. (4 Pielf.233) ii. 288, 605 Whitmore!) S (43 Ark. 271) i. 1014 Whitnash, Rex v. (7 B. & C. 596) ii. 954 Whitney v. McConnell (29 Mich. 12) ii. 857 V. S. (8 Misso 165) i. 400 Whittaker, Reg. v. (1 Den. C. C. 310) i. 630 V. S. (50 Wis. 518 ; 36 Am. R. 856) ii. 1123 Wliittem V. S. (36 Ind. 196) ii. 268, 269 Wliittemore, S. v. (50 N. H. 245) ii. 1028, 1028 Whitten v. S. (61 Missis. 717) i. 1033, 1034 Whittier, S. «. (21 Me. 341 ; 38 Am. D.272) i. 1017 Whittingham, Rex v. (2 Leach, 912) i. 262 ; ii. "O^. ., S. !i. (7 Vt. 390) ii. 1209, 1281 Whitton V. S. (37 Missis. 879) i. 2'.H , Whyte, Reg. v. (5 Cox C. C. 290) ii. WA , S. r. (2N(ilt &McC. 174) ii. 758,806 Wickershain <.. P. (1 Scam. 128) i 462 WIL INDEX TO THE CASES CITED. WIL ■Wickham v. Conkliu (8 Jolins. 220) ii. 127 , U. S. w. (1 VVasli. C. C. 31B) ii. 37 WickofE V. Humphrey (IJolins. 498) il. 1020, 1027 Wicks, Rex v. (Russ. & Ry. 149) ii. 562 691 V. S. (44 Ala. 398) i. 663 Wickwire v. S. (19 Conn. 477) ii. 253 Widdop, Reg. v. (Law Rep. 2 C. C. 3) i. 572 a Widdup, Reg. v. ( 12 Cox C. C. 251) i. 572 a Widenhouse, S. v. (71 N. C. 279) ii. 518, 1273 Wieners, S. v. (66 Mo. 13) ii. 728 Wier'8 Appeal (74 Pa. 230) i. 1097, 1098, 1142 Wigg, Reg. V. (2 Salk. 460 ; 2 Ld. Kaym. 1163) i. 244, 531 Wiggins V. Chicago (68 111. 372) i. 32 Wiggot, Rex V. (Comb. 205) i. 240 Wiggs, Rex V. (1 Leach, 378, n.) i. 887, 888 ; ii. 684, 709 Wightman, P. v. (43 Hun, 358 ; 104 N. Y. 598) ii. 1201 Wilcox V. Bowers (3d N. H. 372) ii. 892 V. Calloway (1 Wash. Va. 38) ii. 137 , Rex w. (Russ. &Ry. 50) ii. 574 , Rex V. (2 Salk. 458) i. 829, 903 1: Smith (5 Wend. 231 ; 21 Am. D. 213) i. 464 V. S. (3 Heisk. 110) ii. 885 u. S. (6 Lea, 571 ; 40 Am. R. 53) i. 1064 , S. u. (3 Yerg. 278; 24 Am. D. 56;)) i. 595; ii. 996 , U. S. V. (4 Blatch. 393) ii. 1197 V. Williamson (61 Missis. 310) i. 460 Wild's Case (2 Lewin, 214) i. 862, 875 Wild, Rex V. (1 Moody, 452) i. 370 Wilde i;.-C. (2 Met. 408) i. 930, 941, 964, 965; ii. 118, 487 , C. V. (5 Gray, 83; 66 Am. D. 350) ii. 816 AVildenhus, In re (28 Fed. Rep. 924) i. 130 Wilders, Rex v. (cited 2 Bur. 1128) ii. 147 Wildey, Rex v. (1 M. & S. 183) i. 1021, 1041 Wiles, S. 0. (26 Minn. 381) i. 10.57 Wiley, P. V. (3 Hill, N. Y. 194) i. 224, 678, 700; ii. 768, 767, 768, 785, 787, 1138 ■; Reg. V. (2 Den. 0. C. 37 ; 1 Eng. L. & Eq. 567) ii. 1139 Wilforth, S. V. (74 Mo. 528; 41 Am. R. 330) ii- 309 a Wilgus, C. V. (4 Pick. 177) i. 586 ; ii. 410, 433, 440 Wilhite ^.Roberts (4 Dana, 172) ii. 132, 140 Wilke, Ex parte (34 Tex. 155) ii. 763, 765 Wilkerson v. Allan (23 Grat. 10) i. 899, 909 V. Utah (99 U. S. 130) i. 947 Wilkes V. Dinsman (7 How. U. S. 89) i. 44, 459, 460, 1029; il. 37 Wilkes V. Huiigerford Market (2 Bing. N. C. 281) i. 265 , Rex V. (4 Bro. P. C. 360) i. 953 , Rex V. (1 Leach, 103; 2 East P. C. 746) i. 699, 791 Wilkie V. Brig St. Petre (Bee, 82) ii. 876 Wilkins v. Malone (14 Ind. 163) ii. 1262 , Reg. V. (Leigh & C. 89; 9 Cox C. C. 20) i. 491 , Rex V. (1 Leach, 520; 2 East P. C. 673) i. 683; ii. 812,822 Wilkinson's Case (1 Hale P. C. 508) ii. 795 Wilkinson, C. v. (16 Pick. 175; 26 Am. D. 651), i. 245, 531 ; ii. 1266, 1270, 1277 V. Cook (44 Missis. 867) i. 821 , P. V. (2 Utah, 158) i. 947 , Rex V. (Russ. & Ry. 470) 1. 342 ; ii. 758, 791 V. S. (10 Ind. 372) ii. 593 c. S. (69 Ind. 416 ; 26 Am. R. 84) i. 1060 Wilks, Rex v. (2 East P. C. 957) i. 572 Will, S. V. (1 Dev. & Bat. 121) i. 206, 207, 429 ; ii. 710 Willan, Rex v. (1 Leach, 495; 2 East P. C. 706) ii. 897 Willand, Ex parte (11 C. B. 544; 20 Eng. L. & Eq. 293) ii. 255 Willard v. Cambridge (3 Allen, 574) i. 265 , C. V. (22 Pick. 476) i. 226, 658, 761, 768 d Willet V. C. (13 Bush, 230) i. 368 Willey, P. V. (2 Par. Cr. 19) ii. 1048 William v. S. (18 Ga. 356) - i. 35 William Gray, The (1 Paine, 16) i. 287, 351, 821, 824 WiUiam Harris, The (1 Ware, 367) i. 122 WiUiams's Case (3 How. St. Tr. 368) ii. 1233 Williams v. Augusta (4 Ga. 509) i. 32, 531, 1100 V. Bennett (4 Ire. 122) ii. 139 0. BrufEy (96 U S. 176) i. 14 V. C. (2 Grat. 567 ; 44 Am. D. 403) i. 990, 998, 1033, 1041 V C. (78 Ky. 93) i. 1013, 1052 V. C (34 Pa. 178) ii. 240 , C. V. (2 Ashm. 69) ii. 728 , C. ■;. (3 Gray, 461) ii. 863 , C. V. (79 Ky. 42) ^ i. 805 , C. V. (9 Met. 273) ii. 785 V. Council (4 Jones, N. C. 206) ii. 137, 140 V. East India Co. (3 East, 192) i. 734, 1098 V. Germaine (7 B. & C. 468) i. 93 V. Hedley (8 East, 378) i. 688 ^^ V. Hogan (Meigs, 187) i. 541 ; ii. 137 V. Lunenburg (21 Pick. 75) i. 464 r. Lyons (8 Mod. 189) ii. 394 V. Mattliews (3 Cow. 252) ii. 1.S5 V. P. (84 111. 422) ii. 702 , P. V. (32 Cal. 280)' i. 30o, 874 , P. «. (35 Cal. 671) ii. 763, 766 823 WIL INDEX TO THE CASES CITED. WIL Williams, P. V. (43 Cal. 344) i. 409 , P. V. (60 Cal. 1) ii. 367 a , P. V. (4 Hill, N. Y. 9 ; 40 Am. D.268) i. 686; ii. 420, 433, 464 , P. V. (24 Mich. 156) i. 141 , Keg. V. (1 Car. & K. 196) i. 262 , Keg. ^. Car. & M. 259) i. 631, 648 ; ' ^ ii. 288 , Ke^. V. (8 Car. & P. 286) i. 261, 809; ii. 1122 , Reg. V. (6 Cox C. C. 49) ii. 785 , Reg. V. (1 Ben. C. C. 39) i. 435, 677, 756 ; ii. 740, 744 , Reg. V. (2 Den. C. C. 61; 4 Cox C. C. 356) ii. 560 , Reg. V. (10 Mod. 63; 1 Salk. 384) i. 361, 500, 1084 , Rex v. (3 Bur. 1317) ii. 973 , Rex V. (2 Camp. 506) ii. 62, 312, 314 , Rex V. (2 Camp. 646) i. 799; ii. 948 , Rex V. (6 Car. & P. 390) ii. 817 , Rex V. (6 Car. & P. 626) ii. 361 , Rex V. (7 Car. & P. 338) ii. 376 , Rex V. (7 Car. & P. 354) i. 438 ; ii. 466 , Rex V. (Comb. 18) i. 903 , Rex K. (1 D. & R. 197 ; 5 B. & Aid. 595) i. 256 , Rex V. (26 How. St. Tr. 654) i. 950; ii. 76 , Rex V. (1 Leacli, 114; 2 East P. C. 937) ii. 660 , Rex V. (1 Leacli, 529 ; 1 East P. C. 424) i. 340, 341 , Rex V. (Lofil. 759) i. 219, 221, 948 , Rex V. (4 Man. & R. 47) ; 9 B. & C. 549) ii. 495, 501, 514 , Rex V. (1 Moody, 107) i. 327 ; ii, '68, 797 , Rex V. (2 Shovf. 471) . ii. 917 V. S. (44 Ala. 41) i. 869 V. S. (44 Ala. 396) V. S. (52 Ala. 411) V. S. (68 Ala. 551) V. a. (77 Ala. 53) V. S. (81 Ala. 1; 133) V. S. (83 Ala. 16) V. S. (50 Ark. 511) V. S. (20 ria. 777) V. S. (46 Ga. 212) V. S. (51 Ga. 535) V. S. (69 Ga. 11) ■!). S. (3 Heisk. 376) ii 840 ii. 847 ii. 1032 i. 1061 60 Am. R. i. 63S (T ii. 310, 731 i. 384, 387 ii. 1117 ii. 103 ii. 603 i. 648 i. 306, 869 ; ii. 704 i. 648 ; ii. 741 i. 802, 304 ii. 812 ii. 795, 797 i. 534, 632, 658 ; V. S. (47Ind. 568) V. S. (48 Ind. 306) V. S. (49 Ind. 367) V. S. (63 Missis. 58) V. S. (9 Misso. 270) ii. 1163 V. S. (14 Ohio, 222 ; 45 Am. D. 536) i. 373,746; ii. 1117, 1131 V. S. (18 Ohio St. 46) i. 953 D. S. (12 Sm. &M. 58) i. 685, 686 824 Williams v. S. (2 Sneed, 160) ii. 390 V. S. (3 Sneed, 313) ii. 304 V. S. (34 Tex. 558) ii. 768 V. S. (41 Tex. 649) ii. 901, 90v? V. S. (2 Tex. Ap. 271) ii. 637 V, S. (11 Tex. Ap. 63) i. 934 V. S. (12 Tex. Ap. 240) ii. 1173 V. S. (13 Tex. Ap. 285) ii. 1201 V. S. (15 Tex. Ap. 617) ii. 697 V. S. (27 Tex. Ap. 258) i. 672 a , S. V. (5 Bax. 656) ii. 740, 743 , S. V. (10 Humph. 101) i. 793, 1061; ii. 888 , S. V. (4 Ind. 234 ; 58 Am. D. 627) ii. 1262 , S. V. (66 Iowa, 673) ii. 605 , S. V. (4 Ire. 400) i. 499 ; ii. 968 , S. V. (9 Ire. 140) ii. 758, 879, 880 , S. V. (12 Ire. 172) i. 237 , S. V. (34 La. An. 87) ii. 1191 , S. V. (35 La. An. 742) i. 464 , S. v. (26 Me. 561) i. 471 , S. V. (80 Me. 484) i. 468 a; ii. 904 , S. V. (6 Md. 82) i. 1021 , S. ». (19 Mo. 389) ii. 882 , S. V. (35 Mo. 229) i. 141 ; ii. 864 , S. V. (69 Mo. 110) ii. 728 , S. V. (77 Mo. 310) i. 946, 947 , S. ... (12 Mo. Ap. 415) i. 947 ; ii. 434 , S. V. (65 N. C. 398) i. 359, 362 , S. V. (75 N. C. 134) ii. 72 b , S. V. (90 N. C. 724 ; 47 Am. K. 541) ii. 104 , S. o. (1 Nott & McC. 26) i. 910, 911 , S. V. (2 Rich. 418 ; 46 Am. D. 741) i. 279 , S. V. (11 S. C. 288) i. 1144 , S. V. ( 13 S. C. 646) i. 96, 140 , S. V. (2 Speers, 26) ii.,255, 264, 270, 273 , S. V. (3 Stew. 454) i. 1039 , S. y. (2 Strob. 474) ii. 784 , S. V. (2 Tenn. 108) i. 640, 1122 , S. w. (1 Vroom, 102) i. 1094, 1112, 1114, 1120; ii. 967 , S. V. (5 Wis. 308; 68 Am. D. 66) i. 464 -- — «. Stokes (3 Johns. 161) i. 821 V. Stott (S Tyrw. 688 ; 1 Cromp. i M. 676) ii. 334, 337, 341 •— , U. S. V. (1 Clif. C. C. 5) i. 1003 ■, KJ. S. V. (2 Cranch C. C. 438) i. 857 , V. S. V. (14 Fed. Rep. 550) ii. 567, 567 a Williaipson's Case (26 Pa. 9; 67 Am. If. 874) ii. 262, 268 Williamson, C. v. (2 Ya. Cas. 211) i. 668 V. Ere«r (Law Rep. 9 C. P. 393) ii. 914 , Reg. V (1 Cox C. C. 97) i. 257 , Reg r <11 Cox C. C. 328) ii. 429 , Rex u. (8 B. & Aid. 682) ii. 972 , Rex t). (c Cnr. & P. 635) i. 9v7, 314 ; ji. 664 V. Sammovi" /3i AV fiyi ' ii. 12',' WIL INDEX TO THE CASES CITED. WIN Williamson w. S. (16 Ala. 431) i. 363 , S. !>. (1 Houst. Criin. 156) ii. 812 Williamsport Pas. Ry. u. Williams- port ( 120 Fa. 1 ) ii. 1267 Williford V. S. (23 Ga. 1) i. 1033 Willis V. C. (32 Grat. 929) i. 409 V. Owen (43 Tex. 41) i. 93 V. P. (32 N, Y. 715) i. 384 V. P. (5 Par, Or. 621) i. 384, 387, 392 , Reg. V. (12 Cox C. C. 164; 2 Eng. Rep. 218) ii. 1020 , Reg. V. ( Jebb, 48, n. ) i. 204 ,Reg. V. (Law Rep. 1 C. C. 363 ; 12 Cox C. C. 192) i. 961 , Rex u. (1 Moody, 375) ii. 872 , S. V. (7 Jones, N. C. 190) ii. 98 V. Warren (1 Hilton, 590) i. 500, 1079, 1146 ; ii. 943 «, Watson (4 Scam. 64) Ii. 137 Willraer, Reg. «. (15 Q, B. 50) i. 260 Willmett, Reg. v. (3 Cox C. C. 281) i. 304, 317 Willoughby, Rex v. (1 East P. C. 288) ii. 699 Wills 0. S. (74 Ala. 21) i. 328 ». S. (4 Blackfi 457) i. 794, 799 V. S. (3 Heisk. 141) L 159 Willson V. Black Bird Creek Marsh (2 Pet. 245) i. 174 , S. V. (28 Minn. 52) ii. 682 VVilner, S. «. (40 Wis. 304) i. 375 Wilson V. Bates (9 Sim. 54) ii. 270 V. C. (12 B. Monr. 2) i. 504, 782, 794, 1113, 1114, 1119 V. C. (3 Bush, 105) i. 1018 «. C. ('96 Pa. 66) u. 216 V. The Mary (Gilpin, 31) i. 291, 948 V. Middleton (2 Cal. 64) i. 266 0. P. (24 Mich. 410) ii. 742 u. P. (39 N. Y. 459) ii. 801 V. P. (4 Par. Cr. 619) ii 721 , P V. (9 Cal. 259) ii. 55 , R V. (64 111. 198) ii. 243, 267, 269 , P. «. (6 Johns. 320) il. 468, 538, 561, 571 , P. V. (3 Par. Cr. 199) i. 148 , Reg. V. (2 Car. & K. 527 ; 1 Den, C. C 284) i. 672 ; ii. 580, 598 , Reg. o. (8 Car. & P. HI) i 583 , ii. 198, 819 , Reg. V. (9 Car. & P. 27) ii. 349, 353, 361, 366, 856 , Reg. V. (Dears. & B. 558 ; 8 Cox C. C. 25) ii. 529 , Reg. V. (2 Moody, 52) ii. 1137 , Reg. V. (5 Q. B. D. 28 ; 14 Cox C. C. 378) i. 672 a , Rex V. (1 Leach, 286) ii- 291 , Rexw. (Russ. &Ry. 116) ii- 106 , Rex V. (4 T. R. 487) i- 960 , Rex V. (8 T. R. 367) ii 490, 500, 601 V. South Park Commissioners (70 111. 46) " S'^O !). S. (61 Ala. 1-51) ii. 110b Wilson V. S. (24 Conn. 57) 1. ■ V. S. (53 Ga. 205) v. S. (3 Heisk 278) • V. S. (28 Ind. 393) ■ V. S. (20 Ohio, 26) • V. S. (34 Ohio St.-199) • !). S. (5 Pike, 613) • V. S. (1 Port. 118) i. 224, 683, ii. 768, 785, 786, 787 1055, 1062 ; ii. 118 1. 780 11. 2 i. 947 i. 998 ii. 105 ii. 785 V. S. (16 Tex. 246) «. S. (25 Tex. 169) i. 1028 ii. 740 • V. S. (45 Tex. 76 ; 23 Am. R. 602) • V, S. (3 Tex. Ap. 63) ~ (4" ■ ""- u. 888 a. 1179 i. 736 ii. 701 ii. 1138 ii. 53 V. S. (4 Tex. Ap. 637) «. S. (6 Tex. Ap. 427) 0. S. (12 Tex. Ap. 481) 1.. S. (15Tex. Ap. 150) «, S. (18 Tex. Ap.270; 51 Am. R. 309) ii. 841 V. S. (20 Tex. Ap. 662) ii. 801 t>. S. (1 Wis. 184) , i, 618 ; ii. 299 , S. V. (30 Conn. 600) i. 744, 809 , S. V. (Coxe, 439 ; 1 Am. D. 216) i. 437, 659 ; ii. 97, 98, 110, 758, 794 , S. V. (3 McCord, 187) i. 679, 801 , S. 0. (42 Me. 9) ii. 1267, 1269, 1272 , S. V. (2 Mill, 135) i. 671 ; ii. 147 , S. 0. (3 Misso. 125) i. 537, 588 ; ii, 490, 504 , S. «. (59 N. H. 139) i. 780 , S. V. (67 N. C. 466) ii. 1179 a , S. V. (94 N. C. 839) ii. 505 , S. V. (94 N. C. 1015) ii. 1189 !).. Stewart (3 B. & S. 913) i. 1090 , U. S. V. (Bald. 78) i. 648 , U. S. V. (7 Pet. 15Q) i. 898, 902, 907 Wiltberger, U. S. v. (3 Wash. C, C. 615) i. 306, 536, 849, 850, 857, 867, 877 ; ii. 680, 704 . U. S. «. (5 Wheat, 76) i. 117, 176, 201 ; ii. 1235 Wilts, Reg. V. (6 Mod. 307 ; Holt, 3.39) i. 531 ; ii. 1267, 1269, 1281 Wiltshire v. (Yelv. 146) ii. 531 Wimberly, S. •>. (3 McCord, 190) i. 810 Winchcombe u. Winchester (Hob. 166) i. 909 Winchester, U. S. v. (2 McLean, 136) ii. 1023 Windsor, In re (10 Cox C. C. 118; 6 B. & S. 522) ii. 523, 586 , S. V. (5 Harring. Del. 612) i. 384 Winehart v. & (6 Ind. 30) i. 294 Winfield v. S. (3 Greene, Iowa, 3.39) ii. 40 Wing, C. V. (9 Pick. 1 ; 19 Am. D. 347) i. 549 Winffo, S. V. (89 Ind. 204) ' ii. 327, 328 Winn V. S. (11 Tex. Ap. 304) ii 840 Winship .'. P. (61 111. 296) ii. 268 Winslow V. Anderson (4 Mass 376) i. 32 V. Central Iowa Ry. (71 Iowa, 107) ii- 1^2 , P. V. (39 Mich. 606) ii. 458 825 woo INDEX TO THE CASES CITED. WOO Wmsor V, Reg, (Law Rep. 1 Q- B. 289 ; 7 B. & S. 490) i. 9S2, 991, 1033, 1034, 1041 , Reg. V. (10 Cox C. C. 276) i. 982, 991, 1033 Winston, Ex parte (52 Ala. 419) i. 1000 (Winter «. Dickerson (42 Ala. 92) i. 14 Winterbottom, Reg. v. (1 Den. C. C. 41 ; 2 Car. & K. 37 ; 1 Cox C. C. 164) u. 570 u Winters w. S. (9 Ind. 172) U 1190 Winthrop, S v. (43 Iowa, 519 ; 22 Am. R. 257) ii. 632 Wisconsin River Inipr. Co. v. Lyons (30 Wis. 61) ii. 1267, 1271 Wisdom, S. v. (84 Mo. 177) ii. 728 , S. V. (8 Port. 511) i. 653; ii. 758, 786, 789, 797, 806 Wise !>.Chaney (67 Iowa, 73) ii. 242 a V. Withers (3 Cranch, 331) i. 44, 460 Wiseman, S. v. (68 N. C. 203) i. 1032, 1035 Wisner v. Bardwell (38 Mieh. 278) i. 711 Witcliell, Rex o. (2 East P. C. 830) ii. 461, 470 Witlierby v. S. (39 Ala. 702) I 893 Witliers v. B\ickly (20 How. U. S. 84) i. 174 , Rex V. (1 East P. C. 295) i. 868 ; ii. 699 , Rex V. (3 T, R. 428) i. 948 ; ii. 918 , S. 0. (7 Bax. 16) i. 468 V. Steamboat El Paso (24 Mo 204) i. 302 Witt, Rex V. (1 Moody, 248) ii. 106 V. S. (9 Misso. 671) ii. 758, 811. 840, ' 851 Wixson V. P. (5 Par. Cr. 119) i. 310, 651, 653 Woart V. Winnicli (3 N. H. 473; 14 Am. D. 384) i. 279 Woluot w. Knight (6 Mass. 418) i. 307 ; ii. 136 Wolcott II. Whitcomb (40 Vt 40) ii. 1266 Wolf i>. S. (41 Ala 412) i. 789, 809 ; ii. 886 V. S. (14 Tex. Ap. 210) ii 758, 840 Wolff, S. V. (34 La. An. 1153) ii 318a Wolfington V. S. (53 Ind. 343) u 882 Wolfstein v. P. (6 Hun, 121) ii 812 Wollaston, Reg. v. (12 Cox C. C. 180; 2Eng. Rep. 234) Wolstenholme, Reg. «. (11 Cox C 313) Wolverton v. C. (75 Va. 909) ii 35 C- ii. 874 i 1029; ii. 763. 767 i. 777 1. 1089 Womack v. S. (7 Coldw. 508) Wong V. Astoria (13 Or^ 538) Wong Ah Teak, P. o. (63 Cal. 544) i, 865 Woneon w. Say ward (13 Pick 402; 23Am. D. 691) ' ii. 758, 780 Wood, C. V. (11 Gray, 85) i. 658 , C. V. (97 Mass 225) i. 1084, 1086 V. Fitzgerald (3 Or. 668) i. 916 — r- V. McGuire (21 Ga 576) ii 137 — '— V. Mears (12 Ind. 515 ; 74 Am. D. 222) li. 1274 826 Wood V. P. (53 N. Y. 511) i. 963 V. P. (59 N. Y. 117) ii. 1030, 1032 , P. V. (2 Par. Cr. 22) ii. 824 , Reg. V. (1 Fost. & F. 497) ii. 1138 , Reg. V. (3 New Sess. Cas, 581) ii 758, 838, 880 , Rex V. (2 East P. C 732) ii. 1173 , Rex V. (2 Russ. Crimes, 3d Eng. ed. 632) ii. 1020 V. S. (34, Ark. 341 ; 36 Am. R 13) 1. 411 ; ii. 840 V. S. (46 Ga. 322) u. 103 V. S. (48 Ga. 192, 16 Am. R. 664) i. 794 V. S. (11 Tex. Ap 318) ii. 305 V. S. (27 Tex Ap 393) i. 735 V. S. (18 Vroom, 180) ii. 198 !). S. (18 Vroom, 461) ii. 171 , S.v. (1 Bay, 351) li, 40, 41 , S. <-. (llOInd. 82) ii. 1026 , S. c (17 Iowa, 18) ii. 1043 . S. «. (1 Mill,29) i. 679, 799. 1003 V. U. S. (16 Pet. 342) i. 821 , U, S. I). (2 Gallis. 361) i. 4(i4 V. Wood (2 Cow. 819) i. 981 Wood Ditton, Reg. •,: (18 Law J. N. s. M. C 218) i 2-10 Woodard v. S. (9 Tex. Ap. 412) ii. 896 Woodbury v. S. (69 Ala. 242; 44 Am. R. 515) 11. 440 Wooderd, S. v. (20 Iowa, 641) ii. 673, 698 Woodfall, Reg. v. (6 Bur. 2661) i. Vi98 , Rex y. (Lofft, 776) i. 734 ; ii. 925, 929, 942 Woodfin, S. V. (6 Ire. 199; 42 Am. D. 161) ii. 243, 264 Woodhall, Beg. v. (12 Cox C. C. 240 ; 4 Eng. Rep. 529) i. 772, 804 ; ii. 65 Woodin V. P. (1 Par. Cr. 464) ii. 1122 Woodman v. Kilbourn Manuf. Co. (1 Abb. U. S. 168) ii. 1272 u. Pitman (79 Me. 456 ; 1 Am. St. 342) ii.. 765, 1267 , Reg. y. (14CoxC. C. 179) ii. 419 Woodro,w, Rex v. (2 T. R. 731) i. 246 Woodruff, Ex parte (4 Pike, 630) ii. 266, 269 V. S. (3 Pike, 285) i. 279 , S. u. (2 Day, 504 : 2 Am, D, 122) i. 10,33 V. Tilly (25 Ark 309) i. 14 Woodrun, C. v. (4 Pa- Law Jour Rep. 207) ii. 478 Woods, C. V. (10 Gray, 477) ii. 523, 673 , C V. (7 Law Reporter, 58) li. 187 V. P. (55 N. Y. 515 ; 14 Am. R. 309) ii. 1119 V. S. (3 Tex. Ap. 204) ii. 748 V. Woods (2 Curt. Eo. 516) i. 38 Woodside, S. v. (7 Ire. 296) ii. 978 Woodward's Case (cited 2 Leach, 782) ,. 684 Woodward, C. v. (102 Mass. 166) i. llo , 0. (•. (Thacher Orim. Cas. 63) i. 667 , P V. (45 Cal. 203) • i. 633 WEI INDEX TO THE CASES CITED. WYA Woodward, P. v. (31 Hun, 57) ii 847 , Reg. V. (8 Car. & P. 561) , i atsa , Iteg. V. (Leigh & C. 122 ; 9 Cox C- C. 95) u, 1139^ 1142 Reg. 0. (11 Mod. 137) i. 67a; ii. 407, 1173 V. Squires (39 Iowa, 435) i 32 u. S. ( 103 Ind. ,127) ii. 359 a , S. «. (1 Houst. Crim 455) i 875 , S. V. (23 Vt. 92) 11. I2b7 , S. v. (25 Vt. B16) 1, 785 Woodwortli V. Janes (2 Jolins Cas. 417) ii 136 V. Rogers (3 Woodb & M. 135) ii, 256 V. Spring (4 Allen, 321) i 885 V. S. (26 Ohio St. 196) i. 465 V. S. (20 Tex. Ap. 375) ii. 190 Woody, P. u. (48 Cal. 80) i. 735 ■ ii. llbl V. S. (16 Tex. Ap. 262) ii. 930 Woodyard v. S. (19 Tex. Ap, 616) li. 986 Wooldridge v. Lucas (7 B. Monr. 49) i. 616, 831 Woolery, S. u. (29 Mo. 300) i. 903 Wooliey, In re ( 11 Bush, 95) i. 895 , Reg. 0. (1 Den. C. C. 559; 1 Eng. L. & Eq. 5.37 ; 4 New Sess. Cas. 341; Temp, & M. 279) ii, 415, 420, 434, 442, 464 ' Woolmer, Rex v. (1 Moody, 334) i. 305 , ii, 652 Woolston, Rex «. (2 Stra. 8-34) ii. 74 Woolverton, S. v. (8 Blaclcf. 452) ii, 1040 Woolwich V. Robertson (6 Q. B, D. 654) ii 1190 Wooten u. Miller (7 Sin. & M, 380) i. 110 Wootton u. Dawkins (2 C. B. n. s, 412) i. 855 Worcester, C y. (3 Pick. 462) i. 540 V. Georgia (6 Pet. 515) i. 154 Word V. S. (12 Tex. Ap 1*74) 11 1132 Work. C. V. (3 Pittsb. 493) ii. 580 Works 0. Junction Rid, (5 McLean, 425) i. 341 ; iL 1272 Worland v. S. (82 Ind. 49) ii. 268 Worley, Reg, u. (3 Cox C. C. 536) iL 10.32, 1038, 1039 o w S (11 Humph 172) i. 429 Wormall, Rex v. (2 Rol. 120) ii. 715 Worrall, Rex v. (7 Car. & P. 616) ii. 783 , Rex V. (Skin. 108) i. 692 , U. S. V. (2 Dall. 384) i. 199, 767 ; li. 88, 1201 Worrell, Rex v. (Trem. P. C. 106) ii. 150 Wortliam v. C. (6 Rand. 669) i, 625, 1014 V. S. (70 Ga 336) i. 869 Worthington v. S. (68 Md. 403 ; 42 Ajn, R. 338) i 138, 140, 141 Wortley, Reg. v. (1 Den. C. C. 162; ii. 763 , Keg. V. (2 Den. C. C. 333; 15 Jur. 1137) Wray, Ex parte (30 Missis. 673) Wren v. C. (25 Grat. 789) V. C. (26 Grat. 952) Wright, In re (6 Dowl. & L. 391) ii. .376 ii. 681, 95, 717 i. 694 i. 692 ii. 270 Wright, In re (1 Exch 658) ii. 2&t 0. C. (33 Grat, 880) ii. 72d «, C. (75 Va. 914) i 1033; ii. 728 , C. B. (1 Cush 46) ii. 936 V. Lindsay (20 Ala. 428) ii. 768, 8a3 V. London Gen. Dm. Co. (2 Q. B. D. 271) i, 266 u. Meek (3 Greene, Iowa, 472) iL 131 Moore (38 Ala. 593 ; 82 Am. D. 731) 0. P. ( Breese, 66) , P. V. (45 CaL 260) , P. o. (38 Mich. 744) V. Rainsear (1 Sid. 336) (I. Ramscot (1 Saund. 84) i, 1139 ii 147 ii 40 1. 358 i, 1080 1080 , il. 773 iL 198 1. 731 V. Reg. (14 Q. B. 148) , Reg. V. (4 Fost. & F. 967) , Respublica «. (1 Yeates, 205) iL 1024 , Rex f. (3 B. & Ad, 681) iL 1267 , Rex!;. (1 Bur. 543) i 237 , Rex u. (Car. Crira. Law, 3d ed. 278 ; stated 9 Car. & P. 554, n ) 11. 796, 841 , Rex u. (2 Chit. 162) L 256 ; ii. 9l8 , Rex V. (1 East P. C. 396 ; 1 Hale P. C, 412 ; Co, Lit. 127 u) i. 259 , Rex V. (1 Sid: 148 ; T. Raym. 74) ii. 1028 , Rex u. (8 T. R. 293) ii. 917 V. S. (79 Ala. 262) ii. 500 V. S. (4 Humph. 194) L 259, 260 , iL 1119, 1125 V. S. (5 Ind. 290; 61 Am. I). 90) i. 1014, 1016, 1031, 1033, 1035, 1037 1041, 1059 V. S. (5 Ind 527) i 804, 998, 1069 V. S. (17 Tex. Ap. 152) i. 1053 i: S. (18 Tex. Ap. 358) i. 207 r. S. (5 Yerg. 154 ; '26 Am I) 268) i. 437, 698, 700 • ii 768, 799, 1140 «. S. (9 Yerg. 342) i 429 ; iL 740 S. «. (41 Ark. 410; 48 Am. R. 43) ii. 309 , S. V. (3 Brev. 421 ; 2 Tread, 517) i. 992, 1009 , S. i;. (52 Ind 307) iL 72 c , S. a. (4 Jones, N. C, , S. V. (6 Jones, N. C .,. Wilson (1 Ld. Raym. 739) V. Wrainscott (1 Lev. 216) V. Wranscot (2 Keb. 237) Wrightson, Reg. v. (11 Mod. 166) ,25) i 658 i, 1078 ii, 748 i. 1080 i. 1080 \. 470 ; ii. 946 Wroe V. S. (8 Md. 416) i. 1079 ; ii. 1273 V. S. (20 Ohio St. 460) i. 795, 797 Wroughton, Rex v. (3 Bur. 1683) i. 542 Wusnig «. S. (33 Tex. 651) i. 368 Wyat, Reg. v. (1 Salk. 380) i. 240, 468 a , ii, 978 Wyatt, C. V. (6 Rand. 694) i. 943, 947 , Reg. u. (2 Ld. Raym. 1189) i. 240, 468 a , iL 978 , Rex V. (Russ. & Ry. 230) i. 951, 952 u. S. (2 Swan, Tenn. 394) ii. 1)22 827 YEW INDEX TO THE CASES CITED. ZUM Wyatt S. V. (2 Hayw. 56) ii. 1020 Wyukoff, S. u. (2 Vroom, 65) i. 892 Wyer, Rex u. (1 Uacli, 480; 2 East 1'. C. 753; 2X. K 77) i 622,699 Wykes, Rex v. (Andr 238) i. 462; ii. 973 Wyld V. Cookmau (Cro. Eliz. 492) i. 462 ; ' iL 1020, 1046 Wyman, C. v. (12 Cush. 237) i. 279 ; ii. 18 -— -, C. V. (8 Met. 247) ii 337, 360, 375 v. S. (13 Wis. 663) ii. 1273 Wymberly, S. «. (40 La. An. 460) li 1197 a Wynkoop v. Wynkoop (42 Pa. 293; 82 Am. D. 606) ii. 1188 Wynn, Reg- v. (1 Den. C. C. 365; Temp. & M. 32 ; 2 Car. & K. 859 ; 3 New Sess. Cas. 414 ; 13 Jur. 107 j 18 Law J. N. 8. M, C. 61) 1. 794 ; ii. 758, 786, 843, 904 , U. S. u. (9 Fed. Rep 886) i. 617 a Wynne, Rex .;. (1 Leaeh, 413; 2 East P. C. 664) ii. 758, 838, 879, 882 Wyrral's Case (5 Co, 49 6) i. 908 Wyvill, Rex o. (7 Mod. 286) i. 537 ; ii. 604, 1149 Yancey, S. v. (74 N. C. 244) i. 875 Yancy, C. v. (2 Duv. 375) ii. 743 , S. V. (1 Car. Law Repos. 619) ii. 262, 204 ,-S. «. (1 Tread. 241) i. 667 Yanta, S. i,. (71 Wis. 669) i. 803 Yarberry, Territory v. (2 New Mex. 391) i. 648 Yarborougli, S. v. (70 N. C. 260) ii. 606 a Yarbrongh, Ex parte (110 U. S. 651) ii. 238 , S. ». (1 Hawks, 78). I 843, 1010, 1014; ii. 713 Yarrell, S. v. (12 Ire. 130) ii 1273 Yarrington, Reg. v. (1 Salk. 406) ii. 529 Yates, Ex parte (9 Bing. 455) ii. 270 -•.^ !;. Lansing (4 Johns. 317 ; 5 Johns. 282 ; 6 Jolins. 337 ; 9 Johns. 395 ; 6 Am. D. 290) i. 462 ; ii. 243, 256, 268 V. Milwaukee (10 Wal. 497) i. 1080 V. P. (32 N. t. 609) 1. 303, 305 , ii. 699 , Reg. V. (Car. & M. 132; 5 Jur. 636) ii 1031, 1038 , Rex ». (1 Moody, 170; Car. Crim. Law, 273, 333) ii. 785, 786 «. Russell (17 Johns. 461) ii. 256 V. Warrenton (84 Va. 337; 10 Am. St. 860) ii. 1267 Yeadon, Reg. v. (Leigh & C. 81 ; 9 Cox C. C. 91) i. 794 Yeatman, Ex parte (4 Dowl. P. C. 304 ; 1 Har. & W. 610) ii. 132 Yeaton, S', v. (53 Me. 126) ii. 308 Yeazel v. Alexander (68 111. 254) i. 492 Yellow Sun, U. S. b. (1 Dil. 271) i. 154 Ye Wan, Territory v. (2 Mont. 478) i. 35 828 Yoe u. P. (49 111. 410) i 670 Yoes 0. S. (4 Eng. 42) i. 206 ; li 37 Yolo V. Sacramento (36 Cal. 193) i- 265 Yong'B Case (4 Co. 40 a) i. 328; ii. 654 Yonoski u. S. (79 Ind. 393;- 41 Am. R. 614) 11 959 York, Reg. v. (1 Den. C. C. 835^ Temp. & M. 20) ii. 841 , Reg. V. (12 Jur. 1078) li. 758, 882 , Rex 0. (6 T. R. 490) i. 507 , S. V. (5 Barring. Del. 493) ii. 841 , S. V. (70 N. C. 66) u. 1149 Yorke, Reg. u. (2 Car. & K. 841) n. 8-tl Youmans, S. v. (6 Ind. 280) i. 911 Young's Case (2 East, 14) u. 85 (cited 2 T. R. 734) ii. 228 Young V. C. (8 Bush, 366) J. 648 , C. r. (9 Gray, 6) ii 349 V. Governor (11 Humph, 147) ii. 1262 V. Kimberland (2 Litt. 223) ii. 140 V. McCampbell (6 J. J. Mar. 490) . 11 140 , P. V. (31 Cal, 5Q3) ii. 1019 , Reg. 0. (8 Car. & P. 644) i. 259, 632, 654 ; ii. 311, 711, 744 , Reg. V. (10 Cox C. C. 371) i. 260 ; ii. 657 ii. 1122 2 ii. 904 P. . 423, 446 i. 208 a , Reg. -. (14 Cox C. C, 114) , Reg. V. (1 Den. C. C, 194; Car. & K. 466) V. Rex (3 T; R 98 ; 2 East C. 828) i. 633 ; it V. S. (82 Ga. 752) y. S. (11 Humph. 200) i. 866; ii. 697 V. S. (6 Oluo, 435) i. 35 , S. V. (46 N. H. 266 ; 212) !8Am. D ii. 529, 585, 586 ii. 640 , S. V. (47 N. H. 402) , S. V. (76 N. C. 268) ii. 468 , S. V. (8 Vi-oom, 184) li. 209 V. U. S. (97 U. S. 39) i. 898 , U. S. ti. (25 Fed. Rep. 710) 1. 884 Young Ah Gow, Ex parte (73 Cal. 438) i. 963 Young Men's, &c. Society, P. v, (66 Barb. 357) ii. 954 Younger, Rex v. (5 T. R. 449) ii. 958 y. S. (2 W. Va. 579 ; 98 Am. D. 791)' i. 998 , S. V. (1 Dev. 357 ; 17 Am. D. 571) ii. 176, 198, 201, 206 Yslas, P. V. (27 Cal. 630) n. 23, 31, 82 YundtB. P. (65111. 372) ii. 667 Zeibart, S. v. (40 Iowa, 169) i. 305 Zellers, S. v. (2 Halst. 220) i. 536, 857, 858, 862, 875 ; ii. 706 Zink V. P, (16 Hun, 896) ii. 813 V. P. (77 N. Y. 114; 38 Am. R. 689) ii 800 Zulueta, Reg. v. (1 Car. & K. 215) i. 121, 664 Zumbunson, S. v. (86 Mo. Ill) ii. 813 INDEX OF SUBJECTS TO THIS VOLUME. Note. — This ludex is condensed from the volume-one part of the Index to both volumes at the end of Volume II. It is here inserted for handy reference, and espe- cially for the purchasers of only this volume. The figures denote the sections. Abandoning phild, 883, 884 ; whether assault, 884(1). Abandonment of Dependent Per- son, 557. Abandonment of Purpose, in at- tempt, 732. Abatable and Indictable nuisance, 1073. Abatable Nuisance, 1079-1082; fur- ther of, who abate, 828, 829. Abatement, by United States, of bridges, 174 ; of filthy houses, 490 (2) ; threatened nuisance, 823 (2) ; waiving matter in, 997 (5) ; order of, for nuisance, 1079 (1 ) ; summary steps, equity, voluntary, agent, 1079 (2-5). Abduction, 555. Abettor at Fact, is second-degree prin- cipal, 648 (4). Abortion, homicide in, 328 ; crime, and limits of, 509 ; adaptation of means, 741 ; thing administered in, 769'(4). Abroad, injuries to subjects, to foreign- ers, 121 ; power of States over citizens while, 152, 153. Absentee Act, as to wife, 365 (2). Abstract Doctrine, juries not charged with, 379 (2). Abuse of family, 538 (3). Abusive Words, 538 (3). Accept (ifBce, refusal to, 458. Acceptance of pardon, 907 (1, 3, 4). Accessorial, compounding as, 710 (3). Accessory, Accessories, full, 662- 671; crime out of State, 111 et seq.; magnitude of crime, 226 ; to one arson, by instigating another, 329 (2) ; whether by resisting arrest, 465 (2) ; term only in felony, 617 a ; by enticing one to place to be murdered, 635 (3) ; principal of second degree formerly, 648 (4); dis- tinguished from principal, 649-654 ; not by making part of forgery, 650 (2) ; is felony, 673 (2), 700a,- to one person, proof of more, 792 ; on indictment as principal, 803 (2). Accessory to Accessory, before fact, 677 ; after, before, 698 (1). Accessory after Fact, in felony, ftfll, 692-700 a ; treason, full, 701-704 ; mis- demeanor, full, 705-708; wife not, by harboring husband, 365 (1) ; obstructing arrest, 465 (2) ; who is, 604 (7) ; joining after offence committed, 642 (2) Accessory before and after, one may be both, 664 (2). Accessory before Fact, in felony, full, 672-680; treason, full, 681-684; misdemeanor, full, '685-689 ; to felony abroad, HI ; who is, 604 (6) ; in felony by agent, 651 ; in high treason, 682 (1) ; by counselling to felony, 772 (2). Accessory to One Person, proof as to more, 792. Accessory a Principal, statutes mak- ing, 670 (1). Accessory and Principal, one may be both, 664 (1). Accident, preventing forfeiture in rem, 824 (3). Accidental Felony, after breach and entry, 736 (2). Acquiring and Retaining Property, offences against, full, 565-590. 829 ADU INDEX OP SUBJECTS TO THIS VOLUME. ALL Acquittal, on erroneous indictment, 1021 (2). Acquittal through Fraud, as to new trial, jeopardy, 1009. Acquittal of One joint defendant, 800. Act, magnitude of, in crime, full, 223- 227 ; the, whicii combining with evil in- tent constitutes crime, full (c. 30-41 ), 430-597 Uj specially of the, in attempt, full, 737-769 ; further of the kind of, full, 765, 766; solicitations, full, 767- 768 d ; further of adaptation of means to end, full, 769 ; required in every common-law crime, 204 ; must concur with intent, 2.04-208,' 287 ; whether, in time, 207, 642 ; less as intent is greater, 226, 227, 760, 768, 768 a ; producing unintended result, 323-336, 397 ; re- sulting in unintended good, 325 ; meas- ured by result, 327 ; conspiracy an, 592 (1); what, of accessory before, 675 (2) ; ill attempt, 729 (2, 3) ; whether, from one, many offences, 778, 782, 793. Act Encouraging, while crime is com- mitted, 633. Act and Evil Intent, must combine, full, 204-208 a, 430 ; in attempt, full, 770, 771. Acting together, in misdemeanor, 656 (2)., Action, private, for public wrong, 235 (1,2), 237 (1), 238. Actionable and Indictable, nuisance as both, 1074 (1). Adaptability of Means, in attempt, ' 738-758, 769. Adjudged Cases, 377-379 ; on constitu- tional questions, 1012 (2). Adjudged Laiv, 215. Administering unwholesome things, 491 (1, 2). Administering Poison, attempts by, 741, note, 756, 758 (3). Admiralty, over what is stolen on sea and carried to land, 141. Admiralty Jurisdiction, our, 173. Admiralty Offences, against United States, 201, note. Adult Pupil, whether chastise, 886 (4). Adulterated Milk, mistake of fact in selling, 303 a, note, par. 3. Adultery, under ecclesiastical law, 38 ; common law, 38, 39, 501 ; consent to, 261 (2) ; by marrying when consort supposed dead, 303 a, note, par. 18 ; in- citing to, as attempt, 767 (2), 768 (2J ; 830 on indictment for, convictioii of fornica- tion, 795 ; not disqualifies witness, 974. Advantages at Trial of misdemeanor, 804 (3), 805-807. Adverse Possession, conveyances of laud in, 541 (2). Advertising Letters, by postmaster, 237 (1), note. Advising Pardon, practice of,»923 (2). Advising to Suicide, 652. Advocate, duty of, to defend criminals, 376 (4), note, par. 12. Ai&davit, false, 468 (4) ; in aggravation or mitigation, 950 ; of attainted party in own cause, 973. Affray, 535 ( 1 ) ; countenancing, by pre- sence, 658 (4) ; suppressing, 849 (5). " Aforethought," in " malice afore- thought," 429 (2). After Fact, assisting another, full, 690- 708. Age, for crime, full, 367-373 ; mistaking, - in seduction, 327, note. Agent, crime in foreign country by, 110, note ; foreign government doing hostile things here by, 132, 133,153; carelessly selecting, criminal, 218; principal's com- mand not justifies crime of, 355 (1) ; act by, same as per.sonal, 564 (2), 631, 673 (2) ; committing crime by, 629 (1), 631 ; when absent, 651 , selling liquor, 658 (3); becoming accessory by, 677-, com- mitting offence for principal, 688 (2), 892 (2) ; in fault while owner not, as to forfeiture, 824 (3) ; who is, to accept pardon, 907 (1). Aggravated Assaults, 548 (2). Aggravated Larcenies, 566 (2-5). Aggravation and Mitigation, matter in, at sentence, 948-950. Aggravations of Crimes, 600, 601. Aggressor, when one may take life of, full, 849-859 ; caution, 846. Agreed End, plan departed from, 638. Agreement (see Contract) to pay pri- vate damage for public wrong, 714 (2). Aid Government, duty to, 457 (1). Aiders in Crime, each full pennlty, 954, 955. Ale-house, 504 (2), 505 (1, 2), 1113- 1117. Alexandria, retrocession of, 203, note. Alien, condition against attempt to, 823 (2)- Alien Enemy, killing, 134. Allegation, as to knowledge of fact, 302 ARR INDEX OP SUBJECTS TO THIS VOLUME. AS3 (4) ; necessity varying form of, 354 (3) ; inadequate, on liability o£ otKcer, 463, note, par. 3 , no conviction for what is not in, 794 ; or without, 803, 809. Allegiance, right to change, calling home, 512 (2) ; both to State and United States, 988. Alter or Repair, ordinance forbidding to, wooden building, U51 (3). Altering Instrument, before execution, as forgery, 584. Alternative Clauses of Statute, how indictment on, 799 (4). Ambassador. (See Embassador.) Amendment of Constitution, 1012 (2). Amends, making, as to punishment, 713 (2), 714 (1) ; no compounding under guise of, 714 (1 ) Amnesty, 898 (3) , by whom, 898 (3), 900; authorities concerning, 904, note. Amnesty Statute, as to acceptance, 907 (3) i interpretation, 908 (2). " And," in statute, 941. Anger, in common scold, 1103 (1). Animal, Animals, what protection from law to, full, 594-597 a ; under statutes, 516 (2). Antagonisms of Evil, good from, 250- 252. Apostasy, 497 (2). Apparent Adaptation, of means to end, in attempt, full, 738-758, 769. Appeal, whetlier State, 1024; prose- cutor, 1024-1027 ; defendant, 1041. Appeal from Jury, pardon not an, 924 (!)■ Appearances, acting from, 303 (2, 3) ; in self-defence, 874 (1). Appetite, duty to control, 387 (3). Apprehension of Harm, taking life from, 872. Apprentice, wife's neglect of, 364 (3) ; by neglect injuring, 557 ; enticing away, kidnapping, 582 (2) ; whether master chastise, 837 (2, 4). Apprenticeship, 508. Approbation of crime in course of com- mission, 633. Armed, creating terror by going about, 540 (2). Arms of Sea, 105, 146. Army and Navy, foreign, in our coun- try, 130. Arrest, on. high seas, foreign soil, 120, 135 j of embassador, &c., 126, 127 ; keep prisoner after, 240 (3) ; of one as drunk when not, 303 a, note, par. 5 , ob- structing or resisting, 465 (2, 3), declin- ing to assist in, 469 (2) ; resisting, for joint offence, 634 (4), 637 (3); homi- cides and attempts in resisting, 736 (4) ; in castle, 858 ; how oppose unlawful, 868 (2). Arrest of Judgment, effect of, on new proceedings, 998-1000 , on prayer of State, 1022. Arsenals, within States, 159. Arson, what wasting of wood in, 224 (2) ; by burning out-house, 318 (3) ; of house not meant, 329 (2) ; no degrees in> what intent, 334 (2, 3); burning not meant, 334 (3) ; in attempt to steal rum, 3^6 ; very young children hung for, 371 ; not of one's own property, 514 ; defined at common law, 569 ; extended by statutes, 564 (3) ; not of- fence to the property, lessee burning, 577 (3); attempts to commit, 765 (3); re- sulting in homicide, 781 (2) ; includes homicide, bars murder, 1058 (1). Arson and Murder, in one transaction, 781 (2). Articles of War, 50. Artifice, detecting wrong-doer by, 262, 263. Asportation, change of rule of, ex post facto, 281 a. Assassination, solicitation to, 768 a (2). Assault, on one at his request, 260 (3) ; distinguished from rape, as to consent, 261 (2;-;' through mistake of fact, 301 (4) i on foreign minister, 334 (4) ; with intent to murder, drunkenness, 413 and note; by corporation, 422(3); without fear, in robbery, 438 (2) ; on officer de facto, 464 (5) ; on official persons, 470 (2) ; defined, included in battery, 548 (1); aggravated, 548 (2); by noise, 549 ; as breach of peace, 550 ; with in- tent to murder, to rob, &c., 553 ; one of two in, committing mayhem, 635 f2); to rescue, restrained by fear, 639 ; to kill, attempted murder or manslaugh- ter, 736 (4) ; to rape, boy under fourteen, 746 (2) ; element in homicide, 780 (3); whether same act is, and rape or mur- der, 788 (1); conviction of, on indict- ment for riot, 795 ; indictment for aggravated, conviction less, 795 ; of battery, 803 (2) ; how oppose, 843 (2) ; how one expecting, should conduct, 844; how defend against murderous, 831 ATT INDEX OF SUBJECTS TO THIS VOLUME. BAT 849 (6), 850 (4) ; not murderous, 850 ( 1 1 ; iu defence of property, 861 ; of person, 867 ; words not justify, 872, 873 (2) ; conviction for, iars what, 1058 (3). Assault and Battery, are both civil and criminal, 265 (J ) ; by mutual fight- ing, 260 (3), note; in fast driving con- trary to ordinance, 336 ; by unwholesome food, 491 (2) ; by fighting, 535 ; pro- curer of, principal, 686 ; conviction on charge of manslaughter or rape, 808 (2) ; in defence of property, 861 (2), 875 ; in excessive chastisement, 881 (2) ; in neglecting child, 883 ; on pupil, 886 (2) ; on apprentice, 887 (4) ; on wife, 891 (3) j jeopardy for, death after, 1059 ; same blow on two men, 1061 ,(1). Assault to commit Felony, 737 (2j, note. Assault to kill, conviction of less, 795. Assault on Marshal, against both State and United States, 988. Assault on Officer, 470 (2). Assault to ravish, money by, 329 (1). Assault to rob one with no money, 744 (2). Assembly Lawful, made unlawful, 634 (I)- Assembly Unlawful, crime by one in, 634 (2). Assist, one's right to, another in de- fence, 877. Assist Officer, refusing to, 469 (1). Assistance, what, makes accessory after, 695-698. Assisting officer de facto, 464 (7). Attaching of Jeopardy, 1013-1019. Attacked in Castle, not retreat, 859 (3). Attainder, reversal of erroneous, dis- charges accessory, 668 (3) , defined, and consequences, 967. Attainder on Conviction, and its for- feitures, full, 967-971 a. Attempt, Attempts, full, 723-772 a; combining with the intent, there must be act, 204-206 ; to violate statute, 237 (2) i to do one wrong, resulting in another, 336 ; intoxication as defence, 413; what, and nature of, 434, 435 ; as substantive offence, 437 ; to do bodily harm, 441 ; to bribe, prevent witnesses, procure perjury, 468 ; counterfeiting coin as, 479 ; to commit sodoiby, divorce for, 503 (2) ; tending to breach of peace, 539; to bring about duel, 540 (1); to 832 take life, 547 ; assault as element in, 548 (2) ; assault with intent is, 553 ; at forcible marriage, 555, note ; forgery as, 572 , conspiracy as, 592 ( 1 ) ; degree in crime, 604 (5) ; to "counselor procure " a felony, 670 (2) ; counselling is, 675 , to commit misdemeanor by means of felony, 797-799 ; whether conviction of, on indictment for substantive offence, 809 ; not ordinarily works forfeiture in rem, 823 (2), 824 (1) , to alien, condi- tion against, 823 (2). Attempt to poison, with thing not poisonous, 756. Attempt to steal, wliere nothing to be stolen, 744 (3). Attendants, of foreign sovereign, ex- empt, 125 ; of embassador, 126. Author's Reasoning, how differs from law's, 274 (1). Authority, Authorities, in the criminal law, full, 69-89 ; namely, books of re- ports, 70-85 ; authoritative text books, 86-90; their present weight with us, 91-98 ; nature of our criminal-law, 40- 42. Authority of Parent, over child, 880- 882. Autrefois Attaint, doctrine of, 1070. Autrefois Convict. (See Former Jeopardy.) Averment, no conviction without, 794. Avoid Killing, 869. Aziomatic Truths, in the law, 140, note; safe guides, 274(1) ; indestructi- ble, 958. Ball from Gun, killing in another coun- try,- 110. Bank-note, larceny of, 578 (1) Bankrupt Acts, frauds against, 572 a (2), note. Bankruptcy, false oath in, under ad- vice, 298 (4) Barratry, defined, 541 (1); where bring- ing suits not, 588 ; disqualifies witness, 974. Bastard Child, disobeying order to support, 240 (1). Bastardy, laws of, on slave-emancipa- tion, 894 (2) ; whether indictable, 501 (3) ; helper after in, 706 (2) ; conspiracy to charge with, 591 (3). Bathing, exposure of person in, 1128 (2), note, 1131. Battery, consented to, 260 (3); civil suit BOD INDEX OP SUBJECTS TO THIS VOLUME. BUB for, 265 (2) ; defined, includes assault, 548 (1) ; aggravated, 548 (2) ; by noise, 549 ; what preparation not attempted, 764 (1); element in homicide, 780(3); inflicted on several, 792 ; no conviction for, on charge of assault, 803 (2) ; in defence of property, 8G I j on trespasser who yields, 862 ; repel by taking life, or not, 867 (1, 2) ; conviction of assault bars, 1058 (3). Battery of One, proof of two, 792. , Ba'TO-dy-house, full, 1082 0-1096; name- ly, keepirfg, 1083-1089 ; letting or selling house for, 1090-1096; wife liable, 361 (3) ; keeping indictable, 500 (2) ; why, 734 (2) ; procuring another to keep, 686 ; bonds for peace in punishment, 945 (2) ; not disqualifies witness, 974 ; is disorderly house, 1107 (1). Bays, jurisdiction over, 105; are within counties, 146. Beast at Large, criminal liability for, 318 (1). Beating Clerk in Orders, 496 (3). Beer, selling, believed not intoxicating, 303 a, note, par. 20. Before Fact, accessory in felony, full, 672-680; in treason, full, 681-684 ;'in misdemeanor, full, 685-689. Before Offence committed, no par- don, 903 (1). " Before or after Principal," inter- preted, 670 (3). Beginning of Jeopardy, when, 1014 (5), 1015 ; another view, 1018 ; in prin- cipal, 1019. Belligerent Act, abroad, by home com- mand, 153. Benefit from violating law, 341. Benefit of Clergy, full, 936-938. Benefit of Statute, 936. Bestiality. (See Sodomy.) ' Betting on Election, procurer of, 686 ; forfeits the money, 821. Bigamy. (See Poltgamt.) Billiard-room, 1136. Blackstone's Division of crime, 444. Blasphemy, indictable and why, 498. Blow, whether homicide at place of, or of death, 112 (3)-116. Blundering, as to intent in statute, 291 6 ; duty to point out court's, 741, note. Boat on River may be bawdy-house, 1085 (2). Bodily Harm, surplus intent in wound- ing to inflict, 340 (2). VOL. 1. — 53 Bond, acting without giving, ^68 a (2) ; whether larceny of, 578 (1). Bonds for Peace, in punishment^ 945. Books of Reports, of criminal cases, full, 70-85. Bookseller, when, liable for libel, 219 (2), 221 (1). Boston Harbor is in Suffolk County, 147. Boundaries, the, of States, 145. Bowling-alley, 1135 (2), note, 1136, Boy under Pulserty, not attempt rape, 746 (2). Breach of Condition, in conditional pardon, 915 (2). Breach of Contract, whether indict- able, 582 (1). Breach or Breaches of Peace, de- fined, 536 (1), 537, 539;" assault as, 550 ; libel and slander as, 591 (4) ; con- spiracy to create, 592 (2) ; solicitations to, 768 d ; defence involving, 839, 877 (4) ; in abating nuisance, 1081 (2). Breaking, no burglary without, 577 (4). Breaking and Entering to steal, where no money, 744 (3). Brewery, whether nuisance, 1142 (2). Bribe, indictable to offer, 246 (2), 76'7 (2). Bribery, for office in governmental cor- poration, 246 (2); actual or attempted, defined, 468 (3) ; at election, 246 (2), 471 ; to suppress testimony, disqualifies witness, 974. Bribing Jailer, 695 (2). Brick-burning, whether nuisance, 1143. , Bridge, Bridges, national and State powers over, 173-176; who repair, 419 (1). Brothel, wife keeping, husband present, 361 (3). Brother may defend brother, 877 (2). Brute, insane person compared to, 378. Buggery, 503 (1). Building, Buildings, objectionable, full, 1150, 1151; thing attached to, in lar- ceny, 577 (2) , destroy or not, in abating nuisance, 828. Bull-baiting, 594 (1), note. Burden of Proof, as to knowledge of fact, 302 (3). Burglar, killing one mistaken for, 303 a, note, par. 4. Burglary, intent simultaneous with the breaking in, 207 J3); measures to de- tect one in, 262 (3, 4) ; two inj;ents in, 342 (3) ; is attempt made substan- 833 CAR INDEX OP SUBJECTS TO THIS VOLUME. CHI tive, 437 (2) ; defined, 559 ; extended by statutes, 564 (3) ; as attempted lar- ceny, 566 (2) ; against habitation, 577 (4) ; one watching while other acts, 633 (4) ; servant letting thief into house in, 676 (3) ; after breach and entry, felony accidental, 736 (2) ; whether felony in- tended possible, 757 ; when includes larceny, how indictment, 780 (2) ; con- viction for larceny on proof of, 792 ; wliether more than one, of same house in one night, 793 (3) ; conviction of larceny or not, on indictment for, 796. Burglary and Larceny, two offences or one, jeopardies, 1062. Burglary, Robbery, Larceny, as to former jeopardy, 1063, 1064. Burial, indictable to refuse, 506. Burial-ground, taking corpse from, 506. Burn, one may, own goods, 514. Burning of Building, less than arson, 686. Burying Dead Body, to prevent in- quest, 468 (6). Business before Houses, effect in offensive trades, 1139(2), 1141. Business Office, whether protected as " castle," 858. By-Ia-ws and Statutes, whether same wrong under both, 1068. Bystander, not punishable, 204 (4). Calling Home citizen from abroad, 512 (2). Capacity for Crime, want of, or in- sanity, full, 374-396 a ; proof of in- fant's, 370. Capacity to be tried, and guilt, dis- tinguished in insanity, 396 (2). Capital Punishment, on very young children, 371, 372; on corporation, 418, 423 ; procuring, by perjury, 564 (2). Captain of Vessel, chastising seamen, 882(1). Capture, made through mistake of facts, 306, 307. Care, degree of, varies with what, 217 (3), note. Carefulness, what, in permissible de- fence, 847. Careless Driving, homicide by, 314 (2). Carelessness, too slight for notice, 216 et seq. ; death from, 217; in selecting agent or seryant, 218; mistaking law through, 299 ; fact, 302 (1, 2) ; is crim- 834 inal, 303 a, note, par. 2 ; a form of evil intent, 313 ; necessity produced by, 352 (1). Carelessness and Negligence, ele- ments in evil intent, full, 313-322. Carnal Abuse of Children, in Ohio, 37, note ; attempted, 37, note, 762 (2), 765 (3). Carnal Ravishment, charged, convic- tion of assault, 795. Carting Jury, 1033 (2). " Cases in Law and Equity," consti- tutional provision, 195. Castle, what, and how defend, 858, 859. Cattle-guards, compelling, 493 (I), note. Caution, not to mistake facts, 303 a, note, par. 3. Cautionary Jurisdiction, over ocean beyond territorial lines, 106. Caveat Emptor, doctrine of, II. Ceases with its Reason, that a rule of law, 273 (2), 275 (1). " Censure " in Scotch law, 242, note. Certainty, doctrines shaped to promote, 854. Challenge to Duel, 540 (1) ; in foreign State, 143. Challenging Jurors, forfeiture for, 968 (1) ; right of, at what stage, 997. Champerty, facts mistaken, 307 (3) ; defined, 541 ; punishment, 942, note. Chandler, business of, in offensive trade, 1142 (2). Change of Purpose, in attempt, 732. Charge with Crime, attempt or con- spiracy to, 762 (3). Charge d' Affairs, exemptions of, 128, note. Charmers, 593 (1,3). Chastisement, parent's right of, 880 (2)- 882 ; teacher's, 886 (3, 4) ; guardian's, 885; master's, 887 (2) ; husband's, 891 Chastity, what defence of, 866. Cheat, defined at common law, 571 (1,2); the non-indictable, 582 ( 1 ) ; false token in, 585 ; not disqualifies witness, 974. Cheat on Public, 571 (2). Chesapeake Bay, ownership, width, 105, 1.50. Child, parent's command to crime, 355 (1), 367 (3); exposing, to elements, 557, 883, 884 ; what rights of, superior to parent, 880 (1); correction of, by parent, 880, 881 ; enticing away, 884 6. CIV INDEX OF SUBJECTS TO THIS VOLUME. COM China, our and English judicial authority in, 123. Cholera, filthy house during, 490 (2). Chose in Action, whether larceny of, 578 (1); whether pardon divest, 910 Christian Sabbath. (See Lord's Day.) Christian States, against not Chris- tian, in international law, 123. Christianity, how common law with us, 497 (1). Church, parfent forcing child out of, 882 (2), note. Circulating Papers, as to merits of cause, 468 (5). Citizen, not rely on foreign authority, 132. Citizen Abroad, home jurisdiction over, 112 et seq. City By-law, suit on, civil or criminal, 32 ; whether create forfeitures, 832 ; prosecution under, and on statute, 1029 (3), 1068. Civil Causes, mistake of fact in, 301 (3, 4). Civil and Criminal, blending, 33 ; as to intent, 286-290. Civil Damages, unlike punishment, on joint conviction, 955 (1). Civil in Effect, criminal in form, 291 (2). Civil in Essence,- some nuisances, 1074 (3). Civil Jurisdiction, jeopardy under, whether bars military, 1029 (4). Civil Jurisprudence, differs from crim- inal, 303 a, note, par. 2 ; forfeitures in rem partly of, 817-819. Civil LaTV, the, in our criminal, 41. Civil Liability, and criminal, for same wrong, full, 263 a-278 ; namely, general doctrine, 264-266 ; exceptions in felony, 267-272 ; reasons, and law's reasoning, 273-278 ; as to insanity, 396 (1 ). "Civil OiEcer," whether legislator is, 461. Civil Proceeding, indictable to ob- struct, 467 ( 1 ) ; against several, differs from criminal, 957 (2) ; not bars crim-" inal, 1069 (1) ; indictment for nuisance In nature of. 1074 (3)-1076. Civil Process, obstructing, 467. Civil Remedy, in additibn to indict- ment, 264-278; for oiBcial wrong, 460 (1), 461, note. Civil Right, against railway, 315 (5) ; as to new trial in criminal proceeding to enforce, 993. Civil Suit, is to recover damages, 247 (2) ; not ordinarily barred by criminal, 264-266, 1069 ; whether, in felony, before criminal, 267-278; needlessly bring- ing more than one, 588 ; compared with criminal, 955-957 ; analogies of, govern- ing criminal, 1074-1076. Civil Torts, not always evil intent in, 247 (2) ; meaning only, committing crime, 330 (2). Civil Wrong, intent to commit, not in attempt, 731 (3). Classes of Offences, the, in former jeopardy, full, 990, 991. Classification, in insanity, 375 (2), note, 379 (1), note. Clean Hands, plaintiff in civil suit mast have, 11,256, 267 (2) ; not in criminal, 256 (1, 2). Clemency follows amends, 713 (2, 3). Clergy, principal having, frees accessory, 668 (1); and invalid indictment, dis- charge on, 1021 (3). Clergyman, test oath from, 279 (4). Clerk in Orders, beating, 496 (3). Clothing, injuring child by withholding, 557. Clothing and Food, neglect to provide, 883. Cocculus Indicus Berries, when, poi- son, 758 (3). Cock-fighting, 504 (3). Coercion, husband's actual or presumed, of wife, full, 356-366. Coke, criminal-law writings of, 87. Collecting Crowd, 1146 (1). Collecting Debt, by false pretences, 438 (3). Color of Office, official duties under, 464 Combination, Combinations, to com- mit private injuries, full, 592, 593 ; the, of act and intent, in attempt, full, 770, 771. Combinations of Intent, operating together, full, 337-345. Combinations of Offenders, respec- tive punishments of, full, 954-958. Combinations of Persons, in crime, full, 628-643. Combine, public good and desert of pun- ishment to, full, 209-2U o ; act and evil intent mnst, 206, 207. Combustible Articles, nuisance of keeping, full, 1097, 1100. 835 COM INDEX OP SUBJECTS TO THIS VOLUME. CON Comfort, offences against personal pres- , ervation and, full, 547-564. Command, to child, sei-vant, wife, 355, 357, 884 a, 892 ; from husband to wife, crime in absence, 359 ( 1 ) ; causing death, 562 (2), 563 ; teacher to enforce, 886 (3). Command of Parent, not justifies child's crime, 884 a. Commanding Assistance, officer de facto, 464 (7). Commanding Criminal Act, brings what responsibilitj', 640, note. Commerce, United States regulate, 173- 176; crimes against, 176. Commission, compared with omission, 217 (3). Common Bawd, not indictable, 1085. Common Bra^vler, being, 1105 (2). Common Carrier, with unwholesome food, 491 (1). Common-councilman, refusing ofHce of, 246(1). Common Lavr, within our national •United States, full, 189-203; in States, as to crime, 35, 37 ; whether ecclesias- tical law is, 38; authorities as to, in crime, 40-42 ; as to military and mar- tial, 43-46 ; avoiding absurdities in, 92 ; benefit of clergy as, 938. Common-Iaiv Duty, breach of, 239. Common La-w of England, as to crime with us, 35, 37-39.' Common-law PuuishmentB, statu- tory modifications, full, 933-945. Common Law or Statute, forfeiture in rem by either, 821 (6). Common-lawr Treason, after English statutes, 702 ; after ours, 703. Common Night-'walking, defined, 501 (4). " Common Nuisance," to the, in indict- ment 243 (2) ; defined, 1072 (1). Common Plan, acting on a, 636, 637 (1). Common Railer, being, 1105 (2),. Common Scold, nuisance of, full, 540 (6), 1101-1105 ; how punished, 943. Common Seller, and single sales, 782 (1) ; jeopardy for, 1054 (2). Community, injuries to whole, 235 (3). Complaint, criminal prosecution by, 32. Completed, joining in offence after, 642, (2). Completed Felony, assisting, as to ac- cessorial, 693 (I), Compound Larceny, 566 (4, 5). 836 Compounding, offence of, full, 709-715 a; not in lowest offences, 247, 248; why a crime, 267 (3), 275 12), 276; what is, 604 (8); not accessorial, 694 (1 ) ; in receiving stolen goods, 699. Compulsion, act from, 346. Compulsion and Necessity, excusing crime, full, 346-355. Concealing Another's Crime, for own safety, 721 a. Concealing Crime, while in progress, 633. Concurrent Jurisdiction, triVunals having, 1014 (3), note; as to former jeopardy, 1029. Concurrent Remedies, 264-278, 778- 815 a; where both statute and by-law, 1029 (3), 1068; corporation and indi- viduals, 424. Condition, pardon upon, 914 (3), 915. Condition to perform, one not in, at- tempt, 737 (2). Confession, whether convict infant on, 370; plea of guilty as, 977 (2). Confiscation Acts, lands forfeited under, 821 (2). Conflict, not seek, in homicide, 869 (1). Congregation, discharging fire-arms into, what offences and jeopardies, 1061 Conjurers, who, 593 (1, 3). Conquest, not changes law, 14. Conscience of Child, parent's control of, 882 (2), note. Conscience of Mankind, follow, in punishment, 211. Consent of Injured Person, effect of, on criminal act, full, 258-263 ; to de- tect, in uttering, 437 (4) ; in robbery, 438 (2); to homicide, 510; to being kidnapped, 560 (2); in rape, 766 ; to being put in second jeopardy, 995-1007 ; to relinquish constitutional right, 995, 996 ; after, not object, 996, 997. Consent unauthorized, not avails, 257 (5). Consequences, of crime and its prose- cution, full (c. 60-63), 927-1070 a; namely, the punishment by sentence of court, 927-958 a ; for offence sub- sequent to first, 959-965; operation of law on sentence, 966-977; no sec- ond prosecution for same offence, 978- 1070 a; of act, particular and general, 223-225 ; presume natural and probable, 734 (1). CON INDEX OP SUBJECTS TO THIS VOLUME. CON Consequences not meant, combina- tions resulting in, 633 a (2, 3). Ponspiracies against Animals, 497 a. Conspiracies against Government, 457 (3). Conspiracy, is act, 432 ; to do non-in- dictable wrong, 518 (1), 529 ; to destroy Tessel, 570, note; against reputation, 591 (2-4) ; defined, why indictable, 592 ; between people in and out of the flesh, 593 (3); not mere presence, will must con- tribute, 633, 634 ; to beat a man, then he dies, 633 a (5) ; to drive from his prem- ises, 633 a (6) ; independent crimes committed, 634 ; accidental, 635-637 ; acting in pursuance of, all liable, 636, 637 ; act by one, 636 ; general intent, 638.; circumstances modifying guilt in, 638, 639; to charge with crime, 762 (3) ; a species of attempt by solicitation, 767 (3) ; conviction of accomplished of- fence on indictment for, 792; not by one alone, one tried alone, 801 (1) ; one dead, separate trials, acquittal of part, &c., 801 (1); whether, to commit a felony, merges in felony committed, 814; by client and attorney, 895(1); disqualifies witness, 974. Constable, refusing ofiice of, 246 (1), 458 (2) ; acting without giving bond, 468a (2) ; suffering escape, 707 (2). Constitution of United States, judi- cial power under, 56, 57, 195, 196. Constitutional Po'wer, when requires legislation, 174, 177. Constitutional Questions, powers of national government within States, full, 156-181 ; depending on written words, 24 ; as to military and martial law, 45, 48-50, 55-64, 67, 68; suspension of habeas corpus, 63, 64 ; surrendering fugi- tives, 135 ; State jurisdiction over citizen abroad, &c., 152, 153; State command- ing belligerent act abroad, 1 53 ; jurisdic- tion over Indian territory, 154 ; juris- diction pf United States within State, 156-181 ; United States regulate com- merce, 173-176; United States as a nation, 182-188 a; jurisdiction over District of Columbia, 187 ; over the Territories, 188; as to "cases in law and equity," 195 ; United States courts administer State laws, 196 ; nullity of ex post facto laws, 279-284 ; right of of- ficer to resign, 458 (2) ; whether legis- lator impeachable, 461 ; as to effect of impeachment, 463 ; gaming, lotteries, liquor-selling, 493 ; validity of Sabbath- keeping laws, 499 (3) ; restraints ou liberty of conscience, 499 a ; statutes against vagrancy, 515, note; against deer-killing, and as to fish, 516 (2), note; as to what is felony, 617 a; as to acces- sory after in treason, 703 ; forfeiture in rem, 831, 832 ; for liquor keeping and selling, 833-835 ; in whom is power of pardon, 899-901 ; pardon before convic- tion, before offence committed, 903, 904 ; pardon of impeachments, 912; of legis- lative contempts, 913 ; statutes authoriz- ing jury to fix punishment, 934 (2) ; " cruel and unusual punishment," 946, 947 ; statute providing heavier punish- ment for second offence, 965 (1); as to corruption of blood and forfeiture, 970 ; sister State record incapacitating wit- ness, 976 (1) ; no second prosecution for same offence, 978-1070 a; not twice in jeopardy, 981, and throughout the chap- ter; how regard juridical decisions on, 1012 (2) ; reputation as evidence of bawdy-house, 1088 (3) ; statutes for i:e- straint and custody of dogs, 1080 (2), note, par. 5 ; as to tippling-shops, 1117; as to wooden buildings, 1151 (3). Constitutional Rights, waiver of, 995- 1007. Constitutions, our written, 24. Consul, judicial jurisdiction of, 122, 123 ; rights and immunities of, 122, 129, 181 ; jurisdiction of cases affecting, 196. Contagious Disease, not try one while infected by, 354; exposure to, 490 (1). Contempt, legislative body punish, 461 . Contempt of Court, punishable sum- marily, indictable, 468 (7) ; lawyer may commit, 895 (2) ; may be pardoned, 913 (2) ; summary prosecution for, indict- ment, jeopardy, 1067 (2). Contempts, by disobeying judicial or-, ders, 240. Continuance, waiver to prevei^t, 997 (6), not^. Continue Nuisance, indictable to, 433 (2). Continuing, civil or criminal suit, till other ended, 266 (2). Contract (see Agreement), when, not enforced, 1 1 ; breach of, as crime, 582 Contract to sell Liquor, not attempt, 761 (2). 837 cou INDEX OP SUBJECTS TO THIS VOLUME. CM Contributory Negligence, not in crime, 256 (2). Controlling Disease, act from, 387 (4). Convenience and Safety, protection to public, what from criminal law, full, 530-532 a. Conviction, joint, punishment on, full, 954-958 ; for any offence within trans- action, 791 , offences included in one another, 794 ; not included, 798-801 ; of one offender, on indictment against several, 800-802 , meaning, pardon be- fore or after, 903 (2), 904 ; wrongly dated, in pardon, 906 (2) ; meaning, how averred, proved, 963, 964; bars second prosecution, 994 ; how, when erroneous, 1021, 1022. Conviction for Misdemeanor, how on felony indictment, 788, 789. Copy of Indictment, waiver of, 997 (3). Coroner, preventing inquest by, 468 (6) ; partakers therein, 688 (3). Corporation, what, and capacity for crime, full, 417^24 ; interests of, pub- lic, 246 ; within word "person," a de facto, 570, note ; rights vested in mu- nicipal, pardon, 910 (5). Corpse, casting into river, stealing, dig- ging up, &c., 506. Corrupt Neglect of official duties, 468 a. Corruption, mistake of law is not, 299 ; in officer, 460 (1), 462 (2). Corruption of Blood, forfeiture in, distinguished from in rem, 820 (2) ; whether restored by pardon, 918 (1); what, and on attainder, 967 (3) ; reasons for, 969, 970 ; forbidden, 970. Corruptly Influencing, judge or jury, 468 (5). Costs, when ex post facto, 281 (3), note; pardon remitting, 910 (2, 4). Counsel, mistaking law through advice of, 294 (3) ; false oath under advice of, 298 (4) ; too many and too eminent, 683 (2), note ; anciently, when not al-. - lowed, 996. " Counsel or Procure," a felony, 670 (2). Counselling to Suicide, 652. Counterfeit, having, procuring, 204 (2) ; promise to take back, 341 (2). Counterfeit Coin, husbaijd's coercion in uttering, 359 (3) ; attempt to utter, at gaming-table, 765 (2); conviction for having, in numbers, 799 (2). 838 Counterfeit Letters, cheating by, 571 Counterfeit Money, whether ofience to have, with intent, 204 ;. intoxication as defence to passing, 412 (1); procurer of another to pass, principal, 686. Counterfeiting, procuring dies for, 435 (3) ; species of attempt, 437 ; cheat not accomplished, 437 ; of records, 468 nature of, 479, 686 ; similitude, 769 conviction of less than charged, 799 same act of, against both State and United States, 178, 988. Country, one out of, indictable here, 110 et seq. ; larceny in one, goods into an- other, 137-142 ; how resist being carried out of, 868 (3). County, Counties, goods stolen in one, carried into another, 139 ; and county lines, in States, 146-149; United States as to offences in, 176; penalties vested in, pardon, 910 (5) ; acquittal because indictment in wrong, 1053. County Lines, offences in State, outside of, 176. Court, Courts, not all laws adminis- tered in the, 25, 28, 31 ; not martial law, 55 ; no prosecution without, and juris- diction, 109-112 ; whether our, sit abroad, 122, 123; power of , over fugi- tive from justice, 135 ; not essential to law, is to its enforcement, 193; chang- ing the, after act done, 280 ( 1 ) ; at- tempts to influence, 468; remit fines and forfeitures, 899 ; no jeopardy where, has no jurisdiction, 1028. Court of Chivalry, 44. Court de Pacto, perjury before, 464 (6). Court or Jury, whether, fixes punish- ment, 934. Court or Courts Martial, military law administered in, 44 ; jeopardy before, bars, 1029 (1). Courts of Mother Country, colonists not take, but law, 193. Coverture, effect of, on the wife's crim- inal liability, full, 356-366. Coves of Sea, what jurisdiction over, 105. Cow, public heating of, 597. Cox's Reports, of criminal cases, 73. Creeks are within counties, 146. Crime, Crimes, against two or more governments, full, 136-144 ; what is, 32 ; whether common law of, 35 ; ec- clesiastical law of, 38, 39 ; committed by CRI INDEX OP SUBJECTS TO THIS VOLUME. DAM one while xu another country, HO; in foreign ports and on high seas, 1 1 7-1 20 ; fegainst both United States and a State, 8178 ; how intense required evil in, 235 |3) ; compared to civil tort, 235, 247, 1B48; one's, not justifies another's, 257 'il ) ; no, without evil intent, 287 ; re- tulting.in good, 325, 326, 341 ; the par- ticular, to be considered in insanity, 385 (1) ; technical divisions and distinctions, 598-606 ; gradations, 603 ; no, without a principal, 649 ; how specific, consti- tuted, 773-785 ; how carved out of trans- actions, 791-815 ; offence by thing, not a, 816; not essential in forfeiture in rem, 829 ; domestic relations not pro- tect, 879 ( 1 ) ; no, remains after pardon, 898 (2), note, par. 2. Crime -within Crime, illustrations of, 780 ; jeopardy for lower or higher, as to other, 1054-1059. Crime in Rem, quasi, or forfeiture of things in wrong, full, 816-835. Crimen Falsi, what, as to witness, 972. Criminal, Criminals, compelling work from, 454 ; condition of pardon must not be, 915 (1) ; the, procuring himself prosecuted, 1010. Criminal Act, delusion in insanity con- nected with, 394 (2). Criminal Capacity of Infants, rules for, full, 367-373. " Criminal Cases," meaning, 32. Criminal and Civil, distinguished as to intent, 286-290. Criminal Endeavor, what, 435 (2, 3). Criminal Field, how divided, full, 599- 606. Criminal in Form, civil in effect, 291 (2). Criminal Information, not always, where indictment lies, 246 ; applicant in fault, 256 ; while civil suit, 266 (1) ; where act was from constraint, 688. Criminal Intent (see Evil Intent, In- tewt), by what words indicated, full, 425-429 ; lowest crimes, like highest, require, 247 (2) ; impossibility of, in in- sanity, 375 (1) and note; insanity is want of capacity for, 375 (1), 381 (2) ; power of corporation for, 417 (4). Criminal Jurisprudence, how differs from civil, 288, 301 (3), 303 a, note, par. 2, 1074-1076. Criminal Law, as branch of law of the land, fuU, 30-42; who exempt from our, full, 124-135 ; whether there is a common, of United States, full, 189- 203 •; State procedure in national courts, 194 ; further of the, of national govern- ment,, 198-203 ; forfeitures in rem not strictly of the, 817 ; when analogous to civil, 1074-1076. Criminal Legislation, ex post facto laws pertain to, 279 (3). Criminal Liability, and civil, for same wrong, full, 263 a-278 ; namely, general, 264-266 ; of exceptions in felony, 267- 272 ; reasons hereof and law's reason- ing, 273-278. Criminal Neglect, of chUd, 883, 884, 888. Criminal performed by one, in con- spiracy, what would be, 592. Criminal Proceedings, not barred by civil, 1069 (1). Criminal Prosecutions, how differ from civil, 247. Criminal Reports, the old, in what books, 70, 75, 78. Criminal Transaction, separable into what specific offences, full, 791-803 ; distinguished from crime, 777 ; two of- fences in one, second jeopardy, 778 ; carving the, into crimes, 778-783. Criminate Self, whether pardoned wit- ness must, 917 (3). Crowd, shooting into, 736 (7). Crown, in England, pardon, 899. Crown Cases Reserved, concerning, 72. Cruel Act, is of malice, 429 (2) " Cruel and Unusual Punishment," forbidden, what is, 946, 947. Cruelty, in divorce law, by mental force, 560 (3). Cruelty to Animals, intoxication in, 402; law of, 594 (2)-597; conspiracies as to, 597 a. Culpable Homicide, Scotch, compared to English manslaughter, 217 (3), note ; small blame in, 227. Cumulative Sentences, something of, 953. Custody of Child, by guardian, 885 (2). Custom of Exposure, of person, 1131. Cutting and Wounding, joining in, after completed, 642 (2). Dairy, whether, nuisance, 1143. Damage Special, in actionable crime, 265 (2). 839 DEF INDEX OP SUBJECTS TO THIS VOLUME. DEF Damages Civil, criminal, influencing, 266 (3). Dancing-Bchool, not a show, U48. Danger Over, not kill assailant, when, 869 (1). Dangerous to public, indictable, 531 (2). Dangerous Animal, at large, 318 (1). Dangerous Weapon, carrying, 540; unintended death from, 862 ; in defence of property, 862. Date of Conviction, erroneous in par- don, 906 (2). Daughter, wounding one in mistaken defence of, 303 a, note, par. 4 ; keeping bawdy-house, 1084 (2). Day of Punishment, in sentence, war- rant, &c., 951. De Facto Court or 0£Bcer, perjury before, 464 (6). De Facto Officer, 464, 464 a, 468 a (2). De Jure Officer, 464, 464 a. Dead Body, burying, to prevent inquest, 468 (6) ; casting into river, 506. Deadly Weapon, right to kill on attack from, 850 (4). Deaf and Dumb, as insane, burden of proof, 395 (3), Death, indictment for causing, 32, at place of , or of blow, 112 (3)-116; is com- mon-law punishment for felony, 615(1), . 935, 939; imprisonment a substitute, 939 ( 1 ) ; in judgment of, day how ma- terial, 951 ; of juror or judge, jeopardy, 1032 (2). Death Penalty, test of felony, 615 (3), 616 (2), 622 (2). Death of Principal, how accessory, 668 (2). Debt, getting paid, by false pretence, 438 (3). Deceits, whether disqualify witness, 974. Decency, exhibitions outraging, 504 (1). Decisions, how regard the, 361 (3), note ; on effect of intoxication, 398 (4 ) ; law distinguished from, 499 a, note ; correc- tion of erroneous, in this work, 741, note; interpreted by their reasons, 846 ; the old, on self-defence and homicide, 848. Defence, of person and property, full, 836-877,' namely, general, 838, 839; perfect and imperfect, 840, 841 ; per- fect, 842-859 ; imperfect, 860-863 ; summary of defence of person, 864- 874; of property, 536 (2), 875, 876; 840 assisting others in, 877 ; duty of lawyers to make, 376 (4), note, par. 12. Defence of Castle, 858, 859. Defence of Limb, 866. Defendant, husband, with wife, 366 ; error in sentence not affecting the, 932. Defendant's Favor, errors in, 930 (3). Defining Insanity, difficulties of, 381 et seq. Definitions, abduction, 555 ; accessory, 663 (1), before fact, 673 (1), after fact, 692 (1), act, the, in crime, 431, in at- tempt, 737 (1); affray, 535 (1); am- nesty, 898 (3) ; arson, 559 ; assault, 548 (1); attainder, 967 (1); attempt, 435 (1), 728; barratry, 541 (1); battery, 548(1); bawdy-house, 1083 (1); breach of peace, 536 (1); bribery, 468 (3); bur- glary, 559; champerty, 541 (1); cheat at common law, 571 (1); civilly and criminally, that same wrong punishable both, 284 ; coercion, husband's, 357 ; combinations of persons in crime, 629 (2); common scold, 1102 (1); com- pounding, 710 (1) ; conspiracy, 592 (1) ; corporation, 417 (1), criminal capabili- ties of, 417 (2) ; crime, criminal law, 32 ; deodand, 827, 968 (2) ; disorderly hiiuse, 1106; eavesdropping, 540 (5), 1122 (3, 4); engrossing, 519 (4), 527; ex post facto law, 281 (1), compare, 284; exposure of person, 1125; extortion, 573 ; false imprisonment, 553 (2) ; false pretences, 571 (3); felony, 615 (1); for- cible detainer, 536 (2) ; forcible entry, 536 (3) ; forcible marriage, 555 , fore- stalling, 519 (2), 526; forfeitures in rem 816; forgery, 572 (1) ; former jeopardy, 979; gaming-house, 1135 (1); govern- ments, wrongs against two or more, 136, see 983-989; habeas corpus, 63; indictable act, 232 ; indictable private wrong, 234 ; injured person's consent, 258 ; injured person in wrohg, 257 ( 1 ) ; innocent agent, 310; insanity, 375 (1), 381 (2); intensity of evil in crime, 247 (1); international duties, 481 (2); intoxication as affecting criminal in- tent, 398 (2, 3); kidnapping, 553 (2); larceny, 566 (1); law, 1-3; mainte- nance, 541 (1) ; malice aforethought, see 429 ; malicious mischief, 569 (3) ; mar- tial law, 45 ; mayhem, 547 (2) ; merger of offences, 787 (1); military law, 44; misdemeanor, 623 (1), 624 (1); mis- prision, 624 (2), 716, 717 (1); mistake DES INDEX OP SUBJECTS TO THIS VOLUME. DIS of fact, 301 (2), 303 (1); mistake of law, 294; necessity, which excuses crime, 350; night-walkers, 501 (4) ; nui- sance, 1072 (1); numbers injured, 243 (1); ofeensive trade, 1138 (1); pardon, 898 (2); perjuiy, 468 (4); piracy, 553 (4) ; principal of first degree, 648 (2) ; principal of second degree, 648 (3); prisoner of war, 63, note, 64, note; public show, 1145; punishment, on joint convictions, 954, 955 (2) ; rape, 554; regrating, 519 (3), 528; reputa- tion, law's protection to, 591 (1); riot, 534 (4); robbery, 553 (3); rout, 534 (3) ; self-defence, right to take life in, 865; sodomy, 503 (1); State pris- oner, 64, note, par. 8 ; substantive felony, 696 (1); theft bote, 710 (2); treason, 456 ; trespass, 625 ; United States, power of, in States, 156; unlawful as- sembly, 534 (2); witchcraft, 593 (1), note ; witness, incapacity after sentence, 972. Degrees, unmeant results in offences with, 334 (2, 3). Degrees of Crime, treason, felony, mis- demeanor, 602 (3). Degrees in Murder, division into, 600 (2). Degrees of Principal, 648 (4). Degrees of Proximity to Act, 602 (4), 604. Delaware Bay belongs to whom, 105. Deliberation, intoxication precluding, 414. Delirium, rape on woman in, 261 (2). Delirium Tremens, species of insanity, 40& Delivery, in pardon, 907 (1, 3, 4). Delusions, insane, 376 (4), note ; as test of insanity, 392-394. Demanding Thing of one not having it, 752 (1). Demolishing House, intent in, 340 (1). Demurrer, erroneous judgment on, jeop- ardy, 1027. Deodand, 827, 968 (2). Departure from Flan, by conspirator, 637 (1), 640, 641. Deputy Sheriff, sheriff's criminal liabil- ity for, 218. Desert of Punishment and public good, to combine, full, 209-211 a. Desertion, seaman forfeits wages for, 821 (3). "Destroy," meaning, 570, note. Destroying Vessel, offence of, 570, note. " Destructive Thing," whether in form capable, 758 (3). Dicta, yield to adjudged law, 215. Die for Another, when, 348, 348 a, 845. Dies, procuring, for counterfeiting, 435 (3). Different Ways, offence committed in, 785. Difficulties in law of insanity, 389, 390. Digging up Corpse, after burial, 506. Diplomatic Agents, foreign, exempt from our laws, 126-128. Diplomatic Law, distinguished from judicial, 25. Diplomatic Power, our States have not, 100. Dipsomania, species of insanity, 407. Disagreement of Jury, steps on, 1033- 1036. Disbarred, lawyer may be, 895 (4). Discharge of Jury, when second jeop- ardy after, 998 (2). Discharge of Offender, fresh proceed- ings after, on insufficient bail, 1010 (2) ; before petit jury sworn, 1014 (2) ; judge refusing, after jeopardy attached, 1041. Discharge Soldiers, false pretence of aijthority to, 468 (6). Discharging Gun, near sick person, as- sault, 549. Discordant Reasonings, in the books, how, 273 (1). Discretion, affecting indictability of of- ficer, 459, 460 (1), 462 (1); of judge, whether appeal from, 1041. Discretion as to Punishment, aggra- vation or mitigation of sentence when, 948-950 Discretionary, how pardon is, 925, 926. Discretionary Dffect, of punishment from another government, 989. Disease Overpowering, takes away guilt, 387 (4). Disfranchisement, not cruel and un- usual punishment, 947 (3). Disgraceful Punishment, whether cruel and unusual, 947 (3). Disobey Law, intent simply to, 345 (4). Disorderly Conduct, about premises, 318 (2). Disorderly House, the nuisance of, full, 1105 a-1 121; namely, general, 1106- 1112; tippling-shops, 1113-1117; dis- orderly inns, 1118; houses wherein of- 841 DOG INDEX OF SUBJECTS TO THIS VOLUME. ECC fences committed, 1119-1121 ; by selling liquor therein, 318(2); wife responsible for, 361 (3), keeping, indictable, 504 (2) ; bonds for peace in punishment of, 945 (2) ; how many annoyed by, 1078 ; need not be kept for lucre, 1086, 1112; letting house to become, 1090-1096. Disorderly Inns, 505 (2), 1110, 1118. Disqualification of Coverture for crime, 364-366. Disqualification of Infancy for crime, 369. Dissection of corpse, 506. Dissenters, disturbing worship of, 542, Dissolute Persons, in tippling-shop, 1115. Distilling, illicit, 488 (2), note. Distinct Governments, same act as offence against, former jeopardy, full, 983-989. Distinct Intents, crimes requiring, 342. Distinct Punishments, sentence omit- ting part of, 931. Distinction, of perfect and imperfect de- fence, fall, 840, 841 ; principal for agent, 218-221 ; first and second degrees of principal, 648 (4, 5) ; as to right of de- fence, 838 (2)-839. Distress, excessive, 538 (2) ; impounding, in wrong place, 957 (2), note. District of Columbia, jurisdiction over, 187 ; unwritten law of crimes in, 203. Disturbing Meetings, offence of, 542. Divine and Human Lav^s, conflicts of, 344. Division and Divisions of Crime, treason, felony, misdemeanor, full, 607- 625 ; by Blackstone, 444 ; by present author, 446. Division Lines, between countries, 108, Divisions, of subject of criminal act, fnU, 443-449. Divisions in Criminal Lnvr, impor- tance of, 609. Divisions in Law, nature of, 593. Divorce, cause already accrued, 279 (4) ; for sodomy, 503 (2) ; cruelty in, as to kinds of force, 560 (3). Dock-yards, jurisdiction over, 159. Doctrine, should be stated in accurate terms, 253. Dodge Questions, not, 169, note. Dog, law of, 832 (3), 1080 (2), note; as nuisance, abatement, 1080 (2). Dog-spear, to protect property, 855, note. Dogs at Large, forfeiture of, 832 (3J. 842 Domestic Animals, low crim i nal law protects, 594-597 a. Domestic Relations, full, 878-891 a ; namely, parent and child, 880-884 b ; guardian and ward, 885 ; teacher and pupil, 886; master and domestic ser- vant, 887-889 ; husband and wife, 890- ' 891 a. Domestic Servant and Master, crim- inal law of, full, 887-889. Domestic Servants, of foreign minis- ters, exempt, 126. Domicil, guardian as to child's, 885 (3). Done by One, conspiracy to do what punishable or not if, 592. Door, opening, to burglar, 262 (3, 4). Dorr Rebellion, the, 48, 49, 162. Double Punishmentji by two govern- ments, full, 136-142. Driving, fast and riotous, 540 (3). Drug, the, in attempted abortion, 741. Drunkard, selling to, through mistake, 302 (2), Drunkenness, excusing or not crim- inal act, fuU, 397-416 ; voluntary, is not insanity, 387 (3) ; indictable or not, 399 (1), 505 (3) ; supplying criminal intent, 399 (2). Ducats, putting, into pocket, 762 (3). Ducking, punishment by, 942, 943 (2). Ducking-stool, for punishment, 1104. Duel, challenge to, in another State, 143 ; homicide in, 259 (1) ; challenge to, 540 (!)■ Duelling, though approved by law of honor, punishable, 10 and note ; sec- onds in, 654 (2). Duty, what breach of, indictable, 237- 242 ; steamer causing death by neglect- ing, 303 a, note, par. 12. Dvrelling-bouse, riotously breaking into, 537; larceny from, 566 (6); shoot- ing into, 751 ; right to defend, 858, 859, 877; homicide in defence of, 858, 859; how expel intruder from, 859 (2), 862 ; attacked in own, not retreat, 869 (3). Ears, punishment by loss of, 942, note. Eavesdropping, full, 1122-1124; de- fined, 540 (5). Ecclesiastical Benefice, corrupt pres- entation to, 496 (3). Ecclesiastical Cognizance, public education of, 50^. Ecclesiastical Crime, how punished, 38. END INDEX OP SUBJECTS TO THIS VOLUME. ETI Ecclesiastical Law, with us, 38, 39. Effect of Pardon, beyond words, 908 (3) ; English authorities on, 902. Effigies at Windows, 1146 (1). Ejecting Passenger, mistake in, 301 (4). Electing out of Transaction, crime to prosecute, 779 et seq. Election, bribery at, 468 (3) ; offences against, 471 ; money bet on, 821 (2). Election of Offences, 791, 793 (4), 815 a. Elector, corruptly influencing, 471. Electricity, death-punishment by, 947 (*)■ . Elementary Doctrines, must be stud- ied, 449. Elements of Crime, and their combin- ings, full (c. 11-17), 204-284 ; namely, combined act and evil intent, 204-208 a ; combined public good and desert of pun- ishment, 209-211 a; magnitude of act and intent, 212-228; how far public, 229-254 ; wrong or consent of injured person, 255-263 ; criminal and civil lia- bilities from same act, 263 a-278 ; nuUity of ex post facto laws, 279-284. Elude Punishment, assisting felon to, 692 (2, 4). Emancipation, after, how former slave laws, 893 (2) ; former master, on bail- bond, 894 (1) ; liability of slave-father, 894 (2). Embargo, what excuses breach of, 351 (!)■ Embargo Act, not known when violated, 296 (2). Embargo Laws, enforced by forfeiture, 821 (5) ; necessity excusing, 824 (3) ; owner's non-concurrence, 826 (3). Embassador, to our country, exempt, 126-128; penalty for arrest of, 127; causes affecting, 196 ; whether duty to become, 458 (2), note. Embezzlement, by officer de facto, 464 (3) ; nature of, 567 (2) ; whether dis- qualifies witness, 974. Emigrants carry laws with them, 14. Emigration, what rights of, 512. Eminence of Lawyer, impediment to success, 683 (2), note. Employee, unlicensed liquor-selling by, 219 (1). Enclosures, riotously pulling down, 537. End, adaptation of means to, in attempt, full, 738-758, 769. Endanger FubUc Health, 489. Endeavor,, distinguished from attempt, 435 (2, 3), 724 (2) ; called, with us, attempt, 435, 724 (2). Enemies in War, in civil courts, 131, 134. Enemy, rights of, killing, 134 ; arresting one believed taking goods to, 306 (2) ; killing, mistaken for friend, 441, note; violation of passport to, 484 (3). Enemy Property, forfeiture of, 821 (5). Enforcing Agreement, to pay private damage for public wrong, 714 (2). English Law, what, with us, 14, 190. Engrossing, with forestalling and regrat- ing, full, 518 (2)-528. Enhancing Prices, 523, 526, note, 529. Enticing away Child, 884 b. Enticing out of State, one to enlist as soldier, 752 (3), note. Entire Law, considered with specific question, 238. Equity, no courts to administer, 193. Erie Lake, ownership and county lines in, 149. Erroneous Conviction, and punish- ment on, second jeopardy, 1023. Erroneous Judgment, disqualifying witness, 975 (2). Erroneous Sentence, reversed, second prosecution, 1021, 1022 ; court without authority, 1028. Error, exposing, not justifies obscenity, 309 (2) ; reversal for, on later sentence, 953 (2). Errors in Sentence, full, 930-932. Escape, negligent, 218, 316 (2), 321 (2); and voluntary, distinguished, 321 (2) ; homicide in chloroform to effect, 329 (3); husband's coercion in, 359 (3); common-law offence of, 466 (2) ; de- clining to assist in preventing, 469 (2) ; nature of voluntary, 625 (2) ; accessory after in, 693 (3) ; accessory, 695 (2) ; as accessorial to original felony, 697 ; of street-Walker, &c., 707 (2) ; before pun- ishment, 951. Escape of Juror, not set prisoner free for, 1038. Escape of Principal, how affects ac- cessory, 668 (2). Established Heligion, not with ub 496 (2). Established Rules, effect of, in law, 261 (2), note. Etiquette, law of, 10. 843 EVI INDEX OF SUBJECTS TO THIS VOLUME. FAX European Jurists, how regard intoxica- tion as excuse, 403. Evidence, rule for, in United States courts, 200; possession as, of having procured, 204 (3) ; changing rule of, . after act, 279 (7)-281 a; of excusing necessity, 352 (2) ; rebutting marital coercion, 362 ; of capacity of infant for crime, 370, 371 ; of insanity, 383-385, 387 (4), 388, 391 ; accessory lAay deny principal's guilt, 669 ; waiver of objec- tion to, 997 (4) ; of parties in own causes, 973 ; of specific sales, to show common seller, 1065. Evidence in Civil Suit, plea of guilty as, 977 (2). Evidence Defective, not discharge jury because, 1037 (2). Evil, intensity of, in public crime, 235 (3) ; good from, 250, 251 ; varying forms of the, intent, 291 a. Evil on Face, and in intent, distin- guished in forfeiture, 833 (2)-835. Evil Imaginings, not punishable without act, 204 (1), 209. Evil Intent (see Cokrcpt Moiive, Criminal, Insanity, Intent, Pdbe Mind), magnitude 6f the, full, 216-222. The, required in crime, full, (c. 18-29) 285-429; namely, general, 285-291 6; ignorance and mistake of law and fact, 292-312; carelessness and negligence, 313-322; producing unintended result, 323-336 ; more intents than one to- gether, 337-345 , necessity and compul- sion, 346-355 ; husband's coercion, 356- 366; infancy, 367-373; insanity, 374- 396a,- intoxication, 397-416 ; corpora- tions, 41 7-424 ; words indicating the, 425-429. More than one, operating together, full, 337-345. No crime with- out an, 205 ; purposely doing thing for- bidden, 300; in accessory before, 675 (1); in misprision, 721 o; presumed to intend what does, 734, 735 ; not alone works forfeiture, 823 (2), 824 (2) ; in nature of civil proceeding, 1074 (3)- 1076 ; in exposure of person, U33. Evil Intent and Act, must combine, 430. Evil meant, good following, 438 (1). Evil Mind, corporation may have, 417 (4). Evil Motive, good from, 325, 326. Eva Result, following act unintended, 327-332. 844 Evil Tendency, substantive crimes because of, 734 (2) ; evidencing evil intent, 734 (1), 735 (1). Ex Post Facto La'ws, nullity of, full, 279-284. Excessive Punishment, as cruel and' unusual, 947 (1, 2). Exciting to Crime, guilty of, 640. Execution, from clerk de facto, 464 (7), note; rescuing goods in, 467 (2) ; levy- ing, oppressively, 588. Executive Officer, liabilities of, 463, note. Executive Pardon, wrongly granted, 926 (2). Exorbitant Prices, innkeeper taking, 532 (1), note. Expansions of Law, the, 20. Expatriation, what right of, 512. Expel Member, legislative body may, 461 and note. Expert Witness, not charge jury as, 387 (4). Experts, in insanity, 376 (4), note, par. 10; liable to err, 376 (4), note, 390, 391 (2). Exposure of Person, fuU, 1125-1134; to how many, 244 (2) ; of another's per- son, 500 (2), 501 (1). Exposure for Sale, of noxious food, 491 (1). Express or Implied, waiver, either, 998 (1). Expressed and Implied Malice, dis- tinguished, 429 (3). Extent of Incapacity, to commit crime, 376 (3), 380 (1), 391 (2). Extent and Sorts of punishment, full, 933-953. Extortion, 573 ; why, 587 (1) ; forms of, compounding, 715. Extra-territorial Jurisdiction, our national, fuU, 109-123 ; States have not, 152. Facilities, to wrong-doer, 262 (2). Fact, mistake of, excusing crime, full, 301-310. Fact for Jury, insanity is, 883-383 b, 396 o, 407. Fact and Law, ignorance and mistake of both, full, 311, 312; blending, in question of insanity, 377, 383, 383 a. Facts of Insanity, as to, 391 (1). Fails with its Reason, rule of law, 273 (2), 275 (1). FEL INDEX" OP SUBJECTS TO THIS VOLUME. FIN Fair Ground, criminal law secures, 252 ; in dealings with individuals, 545. False Accusation of Crime, conspir- acy to bring, 762 (3). False Affidavits, short of perinry. 468(4). False Imprisonment, under mistake of fact, 306 ; assault in, 548 (2) ; defined, 553 (2) ; procurer of, 686 ; in parental correction, 882 (2), note. False News, spreading, 472-477. False Oath, why punish, 734 (2). False Personating, 587 (2) ; of mu- nicipal voter, 471, note. False Pretences, by one in another country, 110; at swimming race, 214; where parting with thing is crime, 257 (3); by infant, 369 (3) ; must be injury or tendency to, 438 ; procuring pay by, 438 (3); of being an officer, 468 (6); statutory offence, 571 (3) ; interpreted, 586 ; by one concurring in another's uttering, 633 (2) ; procurer of, 686 ; where misdemeanor, by a felony, 815 (2, 3) ; whether the law of, protects the weak, 874 (2) ; not disqualifies witness, 974. False Representations, pardon by, 905, 906. False Rumors, to enhance prices, 523, 526. False Symbol or Token, cheat by, 571 (1); necessary to cheat, 571, 585; nature of, 585. Falsehood, when not indictable, 582 (1). Falsely Pretending Witchcraft, in England, 593 (2). Families, many, in one house, nuisance, 490 (2). Father may defend son, 877 (2). Favor of Court, asking, must have clean hands, 256 (3). Fear, in robbery, 438 (2) ; working on, causing death, 562 (1) ; restraining con- spirator, 639. Fears excited, when not justify killing, 872. Feeble and Weak, law not specially protects, 585. Felon, meaning of, 615 (2) ; taking life of, 843 (1), 849 (3), 874. "Felonious," meaning, 427 (1). Felonious Assault, on indictment for rape, 795. "Felonious Assaulter," meaning of, 622 (2). "Feloniously," in indictment, surplus- age, 810. Felony, civil suit for wrong done in, full, 267-272 ; why, full, 273-278. As one of three divisions of crime, full, 614-622; namely, what is, 614-617 ; under United States laws, 617 a; statutes regulating, 618, 622. The principal in, full, 646- 654 The accessory after in, full, 692- 700 a. Whether corporation commit, 422 (2, 3) ; officer shooting one com- mitting, supposed misdemeanor, 441 ; intent to commit, in burglary, 577 (4); between treason and misdemeanor, 599 (1), 602 (3) ; principals and accessories in, 605 (1); treason reduced to, 612; suicide is, 615 (2); accessory after in, 642 (2); "accessory," only in, 662; ac- cessories in, generally, 662-671 ; before fact, 673-680; principal of second de- gree, 684; compounding, 711 (1); mis- prision of, 717 ; attempt to commit, 759 (2), is misdemeanor, 772 (1) ; soliciting to commit, is attempt, 767 (2) ; conn- selling to, 772 (2) ; not both, and mis- demeanor, 787 ; made treason, 787 (2) ; proved on misdemeanor indictment, 787- 789 ; on indictment for, misdemeanor proved, 804 (2) et seq. ; misdemeanor charged as, 810, proved as, 812, com- mitted by means of, 815; how oppose commission of, 843 ; how resist, 849 (3, 4), 853 (2) ; repelling, to death, 86? (3) ; killing one committing, against property, 875 ; employing another to commit, 892 (3) ; punishment for, 935- 939 ; mitigation and aggravation of punishment for, 949; consequences of, 966-977; former jeopardy for, 990 (1) ; conviction wrong, distinguished from misdemeanor, 1001, 1002; whether new trial for, in England, 1001 (2) ; with us, 1003 (1); jeopardy for, as to misde- meanor, 1055 (1). Felony and Misdemeanor, impor- tance of distinction of, merger, 787 (2) ; promotes certainty, 854. Felony or Misdemeanor, nuisance, 1078 6 (1). Fence, throwing down, 298 (3). Fictitious Name, forgery of a, 572 (2). Fighting, 535 ; death from, 870 et seq. Filthy Houses, nuisance of, 490 (2). Pine, corporation subject to, 423 ; dis- tinguished from forfeiture, 820 (2) ; re- mitted by pardon, 910 (4); erroneous, 845 FOR INDES OP SUBJECTS TO THIS VOLUME. FOB with abatement, 931 (2), and repair of way, 931 (3) ; not cruel and unusual punishment, 947 (3). Pine and Costs, paid, as to civil suit, 266 (3). Fine and Imprisonment, for misde- meanor, 940 ; under statute " and," "or," 941. Fine paid, effect of pardon on, 916 (3, 4) Fines and Forfeitures, after pardon, 909 (2). Fire, statutory precautions against, 1150. Fire-arms, reclilesa use of, death, 314 (4)- First Degree Murder, indictment for, conviction second degree, 797. First QSence, conviction of, on indict- ment for second, 795; pardon of, on second, 919. First and Second Degree Principals, not in treason, 658 ; or misdemeanor, 656 (1). Fish, statutes to protect, 516 (2). Plight, from felony indictment, forfeit- ure, 968 (1), Florida, common-law crime in, 35, note. Food, how criminal law protects supplies of, full, 518-528, withholding from child, 557. Pood in Charity, to felon, not makes accessory, 694 (3), 695 (2). Food and Clothing, parent's neglect to provide, 883. Food for Prisoners of War, unwhole- some, 484 (4). Forbidden Thing, intent to do, is evil intent, 300 Force (see Mental, Physical), consent obtained by, in burglary, 262 (4) ; physi- cal or mental, rule for each, 546 ; defend property by what, 860-862; improper, 873 (1). Force or Not, felony by, as to resisting, 8.53 (2). Forcible Detainer, 536 (2) ; partici- pants in, life taken by one, 633 a (4) ; in defence of property, 861 (1) Forcible Entry, by corporation, 422 (3); defined and limit of, 536 (3), 537. Forcible Entry and Detainer, 536- .538, 577 (5). Forcible Marriage, 555. Forcible Trespass, 536-539. Foreign Coin, procuring dies to counter- feit, 435 (3). Foreign Conviction, not first offence 846 within statute,, 960 (2) ; as barring do- mestic prosecution, 983-989. Foreign Country, our authority over acts in, full, 109-123. Foreign Government, when our courts take cognizance of, 119 ; acts disturbing to our relations with, 484. Foreign Judgment, as incapacitating witness, 976 (1). Foreign Larceny, and domestic, of same goods, full, 137-142. Foreign La^w, with us, 21 ; illustrating our criminal law, 41 ; not controls do- mestic, 143 ; knowledge of, not pre- sumed, 294 (2), note; our courts not punish breaches of, 984 (2). Foreign Minister, exemptions of, from our laws, 126-128; assault on, 334 (4). Foreign Official Person, libelling, 484 (2). Foreign Port, vessels in, 117. Foreign Fo-wei, when courts recognize, 119. Foreign Ships, our right over offences in, 112 (3), 114, 115, note, par. 9, 116- 120; seizing, on high seaSj 120, note. Foreign Sovereign, here, exempt from our laws, 125; wrongful acts here by command of, 132, 133. Foreigners, whether and when, exempt from our criminal laws, full, 124-135. Forestalling, regrating, and engrossing, full, 518 (2)-528. , Forfeiture, doctrine of criminal, on civil suit, 273 (2); in this country, 273 (2), 616 (1), 970; for act lawful when done, ex post facto, 279 (4) ; in mistake of facts, 307 (2) ; act from necessity, 351 ; wife, under absentee act, 365 (2) ; in- fant, 369 (3) ; of ofBce, on impeachment, 462, 463, or conviction for felony, 971 ; riotous entry to enforce, 537 ; as test of felony, 615 (2), 616 (1) ; as punishment for crime, 824 (1), 835, 944; may be pardoned, 909 (2); as to vested rights, 910 ; other than from attainder, 968. Forfeiture of Citizenship, 947 (3). Forfeiture and Corruption of Blood, 969, 970. Forfeiture of OfEce, under impeach- ment, 463 ; punishment by, 944 (2). Forfeiture and Punishment, distin- guished, 833-835. Forfeiture as Punishment, distin- guished from forfeiture in rem, 824 (1). Forfeiture in Rem, pardon on, 911 (2). ■FRA INDEX OF SUBJECTS TO THIS VOLUME- GAM Forfeiture of Specific Articles, pun- ishment by, 944 (1). Forfeiture of Things in Wrong, or quasi crime iii rem, full, 816-835. Forfeitures on Conviction, and at- tainder, full, 967-971 a. Forfeitures and Fines, pardon, 909 (2). Forfeitures and Penalties, pardon, 910 (3). Forged Instrument, lawyer bringing suit on, 895 (1), Forgery of Writings, against United States or State, 178 ; having, procuring, 204 (2) ; intent to repay, 341 (2) ; is attempt made substantive, 437 (4) ; ut- tering, 437 (4) ; of discharge from ar- rest, 466 (2) ; counterfeiting coin a species of, 479 ; defined, 572, 734 (2) ; as cheat, 572 (1), note, 584; signature by misreading is, 584 j need not be of public document, 585 ; making different parts of, 650 (2) ; second-degree prin- cipal in uttering, 654 (3) , adviser in uttering, 676 , of fictitious name, in- strument invalid, 748 (2) ; soliciting to engrave plate for, 768 c (1); similitude in, 769 (2) ; to get goods by false pre- tences, 815; disqualifies witness, 974; whether jeopardy for, bars uttering, 1066 (1). Forging Records of court, 468 (6). Form of Pardon, 908 (4). Former Acquittal, no new trial to State on issue of, 993. Former Jeopardy, as defence to a sec- ond prosecution, full, 978-1070 a. Fornication, with us, 38 ; in ecclesiasti- cal law, 38 ; in common law, 38, 39, 501 (1,2); participant in, 659 (1); convic- tion of, on indictment for adultery, 795 ; in public place, 1127. Forts, what law in our, 159. Foster, criminal-law writings by, 89. Fourteen Years, age for crime, 368 ; of puberty in boy, 373 ; insane person com- pared to, 376 (4). Fovrls, shooting at, killing man, 332 (2). Franchise, corporation forfeiting, for crime, 423. Fraud, whether prosecution procured by, creates jeopardy, full, 1008-1011; con, sent to battery obtained by, 261 (1) ; as to rape, 261 (2) ; in burglary, 262 (4) ; drunk by another's, excuses crime, 405 ; in kidnapping, 560 (2) j on public, 571 (2) J obtaining another's property by, 582 (3), 583, 585 et seq. ; other thing, 584 ; forgery adapted for, 748 (2) ; in pardon, 905, 906 ; in former jeopardy, 1008-1011. Fraud in Election, 471. Fraud by Officer, actionable, 463, note, par. 3. Frauds against Revenue, 488. Fraudulent Bail, no bar to fresh pro- ceedings, 1010 (2). Fraudulent Bankruptcy, cases on, 572 a (2), note. Fraudulent Conveyance, offence of, 572 a. Free Negroes, statute against selling, 560 (2). Freedmen, criminal laws governingj full, 893, 894. Freedom of Conscience and Reli. gion, in this country, 499 a. Freeman's Case, 376 (4), note. Fresh Indictment, after verdict or pleE« of guilty, 994. Fridndly Society, breach of order to admit to, 240 (1). Frightened avray, in attempted rape, 733 (1). Frightening Persons, hbmicide from, 314 (4). Fugitives from Justice, 135. Full Crime, in attempt, intent to com- mit, 731 (4) ; act of sort to constitute, 745, 747, 748. Full Pardon, effect, 916 (2), 917 (1 ) ; law determines, 914 (2). Full or Partial, pardon as being, full, 914-920. Pull Penalty, bearing, bars fresh prose- cution, 1010 (3). Fundamental, guaranty against second jeopardy is, 982. Furious Driving, manslaughter by, 314 (2). Game Laws, from violating,' 332 (1); English and American, 516 (2). Gamekeeper, one robbing, after several beat, 634 (3). Gaming, constitutional to restrain, 493 ; whether indictable, 504 (2, 3), 1135 (2) ; by presence countenancing, 658 (4), note ; punishment of, 945 (2). Gaming-house, nuisance of, full, 1135- 1137; keeping a' common, 504 (2); punishment of, 945 (2) ; not disqualifies witness, 974. 847 GRA INDEX OF SUBJECTS TO THIS VOLUME. HAL General Evil Consequences of act, 223, 224 (3). General Malevolence, not 'intent in attempt, 731 (2). General Principles, learn, before prac- tiaing criminal law, 449. Genius of Republicanism, not rule for courts, 169, note. Ghost, killing a, 873 (3). Going about armed, 540 (2). Gold Mines, State power over its, 176, note. Good, one doing, meaning evil, 438 (1). Good from Evil, deducing, 250. Good Faith, parent's, in chastisement, 881 (1), 882. Good Motives, not justify libel, 309 (2). Good Result, from evil motive, 325, ^26. Goods, stealing iu one locality and con- veying into another, full, 137-142. Goose Island belongs to Connecticut, 148. Government, Governments, wrongs against two or more, full, 136, 144, 155 ; State without a, full, 161-171; protection of the, in its existence, authority, and functions, full, 450-480; namely, gen- eral, 451-455; menace to, itself, 456, 457 ; crimes relating to oifice, official duties, and official acts, 458-471 ; incidental of- fences against the, 472-479. Protection of relations of, with other, full, 481-485. Law precedes, 9 , recognizes law, 9, 10 ; not enforce all law, 10, 11; distin- guished from law, 14; conspiracy to disturb course of, 592 (2). Government and People, inseparable, 451,452. Governmental Law, into what classes separable, full, 22-29. Governmental Locality of crime, full (c. 6-10), 99-203. Governmental Powers, whether two, punish one crime, 983 et seq. Governor, as to fugitive from justice, 135 ; power of pardon in, 899. Gradations in 'Wrong, 247, 248. Grain Growing or Standing, larceny of, 577 (2). Grand Jury, waiver of objections to, 997 (1); discharge by, on fresh pro- ceedings, 1014 (2) ; not lawful, no jeop- ardy, 1021 (1); listening to overhear, 1123. 848 Grand Larceny, and petit, distin- guished, full, 679, 680. Granting Pardon, practical views of, full, 921-926. Grass, larceny of, 577 (2). Great Bodily Harm, take life to pre- vent, 865, 867 (2) ; defence against, 865, 867 (2) ; mere apprehension of, 872. " Great Men," slanders of, 472-476 and note, 478 ; not first to discern great truths, 683 (2), note. Grief, causiug death by, 562 (1), Grievous Bodily Harm, statute against, 340 (2) ; attempt, by shooting into crowd, 736 (7). Gross Misdemeanor, bonds for peace in punishment of, 945 (2). Groundw^ork of law of attempt, 726, 727. " Guarantee," meaning, in Constitution, 167. Guaranty of republican government, secession as to, full, 161-171. Guardian and Ward, criminal law of, full, 885. Guest, rights of, against innkeeper, 532 (1) , misbehaving, 532 (2) ; may defend house, 877 (3). Guilt, pardon takes away, 898 (2), note, par, 2 ; not deny, in mitigation, 948 (2). Guilt of Arrested Person, in resisting arrest, 465 (3). Guilt incurred, pardon immediately on, 903 (2). Guilt known, principal's, by accessory after, 693 (2-4). Guilty Mind, essential in crime, 287. Guilty of Part, new trial where verdict is, 1004 (2)-1007. Gulfs, what jurisdiction over, 105. Gun, assault by noise of, 549 ; demanding, of one not having, 752(1). Gunpowder, endangering safety by, 531 (2) ; keeping, 1097-1099, 1139 (2), note. Gypsies, old statutes against, 516 (1). Habeas Corpus, suspension of, 63, 64 ; statute suspending, 64, note ; not release prisoner of war, 63 and note ; necessity as exception to, 354 (2). Habitation, offences against the, 559; defence of, by spring-guns, 865; arson is against security of, 577 (3) ; burglary, 577 (4). Hale, criminal-law writings of, 88. HOM INDEX OP SUBJECTS TO THIS VOLUME. HOM Handicraft or Trade, regulations of, with us, 508. Hanging, imprisonment superseding, 939 (1); no mitigation of, 949. Haranguing People, procuring crime by, 640. Harbor, Harbors, what jurisdiction over, 105 ; are within counties, 146, 147 ; small obstruction of, 227 ; and injuries to, nuisance, 531 (2). Harboring Husband, not makes wife accessory, 365 (1). Harboring Thieves, by innkeeper, 532 (1), note. ^ Hardship, of the knowledge of law rule, of fact, 303 a, note, par. 20. Having, counterfeits, 204 (2); as evi- dence of procuring, 204 (3). Hawkins, Pleas of Crown by, 88. Health, control over own, 494 ; in offen- sive trade, 1138 (3). Hearsay Evidence, to aggravate or mitigate punishment, 950. Heavier Offence, less participation in, 226. Helper of Felon, why accessory, 692 (3, 4). Heresies, with us, 497 (2). High Crime, compared to low, 247 (2), 248. High Governmental Officers, miscon- duct of, 462 (1). , High Seas, blow on, death on land, 115, note, par. 8; offence on, 112-120; not under flag, 118-120; States over citizens on, 152; within and without States, crimes on, 176 ; United States courts whether jurisdiction on, without statute, 201.. High Treason, whether accessories in, 681 (2). Higher Crime, lower, as to necessity, 353. Higher Law, not by courts, 169, note. Higher Offences, solicitations to the, 768 a. Highway (see Wat), ocean is a, 103. Himself, what one may do for, another for him, 877 (1, 3). Hired Seryant, not chastise, 887 (3). Hiring Time, statute against, 659 (2). Hoarding to defraud, 521. Hogs at Large, forfeitures of, 832. Homicidal Insanity, 388 (2). - Homicide Felonious, blow or death, place of, 112 (3)-116 ; pardon of, before VOL. I. — 54 death, 113, note; whether charge inju- ries as " mortal," 115, note, par. 3 ; of enemies in battle, 131 ; alien enemy, 134 ; malicious, — : pistol, dagger, 214, note ; from medical man's carelessness, 217 (1) ; provocation reducing, to man- slaughter, 227 ; in duel, 259 (1) ; at re- quest of person killed, 259 (1), 510 (2) ; mistake of fact in, 305 ; negligence pro- ducing, 314 ; careless or intended, 321 (3) ; of one not meant, 328 ; in attempt- ing to steal fowls, other attempts, 328 ; in violating game laws, 332 (1) ; shoot- ing at fowls, 332 (2) ; from act malum in se, or malum prohibitum, 332 ; murder or manslaughter in accidental killing, 334 (3) ; divisions of, in law, 334, 401, 409, 410, 547 ; of one in endeavor to kill another, 336 ; by one compelled, 346 (2) ; of innocent person to save own life, 348, 348 a ; in self-defence, 348, 349 ; under marital coercion, 358, 361 ; by wife, of apprentice from neglect, 364 ; intoxica- tion in law of, 401, 406-410, 414, 415; attempting, with fire-arms, 434; as crime against population, 510 ; by care- less management of railway, civil, 531 (5) ; as wrong to individual, — divisions of, 547 (1); whether includes assault, 548 (2) ; by neglect of a child or ap- prentice, 557, 883 ; by working on fears, &c., 562 and note ; by command to ser- vant, 562 ; compelling or counselling to suicide, 510 (2), 562, 652 ; by mental force, 562-564 ; by perjury leading to death, 564 (2) ; degrees and aggrava- tions of, 600 (2) ; from opposing unlaw- ful act, 633 (3) ; in presence of others, 633 (3) ; by careless riding, 635 (3) ; by one of two together, 635 (3) ; in sup- pressing riot, 637 (2) ; in opposing ar- rest, 637 (3) ; by one of several in fight, 637 (5) ; in duel, seconds, 654 (2) ; ac- cessories, 666 (3) ; advising murder of unborn child, 676 ( 1 ) ; accessory after in, 693 (4) ; duty to arrest perpetrator of, 721 ; in attempt, intent to kill, 736 (1); assault to kill, in murder or manslaughter, distinguished, 736 (4) ; in attempted, no ball in gun, 750 (2) ; gradations in felonious, 780 (3) ; acci- dental, in arson, 781 (2) ; conviction of lower degree than charged, 797 ; conviction of assault, 808 (2) ; by spring-gun set to prevent crime, 854- 856 ; in defence of property, 857, 861 849 IGN INDEX OP SUBJECTS TO THIS VOLUME. IMP (3), 875, 876, of castle, 858, 859 ; in turning one out of house, 859 (2) ; by weapon dangerous, 862 ; justified by what danger, 865 ; in mutual combat, 870 et seq. ; by parent in chastise- ment, 881 (2), 882 (2), note; by ne- glect to provide, 883 ; in self-defence, forfeiture, 968 ; one, against both State and United States, 988 ; acquittal of, for variance, no bar, 1053 (6) ; indict- ment for, after conviction of assault, then death, 1059 ; civil damage for, not bars indictment, 1069 (2). Honor, law of, 10. Horrible Crime, sodomy is, 503 (1). Horse, used to kick, homicide from, 314 (4) ; tdking diseased, into public, 490 Hostile Acts, in war and peace, 131- 133, 153. House, tearing down or breaking, 298, 537 ; filthy, nuisance, 490 (2) ; whether destroy, in abating it, 828. House for Ba'wdry, letting or selling, full, 1090-1096. House where Habitual Offences, nuisance of, full, 1119-1121. House of Ill-fame, bawdy-house, 1083 (2). Hew IVIany Persons, injured in public crime, full, 243-246 ; annoyed by nui- sance', 1077 (2), 1078. Hudson River belongs to New York, 150. Human and Divine Laws, conflicts of, 344. Humanity, shows which shock, 504 (1). Husband, actual x>r presumed coercion by, full, 356-366 ; personating, in rape, 261 (2) ; killing by, to save wife's life, 305 (2), note ; when, must be defendant with wife, 366 ; causing wife's death by threats, 562 (3) ; may defend wife, 877 (2) ; responsibility of, for wife's crimes, 891 a. Husband and Wife, criminal law of, full, 890-891 a ; indict jointly, 363-366 ; exceptions, 364-366 ; sometimes hus- band joined, 366 ; how severally pun- ishable, 955 (2), note ; each in keeping bawdy-house, 1084 (2). Identity, shown by parol, 1050 (1). Idiocy, form of insanity, 375 (2). Idleness, 453-455, 515, 516. Ignorance, of law or fact as disqualify- 850 ing or not for crime, full, 292-312; namely, ignorance of law, 294-300; mistake of fact, 301-310; both of law and fact, 311, 312. Homicide from, in medical practice, 314 (3j ; mistakes from, as to insanity, 377-379. Ignorance of Justifying FaQt, act in, 441. Ignorant Voters, how exclude, 171. Ill-fame, meaning, 1088. Illegal condition of pardon, 915 (1), Illegal Act, in attempt, 762 (1). Illegal Trading, consent to detect, 263 (1). Illicit Distilling, 488 (2), note. Illicit Intercourse, not bawdy-house, 1085 (1). Illicit Trade, forfeiture in, 821 (5). Imagination, death by working on, 562 (1), note. Immature Mind, insanity compared to, 376 (4). Impair Public Health, indictable to, 489. Impeachment, whether of legislator, 461 ; effect of, 463 ; no pardon in, 899 ; of what is subject to, 912 ; for abuse of pardoning power, 925, 926., Impediment Unseen, in attempt, 742 Imperfect Defence, of person and prop- erty, full, 860-863. Imperfect and Perfect Defence, distinction of, full, 840, 841, 852. Implied or Express, waiver, 998 (1). Implied Powers of United States, 185. Impossibilities not of Record, pre- venting jeopardy attaching, full, 1030- 1036. Impossibility, preventing attempt, 753. Impossible condition of pardon, 915 (1). Impossible to be Known, statute, 296. Imprison, whether husband, wife, 891 (1 ). Imprisonment, Freeman's unjust, 376 (4), note ; excessive, in parental correc- tion, 882 (2), note ; how resist attempt at pprpetual, 868 (3) ; sentence to less than minimum of statute, 930 (3) ; what, cruel and unusual, 947 (2, 3). Imprisonment and Fine, and how much, for misdemeanor, 940; under statute, " and," " or," 941. Improper Poroe in just defence, 873 (1 ). Improvement of Human Race, how, 250. IND INDEX OP SUBJECTS TO THIS VOLUME. INF In Presence, when abetting, makes principal, 653. In Rem, quasi crime, full, 816-835. Incapacity to be Witness, what, fol- lows sentence, full, 972-976. Incest, 502 (2) , attempt, preparation, 764 (3) ; solicitation to, as attempt, 768 d ; conviction of, on charge of rape, 795. Incestuous Marriage, preparation to enter into, 76-t (3). Incidental Relations and Things, connected with crime, full, (c. 55-59) 816-926 a; namely, quasi crime in rem, or forfeitures of things in wrong, 816- 835 , defence of person and property, 836-877 ; the domestic relations, 878- 891 a ; personal relations other than do- mestic, 892-896 ; pardon, 897-926 a. Incompatible with Consent, crimes, 260. Incompetent Juror, discharge of, 1039. Indian Territory, jurisdiction over, 154. Indiana, whether common-law crimes in, 35. Indictable, public things which statutes forbid, 237, 238 ; other breaches of pub- lic duty, 239-242. Indictable and Abatable, nuisance, both, 1073. Indictable and Actionable, nuisance, both, 1074 (1) ; other things, 263 h-278. Indictable Offence, conspiracy to charge with, 591 (3), Indictable Sort, conspiracy to do thing not of, 591, 592. Indicted, whether accessory, before prin- cipal, 667 (2). Indictment, special terms of, as to act . in attempt, full, 755-758; criminal prosecution by, 32 ; also civil or quasi civil, 32; liability to, elsewhere; 142; duty of private persons as to, 267-276 ; civil suit not bars, 264-266, 1069 ; joining wife in, 363, 366 ; how charge intent in, 426-429; what officers liable to, 459- 464 ; how" framed as to punishment, 601 ; how as to two degrees principal, 648 ; against instigator to treason, 682 (2), 683 (1) ; against procurer of misde- meanor, 685 ; against helper after in treason, 701 , for attempt to steal, 743 ; as modified by interpreted statute, 755 ; for attempt by solicitation, 768 c (2) ; against adviser and one doing, in at- tempt, 772 (2, 3) ; on disjunctive clauses of statute, 785 (2) ; for offences included in one another, verdict, 794 ; not in- cluded, 798-801 , tw,o forms of, for burglary,. 796 , for murder in first de- gree, 797 ; offence proved as within allegations, 798; joint, proofs several, 802 ; against several, conviction of one, 800; for felony, whether conviction of misdemeanor, 804 et seq. ; for misde- meanor, n felony proved, 812-815; for full offence, attempt, 809 ; surplusage in, "feloniously," 810; for offence sub- sequent to first, 961 (1), 962-964, no new, after an acquittal, 994 ; one pend- ing, not bars another, 1014 (3) , not valid, no jeopardy, 1021 (2, 4) ; valid, quashed, 1027 ; two offences same, alle- gations not identical, 1050 (1) , covering part of transaction, jeopardy, 1057 ; not barred by penal action, 1067 (1). Indiscriminate Shooting, 751. Indispensable to Crime, evil intent is, 345. Individuals, what protection to, from criminal law, full, 543-593 ; namely, preliminaries, 544-546 ; offences against personal preservation and comfort, 547- 564 ; against acquiring and retaining property, 565-590 ; against personal reputation, 591 ; combinations to com- mit private injuries, 592, 593. Crimes against, multiplied by statutes, 252. Industry, laws to promote, 4.54. Infamous Crimes, what, disqualifying witness, 972, 974, 976 (2) ; disqualifying juror, 977 (1). Infamous Parties, affidavits of, in own cause, 973. Infancy, incapacity of, for crime, full, 367-373. Infant, meaning, criminal capacity of, 367 ; under fourteen, in attempted rape, 373, 746 ; old comparison of insane to, 376 (4), 378; assault on young, 550; twelve years, seven, ten, fourteen, 368, 373, 554. Infected Cattle, importing, 492, note. Infected Child, taking, into public place, 490 (1). Infection, from filthy house, 490 (2). Inferior Intellect, law protects, 874 (2). Information, criminal prosecution by, 32 ; as to plaintiff in wrong, 256 (3). Informer's Share in penalty, pardon, 910 (4), note. 851 INT INDEX OP SUBJECTS TO THIS VOLUME. INT Inhibitions of Law, specific, not cover all of every evil transaction, 775. Injure Self, what right to, 513 (1). Injured Person, wrong or consent of, full, 255-263; namely, his wrong, 256, 257 , his consent, 258-263. Injuries to Government, 451 (2), 456 et seq. Injurious, whether criminal act must be, 438(1). Injurious Nature, whether criminal act, 434. Injury to Public, essential in crime, 740. Inn, Inns, disorderly, indictable, 504 (2), 1110, 1118; keeper of, 532 (1), Innkeeper, refusing guest, 532. Innocent Act, in attempt, 762 (1). Innocent Agent, crime by, 110, note, 111 ; doctrine of, 310; whether court is, 564 ; one acting through, is principal, 651 ; in suicide, 652. Innocent Person, whether one kill, to save own life, 348, 348 a, 845. Innocent Purchasers, in forfeiture in rem, 822. Inquest of Coroner, preventing, 468 (6) ; partakers in preventing, 688 (3). Insane Delusions, crime from, 303 a, note (par. 6, 13), 392-394. Insane Person, no crime by, 205 ; em- ployer of, 651 ; no trial of, 396 (2). Insane Woman, connection with, in rape, 261 (2). Insanity, as excusing criminal act, full, 374-396 a ; partial, 303 a, note, par. 6, 8, 9, 10; intoxication as, 406; of juror or judge, jeopardy, 1032 (2). Insolvent Laws, frauds against, 572 a (2), note. Instigator as Doer, in treason, 682 (2). Instrument failing, in abortion, 741. Instruments for Escape, conveying, accessory, 695 (2). Insurance Office, burning another's house in burning own, to defraud, 329 (2). Intellect, insanity not alone in, 386 (1). Intensity of Evil, what, in public crime, full, 247-249 ; in intent, to make result criminal, 334 (1). Intent (see Evil Intent), by what words expressed, full, 425-429 ; specially of the, in attempt, full, 731-736; act and, must concur, 204-208 a, 287, 430 ; pre- supposes capacity for crime, 205, 375 (1) and note; applies to low and high 852 crimes, 247, 287. 291 ; distinctions, in civil and criminal, as to, 286, 288 ; how charge, in statutory offence, 303 a, note, par. 20, the sufficient, not vitiated by others, 339 , ultimate good following prohibited doing, 341, 343, charging, by circumlocution, 426 ; may be lighter as act is heavier, 760, 768, 768 a ; in forfeiture in rem, 823, 834, 835; in ob- structing river, 1075 ; when the, of civil jurisprudence suffices, 1074-1076. Intent to Disobey, is evil intent, 345 (4). Intent in Fact, in attempt, 735 (2). Intent to Kill and to Murder, dis- tinguished, 736 (4), note. Intent in Law, not in attempt, 735 (2). Interest, one cannot sue without, 1 1 . Interests, of government and people, inseparable, 451, 452. Intermittent Insanity, 380 (2). Internal Improvement, works of, au- thorized, not nuisance,' 1144. Internal Revenue, 487; of United States, 488 (2), note. International Duties, defined, 481 (2). International Law, statutes interpreted by, 112 (2), 115, note, par. 9, universally binding, 124, 188 a ; species of common law, 483 , whether United States crimes under, 201 ; some offences under, stated, 484. International Relations, protection of, full, 481-485. International Rule, as to jeopardy abroad, 984. Interpretation, of conditional pardon, 915 (3), 916; of pardon, 908 (1); of amnesty, 908 (2) ; of guaranty against second jeopardy, 990 (3), 991. Interpretation of Statutes, ignorance of rules for, 303 a, note, par. 1 ; some- thing of, 755. Intoxicated, arresting one wrongly sup- posed, 303 a, note, par. 5. Intoxicating Liquor, prosecution for selling, criminal or civil, 32 ; when sell- er to answer for conduct of purchasers, 318 (2) ; both wife and husband for her sales, 366 (2) ; constitutionality of regu- lating statutes, 493 (2), 833 (3), 834 ; no license at common law to sell, 505 ; purchaser not indictable, 658, 761 ; one who sells, as agent, 658; persuading another to sell, 658 (1), 761 (2); pro. curer of sale of, 686 ; contracting to sell, not criminal, 761 (2), common seller JUD INDEX OP SUBJECTS TO THIS VOLUME. JUS and specific sales, 782 (I), 1054 (2), 1065 (2) ; where more defendants than one, sentence, 957 ; specific sales of, in proof of common seller, 1065. Intoxication excusing or not the crimi- nal act, full, 397-416; namely, general, 398-403 ; limitations, 404-415. Intruder, ejecting, from house, 859 (2), 862. Involuntary Intoxication excuses crime, 405-407. Irregular State Government, Con- gress recognizing, 166, 167. Irresistible Impulse, as insanity, 383 b, 387 (1), 388 (1,2). Islands, as to county lines, 146-148; near shore, as to jurisdiction, 104, 146- 149 ; in boundary rivers, 108. Jailer, sheriff for escape suffered by, 218 ; killing prisoiier by abuse, 328. Jeopardy Attached, rules for deter- mining when, full, 1012-1047. ' Jeopardy in one Country, whether bars in another, 983 (2), 984. Joint Allegation, several offences proved on, 802. Joint Convictions, the punishment on, full, 954-958. Joint Crime, 630. « Joint Offender, each, guilty of all, 954, 955 (2). Judge, how interpret language of, 379 (2) ; indictable, actionable, or not, 460- 464; impeachable, 462 (3) ; sickness or death of, in jeopardy, 1032. Judge-made Iiavr, there is no, 18-20. Judge's Reasoning, how differs from law's, 274 (1) Judgment, on contradictory verdict, 800 ; of parent, teacher, in chastisement, 881 (1), 882, 886 (3) ; pardon may be before, 903 (2), 904 ; conviction without, as to witness, 975 ; defendant procuring arrest of, fresh jeopardy, 998 (5) ; when indict- ment good, 1000; voidable, whether jeopardy, 1021 (3) ; on conviction, not in former jeopardy, 1049 (2). Judicial, what acts are, 463, note, par. 3. Judioial Decision, pardon not appeal from, 923 (1 ). Judicial Law, distinguished, 25, 28 ; law which is not, 28. Judicial or not, forfeitures in rem. 822. Judicial OfiBce, forfeited by attainder, 971 (2). Judicial OfScers, indictable or not, im- peachable, 460, 462, 463. Judicial Order, disobeying, 469 (3). Judicial Poiver, not enforces martial law, 55-58, 62 ; sources of our national, 195. Judicial Sight, short, as to mistake of fact, 303 a and note. Jurisdiction, as depending on govern- mental locality of crime, full, (c. 6-10) 99-203 ; taking or declining, over law, 11, 16; in court, essential to perjury, 464 (6) , want of, preventing conviction of less offence, 811 ; how allege convic tion in court of inferior, 962 (2) ; no jeopardy where court has no, 1028; no, of higher offence, jeopardy for lower bars, 1058 (4). Jurisdiction on High Seas, law of nations fixes, 485. Jurisdiction or not, as to indictability of official acts, 460 (2), 463, note, par. 3. Jurisprudence, source and nature of, 1-21 ; differs with the system of, 13. Juror, official misconduct of, 462 (1, 3) ; false pretence of being, 468 ( 6) ; pre- venting attendance of, 468 (2) ; convic- tion disqualifying, 977 (1 ) ; withdraw- ing a, 1016; sickness or death of, as to jeopardy, 1032; escapes, ascertained incompetent, &c., 1038, 1039. Juror bisqualiiied or Insane, dis- charging, 1039. Jury, some particulars as to when, may be discharged, full, 1037-1041 ; court not instruct, in abstract law, 379 (2) ; how instruct, as to insanity, 382-388 ; attempts wrongfully to influence, 468 ; whether, overrule parent's judgment in chastisement, 882; assessing pun- ishment, constitutional, 934 ; discharge, with prisoner's consent, 998. Jury or Court, whether, fixes punish- ment, 934. Jury failing to agree, steps on, jeop- ardy, 1033-1036. Jury's Recommendation, in pardon, 924 (2). Justice, punish only when, requires, 210, 211; conspiracy to disturb, 592 (2); misprision an interference with, 721 a. Justice of Peace, whether indictable, actionable, 462 (2) ; misdoings of, breach of official bond, 463, note, par. 3 ; jeopardy in court of, bars in higher, 1029 (1). 853 LAK INDEX OF SUBJECTS TO THIS VOLUME. LAW Justifying Fact, act in ignorance of, 441. Keeping bawdy-house, what is, 1085 (1), 1090, 1095, 1096. Kelyng's Reports, criminal, 71. Kentucky, boundary of, on Ohio River, 150. Kidnapping, assault in, 548 (2) ; defined, 553 (2) ; free negro, by seduction, 560 (2) ; how, apprentice, 582 (2) , how one may resist, 868 (3). Kill, intent to, or to murder, distin- guished, 736 (4), note. Killing for provoking language, 873 (2), Killing Aggressor, in defence of prop- erty, 857-859. Killing Dog, what right of, 1080 (2,) and note. Killing in Self-defence, right of, 865. Kind of Act, in attempt, 765, 766. Kleptomania, what, insanity, 388 (3). Ejiowledge (see Ignorance), of law presumed, 294 (2) ; of crime being com- mitted, 633. Kncwledge of Facts, as to alleging, 303 a, note, par, 20. Kuovrn or Not, impossibility of reach- ing verdict, in former jeopardy, 1 030. Labor, regulating, compelling, 453-455. Lakes, ownership and county lines in our great, 149. Land, jurisdiction from death on, after blow on sea, 115, note, par. 8. Land Boundaries, the, of United States, full, 107, 108. Landlord, riotous entry by, 537. Language, imperfections of, 425 ; no, to distinguish forfeitures, 820. Language of the Books, inaccurate, 551, 552. Language of Judges, how, 379 (2). Larceny and Burglary, two offences or one, jeopardies, 1062. Larceny in Dwelling-House, servant admitting thief, principal, accessory, 676 (3). Larceny, Robbery, Burglary, com- bined, as to former jeopardy, 1063, 1064. Larceny Simple, of same goods in two or more States, full, 137-142, in one country, goods into another, 115, note (par. 5), 137-143 ; from wrecked vessel, 176, note; trespass and intent to steal 854 simultaneous in, 207 (2) ; defined, 207 (2), 342 (2), 566 (1) ; of minutest value, 244 (1), though crime, private, 233; of things stolen or wrongfully ob- tained, 257 (4) ; taking with owner's consent, 260 (2) ; of thing exposed to thief, 262 (2) ; servant delivering thing to thief, 263 (2) ; changing rule of asportation in, ex post facto, 281 a ; mistake of law as to ownership in, 297 (2) ; carelessness not evil intent in, 320 (3); accidental homicide in attempted, 328 ; arson in shooting to commit, 329 (2) ; what two intents in, 342 (2) ; whether, by taking food to prevent starvation, 349 ; irresistible impulse to, 388 (3) ; intoxication as defence to, 411; how express criminal intent in, 426;, of post letter, 440 (2); in what combinations, 566 (2-5), 567 ; embezzle- ment is statutory, 567 (2) ; whether, of real estate, 577 (2) ; of chose In action, wild animals, 578 ; of small value, of use, 579 (2) ; by what act, 582 (3), 583 ; parting with ownership, possession, property, distinguished, 583 ; different acts in one, 650 (2), note; second-de- gree principal in, 654 ( 1 ) ; grand and petit, 679 ; attempted, where nothing to steal, 741, note, 743-745 ; attempting, by impression of key, 764 (4) ; inviting to, attempt, 767 (2) ; conviction of, on burglary or robbery proved, 792 ; on indictment for robbery, 795 ; indictment as second offence, conviction as first, 795 ; on burglary indictment, 796 ; con- viction for, of less sum or value than alleged, 799 (2), 811 ; charge of grand, .conviction of petit, 799 (3), 801 (2); not one guilty of grand, other of petit, 801 (2) ; when disqualifies witness, 974 ; acquittal of, then ownership laid in another person, 1053 (3) ; then false pretences charged, 1053 (4) ; then con- spiracy, then receiving, 1053 (5) ; when jeopardy for, bars robbery, 1055 (2) ; diverse goods, owners, how many of- fences, jeopardies, 1061 (3, 4) ; whether jeopardy for, bars conspiracy, 1066 (2). Last Proximate Act, whether act in attempt, 764 (2). Lainr, Laiivs, nature and sources of ju- ridical, full, 4-21 ; outlines and intro- ductory views of, fnll, (c. 1-4) 1-68; ignorance of, whether excuses crime, full, 294-300 ; not change with govern- LEG INDEX OP SUBJECTS TO THIS VOLUME. LIF ment, 14 ; not extra-territorial, 109 ; of State or United States in other's tribu- nals, 181, 194 ; without courts, 193, 198, 199; rule of, as to mistake of fact, 303 (3). Law and Pact, ignorance and mistake of both, full, SU, 312 ; blendings of, in questions of insanity, 377, 383, 383 a. Law Forbids, intent to do what, 343. '' Law of Land," in instructions on in- sanity, 384, note. Lavir Language, modern, ancient, 569 (1, 2). Law and Morals, not always coincident,. 324, 325. Law of Mother Country, not courts, colonists take, 193. Law's Motives, 338. Law of Nations, how interpreted and enforced, 14 ; limits statutes, 112 (2), 115 and note (par. 9), 124; all bound by, 124; some principles of, 99-144, 484. Law of Nature, rule for courts, 17. Law's Seasoning, illustrated and ex- plained, 273-278. Law Unjust, no pardon because, 922 (2) Lawful Assembly, becoming unlawful, 634 (1). Law^ful and Unlawful, mingled in sen- tence, 931. La-wfully Together, several, crime by one, 634 (1). Lawyer, criminal law of, full, 895 ; test oath from, 279 (4) ; should defend the indicted, 376 (4), note, par. 12; conspir- ing witb client, 895 ; contempts by, dis- barring, 895. Lazy, compelling, to work, 453-455. Leach's Crown Cases, 72. Lease, riotous entry on termination of, 537. Leave Country, what right to, 512; condition of pardon, 915. Legal Incapacity, for full crime, no at- tempt, 746. Legal Language, what words in, iudiqate criminal intent, full, 425-429. Legal Opinions, inaccurate language of, 551, 552. Legal Practitioners, criminal law of, full, 895. Legal Process, justifying under, 355 (2) ; abuse of, 588. Legal Reason, law as, 1081 (1}, note; adheres in law, 274, 275. Legal Reasoning, illustrated and ex- plained, 273-278 ; inaccurate, 551 ; question not settled by, 570. Legal Writings, divisions in, 445, 447. Legislative Bodies, contempts against, 461-463 ; whether impeachable, 461 ; pardonable, 913 (1). Legislative Reasoning, 277. Legislator, official misdoings of, 461, 462 (1,3). Legislature, laws administered by, 28 ; pardon by, 899, note, 900, 901 ; pardon not appeal from, 922 (2). Letter, advertising, 237 (1), note; from ignorance not delivering, 303 a, note, par. 12. Letter Carrier, larceny by, 440 (2). Letters to Enemy, overt act of trear son, 437 (5). Letting or Selling house for bawdry, full, 1090-1096. Levying War, remote participators in, 226. Lewdness, open and gross, 500 (2) ; de- livering lewd woman of child, 1121 (2). Lewin's Reports, 73. Libel, by one in another country, 110; having, with intent, 204 ; by servant, 219 (2), 221 ; believed true, under duty, interpretation, 308 ; truth in defence, 308, 319 ; negligent, rumor not justi- fies in, 319; by corporation, 422 (3); why punish, true or false, 591 (4), 734 (2) ; by procuring, from another who not follows directions, 637 (4) ; whether misprision of, 719; writing, with intent, 761 (3); conviction for part of charge, 799 (2) ;, pardon on action for, 898 (2), note, 917; punishment, 945 (2). Libel on Foreign Prince, 484 (2). Libel on Government, 457 (3). Libel and Slander, indictable, why, 540 (4). Liberty, preserved by obeying laws, 64, note (par. 12), 926; whether take life to protect, 868. Liberty of Conscience, 499 a. License, and permission of law, 208 ; no private, of crime, 258 ; to sell, not pro- tects tippling-shop, 1113, 1115. Life, when one may take aggressor's, full, 849-859; another's, to save own, 348, 348 a ; what defence by taking, 839 ; avoid taking, 846, 847 ; in defence of castle, 858, 859 ; not of property, 861. "Life or Limb," meaning, 990. 855 LUC INDEX OF SUBJECTS TO THIS VOLUME. MAN Lighter Misdemeanors, participants iu, 657-659. Lighter Offence, direct participation in, 226; solicitations to, 768, 768 a (2). Limb, what defence of, 866. Lime-kiln, as nuisance, 1143. Lingering Death, as punishment, 947 (4)- Liquor Keeping, forfeitures for, 833 (3)-835. Liquor License, pardon as to qualifica- tion for 918'(2). Liquor Nuisances, statutory, 505 (2j. Liquor Selling, hy clerk, 219 (1); to minor believed of age, 302 (2) ; believed not intoxicating, 303 a, note, par. 20 ; disorder of buyers, 318 (2) ; by wife, 361 (3), note, 366 (2) ; as question of public health, 493 (1) ; constitutional, 493 (2) ; regulations of, 505 (1, 2) ; participants in, 658 ; by servant, 658 (2) ; procurer of, 686, 688 (1) ; attempted, 761 (2) ; for- feitures for, 833 (3)-835 ; husband for wife's, 891 a ; bonds for peace, 945 (2) ; joint, punishment, 957 (1); jeopardy barring, 1054 (2), 1065 (2); habitual, makes nuisance, 1119. Listening, ' in eavesdropping, 1122 (4), 1123. Livery Stable, whether nuisance, 1 138 (3), note, 1143. Living in Adultery, 501 (2). Loaded Arms, not duly loaded, 758 (2). Local Office, refusal of, 246 (1). Locality of Crime, as to the govern- ment offended, full, (c. 6-10) 99-203. Location of tippling-shop, 1116. Loco Parentis, master in, 887 (2, 3). Long Island Sound, not in State, 148. Looker-on, "while crime committed, 204 (4). Lord's Day, necessity excusing breach of, 349, note ; whether and why indict- able, 499 ; breaches multiplied to nui- sance, 499 (2) ; statutes, constitutional, 499 (3) ; what violations of, in one day, 793 (2); as to tippling-shop, 1114(2). Loss of Life, civil damage, indictment, 1069 (2). Lotteries, right to restrain, 493. Louisiana, common law of crime in, 37. Lower Animals, what protection from criminal lajv to, full, 594-597 a. Lower Crime, as to excusing necessity, ■ 353. Lucre, bawdy-house not for, 1086; dis- 856 I . orderly house, 1112; gaming-house, 1137 (2). Lunacy, insanity, 375 (2). " Lunatic," meaning, 375 (2), note. Lying, leniency to, 477 (2), 478. Macloon's Case, considered, 115, note. Magistrate, mistaking law, 299; dis- cover crime to, 721 ; discharge by, as to fresh proceedings, 1014 (2). Magistrate's Order, breach of, 240 (1). Magistrate's Warrant, disobeying, 240 (3). Magnitude (see Small Things), crimi- nal act and intent must be of adequate, full, 212-228; the, of act in attempt, full, 737 (1), 759-764; of insanity, 391 (2) , of act, 436, 480 ; of thing stolen, 579 ; of evil, crimes differ with, 602 (2) ; of participation, 657-659 ; by reason of small, petit larceny no accessories, 680 Maintenance, facts mistaken, 307 (3) ; defined, 541 (1). Majority, age of, 367 (1). Malfeasance iu Office by officer de facto, 464 (2). Malice, not in killing to prevent starving to death, 348 o (2) ; drunkenness sup- plies, in murder, 401 ; and tends to re- but prior, 414. > " Malice Aforethought," meaning, 429 (2) ; in murder, 600 (2). "Malice," "Malicious," "Mali- ciously," meaning, 427 (2), 429. Malicious Mischief, 568-570 ; mistake of law as to ownership in, 298 ; whether, to real estate, 569 (3), 570, 577 (1) ; not cruelty to animals, 594, 595 ; the malice, 595 ( 1 ) ; conviction of, on proof of lar- ceny, 792. Malicious Shooting, participant in, 658, note. Malpractice, by physician, 558 (1) ; by attorney, 895. Malum Prohibitum, unlike malum in se, as to stare decisis, 95, 96 ; as to mistake of law, 295, 296 ; as to intent; 331-333; participants in statutory, 657 (2), 658 (1), note; compounding what is, 712 (2). Man's Reasoning, differs from law's, 274 (1). Mandamus, civil or criminal, 32. Manslaughter, throngh carelessness, 217 ; how great provocation reduces to, 227 ; by steamer neglecting duty, 303 a, MAX INDEX OF SUBJECTS TO TJHIS VOLUME. MIN note, par. 12 ; because mistake of fact, 305 (3); from differing carelessness,; 314; to prevent starving, 348 a (2); in wife from neglect of apprentice, 364 |3) ; intoxication, 414, 415; accessory before in, 678 (2) ; second-degree prin- cipals in, 678 (3) ; accessories in, 698 (2) ; is homicide next below murder, 780 (3); conviction of, murder proved, 792 ; on indictment for murder, 795 ; except, 8U ; conviction of assault and battery, 808, 809 ; in resisting what ar- rest, 868 (2) ; conviction of, bars murder, 1056 (2) ; so does wr,ong discharge of jury, 1058 (2). Manslaughter, Murder, distinguished, in assault with intent, 736 (4). Manufacture Law, courts not, 18-20. Manufactures, in nuisance, 490 (3). Many Intents, operating together, full, 337-345. Many Persons, conspiracy to injure, 592 (2). Marine League, limitation of, on ocean, 104 ; not line for counties, 146. Mariners, when, die for passenger, 845 (2). Maritime Jurisdiction, with us, 173 , Congress as to, 173-176. Market, noxious food in, 491 (1) Marriage, forcible, abduction, 555. Martial Law, distinguished, 25, 31. Martial and Military Law, exposi- tion of, full, 43-68. Maryland, as to the Potomac and Chesa- peake, 150. Master, as to crime by servant, 218-222, 316, 317, 658 (3), 889 , command from, not justifies servant, 355 (1) ; in forfeit- ure in rem, 824 (3) ; whether chastise servant, 887. Master and Domestic Servant, criminal law of, full, 887-889. Master Mariner, chastise seamen, 882. Maxims (see Leoal Reason), "caveat emptor," U ; " actio non datur non damnificato," 11, note ; " asstimatio prse- teritj delicti ex postremo facto nunquam crescit," 208, note ; " injure non remota causa sed proxima spectatur," 213 ; " de minimis, non curat lex,". 213 ; " cessante ratione legis cessat ipsa lex," 273 (2), 275, 805 (2); "actus non facit reum nisi mens sit rea," 288, 303 a, note, par. 2 ; " actus me invito factus non est meus actus," 288 ; " ignorantia juris non excnsat," 294(3); "ignorantia facti excusat," 301 (2) , " qui facit per alium, facit per se," 673 (2), note , " lan man is to be brought -into jeopardy of his life more than once for the same offence," 980 (3); how expressed in our Consti- tution, 981, and further of, 982. Mayhem, injury in self-defence not, 257 (2) ; consented to, 259 (2) ; on self, 259 (2), 513 (2) ; " malice aforethought" in statutes of, 429 (2); defined, 547 (2); includes battery, 548 (2); by one, of pursuer of joint offenders, 635 ( 1 ) , after joint assault, 635 (2) ; what defence against, 866, 867 (3) ; punishment, 935. Means, what adaptation of, to end, in attempt, full, 738-758, 769. Medical Practice, homicide from what, 314 (3). Members of Corporation, indictable, 424. ' Menace to Government, what wrongs punishable as, full, 456, 457. Mental Capacity, want of, excusing act, full, 374-396 a ; no crime without, 396 a. Mental Culpability, indispensable, 303 «, note, par. 2. Mental Force, injuries to the person by, 546, 560 (2, 3), 564; to ownership of property by, 581-590. Merchant Ship, foreign, 130. Merchant Vessel, mistaken for pirate, 306 (1), Merger, of conspiracy to offend, in of- fence, 814. Merger of Offences, the doctrine of, full, 786, 790, 804-815. Military Jurisdiction, 44, note ; jeop- ardy under, 1029 (4). Military Law, distinguished from ju- dicial, 25, 31. Military and Martial Law, full, 43-68. Military Officer, command from, 355 (1 ). Military Orders, foreign, 132, note. Military Reservation, jurisdiction over, 159, note Militia Fine, suit to collect, 32, note. Milligan's Case, considered. 64, note. Mind, crime is in the, 287; death by working on, 562, 563. Ministerial Office, refusing, 458 (2). Ministerial Officer, mistaking law, 299 ; breach of duty by, 459, 460 (1). Minor, what incapacity of, for crime, fuU, 367-373 ; selling to, mistaking age, 857 MIS INDEX OF SUBJECTS TO THIS VOLUME. MOB 302 (2) i mistaking age of, in gaming, 304, note; in voting, 307 (4). Minor Offence, conviction of, 791-815. Minute, attempt not too, 739. Minute Insanity, 376 (3), 380 (1), 391 (2). Misadventure, old liomicide by, 968 ( 1 ). Misapprehensions of doctrine of mis- take of fact, 303 a and note. Miscarry, riot causing woman to, 537. Misconduct, insanity from own, 406. Misconduct of Jury, as to prisoner, 1038. Misdemeanor, defined, one of tliree di- visions, full, 623-625 ; tlie principal in, full, 656-659 ; instigator in, correspond- ing to accessory before, full, 685-689 ; helper after, corresponding to acces- sory after, full, 705-708 ; instigations to low, 226 ; right to arrest one commit- ting, 441; lowest degree of crime, 599 (1), 602 (3); principals and accessories in, 604 (10); first and second degree principals in, 656 ( 1 ) ; partakers in the lighter, 657 ; accessories in, 685-689, 705-708; compounding, 711 (1); is a, 709, 715 «,- no misprision of, 717 (2); misprision is, 717 (3) ; attempt to com- mit, 759 (2), 761 ; attempts are, 759 (2), 772; some statutory ones felony, 772 (4); not both, and felony, 787.(2); on indictment for, proof of felony, 788, 789, 812; on indictment for felony, convic- tion of, 804 (2) et seq, ; advantages at the trial for, 804-807 ; " feloniously " in indictment for, 810; committed by means of felony, 815; what right to defend against, 850 (1,2); to appear as ghost is, 873 (3); punishment for, 940, 942-945 ; former jeopardy for, 990 (2, 3), I ' 991 ; no new trial to State for, 993 ; wrong conviction of, and of felony, 1001, 1002; new trial, 1002, 1003 (1); jeopardy of, as to felony, 1055 (1). Misdemeanor and (or) Felony, com- pared, 787 (2), 804 (2); under statutes, 789 ; distinction promotes certainty, 854 ; whether nuisance is, 1078 b (1). Misdirection at Trial of misdemeanor alleged "feloniously," 810. Misfeasance (see Malfeasance), com- pared to non-feasance, 217, 420; by cor- poration, 420, 422. Misnaming Offence, not vitiates, 595 (2). Misprision, full, 716-722; vchat, and 858 why a crime, 267 (3), 275 (2), 276, 609 (9) ; defined, 624 (2) ; anciently receiv- ing, 567 (1), 699; not accessorial, 694 (1, 2) ; how law of, aids self-defence, 851 (2). Misprision of Felony, whether by re- ceiving, 699 ; United States statute against, 722; is misdemeanor, 813. Misprision of Treason, 226, 4.57 (2) ; by receiving traitor, 703 (2) ; United States statute against, 722; is misde- meanor, 813. Missiles cast into Street, homicide from, 314 (4). Mistake (see Ignorance ), of law or fact, disqualifying or not for crime, full, 292-312; preventing forfeiture in rem, 824 (3). Mistake of Fact, excuses crime, 303 a, note, par. 12 ; by steamer causing death, 303 a, note, par. 13; insane delusion as, 303 a, note (par. 6, 10, 13, 18), 392 ; making right act appear wrong, 441 ; in false news, 477 (1), note; as to own- ership, 576 ; in attempt, 753 ; in self- defence, 874 (1). Mistake of Lawr, on issue of insanity, 384 and note; in preventing inquest, 688 (3) ; in attempt, 753. Mistake of Lavr and Fact, in combi- nation, full, 311, 312. Mistaking Person wounded, 736 (6). Mitigation and Aggravation, at sen- tence, 601, 948-950. Mob Law, when a necessity, 14, 16, 17. Modern Doctrine of Insanity ex- plained, full, 381-396 a. Modern Needs of restraints by law, 532 a. Money, recovering back, 1 1 ; bet on election, 821 (2). Money in Possession, pardon, 910 (1). Monomania, in law of insanity, 380 (1). Monopolies, 522 (2). Moral Insanity, 387, 388; dipsomania as, 407. Moral Science, criminal intent in, 289. Morals, rule of, as to crime, 209, 211 a, 239, 242 ; as to mistake of fact, 303 (3) ; as to excuse of intoxication, 403 ; public shows violating, 504 (1); conspiracies against, 592 (2) ; cruelty to animal cor- rupting public, 596 (1); how law takes cognizance of, 600. Morals and Iinvr, distinguished, 324, 325. MUR INDEX OF SUBJECTS TO THIS VOLUME. NEE Mortal, whether charge wound as, 115 note, par. 3, 4. Mortgaged Crop, infant selling, 369 (2). Mortgaged Property, selling, 572 d (2). Motive, more than one, 337. Motive of Owner, in forfeiture in rem, 825. Motive for Pardon, 942 (1). Mountebank's Stage, indictable, 504 Mulatto, cohabiting with, 659 (1). Municipal By-law, forfeitures by, 832 ; future steps on statute, 1029 (3). Municipal Corporation, refusing office in, 246 (1); abating nuisance, 1081 (1), note; not abating, 1082; by-laws of, against bawdy-houses, 1089. Municipal Ulections, offences against, 471 and uote. Municipal Law, nature and sources of, 3. Municipal Ordinance, suit on, civil or criminal, 32. Murder, by person in another country, 110; in foreign country, 1 21 ; by foreign command, 132, note, 134; of alien enemy, 134 ; killing one wrongly supposed com- mitting, 303 «, uote, par. 4 ; to prevent starving to death, 348 a ; husband's coercion to, 358 (2), 36-1 (2); by very young cldldren, 371, 372; Freeman's uujust conviction for, 376 (4), note; "malice aforethouglit " distingaishing, 429 (2) ; what act toward, not attempt, 435 (3) ; premeditatiu4i, malice, &c., 600 ; by one in forcible detainer, 633 a (4) ; ' by one armed to beat a man, 633 a (5) ; to drive from his premises, 633 a (6); petit treason, accessory, distinguished, 666 (3); stand by and see a, 718; in attempt to, intent to take life, 730; whether, also assault, 788 (1), 789; con- viction manslaughter, 792, 795 ; except, 811; needlessly killing aggressor, 843 (2) ; after retreating to wall, 871 ; in return for provoking language,, 873 (2) ; in parental correction, 882 (2), note. Murder and Arson, in one transaction, 781 (2). Murder of Child, counselling, before birth, 676 (1). Murder in First Degree, intoxicntion in, 409, 410; ultra vires to corporation, 418; indictment for, 797. Murder and Manslaughter, division into, 600 (2) ; in assault to kill, 736 (4). Murder in Second Degree, accessory before in, 678 (4). Mutual Assistance in defence, 877. Mutual Combat or Quarrel, " retreat towall"iu, 870, 871. Mutual 'Wrong, not sue, 11. Naked to Waist, woman in street, 1132. Name of Crime, not necessary, 599 (2), 736 (3), 776 ; in attempt, need not know, 736 (3). Name of OfiTence may differ in indict- ments, 1050 (2), 1051. Names of Witnesses, waiver of right to, 997 (3), note. Nation, United States as a, full, 182- 188 a; how became, 190. National Cemetery, 159, uote. National Common Law, whether we have a, full, 189-203. National Power of States, 172. Natural Reason, in criminal intent, 740. Natural Tendency, and unintended re- sult, 336. Nature, law of, in courts, 17, 274 (1). Nature of Act, in crime, full, 430-442. Nature of Crime, magnitude varies with, 436. Nature Injurious, act as of a, 434. Navigable Rivers, obstruction and iu- juries to, 531 (21. Navigable Waters, maritime jurisdic- tion over, 173-176. Navigation, mutual rights of, 108; Con- gress to regulate, 173-176. Navy, foreign, 130. Nearness of Act to substantive, in attempt, full, 759-764. Necessity, law is, 5, 7 ; takes away crim- iuality, 53, 54, 346-355 ; justifies martial law, 54; makes ignorance of law no excuse, 294 (1,2); is supreme law, 346 ; impossible to break, 383 6; varies with circumstances, 350-355 ; prevents for- feiture in rem, 824 (3) ; right of defence is from, 842, 844 ; none beyond, 861 ; one not plead a, he brings on self, 869 (3), 870; falsely appearing real, 874 (1); for discharge of non-agreeing jury, 1035 ; thing created by, not nuisance, 1081 (2), note. Necessity and Compulsioli, as ex- cusing crime, full, 346-355. Needless Damage, not abate nuisance by doing, 828, 1081 (2). 859 •NOL INDEX OF SUBJECTS TO THIS VOLUME. NUI Neglect, criminal liability from, 314, 433; wife nod for liusbaud's, 364 (3); corporation for, 419 (3) ; is eriminalact, 433 ( 1 ) ; corrupt, of official duties, 468 a ; of, dependent person, 557 ; misprision is, 717 (1), 718-721 ; liow great the, 721. Neglect of Duty, 237-242; nuisance from, 316(1). Neglect to Learn, as evil intent, 324. Neglect to Prosecute, 267 (3, 4), 275 (2); civil defendant avail of, 269-278. Neglect Self, right to, 513 (1). Negligence, one's, not justifies other's wrong, 257 ( 1 ) ; in believing rumor, 319 ; necessity created by, 352 (1). Negligence and Carelessness, as ele- ments in evil intent, full, 313-322. Negligent Escape, by deputy, sheriff's liability for, 218 ; is criminal, 316 (2). Negro, Negroes, suffrage by, 169-171 ; taking, in steamboat, 307 (1); dphabit- ing with, 659 (1). Negrophobia, insanity of, 376 (4), note, par. 13, Neighbors may defend house, 877 (3). Neutral's Share, forfeited, 826 (2). Neutrality, violations of, 482. Nevr, a thing unthought of not neces- sarily, 261 (2), note. New Cases, how decide, 18, 19. Nevir Inn, setting up, to compete, 532 (1), note. Neiv Jersey, over Hudson River, 150. New Offence, statute creating, 225. New Trial, on application of defendant, full, 1001-1007 ; when not to State, 992 (2), 993 ; after acquittal through fi;aud, 1009 (1); for what defect injury, 1039. New York owns Hudson River, 150. New York Harbor, •jurisdiction over, 148. Newly Discovered Evidence, par- don for, 923 (2), 924 (1). Newspaper, liability for libel in, 219 (2), 221. Nine Parishes, way for only, obstruct- ing, 245 (2), note. No OiBoe, no officer de facto, 464 a. Noise, disquieting neighborhood, 531 (2) ; brealiing dwelling-house and, 537; as- sault by, 549; in offensive trade, 1138 (3). Nolle Prosequi, of what is not responded to by verdict, 1006 ; before jury sworn, 1014 (4) ; after, 1016 ; after verdict, 1017 860 (1), 1021 (4); after submitted to jury, 1017 (2). Nolo Contendere, denying guilt after, 948 (3). Non-capital Offence, misdemeanor or felony, 617 (2), 617 a. Non compos Mentis, meaning, 375 (2), note. Nonconformity, 496 (3). Non-feasance, compared to misfeasance, 420; by corporation, 421. Non-feasance in Office, by officer de facto, 464 (4). JTon-repair, of several streets, jeopardy as to one, 1061 (2). Non-repair of one Street, proof of several, 792. Northern Lakes, jurisdiction over our, 108. Not Favored, distinction of accessory before and principal, 674 (1). Not Guilty, new trial after, 1004-1007. Not Meant, homicide of one, 328. Noxious Trades, 491 (4), 492, note, 531 (2), 1138 (3), et seq. Nuisance, law of, full, (c. 64-74) 1071- 1151; namely, general, 1071-1082; bawdy-house, 10S2a-1096; combusti- ble things, 1097-1100; common scold, 1101-1105; disorderly house, 1105 a- 1121 ; eavesdropping, 1 122-1124 ; expos- ure of person, 1 125-1 134 ; gaming-house, 1 1 35-1 137 ; offensive trades, 1 138-1 144 ; public shows, 114.5-1149; wooden and other objectionable buildings, 1150, 1151. Inheriting, not punishable, 204 (5) ; criminal responsibility in, 221 ; too small to be indictable, 227 ; criminal and actionable, 236; "to common nui- sance," 243 (2) ; how many injured, 244 (1); civil and criminal, 265 (1); from neglect, 316 (1),433 (1); master for, by servant, 316 (3) ; in ohstructiug way, to its benefit, 341 ; by corporation, 419 (2), 422 (2) ; continue, 433 (2) ; filthy house as, 490 (2) ; other, injurious to health, 490,-491 ; carrying on noxious trade, 491, 531 (2), 1138-1144 ; various bawdry as, 501 (2) ; liquor-selling places, when, 505 (2) ; as disturbances to public con- venience and safety, 531 ; conspiracy to create, 592 (2) ; cruelty to animals as, 597, 597 a ; destruction of property by abating, 821 (2) ; not abate mere threat- ened. 823 (-2) ; after pardon, abate, 829; spring-guns as, 855, 856. OFF INDEX OP SUBJECTS TO THIS VOLUME. ONE Nuisance as Abatable, general doc- trine of, full, 1079-1082. Nuisance as Indictable, general doc- trine of, full, 1072-1078 6. Numbers, display of, in crime, 538 (1) ; to what, expose person, 1127. Obloquy, not withhold defence from fear of, 376 (4), note, par. 12. Obscene Libel, having, procuring, 204 (2) ; from good motive.?, 309 (2) ; in- dictable, 500 (2) ; why, 591 (4) ; attempt, 761 (3); how public, 1129. Obscene Pictures, 500 (2), 1146 (2); procuring, with intent, 761 (3) ; public, 1129. Obscene Words, public, 500 (2). Obstructing Arrest, 465 (2, 3). Obstructing Cars, uot disqualifies wit- ness, 974. Obstructing Justice, 468 (1). Obstructing Officer, 465-468 ; surplus motive in, 340 (3). Obstructing Private Suit, indictable, 467 (1). Obstructing River, by servant, 1075. Obstructing Way, with no damage, 244 (3) ; by corporation, 420 (2), 421 (2). Obstruction of Justice, by aid after fact, 692 (2). Obstruction of Way, accidental, 829 (2). Occult Inefficacy of means, in attempt, 738. Ocean, our national boundaries and juris- diction on the, full, 103-106 , crimes on, 112, 117, 118; blow on, death on land, 112 {3)-M6 ; stolen on, carried to land, 141 ; how offences on, prosecuted, 176. Offence, Offences (see Ckime), merger of, full, 786-790, 804-815; subsequent to first, full, 959-965 ; to what, former jeopardy, full, 990, 991; house wherein, habitually committed, full, 1119-1121; no pardon of, before committed, 903 (1), 904; how judgment for two or more, 953. Offence against Nature, sodomy, 503 '^)- Offence Repeated, punishing more heavily, 283. Offences Common, places wherein, 505 (2). Offences against Government, direct, full, 456, 457 ; incidental, full, 472-479. Offences in one another, doctrine of, 774-785 a, 791-815 a; as to homicides, &c., 779 ; crimes less than felony, 793 ; allegation and proofs, 794-798; juris- diction, 811. Offences the Same, when, in former jeopardy, full, 1048-1069. Offending Thing, 816, 819, 823 (1). Offensive, rendering air, 531 (2), Offensive Trades, full, 531 (2), 1138- 1144. OfiSoe, crimes relating to, full, 458-471 ; refusal of, 246 (1); usurping, 468 (6), note ; reward for, 47 1 ; forfeiture of, 944 (2); on attainder, 971 (2). Officer, Officers, crimes by and against, full, 458-471 ; to administer laws justly, 28 ; of State aud United States, making exclusive, 180; suffering escape, 218, 316 (2), 321 (2); breach of duty, 240 (3) ; mistaking law, 299 ; arresting mau supposed drunk, 303 a, note, par. 5 , in- dictment for a.ssault on, 334 (4) ; re- sisting, no warrant, 440 (3) ; doing riglit act seeming wrong, 441 ; killing one resisting arrest, 441 ; breaches of duty by, 459-464 ; de jure and de facto, 464 ; personating, 468 (6), 587 (2); prevent- ing attendance of, 468 (2) ; refusing to assist an, 469 ; slandering, assaulting, &c., an, 470 ; of foreign government, libelling, 484 (2) ; extorting money, 587 (1); resisting unlawful ixrrgSt by, 868 (2). Officer de Facto, 464, 464 a, 468 a (2). Officer de Jure, 464, 464 a. Official Acts and Duties, crimes re- lating to, full, 458-471. Official Corruption, mistake of law, 299. Official Duty, breaches of, 459-464, 468 a ; assaults on officers doing, 470 (2). Official Neglects, 468 a Official Person, drunkenness by, 505 (3); assault on, 548 (2). Ohio, no common-law crimes in, 35, 37, note; boundary of, on Ohio River, 150. Oligarchy, not republican government, 170. Omission, is an act, 217 (3), 420; homi- cide from, of duty, 217 (3), 314 (1) ; in pardon, 905 (2), 906. One End, several acting to, 650 (1 ). One Person, injury to, 231, 233, 234. One of Several, erime by, 634 (1); homicide by, 635 (3); robbery by, 635 861 OVE INDEX OP SUBJECTS TO THIS VOLUME. PAR Ontario Lake, ownership, counties in, U9. Open Bathing Place, nuisance after settlements, 1131. Open Coast, crimes upon, 176. ' Open and Gross Lewdness, 1129. Open House, disorderly, 1111. Open Lewdness, various forms of, 500 (2). Open Shop, on Lord's day, 793 (2). Operation of Law, consequences of sen- tence by, full, 966-977 ; namely, attain- der and its forfeitures, 967-971 a; on capacity to be witness, 972-976 ; other consequences, 977. "Opinion, without act, 497 (2), 499 a; one's, of own act, 736 (3, 4). Opinions contrary to Law, 309. Opposing Crime, killing while, 637 (3). Opposite Things, swearing to, 1044. " Or," in statute, how indictment, 78.5 (2), 799 (4) ; in provision for punisli- ment, 941. " Order," Orders, disobeying judicial 469 (3). Order of Abatement, not punishment, 829 (3). Order and Tranquillity, criminal law protects public, full, 533-542. Order of Trial, in treason, 683 (2), 684. Ordinance, Ordinances, suit on mu- nicipal, civil, or criminal, 32; against bawdy-houses, 1089; against wooden buildings, 1151 (2). Ordinance of City, driving faster than, allows, 336. Ordinarily Courageous Man, like, ■in self-defence, 874 (2). Ordinary Capacity, in false pretences and self-defence, 874 (2). Out of Country, compelling to go, 458 (2), note. Outlawry, with us, 967 (2) ; in England, 969 a. Outlines of Crime, its technical di- visions and distinctions, full, 598-606. Outlines of Law, with introductory views, full, (c. 1-4) 1-68. Outside Disturbances, in tippling- shop, 1115. Outward Indecency, in bawdy-house, 1087; or disorderly house, 110? (3), 1109. "Overcoats," jeopardy for embezzling, "cloth," 1053 (7). 862 Overlooking statute, or common-law rule, 140, note. Overseer of Poor, refusing office of, 246 (1), 458(2). Overt Act, in conspiracy, 432 ; in treason, 437 (5) ; in self-defence, 843 (2), 850 (4), 865 (2), 869 (1), 872. Owling, 517. Own, believing another's to be, 576. Ow^n Conviction, procuring, in former jeopardy, 1010 (1) Own Life, treasonable act to save, 347 (3) ; preferring, to another's, 845. Own Property, destroy, 514. Owner's Concurrence, in forfeiture, 825-828. Ow^ner's Motive, in forfeiture, 825. Ownership, dealing with another's un- der claim of, 576; parting with, in larceny, 583. Oysters, State regulates taking, 176, note. Papers, circulating, to influence cause, 468 (5). Pardon, law of, full, 897-926 a ; after blow and before death, 113, note; cau- tion for case justifying, 211; because law not known, 296 (4) ; because court misinterprets, 303 h ; not repeal laws by, 303 b ; of principal, as to accessory, 668 (4); of nuisance, abatement, 829 (4); on sentence foi^other offence, 953 (2), on fSrfeited office, 971 (2); when, in- stead of new trial, 1001 (2), 1003 (1). Parent, command from, 355 (1 ) ; coercion by, 367 (3); punish child, 372; how chastise, 881 (1); not protect him in crime, 884 a. Parent and Child, criminal law of, full, 880-884 6. ' ' , Parent's Command, not justifies crime, 884 o(l). Parental Judgment, in chastisement, 881 (1), 882. Parish, non-repair of ways by, 419 (1); abandoning child to charge the, 884 (4). Parliament, pardon by, 899. * Parol Evidence to identity, in former jeopardy, 1050 (1). Part of Transaction, jeopardy for, 1056- 1064, Partaker, magnitude of crime on, 226 ; of guilt, by assisting felon, 692 (3, 4). Partial or Full, pardon as being, full, 914-920. PER INDEX OP SUBJECTS TO THIS VOLUME. PHY Participants, in felony, 646; in nui- sance, 1078 h (%). Particular Evil Consequences, of act, 223. Parties Attainted, testifying in own cause, 973. Partly Performed, joining act, 642 (1). Party Politics, and war powers, 66 ; and law, 169, note. Passenger, assault on, mistake, 301 (4) ; in accidents at sea, 845 (2). Passion, is not insanity, 387 (3) ; intoxi- cation ou question of, 415. Passports, violations of, 484 (3). Pauper, brealiing order to support, 240 (I); compelling, to work, 454; English 'laws of, with us, 508. Peace, no martial law in, 53 ; to break the, 537, 539, 548, 591 (4); libels tend to break, 591 (4), 734 ; sureties for, 945. Peace Endangered, not broken, 539, 540 (7), 591 (4). Peace and War, hostile acts in, 131-133, 153. Peculiar Beliefs, in law of self-defence, .305 (2), note. " Peculiar People," and medical attend- ance, 305 (2), note. Pecuniary Penalty, compounding a, 712. Penal Action, is civil, 32 ; husband and wife in, 366; compounding, 712; par- doned, 909-911 ; the diverse participants, 956, 957(2), note ; former jeopardy not applies to, 990 (2), 1067 (1) ; new trial, 993. Penal Statute, suit on, civil, 32 ; ex post facto, 279 (4) ; suing wife under, 366 (2) ; disobeying, pardon, 909 (1). Penalties and Forfeitures, pardon, 910 (3). Penalty, is essential to law, 6, 8 ; how affects indictment, 238, 242, note ; paid criminally, civil suit, 266 (3) ; for act lawful when done, 279 (4) ; where law not known, 296 (2, 3); compounding, 712 ; several, for same offence, 1067 Pendency, of proceedings, no bar, 1014 (2, 3). People and Government, inseparable, 451,452. Perfect Defence, of person and prop- erty, full, 842-859. Perfect and Imperfect Defence, dis- tinction of, full, 840, 841, 852r Perfectnesa of Adaptation, in at- tempt, 750. Perjury, oath advised by cbnnsel, 298 (4) ; reckless, 320 (2) ; by corporation, 422 (2) ; is attempt made substantive, 437 (3) ; to truth not believed, 437 (3) ; oath on void proceedings, 440 (4) ; be- fore oificer de facto, 464 (6) ; defined, 468 (4) ; resulting in capital conviction, 564 (2) ; nature of, as crime, as civil wrong of, 589 ; tends to pervert justice, 734 (2) ; punishment, 942 ; witness, 974. Permission, no, to commit crime, 258. Permission Abused, and license, 208. Permit, goods landed from necessity with- out, 351 (2). Person, Persons, combinations of, in crime, full, 628-643 ; summary of right to defend one's, full, 864-874 ; larceny from the, 566 (5) ; corporation is a, 570, note ; superior to property in defence, 839. Personal Help, accessory, 695 (1). Personal Preservation and Com- fort, offences against, full, 547-564. Personal Property, as to malicious mis- chief, 569 (3), 570. Personal Reasons, not pardon on, 922 (1). Personal Relations, other than domes- tic, full, 892-896; namely, principal and agent, 892 ; freetlmen, 893, 894 ; legal practitioners, 895 ; physician and pa- tient, 896. Personal Reputation, offences against, full, 591. Personal Violence, whether corporar tion commit, 422 (3). "Personating," 587 (2); no, of one never existing, 758 (4). Peirsonating OfBcer, falsely, 468 (6). Petit Jury, waiver of objections to, 997 (2). Petit Larceny, full, 679, 680 ; conviction of, on grand alleged, 799 (3), 801 (2) ; punishment of, 935, 942 ; as disqualifying witness, 974, 975. Petit Treason, what, abolished, acces- sories, 611 (2, 3), 666 (3), 681 (1); murder distinguished, 779 (2). Petroleum, rendering, 1143. Phenomena of Insanity, 379 fl). Physical Agency, immaterial by whose, 629. Physical Capacity, boy's age for, in rape, 373. 863 POL INDEX OP SUBJECTS TO THIS VOLUME. PRE Physical Elements, injuring through, 556 (2), 557. Physical Force, compared with mental, 546; all personal injuries by, 560 (I); injuring person or property, 574-580. Physical Wrongs, various, 547-564. Physician, liomicide from ignorance or carelessness of, 217 (1 ), 314 (3) ; fraud- ulently obtaining girl's consent, 261 (1 ) ; death from not employing, 305 '(2), note ; drunk from unskilfulness of, 405 ; malpractice by, 558, and see 217, 314, 896. Physician and Patient, relation of, 896. Pickpocket, 744 (1). Pictures at Windows, when indict- able, U46 (1). Pig-sty, nuisance of, 1143. . Pillory, punishment by, 942, 943 (1). Piracy, all nations arrest for, 120, 985; defined, 553 (4) ; larceny in, 566 (2). Pirate, privateer, 131 ; merchantman mistaken for, 306 ( 1 ) . Piratical Aggression, forfeiture for, 826 (1). Place, assault aggravated by the, 548 (2). Plaintiff, civil, one damage, not in crim- inal, 955 (1). Plaintiff in Wrong, in civil causes, 11, 267. Plans to entrap, 262, 263. Plea, no jeopardy until, 1014 (2), 1029 a. Plea of Guilty, evidence in civil suit, 977 (2) ; no fresh indictment after, 994; in former jeopardy, same effect as ver- dict, 1049 (2). Pleadings not ready, no jeopardy, 1040 (2). Plurality of Crimes, in transaction, 778 (1). Plurality of Intents, operating to- , gether, full, 337-345. Pocket-picking, attempt, pocket empty, 741, note, 743-745. Poison, killing wrong person, 328 ;. given to stupefy, death, 329 (3) ; principal in administering, 651 ; one not administers what not operates as, 758 (3) ; soliciting to administer, 768 c (1), note. Poisoning, through innocent agent, 651. Political Prisoner, meaning, 64, note, par. 3, 8. Political Slanders, 478. Polygamy, by marrying when other sup- posed dead, 303 a, note, par. 13-16 ; un- der statutes, 502 (3). Population and Public W^ealth, criminal law protects the, fuU, 508 a- 529 ; namely, population, 509-513 ; wealth, 514-517; specially as to food, &c., 518-528. Populous Places, and remote, in nui- sance, 244 (1 ) ; special regulations for safety of, 540 (3). Ports, foreign, crimes in vessels in, 117. Possession, with intent, 204 (2) ; is evidence of procuring, 204 (3) ; partitig with, in larceny, 583 ; of one is, of all, 656 (2) ; pardon as to things in, 910 (1). Post-ofEce Letter, larceny of, 440 (2). Postmaster, civil liability of, 237 (1), note. Potomac, the, 150. Powder Magazine, nuisance, 1098. Power of United States, implied, specific, 185. Practical Science, criminal law is, 210, 211. Precedent or Subsequent, condition of pardon, 914 (3), 917. Precedents, not cover all law, 18, 19, Pregnant, in attempted abortion, 741. Pregnant Woman, deliver, 1121 (2). Preliminary Things of Record, in at- taching of jeopardy, full, 1020-1029 a. Preparation, and attempt, 763, 764 (3). Prescription, not makes criminal nui- sance lawful, 1078 a ; in offensive trades, 1139 (2), H41. Presence, what the, in husband's coer- cion, 359 (2); coercion as presumed from, 361, 362; whether creates guilt, 632 (2), 633 ; as to abettor, 653. Presence of Husband, as to wife's crime, 358 et seq. Present Ability, in assault, 737 (2), note. Preservation and Comfort, personal, offences against, full, 547-564. President, laws administered by, 28 ; war powers of, 60-64; not suspend habeas corpus, 63, note, 64 ; martial powers of, 67, 68 ; how restrained, 68 ; pardons, 899; not State disabilities, 920. Presumption, from sales in store, 219; of knowledge of law, 294 (2) ; fact, 302 (3); of husband's coercion, 359 (1), 362; of puberty, 373; of principal's guilt, 667 (3) ; of intending consequen- ces of act, 734 (1). PRI INDEX OP SUBJECTS TO THIS VOLUME. PRO Preventing Election, forcibly, 471. Preventing Inquest, partakers in, 688 (3). Preventing Witness from attending, 468 (2). Principal, in felony, full, 646-654 ; lia- bility of, for agent, 218-221, 317 ; com- mand from, agent, 355 (1) ; who, 604, 675, 676; separate acts of several, 650; through innocent agent, 651 ; construc- tively present, 653 ; also accessory, 664 ; accessory follows, 666 (1) ; no guilt of, no accessory, 666 (2); accessory con- victed, 667;- statutes for accessory before, 670, 671 ; accessory before, in reason, 673 (2) ; procurer of misdemeanor is, 685; helper after in treason is, 701 ; in- dictment as, no conviction as accessory, 803 (2) ; liability of, for agent, 892 (3). Principal and Accessory, distinction of, 604 ; one both, by separate acts, 664 ( 1 ) ; conviction of one, evidence against other, 669. Principal Actor, in crime, full, 644- 659; namely, in felony, 646-654; in treason, 655; in misdemeanor, 656- 659. Principal and Agent, criminal law of, full, 892 ; employer of another, guilty, 631 ; varying from orders, 636-641. Principal of First Degree, who, 604 (2,4, 10);- defined, 648 (2). Principal's Guilt, presumption of, 667 (3), 669. Principal of Second Degree, who, 604 (3,4, 10); defined, 648 (3); not acces- sory, accessory not, 663 (2). Principle or Principles of Law, de- termine new cases, 18-20; of same au- thority as statute, 140, note, 274 (1) ; in changed conditions, 593 (4); which courts not overturn, 958. Principles of Former Jeopardy, in reason, full, 1042-1047. Prison Breach, wife assisting husband in, 359 (3) ; at common law, 466 (2) ; assisting, as to accessory after, 695-698 ; from misdemeanor, 707 (2). Prison-keeper, delivering pardon to, 907 (1). Prisoner, sickness of, in jeopardy, 1032 (1) ; refusing release of, after jeopardy, 1041. Prisoner of War, meaning; 63, note, 64, pote, par. 4, 7 ; not habeas corpus to, 63 ; unwholesome food to, 484 (4). VOL. I. — 55 Private Abatement of nuisance, 828, 1080, 1081. Private Abuse, by words, 538 (3). Private Control, over own health, 494. Private Fighting, 535 (2). Private Injury, combinations to com- mit, full, 592, 593 ; from public wrong, 235 (1, 2). Private Justice, criminal law protects, 467 (2). Private Locality, disorderly house in, 1078. Private Nuisance, abatement of, 828. Private Person, injury to, 231-234, 250, 254 ; not assisting officer, 469 (1). Private Place, exposure of person in, 244 (2). Private Satisfaction, when, 713; agreement to forbear, 714. Private Settlement, sanctioned by court, 713 (1, 2). Private Suit, with criminal, 264 et seq. ; obstructing, 467 (1). Private Views, pardon not on, 925. Private Way, obstructing, 245 (2). Private Wrongs, indictable, full, 231- 234, 250-253, 543-593. Privateer, 131. Privileged, advice how to commit crime not, 895 (3). Privy Token, cheat by, 571 (1). Prize-fight, 260 (3), note, 535 (3); pres- ent countenancing, 632 (2), 658 (4). Probable Cause, arresting on, as drunk, 303 a, note, par. 5. Procedure, national, whether follows State, 194, 200 ; statute changing, after act, 279 (7)-281 a; precludes same act being both felony and misdemeanor, 804 (3), 806. Proceedings, no perjury in void, 440 (4). Processes of Reasoning, diverse, to one result, 278. Proclamation, pardon by, 907 (4). " Procure or counsel " (see Solicita- tion), statute interpreted, 670 (2). Procurer, the, as doer, 604 (6); of mis- demeanor, 685 ; intent of, 687. Procuring counterfeits, tools, and dies, 204 (2), 435 (3). Produce Gambling, offence of, 529. Profane Swearing, public, 498. Progressive Developments, in law of insanity, 395. Prohibited by Law, act, to be criminal, 438 (1). 865 PUR INDEX OP SUBJECTS TO THIS VOLUME. PUB " Prohibited to States," meaning, 156, 157,163. Prohibited Thing, indictable or not, 237-240. Protaise of Pardon, distinguished from pardon, 908 (5). Promissory Note or Notes, larceny of, 578 (1) ; several suits on, 588. Prompting Crime, 640. Proofs, not withhold, 387 (4). Property, offences against acquiring and retaining, full, 565-590; summary of right to defend, full, 875, 876 ; not join in treason to save, 347 (4) ; taking other's, to save own life, 349; do as will with own, 514, 576 ; injuries to, by physical force, 574 et seq. ; by mental and moral, 581 et seq. ; forfeiting, by wrong use, 816-835; law creates, and gives rules to, 819; defence of, re- stricted, 839, 857 ; not generally per- fect, 857 ; killing dog in defence of, 1080 (2), note, par. 3. Prophecies, false and pretended, 497 (2). Prosecute, neglect to, not accessory, 694 (2) ; agreement not to, obstructs justice, 715 a. Prosecutions, what, for one crime, 1067- 1069. Prostitution, not disqualifies witness, 974. Protection, the criminal law's, to the several interests of society, fuU, (c. 32- 41) 450-597 a. Provisions, supplying unwholesome, 491 (1). Provocation, intoxication, how affects, 414. Proximity of solicitation to full offence, 767 (4). Proximity of Offender, to completed crime, fuU, 626, 627 ; in various circum- stances, full, as, in combinations, 628- 643 ; principal actor, 644-659 ; accessory iu general, before fact, and the like, 660-689 ; accessory after, and the like, 690-708; compounding, 709-715 a; misprision, 716-722; attempt, 723- 772 a. Puberty, boy's age of, 373; in rape, 554. Public, how far the wrong must be, full, 229-254 ; namely, in general, 230-234 ; specially of public wrongs, 235-249 ; private, 250-524. How the criminal law protects the, full, (c. 32-39) 450-542. 866 Offence of cheat on the, 571 (2) ; con- spiracy to injure the, 592 (2) ; injury to, essential, 740; in disorderly house, 1109, 1111 ; in gaming-house, 1137 (1). Public Convenience and Safety, the criminal law's protection to, full, 630- 532 a. Public Cruelty, nuisance, 597. Public Duty, disobedience of, 239. Public Education, the criminal law's protection to, full, 507, 508. Public Good, must require punishment to justify it, full, 209-211 a. Public Health, protection to the, of- fences against, full, 489-494. "Public Indecency," words, 1134. Public Insanity, 376 (4), note, par. 13. Public Ministers, foreign, 126-128; causes affecting, 196. Public Morals, the criminal law's pro- tection to, full, 500-506; attempts to corrupt, 1129, 1130. Public Nuisance, defined, 1072 (1). Public Order, how the criminal law pro- tects, full, 533-542. Public Peace, breaking, by battery con- sented to, 260 (3) ; breach of, in defence of property, 875. Public Place, exposure of person in, 244 (2), 1127, 1128; adultery or forni- cation in, 501 (2); what a, 1128(2)- 1130; further of, 1129, 1130. Public Revenue, protection to the, full, 486-488 Public Safety, the criminal law's pro- tection to, full, 530-532 a. Public Show or Shows, full, 1145^ 1149; immoral or indecent, 504 (1)-, exposure of person is, 1125 (2). Public Sort, false token as of the, 585. Public Squares, injuries and obstruc- tions to, 531 (2). Public Tranquillity, the criminal law's protection to, full, 533-542. Public Ways, national and State juris- diction over, 173-176. Public Wealth and Population, the criminal law's protection to, full, 508 a- 529 ; namely, population, 509-513 ; wealth, 514-517 ; specially as to food and the like, 518, 528. Public Worship, disturbing assembly in, 542. Public Wrongs, nature and publicity of indictable, full, 235-249; namely, general, 235-242; injure how many, RAP INDEX OP SUBJECTS TO THIS VOLUME. EEC 243-246 ; how intense the evil, 247-249. Private injuries indictable as, 232-234. Publisher, liability of, for libel, 219 (2), 221 ; of newspaper, as to advertising, 237 (1), note. Pulling down House, 298 (2). Punishment, by sentence of court, full, 927-9.')8a; namely, errors in sentence, 930-982 ; sorts and extent of, 933-9.53 ; specially in joint convictions, 954-958. What, for ecclesiastical crime, 38 ; ob- ject of, 210 ; when statute not provides, 237, 238 ; suable, 237 ; statute may di- minish, after offence, not increase, 279 (6) ; when law not known, 29^ (3) ; rules to regulate, 303 a, note, par 2, 3 ; in impeachment, 463 ; limitations of, 600, 601 ; discretionary or not, 601 ; for ac- cessory before and principal, 673 (2) ; for petit larceny, 679 (2) , forfeiture in rem not, 816, 817 ; abatement of nui- sance not, 829 (3) ; substitution of, by pardon, 915 (1) ; taken away by pardon, 916 ; suffered on erroneous conviction, 1023. Punishment and Forfeiture, distin- guished, 833-835, Punishment Heavier, for offence sub- sequent to first, full, 959-965, Puppet-show, 1147. Purchaser, in unlicensed liquor selling, 658(1). Pure Mindj what flows from, 289, 290 ; under mistake of fact, 303 (2). Quarantine, breach of, 240 (2) ; public health from, 492. Quash, superfluous indictments, 1014 (3). Quashed, on demurrer, no jeopardy, 1021 (2), note. Quashing, as to jeopardy, 1027 (4). Quasi Civil or Criminal Suits, 32. Quasi Crime in rem, or forfeitures of things in the wrong, full, 816-835. Question of Law, pardon not review of, 923. Qui Tam Action, pardon on, 911 (1). Railroad, corporation's non-repair of, • 419 (ij; cattle-guards, 493 (1), note; obstructing, causing death, 531 (4, 5). Rape, consent to carnal act, 259 (3), 261 (2) ; by fraud, 261 ; on insane woman, 261 (2); boy's age for, 373, .5.54; physi- cal capacity for, 373 ; assault in, 261 (2), 548 (2), 788, 789; deflned, 554; old punishment for, 675 (1), note, incom- petent for, accessory, 689 (2) ; intent m attempted, 731 (5) ; repentance, woman yielding, 733 (1) ; man abandoning, 7-33 (2) ; no assault to commit, where full act not, 736 (5), 742 (2); woman the stronger in attempt, 737 (2), note, 742 (2) ; under puberty not attempt, 746 (2) , woman's consent after assault, before penetration, 766 ; act of not also as- sault, 788 ; conviction of incest, &c., on charge of, 795, 808 (2); how woman repel attempt, 866, note ; resist, to death, 867 (3) ; punishment for, 935, Real Estate, selling, -in another's pos- session, 541 (2J ; malicious mischief to, 569 (3), 570; compared to other, 577 Reason, guide for man, 274 (1) ; insanity precludes, 378 ; decisions interpreted by their, 846 ; law as, 1081 (1), note. Reason and Conscience, in the crim- inal law, 42. Reason of Rule, rule changing with, 805 (2), 806. Reasonable Cause, in self-defence, 874 (2). Reasonable Man, fears of, 874 (2). Reasonable and Proper, in chastise- ment, 882 (2). Reasoning, law a system of, 3, note, 42 ; legal, differs from legislative, 277. Reasoning of the Law, explained, 273-278 Rebellion, effect of, on law, 14 ; whether State or United States suppress, 48, 49 ; views of the, and decisions, 64, note ; money seized in a, 351 (4) ; refusing assistance to suppress, 469 (2). Rebels, joining, to save own life or prop- erty, 347 (3, 4) ; amnesty to, 898 (3), Recapture Property, right to, 536 (3). Receiver, non-feasance by corporation under, 421 (2). Receiver in Misdemeanor, 705-708 Receiving Back one's stolen goods, 694 (3) Receiving Stolen Goods, neglect to prosecute for, 268 ; larceny must pre- cede, 566 (3) ; nature of, 567 (1); ta,ke back own, 694 (3) ; whether receiver accessory, 699, 700 ; statute against, 785 (2) ; felony and misdemeanor, 789 ; disqualifies witness, 974. Recognizance, master's, for slave, 894 (1) ; remitted by pardon, 909 (2), note. Record, impossibilities not of, jeopardy 867 RES INDEX OF SUBJECTS TO THIS VOLUME. RIO attaching, full, 1030-1036, altering or counterfeiting, 468 (6); the, on jury disagreeing, 1034, 1036 Record Foreign, as to witness, 976 (1). Records of Court, forging or altering, 468 (6). Kecriiiting Soldiers, statute concern- ing, 752 (3), note. Refusing to assist Officer, 469 (1). Refusing Office, crime of, 458. Regrating, with forestalling and engross- ing, full, 518 (2)-528. " Regulate Commerce," United States to, 173-176. Rehearing, when State not have, 992 (2) , statutes for, 1026. Relations of Government with other governments, full, 481-485. Relative Strength,'in self-defence, 873 (4). Release Prisoner, refusing to, after jeopardy, 1041. Religion, criminal law's protection to, full, 496-499 a. Religious Imposture, 497 (2). Religious Nature, man's, 496 ( 1 ), 499 a. Remission of Guilt, is pardon, or pun- ishment, 898 (2), note, par. 2. Remote, act in attempt not too, 739. Remoteness, less, as crime is heavier, 226, Remoteness of Place, in nuisance, 244 (1), Repair Way, neglect to, 241, 531 ; im material on whom duty, 245 (3). Reparation of Wrong, on punishment, 713 (3), Repeal of La-w, pardon not, 303 6; as legislative pardon, 901. Repealed, statute not, hy blunder, 140, note. Repentance, after agent employed, be- fore he acts, 207 (4) ; not obliterates crime, 208 o, 732. Repetition of Offence, special punish ment for, full, 959-965 ; whether ex post facto, 283. Repetitions, in common scold, 1102 (2). " Republican Government," guar- anty of, to State, full, 161-171. Reputation, offences against, full, 591 ; in bawdy-house, 1088 (2, 3) j disorderly house, 1108. Request, not justifies taking life," 510 (2) Rescue, at common law, 466 (1); of 868 goods, 467 (2) ; conspirator in, fear, 639; accessory, 695 ^2J, 637. Rescuing Cattle and Goods, 467 (2), " Reserved" Pow^ers, of States, 186, Resignation of Office, without accept- ance, 458 (2). Resisting Arrest, 465 (2, 3). Resisting Civil Process, 467 (2). Resisting Crime, when and how, 849, 850 Resisting Officer, intent, in, 340 (3) ; through ignorance,' 440 (3); indictable, 464 (5), 465; obstructing coroner, 688 (3) , accessory after, 696 (2), 697. Resisting Officer de Facto, 464 (5). Resisting Process, 465 (2). Responsibility where Combination, 641. Result, evil intent producing unintended, full, 323-336. Retaining and Acquiring Property, offences against, full, 565-590 "Retreating to Wall," 850, 851 (2), 853 (2), 859 (3), 869 (2)-871. Retrospective Laws, may be valid, 279 (1). Return Process, refusal to, 240 (3). Revenue, protection to the public, full, 486-488. Revenue Forfeiture, remission of, 910 (6). Revenue Law^s, jurisdiction on ocean to enforce, 106; omitting item by acci- dent, 307 (2) ; breach under stress' of weather, 351 (2); object of, 486-488; forfeitures enforcing, 821 (4) ; necessity, mistake, &c., 824 (3). Reversal of Proceedings, before jeop- ardy attaches, 1027. Reversal of Sentence, for error, 930 (2) ; in defendant's favor, 930 (3). Revocable, pardon when, 907 (2). Revolt, 564 (3), note; endeavors to ex- cite, 484 (2). Revolution, not changes lAw, 14 ; how, in law, 480. Re'ward for Office, taking or giving, 471. Riches, not justify laziness, 454. Right and 'Wrong test in insanity, • 383 5, 384, 386. Rights of Others, in abating nuisance, 1081 (2), note. Riot, whether by corporation 422 (3) ; defined, 534 (Ij 4, 5) , present at, coun- tenancing, 632 (2), 658 (4) ; homicide SAL INDEX OP SUBJECTS TO THIS VOLUME. SEL m suppressing, 637 (2) ; inflaming to, 640; conviction of assault, 795; sup- pressing, how, 849 (5) ; not in defence of property, 861 (1), 875; same act of, against State and United States, 988. Riot against Government, 457 (3). Riotous Assemblies of Twelve, 534 (5). Ridtous Entries, on real estate, 536 (3), 537. Riotously Driving, 540 (3). River, Rivers, are within counties, 146 ; how lines between States in, 150; ne- glect to scour, 316 (1); obstructing, by what improves, 341 (2) ; injuries to, as nuisance, 531 (2) ; abatement of non- criminal obstruction in, 829 (2). Road, Roads, by States, over United States land, 174; obstructing, yet open- ing better, 341 (2). Robbery, by one meaning rape, 329 (1) ; husband's coercion to, 358 (2), 361 (2J; either fear, or ground for it, 438 (2); assault as element m, 548 (2), defined, 553 (3); larceny in, 566 (2); by what act, 582 (3) ; one commit- ting, after, 634 (3); what not aiding in, 635 (4) ; attempted, on one with no money, 744 (2) , compelling to write order, 748 ( 1 ) ; conviction of larceny on proof of, 792 ; on indictment for, 795 ; gn high seas, in one country or more, 985 ; jeopardy for, on larceny, 1055 (2) ; in house, and burglary, two crimes or one, 1063, 1064. Robbery, Larceny, Burglary, in com- bination, jeopardy, 1063, 1064. Rogues, whether punishable, 515. Room, may be bawdy-house, 1085 (2); or disorderly house, 1107 (2). Rout, defined, 534 (3). Rule, pardon should be by, 925, 926. Rumor, not justifies libel, 319. Run Away from threat, not, 844. Sabbath-breaking, what, in one day, 793 (2). Safe-conducts, violations of, 484 (3). Safety and Convenience, what pro- tection to public, from criminal law, full, 530-532 a. Salary, State or United States tax of, 180. Sale, unwholesome food for, 491 (1); each, whether violates Lord's day, 793 (2). Same Act, offence against two or more governments, full, 983-989. Same Evidence, to two offences, jeop- ardy, 1065. Same Issue, no second trial of, 980 (2). Same Offence, not to be prosecuted a second time, full, 978-1070 a ; rules to determine what the, full, 1048-1069. Scandalous Writing, to be seized, 477 (1), note. Schedule, omitting from, sworn to under advice, 298 (4). Schoolmaster, licensed by church, 507 (2); chastise pupil, 886 (3, 4). Scotch Law, talces cognizance of what offences, 36 ; weight of, in our iriminal law, 41 ; insanity under the, 383 a ; common law of crimes in, 36. Sea, common highway of nations, 103 ; where territorial limits in, 104, 105 ; county lines on, 146-149. Sea-shore, State jurisdiction over, 146- 148. Seaman, chastise, 882 (1). Secession, national power in State after, full, 161-171. Second Degree, principal in, tried, 684 ; murder in, on charge of first, 797. Second Jeopardy, waiver of constitu- tional guaranty against, full, 998-1007 ; danger of, not prevents first, 142; in offence against two governments, 155, 178; against both United States and State, 179; two offences in one trans- action, 778 (2); whether, after misde- meanor indictment dismissed because felony proved, 812. Second Offence, punished by statute more heavily than first, full, 959-965 ; whether ex post facto, 283 ; indictment for, conviction of first, 795 ; after first is pardoned, 919. Second Prosecution, no, for same of- fence, full, 978-1070 a. Second Trial, issues for, on new trial, 1004-1007. Seconds in Duel, 654 (2). Secretary of Legation, exempt, 126, 128 ; ministerial dignity, 128. Secreting Property, 572 a (2). Sedition, 457 (3). Seduction, mistake of age in, 327, note; in kidnapping, 560 (2). Seen, exposure of person, 1126 (2), 1127. Self, what injuries inflict on, 259, 260, 513. 869 SET INDEX OP SUBJECTS TO THTS VOLUME. SLA Self-defence, summary of right of, full, 864-874; against foreign minister, 127; injury in, not mayhem, 257 (2) ; mistake of fact in, 305 (2) ; from necessity, 347 (2,3); intoxication in, 414 ; by needless force, 843 (2), 844 ; formerly on plea of, 848 ; by husband against wife, 891 (2) ; old forfeiture for homicide in, 968 (1); liilling dog in, 1080 (2), note, par. 3. Self-mayhem, 259 (2J. Self-murder, unlawful, 259 (1); in Eng- land, felony, 511, 615 (2); how here, 511; counselling to, 510, 652, two together, 652. Selling and Buying "Wife, 502 (1). Selling Corpse for dissection, 506. Selling or Letting house for bawdry, full, 1090-1096. Selling Mortgaged Property, 572 o (2)- Sentence, consequences by operation of law, full, 966-977 ; namely, attainder and its forfeitures, 967-971 a ; on ca^ pacity to be witness, 972-976 ; other consequences, 977. Before principal's, not against accessory, 668 (1); forfeit- ure in rem as to, 822 ; day in, execu- tion omitted, 951 ; for two or more offences, 953 ; where can be no valid, no jeopardy, 1021-1041. Sentence of Court, as to the punish- ment, full, 927-958 a ; namely, errors in, 930-932 ; sorts and extent of pun- ishment, 933-953 ; specially in joint convictions, 954-958. Separate Trials in conspiracy, 801 (1). Separation of Jury, consent to, 997 (2). Separations of Crime into specific of- fences, with consequences, full, 791-803. Sepulture, violations of, 506. Servant, master for, 218, 316 (3), 317, 889, 1075; authorizing, to apparently join burglars, 262 (3) ; delivering thing to thief, 263 (2) , master's command not justifies, 355 (1); injuring, by ne- glect, 557 , command to, causing death, 562 (2), 563 ; liable in liquor selling, 658 (2) ; master also, 658 (3) ; may de- fend master, 877 (2). Serve Process, refusal to, 240 (3). Sessions, contempt of, indictable, 240 (1). Setting Fire, which communicates, 318 (3) ; procurer of, principal, 686. Settlement, laws of paupers', 508. 870 Seven Years, child's capacity at, 368. Seven Years' Absence, in polygamy, 303 o, note, par. 15, 16. " Severally," in charging crime, 802. Sham Prosecutions, as to protection from second jeopardy, full, 1008-1011. Sheriff, how criminally liable for deputy, 218 ; refusing office of, 246 (1),458 (2); dying before execution, 951. Shipboard, offence on, 112-120. Shoot at Person, no person in range, 758 (1). Shooting, not cruel and unusual punish- ment, 947 (4). Shooting into Crowd, in attempt, 736 (7). Shooting Felon, when, 843. Shooting-matches, conspiracies against animals, 597 a. Shooting to Murder, no ball, 750 (2). Shooting at One not meant, in at- tempt, 736 (6). Shop, larceny from, 566 (5) ; defending, with spring-guns, 855. Shores, waters between, in counties, 149. Shows Unlicensed, setting up, 1 148. Shrewdness, insanity with, 378. Sick Person, noise assault on, 549. Sickness, in own house, public endan- gered, 490 (1) ; as taking away jeopardy, 1032 (I), 1037 (2). Similiter, not essential to issue, 1029 a. Similitude, to genuine, in forgery, 769 (2). Simultaneous, act and evil intent, 207, 208, 771. Single Sales, in common liquor selling, 782 (1). Single Woman, indicting wife as, 363 (4)- Sister State, attainder in, witness, 976 (I). Slander, whether indictable, 470 (1), 540 (4), 591 (4) ; after offence pardoned, 898 (2), note, par. 2, 917 (2). Slander of Government, 457 (3). Slander and Libel, why, 540 (4). Slander of Officer, oral, 490 (1). Slaughter-house, whether nuisance, 1143, 1144. Slave, statute against taking, on steam- boat, 307 ( 1 ) ; beating, in street, 597 ; permitting, to hire time, 659 (2) ; homi- . cides by, what court, 811 ; intending to steal, killed, 854, 855. 'Slave Trade, 564 (3), note. SPE INDEX OP SUBJECTS TO THIS VOLUME. STA Slavery, effect of secession on, 161-171 ; in " republican government," 168. Slitting Nostrils, punishment by, 942. Small Offence, aider in, 688; helper after in, 706 (1) ; compounding, 711 (2), 715 a; misdemeanor is too, for mis- prision, 717 (2) s attempt in too, for law's notice, 759 (1). Small-pox, one having, not demand trial, 354 (2). Small Things, criminal law not notice, full, 212-228; namely, general, 213- 215; as to intent, 216-222; as to act, 223-227. Public wrongs too, 239 ; their degree of evil, 247 ; intent too, 334 ; mental incapacity too, 376 ; near or remote consequences, 406 ; in larceny, 579 ; in interpretation of statutes, 659 ; accessory after in petit larceny, 680; nearness of one's intent to other's crime, 688. Smaller Crime, conviction of, bars in- cluding larger, 1056 (1), Smell, in offensive trade, 1138 (3). Smoke, in offensive trade, 1138 (3). Smuggling, 488 (2), note. Soap-boiling, as nuisance, 1143. Social Duty, homicide from breach of, 217 (2). Sodomy, defined, punishment, 503 (1) ; as ground for divorce, 503 (2) ; inciting to, attempt, 767 (2), 768 4, 768 rf (2) ; repelling, to death, 867 (3). Soil, larceny of what adheres to, 577 (2). Soldier, command of officer to, 355 (1). Solicitation to Bawdry, 501 (1); to carnal intercourse, rape, 731 (5) ; as open lewdness, 1129. Solicitation of Chastity, 501 (1), 768 (2). Solicitation to Crime, as attempt to commit it, full, 767-768 d, 772 (2), 772 a Somnambulism, insanity, 395 (2). Son, may defend father, father defend, 877 (2). Sorcerers, 593 (1, 3). Sorcery, taking life to save wife from death by, 305 (2), note. Sort of Punishment, how in cruel and unusual, 947 (3, 4). Sorts and Extent, of the punishment, full, 933-953 Souls, corporations no, 422 (3), note. Sources of juridical law, full, 1-21. Special Injury, actionable only when, 265 (2). Special Verdicts, old, in homicide, 848. Specific United States powers, 185. Specific Article, fine, and forfeiture of, differ, 820 (2) ; forfeiture as punish- ment, 944 (1). Specific Crime or Crimes, how law shapes criminal wrong into, full, 773- 785 a ; evil transactions divided into, 599 (2); what a, 776-778, 784. Specific Intent, intoxication in cases requiring a, full, 408-413; in special cases not requiring a, full, 414, 415; ignorance of law in crimes requiring a, 297 (1), carelessness, 320 (1), 321 (1); unintended result, 335 , to commit sub- stantive crime, in attempt, 729 (4), 731 (1, 4), 735 (2), 772 a ; must govern en- tire act, 770 (2). Specific Ofiences, relations of, to one another and to transaction, full, 790 a- 815 a ; namely, separation into specific, and consequences, 791-803 , limitations from merger and the like, 804-815. Constituted, how, 599 (2) ; created and named, 773-785. Speech iQ Street, 1146 (1), note. Speed of Vehicle, statutes and ordi- nances regulating, 540 (3). Spirits, intercourse of, with mortals, 593 (3). Spirituous Liquors, suppressing, in Indian Territory, 154. Sport, homicide in reckless, 314 (4) ; disobeying law in, 345 (4) ; cruelty to animals as unlawful, 597 a. Spreading False News or Rumors, 472-477 ; to enhance prices, 523, 526. Spring-guns, for protectior(, 854-857. Stage of Cause, jeopardy attaches at what, full, 1013-1019. Stage-coach, care from driver of, 217 (3), note. Stamp Act, not without fraud, 345 (3). Standing Mute, forfeiture for, 968 (1). Stanley's Case, concerning, 140, note. Stare Decisis, in criminal cases, full, 93-98 ; blunder, 140, note. Starvation, killing other to prevent own, 348 o ,• taking food to prevent, 349. State, States, larceny in one, goods taken into another, full, 137-142 ; local limits and jurisdiction of, full, 145-155; guaranty against second jeopardy, how binds, full, 992-994; is plaintiff in criminal cause, 32 ; martial law by, 871 STA INDEX OP SUBJECTS TO THIS VOLUME. SUB 48,49) our, not known abroad, 100; fugitives from justice between, 135 ; commanding wrong abroad, 1 53 ; over same wrong as United States, 155, 178j what is not prohibited to, 156, 157 ; after secession, 161-171 ; when United States full powers in, 163, 171 ; take persons to exclusive service, 180 ; outside of terri- torial limits, 184, 188 a; destroying vessel outside of, 570, note ; enticing out of, as soldier, 752 (3), note; what taken from, by pardon, 910, 911, 916; as to second jeopardy, 981 ; prosecution in one, not bars in another, 986 ; or by United States, 987, 988 ; whether, have proceedings reversed, 1024. State Courts, not release federal pris- oners, 63, note, par. 3. State -without Government, national authority over, full, 161-171 . State Jurisdiction over public ways, 175. State Laws, in United States courts, 193, 194. State Limits, jurisdiction of United States within, full, 156-181 ; United States outside of, full, 182-188 a; whether common law of crimes beyond, 201, 202. • State Prisoner, meaning, 64, note, par. 8. State Trials, the, 76. State and (or) United States, rev- enue laws of, 486-488. Statute, Statutes, special terms of, as to act in attempt, full, 755-758 ; not bind future legislation, 35 ; whether extra-territorial, 109 ; interpreted by law of nations, 112 (2); exceptions de- rived from this law, 115 and note, 124 ; as to punishing offences abroad, 121 ; court overlooking, not changes law, 140, note; to give effect to Constitution, 195 ; proposed, consider practical workings of, 211; bounds of crime enlarged by, 225 ; thing prohibited by, indictable, 237, 238 ; when ex post facto, 282 ; in- terpreted to require criminal intent, 291, 291 b; impossible to be known, 296; violating, through mistake, 303 a, note, par. 5 et seq ; silent as to intent, 303 a, note, par. 20; interpreted by legisla- tive will, 303 b ; by known principles of law, 304; disobeying letter of, not knowing facts, 307 (1 ) ; whether void as violating Divine law, 344; must be 872 common law's evil intent, 345 ; inter- preted by common law, 448; disobey, ing, indictable, 469 (3) ; felony created by, 615 (3), 622 (2), 935; defining felo^ nies, how, 617-622 ; recognizing degrees of principal, 648 (5) ; accessories in felony by, 665 ; varying law of prin- cipal and accessory, 667 (1), 668 (5), 670, 671 ; attempt to commit offence by, 759 (2) ; alternative clauses of, 799 (4); for rehearing, 1026; whether proceed- ing on, bars by-law, 1029 (3). Statute and Common La-w, same wrong offence against both, 785 (3) ; forfeitures in rem by either, 821 (6). Statutes and By-law^s, same wrong under both, 1068. Statutory Attempts, same as com- mon-law, 755 (1). Statutory Authority, act under, not nuisance, 1144. Statutory Day of execution, directory, 952. Statutory Disability, wliether pardOn removes, 918 (2). Statutory Felony has accessories, 665! Statutory Forfeiture, whether consti- tutional, 831, 832 ; in some States, 971 a. Statutory Misdemeanors, partici- pants in, 657 (2)-659. Statutory Offences, evil intent in, 345 (2), excluding accessory, 689(3); attempt to commit, 759 (2). Statutory Prohibition, 237-239. Statutory Treason, helper after in, 702-704. Stealing Corpse, 506, Steamboat, care from master of, 217 (3), note; homicide from careless, 314 (2). Stolen Goods, owner of, not prosecut- ing thief, 267 (4), note, 268 ; his right to receive back, 714 (1). " Stop in Street," words, 351 (3). Stratagem, drunk by, excuses, 405. Street, jeopardies for non-repair of, 1061 (2). Street-walker, escape of, 707 (2). Stress of Weather, breach of revenue laws in, 351. Stripes, not cruel and unusual, 947 (3). Study of Criminal Law, indispensable, 449. Subornation of Perjury, 468 (4) ; dis- qualifies Witness, 974. Subsequent Offence, heavier punish- ment for, than first, full, 959-965. TEC INDEX OP SUBJECTS TO THIS VOLUME. THI Subsequent or Precedent, condition of pardon, 914 (3), 917. Substantive Felony or Offence, near- ness of act to, in attempt, full, 759- 764; created out of attempt, 437 (i), 734 (2) ; defined, 696 (1) ; distinguished from accessorial, 696 (2); intent to commit, in attempt, 728, 729, 731 (1); whether conviction of attempt, 809. Sue and be Sued, after attainder, 967 (3), 970. Suffolk County, in Massachusetts, 147, 148. Suffrage, power of States over, 169-171 ; after secession, 169-171. Suicide, 5U ; persuading to, 510 (2); counselling, 652; old forfeiture for, 968 (1). Suicide Together, agreeing to commit, 652. Superfluous Indictments, quash, 1014 (3). Suppression of Truth, in pardon, 905 (2), 906. Sureties of Peace, suit to compel, civil or criminal, 32, note ; former jeopardy in, 990 (2) ; in punishment, 945. Surplusage of Allegation, " feloni- ously," 810. Surplusage of Intents, of no effect, 339. Surplusage of 'Wrong, in transaction, 774, 775, 779 (2). Surprise and Violence, resist felony by, 853 (2). Surrender of fugitives from justice, 135. Swimming Race, false pretence at, 214. Swine, by-law against, at large, 832. Tallcw Furnace, nuisance, 1142 (2) and note. Tampering with judge, jury, 468 (5) ; witnesses, 468 (4). Tannery, nuisance, 1143. Tax, on State and national salaries, 1 80 ; ' beneficial, 452 ; not paying 821 (2). Taxed Costs, pardon, 910 (2)., Teacher, chastise pupil, 882 (2). Teacher's Judgment, in chastisement, 886 (3). Teacher and Pupil, criminal law of, full, 886. Technical, distinction of accessory before and principal, 673 (2) ; after, 692 (3). Technical Divisions, and distinctions, full, (c. 42-54.) 598-815 a; namely, out- lines, 598-606 ; treason, felony, and misdemeanor, 607-625; proximity of offender to crime, 626, 627; combina- tions of persons in crime, 628-643 ; the principal actor, 644-659 ; accessory in general and before, and like in treason and misdemeanor, 660-689 , accessory after, with lilse in treason and misdemea- nor, 690-708 ; compounding, 709-715 a ; misprision, 716-722; attempt, 723- 772 a ; divided into specific crimes, 773-785 a; merger of offences, 786- 790; relations of specific offences, 790a-815 a. Technical Meanings of words, 425. Technical Rules, 12, 13, 15, 16 ; limited in criminal law, 211. Temple and Mew's Reports, 73. Tempts to Liquor Selling, one who, 658 (1). Tenant of Baw^dy-house, neglect to eject, 1094. Tender years, neglecting, 888. Tends to Prove, instruct what the evi- dence, 383 b, 386 (2). Tent, bawdy-house, 1085 (2). Term of Court, ended before verdict, 1031. Territorial Jurisdiction of our States, 151. Territorial Limits, and boundaries, of United States, full, 102-108 ; exemp- tions from our criminal laws within, full, 124-135 , and jurisdiction of States, full, 145-155, 184; statutes no effect beyond, 109, 110. Territories, national jurisdiction over, 188. Terror, trespass exciting, 538 (1). Test, as to two jeopardies, 1052 (2), 1053 (1, 4). Test of Insanity, 381 (3). Test Oath, statute requiring, 279 (4). Texas, common law of crime in, 37. Text-books, old, in criminal law, 86-90; weight of, 91, 92 ; court to look into, 140, note ; omissions' in, as to attempt, 725 (2). Theatre, audience at, 542, note. Theatrical Exhibitions, 1149; de- moralizing, 504 (1), note. Theft Bote, 710 (2). Thing Offending, 816, 819, 823 (1). Things of Record, preliminary to jeop- ardy, full, 1020-1029 0. 873 TEE INDEX OP SUBJECTS TO THIS VOLUME. TWT Things in Wrong, forfeiture of, full, 816-835, Third Offence, conviction of first, 795. Third Persons, forfeiture in rem as to, 822. Thought, not'punishable, 204 (1), 209. Threat, of present death, excusing, 347 (3), 348 ; death from, 562 (2, 3), 563. . Threatening Notice, soliciting to post, 767 (2). Three Houses, nuisance to, 244 (1). Three-mile Limit, over ocean, 104. Three or more Offences, in one trans- action, 782 (2). Ticket, by false pretences, 214. Tidal River, over vessels in, 117. Tide, county lines varying with, 146. Time, act and intent whether concur in, 207, 642, 692 (3) ; do as will with own, 515. Time of Act, in insanity, 385 (2). Tippling-shop, nuisance of, full, 318 (2), 1113-1117 ; as disorderly house, 505 (2). Title, injuring under claim of, 298, 576. Too few Jurors, trial by, no jeopardy, 1040(1). " Tool," having, procuring, 204.(2). Tort, and crime, distinguished, 23S (3), . 236, 247 ; by corporation, 422 (3). Torture, cruel and unusual, 947 (4). Total Incapacity, in insanity, 378. Touch, when, a battery, 548 (2). 'Town, not repairing way, 419 (1). Town Meeting, disturbing a, 542. Town OiBce, refusing, 246 (1), 458 (3). Town Treasurer, de facto, 464 (4). Town Way, obstructing, 245 (2). Trade, exercise of, by wife, 364 (2) ; in- . juring air, 531 (2). Trade or Handicraft, regulations of, 508. Tranquillity and Order, criminal law protects, full, 533-542. Transaction, distinguished from crime, 777; offences from one, 791 ; jeopardy for part, as to residue, 1056-1064. Transportation, 939 (2). ^ Traveller, innkeeper refusing, 532 (1). Treason, one of three divisions of crime, full, 611-613; instigator in, full, 681- 684; helper after, full, 701-704. by foreign minister, 127; against United States or State, 177 ; statute required to punish national, 177; minute par- ticipations in, 226 ; concealing another's, 226 ; arresting on mistalien suspicion of, 874 306 (2) ; joining in, to save own life, 347 (3) ; compelled, 347, 348; husband's coercion to, 358 (2), 361 (2) ; by infanty 369 (3) ; by insane person, 375 (2), note ; by corporation, 422 (2), 422 (3), note ; is attempt, 437 (5), 440 (1); intercepted letters in, 437 (5) ; joining friends mis- taken for enemy, 440 (1) ; nature of, 456 ; like offences less than, 457 ; coun- terfeiting coin as, 479 ; revolution is, 480; heaviest offence, 599 (1), 602 (3) ; principals and accessories in, 604 (10), 605 (2); is also felony, 612 (1), 613, departing from plan, 638 ; partakers, principals, 655 ; violating King's com- panion, 659 (1) ; accessories before, 681- 684 ; after, 701-704 ; under United States Constitution, 703 ; State consti- tution, 704; compounding, 711 (1); how formerly, now, 717 (3) ; attempt, 759 (2) ; is misdemeanor, 772 (3) ; not also felony, 787 (2) ; by lawyer profes- sionally, 895 (1) ; former jeopardy in, 990 (1). Treason, Felony, Misdemeanor, crimes divided into, full, 607-625 ; namely, preliminaries, 608-610; trea- son, 611-613; felony, 614-622; misde- meanor, 623-625. Treaties, fix our land boundaries, 102, 107 ; for fugitives from justice, 135, Treatises, the old, in criminal law, full, 86-90. Trees, larceny of, 577 (2), 763 (2). Trespass, foreign, 140 ; larceny both civil and criminal, 140 ; error of court no,t, 463, note, par. 3 ; civil, indictable or not, 538 (1); essential in larceny, embezzlement distinguished, 567 (2) ; meanings of word, 569, 625 ; cruelty to animals added to, 596 (1). Trespass ab Initio, 208. Trespasser, killing, 862. Trial, necessity delaying, 354 (2) ; in treason, 683 (2), 684; advantages in misdemeanor, 804 (3), 805-807 ; nolle prosequi during, 1016 ; without plea, 1029 a. Tried, capacity to be, insanity, 396 (2) ; accessory, principal, 667 (2). Truth, in asking pardon, 905 (2), 906. Truth in Evidence, in libel, 591 (4). Turnpike Road, non-repair of, 419 (1). Twice in Jeopardy (see Former Jeop- ardy), heavier punishment for second offence, 965 (1). UNI INDEX OP SUBJECTS TO THIS VOLUME. VES Two Indictments for same offence, 1014 (3). Two or More, indictment against, proof, verdict, 800. Two or More Intents, crimes requir- ing, .342. Two or More Offences, how judgment, 953. Two Persons, one blow, 1061 (1). Ultimate Grood, from wrong act, 341 (1 ). Unavoidable, the, is no crime, 346 (2), 387 (2). Unconstitutional, no jeopardy, 1028. Uncontrollable Impulse, in insanity, 383 6,387 (1), 388 (1,2). Underwriters, destroying vessel to de- fraud, 570, note. Undue Advantage, taking, 252. Unduly Obtained, consent which is, 261 (1), Unexecuted Instrument, signature by misreading, 584. Unexpired Sentence, fresh sentence during, 953. Unfair G-round, injuring individual from, 252 ; doctrine of, 545 ; physical injuries as, 550 ; in mental force, 581 ; conspiracy as, 592 (1). Unindictable Evil Intent, with in- dictable act, 330 (2). Unintended Consequences from evil combination, 633 a (2, 3). Unintended Result, evil intent pro- ducing, full, 323-336. United States, boundaries of, full, 102- 108 ; crimes beyond limits of, full, 109- 123 ; exemptions from criminal laws within limits of, full, 124-135; author- ity of, within State limits, fuU, 156-181 ; whether has a common law, full, 189- 203; jurisdiction of, over same wrong as State, 155, 178; same act against, and State, 178, 984-987 ; take persons into exclusive service, 180; procedure in tribunals of, 194 ; administer State law, 194-196 ; treason against, 456. United States and Foreign Nations, jurisdiction of crime as between, full, 99-144 ; namely, territorial limits, 102- 108; jurisdiction outside, 109-123; ju- risdictional exemptions within limits, 124-135 ; wrongs against two or more governments, 136-144. United States Laws, felony under, 617 a. United States and States, respective revenue laws of, 486-488. Universal, doctrine of criminal intent is, 291-291 6. Unknown Impediments to verdict, fresh proceedings, full, 1030-1036. Unlawful, meaning, in conspiracy, 592 ( 1 ) ; cruelty to animal is, 597 a. Unlawful Arrest, how oppose, 868 (2). Unlawful Assembly, defined, 534 (2, 5); of twelve or more, 534 ; disturbing, 542 ; crime by one in, 634 (2). Unlawful Combinations, for lE^wful defence, 877 (4). Unlawful and Lawful, in sentence, 931. Unmarried, cohabiting as married, 501 (2). Unseen Impediment, in attempt, 742 Unwholesome Food or Drink, to prisoners of war, 484 (4) ; supplying, 491 (1), why, 558 (2). Unwholesome Trades, 531 (2), 1138- li44. Usage, criminal nuisance not lawful by, 1078 a ; in keeping gunpowder, 1099. Use of Thing, stealing, 579 (2). Usefulness of Trade, element in nui- sance, 1140, 1142. Usurping OfBce, 468 (6), note. Uttering Counterfeit Coin, wife in, 359 (3) ; drunkenness, 412 , against State and United States, 988. ~ Uttering Forgeries, species of attempt, 437 (4) ; second-degree principal in, 654 (3) ; principal, .accessory, 676 (2) ; by staking at gaming-table, 765 (2). Vagabonds, 515. Vagrancy, 455 ; helper after in, 706 (2). Valid Indictment, quashing, jeopardy, 1027. Value of thing, in larceny, 579 (2) Variance, in former jeopardy, 1052. Varieties in insanity, 379 (1). Venue, waiver as to, 995. Verbal Slander, 470 (1). Verdict, contradictory, 800; pardon after, 903 (2), 904 ; if incomplete, per- fected, 998 (3) ; absent at, jeopardy, 998 (4) ; vacated, fresh jeopardy, 998 (5) ; wrong, from error of court, 999 ; form of, as to new trial, 1004-1007. Verdict Incomplete, 998 (3). Verdict of Wot Guilty, right to, 1016. Vessel, Vessels, in foreijjn waters, 112- 875 WAR INDEX OF SUBJECTS TO THIS VOLUME. WIL 116 ; on high seas, 117 ; 'foreign, in our harbors, 130; destroying, 570, note ; for- feiture of, for master's piracy, 826 (1) ; neutral's share in belligerent, 826 (2). Vessel Wrecked, as to revenue laws, 351 (2). Vessels of War, foreign, in our waters, 130. Vested Rights, pardon on, 910 (1), 916; when right vests, 911. Violate Law, intent to, 343. Violation, forfeiture immediate or not on, 822. Violation of Lord's Day, what, on one day, 793 (2). Violence and Surprise, resist felony by, 853 (2). Virginia, in Potomac and Chesapeake, 150. Void Proceedings, no perjury in, 440 (4). Voidable Judgment, jeopardy, 1021 (3). Volition, distinguished from transaction, 1061 (1). Voluntary Drunkenness, no excuse, 400. Vote, casting more than one, 471 ; what right of, restored by pardon, 918 (3). Voter (see Willing), bribery of, in gov- ernmental corporation, '246 (2) , cor- ruptly influencing, 47L Voting, mistaking age, 307 (4). Wages, laws fixing, 453-455 ; with us, 508 ; seamen forfeit, for desertion, 821 (3). Waiver by Defendant, of guaranty against second jeopardy, full, 995-1007 ; namely, in general of waiver, 995-997 ; this particular, 998-1007. Waiver by State, as to ex post facto laws, 279 (5) ; second jeopardy, 992. Waiving protection of castle, 859. 'Wandering Mariners and Soldiers, 516 (1). ■War, martial law is of, 50, 51, 53. War and Peace, hostile acts in, 131- 133. ■War Power, the, 48, 49, 57-64. ■War Vessels, foreign, in our waters, 130. Warehouse, spring-gun defending, 854. ■Warehouse Key, impression of, in larceny, 764 (4). Warrant, not serving, 240 (3) ; resisting 876 officer without, 440 (3) ; homicide in resisting, 736 (4) ; day of sentence in the, 951. Watching wrong-doer, to prosecute, 262, ■ 263. ■Water, 'Waters, jurisdiction over inter- nal, 173-176; supplying unwholesome, 491 (1). ■Water Streams, between States, 150. Way, obstructing, criminal or civil, 32, note ; neglect to repair, 241 ; obistruo- tion of, without damage, 244 (3) ; with benefit, 341 (2) ; how public, as to ob- struction, 245; as to who repair, 245; obstruction actionable or not, 265 (3) ; corporation's non-repair of, 419 (1) ; obstructing, 420 (2); not possible to be used, 439 ; taking one infected into, 490 (1); injuries and obstructions as nuisance, 531 (2) ; procurer of injury, 686;' conviction for one street, more proved, 792; spring-guns beside, 855, 856 ; nuisance in, no crime, abate, 829 (2) ; several streets, indict for one, 1061 (2).- ■Weak and Feeble, whether law pro- tects, 585, 874 (2). ■Weak Intellect, as insanity, 376 (4), note, par. 6. Wealth of Country, how criminal law protects, full, 514-517. ■Weapon, assault aggravated by the, 548 (2) ; improper, in just defence, 873 (1). Weight of Authority, delusive reason- ings as to, 1081 (1), note. ■Whipping, one requesting, 260 (3) ; pun- ishment by, 942', 943 (1) ; not cruel and unusual, 947 (3). 'Wickedness, no crime without, 287. 'Wife, husband's actual or presumed co- ercion of, full, 356-366; selling and buying a, 502 (1) ; husband killing, by exposure, 562 (3) ; accessory before to husband, 678 (5). ■Wife's Crimes, husband for, 891 a. ■Wild Animals, larceny of, 578 (2). ■Wild Beast, insane person compared to, 378. ■Wild Monster, killing, 441. ""Wilful," "■Wilfully," meaning, 427 (2), 428. Wilful Mistake of Pact, not excuses, 302 (1). ■Will, contribution of, to crime, 629, 632 (1); to felony, 647. WOR INDEX OF SUBJECTS TO THIS VOLUME. YOU Willing Voters, for republican govern- ment, 170. ■Windows, riotously breaking, 537. Wisdom of Laws, courts not, 169, note. Witchcraft, negrophobla compared to, 376 (4), note, par. 13 ; Scotch law of, 593 (1), note; whether indictable, 593 (1,3); falsely pretending to, 593 (2). ■Witches, 593 (1,3). Withdrawing Juror, jeopardy, 1016. ■Withdrawing Pardon, 901, note. ■Without Fault, misled as to facts, 303 (2, 3). ■Witness, sentence for what crimes inca- pacitates, full, 972-976; removing in- capacity is not ex post facto, 281 a ; preventing attendance of, 468 (2), 734 (2) ; not makes accessory, 695 (3) ; tam- pering with, 468 (4) ; killing prisoner by perjury, 564 (2) ; persuading, to ab- sent self, 895 (1); pardon restores ca- pacity, 898 (2), note (par. 2), 917 (1) ; sickness of, not acquainted with oath, stopping trial, 1037 (2). ■Witness Absent, discharging jury be- cause, 1037 (2). Witness Sick, discharging jury be- cause, 1037 (2). ■Women, benefit of clergy, 937, 938. ■Wooden Buildings, statutes and ordi- nances against, full, 1150, 1151. ■Words, indicating criminal intent, full, 425-429 ; of judges, how, 379 (2), 381 (3), 383, 383 6, 384, 551 ; in indictments, 426; provoking quarrels, 540 (4, 6); some particular, not attempting to in- clude all, namely, attempt to poison, 756 ; conviction, 963 (1) ; criminal cases, 32 J criminal law, 34 ; cruel and unusual punishment, 946, 947 ; deodand, 827 ; destruction by abatement, 820 (3) ; for- feiture, 820 (2) ; high misdemeanor, 716 ; loaded arms, 758 (2) ; misprision, 716 ; open and gross lewdness, 1129; person- ating, 758 (4); poison, 758 (3) ; public indecency, 1134; puppet-show, 1147; same offence 1049 (1); shoot at, 758 (1); submittM to jury, 1017 (2). ■Work, laws compelling to, 453-455. ■Wounding, statute against, 340 (2). ■Wounding and Cutting, joining, after completed, 642 (2). ■Wounding OfScer, one, after joint offence, 634 (4). ■Wreck, larceny from, 176, note. ■Writ of Error, on prayer of State, 1024 ; effect, 1024, 1026. "Writing Libel, to publish, 761 (3). ■Written Constitutions, 24. ■Wrong, injured person in, full, 256, 257 ; minute, 225 ; how far, public, 232. ■Wrong County, offence laid in, no bar, 1053 (2). ■Wrong Person, unmeant evil from or to, 327 et seq. ; injury laid in, no bar, 1053 (3). ■Wrongly Convicted, insane, 390. ■Wrongs Pardonable, what the, full, 909-913. ■young Person, consent of a very, 261 (I). 877 END OP VOL. I.